The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OA) No.688 of 2015 Subrat Kumar Mahana …. Petitioner Mr. P.K. Mishra, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. S.K. Samal, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY
Decision
ORDER 13.02.2024 Order No 11. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. P.K. Mishra, learned counsel for the Petitioner, Mr. S.K. Samal, learned Addl. Govt. Advocate appearing for the State and Mr. P. Behera, learned Standing Counsel appearing for the Department. 3. Petitioner has filed the present writ petition inter alia with the following prayer:- “In view of the facts stated above in paragraph-6, the applicant prays for the following relief(s):- (i) The Hon’ble Tribunal may be pleased to quash the impugned orders vide No. 2724 dated 19.11.2013 shown at Annexure-6 and order vide No. 12915 dated 28.11.2014 shown at Annexure-9 and further may be pleased to direct the Respondent authorities to allow the applicant to continue as Operator w.e.f.1.11.2013 with all benefits within a time to be stipulated. (ii) Any other relief(s), the Hon’ble Tribunal deems fit and proper in the ends of justice.” // 2 // 4. It is contended that Petitioner was engaged as a Daily wage unskilled Labour vide order issued on 06.01.2000 by the RTO, Bargarh under Annexure-1 series. It is contended that Petitioner while so continuing on daily wage basis vide order dtd.16.11.2010 vide Annexure-4, he was engaged on contractual basis as against the post of Operator. Petitioner in terms of the order joined as an Operator on 16.11.2010 vide Annexure-5. It is contended that without extending the engagement of the Petitioner when Opp. Party No. 5 was engaged in his place vide order dtd.19.11.2013 under Annexure-6, Petitioner challenging such action approached the Tribunal in O.A. No. 1626 of 2014. 4.1. The Tribunal vide order dtd.12.08.2014 disposed of the matter by directing Transport Commissioner-cum- Chairman, STA to take a decision on the Petitioner’s claim. In terms of the said order claim of the Petitioner was rejected vide the impugned order dtd.28.11.2014 under Annexure-9 on the ground that there is no sanctioned post of Operator available in the office of RTO, Bargarh and no recruitment rule has been framed to fill up the post in question. 4.2. Learned counsel for the Petitioner contended that since Petitioner while continuing on daily wage basis, he was appointed as against the post of Operator on contractual basis vide order dtd.16.11.2010 under Annexure-4, there was no occasion on the part of Opp. Party No. 4 not to renew the engagement of the Petitioner and instead engaging Opp. Party No. 5 vide order dtd.19.11.2013 under Annexure-6. It is contended that if the post is not available, then while not allowing the Petitioner to continue, Opp. Party No. 5 could not have been engaged as against the said post. It is accordingly contended that the ground on which Page 2 of 5 // 3 // Petitioner’s claim was rejected vide impugned order under Annexure-9 is not sustainable in the eye of law. 4.3. Learned counsel for the Petitioner also contended that Opp. Party No. 5, who was appointed as such vide order dtd.19.11.2013 has already left the job and the said fact is also admitted by learned counsel appearing for Opp. Party No. 5 before this Court on 18.01.2024. It is accordingly contended that since Opp. Party No. 5 has left the job, case of the Petitioner be considered for his reengagement as against the post of Operator to which Petitioner was engaged vide order dtd.16.11.2010. 5. Mr. P. Behera, learned Standing Counsel appearing for the Department on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that Petitioner was suo moto engaged by Opp. Party No. 4 vide order dtd.16.11.2010 and in his place Opp. Party No. 5 was also engaged vide order dtd.19.11.2013 under Annexure-6, without taking due approval of the Opp. Party Nos. 2 & 3. It is also contended that Petitioner because of his involvement in a criminal case in Bargarh Town P.S. Case No. 353 of 2013, his further engagement was not renewed and in his place Opp. Party No. 5 was engaged vide order under Annexure-6. It is accordingly contended that since Petitioner while continuing on contractual basis as an Operator, was involved in a criminal case, his further engagement was not renewed and no illegality has been committed while rejecting his claim. 6. To the submission made by learned Standing Counsel, Mr. Mishra, learned counsel for the Petitioner contended that even though Bargarh Town P.S. Case No. 353 of 2013 was initiated on 07.11.2013, but no further progress has been made to the said Page 3 of 5 // 4 // criminal case as with similar allegation, Sambalpur Vigilance P.S. Case No. 11 dtd.03.02.2014 has been registered. But it is contended that in the aforesaid vigilance case even though charge sheet has already been filed, but Petitioner has not been charge sheeted. It is accordingly contended that since Petitioner has not been charge- sheeted in the vigilance case, it is to be held that no criminal case is pending against the Petitioner as on date. 8. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioner was engaged on daily wage basis vide order dtd.06.01.2000 under Annexure-1 series. While so continuing, Petitioner was engaged on contractual basis as against the post of Operator vide order dtd.16.11.2010 under Annexure-4. From the counter so filed by the Opp. Parties, it is found that Petitioner because of his involvement in Bargarh Town P.S. Case No. 353 of 2013, his further engagement was not renewed and in his place Opp. Party No. 5 was engaged vide order dtd.19.11.2013 under Annexure-6. It is not disputed that Opp. Party No. 5 after being so engaged has left his job since 2019. Since for the self same allegation a vigilance case in Sambalpur Vigilance P.S. Case No. 11 dtd.03.02.2014 was also registered, no further progress has been made to Bargarh Town P.S. Case No. 353 of 2013. As contended by the learned counsel for the Petitioner, Petitioner has not been charge-sheeted in the Vigilance case. 8.1. In view of the aforesaid analysis, this Court while disposing the writ petition, directs Opp. Party No. 2 to take a fresh decision with regard to reengagement of the Petitioner as against the post of Operator, which has fallen vacant as Opp. Party No. 5 left the post in the year 2019 or as a DLR. Such a fresh decision be taken within Page 4 of 5 // 5 // a period of six (6) weeks from the date of receipt of this order. Opp. Party No. 2 is directed to take a fresh decision without being influenced by his earlier rejection so passed under Annexure-9. 9. The writ petition is disposed of accordingly. (Biraja Prasanna Satapathy) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Feb-2024 16:18:03 Page 5 of 5