The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P. (C) No.29090 of 2022 Balaram Patra …. Petitioner Mr. A. Acharya, Advocate -Versus- State of Odisha & others …. Opposite Parties Ms. B. Dash, ASC CORAM: MR. JUSTICE R.K. PATTANAIK ORDER 30.06.2025 Order No. 09. 1.
Legal Reasoning
Heard Mr. Acharya, learned counsel for the petitioner and Ms. Dash, learned ASC for the State. 2. Instant writ petition is filed by the petitioner challenging the order of termination as at Annexure-4 and rejection order i.e. Annexure-10 of opposite party No.3 and to further direct his re-engagement as MPHW(M) at CHC, Papadahandi in the district of Nabarangpur taking into account the enquiry report and also legal opinion received as per Annexures- 13 & 14 as well as letter of opposite party No.2 at Annexure-16 on the grounds stated and further to issue appropriate directions to regularize his service in view of the order of the Health & Family Welfare Department, Odisha i.e. Annexure-5 or upon completion of six years of service, whichever is earlier. 3. Mr. Acharya, learned counsel for the petitioner submits that the petitioner was engaged on contractual basis as per Page 1 of 6 Annexure-1, to which, he joined and refers to copy of the joining report dated 8th August, 2011. The submission is that since the mother of the petitioner fell sick and he himself, leave applications was moved but considering the absence for the period between from 7th February, 2018 and 26th May, 2018 to be unauthorized, it was followed by the order of termination dated 26th May, 2018 i.e. Annexure-4. The further submission is that the petitioner moved a representation as per Annexure-6 and finally obtained an order in W.P. (C) No.15959 of 2020 as at Annexure-9, pursuant to which, such representation was considered and disposed of as per Annexure-10 denying him the re-engagement. It is claimed that in the meanwhile, the petitioner after having been involved in a criminal case in C.T. Case No. 36 of 2019, he was acquitted for the alleged offences by a judgment dated 1st February, 2022, whereafter, once again, he moved opposite party No.3 with a representation dated 9th February, 2022 i.e. Annexure-12 and in that connection, before dealing with it, a legal opinion was obtained from the Public Prosecutor and it was received as per Annexure-13. It is also submitted that an enquiry was held with the orders of opposite party No.3 and therein, as per a report i.e. Annexure-14, a recommendation was made to examine the plea of illness with the absence to be allowed as leave admissible under the Odisha Leave Rules, 1966 (hereinafter referred to as ‘the Rules’) after verification of the documents and fitness received from the Medical Board followed by his re-engagement in service but still, such re-engagement has not taken place. It is also claimed that petitioner once again moved another representation as per Annexure-15 and in response to the same, opposite party No.2 Page 2 of 6 had a correspondence with opposite party No.3 as per Annexure-16 seeking necessary clarification to consider his re- engagement and it was responded to with the letter i.e. Annexure-17. The contention is that opposite party No.3 is the Appointing Authority of the petitioner and in view of the order of acquittal in C.T. No.36 of 2019 and in view of the enquiry report and recommendation as per Annexure-14 with the legal opinion of the Public Prosecutor on record as made to reveal from Annexure-13, the petitioner should be re-engaged as MPHW(M) at CHC followed by regularization upon completion of six years of service in view of the Government decision as per Annexure-5 dated 24th November, 2018. 4. On the other hand, Ms. Dash, learned ASC for the State refers to the counter affidavit filed through opposite party Nos. 1, 2 & 3 and would submit that no instructions have been received by opposite party No.3 with regard to the rules and regulations to consider re-engagement. It is at the same time submitted that in view of the unauthorized absence of the petitioner for a period of three months and judicial custody after being arrested, opposite party No.3 did not consider it proper to re-engage him, hence, therefore, the order of termination i.e. Annexure-4 followed by the decision as per Annexure-10 is justified and hence, not to be disturbed. 5. A rejoinder affidavit is filed by the petitioner and the same is gone through. 6. From Annexure-3 series, the Court finds that applications for leave have been received from the petitioner Page 3 of 6 with the reason for such absence revealed and it was on account of illness of the mother of the petitioner. On its further perusal, the Court finds from Annexure-3 series that the leave was also applied due to the illness of the petitioner. On a reading of the counter affidavit, it is nowhere revealed for opposite party No.3 not to have received the leave applications. In fact, the extension of leave as was applied for by the petitioner and was refused as informed by Ms. Dash, learned ASC for the State referring to the counter affidavit filed through opposite party Nos. 1 to 3. 7. In fact, for the period of absence of the petitioner, as made to understand from the order of termination i.e. Annexure-4, has been held to be unauthorized by opposite party No.3. In so far as the criminal case against the petitioner is concerned, the judgment in C.T. Case No. 36 of 2019 arrived in the year 2022 after the decision of opposite party No.3 as per Annexure-10. On a reading of the judgment therein at Annexure-11, the Court also finds that the learned Assistant Sessions Judge, STC, Nabarangpur reached at a conclusion for having no evidence against the petitioner to implicate him and hence, passed the order of acquittal under Section 235(1) Cr.P.C. for the offences under Section(s) 376, 420,294 & 506 IPC. The Court further finds that consequent upon the order of acquittal, the petitioner moved the representation i.e. Annexure- 12 once again seeking re-engagement, consequent upon which, enquiry was directed to be held and legal opinion was also obtained. Such opinion of the Public Prosecutor dated 22nd April, 2022 at Annexure-13 suggests re-engagement of the Page 4 of 6 petitioner in view of the order of acquittal and absence of any departmental proceeding initiated against him. The enquiry report dated 5th May, 2022 at Annexure-14 further reveals that there is a recommendation for considering the prescriptions received from the petitioner regarding the illness and thereafter, may allow the absence as a leave admissible under the Rules after verification of the documents of illness and fitness received from the Medical Board. Even though, the order of termination has been confirmed vide Annexure-10 by opposite party No.3 but in view of the subsequent developments having taken place especially with regard to the order of acquittal i.e. Annexure-11 and in view of the legal opinion of the Public Prosecutor vide Annexure-13 and recommendation on enquiry held and report received as per Annexure-14, recording the submission of Ms. Dash, learned ASC for the State that there is absence of rules or regulations to deal with the matter and for having not received any clarification from opposite party No.2, the Court is of the humble view that re-engagement of the petitioner should have been duly considered instead of denying it. Admittedly, the petitioner was engaged on a contractual basis and he was, thus, entitled to regularization in view of Annexure-5 upon completion of six years from the date of such appointment but in view of the order of termination, he is at great loss beyond repair. The Court reaches at a conclusion that as there has been an order of acquittal with favourable report and recommendation received as per Annexures-13 & 14, opposite party No.3 should have considered such re- engagement of the petitioner without seeking clarification from opposite party No.2 with a letter as per Annexure-17 and Page 5 of 6 therefore, necessary direction is required to be issued in that regard. 8. 9. Accordingly, it is ordered.
Decision
In the result, the writ petition stands disposed of with the direction to opposite party No.3 to immediately direct re- engagement of the petitioner acting upon the legal opinion and recommendation received as per Annexure-14 considering the period of absence as leave admissible under the Rules undertaking the above exercise as soon as possible preferably within a period of six weeks from the date of receipt of a copy of this order complying the above direction keeping in view the observations made hereinabove. 10. Issue urgent certified copy of this order as per law. (R.K. Pattanaik) Judge Kabita Signature Not Verified Digitally Signed Signed by: KABITARANI MAJHI Designation: Secretary Reason: Authentication Location: OHC,CTC Date: 02-Jul-2025 15:15:29 Page 6 of 6