Santosh Kumar Samal vs State Of Odisha And Others
2023 Latest Caselaw 11249 Ori

               IN THE HIGH COURT OF ORISSA AT CUTTACK


                         W.P.(C). No. 11814 of 2023


      (An application under Article 226 & 227 of the Constitution of
      India)
                                   ---------------

      Santosh Kumar Samal                   ......        Petitioner

                            -Versus-

      State of Odisha and others     ....          Opposite Parties

      Advocate(s) appeared in this case:-
      _______________________________________________________

           For Petitioner   :     Mr. S. P.Jena, Advocate.
           For Opp. Parties :     Mr. S.N.Dash
                                  Additional Standing Counsel
                                  Mr. B.P. Tripathy
                                  Appearing for NHM
      _______________________________________________________
      CORAM:
             JUSTICE SASHIKANTA MISHRA

                                   JUDGMENT

14th September, 2023 SASHIKANTA MISHRA, J.

1. This matter is taken up through hybrid mode.

2. Heard Mr. S. P. Jena, learned counsel for the petitioner,

Mr. S.N.Das, learned Additional Standing Counsel for the

State and Mr. B.P.Tripathy, learned counsel appearing for the

National Health Mission(NHM).

3. The brief facts of the case are that the petitioner was

appointed as an Ayush Doctor on contractual basis under

the RBSK scheme and was posted at Parjang CHC as per

order dated 25.10.2014 passed by the CDMO, Dhenkanal.

Before entering into such employment, he was required to

execute a contractual service agreement with the Odisha

Health and Family Welfare Society, which he complied.

Accordingly, he joined and performed his duties from

25.10.2014. By order dated 05.04.2023 the CDMO

Dhenkanal, on being informed that the petitioner had

remained in judicial custody from 15.03.2023 to 18.03.2023,

terminated his contractual service basing on Clause 9 of the

contractual service agreement. It is submitted that the

petitioner was implicated in a criminal case being 2 (a) CC

No. 25 of 2023 of the Court of learned J.M.F.C., Bhuban

under Section 52(a) (i) of the Odisha Excise Act, 2008. By

judgment passed on 18.05.2023, learned J.M.F.C. held that

the prosecution had failed to prove its case beyond all

reasonable doubts against the petitioner-accused and

therefore holding him not guilty of the alleged offence,

acquitted him.

4. Mr. Jena, learned counsel for the petitioner submits

that having been acquitted in the criminal case, there is no

impediment for reengagement of the petitioner and therefore,

the concerned authorities should be directed accordingly.

5. Mr. S.N.Das, learned State counsel submits that the

petitioner's services were terminated basing on the

contractual service agreement and therefore, no fault can be

attributed to the authority in this regard.

6. Mr. B.P.Tripathy has drawn attention of this Court to

Clause-9 of the contractual service agreement to submit that

once the contractual employee is detained in custody on a

criminal charge or otherwise for a period exceeding 48 hours,

the society has the power to terminate his service.

7. Having considered the rival submissions, this Court is

of the view that the termination of services of the petitioner

cannot be treated as illegal in any manner, in view of the

relevant clause in the agreement. For immediate reference

Clause-9 is reproduced hereinbelow:

"In case of improper conduct by the Second Party, the OSH & FWS may terminate this Agreement and no compensation shall be payable in such case. This contract is issued on the understanding that all the information given by the Second Party in his application form and during the interview are correct, true and complete. If it is found at any point of time that the information given when seeking appointment is not complete and true and/or any significant information has been knowingly suppressed, the society will have the right either to withdraw the letter of contractual engagement before he/she has taken up service with the society without any notice or compensation.

Notwithstanding anything contained hereinabove, the service of the second party may be terminated at any point of time by the competent authority of the society if the second party is found to be involved in criminal offence or guilty of any insubordination, intemperance or other misconduct or any breach of trust as specified in Clause No.11 of the terms& conditions or non-performance or at the completion of the project as intimated.

Further, the contractual services of the Second Party from the OSH & FW society shall be terminated at any point of time if the Second Party is detained in custody whether on a criminal charge or otherwise for a period exceeding forty-eight(48) hours, with effect from the date of such detention by an order of the concerned appointing authority."

Since it is not disputed that the petitioner was in custody for

more than 48 hours being implicated in a criminal case, the

order terminating his services has to be treated as being in

consonance of the agreement. Nevertheless, fact remains that

the criminal case in question has ended in clean acquittal of

the petitioner. As such, there appears to be no longer any bar

in reengaging the petitioner in his former appointment.

8. The writ application is therefore, disposed of directing

the CDMO, Dhenkanal (Opposite Party-4) to take note of the

developments in the case particularly, the fact of acquittal of

the petitioner from the criminal case and to consider

reengaging him in his former position, if there is no other

legal impediment. A decision in this regard shall be taken

within a period of four weeks from the date of the production

of certified copy of this order by the petitioner.

9. The writ application is disposed of accordingly.

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

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 14th September, 2023/ Deepak Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC, Cuttack Date: 18-Sep-2023 11:58:30