The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC (OAC) No.4010 of 2011 Dusmanta Kumar Nayak …. Petitioner Mr. G.R. Sethi, Adv. -versus- State of Odisha & Others …. Opposite Parties Mr. B. Panigrahi, ASC CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 27.06.2023 Order No 7. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
law. The view expressed by this Court in Paragraphs-7,8 & 9 of the said judgment is reproduced hereunder. <7. Even assuming opposite party no.1 was a probationer, does it empower the petitioners to remove him from service in terms of PMR 311 of the Constitution of India or in the present case Appendix 49 of PMR? This matter has been examined by the apex Court in the cases of Gujarat Steel Tubes Ltd. v. Mazdoor Sabha, (1980) 2 SCC 593, Anoop Jaiswal v. Gov. of India, (1984) 2 SCC 369 and Dipti Prakash Banarjee v. Satendra Nath Bose National Centre for Basic Science, (1999) 3 SCC 60. Page 3 of 5 // 4 // 8. The principles, as emerged from such judgments are as follows:= (i) If a probationer is terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution. (ii) The circumstances preceding or attendant on the order of termination have to be examined in each case. (iii) If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment. (iv) An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does no attract the operation of Article 311 of the Constitution. (v) If there be a full-scale departmental enquiry, charge sheet is issued, enquiry officer is appointed and then termination order is passed, it will attract the operation of Article 311 of the Constitution. of (vi) From not conclusive/decisive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct. termination
Arguments
2. Heard Mr. G.R. Sethi, learned counsel appearing for the Petitioner and Mr. B. Panigrahi, leaned Additional Standing Counsel. 3. The Petitioner has filed the present Writ Petition challenging the order of dismissal so passed on 25.11.2010 under Annexure-4. 3.1. It is contended that the Petitioner was appointed as a constable where he joined on 05.01.2005. But subsequently while so continuing, the Petitioner was straightaway terminated from his service without issuance of any prior notice and without compliance of natural justice taking recourse to the provision contained under PMR 668(a). 4. With regard to the provision contained under PMR 668-(a), learned counsel for the Petitioner contended that since the Petitioner joined as a Constable on 05.01.2005, in // 2 // view of the provisions contained under Appendix-41 read with Rule 668(a) of PMR, the period of probation of a Constable is two years. Therefore, after completion of two years of service, it is to be held that the Petitioner is a regular employee and accordingly any disciplinary action, if the authorities feels to take, they have to comply the provisions of natural justice as well as Article 311 of the Constitution of India. Since in the present case without issuance of any notice and without complying the provisions contained under Article 311, the Petitioner is straightaway removed from his service vide the impugned order dt.25.11.2010 under Annexure-4, the said order is not sustainable in the eye of law. Mr. Sethi, learned counsel further contended that any order passed taking recourse to the provisions contained under PMR 668(a) is also not appealable and accordingly the present Writ Petition was filed. 5. Mr. B. Panigrahi, learned ASC on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opp. party Nos.1 & 2. 5.1. Though in the counter, it is not disputed that the Petitioner was appointed as a Constable where he joined on 05.01.2005, but on the plea that the Petitioner remained on unauthorized leave for different periods, the Petitioner has not completed the required two years of probation as provided under the Appendix-41. It is accordingly contended that since the Petitioner remained on unauthorized absence for different periods, it is to be held that he was under probation by the time the impugned order was passed. Therefore, principle of natural justice was not required to be followed and the Opp. party No.3 Page 2 of 5 // 3 // taking recourse to the provision contained under PMR 668(a) rightly passed the order of dismissal. 5.2. In the counter, a stand has also been taken that the Petitioner absconded from duty for the period 03.02.2006 to 30.05.2006, 09.11.2008 to 19.02.2009 and 04.09.2009 to 10.09.2009 . As further revealed from the counter for the period of absence from 03.02.2006 to 30.05.2006, a proceeding was also initiated against the Petitioner with award of <1= black mark and the period was treated as leave without pay. As further revealed from the counter, the period from 09.11.2008 and 19.02.2009 has also been treated as leave without pay. 6. To the aforesaid submission of Mr. Panigrahi, Mr. Sethi, learned counsel for the Petitioner brought to the notice of this Court the decision rendered in the case of State of Odisha and Others vs. Karunakar Biswal & Another reported in 2022 Suppl. OLR 791, it is contended that since the period of probation of Constable is two(2) years and admittedly the Petitioner by the time he was removed from service, he had already completed more than five years, in view of the reported decision of this Court, the order of removal is not sustainable in the eye of
Decision
order is (vii) It is open to the Court before which termination order is challenged to go behind the form and ascertain the true character of the order. The Court can apply the doctrine of lifting the veil. (Viii) If findings were arrived at in an enquiry as to misconduct, behind the bac of officer or withot a regular enquiry, the simple order of termination is to be treated as <founded= (ix) The factor which impelled the employer to take the action of termination is also important to determine the real nature of the action.= 9. In the light of the law laid down by the apex Court, the tribunal considered the case of opposite party no.1 and passed order by holding that opposite party no.1, who was constable, was not within the probation period, for which the authorities could not have taken recourse to the provisions contained in PMR 668-A to remove him from the post of Sepoy. The said order was instruction of SAP Hdqrs., Odisha, passed upon Cuttack, communicated, vide letter dated 30.05.2013 read with PMR 668- without issuing any show cause to opposite party no.1. Since opposite party No.1 had completed more than four years of service by the time the impugned order was passed, it was not open to the Petitioners to take any action on opposite party no.2, other than through a departmental proceeding and the procedure prescribed in Appendix 49 of PMR. Therefore, Page 4 of 5 // 5 // non-adherence to the procedure as envisaged under law by conducting a departmental proceeding or by adhering to Appendix 49 of PMR, the order of removal cannot be sustained. 7. Having heard learned counsel for the parties and taking into account the fact that by the time the Petitioner was removed from his service, he had already completed the required two(2) years probation period, placing reliance on the decision of this Court as cited (supra), this Court is of the view that prior to passing of the order removal, the petitioner should have been issued with the notice and by following the provisions contained under Article-311 of the Constitution of India, necessary action should have been taken. Since admittedly the same has not been followed in the present case, this Court is inclined to quash the order dt.25.11.2010 so passed under Annexure-4. While quashing the same, this Court directs Opp. party No.2 to reinstate the petitioner in his service within a period of one month from the date of receipt of this order. For the period the Petitioner remained out of employment, the same shall be regularized on notional basis only. With the aforesaid observation and direction, the Writ Petition is disposed of. (Biraja Prasanna Satapathy) Judge sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: High Court of orissa, Cuttack Date: 12-Jul-2023 12:41:28 Page 5 of 5