Orissa High Court
Chittaranjan Mallick vs State Of Odisha And Others .... Opposite ... on 28 March, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C). No. 19996 of 2019
(An Application under Articles 226 & 227 of the Constitution
of India)
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Chittaranjan Mallick ...... Petitioner
-Versus-
State of Odisha and Others .... Opposite Parties
_____________________________________________
For Petitioner : Mr. M. Mohapatra, Advocate,
For Opp. Party : Mr. S.N.Pattnaik,
Additional Government Advocate for
the State.
Mr. N. Samal, Advocate for Opp. Party
No. 5
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
28th March, 2025
SASHIKANTA MISHRA, J.
The petitioner has approached this Court with the
following prayer;
"It is prayed therefore, that this Hon'ble Court may
graciously be pleased to
a) Admit the writ application:
b) Call for the records
c) Issue Rule Nisi in calling upon the opposite parties as
to why the order of disengagement dated 09.01.2018
passed by the Collector-cum-DPC (MGNREGS), Jajpur
under Annexure 5 shall not be quashed and the
petitioner shall not be allowed to perform his duty of
Gram Rojgar Sevak (GRS) of Arthanga Gram Panchayat,
d) If the opp.parties fails to show cause or shown
insufficient cause the said rule be made absolute
And pass any other order(s), direction(s) as this Hon'ble
Court deem fit and proper
And for this Act of kindness the petitioner shall as in
duty bound ever pray."
2. The facts of the case are that an advertisement was
issued by the Collector, Jajpur inviting applications for
engagement of Gram Rojgar Sevak of different Gram
Panchayats under Rasulpur block. The petitioner was
one of the applicants and was selected as per the select
list published on 10.12.2007. He was thereafter
appointed pursuant to letter of engagement issued by
the Sarpanch, Arthanga Gram Panchayat on the same
day.
3. The Project Director, DRDA vide letter dated
26.07.2016 issued a show cause notice to the petitioner
basing on the allegation of one Satyabrata Sarat Kumar
Das, Advocate to the effect that he has obtained NOC for
construction of LPG godown for LPG dealership by
providing funds and documents to the HPCL authorities.
The petitioner submitted his reply on 09.08.2016 inter
alia stating that the complainant bore a grudge against
him which prompted him to lodge the complaint. On
merits, it was stated that his family was exploring the
opportunity for venturing into cooking gas business
reserved for scheduled caste category. Further, the
District Magistrate after following the procedure of law
had granted No Objection Certificate in favour of his
family concerned, which is a Hindu undivided family
business and his wife also lent support financially to
him. The complainant, having failed to obtain the LPG
Gas dealership of his client Sebati Soren, had filed the
complaint out of grudge. The petitioner's family had
therefore, filed a defamation case against the
complainant.
4. The Collector, Jajpur by order dated 09.01.2018
disengaged the petitioner from the post of GRS w.e.f.
04.01.2018 on the ground of being unlawfully engaged
by giving false and fabricated documents to HPCL for
construction of LPG godown for LPG business at Jajpur
Road area.
5. Being aggrieved, the petitioner has filed this writ
application with the prayer as quoted above.
6. Counter affidavit has been filed by the BDO on behalf
of the Opposite Parties. It is stated that a complaint was
received against the petitioner for having taken
dealership of LPG gas while working as GRS. He was
found to be dealing in LPG Gas. As such, he was
disengaged. Moreover, because of his engagement in gas
agency his performance in Aadhaar seeding, job card
verification under MGNREGA, Geo tagging and house
completion under Rural Housing Scheme is very poor for
which, he was directed to show cause on number of
occasions. It is also stated that the petitioner ought to
have filed appeal before the Director, Special Projects as
per the comprehensive guidelines dated 06.04.2018.
7. Heard Mr. M. Mohapatra, learned counsel for the
petitioner and Mr. S.N.Pattnaik, learned Additional
Government Advocate for the State.
8. Mr. Mohapatra would submit that the engagement of
the petitioner as GRS is purely temporary and on
contract basis subject to renewal from time to time.
Moreover, said engagement was subject to submission of
an undertaking that he would not claim regular
employment under the Government. As such, there is no
employment or any employer-employee relationship
between the Government and the petitioner so as to
create a bar for him to seek other avenues of
employment submitted against him.
9. Mr. Pattnaik, learned State counsel on the other hand
would submit that the nature of work of GRS is that his
full attention and participation is necessary. In the
event, the person concerned is engaged in other
activities, his work as GRS would naturally suffer, which
is what has happened in the present case. According to
Mr. Pattnaik, therefore, the petitioner was rightly
disengaged.
10. The facts of the case as narrated are not disputed. A
show cause notice was issued on 26.07.2016 by the PD,
DRDA, specifically asking the petitioner to show cause
notice with regard to obtaining NOC for construction of
LPG Godown for LPG dealership providing false and
fabricated documents to the HPCL authorities. Be it
noted that what false and fabricated documents were
allegedly submitted by the petitioner is not clarified in
the show cause notice.
Be that as it may, the petitioner submitted his reply on
09.08.2016 clearly stating his position and admitting
the fact of obtaining NOC. The impugned order dated
09.01.2018 passed by the Project Director simply states
that the petitioner is disengaged on the ground of being
unlawfully engaged in trade by giving false and
fabricated document to HPCL. Again, on bare reading of
the impugned order, it is evident that firstly, what false
and fabricated documents were allegedly submitted by
the petitioner to HPCL authority has not been
mentioned at all and secondly, whether the reply
submitted by the petitioner to the show cause notice
was considered or not, has also not been stated.
11. As regards the stand taken by the State in its
counter that the remedy of appeal is available, this
Court finds that such contention is based on the
comprehensive guidelines issued by the PR and DW
department on 06.04.2018. The order of disengagement
was passed prior to issuance of the said guidelines. The
stand taken by the State is therefore, not tenable.
12. Further, the petitioner does not appear to have been
granted any opportunity of personal hearing. The order
of disengagement is unsustainable on the above count
alone.
13. However, considering the specific stand taken by the
State that having been engaged as GRS, the petitioner
could not have been involved in any other trade, this
Court, during hearing of the case directed the State
counsel to satisfy the Court as regards any bar in law
for a GRS to be engaged in any other activity
simultaneously. Pursuant to such direction, an
additional affidavit was filed enclosing sample copies of
the engagement order of GRS, the proforma of
undertaking and the prevalent guidelines. From the
sample copies of the undertaking, which forms part of
the engagement order and a copy of which has been
enclosed as Annexure-D/4, it is seen that every person
engaged as GRS was required to submit the following
undertaking.
"I am quite aware that the engagement offered is purely
temporary and for a specific purpose of executing the work
under MGNREGA and this is not a permanent job. Hence, I
solemnly affirm that I would not claim my permanent
absorption in The job under State Government/ Zilla
Parishad/Panchayat Samities/ Gram Panchayats etc.
Further, I undertake not to approach any Court of Law for
engaging me on permanent basis under the State Government
or any other organization merely on the ground of my
engagement as Gram Rozgar Sevak."
Two things are apparent. Firstly, the work of GRS is not
permanent and for the specific purpose of executing
work under MRNEGA. Secondly, the engagement is
subject to the condition that he would not claim
permanent absorption in any job under State
Government/Gram Panchayat/Panchayat Samiti/Zilla
Parishad etc. There is no other condition debarring him
from taking up any other avocation in the undertaking.
Thus, while the State makes it clear that there is no
employee or employer relationship between it and a
person appointed as GRS yet, at the same time, it takes
the rather unconscionable stand that a person so
engaged cannot seek any other avocation at the same
time. It would be worthwhile at this stage to refer to
Article 19 (1)(g) of the Constitution of India which reads
as follows:
"19. (1) All citizens shall have the right--
g) to practise any profession, or to carry on any occupation,
trade or business."
By imposing such restrictions as in the present case, it
is obvious that the fundamental right guaranteed under
Article 19(1)(g) would be violated, which obviously
cannot be countenanced in law.
14. From a conspectus of the analysis of facts, law and
the contentions raised, this Court is left with no doubt
that the impugned order cannot be sustained in the eye
of law as it seeks to impose unreasonable restrictions on
the fundamental right of the petitioner guaranteed
under Article 19 (1) (g) of the Constitution of India. Even
otherwise, the impugned order, for the reasons indicated
before, cannot be sustained in the eye of law.
15. For the foregoing reasons therefore, the writ
application is allowed, the impugned order dated
09.01.2018 is hereby quashed. The Opposite Party
authorities are directed to reinstate the petitioner as
GRS forthwith. It is made clear that the petitioner shall
not be entitled to any financial benefit for the period of
disengagement but said period shall be notionally
counted for the purpose of continuity of his engagement.
...............................
Sashikanta Mishra,
Judge
Deepak
