The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK In the matter of an application under Section 19 of the Administrative Tribunals’ Act, 1985. WPC (OAC) No.4133 OF 2013 AFR Dharanidhar Behera …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner :M/s. U.R. Jena, Advocate For Opp. Parties :M/s. M.K. Balabantaray, Additional Govt. Advocate PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- Date of Hearing: 13.12.2023 and Date of Judgment: 13.12.2023 ----------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned Mr. U.R.Jena, learned counsel
Legal Reasoning
appearing for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Govt. Advocate appearing for the State-Opp. Parties. 3. Petitioner has filed the present Writ Petition inter alia challenging the order dtd.05.11.2013 so passed by the // 2 // Government-Opp. Party No.1 in dismissing the Petitioner from his services with immediate effect vide Annexure-2. 4. Learned counsel for the Petitioner contended that Petitioner while continuing as In-charge B.E.O, Kashipur block, he was placed under suspension with immediate effect vide office order dtd.28.10.2013 so issued under Annexure-1 by Opp. Party No.1. 4.1. It is contended that after placing the Petitioner under suspension and without initiating any proceeding whatsoever in accordance with the provisions contained under OCS (CCA) Rules, 1962 and without following the principle of natural justice, Petitioner was stratightway dismissed from his services vide order under Annexure-2 in exercise of the power conferred under Article 311 (2)(b) of the Constitution of India. 4.2. Learned counsel appearing for the Petitioner contended that Petitioner at the relevant time was continuing as B.E.O, Kashipur block and he has got no direct involvement with the alleged incident in question. It is also contended that petitioner prior to being dismissed from his service was never intimated about such action of the S.I. of schools, Tikiri and he had also no knowledge about the incident. It is also contended that all the fault lies with the S.I. of Schools and the Petitioner Page 2 of 16 // 3 // without having any role was straightway dismissed from his service vide impugned order dtd.05.11.2013 under Annexure-2. 4.3. It is contended that Article 311 of the Constitution of India provides the manner of dismissal, removal or reduction in rank of person employed in Civil capacities under the Union or State. Article 311 (2) provides as follows: <311(2)- No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.= But under the 2nd proviso to Article 311(2), it is provided that the stipulation contained under Article 311 (2) shall not apply in the following cases: the authority empowered (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where to dismiss or remove a person or to reduce him in rank ins satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry 4.4. It is contended that taking recourse to the provision contained under Article 311(2) (b), petitioner was removed from his service in terms of the impugned Order passed on 05.11.2013 under Annexure-2. But it is contended that no such reason has been recorded in writing satisfying the Page 3 of 16 // 4 // authority to take recourse to the provision. It is accordingly contended that since no such reason has been recorded in writing, giving rise to the satisfaction of the authority to pass the order of dismissal taking recourse to the exception
Decision
carved out under Article 311 (2) (b), the impugned order is not sustainable in the eye of law and requires interference of this Court. 4.5. In support of his aforesaid submission, learned counsel appearing for the Petitioner relied on a Constitution Bench decision of the Hon’ble Apex Court in the case of Union of India and Another Vs. Tulsiram Patel, (1985) 3 Supreme Court Cases 398. Hon’ble Apex Court in Paragraphs-55, 62, 130, 132, 133, 135,137 & 138 of the said judgment has held as follows: 55. None of these three Articles (namely, Articles 309,310 and 311) sets out the grounds for dismissal, removal or reduction in rank of a government servant or for imposition of any other penalty upon him or states what those other penalties are. These are matters which are left to be dealt with by Acts and rules made under Article 309. There are two classes of penalties in service jurisprudence, namely, minor penalties and major penalties. Amongst minor penalties are censure, with holding of promotion and with holding of increments of pay. Amongst major penalties are dismissal or removal from service, compulsory retirement and reduction in rank. Minor penalties do not affect the tenure of a government servant but the penalty of dismissal or removal does because these two penalties bring to an end the service of a government servant. It is also now well established that compulsory retirement by way of penalty amounts to removal from service. So this penalty also affects the tenure of a government servant. Reduction in rank does not terminate the employment of a government servant, and it would, therefore, be difficult to say that it affects the tenure of a government servant. It may however, be argued that it does bring to an end the holding of office in a particular rank and from that point of view it affects the government servant’s tenure in the rank from which he is reduced. It is unnecessary to decide this point because Article 311(2) expressly gives protection as against the penalty of reduction in rank also. Xxx xxx xxx xxx Page 4 of 16 // 5 // 62. Before, however, any clause of the second proviso can come into play the condition laid down in it must be satisfied. The condition for the application of each of these clauses is different. In the case of clause (a) a government servant must be guilty of conduct deserving the penalty of dismissal, removal or reduction in rank which conduct has led to him being convicted on a criminal charge. In the case of clause (b) the disciplinary authority must be satisfied that it is not reasonably practicable to hold an inquiry. In the case of clause (c) the President or the Governor of a State, as the case may be, must be satisfied that in the interest of the security of the State, it is not expedient to hold an inquiry. When these conditions can be said to be fulfilled will be discussed later while dealing separately with each of the three clauses. The paramount thing, however, to bear in mind is that the second proviso will apply only where the conduct of a government servant is such as he deserves the punishment of dismissal, removal or reduction in rank. If the conduct is such as to deserve a punishment different from those mentioned above, the second proviso cannot come into play at all, because Article 311 (2) is itself confined only to these three penalties. Therefore, before denying a government servant his constitutional right to an inquiry, the first consideration would be whether the conduct of the concerned government servant is such as justifies the penalty of dismissal, removal or reduction in rank. Once that conclusion is reached and the condition specified in the relevant clause of the second proviso is satisfied, that proviso becomes applicable and the government servant is not entitled to an inquiry. The extent to which a government servant can be denied his right to an inquiry formed the subject-matter of considerable debate at the Bar and we, therefore, now turn to the question whether under the second proviso to Article 311(2) even though the inquiry is dispensed with, some opportunity at least should not be afforded to the government servant to that he is not left wholly without protection. As most of the arguments on this Part of the case were common to all the three clauses of the second proviso, it will be convenient at this stage to deal at one place with all the arguments on this part of the case, leaving aside to be separately dealt with the other arguments pertaining only to a particular clause of the second proviso. Xxx xxx xxx xxx 130. The condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that "it is not reasonably practicable to hold" the inquiry contemplated by clause (2) of Article 311. What is pertinent to note is that the words used are "not reasonably practicable" and not "impracticable". According to the Oxford English Dictionary "practicable" means "Capable of being put into practice, carried out in action, effected, accomplished, or done; feasible". Webster’s Third New International Dictionary defines the word "practicable" inter alia as meaning "possible to practice or perform : capable of being put into practice, done or accomplished : feasible". Further, the words used are not "not practicable" but "not reasonably practicable". Webster’s Third New International Dictionary defines the word "reasonably" as "in a reasonable manner : to a fairly sufficient extent". Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidate witnesses who are going to given evidence against him with fear of reprisal as to prevent them from doing so or where the government servant by himself or together with or through other threatens, intimidates and terrorizes the officer who is the disciplinary authority or member of his family so that he is afraid to hold the inquiry or direct it to be held. It Page 5 of 16 // 6 // would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause(3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department’s case against the government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty. The case of Arjun Chaubey v. Union of India and others, [1984] 3 S.C.R. 302, is an instance in point. In that case, the appellant was working as a senior clerk in the office of the Chief Commercial Superintendent, Northern Railway, Varanasi. The Senior Commercial Officer wrote a letter to the appellant calling upon him to submit his explanation with regard to twelve charges of gross indiscipline mostly the Deputy Chief Commercial Superintendent. The appellant submitted his explanation and on the very next day the Deputy Chief Commercial Superintendent served a second notice on the appellant saying that his explanation was not convincing and that another chance was being given to him to offer his explanation with respect to those charges. The appellant submitted his further explanation but on the very next day the Deputy Chief Commercial Superintendent passed an order dismissing him on the ground that he was not fit to be retained in service. This Court struck down the order holding that seven out of twelve charges related to the conduct of the Deputy Chief Commercial Superintendent who was the disciplinary authority and that if an inquiry were to be held, the principal witness for the Department would have been the Deputy Chief Commercial Superintendent himself, resulting in the same person being the main accuser, the chief witness and also the judge of the matter. the appellant with relating to Xxx xxx xxx xxx 132. It is not necessary that a situation which makes the holding of an inquiry not reasonably practicable should exist before the disciplinary inquiry is initiated against a government servant. Such a situation can also come into existence subsequently during he course of an inquiry, for instance, after the service of a charge-sheet upon the government servant or after he has filed his written statement thereto or even after evidence has been led in part. In such a case also the disciplinary authority would be entitled to apply clause (b) of the second proviso because the word "inquiry" in that clause includes part of an inquiry. It would also not be reasonably practicable to afford to the government servant an opportunity of hearing or further hearing, as the case may be, when at the commencement of the inquiry or pending it the government servant absconds and cannot be served or will not participate in the inquiry. In such cases, the matter must proceed ex parte and on the materials before the disciplinary authority. Therefore, even where a part of an inquiry has been held and the rest is dispensed with under clause (b) or a provision in the service rules analogous thereto, the exclusionary words of the second proviso operate in their full vigour and the government servant cannot complain that he has been dismissed, removed or reduced in rank in violation of the safeguards provided by Article 311(2). 133. The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article Page 6 of 16 // 7 // 311(2). This is a Constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional. 134. It is obvious that the recording in writing of the reason for dispensing with the inquiry must proceed the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particular, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no compliance with the requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances. 135. It was vehemently contended that if reasons are not recorded in the final order, they must be communicated to the concerned government servant to enable him to challenge the validity of that reasons in a departmental appeal or before a court of law and the failure to communicate the reasons would invalidate the order. This contention too cannot be accepted. The constitutional requirement in clause (b) is that the reason for dispensing with the inquiry should be recorded in writing. There is no obligation to communicate the reason to the government servant. As clause (3) of Article 311 makes the decision of the disciplinary authority on this point final, the question cannot be agitated in a departmental appeal, revision or review. The obligation to record the reason in writing is provided in clause (b) so that the superiors of the disciplinary authority may be able to judge whether such authority had exercised its power under clause (b) properly or not with a view to judge the performance and capacity of that officer for the purposes of promotion etc. It would, however, be better for the disciplinary authority to communicate to the government servant its reason for dispensing with the inquiry because such communication would eliminate the possibility of an allegation being made that the reasons have been subsequently fabricated. It would also enable the government servant to approach the High Court under Article 226 or, in a fit case, this Court under Article 32. If the reasons are not communicated to the government servant and the matter comes to the court, the court can direct the reasons to be produced, and furnished to the government servant and if still not produced, a presumption should be drawn that the reasons were not recorded in writing and the impugned order would then stand invalidated. Such presumption can, however, be rebutted by a satisfactory explanation for the non- production of the written reasons. Xxx xxx xxx xxx 137. A government servant who has been dismissed, removed or reduced in rank by applying to his case clause (b) or an analogous provisions of a service rule is not wholly without a remedy. As pointed out earlier while dealing with the various service rules, he can claim in a departmental appeal or revision that an inquiry be held with respect to the charges on which the penalty of dismissal, removal or reduction in rank has been imposed upon him unless the same or a similar situation prevails at the time of hearing of the appeal or revision application. If the same situation is continuing or a similar situation arises, it would not then be reasonably practicable to hold an inquiry at the time of the hearing of the appeal or revision. Though in such a case as the Page 7 of 16 // 8 // government servant if dismissed or removed from service, is not continuing in service and if reduced in rank, is continuing in service with such reduced rank, no prejudice could be caused to the Government or the Department if the hearing of an appeal or revision application, as the case may be, is postponed for a reasonable time. 138. Where a government servant is dismissed, removed or reduced in rank by applying clause (b) or an analogous provision of the service rules and the approaches either the High Court under Article 226 or this Court under Article 32, the court will interfere on grounds well established in law for the exercise of power of judicial review in matters where administrative discretion is exercised. It will consider whether clause (b) or an analogous provision in the service rules was properly applied or not. The finality given by clause (3) of Article 311 to the disciplinary authority’s decision that it was not reasonably practicable to hold the inquiry is not binding upon the court. The court will also examine the charge of mala fides, if any, made in the writ petition. In examining the relevancy of the reasons, the court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry. If the court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by clause (b) and would take the case out of the purview of that clause and the impugned order of penalty would stand invalidated. In considering the relevancy of the reasons given by the disciplinary authority the court will not, however, sit in judgment over them like a court of first appeal. In order to decide whether the reasons are germane to clause (b), the court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable way would have done. The matter will have to be judged in the light of the then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a court room, removed in time from the situation in question. Where two views are possible, the court will decline to interfere. 4.6. Learned counsel for the Petitioner also relied on another decision of the Hon’ble Apex Court reported in 2023 SCC OnLine SC 617, Dr.V.R. Sanal Kumar Vs. Union of India and Others. Placing reliance on the decision in the case of Tulsiram Patel, Hon’ble Apex Court in Paragraph-25 of the said judgment has held as follows: 25. The aforesaid conclusion would take us to the next question as to whether the non-interference with the order of dismissal warrants any interference. In this context, it is required to be noted that the retrospectivity given to the order of dismissal from 01.09.2003 was interfered with, by the Tribunal. It has become final and it was given effect to by the respondent organization by modifying the date of its effect from the date of the order of dismissal. While considering the above question, it is relevant to refer again to the decision of the Constitution Bench in Tulsiram Patel’s case (supra). Though it was held that such an order would be open to challenge on the ground of mala fides or being based wholly on extraneous grounds, it is Page 8 of 16 // 9 // is likely impact which his misconduct relevant to note that in the case on hand, the order of dismissal is not put to challenge on any of such grounds. Going by the decision in Tulsiram Patel’s case (supra), when once such a power is invoked to dispense with inquiry the consideration as to what penalty should be imposed upon a delinquent employee must be ex-parte. In other words, on that question no opportunity of being heard is to be given. Even- after holding so, in paragraph 114 of Tulsiram Patel’s case (supra), it was held that in order to arrive at a decision as to which penalty should be imposed, the disciplinary authority has to take into consideration the various factors set out in T.R. Chellappan’s case (supra). Then, the question is what are such factors to be taken into account in that regard in terms of T.R. Chellappan’s case (supra). A scanning of the decision in T.R. Chellappan’s case (supra), would go to show that it was held therein that the disciplinary authority while deciding the question as to what penalty should be imposed on the delinquent employee in the facts and circumstances of a particular case would have to take into account the entire conduct of the delinquent employee, a gravity of the misconduct committed by him, the the administration and other extenuating circumstances or redeeming features if any present in the case and so on and so forth. Such aspects were looked into by the Tribunal. We have also referred hereinbefore the acts and omissions on the part of the appellant having regard to his role as a scientist/engineer in ISRO and the role of ISRO as the space agency of India. It is not the mere unauthorized absence of the appellant that actually weighed with the authority and evidently, the organization is perfectly justified in casting suspicion and on trustworthiness in view of the factual situation obtained in this case, as explained in the counter affidavit, besides entertaining the stand that his unauthorized association with foreign institution, especially in the area of propulsion, which is a strategic research and development subject in the organization and based on which the nation’s rocketry and ambitious launch vehicle programs are/were advancing, was a matter of concern for the security of the State. When such acts/conduct occur/occurs from a scientist in a sensitive and strategic organization, the decision to impose dismissal from service cannot be said to be illegal or absolutely unwarranted. In other words, we do not find any reason to hold that the judgment of the High Court, dismissing the challenge against the order of the Tribunal warrants any kind of interference in exercise of the power under Article 136 of the Constitution of India. The appeal, therefore, must fail and accordingly it is dismissed, however, without any cost.” reliability, dependability the honesty, to have on integrity, 4.7. It is also contended that since the Petitioner in the present case was dismissed from his service taking recourse to the provisions contained under Article-311(2)(b) of the Constitution of India, judicial review of such an order is permissible in exercise of the power conferred under Article 226 of the Constitution of India. Learned counsel for the Petitioner also relied on another decision of the Hon’ble Apex Court in the case of A.K. Kaul and Another V. Union of India and Another, reported in (1995) Page 9 of 16 // 10 // 4 Supreme Court Cases 73. The Apex Court in Paragraph 12 of the said judgment has held as follows:- 12. It is, therefore, necessary to deal with this question in the instant case., We may, in this context, point out that a distinction has to be made between judicial review and justiciability of a particular action. In a written constitution the powers of the various organs of the State,are limited by the provisions of the Constitution. The extent of those limitations on the powers has to be determined on an interpretation of the relevant provisions of the Constitution. Since the task of interpreting the provisions of the Constitution is entrusted to the Judiciary, it is vested with the power to test the validity of an action of every authority functioning under the Constitution on the touch stone of the constitution in order to ensure that the authority exercising the power conferred by the constitution does not transgress the limitations placed by the Constitutions on exercise of that power. This power of judicial review is, therefore, implicit in a written constitution and unless expressly excluded by a provision of the Constitution, the power of judicial review is available in respect of exercise of powers under any of the Constitution. Justiciability relates to a particular field falling within the purview of the power of judicial review. On account of want of judicially manageable standards, there may be matters which are not susceptible to the judicial process. In other words, during the course of exercise of the power of judicial review it may be found that there are certain aspects of the exercise of that power which are not susceptible to judicial process on account of want of judicially manageable standards and are, therefore, not justiciable. the provisions of Making all such submissions, learned counsel appearing for the Petitioner contended that since while taking extreme steps of dismissing the Petitioner from his services taking recourse to the provisions contained under Article 311(2)(b) of the Constitution of India, no such reason has been recorded in writing prior to taking such a decision and to the subjective satisfaction of the authority, the impugned order is not sustainable in the eye of law and requires interference of this Court. 4.8. It is also contended that taking into account the nature of allegation made against the Petitioner in the impugned order, Article 311 (2)(b) cannot be taken recourse to by the Government while dismissing the Page 10 of 16 // 11 // Petitioner from his service. It is also contended that during pendency of the Writ Petition, Petitioner attained the age of superannuation which fell due on 31.03.2015. It is accordingly contended that since the impugned order has been passed in absence of any cogent material available against the petitioner and thereby allowing the authority to take recourse to the provision contained under Article 311(2) (b), the impugned order is not sustainable in the eye of law. Petitioner is not only eligible and entitled to get all consequential service and financial benefits for the period he kept out of employment i.e. from the date of dismissal till he attained the age of superannuation but also Petitioner is entitled to get all retiral benefits as due and admissible. 5. Mr. M.K.Balabantaray, learned Addl. Govt. Advocate made his submission basing on the stand taken in the counter so filed by the District Education Officer, Rayagada-Opp. Party No.6. Basing on the stand taken in the counter affidavit, it is contended that petitioner at the relevant point of time was working as B.E.O, Kashipur block. Even though Petitioner was asked to conduct an enquiry against Sri Netrananda Dandasena, who was working as S.I. of Schools, Tikiri and to transfer the victim- Itishree Pradhan to some other place, but because of the Page 11 of 16 // 12 // inaction on the part of the Petitioner in taking action against Sri Dandasena and in not transferring Itishree Pradhan, the Petitioner was held responsible, for the alleged incident which resulted in the death of Itrishree Pradhan. It is accordingly contended that since petitioner in spite of being asked to cause an enquiry against the S.I. of Schools, Tikiri and to transfer the victim-Itishree Pradhan, no action was taken by the Petitioner and because of such inaction, the victim died, Petitioner was dismissed from his service taking recourse to the provisions contained under Article 311(2) (b). 5.1. Learned Addl. Govt. Advocate placed reliance on the stand taken in paragraph-3 & 7 of the Counter. Paragraph- 3 & 7 of the counter are reproduced hereunder. 3. That, it is humbly submitted that the petitioner asked to conduct an enquiry against Sri Dandasena and transfer to Itishree Pradhan some place, but the Petitioner neither enquired to the matter nor transfer to Itrishree Pradhan. The aforesaid act amounts to gross misconduct and the Petitioner was dismissed from service under Article 311 (2) (b) of the Constitution of India and Section 18 of the CCA Rules, which gives power to the appropriate authorities to take action against any erring officials without giving any opportunity. xxx 7. The, in reply to the averments made in Para-6.4 of the writ petition, it is respectfully submitted that no prompt action was taken by the Petitioner against said accused person namely N.N. Dandasena, which needed immediate prompt action as one Sikshaya Sahayak namely Itishree Pradhan had burnt in the school compound on 27.10.2023 and passed away on 01.11.2023. Before that incident took place Miss Itishree Pradhan had given several allegations to the Petitioner, but it went deaf hear. xxx xxx xxx Further it is humbly submitted that it is not a fact that the Petitioner has not received the enquiry report under Annexure-3 given by the District Level Committee appointed by the Collector, Rayagada. The stand of receiving such domain without any detour that he has not received the enquiry report of the District Level Committee. So it is false and very led in the date of say that he has not received that enquiry report. If the Petitioner would have acted after immediate receiving the copy of letter dtd.17.10.2023 and he had taken necessary action as per law, such a heinous incident would have not taken place inside the school premises on 27.10.2023 and death of Miss. Itishree Pradhan could have been avoided.” Page 12 of 16 // 13 // 6. To the stand taken in the counter, learned counsel appearing for the Petitioner made his submission basing on the stand taken in the rejoinder affidavit. It is contended that though a stand has been taken in the counter that Petitioner was asked to conduct an enquiry, but at no point of time, prior to the death of the victim, Petitioner was ever asked to cause an enquiry against the S.I of Schools, Tikiri and to transfer the victim- Itishree Pradhan. It is also contended that Petitioner taking into account his position as B.E.O at the relevant point of time had no authority to cause transfer of the victim- Itishree Pradhan. It is also contended that even though a stand has been taken in para-3 of the counter that Petitioner was asked to conduct an enquiry, but no such document has been enclosed to the counter, showing such a direction was ever issued to the Petitioner. 6.1. Learned counsel further contended that at no point of time, the Petitioner was ever asked to conduct any enquiry against the S.I. of Schools,Tikiri and to transfer the victim. It is accordingly contended that since the stand taken in para-3 of the counter affidavit is without any reason or basis, the ground on which the Petitioner was dismissed from his service taking recourse to Article 311 (2) Page 13 of 16 // 14 // (b) of the Constitution of India is not sustainable in the eye of law. 7. Having heard learned counsel appearing for the parties and after going through the materials available on record, this Court finds that Petitioner while continuing as B.E.O in Kashipur Block, he was placed under suspension vide office order dtd.28.10.2013. Thereafter vide the impugned order dtd.5.11.2013, Petitioner was dismissed from his service taking recourse to the power vested on Opp. Party No.1 under Article-311 (2) (b) of the Constitution of India. This Court after going through the materials placed by the learned counsel appearing for the State does not find any overt-act being done by the Petitioner with regard to the alleged death of the victim nor there is any allegation of sexual harassment made against the Petitioner. 7.1. It is also found from the record that even though a stand has been taken in para-3 of the counter that on the face of the direction issued to the Petitioner to conduct an enquiry against the S.I. of Schools, Tikiri and to transfer the victim to some other school, no action was taken by the Petitioner, but no such document has been enclosed to the counter affidavit. In absence of any such document showing any such direction being issued to the Petitioner, Page 14 of 16 // 15 // this Court is unable to accept the stand taken in para-3 & 7 of the counter. 7.2. In view of such position, taking into account the fact that the Petitioner had no direct role with the alleged incident, this Court is of the view that Petitioner could not have been dismissed from his services in exercise of the power conferred under Article 311 (2) (b) of the Constitution of India. 7.3. Therefore, placing reliance on the decisions of the Hon’ble Apex Court in the case of Tulsiram Patel so followed in the case of Dr. V.R. Sanal Kumar and power of judicial review available to the Court, in terms of the decision in the case of A.K. Kaul as cited supra, this Court is inclined to quash the order of dismissal so passed by Opp. Party No.1 on 05.11.2013 under Annexure-2. While quashing the same, this Court held the Petitioner entitled to continue in his service till he attained the age of superannuation on 31.03,2015. While holding so, this Court directs Opp. Party No.1 & 2 to take effective steps for sanction of pension and other pensionary benefits including the arrear salary for the period from the date of dismissal till the Petitioner attained his age of superannuation. Such an exercise shall be undertaken and completed within a period of three (3) months from the date of receipt of this order. Page 15 of 16 // 16 // The Writ Petition is accordingly disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 13th Dec. 2023/sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authenticatin of order Location: high court of orissa, cuttack Date: 22-Dec-2023 17:57:31 Page 16 of 16