Orissa High Court
Bharati Nayak vs State Of Odisha & Others ...... Opp. ... on 3 January, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P (C) No. 24583 of 2023
An application under Articles 226 and 227 of the Constitution of
India)
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Bharati Nayak ...... Petitioner
-Versus-
State of Odisha & Others ...... Opp. Parties
Advocate(s) appeared in this case:-
_______________________________________________________
For Petitioner : M/s. Ranjan Kumar Rout, A.K.
Behera & S. Behera, Advocates
For Opp. Parties : Mr. S. Behera
Additional Government Advocate
___________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
rd
3 January, 2025
SASHIKANTA MISHRA, J.
2. The petitioner has filed this writ application with the
following prayer:
"The petitioner, therefore, prays that the
Hon'ble Court may graciously be pleased to admit
this writ petition and issue Rule NISI calling upon
the opposite parties to show cause as to why the
order of punishment dated 19.04.2021 at
Annexure-4 and the order dated 20.10.2022
Annexure-7 shall not be quashed and if the
opposite parties fail to show cause or show
insufficient cause then the rule be made absolute
by quashing both Anneure-4 and Annexure-7
with direction to re-engage the petitioner within
such basis as the Hon'ble Court may like to
stipulated.
And for this act of kindness the petitioner
shall as in duty bound ever pray."
3. The case of the petitioner, briefly stated, is that
she was engaged as Gram Rojagar Sevak (GRS) of
Ramlenka Grampanchayat under Krushna Prasad Block
in Puri district. While working as such, she was called
upon to attend the Vigilance office on 03.02.2021 to
answer the allegations leveled in a complaint submitted on
02.02.2021 by one Mithun Behera to the effect that she
had demanded illegal gratification of ₹10,000/- for
preparing bills towards release of funds in respect of
construction of road from Balipatpur to Patansi under
MNREGA Projects.
4. It is stated that the complaint was registered as
an F.I.R in Bhubaneswar Vigilance P.S. Case No.7 of 2021
under Section 7 of the PC (Amendment) Act, 2018. The
said case corresponds to VGR Case No.2 of 2021 (T.R.
Case No.10 of 2022) of the Court of learned Special Judge,
Vigilance, Bhubaneswar. The petitioner was called upon to
show cause with regard to the allegations vide letter dated
08.03.2021 of the Collector. She could not submit any
reply as she fell ill and remained under treatment. She
submitted a representation on 20.04.2021 indicating that
she had not received copy of the BDO's report dated
22.02.2021 as well as the report of the SP (Vigilance),
which were essentially required to prepare the show
cause. While the matter stood thus, vide order dated
19.04.2021, copy of which is enclosed as Annexure-4, the
Collector-cum-CEO, Zilla Parishad, Puri disengaged the
petitioner from service with effect from 03.02.2021 by
holding that she had not replied to the show case notice
containing allegations of misconduct including demand of
illegal gratification of ₹10,000/- and that she was arrested
on 03.02.2021 and detained in custody for a period of 24
hours.
5. The petitioner, being aggrieved, preferred appeal
before the Director, Special Projects. The appellate
authority directed the Collector-cum-CEO, Zilla Parishad,
Puri to submit an enquiry report and the action taken
report on the Vigilance case. The report was submitted to
the effect that the petitioner during her incumbency as
GRS had prepared the bills against the muster roll and
had initiated payment to the job seekers of the concerned
project including to one Purnachandra Behera, father of
the complainant Mithun Behera three days prior to the
date of submission of allegation. Further, the matter being
sub-judice, the enquiry team refrained from offering any
views on the merits of the case. Taking note of the above,
the appellate authority held that as the matter is still
under investigation by the Superintendent of Police,
Vigilance, he was inclined to uphold the order of
disengagement passed by the Collector. The appeal was
disposed of accordingly. Being thus aggrieved, the
petitioner has approached this Court in the present writ
application seeking the relief as quoted hereinbefore.
6. Counter affidavit has been filed by the Collector,
Puri refuting the averments made in the writ application.
It is stated that as per report submitted by the BDO,
Krushna Prasad Block vide letter dated 23.02.2022, report
submitted by the SP (Vigilance) on 05.02.2021 and as per
the guidelines of the Government dated 06.04.2018, the
petitioner was temporarily disengaged from her
contractual service as GRS with effect from the date of
detention i.e. 03.02.2021 being in jail custody for a period
of 24 hours as she was caught red handed at the time of
receiving illegal gratification of ₹10,000/- from one Mithun
Behera. Further, the petitioner was also duly heard by the
appellate authority in the appeal preferred by her and
taking note of the pendency of the investigation, the
appellate authority rightly upheld the order of
disengagement.
7. Heard Mr. R.K. Rout, learned counsel for the
petitioner and Mr. S. Behera learned Addl. Government
Advocate for the State.
8. Mr. Rout would submit that the petitioner has
never been arrested as alleged in the impugned order. In
support of his contention as above, Mr. Rout has drawn
attention of this Court to the order sheet of T.R. Case
No.10 of 2022 of the court of learned Special Judge
(Vigilance), Bhubaneswar, copy of which is enclosed as
Annexure-8. Mr. Rout further submits that apart from the
fact that the petitioner was never arrested, it is a case of
taking punitive action against an employee without the
allegations being proved.
9. Mr. Behera, on the other hand, submits that a
complaint was submitted against the petitioner containing
allegation of demand of illegal gratification by the
petitioner to one Mithun Behera. Further, a joint inquiry
was conducted and a report was submitted before the
appellate authority, wherein it was clearly found that the
petitioner was caught red-handed by the Vigilance team
while accepting illegal gratification of ₹10,000/- from the
complainant for preparation of muster roll bill of
₹1,00,000/-. It was also revealed that the father of the
complainant namely, Purna Chandra Behera was one of
the job seekers of the project in question. He further
submits that as per the report submitted by
Superintendent of Police (Vigilance), the petitioner was
arrested on 03.02.2021 and released on bail 04.02.2021.
10. After hearing learned counsel for the parties and
on going through the impugned order under Annexure-4,
this Court finds that the petitioner was disengaged mainly
on the ground that she was arrested on 03.02.2021 and
detained in custody for a period of 24 hours and secondly,
she had failed to submit reply to the show cause notice
issued to her on 08.03.2021. Firstly, this Court finds from
the copy of the order sheet of the case before the Court
below that the FIR was received by the Court on
04.02.2021. The order sheet contains the orders passed
on 15.03.2021, 19.03.2021, 05.04.2021, 16.04.2021,
01.07.2021, 23.08.2021, 25.10.2021 etc. upto
18.05.2024. There is no mention whatsoever regarding
arrest of the petitioner and of being released on bail. It is
possible that the petitioner was arrested by the Vigilance
Police and also released on bail but then there is no
evidence to show that in such event she was detained in
custody for 24 hours. Thus, the basic ground which
appears to have weighed upon the mind of the Collector
while passing the order of disengagement does not appear
to be well-founded.
11. Secondly, it appears that some allegations were
levelled against the petitioner by one Mithun Behera. The
petitioner was called upon to show cause but she did not
submit any reply thereto. She however, submitted a
representation addressed to the Collector on 20.04.2021
denying the allegations. Be that as it may, the appellate
authority has taken note of a joint enquiry report, copy of
which has been enclosed as Annexure-E/3 to the counter.
Perusal of the report revealed that the petitioner allegedly
demanded illegal gratification of ₹10,000/- from the
complainant. It is nowhere stated that as to why the
complainant was called upon by the petitioner to pay the
illegal gratification, even though he himself was not a job
seeker, though his father is said to be a job seeker.
12. However, this is a matter to be determined by the
Vigilance Authorities and the Trial Court. This Court finds
that charge-sheet having been submitted on 17.03.2022,
the matter is sub-judice before the competent Court of
law. It is trite law that a person is always presumed to be
innocent unless proven guilty. This is the basis of criminal
jurisprudence of our country. In the instant case, certain
allegations have only been leveled against the petitioner,
which have been investigated and culminated in
submission of a charge-sheet. Obviously, the same is not
akin to proof of his guilt. The matter needs to be tried by
the Court and the guilt or otherwise of the petitioner
remains to be determined. Before that, the petitioner can
only be presumed to be innocent. Under such
circumstances taking the drastic step of disengaging the
petitioner only on the basis of allegations would suddenly
affect her right to livelihood guaranteed under Article 21 of
the Constitution.
13. For the forgoing reasons, therefore, this Court is
of the considered view that the impugned order passed by
the Collector as confirmed by the appellate authority
cannot be sustained in the eye of law.
14. In the result, the writ application is allowed. The
impugned orders under Annexures-4 and 7 are hereby set
aside. The opposite party authorities are directed to
reinstate the petitioner in service forthwith. It is made
clear that she shall not be entitled to any back wages for
the period of her disengagement till her reinstatement on
the principle of no work no pay. However, the said period
shall be counted notionally for the purpose of grant of
other service benefits.
...............................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack
The 3rd Day of January, 2025/ Puspanjali
Designation: Junior Stenographer
