Santosh Kumar Beja And Others vs State Of Odisha And Others ... Opposite ...
2025 Latest Caselaw 7086 Ori

Orissa High Court

Santosh Kumar Beja And Others vs State Of Odisha And Others ... Opposite ... on 16 April, 2025

Author: Aditya Kumar Mohapatra

Bench: Aditya Kumar Mohapatra

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                            W.P.(C) No.9617 of 2024

   In the matter of the application under Article 226 of the Constitution of
   India.

          Santosh Kumar Beja and others ...                      Petitioners

                                          - Versus -



          State of Odisha and others                    ...      Opposite Parties

   Advocate(s) appeared in this case:-
   ---------------------------------------------------------------------------------------

                  For Petitioners               ...       Ms. Saswati Mohapatra



                  For Opposite Parties          ...       Mr. Unmesh Chandra Jena,
                                                        Additional Standing Counsel.

---------------------------------------------------------------------------------------

PRESENT:

THE HONOURABLE SHRI JUSTICE ADITYA KUMAR MOHAPATRA

Date of hearing - 26.03.2025 :: Date of judgment - 16.04.2025

Aditya Kumar Mohapatra, J. By filing the present writ petition, the

Petitioners calls in question the validity and legality of orders dated

16.08.2024 passed by the Opposite Party No.2-Director General

and Inspector General of Police, Odisha under Annexure-6 Series.

Further, the Petitioners have prayed for a direction to the State-

Opposite Parties to reinstate them in service in their respective

posts by quashing the respective termination orders.

2. Learned counsel for the Petitioners, at the outset, contended

that the Petitioners were appointed to the posts of contractual

Class-IV employees, which were created in lieu of regular posts

under the administrative control of Opposite Party No.4. While

continuing in service on contractual basis, notices were issued to

the Petitioners and similarly situated many other persons on

18.07.2012 under Annexure-3 to the writ petition calling upon the

Petitioners to show cause with regard to the allegation made against

the Petitioners that by defying the authority of the superiors they

have participated in a protest organized by the contractual

employees association. Such show cause reply was directed to be

filed by 30.07.2012. It appears that the Petitioners submitted their

reply to the show cause notice. However, with effect from

13.09.2012, the Petitioners were not allowed to enter into the SOG.

Learned counsel for the Petitioners, at this juncture, contended that

w.e.f. 13.09.2012, the Petitioners were discharged from contractual

service by order of the Opposite Party No.4. In respect of the

Petitioner No.1, the discharge order has been appended as

Annexure-4 to the writ petition. So far as the other Petitioners are

concerned, learned counsel for the Petitioners contended that in

their cases, the discharge orders were not even communicated to

them.

3. Learned counsel for the Petitioners, further referring to the

order under Annexure-4, contended that the same reveals that the

Petitioner No.1 was appointed as a 'Barber' in the SOG on

contractual basis on 15.11.2008. At the time of his joining, he had

submitted an undertaking wherein he had agreed to serve at any

location in the State without any compensatory allowances except

for the contractual remuneration and not to claim any regular scale

of pay and other allowances. Further, an undertaking was given by

the said Petitioner No.1 to the effect that he shall not join or

participate in any private or service association and that his further

continuance would depend upon the satisfactory performance of his

duties.

4. She further contended that on 16.08.2012, it is alleged that

the Petitioners had gone to attend a peaceful Dharana, which was

conducted at lower PMG, Bhubaneswar, along with other Class-IV

employees, who had organized a demonstration due to the non-

fulfillment of their demands by the State Government.

Furthermore, there is no evidence on record that the present

Petitioners had participated in such demonstration. However, the

Opposite Party No.4, without considering the show cause reply of

the Petitioners, passed an order of disengagement against the

Petitioners on 13.09.2012. Being aggrieved by such conduct of the

Opposite Parties in disengaging the Petitioners from contractual

service, the Petitioners have approached this Court by filing the

present writ petition.

5. In course of her argument, learned counsel for the Petitioners

further contended that earlier the Petitioners had approached this

Court by filing W.P.(C) Nos.41630 of 2023, 953 of 2024, 424 of

2024 and 157 of 2024, which were disposed of by this Court vide

order dated 02.01.2024, 24.01.2024, and 17.01.2024 respectively

by directing the Opposite Party No.2 to dispose of the

representation of the Petitioners within a period of eight weeks by

passing a speaking and reasoned order.

6. After disposal of the above noted writ petitions, the

Petitioners approached the Opposite Party No.2 along with a copy

of the order dated 02.01.2024, 24.01.2024 and 17.01.2024. The

Opposite Party No.2, vide his order dated 16.08.2024 under

Annexure-6 Series, rejected the representation of the Petitioners.

Further, referring to the impugned rejection order dated 16.08.2024

under Annexure-6 Series, learned counsel for the Petitioners further

contended that the representations have been rejected basically on

two grounds, firstly, the Petitioners had given an undertaking

pursuant to Home Department Letter dated 18.01.2007 wherein

they agreed not to join or participate in any private or service

association and that their continuance in the said post was subject

to their satisfactory performance which is to be evaluated by the

appropriate authority. Secondly, despite re-call notice to resume

their duties by 27.08.2012, the Petitioners did not resume their duty

and remained absent for more than 15 (fifteen) days without any

intimation or prior permission from the competent authority and,

accordingly, the Petitioners were discharged from contractual

service w.e.f. 10.09.2012 in accordance with the Government of

Odisha, Finance Department O.M. No.23689/F dated 23.06.2012.

7. Learned counsel for the Petitioners further submitted that the

Petitioners were discharged from service by referring to the

aforesaid O.M. dated 23.06.2012 of the Finance Department of

Government of Odisha. She further contended that the aforesaid

O.M. was the subject matter of dispute before this Court in an

identical case of Ramesh Sahoo v. State of Odisha and others

(W.P.(C) No.7612 of 2019, which was decided vide judgment

dated 28.10.2022 by a Division Bench of this Court).

8. The factual scenario of the present case, as stated by the

learned counsel for the Petitioners, is almost identical to the factual

matrix involved in Ramesh Sahoo's case (supra). She further

contended that in the aforesaid judgment, while testing the validity

of the O.M. of the Finance Department dated 23.06.2012, the

Hon'ble Division Bench has categorically arrived at a conclusion

that the words "automatic termination/discharge from service" is

unknown to the service jurisprudence. Moreover, such a practice is

not in conformity with the principles of natural justice.

Accordingly, in para-15 of the judgment, the Hon'ble Division

Bench has declared the Memorandum dated 23.06.2012, under

Annexure-8 to that writ petition, to be ultra vires to Articles 14 and

16 of the Constitution of India. Therefore, the order passed by the

Tribunal which was under scrutiny by the Division Bench was

confirmed and the order of termination/discharge passed by the

authority was quashed.

(Underlined portion emphasized)

9. Learned counsel for the State, on the other hand, referring to

the counter affidavit filed by the Opposite Parties No.1 to 4,

contended that the Opposite Party No.2 has not committed any

illegality in discharging the Petitioners from contractual service by

virtue of order dated 13.09.2012. The case of the Opposite Parties

is that the Petitioners were appointed on temporary and contractual

basis only and, as per their appointment letters, their services are

liable to be terminated at any time. It was also contended that at

the time of joining the Petitioners have given an undertaking to the

effect that they will not join or participate in any private or service

association and their further continuance in the service shall be

subject to satisfactory performance of their duties and that they will

not claim any regular scale of pay.

10. Learned counsel for the State further contended that the

Petitioners had absconded from duty on 16.08.2012 for sitting on

"Dharana" at lower PMG, in order to stage a demonstration against

the Government and formed an illegal association of contractual

employees with other supporting staffs of SOG, Chandaka,

Bhubaneswar without any prior permission from the competent

authority. Thus, the learned counsel for the State contended that

such conduct of the Petitioners violates the terms and conditions of

contractual service as enumerated in the guideline of the

Government of Odisha vide letter dated 18.01.2007.

11. Learned counsel for the State further contended that since the

Petitioners, despite repeated oral intimations and recall notices

dated 27.08.2012, failed to resume their duty, the Opposite Parties

have very rightly and lawfully issued the notice under Annexure-3

requiring them to file their reply to the show cause. Furthermore,

since the conduct of the Petitioners are contrary to the service

conditions agreed upon by the Petitioners and the Petitioners

having remained absent for more than 15 days continuously, they

were liable to be removed from service pursuant to the Finance

Department O.M. No.23689/F dated 23.06.2012.

12. In para-6 of the counter affidavit, the State-Opposite Parties

have referred to the Finance Department O.M. dated 23.06.2012

and heavily relied upon the said O.M. to justify their conduct in

discharging the Petitioners from duty. On the aforesaid grounds,

learned counsel for the State contended that the Opposite Parties

have not committed any illegality by first disengaging the

Petitioners by virtue of the order under Annexure-4 to the writ

petition, and thereafter by rejecting the representation of the

Petitioners vide order dated 16.08.2024 under Annexure-6 Series to

the writ petition. Accordingly, it was prayed that the present writ

petition is devoid of merit and, as such, the same is liable to be

dismissed.

13. Heard Ms. Saswati Mohapatra, learned counsel for the

Petitioners as well as the learned Additional Standing Counsel

appearing for the State-Opposite Parties. Perused the pleadings of

the respective parties as well as the materials placed on record for

examination by this Court.

14. Having heard the learned counsels appearing for the

respective parties and on a careful examination of the factual

background of the case as well as the materials on record, this

Court observes that the issue that is required to be decided in the

present writ petition is as to whether the conduct of the Opposite

Party No.4 in disengaging the Petitioners from contractual service,

vide order dated 13.09.2012 under Annexure-4 to the writ petition,

and subsequent dismissal of the representation of the Petitioners

vide order dated 16.08.2024, under Annexure-6 Series to the writ

petition, is legally sustainable or not?

15. On a perusal of the impugned discharge order under

Annexure-4, it is observed that the Opposite Parties have

categorically mentioned that the Petitioners absconded on

16.08.2012 from the headquarters to sit on a 'Dharana' along with

other Class-IV employees at lower PMG to stage a demonstration

against the Government. Accordingly, the Opposite Parties have

come to a conclusion that the Petitioners had formed an illegal

association contrary to the contractual conditions agreed upon by

the Petitioners at the time of their entrance into service. Moreover,

such participation was without permission from the higher

authorities. The impugned order further reveals that despite notice

by the concerned authorities, the Petitioners did not resume their

duties by 27.08.2012. Thus, the Opposite Party No.4 has come to a

conclusion that such conduct of the Petitioners amount to serious

misconduct and insubordination.

16. Moreover, the impugned order of disengagement of the

Petitioners does not reveal that the Petitioners were given an

opportunity of hearing or filing any show cause by the Opposite

Parties. Such order does not also reveal that the aforesaid action

was taken pursuant to the O.M. of Finance Department dated

23.06.2012, even though such ground has been taken by the

Opposite Party No.2 while rejecting the representation of the

Petitioners under Annexure-6 to the writ petition. With regard to

the validity of the O.M. dated 23.06.2012, before the same is

examined, the above-mentioned O.M is quoted hereinbelow for

better appreciation:-

"GOVERNMENT OF ODISHA FINANCE DEPARTMENT

No.23689/F Date - 23.06.2012 OFFICE MEMORANDUM Sub: Entitlement of Contractual appointees to Casual Leave.

Persons engaged on contractual basis and guided by Finance Department Office Memorandum No.40545/F dt. 29.08.2009 are extended with the following benefits.

(i) Contractual employees shall be eligible (subject to exigencies of public service) for special leave of 10 days at the maximum during the period of engagement for one year. The leave will not be carried over to the next year and will lapse on completion of each year of service.

(ii) Unauthorised absence for a continuous period of 15 days or more will automatically terminate his/her engagement.

(iii) Female contractual employees, who are married and have less than two surviving children would be eligible to get the benefit of absence from duty on

maternity ground in terms of Finance Department Circular No.12383/F dt. 31.3.12.

It is, however, clarified that persons engaged through outsourcing shall be guided by the terms and conditions contained in this agreement between the employer and the service provider.

Sd/-

Principal Secretary to Government"

17. In the context of aforesaid O.M., this Court would like to

record that the said O.M. has been declared to be ultra vires to

Articles 14 and 16 to the Constitution of India by a Division of this

Court in Ramesh Sahoo's case (supra). Since such judgment of

the Division Bench has attained finality, the O.M. dated 23.06.2012

no more exists in the eye of law. Therefore, the same cannot be

relied upon by the Opposite Parties to defend their conduct in

discharging the Petitioners from duty, as has been done under

Annexure-4 to the writ petition.

18. Additionally, similarly situated employees, who had

participated along with the Petitioners and sat in Dharana along

with the Petitioners, have been taken back in service subsequently

and only a handful of persons like the Petitioners have been left

out. Moreover, on perusal of the counter affidavit, it is observed

that the Assistant Commandant, SOG, Bhubaneswar, on

17.08.2012, submitted a list to the Commandant, SOG,

Bhubaneswar indicating therein the name of the persons who are

involved in such in-disciplinary activities. It is further reveals that

out of a total strength of 271 menials (Cook, Visty, FO. Dhobi,

Barbar, Daftari), 37 persons were found to be unauthorizedly

absent. The name of the Petitioners along with the above named

Ramesh Sahoo appeared in the said list. However, similarly

situated persons including the above named person, who were

disengaged from service, have been reinstated in service and

subsequently their services have also been regularized.

19. On perusal of the order dated 16.08.2024, this Court further

observes that the same has been passed pursuant to the orders dated

02.01.2024 and 24.01.2024 passed by this Court in W.P.(C)

No.41630 of 2023 and W.P.(C) No.953 of 2024 respectively. The

Opposite Party No.2, while rejecting the representation of the

Petitioners, has relied upon the O.M. dated 23.06.2012 of the

Finance Department of the Government of Odisha, as has been

mentioned hereinabove. As has been alreadt established, the

aforesaid O.M. has been declared to be ultra vires to Articles 14

and 16 of the Constitution of India. Therefore, it was not open to

the Opposite Party No.2 to refer the aforesaid O.M., which has

already been declared ultra vires by this Court and eventually

quashed. Therefore, the main plank of order dated 16.08.2024 gets

demolished.

20. Furthermore, similarly situated persons like the Petitioners

who were in the same list having identical allegations against their

name have already been reinstated in service in the meantime. The

factual backdrop of the cases of the persons who have been

reinstated in service are almost identical to the case of present

Petitioners. Therefore, treating the Petitioners differently would be

discriminatory and, as such, would fall foul of Article 14 of the

Constitution of India.

21. In view of the aforesaid analysis of the factual position,

further keeping in view the fact that O.M. dated 23.06.2012 has

already been declared ultra vires and has been quashed, and

similarly situated persons including one Ramesh Sahoo, whose case

has already been referred to hereinabove, have been reinstated in

service even though they were disengaged along with the present

Petitioners, this Court is of the view that the impugned orders

disengaging the present Petitioners vide order dated 13.09.2012,

under Annexure-4, as well as the subsequent rejection of their

representation vide order dated 16.08.2024, under Annexure-6

Series to the writ petition, are legally unsustainable. Moreso, if

those orders are allowed to stand, then same would cause

discrimination against the Petitioners and would amount to

arbitrary conduct resulting in violation of Articles 14 and 16 of the

Constitution of India. Therefore, this Court has no hesitation in

quashing the impugned orders under Annexures-4 and 6 Series.

Accordingly, the same are hereby quashed. The writ petition stands

allowed.

22. The Opposite Parties are directed to reinstate the Petitioners

in service. Since the Petitioners were in contractual service, the

Opposite Parties shall do well to engage them on contractual

service. Further, with regard to the remuneration for the period for

which the Petitioners remained out of service, this Court is of the

view that since the Petitioners were on contractual service and they

have not performed any duty, they are not entitled to regular

wages/remuneration. However, taking into consideration the

conduct of the Opposite Parties in not reinstating the Petitioners

along with other similarly situated persons, this Court directs the

Opposite Parties to pay a lump sum compensation amount of

Rs.50,000/- to each of the Petitioners for the aforesaid period. It is

further directed that the period of disengagement of the Petitioners

shall be taken into consideration towards continuity of their service

and for the purpose of calculation of all other service benefits.

23. With the aforesaid observation and direction, the writ petition

stands allowed. However, there shall be no order as to costs.

(AdityaKumarMohapatra) Judge

Orissa High Court, Cuttack The 16th April, 2025/Debasis Aech, Secretary