Orissa High Court

Mithuna Biswal vs State Of Odisha And Others ...... Opp. ... on 25 June, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

          IN THE HIGH COURT OF ORISSA AT CUTTACK
                    W.P. (C) No. 28550 of 2024
    An application under Articles 226 and 227 of the Constitution of
    India.
                                   --------------

      Mithuna Biswal                 ......            Petitioner

                               -Versus-

      State of Odisha and Others       ......         Opp. Parties
      Advocate(s) appeared in this case :-
      _______________________________________________________
        For Petitioner    : Mr. Jyotirmaya Sahoo, Advocate

         For Opp. Parties : Mr. S.S. Routray,
                            [Addl. Standing Counsel]
      _______________________________________________________
      CORAM:
           JUSTICE SASHIKANTA MISHRA
                          JUDGMENT

25.06.2025 SASHIKANTA MISHRA, J.

The petitioner was appointed as Jogan Sahayak

on 28.04.2016 on contractual basis as per order passed

by the BDO, Buguda. He joined as such in Bhamasiali

Gram Panchayat under Buguda Block in the district of

Ganjam. While working as such, he was issued with a

show cause notice issued by the BDO, Buguda on

28.09.2024 alleging that he had remained unauthorizedly

absent from duty from 26.09.2024 to 28.09.2024. The

petitioner submitted his reply on 29.09.2024, stating that

he had proceeded to Surat for collecting e-KYC of migrant

workers on the direction of Opposite Party No.5

(Sarpanch). However, without considering the explanation

submitted by the petitioner, the Sub-Collector,

Bhanjanagar, vide order dated 03.10.2024 directed the

BDO to instruct the Sarpanch to disengage the petitioner

as Jogan Sahayak with immediate effect. The petitioner

has therefore, approached this Court seeking the following

relief:-

Under the aforesaid facts and circumstances, it is therefore prayed that this Hon'ble Court may graciously be pleased to:

(i) Admit and allow this Writ Petition and thereby quash the impugned Order, 18.10.2024, issued by the Opp.Party No.3 for disengagement of the Petitioner from the post of Jogan Sahayk of Bhamasiali G.P. as at Annexure-2 Series by concurrently holding the same, as bad, illegal and is not sustainable and/or maintainable in the eye of law;

(ii) Direct /order the Opp. Parties to reengage the present petitioner in the aforesaid post, taking into account of his earlier period of service and experience thereof in the interest of justice;

(iii) Pass such other order(s) or issue direction(s) as may be deemed fit and proper in the bona fide interest of justice;

And for this act of kindness, the Petitioner as in duty bound shall ever pray.

2. Counter affidavit has been filed by the BDO,

Buguda inter alia, stating as follows:-

That, it is humbly submitted that, the Petitioner was appointed as Jogan Sahayak of Bhamasiali Gram Panchayat under Buguda Block by the BDO, Buguda vide order dated 28.04.2016 which was approved by the Sub- Collector, Bhanjanagar vide letter dated 28.04.2016. While the petitioner was working the concerned G.P. as such, it was come to the notice of the block authority that the petitioner without taking permission to leave headquarter, had moved Surat(State-Gujarat) with the e- POS machine to conduct e-KYC of PDS beneficiaries of Bhamasiali GP without taking any prior permission from the lawful authority. He unauthorizedly remained absent from 26.09.2024 to 28.09.2024 and other day also.

It is pertinent to mention here that, though the petitioner being employed temporarily at Gram Panchayat level, he cannot leave headquarter without prior permission of Sarpanch of concerned GP who is his appointing authority. As such he has committed misconduct, indiscipline and negligence in his duty. Further the post of Jogan Sahayak is purely temporary in nature at GP level with a monthly honorarium (Rs.3500/- to Rs.4000/-) as decided in GP meeting and it may be increased Rs.5000/- per month however this amount should not exceed 70% of total amount of commission and they can be terminated and debarred at any time as per the circular of Govt. Odisha from time to time.

3. Heard Mr. J. Sahoo, learned counsel for the

petitioner and Mr. S.S. Routray, learned Addl. Standing

Counsel for the State.

4. The facts of the case are not disputed to the

effect that the petitioner while working as Jogan Sahayak

had proceeded to Surat to conduct e-KYC of the migrant

workers residing there. It is stated he had done so on the

instructions of the Sarpanch. In the reply to the show

cause, the petitioner has specifically mentioned that

because of the migration of large number of beneficiaries

from the district of Ganjam to Surat, the e-KYC

verification is unable to be conducted for which, he

proceeded to Surat after consulting with the Sarpanch,

Executive Officer and the Supply Inspector. This

particular aspect does not appear to have been considered

in the proper perspective by the Sub-Collector before

deciding to take the extreme step of disengagement of the

petitioner. Nothing has been placed before this Court to

show that the petitioner's action as above was in any way

detrimental to the Government Work, rather he appears to

have proceeded to Surat solely for the purpose of

verification of e-KYC of the beneficiaries who had migrated

to Surat. This cannot be treated as misconduct in

employment under any circumstances. In any case,

assuming that he had proceeded to Surat without express

permission of the authorities, then also the extreme action

of disengagement appears to be grossly disproportionate

to his conduct. It is the settled position of law that penalty

imposed on an erring employee has to be proportionate to

his misconduct and not unduly harsh or even vindictive.

In the case of Ranjit Thakur v. Union of India & Others,

AIR 1987 SC 2386 the Supreme Court has held as

follows:-

"But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review. In Council of Civil Service Unions v. Minister for the Civil Service (1984) 3 WLR 1174 (HL) Lord Deplock said:

"......Judicial review has I think, developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call illegality, the second irrationality and the third procedural impropriety. That is not to say that further development on a case by case basis, may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of proportionality which is recognized in the administrative law of several of our fellow members of the European Economic Community....."

In Bhagat Ram v. State of Himachal Pradesh, AIR 1983 SC 454 (at p460) this Court held:

"It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Art.14 of the Constitution."

The point to note and empliasise is that all powers have legal limits. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review."

The case at hand is one where the petitioner can only be

held guilty, if at all, for not taking express permission of

the concerned authorities before proceeding to Surat on

Government Work. In the considered view of this Court,

even if it is accepted as a misconduct, it cannot be treated

as so grave or serious as to visit him with the extreme

penalty of disengagement.

6. For the foregoing reasons therefore, this Court is

of the considered view that the penal action taken against

the petitioner cannot be sustained in the eye of law.

7. The writ application is therefore, allowed. The

impugned orders dated 03.10.2024, 18.10.2024 and