Orissa High Court
Gyana Ranjan Satapathy vs Union Of India & Ors. ..... Opposite ... on 1 December, 2023
Bench: B.R. Sarangi, Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C). No.39343 of 2023
Gyana Ranjan Satapathy ..... Petitioner
Mr. S.K. Ojha, Advocate
Vs.
Union of India & Ors. ..... Opposite parties
Mr. J. Naik, CGC
CORAM:
ACTING CHIEF JUSTICE DR. B.R. SARANGI
MR. JUSTICE MURAHARI SRI RAMAN
ORDER
01.12.2023
W.P.(C) No.39343 of 2023
And
I.A. No.19007 of 2023
Order No. This matter is taken up through hybrid mode.
2. Heard Mr. S.K. Ojha, learned counsel appearing for the
petitioner and Mr. J. Naik, learned Central Government Counsel
appearing for the opposite party-Union of India.
3. The petitioner has filed this writ petition seeking to quash
the order dated 24.11.2023 passed in O.A. No.260/00559 of 2018
under Annexure-1, by which the Central Administrative Tribunal,
Cuttack Bench, Cuttack has dismissed the said O.A. filed by the
petitioner against the notice of termination issued by the
authority.
4. Mr. S.K. Ojha, learned counsel appearing for the petitioner
contended that the petitioner was issued offer of appointment to
the regular post of L.D.C., pursuant to which he joined on
22.06.2015 and on successful completion of the probation period
of one year, his service was confirmed in the said post of L.D.C.
on 19.08.2016. But all on a sudden, he was issued three months
prior notice for termination of service on 09.11.2018, which was
challenged by the petitioner before the Tribunal by filing O.A.
No.260/00559 of 2018. Initially, the Tribunal protected the
interest of the petitioner by passing interim order. After dismissal
of the said O.A. on 24.11.2023, the interim order passed by the
Tribunal merged with the final order. It is further contended that
the case of the petitioner is fully covered by the ratio decided by
the apex Court in K. Ragupathi v. State of Uttar Pradesh and
others, (2022) 6 SCC 346 and of this Court in Samir Kumar
Swain v. State of Odisha & Ors. (W.P.(C) No.45 of 2022) in
which one of us (Dr. B.R. Sarangi, J.) was a Member. In the case
of Samir Kumar Swain (supra), this Court, vide order dated
04.01.2022, while issuing notice has granted interim order and
while doing so, this Court has taken note of the judgment of the
apex Court in Om Prakash Goel v. The Himachal Pradesh
Tourism Development Corporation Ltd., Shimla & Ors., AIR
1991 SC 1490, wherein the apex Court in paragraphs 2 to 4 held
as follows:
"2. It is not in dispute that the Corporation has power to terminate the services by
giving one month's notice or pay in lieu thereof, in the case of a temporary employee
who have completed one month's service. Regulation 19(3) reads thus:
Termination of service by notice "19(3) The Corporation may terminate the services of
any employee by giving him:
(a) xx xx xx
(b) one month's notice, or pay in lieu thereof, in the case of temporary
employees who have completed one months service and one day's notice or
pay in lieu thereof in the case of temporary employees in the first month of
their service."
Regulation 39 prescribes various penalties that can be awarded and termination of
service is one of them. Now the only question that arises for consideration in this case
is whether the termination of the petitioner's services is simply one as per the
Regulation 19(3) or in the nature of a camouflage and, therefore, amounts to
punishment as contended by the petitioner.
3. In Anoop Jaiswal v. Government of India & Anr., MANU/SC/0343/1984:
(1984) ILLJ337SC , it is held as under:
"Where the form of the order is merely a camouflage for an order of
dismissal for misconduct it is always open to the Court before which the
order is challenged to go behind the form and ascertain the true character
of the order. If the Court holds that the order though in the form is merely a
determination of employment is in reality a clock for an order of
punishment, the Court would not be debarred, merely because of the form
of the order, in giving effect to the rights conferred by law upon the
employee."
In Nepal Singh v. State of U.P. & Ors., MANU/SC/0283/1984: (1986)
IILLJ343SC , it is held as under:
"Where allegations of misconduct are levelled against a Government
Servant, and it is a case where the provisions of Article 311(2) of the
Constitution should be applied, it is not open to the competent authority to
take the view that holding the enquiry contemplated by the clause would be
a bother or a nuisance and that therefore it is entitled to avoid the mandate
of that provision and resort to the guise of an ex-facie innocuous
termination order. The Court will view with great disfavour any attempt to
circumvent the constitutional provision of article 311(2) in a case where
that provision comes into play."
In Jarnail Singh & Ors., etc. v. State of Punjab & Ors., MANU/SC/0574/1986:
(1986) IILLJ268SC it is, held thus:
"When an allegation is made by the employee assailing the order of
termination as one based on misconduct though conched in innocuous
terms, it is incumbent on the court to lift the veil and to see the real
circumstances as well as the basis and foundation of the order complained
of. In other words, the Court, in such a case, will lift the veil and will see
whether the order was made on the ground of misconduct, inefficiency or
not."
4. From the above decisions it can be seen that it is well-settled that in a case of an
order of termination even that of a temporary employee the Court has to see whether
the order was made on the ground of misconduct if such a complaint was made and in
that process the Court would examine the real circumstances as well as the basis and
foundation of the order complained of and if the Court is satisfied that the termination
of services is not so innocuous as claimed to be and if the circumstances further
disclose that it is only a camouflage with a view to avoided an enquiry as warranted
by Article 311(2) of the Constitution, then such a termination is liable to be quashed.
In the above mentioned decisions, the impugned termination order was accordingly
quashed."
5. In view of law laid down by the apex Court, as quoted above,
this Court is to examine whether any stigma is attached to the order of
termination and to avoid that an innocuous order has been passed in a
camouflaged manner to terminate the service of the petitioner.
6. Issue notice to the opposite parties.
7. One extra copy of the writ petition be served on Mr. J. Naik,
learned Central Government Counsel within three days, as he appears
for opposite party no.1 to enable him to obtain instructions or file
counter affidavit.
8. One extra copy of the writ petition be served on learned
Additional Government Advocate within three days, as he appears for
opposite party no.2 to enable him to obtain instructions or file counter
affidavit.
9. Requisites for issuance of notice to opposite party no.3 by
speed post shall be filed within three days. Office shall send notice to
the said opposite party fixing a short returnable date.
10. As an interim measure, it is directed that there shall be stay
operation of notice of termination issued on 09.11.2018 under
Annexure-2 and the consequential order dated 24.11.2023 passed by
the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A.
No.260/00559 of 2018, till 20.12.2023.
(DR. B.R. SARANGI)
ACTING CHIEF JUSTICE
(M.S. RAMAN)
JUDGE
Alok
