Orissa High Court
Harapriya Panda vs State Of Odisha And Others on 26 September, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.21728 OF 2023
(An application under Articles 226 and 227 of the Constitution
of India)
Harapriya Panda ... Petitioner
-versus-
State of Odisha and others
... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr.Sameer Ku. Das,
Advocate
-versus-
For Opposite Parties : Mr.S.N.Das,
Addl. Standing Counsel
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CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
26.9.2023.
Sashikanta Mishra,J. The Petitioner has filed this Writ
Petition with the following prayer;
"Under the above circumstances, it is therefore
humbly prayed that the Hon'ble Court be
graciously pleased to quash the order of
termination dated 28.1.2017 and consequential
order dtd.5.7.2023 under Annexures-4 and 8
respectively and direct the Opp. Parties to absorb
the Petitioner against a regular post by granting
her regular scale of pay with all consequential
service and financial benefits within a stipulated
period as deem fit and proper."
2. The facts of the case are that the Petitioner being
a graduate with M.C.A. qualification was appointed as
a Data Entry Operator on outsourcing basis on 7th
January, 2003 in the Centre for Modernizing
Government Initiative (CMGI), which functions
directly under the administrative control of the
General Administration Department of the
Government of Odisha. She was posted in the GA and
PG Department since then till 20th January, 2009.
She was redesignated as Programmer and continued
as such from 11th September, 2009 to 24th May, 2012.
By order dated 24th May, 2012 passed by the
Executive Director (CMGI), Bhubaneswar (Opposite
Party No.3), she was appointed on contractual basis
as Programmer initially on one year basis which was
extended from time to time. Because of her good
performance she was given several higher
assignments which she performed to the best
satisfaction of her authorities. On 25th August, 2015,
one of her colleagues namely, Chumuki Behera made
some allegations against her before the Additional
Secretary of the Department against which she was
asked to submit her reply, which she did on the same
day. The Joint Secretary was directed to cause an
enquiry. No opportunity of hearing was granted to her
during such enquiry and she was transferred from
one department to another. Further, while working in
the G.A. (S.E.) Department, the Petitioner was
subjected to sexual harassment by three employees of
the Department. On a complaint being lodged by her
the Internal Complaints Committee conducted an
enquiry in the matter, but found that the allegations
could not be established. She filed an appeal against
such decision, but the same was dismissed by the
Special Secretary asking her to approach the Court of
law, but apprehending further harassment and
coercive action she did not proceed further in the
matter. Because of such humiliation, she suffered
from mental depression and took leave for some time
with due intimation to the authorities. Surprisingly
however, by order dated 28th January, 2017, the
Opposite Party No.3 terminated her service. Being
aggrieved, she approached the Odisha Administrative
Tribunal being O.A. No.444/2017. By order dated 30 th
March, 2017, the Tribunal issued notice in the matter
and stayed operation of the order of termination. As
such, the Petitioner continued in service. Consequent
upon abolition of the Tribunal, the Original
Application was transferred to this Court and
registered as W.P.C.(O.A.)No.444/2017.
Unfortunately, the counsel engaged by her did not
appear on the date of hearing of the Writ Petition for
which the same was disposed of granting liberty to
her to approach the appropriate forum, if any, cause
of action survived. On 3rd July, 2023, the Opposite
Party No.3 asked her to vacate her chair in view of
disposal of the Writ Petition by this Court on 24th
August, 2022. The Petitioner came to know of
disposal of the Writ Petition for the first time on that
date. Accordingly, she submitted a representation on
3rd July, 2023 to Opposite Party No.3, but by order
dated 5th July, 2023, she was informed that her
services had been terminated since 1st April, 2017.
3. A counter affidavit has been filed on behalf of the
Opposite Party No.3 disputing the averments made in
the Writ Petition. It is stated that the Petitioner was a
contractual employee having been engaged initially
through a service provider. Therefore, continuance of
her engagement depends on satisfactory performance,
but the Petitioner's performance was not up to mark.
As such her service was no more required basing on
her performance. It is reiterated that the petitioner is
a contractual employee and not a regular employee
and was paid only consolidated consultancy fees. As
regards the so called retrospective termination of her
services, it is stated that the order of termination was
passed on 28th January, 2017, but the Petitioner
continued in service on the basis of the interim order
passed by the Tribunal. Once the Writ Petition was
dismissed, the original order automatically revived.
Therefore, she cannot have any claim based on such
continuance in service after passing of the order dated
28th January, 2017.
The Petitioner filed a rejoinder affidavit mainly
challenging the action of the authorities in
terminating her service with retrospective effect, as
being illegal. It is further stated that she had served
for more than 20 years uninterruptedly and therefore,
entitled to be regularized in service in view of the
Odisha Group C and Group D (Contractual
Appointment) Rules, 2013. Though she was initially
appointed through a service provider yet
subsequently, she was engaged directly in CMGI on
contractual basis.
4. Heard Mr. S.K.Das, learned counsel for the
Petitioner and Mr. S.N.Das, learned Addl. Standing
Counsel for the State.
5. Mr.S.K.Das would argue that the action of the
authorities in terminating her service is illegal for the
reason that despite being punitive in nature and
attached with a stigma no opportunity of hearing
whatsoever was granted to her. Secondly, law does
not contemplate issuing an order of termination with
retrospective effect as has been done in the present
case. Mr. Das further argues that such action was
taken against her only because she lodged a
complaint against three male employees for sexual
harassment, which could not be proved because of
want of evidence. Therefore, she was visited with the
extreme penalty of termination of her services as an
act of retribution. Mr. Das further submits that
having rendered uninterrupted service for 20 years,
the Petitioner is entitled to be considered for
regularization in service.
6. Mr.S.N.Das, learned Addl. Standing Counsel,
has opposed the contentions advanced on behalf of
the Petitioner by submitting that firstly, the Petitioner
being a contractual employee, her continuance in
service depends on renewal of contract. Considering
her conduct and poor performance, which has been
indicated in detail in the impugned order under
Annexure-4, the authorities rightly decided not to
further renew the consultancy contract of the
Petitioner. As per Clause-8 of the contract, the
Petitioner was given two months notice before
effecting termination of the contract. Not being a
regular employee it was not obligatory for the
authorities to hold a regular Departmental Proceeding
against her. In any case, enquiries were conducted in
which she had participated and the acts of
misconduct like unauthorized absence etc. are
matters of record.
7. There is no dispute that the Petitioner initially
joined as a Data Entry Operator on 7th January, 2003,
through a service provider. By order dated 24th May,
2012, having been selected by a selection committee,
she was engaged as Programmer on contractual basis
for a period of one year with a consultancy fee of
Rs.12,000/- per month. It is not disputed that such
contract was renewed from time to time. There were
some instances of purported misconduct on her part
as have been referred to in the impugned order under
Annexure-4. There is however, no mention of the
complaint of sexual harassment lodged by her against
three of her male colleagues, which could not be
established in the enquiry conducted by the Internal
Complaints Committee. Therefore, prima facie, it is
difficult to accept the argument of Mr. S.K.Das that
the impugned order was passed as a retribution for
having lodged the complaint of sexual harassment.
8. Be that as it may, reading of the impugned order
reveals that allegations have been made against her of
pressurizing the Enquiry Committee constituted to
enquire into the quarrel between her and Chumuki
Behera. It is also alleged that the Petitioner remained
absent on several dates and did not respond to the
efforts made by the Office to contact her. Several such
allegations have been made and on such basis it has
been concluded that her performance is
unsatisfactory and accordingly, it was decided not to
further renew the contract. There is nothing on record
to show that any show cause notice or chance to
respond to the several allegations mentioned in the
impugned order were given to her before issuance of
the same. True, the Petitioner not being a regular
employee cannot demand holding of a Departmental
Proceeding to prove the allegations, but then when it
comes to terminating the service of an employee by
way of non-renewal of contract, the same directly
affects her right to livelihood guaranteed under Article
21 of the Constitution of India. To such extent
therefore, the Rules of natural justice need to be
followed before taking the extreme step. Moreover,
from the tone and tenor of the impugned order, this
Court is left with no doubt that the same purports to
be a punitive measure, which would certainly prove
stigmatic for the Petitioner adversely affecting thereby
her chances of reemployment elsewhere.
9. In Parshotam Lal Dhingra v. Union of India;
AIR 1958 SC 36, the Supreme Court held that the
protection of Article 311 also covered a probationer
and that, although a probationer cannot complain in
the case of termination simplicitor, he can legitimately
do so if the termination is by way of punishment.
Further, a termination founded in inefficiency or other
disqualification is a punishment because it puts
indelible stigma on the officer affecting his future
career. The same principle as applicable to a
probationer would also apply in case of tenure based
or contractual employees. The bottom line is,
although a termination simplicitor of a tenure
employee is permissible, punitive termination would
be open to judicial review. In such cases the Court
will consider the attendant circumstances to decide
whether the termination was penal. Reference may be
had to the decisions of the Apex Court in the cases of
A.P. State Federation of Cooperative Spinning
Mills Ltd. v. P.V. Swaminathan, (2001) 10 SCC 83,
DTC v. Mazdoor Congress, 1991 Supp (1) SCC 600
and State of J.P. v. Kaushal Kishore Shukla;
(1991) 1 SCC 691.
10. What emerges from the foregoing narration is,
the impugned order under Annexure-4 is not an order
of termination simplicitor in the form of non-renewal
of contract inasmuch as it refers to several alleged
acts of misconduct as also unsatisfactory
performance of the Petitioner. Under such
circumstances, the bare minimum that the Petitioner
could ask for is an opportunity to put forth her views.
Since no such opportunity in line with the principles
of natural justice was accorded by the authorities to
the Petitioner, the impugned order is rendered
vulnerable and in fact, unsustainable in the eye of
law.
11. For the foregoing reasons therefore, this Court is
of the considered view that notwithstanding the fact
that the Petitioner is a contractual employee, she
cannot simply be thrown out of employment with
complying with the principles of natural justice more
so as the action in question purports to be punitive in
nature and if allowed to subsist, would prove
stigmatic for her.
12. In the result, the Writ Petition is allowed. The
impugned orders under Annexures-4 and 5 are
hereby quashed.
..................................
Sashikanta Mishra,
Judge
Ashok Kumar Behera
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR BEHERA
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 29-Sep-2023 18:50:58
