Orissa High Court
Prakash Chandra Polleyi vs State Of Odisha & Others .... Opposite ... on 9 January, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.34680 of 2021
In the matter of an application under Articles 226 and
227 of the Constitution of India
..................
Prakash Chandra Polleyi Petitioner
....
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s. K.K. Swain, K. Swain,
J.R Khuntia, Adv.
For Opp. Parties : M/s. S.P. Das,
Addl. Standing Counsel
PRESENT:
THE HONBLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 09.01.2025 and Date of Judgment: 09.01.2025
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Biraja Prasanna Satapathy, J.
1. This matter is taken up through hybrid mode.
2. Heard learned counsel for the Parties.
3. Petitioner has filed the present Writ Petition inter alia
with the following prayer:
"(A ) a writ of mandamus or an appropriate writ may
be issued quashing the impugned order of
disengagement dated 06.09.2021 passed by the
Block Education Officer, Kabisuryanagar under
Annexure-4 and necessary direction may be made to
the opposite parties to reinstate the Petitioner in
service with all service and financial benefits and
further the monthly salary of the petitioner for the
period from November, 2019 to April, 2021 may be
released in his favour within a time to be stipulated
by this Hon'ble Court.
(B) And any other order/orders or direction/directions
may be issued so as to give complete relief to the
Petitioner."
4. Learned counsel appearing for the Petitioner contended
that Petitioner while continuing as a Sikshya Sahayak, he was
regularised as a Jr. Teacher and finally as a regular Primary
School Teacher w.e.f 21.12.2012.
4.1. It is contended that while continuing as such as a
regular Primary School Teacher, without initiation of any
proceeding as provided under OCS (CCA ) Rules, 1962 (in
short, "Rules") and without issuing any show cause, Petitioner
was straightaway terminated from his services vide order
dt.06.09.2021 of Opp. Party No.5 under Annexure-4.
4.2. It is contended that since Petitioner was a regular
Primary School Teacher w.e.f 21.12.2012, without following
the provisions contained under OCS(CC& A ) Rules, 1962 ,
Petitioner could not have been terminated from his services
vide the impugned order dt.06.09.2021.
4.3. It is also contended that even though in the impugned
order, a stand was taken that the Petitioner was issued with a
show-cause prior to such order of termination, but no such
show-cause was ever issued to the Petitioner. Stand taken in that
regard in Para-9 & 10 of the Writ Petition reads as follows:
9. That the impugned order dated 06.09.2021 passed
by the Block Education Officer, Kabisuryanagar is liable
to be quashed / set aside as no show cause notice was
issued to the Petotner before passing the impugned
order. It may be stated here that it has been mentioned
in paragraph-3 of the impugned order dated 06.09.2021
that a show cause notice was sent to the Petitioner vide
office letter No.16976 dated 29.11.2019 and since no
reply was received in due time, the impugned order was
passed is not at all correct. IN this context, it is humbly
submitted that as a matter of fact no show cause notice
was ever issued to the Petitioner at any point of time.
Therefore, there was no scope for the Petitioner to submit
any explanation on his part. Therefore, in this view of
he matter there was also gross violation of the principles
of natural justice while passing the impugned order of
disengagement dated 06.09.2021. Therefore, the
impugned order dated 06.09.2021 is liable to be
quashed/set aside.
10. That it is respectfully submitted that even assuming
for the sake of argument and not for conceding sake that
the allegation has been made against the Petitioner
relating to production of fake B.Ed. Certificate then the
authorities concerned are required to follow the
principles of natural justice and to conduct an enquiry
into the matter as has been decided by the Hon'ble Apex
Court in the case of Ranveer Singh Vs. State of Uttar
Pradesh and others reported in (2008) 6 AWS 5895.
But in the instant case without causing any enquiry
straightway the Petitioner has been disengaged from
service. Therefore, judging from any angle the impugned
order of disengagement dated 06.09.2021 passed by
the Block Education Officer, Kabisuryanagar is liable to
quashed/set aside.
4.4. It is accordingly contended that since without
following the provisions contained under OCS (CC & A) Rules,
1962, Petitioner was straightaway terminated from his services
vide the impugned order under Annexure-4, the same is not
sustainable in the eye of law and requires interference of this
Court.
5. Basing on the stand taken in the counter affidavit,
learned Addl. Standing Counsel contended that since after
regularisation of the services of the Petitioner as a Primary
School Teacher, it was found that to get the benefit of
appointment, Petitioner had produced a fake B.Ed. Certificate,
a proceeding was initiated against him vide Memorandum
dt.19.03.2020 under Annexure-D/5.
5.1. It is contended that after initiation of such proceeding,
a show-cause was also issued to the Petitioner and Petitioner
since avoided to participate in the proceeding and did not file
his reply to the show-cause, Petitioner was terminated from
his services vide the impugned order issued under Annexure-
4 on dt.06.09.2021.
5.2. It is also contended that subsequent to termination of
the Petitioner, a Criminal Proceeding has also been initiated
against him basing on the F.I.R lodged under Annexure-D/5
in Kabisuryanagar P.S. Case No.294 of 2019.
5.3. It is contended that since on enquiry it was found that
Petitioner had produced a fake B.Ed certificate to get the
benefit of appointment, which was intimated by the
authorities of the Berhampur University vide letter
dt.28.11.2019, not only a proceeding was initiated against
the Petitioner vide Memorandum dt.19.03.2020, but a
Criminal Proceeding was also initiated against him in
Kabisuryanagar P.S Case No.294 dt. 30.11.2019. Not only
that, in spite of issuance of the show-cause, Petitioner since
never submitted any reply, Petitioner was rightly terminated from
his services.
5.4. It is contended that since Petitioner provided a fake
B.Ed. certificate to get the benefit of regularisation and
appointment as a Primary School Teacher, in view of the letter
issued by the University on 28.11.2019, Petitioner has been
rightly terminated from his services. It is also contended that
since against the impugned order, alternative remedy of
appeal is provided, the Writ Petition is not maintainable.
6.To the stand taken in the counter affidavit, learned counsel
appearing for the Petitioner made further submission basing
on the stand taken in the rejoinder affidavit.
6.1. It is contended that the proceeding initiated vide
Memorandum dt.19.03.2020, was never served on the
Petitioner and accordingly he had no scope to take part in the
said proceeding.
6.2. It is also contended that if at all a proceeding was
initiated vide memorandum dt.19.03.2020, no order of
termination could have been passed prior to finalisation of the
said proceeding in accordance with law and in terms of the
provisions contained under Rule 15 of the OCS (CCA) Rules,
1962.
6.3. It is also contended that since on the self-same issue, a
criminal proceeding was also initiated against the Petitioner in
Kabisuryanagar P.S. Case No.294 of 2019, no final order would
also have been passed in the Disciplinary Proceeding. It is
accordingly contended that since the order of termination has
been passed prior to finalisation of the disciplinary proceeding
and no show-cause was ever issued as indicated in the
impugned order, impugned order of termination passed on
06.09.2021 under Annexure-4 is not sustainable in the eye of
law.
6.4. It is accordingly contended that since the impugned
order has been passed in violation to the principle of natural
justice, the same is not sustainable in the eye of law in view of
the decision of the Hon'ble Apex Court in the case of State
Bank of India And Others Vs. Rajesh Agarwal & Ors., (2023)
6 SCC 1. Hon'ble Apex Court in Para 41 & 42 of the said
judgment has held as follows:-
"41. In State of Orissa v. Binapani Dei [State of
Orissa v. Binapani Dei, AIR 1967 SC 1269], a two-Judge
Bench of this Court held that every authority which has
the power to take punitive or damaging action has a duty
to give a reasonable opportunity to be heard. This Court
further held that an administrative action which involves
civil consequences must be made consistent with the
rules of natural justice : (AIR p. 1271, para 9)
"9. ... The rule that a party to whose prejudice an order
is intended to be passed is entitled to a hearing applies
alike to judicial tribunals and bodies of persons invested
with authority to adjudicate upon matters involving civil
consequences. It is one of the fundamental rules of our
constitutional set-up that every citizen is protected
against exercise of arbitrary authority by the State or its
officers. Duty to act judicially would therefore arise from
the very nature of the function intended to be performed :
it need not be shown to be super-added. If there is power
to decide and determine to the prejudice of a person, duty
to act judicially is implicit in the exercise of such power.
If the essentials of justice be ignored and an order to the
prejudice of a person is made, the order is a nullity. That
is a basic concept of the rule of law and importance
thereof transcends the significance of a decision in any
particular case."
42. In Maneka Gandhi v. Union of India [Maneka
Gandhi v. Union of India, (1978) 1 SCC 248] , a seven-
Judge Bench of this Court held that any person
prejudicially affected by a decision of the authority
entailing civil consequences must be given an opportunity
of being heard. This has been reiterated in a catena of
decisions of this Court."
7. To the submission made by the learned counsel for the
Petitioner with regard to non-service of the charges in the
Disciplinary Proceeding, learned Addl. Standing Counsel
contended that since the Petitioner avoided to receive the
memorandum, it could not be served on him. Since the
Petitioner avoided to receive the memorandum, the authorities
had no other option than to terminate him after issuance of the
show-cause.
8. Having heard learned counsel for the parties and
considering the submissions made, this Court finds that
Petitioner was regularised as a Primary School Teacher w.e.f
21.12.2012. Since the Petitioner was a regular Primary School
Teacher, in view of the provisions contained under OCS (CC &
A), Rules, 1962, Petitioner could have been terminated after
being found guilty of the charges either in the Departmental
Proceeding or in the Criminal Proceeding. As found neither the
Disciplinary Proceeding has attained finality so initiated on
19.03.2020 nor the Petitioner has been found guilty of the
charges in the Criminal proceeding so initiated in
Kabisuryanagar P.S. Case No.294 of 2019. Since prior to
finalisation of the Disciplinary Proceeding and/or the Criminal
Proceeding, Petitioner basing on a show-cause which was also
never served on the Petitioner has been terminated from his
services vide order dt.06.09.2021 under Annexure-4, as per the
considered view of this Court, the said order is not sustainable
in the eye of law. Plea of alternative remedy of appeal against
the impugned order as contended is not tenable in the eye of
law as Petitioner has been terminated prior to finalisation of the
disciplinary proceeding and so also without being served with
the show-cause. This Court also does not find any stand taken
in the counter affidavit regarding service of the show-cause on
the Petitioner prior to terminating the Petitioner vide the
impugned order.
8.1. In view of the aforesaid analysis, this Court is inclined
to quash order dt.06.09.2021, so passed by Opp. Party No.5
under Annexure-4. While quashing the said order, this Court
directs Opp. Party No.5 to re-instate the Petitioner in his
services which shall however be subject to final outcome of the
criminal proceeding and the Disciplinary Proceeding.
8.2. Petitioner is directed to take part in the Disciplinary
Proceeding by filing his written statement of defence within a
period of thirty (30) days from the date of receipt of this order.
The Disciplinary Authority shall proceed with the said
proceeding in accordance with law in which this Court
expresses no opinion. Petitioner is also directed to cooperate
with the proceeding for its disposal in accordance with law.
The Writ Petition accordingly stands disposed of.
( Biraja Prasanna Satapathy)
Signed by: SANGITA PATRA Orissa High Court, Cuttack
Reason: authenticaiton of Dated
order the 9th January, 2025/sangita
Location: high court of orissa, cuttack
