Orissa High Court
Dr. Purusottam Swain vs State Of Odisha And Others . Opposite ... on 18 August, 2025
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.33349 of 2024
An application under Articles 226 & 227 of the Constitution of India
Dr. Purusottam Swain . Petitioner
Mr. Budhadev Routray, Senior Advocate
along with
Mr. S. Routray, Advocate
-versus-
State of Odisha and others . Opposite Parties
Mr. Dayanidhi Lenka,
Additional Government Advocate
CORAM:
THE HON'BLE MR. JUSTICE A.K. MOHAPATRA
Date of hearing : 24.04.2025 | Date of Judgment : 18.08.2025
A.K. Mohapatra, J. :
1. The present Writ Petition has been filed by the Petitioner
challenging the impugned office order dated 29.12.2024 under Annexure-
6 to the Writ Petition passed by the Opposite Party No.4-the Dean &
Principal, Maharaja Krishna Chandra Gajapati, Medical College and
Hospital, whereby the service of the Petitioner has been terminated with
immediate effect on disciplinary ground. The Petitioner has prayed for
quashing of the impugned order of termination dated 29.12.2024, under
Annexure-6, and for reinstating him in service with all service and
financial benefits.
FACTUAL MATRIX OF THE CASE
2. The factual background of the present case, as culled out from the
pleadings of the respective parties filed before this Court, including the
Counter Affidavit filed by the Opposite Party No.4-the Dean & Principal,
Maharaja Krishna Chandra Gajapati, Medical College and Hospital, in
gist is as follows; the Petitioner, who is a Medical Officer of the OMHS
cadre, was appointed as Assistant Professor, Orthopedic on deputation/
contractual basis vide office order dated 22.07.2024 under Annexure-3 to
the Writ Petition. Following such appointment, the Petitioner joined in his
service at the Maharaja Krishna Chandra Gajapati, Medical College and
Hospital (hereinafter referred to as "MKCG MCH"). While the Petitioner
was continuing in his service, there was some physical disturbance in the
canteen of the hostel in the PG campus, on the mid night of 20.12.2024
(i.e. in the early hours of 21.12.2024) involving the Petitioner, one
Dr.Rajinikanth and several others. Following such incident
Dr.Rajinikanth has made allegations of physical assault against the
Petitioner and some other persons. Consequently, based on such
allegations, the College Council Committee conducted disciplinary
proceedings on 23.12.2024. Thereafter, the office order dated 29.12.2024,
under Annexure-6 to the Writ Petition, was issued pursuant to the
decision taken in the College Council Meeting held on 23.12.2024 and
the communication received by the D.M.E.T, Odisha vide letter
No.25143 dated 27.12.2024, wherein the service of the Petitioner along
with three others were terminated with immediate effect on disciplinary
grounds. The petitioner, upon being aggrieved by such an order of
termination, has approached this Court by filing the present Writ Petition
with the prayer as mentioned hereinabove.
CONTENTIONS OF THE PETITIONER
3. Heard Mr.Budhadev Routray, learned Senior Counsel along with
Mr.S.Routray, learned Counsel, appearing for the Petitioner. It is the
Petitioner‟s stance that the impugned order of termination dated
29.12.2024, under Annexure-6 to the present Writ Petition, is bad in law
and that his termination from service suffers from the latches of non-
adherence to applicable guidelines and the principles of natural justice.
4. The Learned Senior Counsel for the Petitioner, at the outset
submitted that the Petitioner was initially appointed pursuant to the Office
Order No.5534 dated 22.05.2024 issued by the Opposite Party No.4,
under Annexure-2. Referring to the aforesaid order of appointment of the
Petitioner, the Learned Senior Counsel for the Petitioner submitted that it
can be clearly seen from the said order that that the Petitioner‟s service is
governed as per the Govt. Resolution No.8967/H dated 25.04.2022. As
such, the service of the present Petitioner is regulated by the "Guidelines
for Engagement of Assistant Professor/ Associate Professor/ Professor in
Government Medical/ Dental College in the State of Odisha on
contractual basis" (hereinafter referred to as "Guidelines"), under
Annexure-7 to the Writ Petition, issued by Health & Family Welfare
Department, Government of Odisha vide its Resolution No. 8967 dated
25.04.2022.
5. Learned Senior Advocate for the Petitioner, further submitted that
Clause-9(1) of the aforesaid resolution states that the engagement of the
Petitioner shall be purely temporary and on a year-to-year tenure basis
and which may be extended for a maximum period of four years. Further,
it is also revealed that it is the Government that reserves the right to
terminate the services of the faculty without assigning any reason, with
one month prior notice. In the context of the aforesaid clause, the Learned
Senior Counsel for the Petitioner submitted that before terminating the
service of the Petitioner there was a clear requirement of providing one
month‟s prior notice to the Petitioner. However, in the instant case, the
Petitioner, along with three others, were terminated from their service
with immediate effect on disciplinary ground and the mandate of the one
month‟s prior notice period has not been complied with by the offending
Opposite Parties.
6. Next, the Learned Senior Counsel for the Petitioner submitted that
the law with regard to issuing a stigmatic order of termination is very
well settled inasmuch as, the order of termination being stigmatic and
passed without following the principles of natural justice will be illegal,
arbitrary and not sustainable in the eyes of law. Even if the service is
contractual in nature, the Petitioner is required to be given an opportunity
of hearing and to show cause before an order of termination can be issued
against him. It is the Learned Senior Counsel‟s contention that in the
instant case there has been a total non-compliance of the well-established
principles of natural justice. Referring to the Counter Affidavit filed by
the Opposite Party No.4, the Learned Senior Counsel for the Petitioner
contended that the notice, as claimed by the Opposite Party No.4, is not
as per the requirements of Clause-9(1), therefore, it cannot be said to be a
notice to the Petitioner.
7. Moreover, it is the Learned Senior Counsel for the Petitioner‟s
contention that the minimum requirement when the service of an
employee is terminated based on his alleged misconduct, is that the
charges against the delinquent have to be framed and communicated to
him seeking his reply. In the event an enquiry is made into the
delinquent‟s activities, he has to be provided with an opportunity of
hearing and if an adverse order is made against the delinquent, then the
Opposite Parties are required to communicate the same to him and afford
him the opportunity to reply to the same. In the instant case, none of the
principles of natural justice have been adhered to and no show cause as
per the Guidelines under Annexure-7 has been issued to the Petitioner,
before terminating his service.
8. Furthermore, it is the contention of the Learned Senior Counsel for
the Petitioner that the impugned order of termination dated 29.12.2024 is
illegal and without authority since it has been passed by the authority
incompetent to pass such order of termination. The Learned Senior
Counsel for the Petitioner, at first, referring to Clause-3 of the Guidelines
under Annexure-7, contended that the Selection Authority is required to
obtain post facto approval from the Government before selection is made.
Then, referring to Clause-9(1) of the said Guidelines, it was submitted
that as per the said clause, it is the State Government who can issue the
one month‟s notice before terminating the service of the Petitioner. This
implies that as per the aforesaid Clause-9(1) of the Guidelines, the State
Government reserves the right to terminate the services of the faculty. In
light of the aforesaid provision, the Learned Senior Counsel for the
Petitioner submitted that no authority other than the State Government is
competent to terminate the service of the Petitioner.
9. The Learned Senior Counsel for the Petitioner then drew the
attention of the court to the impugned termination order under Annexure-
6 and stated that the order was issued by Dean & Principal, MKCG MCH
and not by the State Government. Therefore, the same has clearly been
passed by an authority without having the jurisdiction to do so, and, as
such, the said order of termination dated 29.12.2024 suffers from
illegality and jurisdictional error. Learned Senior Counsel for the
Petitioner further contended that if the Guidelines provide that a thing is
to be done in a particular way, and it is done is some other way, then such
conduct will be illegal. To support this arguments, the Learned Senior
Counsel for the Petitioner has placed reliance on a catena of decisions of
the Hon‟ble Apex Court in GRIDCO Ltd. v. Sadananda Doloi, reported
in (2011) 15 SCC 16, specifically paragraphs 38 and 39; Swati
Priyadarshini v. State of Madhya Pradesh & Ors, reported in AIR 2024
SC 4339, specifically paragraphs 32 to 36; OPTO Circuits (India) Ltd. v.
Axis Bank, reported in AIR 2021 SC 729, specifically paragraph 14;
paragraph 19 of the judgement of the Hon‟ble Supreme Court in U.P.
State Road Transport Corporation & Others v. Brijesh Kumar & Ors.
Reported in AIR 2024 SC 4424; and Govt. of A.P. v. N. Ramanaiah,
reported in (2009) 7 SCC 165.
10. Thereafter, the Learned Senior Counsel for the Petitioner has
contended that the Petitioner has been wrongfully terminated from his
service despite none of the allegations against the Petitioner having been
proven. Even though an FIR has been filed against the Petitioner, mere
filing of FIR does not in any way prove the guilt of the Petitioner, unless
a proper enquiry is conducted in the matter.
11. Next, referring to the Counter Affidavit filed by the Opposite Party
No.4, the Learned Senior Counsel for the Petitioner submitted that the
letter dated 21.12.2024, under Annexure-H/4 to the Counter, asking the
Petitioner for show-cause and the letter dated 21.12.2024, under
Annexure-G/4 to the Counter, calling for urgent College Council meeting
on 23.12.2024, have not been received by the Petitioner. Instead, the
Dean & Principal of the College had orally directed the Petitioner to
submit an application to the D.M.E.T, Odisha regarding allegations by
Dr.V.Rajinikanth. The Learned Senior Counsel for the Petitioner
contended that unless a proper full-fledged inquiry is conducted, the
Petitioner cannot be held guilty solely on the basis of a committee report.
As such, the order of termination of the Petitioner‟s service is not
sustainable in the eyes of law.
12. Lastly, referring to Clause-9(7) of the Guidelines, the Learned
Senior Counsel for the Petitioner contended that in the event the service
of the Petitioner is terminated, then he will be debarred from being
selected for a period of next three years, which will cause serious
hardships to the Petitioner and hamper his career progression. In such
view of the matter, it was prayed that the impugned order of termination
dated 29.12.2024 under Annexure-6 be quashed and the Petitioner be
reinstated in service with all consequential service benefits.
CONTENTIONS BY THE STATE-OPPOSITE PARTIES
13. Heard Mr.Dayanidhi Lenka, Additional Government Advocate
appearing for the Opposite Parties. The Opposite Parties have, at the
outset, strongly disputed the Petitioner‟s stance and have contended that
the impugned order of termination dated 29.12.2024, under Annexure-6
to the present Writ Petition does not suffer from any illegality and that the
Petitioner has been rightfully terminated from his deputation.
14. Learned Counsel for State-Opposite Parties, before beginning his
arguments, clarifies before this court that the doctors that have been
appointed in Medical Colleges and Hospitals are direct recruitees
appointed through OPSC and their promotional avenue will be up to
D.M.E.T. As to doctors appointed in district peripheral medicals placed in
OMHS Cadre, their promotion avenue is up-to CDMO & DHS
(Directorate of Health Services). So far as the appointing authority for the
both the categories of doctors is concerned, it is the State Government,
i.e., the Secretary, Health & Family Welfare Department, Govt. of Odisha
for OMHS cadre doctors and the D.M.E.T is the appointing authority for
the doctors appointed to Medical College and Hospitals. The Learned
Counsel for State-Opposite Parties also states that the cadres of both the
above-mentioned categories of doctors are different from one another.
15. Learned Counsel for State-Opposite Parties, at this stage, has
drawn the attention of this Court to the State Government Resolution
No.8967 dated 25.04.2022, under Annexure-7 to the present Writ
Petition, wherein guidelines have been laid down regarding the
engagement of Asst. Professor/Associate Professor in Government
Medical/Dental Colleges in the State. Clause-3 of the aforesaid
Resolution, titled "Selection Authority", provides that the D.M.E.T,
Odisha shall be the selecting authority competent to enter into contract
with faculties to be recruited contractually. However, when required in
exigency, the D.M.E.T, Odisha may direct the Dean & Principal of a
Govt. Medical College to conduct the selection and get the same
approved by the D.M.E.T, Odisha.
16. The Learned Counsel for State-Opposite Parties contended that on
the basis of the aforesaid resolution, the Petitioner was selected by the
Dean & Principal of MKCG Medical College and after due approval of
the D.M.E.T, Odisha on 21.05.2024, the Petitioner was appointed as Asst.
Professor in Orthopaedic Department on contractual basis by the Dean &
Principal of MKCG Medical College vide Office Order No.5534 dated
22.05.2024, under Annexure-2 to the Writ Petition. Therefore, it is the
Dean & Principal of MKCG Medical College & Hospital who is the
Appointing Authority of the Petitioner.
17. To further substantiate his stance, the Learned Counsel for State-
Opposite Parties, again referred to the State Government Resolution
No.8967 dated 25.04.2022, under Annexure-7, specifically Appendix-1 to
the said resolution containing "Agreement for Contractual Service".
Learned Counsel for State-Opposite Parties contended that the said
agreement is required to be signed by the contractual candidate, i.e. the
"SECOND PARTY" and the Dean & Principal, i.e. the "FIRST PARTY".
Clause-8(d) of the said agreement, which is a non-obstante clause,
provides that the services of the second party (the contractual candidate)
may be terminated at any point of time by the competent authority of
HFWD if the second party is involved in criminal offence, or guilty of
insubordination, intemperance or other misconduct or breach or non-
performance or at the completion of the contract period as mentioned.
18. Furthermore, the Learned Counsel for State-Opposite Parties has
clarified that as per the Letter No.18133 dated 22.07.2024 issued by the
Additional Secretary to Government of Odisha in the Health & Family
Welfare Department, under Annexure-3, the Secretary to Government of
Odisha, Health & Family Welfare Department is the appointing authority
of the Petitioner for OMHS Cadre. And, as per the appointment letter
dated 22.05.2024 issued by the Dean & Principal MKCG Medical
College & Hospital, Berhampur, under Annexure-2, it is the Dean &
Principal, MKCG MCH who is the Appointing Authority of the Petitioner
so far as the post of Assistant Professor on deputation basis is concerned.
Therefore, the service of the Petitioner has been rightfully terminated
from his post of Assistant Professor on deputation basis by the Dean &
Principal, MKCG MCH vide impugned termination order dated
29.12.2024 under Annexure-6 to the Writ Petition.
19. A counter Affidavit has also been filed by the Opposite Party No.4-
the Dean and Principal, MKCG MCH, Brahmapur, Ganjam. It has been
stated in the Counter Affidavit that, the Petitioner had been provisionally/
temporarily selected as Assistant Professor in the Surgery Department on
deputation basis, vide the Order No.5534 dated 22.05.2024, under
Annexure-A/4 to the Counter Affidavit. The Learned Counsel for State-
Opposite Parties, referring to the said Counter Affidavit, submitted before
this Court that the fact of the Petitioner‟s assault on one
Dr.V.Rajinikanth, on the night of 20.12.2024 at around 12:30 am (i.e.
early hours of 21.12.2024), is clear from the complaint filed by the
victim-Dr.V.Rajinikanth, the complaint filed by Dr.Narendra Behera,
HOD, Paediatrics and advisor to P.G Student Union, and the treatment
records of the Dr.V.Rajnikanth under Annexure-B/4, Annexure-C/4 and
Annexure-D/4 respectively to the Counter Affidavit filed on behalf of the
Opposite Party No.4. In fact, after the occurrence, an FIR was also
registered against the Petitioner at Baidyanathpur Police station as PS
Case No.600/2024. A copy of the said FIR is furnished as Annexure-E/4
to the Counter Affidavit filed by the Opposite Party No.4. Moreover, the
learned Additional Government Advocate contended that in addition to
the FIR which was lodged against the Petitioner, the boarders of the PG
Hostel also conducted an in-house meeting on 21.12.2024 and passed a
resolution, under Annexure-F/4 to the Counter, prohibiting the Petitioner
from the PG Hostel.
20. Next, the Learned Counsel for State-Opposite Parties has
contended that before the termination order was issued against the
Petitioner, he was provided with ample opportunity to show cause. He
further contended that after the occurrence, in the night of 20.12.2024,
the Dean & Principal, MKCG MCH convened a „College Council
Meeting‟ on 23.12.2024 by his letter dated 21.12.2024, under Annexure-
H/4 to the aforesaid Counter Affidavit. In the said letter, the Dean &
Principal, MKCG MCH had asked the Petitioner to show cause on the
allegation made by Dr.V.Rajnikanth and to submit his statement before
the Committee. In the said meeting, the Petitioner was given sufficient
opportunity to explain his stance and the Petitioner‟s statement was also
reduced to writing. A copy of the Disciplinary Proceedings by the
Enquiry Committee and the statement of the Petitioner have been
provided under Annexure-J/4 series to the Counter Affidavit filed by the
Opposite Party No.4.
21. Learned Counsel for State-Opposite Parties further contended that
it was only after viewing the retrieved video footage, cross-examining the
Petitioner (along with other perpetrators), and after considering the
statement of the Petitioner, that the Committee prepared an „Action
Taken Report‟ which was submitted to the D.M.E.T, Odisha,
Bhubaneswar vide letter No.63-C dated 24.12.2024, under Annexure-K/4
to the Counter. In fact, it was contended that the Petitioner has also
submitted his representation regarding the incident before the D.M.E.T,
Odisha, Bhubanseswar, a copy of which has been attached under
Annexure-L/4 to the Counter. Learned Counsel for State-Opposite Parties
submitted that consequent upon the decision taken in the College Council
meeting, the Action Taken Report, and the direction received from the
D.M.E.T, Odisha vide letter No.25143 dated 27.12.2024, the Petitioner
along with others were terminated from their services with immediate
effect on disciplinary grounds via the termination order dated 29.12.2024
under Annexure-M/4 to the Counter Affidavit. As such, it was contended
by the Learned Counsel for State-Opposite Parties that the Petitioner has
been given an opportunity of hearing at each stage of the proceeding and
the principles of natural justice have been thoroughly followed before the
Petitioner‟s service on deputation was terminated. To support his
contentions, the Learned Counsel for State-Opposite Parties has relied on
the decision of the Hon‟ble Supreme Court in Kunal Nanda v. Union of
India & Ors. reported in 2000 (5) SCC 362 and Ratilal B.Soni & Ors. v.
State of Gujarat & Ors. reported in AIR 1990 SC 1132, in the Counter
Affidavit.
22. In respect of the contention of the Petitioner that he has not been
given one month‟s notice prior to his termination, the Learned Counsel
for State-Opposite Parties submitted that the engagement of the Petitioner
was on purely temporary basis and could be terminated without assigning
any reason. However, since in the present case there were sufficient
reasons for the termination of his service, on disciplinary grounds, there
was no need to serve one month‟s notice upon the Petitioner prior to the
termination of his service. Lastly, the Learned Counsel for State-Opposite
Parties contended that in the light of the incident that had occurred on the
night of 20.12.2024, i.e. at around 12:30 am on 21.12.2024, the presence
of the Petitioner in the campus premises was likely to aggravate the
situation and could have led to other similar incidents. Therefore, the
termination of his service was also necessary for maintaining peace and
harmony in the campus.
23. An additional Counter Affidavit has also been filed on behalf of the
Opposite Party No.4-the Dean and Principal, MKCG MCH, Brahmapur,
Ganjam. In the said additional Counter Affidavit it has been contended
that vide Office Order No.5534 dated 22.05.2024, under Annexure-2, the
State Government has made the resolution No.1532 dated 19.12.2024,
under Annexure-H/1 to the additional Counter Affidavit. The
appointment of the Petitioner has been made pursuant to the aforesaid
resolution of the State Government dated 19.12.2024. it has been further
contended in the additional Counter Affidavit that in the said resolution
No.1532 dated 19.12.2024, in order to expedite filling up of vacant
medical posts, the State Government has delegated the power to the Dean
& Principals of Medical Colleges to conduct recruitment for appointment
to contractual and deputation posts through walk-in interviews/
counselling and to report the same to the D.M.E.T, Odisha.
24. It has been further stated in the additional Counter Affidavit on
behalf of the Opposite Party No.4 that after the service of the Petitioner
on deputation as Assistant Professor was terminated, he is deemed to
have returned back to his post in the Directorate of Health Services. In
fact, following the termination of the service of the Petitioner, an order
bearing Letter No.9470 dated 28.03.2025 was passed and pursuant to
such order the Petitioner has already joined as LTRMO, SDH
Bhanjanagar, Ganjam. The Petitioner has also accepted his appointment
to the said post on 29.03.2025. As such, it was contended that the
Petitioner has erroneously interpreted the word „termination‟.
25. Furthermore, since the Petitioner was on purely deputation basis,
the termination of his services as per Clause-8(d) of the agreement under
Appendix-1 to the State Government Resolution No.8967 dated
25.04.2022, under Annexure-7 to the present writ petition does not wipe
off the services of the Petitioner completely. Instead, the Petitioner has
only been disengaged from deputation as Assistant Professor at MKCG
MCH. It has been contended that the Action Taken Report by the
Committee clearly states that the Petitioner has only been terminated
from his present post, i.e. Assistant Professor, Orthopedics and
termination from the said post does not in any way hamper the service
benefits of the Petitioner. In such view of the matter, it was contended
that the Writ Petition filed by the Petitioner has become infructuous and
is devoid of merit. Therefore, the same is liable to be dismissed.
ANALYSIS OF THE COURT
26. Heard Mr.Budhadev Routray learned Senior Advocate along with
Mr.S.Routray for the Petitioner and Mr.Dayanidhi Lenka, Additional
Government Advocate for the Opposite Parties. Perused the Writ Petition,
the Counter Affidavit filed by the Opposite Party No.4, the Rejoinder
filed by the Petitioner, and other documents annexed to the Writ Petition.
27. At the outset, it is clear that initially vide Order No.4928 dated
07.05.2024 under Annexure-1 to the present Writ Petition, which was
passed pursuant to the letter No.7041 dated 30.04.2024, the Petitioner
was relieved from MKCG MCH after completing two years of post PG
bond service. In the same order the Petitioner was directed to report
before the DHS (O)/Government in H&FW Department for further place
of posting. Then, vide order No.5534 dated 22.05.2024, the Petitioner
was appointed temporarily as Assistant professor on deputation/
contractual basis in the Orthopedics discipline. The appointment order
reveals that the terms and conditions of his service will be governed by
the State Government resolution No.8967/H dated 25.04.2022, under
Annexure-7, i.e. the Guidelines. The relevant clauses of the Guidelines
are reproduced hereinbelow for better appreciation;
Clause-3 of the Guidelines under Annexure-7;
"3. Selection Authority:
The Director of Medical Education & Training,
Odisha shall be the selecting authority and
competent to enter into contract with faculties
to be recruited on contract. While engaging
Associate Professors and Professors on
contract, the tentative vacancies against which
the eligible candidates in feeder cadre are not
available immediately, may be considered. Such
list of vacancies shall be obtained from the
Government for consideration. However, if
required in exigency, the Director of Medical
Education & Training may direct the Dean &
Principal of a Govt. Medical College to conduct
the selection and send the select list along with
the proceedings to D.M.E.T Odisha. For all
such selections by D.M.E.T, Odisha or Dean &
Principals, the D.M.E.T, Odisha shall issue
engagement order and intimate the same for
obtaining post facto approval of the
Government."
Clause-9(1) of the Guidelines under Annexure-7
"9. Terms and Conditions:
1. The engagement shall be purely temporary
and on year to year tenure basis and may be
for a maximum period of four years subject
to satisfactory performance. However the
Government reserves the right to terminate
the services of the faculty with one month
prior notice without assigning any reason."
Clause-8(a) of the agreement under Appendix-1 to the
Guidelines under Annexure-7;
"8. TERMINATION
a. In case of improper conduct by the Second
Party, the HFWD may terminate this
Agreement and no compensation shall be
payable in such a case."
Later on, the above-discussed untoward incident occurred in the
night of 20.12.2024 within the college campus. Following such incident,
the Petitioner has been terminated from his service vide the termination
order dated 29.12.2024 under Annexure-6. The crux of the issue involved
in the present Writ Petition revolves around the aforesaid order of
termination.
28. On perusal of the Writ Petition along with the submissions made
and Rejoinder filed by the Petitioner, this Court observes that the
Petitioner has challenged the impugned order of termination under
Annexure-6 on three primary grounds. Firstly, that the order of
termination has been issued without following the principles of natural
justice. Secondly, no prior notice of one month, as stipulated by the
applicable Guidelines, was sent to the Petitioner before the termination of
his service. Thirdly, the authority issuing the order of termination does
not have the jurisdiction to terminate the service of the Petitioner.
Therefore, in order to evaluate the merits of the relief sought by the
Petitioner, this Court is required to first adjudicate the aforesaid three
issues at hand.
29. So far as the nature of service of the Petitioner is concerned, it is
beyond doubt that the Petitioner‟s service was on deputation basis, as is
evident from the appointment order under Annexure-2 issued in favour of
the Petitioner. It is also clear from the said order of appointment that the
terms and conditions of the Petitioner‟s service shall be governed by the
Guidelines under Annexure-7. Clause-9 of the said Guidelines deals with
"Terms and Conditions" and Clause-9(1) of the Guidelines enumerates
that the State Government reserves the right to terminate the temporary
service of the employees by providing a prior notice of one month.
However, Clause-9(1) clearly states that the aforesaid procedure is to be
followed when the termination is without assigning any reason, i.e. when
the termination is made as per the Guidelines and is a termination
simpliciter.
30. In the instant case nothing has been brought on record by the
Opposite Parties to show that one month‟s prior notice was indeed given
to the Petitioner before issuing the order of termination in his favour. As
such, this Court is of the view that no prior notice of one month was
given to the Petitioner. However, on perusal of the order of termination
under Annexure-6 it can be seen that the service of the Petitioner has
been terminated on "disciplinary ground". Therefore, the aforesaid order
cannot be said to be a termination simpliciter. Instead, it appears to be a
stigmatic order. Now, the law regarding termination of a government
employee‟s service is well-settled (reference maybe had to Parshotam
Lal Dhingra case reported in 1958 SCR 828, Jagdish Mitter v. Union of
India, reported in 1963 SCC OnLine SC 75 and a catena of decisions
along similar lines). The settled principle can be summarised thusly; if the
service of the temporary employee is terminated as per the contract of his
engagement/ guidelines, i.e. by providing the notice as stipulated under
the said contract/ guidelines, then the said order of termination will be
simpliciter in nature and proper. However, if the services of the
temporary employee has been terminated by an order which is not a
termination simpliciter, i.e. the termination is punitive in nature, then the
order of termination is stigmatic and shall attract the protection of Article
311(2) of the Constitution of India.
31. Article 311(2) of the Constitution of India postulates that no
government employee shall be dismissed or removed or reduced in rank
unless an inquiry is conducted into the matter and the delinquent is
communicated the charges against him and given a reasonable
opportunity of being heard in respect of those charges. As has already
been established, the Petitioner was appointed on deputation basis, i.e. his
service was temporary/ contractual in nature. Now, it is well-settled
through a catena of decisions of the Hon‟ble Supreme Court that
contractual employee can also avail the protection of the mandatory
provision contained in Article 311(2) of the Constitution of India in the
event the termination of his service in stigmatic in nature (reference
maybe had to Parshotam Lal Dhingra v. Union of India, reported in
AIR 1958 SC 36, Ramnath Prasad v. State of Bihar reported in (1988) 2
SCC 423, State of Bihar v. Shiva Bhikshuk Mishra reported in (1970) 2
SCC 871, State of U.P. v Kaushal Kishore Shukla, reported in (1991) 1
SCC 691 and other similar decisions). Therefore, it is established that the
Petitioner in the instant case is entitled to the protection afforded by
Article 311(2) of our Constitution.
32. Consequently, this Court is now required to examine whether the
protection afforded under Article 311(2) of the Constitution of India was
extended to the Petitioner before his service was terminated. On perusal
of the documents annexed to the Counter Affidavit filed by the Opposite
Party No.4, specifically the letter No.14980 dated 21.12.2024 under
Annexure-H/4 to the said Counter, it can be seen that the Dean &
Principal, MKCG MCH has informed Petitioner about the College
Council Meeting to be held on 23.12.2024 and asked the Petitioner to
attend the meeting and submit his statement regarding the incident that
took place on 21.12.2024 at around 12:30 am. The complaint letter by Dr.
V.Rajnikath concerning the incident has also been annexed to the said
letter. This indicates that the subject matter of the proposed meeting and
the issue on which the Petitioner is required to submit his statement was
communicated to him. Thereafter, the College Council Meeting was
conducted and it can be seen from the copy of the attendance sheet under
Annexure-J/4 series that the Petitioner was present in the said meeting.
Additionally, the said Annexure-J/4 series also contains written
statements of several persons present at the meeting, one of them being
the present Petitioner. A copy of the proceeding of the said meeting is
also present under Annexure-J/4 to the Counter Affidavit filed by the
Opposite Party No.4.
33. After the proceeding was concluded, an "action taken report" was
submitted to the D.M.E.T, Odisha, Bhubaneswar, vide Letter No.63-C
dated 24.12.2024, under Annexure-K/4 to the Opposite Party No.4‟s
Counter Affidavit. In fact, it can be seen from Annexure-L/4, annexed to
the Counter Affidavit by the Opposite Party No.4, that the Petitioner has
also submitted his representation regarding the incident to the D.M.E.T,
Odisha. Since the impugned order of termination under Annexure-6 was
passed on 29.12.2024, it can be fairly ascertained that the Petitioner was
indeed given an opportunity of hearing before his contractual service was
terminated. Thus, this Court has no hesitation in concluding that the
Petitioner has been granted proper opportunity of being heard and the
provision under Article 311(2) has been followed prior to terminating the
service of the Petitioner. The first and second issues are answered
accordingly.
34. Next, this Court has to determine as to whether the Dean &
Principal, MKCG MCH has the requisite jurisdiction to issue the order of
termination of service of the Petitioner. The impugned order of
termination under Anexure-6 reveals that the said order has been issued
by the Dean & Principal, MKCG MCH as per the decision taken in the
College Council meeting and according to the direction received from the
D.M.E.T, Odisha vide letter No.25143 dated 27.12.2024. On perusal of
the office order of appointment dated 22.05.2024 under Annexure-2, it
can be seen that the said order of appointment was issued by the Dean&
Principal, MKCG MCH. Also, the said appointment order reveals that the
appointment has been made by the Dean& Principal, MKCG MCH in
exercise of the delegated powers vide the Resolution No.l532/H dated
19.01.2024, issued by the State Government in the H&FW Department,
and in pursuance of the communication received from the D.M.E.T,
Odisha vide Letter No.7883 dated 21.05.2024.
35. Now, on perusal of the Resolution No.l532/H dated 19.01.2024
under Annexure-H/1 to the Additional Affidavit filed by the Opposite
Party No.4, it can be seen that the State Government in H&FW
Department has directed the Dean & Principal of Medical Colleges, along
with the Director of PGIMER and Capital Hospital, Bhubaneswar and the
Principal, SCB Dental College, Cuttack shall conduct recruitment of
Assistant Professors amongst other posts on the 12 th of every month via
walk-in interview/ counselling and report the same to the D.M.E.T
Odisha. Similarly, the D.M.E.T, Odisha shall conduct recruitment for
remaining vacancies in various posts on the 25 th of every month and
report to the H&FW Department.
36. Furthermore, as per the agreement under Appendix-1 to the
Guidelines under Annexure-7, which has been signed by the Petitioner,
indicates that the said agreement has been signed between the „FIRST
PARTY‟ the H&FW Department, Government of Odisha represented
through the Dean & Principal and the „SECOND PARTY‟ the appointee.
Similarly, in Clause-8 of the said agreement titled "TERMINATION",
specifically Clause-(a) and Clause-(d) thereof, it is indicated that the
H&FWD may terminate the agreement and that the services of the
„SECOND PARTY‟ may be terminated by the "competent authority of
the H&FWD". It is a settled principle of law, as enumerated under Article
311(1) of the Constitution of India, that it is the Appointing Authority
which has the power to terminate the services of the employee. In the
instant case, from the aforesaid analysis, it is clear that the State
Government in H&FW Department is the appropriate authority to
terminate the service of the Petitioner.
37. Moreover, there is nothing on record to show that the power to
terminate the services of the Petitioner has been expressly delegated by
the State Government to the Dean & Principal MKCG MCH.
Accordingly, with regard to the third issue at hand, this Court is of the
opinion that the Dean & Principal, MKCG MCH did not have the
jurisdiction to issue the impugned order of termination dated 29.12.2024
under Annexure-6 to the present Writ Petition. Furthermore, it has been
brought to the notice of this court, by the Additional Counter Affidavit
filed by the Opposite Party No.4, that after the service of the Petitioner as
Assistant Professor on deputation basis at MKCG MCH was terminated,
the Petitioner was reverted back to his post in the Directorate of Health
Services and that the Petitioner has already joined as LTRMO, SDH
Bhanjanagar, Ganjam on 29.03.2025 vide Letter No.9470 dated
28.03.2025. Such fact has also not been disputed by the Petitioner.
38. Consequently, In view of the aforesaid analysis, this court is of the
view that the impugned order of rejection dated 29.12.2024, under
Annexure-6 to the Writ Petition, is bad in law, inasmuch as it has been
issued by an authority not having the jurisdiction to issue such order of
termination against the Petitioner. As such, this Court has no hesitation in
quashing said order of termination under Annexure-6. Accordingly, the
same is hereby quashed.
39. Accordingly, the Writ Petition is disposed of. However, there shall
be no order as to costs.
(Aditya Kumar Mohapatra)
Judge
Orissa High Court, Cuttack
The 18th August, 2025/ S.K. Rout, Jr. Stenographer
Location: High Court of Orissa, Cuttack
