Orissa High Court
Bichitrananda Barik vs For on 21 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 10146 of 2018
Application under Article 226 and 227 of the Constitution
of India.
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Bichitrananda Barik ...... Petitioner
-Versus-
State of Odisha and others ....... Opp.Parties
Advocate(s) appeared in this case:-
__________________________________________________________
For Petitioner : Mr. J.K. Rath, Sr. Advocate
With M/s. Durgesh Narayan Rath,
P.K. Rout & A.K. Saa, Advocates.
For Opp. Parties: Mr. P.K. Panda,
Standing Counsel for School &
Mass Education Department.
__________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
st
21 February, 2023
SASHIKANTA MISHRA, J. In this writ application, the petitioner
impugns the order dated 01.06.2018 passed by the District
Project Co-ordinator SSA, Jagatsinghpur, whereby 30 days
notice was served upon him for his removal from
engagement as Sikshya Sahayak (Junior Teacher
contractual).
2. The facts of the case are that the petitioner
was engaged as Sikshya Sahayak vide engagement order
dated 05.01.2015 issued by the Chief Executive Officer,
Zilla Parisad-cum-Collector, Jagatsinghpur. The petitioner
joined as such on 10.01.2015. On 26.04.2018, the District
Education Officer, Jagasinghpur issued a show cause
notice containing certain allegations asking the petitioner
to reply by 30.04.2018. He submitted his reply within the
stipulated date denying all the allegations. No further
communication was made to him till issuance of the
impugned notice dated 01.06.2018, copy of which is
enclosed as Annexure-5 to the writ petition.
3. A counter affidavit has been filed by the
District Project Co-ordinator (opposite party No.4) justifying
the action taken against the petitioner. It is stated that on
receipt of allegations against the petitioner, the matter was
enquired into and it was found that the same are correct.
Since the petitioner is a contractual employee, the notice
under Annexure-5 was issued. It is further stated that in
view of the agreement executed by the petitioner at the time
of his appointment as Junior Teacher (Contractual), he was
duty bound to maintain the decorum and conduct expected
of a teacher.
4. Heard Mr. J.K. Rath, learned Senior Counsel
along with Mr.D.N. Rath, learned counsel for the petitioner
and Mr. P.K. Panda, learned Standing Counsel for School
and Mass Education Department.
5. It is submitted by Mr. Rath, learned Senior
Counsel that the petitioner was appointed on the orders of
the CEO, Zilla Parisad-cum-Collector, Jagatsinghpur and
as such, he is also the disciplinary authority. The show
cause notice under Annexure-3 as well as the impugned
notice under Annexure-5 was issued by the District
Education Officer and District Project Co-ordinator
respectively, both of whom lack jurisdiction or authority to
do so. According to Mr. Rath, none other than the CEO,
Zilla Parisad-cum-Collector has the authority to take such
action against the Sikshya Sahayak/Junior Teacher
(Contractual). Mr. Rath further contends that even
otherwise, the petitioner was never called upon to attend
the so-called enquiry and therefore, he had no knowledge
whatsoever regarding holding of the same. Moreover, by not
allowing him to participate in the enquiry, he was deprived
of the opportunity to defend himself appropriately against
the allegations. Since the findings of the so called enquiry
have been utilized to take the proposed adverse action
against him, the same is entirely untenable in the eye of
law.
6. Mr. P.K. Panda has supported the issuance of
the impugned notice by submitting that the allegations
against the petitioner are grave and serious and in any
case, he being a contractual employee, the detailed
procedure prescribed for taking disciplinary action against
a regular government servant is not applicable to him.
7. Having considered the rival contentions noted
above and having perused the materials on record, this
Court is of the considered view that the impugned order
under Annexure-5 cannot be sustained in the eye of law for
the reasons indicated hereinafter.
8. The show cause notice dated 26.04.2018 was
issued by the District Education Officer, Jagatsinghpur.
There is no dispute that the CEO, Zilla Parisad-cum-
Collector is the appointing authority in so far as Sikshya
Sahayak/Junior Teacher (Contractual) is concerned. It is
well evident from the engagement order dated 05.01.2015,
copy of which has been enclosed as Annexure-1. As such,
the CEO, Zilla Parisad-cum-Collector is also the
disciplinary authority. Any action proposed to be taken
against the incumbent for any misconduct in employment
has to be necessarily taken up by the CEO-cum-Collector.
To such extent therefore, the District Education Officer
cannot be said to have any authority to issue the show
cause notice unilaterally to the petitioner. That apart, from
the counter affidavit filed by the opposite party no.4 it
transpires that some sort of enquiry was conducted in the
matter wherein, the statements of some students including
their parents were obtained. Under whose authority and
what manner such enquiry was conducted, if at all, is not
forthcoming from the records.
9. A perusal of the impugned notice under
Annexure-5 shows that the findings of the enquiry have
been relied upon and apparently form the basis for issuing
the impugned notice of disengagement. This Court is not
impressed with the argument that being a contractual
employee no rules or procedure are required to be followed
before disengaging him. It is rather the settled position of
law that even in case of a contractual employee the rules of
natural justice are required to be followed to the hilt. In the
instant case, as already stated, the enquiry was conducted
entirely behind the back of the petitioner, inasmuch as he
was not given any opportunity to participate and to have
his say therein.
10. In such view of the matter, the so called
findings of the enquiry cannot be accepted.
11. In the result, the writ petition is allowed. The
impugned notice under Annexure-5 is hereby quashed. It is
however, made clear that it shall be open to the
disciplinary authority to proceed against the petitioner for
his alleged misconduct strictly in accordance with law. It is
further made clear that this Court has not expressed any
opinion on the merits of the case.
..................................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack,
The 21st February, 2023/ A.K. Rana, P.A.
