Mandakini Sahu vs State Of Odisha & Others ..... Opposite ...
2024 Latest Caselaw 10860 Ori

Orissa High Court

Mandakini Sahu vs State Of Odisha & Others ..... Opposite ... on 1 July, 2024

Author: Biraja Prasanna Satapathy

Bench: Biraja Prasanna Satapathy

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                   WPC (OAC) NO.2441 of 2017

Mandakini Sahu                    .....                 Petitioner
                                           Mr. P.N. Mohanty, Adv.
                         -versus-
State of Odisha & Others       .....          Opposite Parties
                                              Mr. S.K. Samal, AGA

                            CORAM:
THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY

                              ORDER

01.07.2024 Order No.2

1. This matter is taken up through hybrid mode.

2. Heard learned counsel for the parties.

3. Petitioner has filed the present Writ Petition inter alia challenging the order of disengagement so issued by the Collector, Kandhamal vide Office order dt.04.08.2017 under Annexure-7.

4. Learned counsel for the Petitioner contended that Petitioner was duly engaged as a Matron on contractual basis vide order of engagement issued on 07.12.2015 under Annexure-1.

4.1. It is contended that while so continuing, petitioner was straightaway disengaged from her service vide the impugned order and no show-cause was ever issued prior to taking such extreme action of disengagement from service.

4.2. It is contended that since the petitioner was continuing as a contractual employee, in view of the

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provisions contained under Rule 9(6) of the Orissa Group- C and Group-D Posts (Contractual Appointment) Rules, 2013, prior to such disengagement, provisions contained under OCS (CCA) Rules, 1962 was required to be followed. Rule 9(6) of the 2013 Rules reads as follows:

"Conduct and discipline- They shall abide by the Odisha Civil Services Conduct Rules, 1959 and subject to the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962."

4.3. Mr. P.N. Mohanty, learned counsel for the petitioner in support his submission also relied on a decision of this Court so passed in the case of Abimanuy Mallick Vs. State of Orissa and Others W.P.(C ) No.17307 of 2020. The view expressed by this Court in paragraph-8 of the said judgment reads as follows:

"8. The question is, can mere involvement in a criminal case be held as a misconduct? It is well known in criminal jurisprudence that an accused is presumed to be innocent till proven guilty. The condition in the agreement at clause-9 referred above speaks of 'misconduct', which obviously means misconduct that has been duly proved. Mere allegation cannot be treated as proof of misconduct. In the instant case, the petitioner has been acquitted from the charge as per judgment dated 26.11.2021 passed by learned Additional Sessions Judge, Kamakhyanagar in C.T. (SS) No. 10 of 2020. Such being the fact situation, it is obvious that the so called misconduct imputed to the petitioner for his alleged involvement in the criminal case must be treated a nullity. Be that as it may, the petitioner was undoubtedly arrested in connection with criminal case and remained in judicial custody for more than 48 hours. Rule-12(1) and (2) of the OCS (CCA) Rules, 1962 provides as under:

"12. Suspension. - (1) The appointing authority or any authority to which it is subordinate or any authority empowered by the Governor or the appointing authority Iin that behalf may place a Government servant under suspension .

(a) where a disciplinary proceeding against him is contemplated or is pending, or

(b) where a case against him in respect of any criminal offence is under investigation or trial.

(2) A Government servant who is detained in custody whether on a criminal charge or otherwise, for a period exceeding forty-eight hours shall be deemed to have been suspended with effect from the date of detention, by an order of the appointing authority and shall remain under suspension until further orders.

Therefore, the petitioner could have suspended by invoking the aforementioned provision. However, the petitioner was straight away disengaged from service for being in judicial custody in connection with the criminal case. When it comes to disengagement, obviously it is not open to the authorities to simply throw out a government servant, whether contractual or regular, from employment without following the procedure established by law. In the instant case, the petitioner being a contractual employee is obviously governed by the provisions of 2013 Rules, Rule -9(6) whereof provides as under:

"9 Conditions of Service of Contractual Employees appointed under sub-rule (2) of rule-

5 :-

xxx xxx xxx

(6) Conduct and discipline - They shall abide by the Odisha Civil Services Conduct Rules, 1959 and subject to the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962."

Thus, recourse to the procedure prescribed under Rule-15 of OCS (CCA) Rules, 1962 is a must before any action as drastic as disengagement of a Government servant is taken. Such a course of action was not taken by the concerned authorities in relation to the petitioner. It has been argued that a show cause notice was issued to the petitioner, but the same could not be served upon him as he was absent/had absconded from home. According to the petitioner he was under treatment for his illness and thereafter he was arrested for which the show cause notice could not be served upon him. It is settled law that when a penal action is proposed to be taken against a Government servant, he must be given all opportunity to have his say in the

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matter. Mere issuance of show cause notice, which could not be served, cannot fulfill the requirement of law."

4.4. It is accordingly contended that since the provisions contained under Rule 9(6) of the 2013 Rules was never followed, the order of disengagement so issued vide the impugned order under Annexure-7 is not sustainable in the eye of law.

5. Learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opp. Party Nos.2 & 3.

5.1. It is contended that since in the inquiry conducted by the District Welfare Officer, Kandhamal, petitioner was found guilty of the allegation and in spite of notice, petitioner did not participate in the inquiry, petitioner was disengaged from her services vide the impugned order under Annexure- 7 so issued by Opp. Party No.2. Stand taken in para 4 & 5 of the counter affidavit reads as follows:

4. That it is not a fact that the DWO, Kandhamal has given the applicant any clean cheat during enquiry. The enquiry has been made jointly by CI of Schools (SSD) & DWO, Kandhamal. ON the other hand, the applicant was not present at the time of enquiry and she had left the School throwing a leave application to avoid the enquiry It is worthy to mention here that the engagement of the applicant is contractual and purely temporary. When she failed to discharge her duties smoothly and satisfactorily as per agreement, she has been disengaged from service for her gross negligence in duty and violation of Govt. instructions/terms of agreement.

5. That it is humbly submitted that since the engagement of the applicant is contractual and purely temporary, the principle of C.C.A Rules is not applicable to her and there was no necessity to frame charges against her before disengagement. When she violated the .

terms and conditions of the agreement, she was disengaged."

6. Having heard learned counsel for the parties and considering the submission made, this Court finds that Petitioner was engaged as a Matron on contractual basis vide Office Order dt.07.12.2015 so issued by Opp. Party No.2 under Annexure-1. It is the view of this Court that if some allegation was found against the petitioner on enquiry, in view of the provisions contained under Rule 9(6) of the 2013 Rules, Petitioner was required to be issued with the show-cause and by following the provisions contained under OCS (CCA) Rules, 1962, action could have been taken against the petitioner.

Placing reliance on the aforesaid provision so contained under Rule 9(6) of the 2013 Rules and the decision of this Court as cited supra, this Court is of the view that since the provisions contained under 9(6) of the 2013 Rules has not been followed, which is also not disputed, this Court is inclined to quash the office order dt.04.08.2017 so issued by Opp. Party No.2 under Annexure-7. While quashing the same, this Court directs Opp. Party No.2 to take a fresh decision by following the provisions contained under Rule 9(6) of the 2013 Rules. Such a fresh decision, as directed, be taken within a period of six (6) months from the date of receipt of this order.

With the aforesaid observation and direction, the Writ Petition is disposed of.

( BIRAJA PRASANNA SATAPATHY)

Judge Signed by: SANGITA PATRA sangita Reason: authentication of order Location: high court of orissa, cuttack Date: 03-Jul-2024 18:05:57

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