Orissa High Court

Anjan Kumar Jaysingh vs State Of Odisha And Others ... Opp. ... on 1 October, 2024

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

            IN THE HIGH COURT OF ORISSA AT CUTTACK
                      W.P (C) No. 4492 of 2015

    An application under Sections226 and 227 of the Constitution of
    India)

                          ---------------
      Anjan Kumar Jaysingh ...                        Petitioner

                            -Versus-

      State of Odisha and Others ...                Opp. Parties

      Advocate(s) appeared in this case:-
      _______________________________________________________
           For Petitioner   : Mr.B. Routray, Sr. Advocate
                              S. Das, R.P. Dalai, S.K. Samal
                              S.P. Nath, S.D. Routray, S. Jena
                                            Advocate

           For Opp. Parties : Mr. A.R. Dash,
                            [Additional Government Advocate]

      _______________________________________________________
      CORAM:
             JUSTICE SASHIKANTA MISHRA

                              JUDGMENT

st 1 October, 2024 SASHIKANTA MISHRA, J.

1. This is an application filed by the petitioner for

amendment of the writ petition to insert fresh averments

and a further prayer as per the schedule.

2. Learned State Counsel has no serious opposition to

the prayer being allowed. As such, the application for

amendment is allowed.

3. Consolidated writ petition is filed in the Court after

serving copy on the State Counsel. On request of the

parties, the matter is taken up for final disposal.

4. The I.A is disposed of.

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

(Sashikanta Mishra) Judge

1. Pursuant to an advertisement issued in the year

2011 for appointment of Sikshya Sahayaks, the petitioner

submitted his application and was also duly selected. He

joined pursuant to engagement order issued by the

Collector-cum-CEO, Zilla Parishad, Khordha on

05.12.2011 and was posted at Sankarpur Primary School

of Bargarh Block. An FIR came to be lodged against the

petitioner in Bargarh police station being P.S. Case

No.115 of 2014 for the alleged commission of offences

under Sections 143/147/148/294/323/324/307/

506/149 IPC. Several other persons were also implicated

in the said case. It was alleged by the informant therein

that on 07.10.2015, the accused persons being armed

with deadly weapons formed an unlawful assembly and

abused him in obscene language and also assaulted him

by means of a farsa with a common object. After

registration of the FIR, the petitioner was arrested and

taken into custody on 29.10.2014. He remained in

custody till 01.11.2014 when he was released on bail. The

fact of submission of FIR was brought to the notice of the

Director, OPEPA by one Bijaya Kumar Pradhan. Though

no action was taken on such letter of Bijaya Kumar

Pradhan yet, the petitioner was not allowed to discharge

his duties purportedly on the basis of a letter issued by

the Collector to the Additional Director (General), OPEPA.

The petitioner submitted representation to the Collector

for permitting him to discharge his duty. On 28.11.2014,

the District Project Coordinator, Khordha sought for

clarification from the State Project Co-coordinator,

whether the petitioner being engaged as Sikshya Sahayak

on contractual basis can be allowed to resume his duty,

since he had been in custody for more than 48 hours.

While the matter stood thus, the Collector-cum-CEO

issued a show-cause notice dated 10.03.2015 asking the

petitioner to explain as to why his engagement as

Shikshya Sahayak shall not be terminated for violation of

the Government Rules and terms and conditions

mentioned in the annual agreement. At this stage, the

petitioner approached this Court in the present writ

petition impugning the said shows-cause notice seeking a

direction to allow the petitioner to discharge his duty as

Shikshya Sahayak. In course of pendency of the writ

petition, the petitioner was permitted to amend the writ

petition as well as the prayer made therein to seek

quashment of the show-cause notice dated 10.03.2015.

2. The stand of the opposite parties as reflected in the

counter is that as per the Odisha Service Code, a

Government servant, who is detained in custody under

any law providing for preventive detention or as a result of

proceeding either on a criminal charge or for his arrest for

debt shall, if the period of detention exceeds 48 hours and

unless he is already under suspension, be deemed to be

under suspension from the date of detention until further

orders as contemplated in the CCS (CCA) Rules. Since the

petitioner remained in custody from 29.10.2014 to

01.11.2014 in connection with the criminal case, the

show-cause was rightly issued.

3. Heard Mr. B. Routray, learned Senior Counsel with

Mr. S. Sekhar, learned counsel for the petitioner and

Mr. A.R. Dash, learned Additional Government Advocate

for the State.

4. Mr. Routray, learned Senior Counsel would argue

that merely because a criminal case was registered

against the petitioner and he was taken to custody in

connection therewith does not mean that he was convicted

in the said case, since the case has not been concluded as

yet. Furthermore the criminal case arose out of a purely

private dispute not connected in the least with the

petitioner's official work as Shikshya Sahayak.

Mr. Routray has relied upon a judgment passed by a

learned Single Judge of this Court in the case of

Chandrahasya Patel v. State Of Orissa and Others

(WPC No.25685 of 2017), which was confirmed by a

Division Bench of this Court in W.A. No.185 of 2018,

Citing these judgments Mr. Routray would argue that the

impugned action of issuing a show cause and also

preventing the petitioner from discharging his duties only

because of pendency of the criminal case is contrary to

law and otherwise unjustified.

5. Mr. Dash, learned State Counsel would submit that

the writ petition is premature inasmuch as only show

cause notice has been issued but no action as yet has

been taken against the petitioner to terminate his

engagement. That apart, being a Shikshya Sahayak, he is

expected to conduct himself appropriately as otherwise it

would have an adverse impact on the students. Since the

petitioner is alleged to have been involved in a criminal

case involving physical assault, the impugned show cause

was rightly issued against him.

6. After hearing learned counsel for the parties and on

going through the materials available on record, this

Court firstly observes that there is no such provision in

the order of engagement issued to the petitioner or in the

agreement signed by him at the time of his engagement to

the effect that mere involvement in a criminal case would

lead to termination of his service. Even otherwise, this

Court finds that the criminal case instituted on the basis

of the FIR has not been concluded as yet. Therefore, as

per criminal jurisprudence, the petitioner cannot, at least

at this stage, be held to be guilty of the alleged offences.

Even otherwise, this Court, upon reading of the FIR finds

that the allegations are entirely private in nature having

no nexus whatsoever with his engagement as Shikshya

Sahayak. In the case decided by the Division Bench in

W.A. No.185 of 2018, the following was held:-

"5. The learned Single Judge held and in view of the Court rightly that the said Circular had no application to the case on hand since Respondent No.1 was taken into custody on the basis of a complaint by a private individual and the case in which he was imprisoned had nothing to do with his engagement whatsoever. Learned counsel appearing for the appellant is unable to explain to this Court why the learned Single Judge was wrong in coming to the above conclusion.

6. Before the learned Single Judge reliance was sought to be placed on another letter dated 5 th December, 2012 in terms of which a non- performing GRS could be disengaged under Section 25 of the MGNREGS Act, 2005. That provision contemplates contravention of a provision of that Act in order to attract penalty. As rightly pointed out by the learned Single

Judge, there is no charge against Respondent No.1 that he violated Section 25 of the MGNREGS Act and therefore, that provision also had no application to the facts on hand.

7. The learned Single Judge had already observed that it will always be open to the Appellant to take appropriate action depending on the outcome of the criminal case. The Court is informed that the criminal case is still pending."

7. The facts of the present case are almost identical to

the facts of the case decided by the Division Bench. This

Court therefore, has no hesitation in applying the ratio

decided therein to the present case.

8. As regards the relief claimed by the petitioner, this

Court is conscious of the fact that no order of

disengagement as mentioned in the impugned show cause

notice has yet been passed. The petitioner has been

continuing on the strength of an interim order passed by

this Court. Since law has been laid down to the effect that

a person cannot be thrown out of engagement merely

because of involvement in a criminal case not related to