Afr Rajib Lochan Biswal vs State Of Odisha & Others
2022 Latest Caselaw 3749 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                       WPC(OAC) No. 1457 of 2014

       An application under Articles 226 & 227 of Constitution of
       India.
                                 ---------------
AFR    Rajib Lochan Biswal                    ......      Petitioner

                            -Versus-

       State of Odisha & others             .......       Opp. Parties

       Advocate(s) appeared in this case:-
       _______________________________________________________

         For Petitioner     :        M/s.G.R. Sethi, J.K. Digal,
                                     Ms. B.K. Pattnaik,
                                     P.S. Nayak, Advocates

          For Opp. Parties :     Mr. N.K. Praharaj,
                                 Govt. Advocate.
       _______________________________________________________
       CORAM:
            JUSTICE SASHIKANTA MISHRA

                             JUDGMENT

th 08 August, 2022

SASHIKANTA MISHRA, J.

The petitioner was engaged as a Junior

Engineer on 16.05.2011 for a period of one year which

came to be renewed from time to time. The last such

agreement of renewal was made on 1st May 2014. While

working as such, an FIR was lodged against him alleging

possession of disproportionate assets vide Koraput

Vigilance P.S. Case No. 39/2013 under section 13(2) read

with section 13 (1)(e) of the P.C. Act 1988 and Section 34

of the IPC. The petitioner was called upon to submit show

cause vide letter dated 21.9.2013 to which, he submitted

his reply on 30.10.2013 denying the allegations. Originally

the petitioner was engaged under the Water Resources

Department but his services were placed under the ST/SC

Department vide order dated 16.5.2011. By order dated

04.11.2013, the petitioner was reverted to the office of the

EIC, Water Resources Department, Odisha. By order

dated 13.11.2013, the petitioner was posted under the

control of Chief Engineer, Lower Indra and Lower Suktel

Irrigation Project, Nuapada in which he joined on

04.11.2013. Subsequently, the said order was modified

and the petitioner was reposted under the control of Chief

Engineer, Lower Indra Circle, Khariar in which he joined

on 15.11.2013. While the matter should thus, the

Government vide order dated 23.4.2014 directed the EIC,

Water Resources Department, Odisha to terminate the

services of the petitioner in terms of the conditions of

contractual service as indicated in the agreement at

Clause-9. The said order is enclosed to the writ petition as

Annexure-7. Pursuant to such order, the opposite party

No.2 issued an order on 1.5.2014 terminating the services

of the petitioner which is enclosed as Annexure-8. Being

aggrieved, the petitioner approached the erstwhile Odisha

Administrative Tribunal in O.A. No. 1457(C) of 2014,

which has since been transferred to this Court and

registered as the instant writ application. The petitioner

claims the following relief:

"In view of the facts stated above in Para-6, the applicant prays for the following relief(s);

i) To quash the order dated 23.04.2014 under Annexure-7.

ii) To quash the order dated 01.05.2014 under Annexure-8

iii) To direct the respondents to allow the applicant to continue in his present place of posting.

iv) And pass such order/orders as may be deemed fit and proper."

2. Counter affidavit has been filed by the opposite

parties refuting the averments of the writ application. It is

basically contended that the petitioner failed to maintain

absolute integrity which is evident from his involvement in

the criminal case. Further, the petitioner being engaged as

a contractual Junior Engineer, the services are governed

under the clauses of the agreement executed by him and

the Government. Since he was arrested by the Vigilance

Department for possession of disproportionate assets to

his known sources of income, the Government in

Department of Water Resources decided to terminate his

services as he had violated Para 9 of the agreement.

3. The petitioner filed rejoinder to the counter

affidavit stating that Clause-9 of the agreement cannot be

invoked in his case because mere involvement in the

criminal case cannot amount to misconduct more so as

charge sheet had not been filed in the said case.

4. Heard Miss Babita Kumari Pattnaik, learned

counsel for the petitioner and Mr. N.K. Praharaj, learned

Government Advocate appearing for the state.

5. It is argued by Miss Pattnaik that the action of

the opposite party authorities in terminating the services

of the petitioner merely because of his involvement in the

criminal case cannot be sustained in the eye of law.

Moreover, charge sheet had not been submitted at the

time of passing of the impugned order. It is further argued

that Clause 9 of the agreement refers to misconduct and

has also been defined therein. Involvement in a criminal

case cannot be treated as misconduct within the meaning

of Clause-9 of the agreement.

6. Per contra, Mr. N.K. Praharaj argues that the

petitioner was a contractual employee and therefore

cannot claim the status of a regular employee of the State

Government. He was bound by the terms and conditions

of the agreement which he had willfully executed with the

Government at the time of his engagement. As such, he

was bound to honour the said terms and conditions. The

said agreement confers power on the employer to

terminate his services in case of misconduct on his part.

Therefore the action of the authorities cannot be

questioned.

7. The facts of the case are not disputed. The

petitioner does not dispute that he was involved in a

Vigilance Case for possessing assets disproportionate to

his known sources of income. It is also not disputed that

till the issuance of the impugned order of termination,

charge sheet had not been filed in the Vigilance case. The

authorities have relied upon Clause 9 of the agreement

executed by the petitioner with the government on

01.05.2014, which reads as follows:

"9. In the event of any misconduct, of the second party, he/she shall be liable for the immediate disengagement by the First Party. The expression misconduct for the purpose of this agreement would mean improper or unprofessional behavior, bad management, mismanagement, misbehaviors. Whether an act (of the Second Party) is a misconduct or not would be construed by the First Party at his discretion."

8. On the undisputed facts of the case as narrated

above, it is to be considered whether involvement in the

Vigilance Case can amount to misconduct within the

meaning of Clause-9. It is well known in criminal

jurisprudence that an accused is presumed to be innocent

till he is proved guilty in a regular trial and that mere

involvement in a criminal case cannot be treated as proof

of guilt. Be that as it may, Clause-9 itself defines

'misconduct' as 'improper or unprofessional behavior, bad

management, mismanagement, misbehaviors'. Obviously,

involvement in a criminal case cannot come within the

ambit of any of the aforementioned acts. Though it is

stated that whether an act is a misconduct or not would

be construed by the first party at his discretion, the same

cannot imply that the authority is empowered to act

arbitrarily or whimsically or without legally acceptable

reason. 'Misconduct' within the meaning of Clause-9

would obviously mean, misconduct that has been proved

in accordance with law. If the reasoning put forth by the

opposite party authorities is accepted it would imply that

a mere allegation would be akin to proof, which is

contrary to all legal principles.

9. Of course, show cause notice was issued to the

petitioner to which he also replied but then, to finally

decide whether the petitioner was guilty of the allegations

involved in the Vigilance case, the authorities ought to

have waited till conclusion of the criminal trial. It must be

noted that except for his involvement in the criminal case,

there is no other allegation of misconduct leveled against

the petitioner. The action of the authorities in terminating

the services of the petitioner would have been justified

had there been a finding of guilt in the Vigilance case

against the petitioner.

10. This court had the occasion of dealing with a

similar case wherein invoking a similar clause in the

agreement, an employee had been terminated from

service. Reference may be had to the case of Abhimanyu

Mallick vs. State of Odisha & Others (W.P.(C) No.17307

of 2020, decided on 25.07.2022), wherein this Court held

that a mere allegation cannot be treated as proof of

misconduct.

11. For the foregoing reasons therefore, this Court

holds that the impugned orders under Annexures- 7 and

8 cannot be sustained in the eye of law and are therefore,

quashed.

12. The writ petition is allowed. No order as to

costs.

.................................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 8th August, 2022/ A.K. Rana