The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.37766 of 2023 Sunil Kumar Lenka …. Petitioner Mr. S.B.Jena,Advocate -versus- Chairman Cum Manager Director, BBSR & others …. Opposite Parties CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 03.01.2024 Order No. 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as Mr. Jena learned counsel for the petitioner and Mr. A.Tripathy, learned counsel appearing for the Orissa State Road Transport Corporation. Perused the Writ Petition as well as the documents annexed thereto. 3. The Petitioner has filed the present writ application with the following prayer: “Under the aforesaid facts and circumstances of the case, it is therefore, prayed that this Hon’ble Court may graciously be pleased to issue a writ of mandamus by quashing the order no.2176 dated.3.10.2023 under Annexure-5 And further be pleased to quash the letter no.1830 dated16.10.2023 under Annexure-6 as the same has been issued in violation of law. And further be pleased to direct the opp.parties to forthwith with other reinstate consequential benefits Or pass such other order/orders as this Hon’ble Court the petitioner // 2 // may deem fit and proper in the facts and circumstances of the case.” 4. The factual matrix of the present writ application in short is that on 06.05.2010 the petitioner was engaged by the Opposite Party corporation on contractual basis as a Bus Conductor. It has also been stated that the petitioner has been continuing on contractual basis since the date of his initial appointment. In the year 2023 an agreement was executed between the corporation and the present petitioner with regard to his engagement on contractual basis. A copy of the agreement has been annexed to the writ application as Annexure-2 on perusal of the agreement it appears that the same was executed on 27th February,2023 and same is valid up to 29th February,2024. During the subsistence of aforesaid contractual relationship certain allegations are made against the petitioner on the basis of F.I.R. lodged by the area officer of Vedanta Ltd. In the aforesaid F.I.R., which was lodged on 28.09.2023, an allegation has been made that some copper materials were being transported in the bus bearing No. OD-05-BC-4172. The F.I.R. lodged by the above named complainant reflects the name of the present petitioner along with the bus driver. On the basis of the aforesaid allegation service of the petitioner has been terminated by the corporation vide office order dated 03.10.2023 under Annexure-5. Being aggrieved by such conduct of the corporation the petitioner has approached this Court by filling the present writ application. 5. Learned counsel for the petitioner at the outset submitted that the relationship between the petitioner and the employer corporation is contractual and the same is governed by the agreement executed between the two, which has been filed under Annexure-2 writ application. Referring to clause 22 of the agreement learned counsel for the petitioner submitted that the same is a contract termination // 3 // clause, and as per such termination clause, either of the parties to the agreement are authorized to terminate the agreement on giving one months advance notice to the other party. In the aforesaid context learned counsel for the petitioner submitted that no prior notice whatsoever was given to the petitioner before passing office order dated 03.10.2023 under Annexure-5. Accordingly, learned counsel for the petitioner submitted that the impugned termination notice under Annexure-5 is illegal and the same is not in conformity with conditions contained in the contract. 6. Learned counsel appearing for the opposite party corporation on the other hand contended that serious allegations were made against the petitioner who was found to be involved in a criminal case. On such allegation the service of the petitioner has been terminated by the Unit In-Charge OSRTC Cuttack vide order dated 03.10.2023. Mr. Tripathy, learned counsel appearing for the corporation further contended that since the allegations are very serious in nature the corporation has taken immediate steps to disengage the petitioner from service. Further referring to the agreement he also contended that such agreement provides that in the event it is found that the petitioners are not performing their duty diligently and sincerely, the corporation has the power to terminate the service of the petitioners. He further contended that after petitioner was disengaged, notice has also been issued to the petitioner to participate in inquiry initiated to examine the role of the petitioner in the alleged crime. Therefore, learned counsel for the corporation submitted that the present writ application is premature and same is not maintainable and accordingly the same should be dismissed. 7. Having heard learned counsels appearing for respective parties, on a careful examination of their respective submissions and on a // 4 // scrutiny of materials on record, this Court observes that the relationship between the petitioner and his employer corporation is a contractual one and the same is governed by the agreement under Annexure-2 to the writ application. Moreover, such agreement is not disputed by the counsels appearing for the assignment. On perusal of the said agreement this Court found that in clause 22 of the agreement, which provides for the termination of service, it is revealed that either of the parties are at liberty to terminate the agreement on giving one month’s advance notice to the other party. Therefore, it is not disputed that the contractual relationship could be brought to an end by giving one month’s advance notice on other party. In the present case it is observed that no advance notice has been given as provided under clause 22 of the agreement. Such fact has been fairly admitted by learned counsel appearing for the corporation. In such view of the matter, this Court is of the considered view that, the impugned disengagement office order under Annexure-5 dated 03.10.2023 is unsustainable in law. Accordingly, office order dated 03.10.2023 under Annexure 5 is hereby quashed. Further it is made clear that it is upon to the opposite parties corporation to act in terms of the agreement if they so like. 8. With the aforesaid observation, the writ application stands disposed of. 9. Issue urgent certified copy of this order as per Rules. ( A.K. Mohapatra ) Judge Rubi Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: High Court of Orissa Date: 05-Jan-2024 17:50:37