The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.34038 of 2022 Rakesh Kumar Budhia …. Petitioner Mr. R.C. Swain, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. B.P. Tripathy, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 20.03.2024 Order No 01. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. R.C. Swain, learned counsel for the Petitioner and Mr. B.P. Tripathy, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. Petitioner has filed the present writ petition inter alia challenging Office order dtd.15.11.2022 so issued by Opp. Party No. 3 under Annexure-13. Vide the said order Petitioner was formally disengaged from the post of Junior Teacher (Contractual) w.e.f.18.5.2021.
Legal Reasoning
4. Learned counsel for the Petitioner contended that on being duly selected, Petitioner was provisionally engaged as a Sikshya Sahayak (Junior Teacher) Contractual (Category-II)-Science vide order of engagement issued on 31.03.2018 under Annexure-1. // 2 // Pursuant to the said order, Petitioner joined on 04.04.2018 vide Annexure-2. 4.1. It is contended that while so continuing and because of advent of Covid-19, Petitioner vide Office order dtd.08.05.2021 under Annexure-3 of Opp. Party No. 4 was directed to supervise the activities in the Covid Care Centre for the period from 22.05.2021 to 28.05.2021. 4.2. It is contended that since by the time Petitioner was communicated with order dtd.08.05.2021, he was suffering; he made an application to the B.E.O., Titlagarh-Opp. Party No. 6 on 20.05.2021 under Annexure-4 series expressing his inability to join in the Covid Care Centre in terms of the order issued under Annexure-3. The matter was also reported to the Sub-Collector, Titlagarh by the Petitioner by taking similar plea on 20.05.2021 also under Annexure-4 series. However, on the face of such representation made by the Petitioner under Annexure-4 series when he was asked to submit his explanation for not attending the Covid duty by Opp. Party No. 6 vide letter dtd.22.05.2021 under Annexure-5, Petitioner submitted his reply under Annexure-6 inter alia taking the ground that because of his illness, he could not join to look Covid duty in terms of the order issued under Annexure-3. 4.3. It is contended that without proper appreciation of the stand taken by the Petitioner in his letter under Annexuree-4 series and the reply submitted under Annexure-6, Petitioner was again issued with another show-cause by Opp. Party No. 6 on 28.05.2021 asking him to give his reply for his remaining on unauthorized absent w.e.f.17.05.2021. While issuing such a show-cause to the Page 2 of 8 // 3 // Petitioner, the concerned Headmaster of the School was also instructed not to allow the Petitioner to join in the School. 4.4. It is contended that Petitioner on coming across the show-cause issued under Annexure-7 also submitted his reply on 29.05.2021 before Opp. Party No. 6 under Annexure-8. Without taking a final decision on the show-cause issued under Annexure-7, Petitioner was again issued with another show-cause by the self same Opp. Party No. 6 on 30.04.2022 asking therein to explain as to why Petitioner’s agreement has not been renewed for the year 2022-23. Petitioner though submitted a reply to the same on 06.05.2022, but another show-cause was issued by Opp. Party No. 5 basing on the order passed by Opp. Party No. 3 as to why the Petitioner because of his unauthorized absence and non-renewal of the agreement will not be terminated from his services. Petitioner though gave a detailed reply to the show-cause issued under Annexure-11 vide Annexure-12, but without proper appreciation of the same, he was disengaged from his services w.e.f.18.05.2021 vide order passed on 15.11.2022 under Annexure-13 by Opp. Party No. 3. 4.5. Learned counsel for the Petitioner contended that because of his illness, which is not disputed, Petitioner could not attend Covid duty so assigned to him vide Office order dtd.08.05.2021 under Annexure-3. Thereafter, Petitioner though was ready to discharge his duty, but while issuing the show-cause on 28.05.2021 under Annexure-7, since the Headmaster of the School was directed not to allow the Petitioner to join, Petitioner could not join in his duty on the face of his willingness. Thereafter, when show-cause was issued under Annexure-9 on 30.04.2022 asking the Petitioner to explain as to why the agreement has not been renewed for the year 2022-23, Page 3 of 8 // 4 // Petitioner while submitting reply under Annexure-10, clearly indicated that since he is not being allowed to join in terms of the direction issued by Opp. Party No. 6 under Annexure-7 and no notice having been issued to him to go for renewal of the agreement, Petitioner has no fault with the same. Thereafter, Petitioner was issued with another show-cause proposing his disengagement on the ground that he is not joining w.e.f.18.05.2021 and has not renewed the agreement vide Annexure-11. The said show-cause though was issued by Opp. Party No. 5 and Petitioner also submitted his reply before the said authority, but the impugned order was passed by Opp. Party No. 3 under Annexure-13. 4.6. It is contended that since the very show-cause was issued proposing disengagement by Opp. Party No. 5 and the reply was submitted before the said authority under Annexure-12, no order of disengagement could have been passed by Opp. Party No. 3, who had never issued the show-cause in question. It is also contended that Petitioner because of his illness could not join to discharge his Covid duty in terms of the order issued under Annexure-3 and subsequently because of the letter issued by the B.E.O. issued on 28.05.2021 under Annexure-7, Petitioner was not allowed to join w.e.f. the said date. But because of his illness, he could not join either in the Covid Care Centre or in the school in question and remained on leave. It is also contended that on different occasion different show-causes were issued vide Annexure-7, 9 & 11. Since Petitioner after 28.05.2021 could not join due to the direction issued by Opp. Party No. 6 under Annexure-7, no fault lies with him for not discharging his duty from 28.05.2021. It is also contended that Petitioner at no point of time has been asked to go for renewal of Page 4 of 8 // 5 // the agreement and in absence of the same, there was no occasion on the part of the Petitioner to go for the same. It is accordingly contended that the ground on which the Petitioner has been disengaged from his service vide the impugned order under Annexure-13 is not sustainable in the eye of law and it requires interference of this Court. 5. Mr. B.P. Tripathy, learned Addl. Govt. Advocate when justified the order of disengagement issued under Annexure-13 inter alia submitting that since Petitioner did not join in his work after 18.05.2021 and did not attend the Covid duty in terms of the order issued under Annexure-3 and also did not renew the agreement for his further continuance, no illegality or irregularity can be found with regard to the impugned order passed under Annexure-13. 5.1. Considering the stand taken by the learned Addl. Govt. Advocate, this Court passed the following order on 31.01.2024:- “2. Heard learned counsel appearing for the Parties. 3. Considering the nature of dispute involved, this Court directs learned Addl. Government Advocate to produce any letter issued to the Petitioner prior to 30.04.2022 asking him to renew the agreement in question. 4. As requested by Mr. B.P. Tripathy, learned AGA, list this matter on 19th February, 2024.” 5.2. Pursuant to the said order, instruction provided by the B.E.O., Tititlagarh - Opp. Party No. 6 vide letter dtd.02.03.2024 was produced before this Court. The same be kept in record. Basing on the instruction learned Addl. Govt. Advocate contended that since the Petitioner in spite of several letters issued to him neither join nor go for renewal of the agreement, because of such admitted Page 5 of 8 // 6 // latches on the part of the Petitioner, he was disengaged from his service, which requires no interference. 6. Having heard learned counsel appearing for the Parties and considering the materials available on record, this Court finds that the Petitioner was duly engaged as a Sikshya Sahayak vide order dtd.31.03.2018 under Annexure-1. While so continuing, Petitioner was directed to do Covid duty for the period from 22.05.2021 to 28.05.2021 vide order dtd.08.05.2021 issued by Opp. Party No. 4 under Annexure-3. 6.1. Petitioner prior to his joining in the Covid duty made an application before Opp. Party No. 4 as well as Opp. Party No. 6 on 20.05.2021 expressing his inability to attend Covid duty because of his illness. In support of his submission, learned counsel for the Petitioner also provided the medical certificate vide Annexure-4 series. However, Petitioner was issued with the show-cause on 22.05.2021 vide Annexure-5, asking for explanation for not attending the Covid duty in terms of the order issued under Annexure-3. 6.2. Even though Petitioner gave his reply to the same vide Annexure-6, but without taking a final decision on the issue involved, a fresh show-cause was issued asking the Petitioner to explain as to why appropriate action will not be taken for his remaining on unauthorized absence from the School from 17.05.2021. But it is found that while issuing such a show-cause under Annexure-7, Headmaster of the School was directed not to allow the Petitioner to join. Petitioner though submitted a reply under Annexure-8 to the show-cause issued under Annexure-7, but Page 6 of 8 // 7 // once again without taking a final decision on the issue, a fresh show-cause was issued on 30.04.2022 under Annexure-9 asking the Petitioner to explain as to why his agreement has not been renewed for the year 2022-23. Petitioner though submitted a reply under Annexure-10, but once again without taking a final decision on the issue involved, the 4th show-cause was issued proposing therein to disengage the Petitioner from his services for his remaining on unauthorized absence w.e.f.18.05.2021 and not renewing the agreement for his further continuance. The said show-cause though was issued by Opp. Party No. 5 and Petitioner submitted his reply before the said authority under Annexure-12, but the impugned order was passed by Opp. Party No. 3 by disengaging the Petitioner w.e.f.18.05.2023. 6.3. This Court after going through the materials placed is of the view that Petitioner could not join in his Covid duty because of his illness, which is not disputed. It is also found that Petitioner though was issued with different show-causes and Petitioner submitted his reply to the same, but no final decision was taken with regard to the issue involved in the show-cause issued under Annexure-5, 7 & 9. 6.4. It is also found that show-cause proposing disengagement though was issued by Opp. Party No. 5, but the final decision has been taken by Opp. Party No. 3. Since it is found from the record that Petitioner because of the direction issued by the B.E.O. under Annexure-7 was not allowed to join w.e.f.28.05.2021, no fault can be found on the part of the Petitioner for his not discharging duty w.e.f.28. 05.2021. With regard to the unauthorized absence of the Petitioner from 18.05.2021, Petitioner explained the same while Page 7 of 8 // 8 // submitting his application under Annexure-4 along with medical certificate, which is not disputed. 6.5. In view of such material irregularity, which is apparent on the face of the record, this Court is of the view that the impugned order passed by Opp. Party No. 3 under Annexure-13 is not sustainable in the eye of law. Therefore, this Court is inclined to quash the same. While quashing the same, this Court directs opp. Party No. 3 to reinstate the Petitioner in his service with due renewal of the agreement within a period of four (4) weeks from the date of receipt of this order. Petitioner is permitted to provide a copy of this order before Opp. Party No. 3 for compliance. The break period in service be regularised on notional basis and Petitioner will get all service benefits as due and admissible for the period he remained out of employment due to the passing of the impugned order in question.
Decision
7. With the aforesaid observation and direction, the writ petition is disposed of. (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: 22-Mar-2024 15:40:05 Page 8 of 8