Dharmendra Mohanta vs State Of Odisha And Others
2023 Latest Caselaw 1413 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                     W.P.(C) No. 26426 of 2017

      An application under Articles 226 and 227 of the
      Constitution of India.
                                ------------------

      Dharmendra Mohanta                      ......             Petitioner

                                    -Versus-

      State of Odisha and others              .......        Opp. Parties

      Advocate(s) appeared in this case:-
      _______________________________________________________

         For Petitioner     :       M/s. K.K. Swain, B. Jena,
                                    P.K. Mohanty, R.P. Das &
                                    K. Swain, Advocates.

        For Opp. Parties :      Mr. B. Mohanty,
                                Standing Counsel for
                                School and Mass Education
                                Department.
      _______________________________________________________
      CORAM:
           JUSTICE SASHIKANTA MISHRA

                             JUDGMENT

th 10 February, 2023

SASHIKANTA MISHRA, J.

The petitioner was working as Night

Watchman -cum- Sweeper in Talapada High School,

Talapada in the district of Mayurbhanj having been

appointed on 26.11.1991 against the 3rd post of peon by

the Managing Committee. He joined on the same day. His

appointment was also approved and he claims to be in

receipt of monthly salary under the direct payment

scheme as per Rule 9 of the Odisha Education

(Recruitment and Conditions of Service of Teachers and

Members of the Staff of Aided Educational Institutions)

Rules, 1974 (in short "1974 Rules"). While the matter

stood thus, the petitioner was involved in a criminal case,

being Thakurmunda P.S. Case No.66 of 2015 registered

under Section 380 of IPC. Upon completion of

investigation, final report was submitted as "FRT no clue"

on 09.04.2016. By order dated 28.12.2015 passed by the

President of the Managing Committee, the petitioner was

placed under suspicion. The same was followed by a

memorandum of charges issued by the President of the

Managing Committee on 19.06.2017 (copy enclosed as

Annexure-5 to the writ petition). The said memorandum is

impugned in the present writ petition.

2. Heard Mr. K.K. Swain, learned counsel for the

petitioner and Mr. B. Mohanty, learned Standing Counsel

for School and Mass Education Department.

3. Mr. Swain contends that the first part of the

prayer made in the writ petition no longer survives in view

of the fact that by order dated 13.11.2021 the petitioner

was reinstated in service with immediate effect by the

Headmaster. He further submits that the President of the

Managing Committee has no power to draw disciplinary

proceeding against the petitioner, who is a lower grade

employee. Referring to the provision of the 1974 Rules,

Mr. Swain contends that in so far as the petitioner is

concerned, only the Headmaster is competent to impose

penalty and initiate disciplinary proceeding. He has

referred to Rule 21 of the said Rules in this regard.

Additionally Mr. Swain has referred to a judgment passed

by a Division Bench of this Court in the case of Govinda

Chandra Rout vs. Managing Committee of Chitrotpala

High School and others, reported in 1985 (I) OLR 379.

On such basis it is submitted that the impugned order

under Annexure-5 having been passed without

jurisdiction, cannot be sustained in the eye of law.

4. Mr. B. Mohanty submits that the Managing

Committee had placed the petitioner under suspension

pending drawal of disciplinary proceeding acting under

Rule 21 of the 1974 Rules. As such, no illegality was

committed in the matter.

5. Reference to the provision of the 1974 Rules

would make it clear that as per Rule 2(g), "Lower Grade

Post" means the posts of Duftaries, Peons, Chowkidars,

Watchers and Sweepers and includes any other post

involving comparable duties and carrying comparable

emoluments. There is no dispute that the petitioner was

working as Night Watchman-cum-Sweeper at the relevant

time and therefore, was occupying a lower grade post

within the meaning of Section 2(g) of 1974 Rules. Further,

Rule 21, which is relevant, is quoted hereinbelow.

"21. Disciplinary authorities -(1) the Director may impose any of the penalties specified in Rule 20 on any employee :

Provided that the Director shall not initiate any disciplinary proceeding unless the Managing Committee or the Governing Body, as the case

may be, refuses or neglects to take disciplinary action against any employee.

(2) Without prejudice to Sub-rule (1) but subject to the provisions of Sub-rules (3) and (4) any of the penalties specified in Rule 20 may be imposed -

(a) in respect of a lower grade employee, by the Headmaster or the Principal, as the case may be; and

(b) in respect of any other employee, by the Managing Committee or the Governing Body, as the case may be:

[Provided that in case of suspension of employees failing under Clauses (a) and (b) the prior approval of the Inspector in respect of any employee serving in a School and of the Director in relation to any other employee is obtained ]

[Provided further that the Managing Committee or the Governing Body, as the case may be, may place an employee under suspension at the initiation of disciplinary proceedings for a period of thirty days, pending approval of Inspector or the Director, as the case may be.]

(3) No penalty shall be imposed on any employee by an authority other than the authority mentioned in Sub-rules (1) and (2) hereinafter referred to as the disciplinary authority.

(4) No penalty shall be imposed on a person appointed to any post in an aided institution on deputation from the Government except in accordance with the provisions of Rule 25."

Sub-Rule(2) of Rule 21 is very clear that in

respect of a lower grade employee, the penalties referred to

in Rule 21 and a disciplinary proceeding can be initiated

only by the Headmaster of the Institution.

6. In the case of Govinda Chandra Rout

(supra) the Division Bench of this Court held under

paragraph-5 as follows:

"5. Annexure-8 had been issued by the Secretary. Under sub-rule (2) of Rule 21 of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 (for short 'the Rules',), the Headmaster is the disciplinary authority as regards the lower grade employee. The expression 'Lower Grade Post' has been defined in Section 2(1 )(g) of the Rules as :

"Lower Grade Post' means the posts of Duftaries, Peons, Chowkidars, Watchers and Sweepers and includes any other posts involving comparable emoluments;"

Hence, the disciplinary authority as regards the petitioner, a peon, was the Headmaster and not the Secretary. It has been contended that the Managing Committee being superior to the Headmaster could take action and Annexure-8 issued by the Secretary was, therefore, competent. This contention militates against the specific provision contained in Sub-rule (2) of Rule 21 of the Rules, which does not authorise the Secretary to impose any penalty on an employee of the School. Mr. Rath for opposite party No. 1 has also not placed before us any decision of the Managing Committee imposing or directing imposition of penalty. So, we have no hesitation in declaring Annexure-8 ultra vires and we quash the same."

7.              In    view    of   what    has     been    discussed

hereinbefore, there          remains   further doubt that the

President of the Managing Committee was not competent

to issue the impugned order initiating disciplinary

proceeding against the petitioner. As such, the impugned

order is rendered unsustainable in the eye of law.

8. For the foregoing reasons therefore, the writ

petition is allowed in part. The impugned order under

Annexure-5 is hereby set aside.

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

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 10th February, 2023/ A.K. Rana.