Orissa High Court
Alok Kumar Nayak vs State Of Odisha And Others ........ Opp. ... on 24 April, 2025
Author: M.S. Sahoo
Bench: M.S. Sahoo
A.F.R. IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No. 26103 of 2017
An application under Articles 226 and 227 of the Constitution
of India.
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Alok Kumar Nayak ........ Petitioner
-Versus-
State of Odisha and others ........ Opp. Parties
For Petitioner : Mr. P.C. Mohapatra, Advocate
For Opp.Parties : Mr. D. Mohanty, AGA
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE M.S. SAHOO
Date of hearing and judgment : 24.04.2025
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M.S.SAHOO, J.
1. The petitioner entered into an agreement to work as a
Computer Programmer with his employer District Rural
Development Agency, Kandhamal represented by O.P.
No.3 along with opposite parties 4 and 5. The agreement
contained the following clause:
"The post of Computer Programmer may be
terminated every year on 28th February AN and
renewed from 2nd March in such a manner that
there is one day break on March every year
subject to their satisfactory performance."
2. The issue boils down to petitioner's challenge to his
disengagement by letter dated 13.01.2017 issued by the
Collector and Chief Executive Officer (CEO), District Rural
Development Agency, (DRDA), Kandhamal (O.P. No.3)
under the Government of Panchayatraj Department.
3. Learned counsel for the petitioner submits that the
petitioner was terminated every year on 28th February,
2013, 2014, 2015 and 2016. Re-engaged on 1st March,
2013, 2014, 2015 and 2016. He was disengaged on 13th
January, 2017 and not re-engaged thereafter. It is
submitted that the disengagement of the petitioner was
purportedly for the reason that he did not report to duty
on 5th December, 2016. The apparent reason has been
disclosed in the letter dated 13.01.2017 which refers to
the letter of Block Development Officer (BDO),
Tumudibandha (O.P.No.5) dated 16.12.2016 which
indicated that after postponement of mass strike by the
computer programmers, the petitioner did not report for
duty by 05.12.2016.
4. The learned Additional Government Advocate
appearing for the opposite parties supports the
disengagement order, inter alia, on the grounds that the
petitioner's engagement is contractual as per the
agreement entered into between the employer and the
petitioner, i.e., Annexure-1. The learned AGA refers to
the counter affidavit, particularly in response to the
application of the petitioner dated 05.12.2016 annexed to
the writ petition marked as Annexure-3. It encloses the
outdoor ticket of MKCG Medical College & Hospital,
Berhampur. The outdoor ticket indicates the following :
03-Orthopedic OPD Card No. 21176685, Registration
No.030133, dated 5th December, 2016, countersigned by
the doctor consulted at the OPD, giving the details of the
provisional diagnosis, advice regarding further medical
examination to be undertaken, medicines to be taken and
also the advice "Rest to (L) upper limb for one month". The
said annexure encloses the leave application of the
petitioner dated 05.12.2016. The leave application
encloses copy of the printout of electronic-mail (e-mail)
sent from petitioner's e-mail id : [email protected] to e-
mail [email protected]. and Ashok Gouda
[email protected]. The e-mail also shows the two
attachments i.e., images in jpg format of the leave
application dated 05.12.2016 and the outdoor ticket of
MKCG Medical College and Hospital as described in detail
above.
5. The learned AGA refers to paragraphs-8, 9, 10 and
15 of the counter affidavit. Perusal of paragraph-8 of the
counter affidavit would indicate that the averments made
in paragraph-4 of the writ petition regarding forwarding of
the leave application enclosing the OPD ticket as well as
e-mail are denied by stating : "... no such leave application
has ever been received in the office of the opposite party
no.5..."
The learned AGA then submits that the Collector had
disengaged the petitioner and he was not disengaged by
the Block Development Officer.
6. Paragraph-9 of the counter affidavit indicates that
the disengagement was pursuant to the letter dated
03.12.2016 passed by the Director opposite party no.2
(Annexure-2). Further paragraph-10 of the counter
affidavit goes to show that the disengagement order was
issued on 13.01.2017 referring to the order of the Director,
Panchayatraj dated 03.12.2016 regarding postponement
of the mass strike by the Computer Programmers and
resumption of duty on 05.12.2016.
7. On perusal of the averments made in the counter of
the O.Ps. it is seen that whether the e-mail was received
by the addressee, whether the e-mail id is correct have not
been answered/mentioned or disputed in the counter. The
denial is regarding receipt of the leave application and in
fact without any statement denying receipt of the e-mail
with attachments. In considered opinion of this Court
nothing turns on the averments of the opposite party no.5
that the leave application was never received in absence of
any denial or dispute regarding the e-mail sent by the
petitioner. It has to be also noticed the petitioner was
himself working as computer programmer of the
organization handling e-mail of the organization, he is
aware of e-mail id etc.
8. Further, the disengagement of the petitioner was
attributed to he not joining duty on 05.12.2016 which is
also the stand of the opposite party no.5 in paragraph-9 of
the counter and also the reasoning given in the order
dated 13.01.2017 of the Collector and CEO.
9. The order dated 13.01.2017 issued by the Collector
and CEO, DRDA refers to the report of the Block
Development Officer that the petitioner did not join duty
on 05.12.2016 after resumption of work as the mass strike
by the computer programmers was called off. Further, it
refers to the Government in Panchayatraj Department
letter dated 03.12.2016 (Annexure-2) which had provided
"In view of the above, if the Computer Programmers do not
report to their duty on or before 5th December 2016, you are
hereby directed to terminate their services with immediate
effect."
The said letter of the Government dated 03.12.2016
was addressed to all the Collectors with copies to all the
Block Development Officers for information and necessary
action. The BDO following that letter had issued the report
to the Collector on 06.12.2016 enclosed to the counter
marked as Annexure-B/5 which indicates the following :
" In inviting a reference to the letter on the subject
cited above, I am to say that Sri Alok Kumar
Nayak, C.P. of this office who is on mass strike has
not reported to duty till 5th December, 2016. Due to
his prolonged absence, the day to day work of the
Block has received a serious setback during this
peak working season."
10. Since absence from duty on 05.12.2016 till he joined
in January, 2017 is also the case of the petitioner, now it
remains to be seen whether he had valid reasons to
remain absent, whether the reasons are justifiable and
lastly whether the authorities while passing the order have
dealt with the said aspect.
11. The leave application was sent by e-mail along with
the outdoor ticket of the MKCG Medical College which
contains details of the treatment, the provisional
diagnosis, further advice. The e-mail dated 05th
December, 2016 was sent at 14.03 hours by g-mail, with
subject 'unable to resume duty' addressed to the e-mail
ids [email protected]. and [email protected]
along with the two attachments, i.e. the OPD/outdoor
ticket, outpatient's department ticket, OPD ticket and the
leave application.
The Civil Procedure Code O.5 Rule-9:Sub Rule-3,
after 1999 amendment recognizes service of summons by
electronic mail service. Taking a cue it has to be held that
the electronic mail (e-mail) containing leave application
and hospital outdoor ticket as attachments, was duly sent
as the opposite parties have not disputed or denied such
e-mail.
12. In considered opinion of this Court, the petitioner
had just and sufficient reasons not to be able to join on
05.12.2016 and remain on leave having suffered fracture
of lateral end of clavicle (left collar bone) and was further
advised rest to left upper limb for one month. The reasons
are sufficient, on medical grounds to remain on leave with
effect from 5.12.2016. The authorities failed to take into
consideration this relevant aspect when they took a
decision to disengage the petitioner from service. As the
events have unfolded thereafter, the disengagement order
was issued on 13.01.2017 which has been served by the
process server on 20.1.2017 as contended by the opposite
party referring to document annexed to the counter
affidavit marked as Annexure-C/5 which contains
endorsement in Oriya made by the server who served on
the petitioner.
13. In view of the finding that the petitioner had
sufficient reasons on medical ground not to resume duties
on 05.12.2016, which was not taken into consideration by
the authorities the disengagement order dated 13.01.2017
is set aside and quashed. The order dated 17.06.2017
(Annexure-6) being a consequence of order dated
13.01.2017, issued rejecting the representation of the
petitioner to reengage him is also set aside and quashed.
14. As a consequence of setting aside of the order dated
13.01.2017 as well as the consequential order dated
17.06.2017, the petitioner, if makes any application for
re-engagement, same shall be considered without being
any way influenced with the earlier orders which have
been set aside by this judgment.
15. The writ petition is allowed and disposed of with the
aforesaid observations. In the facts and circumstances of
the case there shall be no orders towards costs. Ordered
accordingly.
(M.S.Sahoo)
Judge
Orissa High Court, Cuttack
The 24th April, 2025/dutta/Gs
Signed by: AJIT KUMAR DUTTA
Reason: Authentication
Location: ohc
Date: 06-May-2025 20:08:39
