Orissa High Court
Sudam Maharana vs State Of Odisha & Ors. ....... Opp. ... on 22 November, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 4476 of 2017
Application under Articles 226 & 227 of Constitution of India.
---------------
Sudam Maharana ...... Petitioner
- Versus -
State of Odisha & Ors. ....... Opp. Parties
Advocate(s) appeared in this case:-
_________________________________________________________
For Petitioner : M/s. Prasanta Kumar Satapathy
& K.C. Panda, Advocates
For Opp. Parties : Mr. S.N. Pattnaik,
Addl. Government Advocate
_________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
nd
22 November, 2024
SASHIKANTA MISHRA, J.
The petitioner has approached this Court seeking the
following relief
"The petitioner, therefore, pray that your Lordships
would be graciously pleased to admit this writ petition,
call for the records and after hearing the parties allow
the same, issue writ/writs in the nature of
certiorari/mandamus and/or any other further
writ/direction, quashing the disengagement order dated
4.10.2014 passed by the Collector, Ganjam under
Annexure-1.
And further be pleased to direct payment of arrear
remuneration of the petitioner from the period Oct-2011
to Mar-2012 and Oct-2012 to June-2013 for an amount
of Rs.45,000/- during pendency of the writ petition."
2. The facts of the case, briefly stated, are that, the
petitioner after being selected was appointed as Gram Rozgar
Sevak under Arakhpur Gram Panchayat under Block
Development Officer of Purushottampur of Ganjam District. He
joined on 07.01.2008. He was assigned duties under the
MGNREGS Scheme and other kinds of work in the Gram
Panchayat. While he was working as such, a show cause notice
was issued to him on 29.11.2013 by the Project Director,
DRDA, Ganjam alleging that he had not performed his duties
satisfactorily and that he would be disengaged for the same.
The petitioner submitted his reply on 30.11.2013 specifically
explaining that he had done 327 person days before
15.06.2013 and as there was no feasible project in the Gram
Panchayat and the new proposal had been submitted for
approval, he could not render better performance. The
petitioner was called upon for personal hearing on 24.12.2013
by the Project Director, DRDA. He appeared and explained the
practical difficulties faced by him in providing employment to
job seekers of the Gram Panchayat and also indicated a plan of
action for accelerating the pace of work by providing
employment to the job seekers. The Collector, however, without
considering the ground realities and the explanation so
submitted, rejected the same and passed an order on
31.12.2013 disengaging him from the job of GRS. The
petitioner submitted a written prayer for reconsideration of the
disengagement order and to allow him to continue to work as
GRS. The Collector, considering the prayer of the petitioner
postponed the order of disengagement and allowed the
petitioner to continue as such. While the matter stood thus and
the petitioner was working, the Project Director, DRDA issued
an order on 04.10.2014 purportedly on the order of the
Collector disengaging him from the job of GRS. Said order was
not preceded by any show cause notice or any opportunity of
hearing. It is further stated that the petitioner despite working
had not received his legitimate dues from October, 2011 to
March, 2012 and from October, 2012 to June, 2013 for a total
amount of Rs.45,000/- till date. Same is reflected in the letter
of the BDO, Purushottampur addressed to the Project Director,
DRDA, Ganjam. On such facts, the petitioner has filed the writ
application with the prayer as quoted above.
3. Counter affidavit has been filed by the State- opposite
parties refuting the averments made in the writ application. It
is stated that the petitioner's performance was not satisfactory,
for which he was asked to show cause. His explanation was
found to be also not satisfactory. He was granted opportunity of
personal hearing and thereafter it was decided to disengage
him from service. On his prayer the order of disengagement
was postponed. Despite the same, he did not improve upon his
performance for which he was ultimately disengaged from
service. The explanation submitted by the petitioner is not
acceptable because, as a GRS he is supposed to be aware of the
duties and responsibilities cast upon him, which he did not
discharge to the satisfaction of the authorities. As regards the
unpaid remuneration dues, it is stated that the petitioner not
having performed his duties properly, he is not entitled to any
remuneration for the said periods. It is finally stated that the
order of disengagement was passed on justified grounds and
after affording due opportunity of hearing to the petitioner.
4. Counter affidavit has also been filed on behalf of the
opposite party No. 3. The counter averments of the State
opposite parties have been reiterated and the order of
disengagement has been sought to be justified on the same
grounds as highlighted by the State-opposite parties.
5. Heard Mr. P.K. Rath, learned Senior Council appearing
with Mr. P.K. Satapathy, learned counsel for the petitioner and
Mr. S.N. Pattnaik, learned Addl. Government Advocate for the
State.
6. Learned Senior Counsel Mr. Rath would assail the
impugned order of disengagement by submitting that the
Project Director, DRDA, Ganjam is not competent to issue the
order of disengagement in view of the Government instruction
dated 21.03.2013. He further argues that the Collector,
Ganjam has not provided opportunity of hearing to the
petitioner before issuing the order of disengagement dated
04.10.2013. Mr. Rath would further argue that the original
order of disengagement was passed on 31.03.2013 but it was
never given effect to and therefore, it must be deemed to have
been recalled. So if the authority wanted to disengage the
petitioner, it should have issued a fresh show cause notice and
granted opportunity of hearing before taking the drastic step.
Mr. Rath also argues that the petitioner's remuneration for the
periods in question could not have been withheld on the
ground of poor performance.
7. Mr. S.N. Pattnaik, learned State Counsel on the other
hand, would argue that the petitioner was asked to show cause
as to why he would not be disengaged for his poor performance.
He submitted his explanation, which was found to be
unsatisfactory. He was further granted opportunity of personal
hearing. The petitioner despite being granted such opportunity
could not satisfactorily explain his poor performance. As such,
the Collector decided to disengage him from service. The order
of disengagement was passed but was postponed as the
petitioner requested and assured that he would improve his
performance. Since the petitioner's performance was also not
found to be satisfactory, he was disengaged. On the so called
non-grant of remuneration, it is stated that the petitioner being
engaged as GRS, is required to create jobs in the Gram
Panchayat, which he miserably failed to do. As such, he is not
entitled to any remuneration for the period in question.
8. From the rival pleadings and contentions it appears,
the petitioner was asked to show cause on 29.11.2013, to
which he submitted his explanation on 30.11.2013. Perusal of
the show cause notice reveals that the petitioner was asked to
explain as to why he had only generated 327 number of person
days and that he would not be able to achieve the target for the
Gram Panchayat. The petitioner submitted his reply admitting
that he had done 327 person days before 15th June, 2013 but
there was no feasible project in the GP and new proposal had
been submitted for approval and after sanction of new proposal
the number of person days would be generated. The petitioner
appears to have been granted opportunity of personal hearing
by the Collector. It has been stated that he submitted the same
explanation in course of personal hearing. The Collector
however, did not accept the same and decided to disengage him
by order dated 31.12.2013. Said order dated 31.12.2013 does
not appear to have been acted upon inasmuch as the petitioner
was not disengaged but was allowed to continue in service
purportedly on his assurance of improving his performance.
The so-called postponement of the order of disengagement is
unknown to service jurisprudence. Either the person concerned
would be disengaged or he would be allowed to continue but
both cannot happen simultaneously. In the instant case the
Collector, after having passed the order dated 31.12.2013
disengaging the petitioner from service has nevertheless
allowed him to continue in service. This is completely
incongruous. This Court is therefore, of the considered view
that the order dated 13.12.2013 was impliedly recalled or
withdrawn or never acted upon and therefore, it carries no legal
sanctity. The Collector subsequently passed an order on
04.10.2014 referring to his earlier order and taking note of the
performance of the petitioner again decided to disengage him. It
is stated in the impugned order of disengagement that he had
helped generate only 3062 person days during 2013-14 and
only 264 person days during 2014-15. As already stated, the
earlier order of disengagement has no legal sanctity. Therefore,
if the Collector was not satisfied with the performance of the
GRS subsequently he should have been issued with further
show cause notice asking him to explain the poor performance
as reflected in the order of disengagement. As it appears, the
order of disengagement was not preceded by any show cause
notice or grant of opportunity of personal hearing. The earlier
show cause notice was on a different point altogether. Even
otherwise the explanation submitted by the petitioner in reply
to the earlier show cause notice has not been taken note of. Be
that as it may, fact remains that the impugned order of
disengagement dated 04.10.2014 was not preceded by any
show cause notice or grant of opportunity of personal hearing.
As such, such order becomes bad in law and cannot be
sustained.
9. As regards the non-payment of remuneration, it is seen
that by letter dated 18.09.2013, the BDO, Purushottampur
intimated the Project Director, DRDA that the remuneration for
the period from October, 2011 to March, 2012 and October,
2012 to June, 2013 i.e., for a period of 15 months amounting
to Rs.45,000/- was not paid to the petitioner on the ground of
poor performance. Nothing has been placed before this Court to
indicate that the payment of remuneration is definitely linked
to the performance of the GRS. It has not been further stated
that the petitioner has not rendered any work during such
period though it is stated that his performance is not up to
mark. If his performance was not up to the mark, action could
have been taken against him but if he has rendered work, there
is no way by which his remuneration could be withheld.
10. For the foregoing reasons therefore, this Court finds
that the action of the authorities in disengaging the petitioner
without granting him any opportunity of hearing cannot be
sustained in the eye of law. Further, withholding the
petitioner's remuneration for 15 months is also entirely
unjustified and not acceptable in law.
11. In the result, the writ petition is allowed. The
impugned order of disengagement under Annexure-1 is hereby
quashed. The authorities are directed to reinstate the petitioner
in service forthwith. He shall however not be entitled to any
financial benefits for the period between his disengagement and
reinstatement on the principle of no work no pay. Further, the
authorities are directed to release his unpaid remuneration for
the period indicated hereinbefore without any further delay and
in any case, not later than two months from the date of
production of certified copy of this order.
.................................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack.
The 22nd November, 2024/ A.K. Rana, P.A.
Designation: PERSONAL ASSISTANT
Date: 25-Nov-2024 12:09:10
