Ajaya Kumar Pattnaik vs State of Orissa and Others

S.N. Prasad, J—Being aggrieved with the order dated 21.2.2012 as contained in office Order No. 69 by which petitioner has been disengaged from Junior Teacher by the order of the Collector-cum-CEO, Zilla Parishad, Khurda, has approached this Court.

Grievance of the petitioner in this case is that the petitioner has been engaged as Sikhya Sahayak initially and after completion of the three years tenure in terms of the government guideline, he has been taken as Junior Teacher and functioning therein but he has been transferred from one place to another which has been challenged by him before this Court by way of preferring writ petition in which order of transfer has been quashed.

Case of the petitioner is that after quashing of the order of transfer although the authority had permitted to discharge duty at the place where he was discharging prior to the order of transfer but the authority in highly malafide way has conducted an enquiry and has found certain irregularities thereby the petitioner has been given show cause notice which had duly been replied but the authority without considering defence reply has passed order of disengagement.

Further contention of the learned counsel for the petitioner is that show cause notice has been issued by the District Project Coordinator, SSA, Khurda before whom he has given his show cause reply but that has not been taken into consideration by the District Project Coordinator and Collector-cum-CEO, Zilla Parishad, Khurda has passed order of disengagement that too on the basis of the instruction given by the Commissioner-cum-Secretary, School and Mass Education Department. Hence, it has been contended that initiation of a proceeding is merely a formality and order of disengagement has been passed by way of malice since order of transfer has been challenged by the petitioner before this Court which has been quashed and as counter blast to that petitioner has been disengaged.

Further contention of the learned counsel for the petitioner that it is settled that charge sheet is being issued by an authority which is supposed to be considered by the same authority, this principle has not been followed in this case because the District Project Coordinator has issued charges/memorandum of irregularities before whom he has given reply but he has not considered the said reply although opportunity of personal hearing has been given and thereafter order of disengagement has been passed by the Collector-cum-CEO, Zilla Parishad, Khurda that too on the basis of the instruction of the Commissioner-cum-Secretary, School and Mass Education Department, hence no proper application of mind has been applied and the authorities have acted on the basis of dictate of the Commissioner-cum-Secretary, thus the order of disengagement cannot be said to be legal and suffers from malice.

On the other hand, learned counsel for the opposite party-State has submitted that the Commissioner-cum-Secretary of the Department on the basis of special complaint received has directed to conduct enquiry against the petitioner regarding irregularities and on the enquiry it has been found that the petitioner has committed irregularities and as such decision was taken to initiate proceeding against the petitioner. Accordingly, memorandum of charges has been served upon the petitioner. Petitioner has been given ample opportunity to defend himself even by permitting him for personal hearing before the District Project Coordinator and thereafter the Collector-cum-CEO, Zilla Parishad, Khurda has passed order of disengagement, hence there is no illegality.

He has further contended that a person who has found committing any irregularity cannot be retained in service and that is the reason petitioner has been disengaged from service since certain irregularities have been found to be proved.

Heard learned counsel for the petitioner and perused the documents on record.

Undisputed fact in this case is that the petitioner has been engaged as Sikhya Sahayak and thereafter completion of minimum tenure of three years he has been taken as Junior Teacher under the guideline of the Government and on that basis he was continuing. He was transferred from one place to another, same was challenged by the petitioner before this Court vide W.P.(C) No. 22911 of 2011 and vide order dated 16.1.2012 order of transfer dated 4.8.2011 has been quashed with a direction to the respondents to permit the petitioner to continue to work as Sikhya Sahayak of Bhimpur Primary School where he was initially working before his transfer. Petitioner started discharging his duty but thereafter on the basis of some complaint made against the petitioner before the Commissioner-cum-Secretary, School and Mass Education Department, fact finding committee has been constituted which has found the allegations true. In pursuance to the said finding, District Project Coordinator has issued article of charges vide notice dated 15.9.2011 alleging therein the following charges:

"(i) Negligence in duty,

(ii) Disobedience of Government orders,

(iii) Cheating innocent villagers with pecuniary interest,

with a directing to the petitioner to give explanation by 30.9.2011 failing which action as deemed proper shall be initiated."

Petitioner has given due reply before the District Project Coordinator on 30.9.2011(Annexure-10) denying the entire allegations, also stating therein that he is being harassed due to order of transfer having been challenged before this Court in W.P.(C) No. 22911 of 2011. Thereafter, order of disengagement from service has been issued on 21.2.2012 by the Collector-cum-CEO, Zilla Parishad, Khurda.

In the order dated 21.2.2012 the petitioner at that time has been taken as Junior Teacher.

From perusal of the order dated 21.2.2012 it is evident that the Collector-cum-CEO, Zilla Parishad, Khurda has passed order of disengagement in pursuance of instructions of the Commissioner-cum-Secretary, School and Mass Education Department communicated by the Deputy Director(Admn.), OPEPA, Bhubaneswar vide letter No. 6457 dated 12.9.2011 and as per the finding of the personal hearing dated 19.10.2011 the petitioner has been found to be in violation of terms and conditions of the Annual Contract and as such he has been disengaged.

It is further evident that the terms and conditions of the contract is that second party denotes the petitioner who is supposed to obey the rules prescribed and shall discharge whenever required to perform such duties as may be assigned and the second party i.e. the petitioner has agreed to serve in the manner as required and perform the duties assigned by the first party.

In this context, learned counsel for the petitioner has raised an issue of jurisdiction on the ground that the contract which has been entered in between the Collector-cum-CEO, Zilla Parishad, Khurda and the petitioner, hence question of satisfaction and dissatisfaction will be of paramount importance of the Collector and not of the District Project Coordinator, hence grounds taken by the Collector-cum-CEO, Zilla Parishad, Khurda regarding violation of terms and conditions of the contract that was under the subject matter of show cause notice given by the District Project Coordinator cannot be said to be within the jurisdiction of District Project Coordinator.

In order to substantiate this argument learned counsel for the petitioner has drawn attention of the Court towards the agreement which has been entered in between the petitioner and the Collector-cum-CEO, Zilla Parishad, Khurda, from perusal of the agreement this Court find substance in the argument to the effect that bilateral agreement has been entered in between the petitioner and the Collector-cum-CEO, Zilla Parishad, Khurda and if in case of violation of any terms and conditions, it is the Collector who is supposed to issue any show cause notice and to take action and not the D.P.C.

So far as the contention raised by learned counsel for the petitioner that the D.P.C. who has issued show cause notice, which has duly been replied by the petitioner, it has not been considered by the D.P.C. and without considering the same order of disengagement has been passed by the Collector.

In order to assess this argument, the relevant records like show cause notice issued by the D.P.C. and the order passed by the Collector-cum-CEO, Zilla Parishad, Khurda dated 21.2.2012 needs to be seen, from its perusal it is evident that show cause has been issued by the D.P.C. alleging several irregularities against the petitioner which has duly been replied by him before the D.P.C., but in the entire pleadings of the opposite party-State who has filed detail counter affidavit it has not been brought on record that the reply submitted by the petitioner has at all been considered by the D.P.C. or not. Hence, in absence of any document inference can be drawn that reply given by the petitioner has not been considered by the D.P.C. Even if it has been considered, then also order of disengagement ought to have been passed by the D.P.C. but it has not been passed and rightly not passed because the D.P.C. was not the competent authority rather the Collector-cum-CEO, Zilla Parishad, Khurda is the competent authority. In that circumstances, the show cause notice ought to have been issued by the Collector-cum-CEO, Zilla Parishad, Khurda and reply ought to have been considered by the Collector but that has not been done.

It is settled that departmental proceeding is supposed to be initiated by the competent authority meaning thereby the authority competent to appoint can dismiss as per Section 16 of the General Clauses Act which speaks as follows:

"Where, by any Central Act or Regulation, a power to make any appointment is conferred, then, unless a different intention appears, the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power."

Furthermore, the Collector has not applied his independent mind rather he has acted in terms of the instruction of the Commissioner-cum-Secretary, School and Mass Education Department which has been communicated by the Deputy Director (Admn.), OPEPA, Bhubaneswar and on the basis of the instruction, order of disengagement has been passed.

In this context, decision of the Hon''ble Supreme Court in the case of V.K. Ashokan Vs. Asstt. Excise Commnr. and Others, (2009) 164 ECR 1 : (2009) 5 JT 104 : (2009) 4 SCALE 225 : (2009) 14 SCC 85 : (2009) 4 SCR 331 : (2009) 3 UJ 1329 needs to be referred to and their Lordships have been pleased to held that if the higher authority directs to the subordinate authority there is general tendency to affirm the view of higher authority and all procedure will be merely formality.

Exactly, in this case, the Collector-cum-CEO, Zilla Parishad, Khurda has acted on the basis of the instructions of the Commissioner-cum-Secretary, School and Mass Education Department as would be evident from the office order dated 21.2.2012, hence it can safely be said that the Collector-cum-CEO, Zilla Parishad, Khurda has not applied his independent mind.

Accordingly, the order passed by the Collector-cum-CEO, Zilla Parishad, Khurda dated 21.2.2012 is not sustainable in the eye of law, hence the same is hereby quashed.

Simultaneously, it is also worth to be seen that allegations which has been leveled against the petitioner needs to be examined by providing adequate opportunity before consideration. In view of this reason, the matter needs to be reconsidered by the authority.

Hence, the matter is remitted before the Collector-cum-CEO, Zilla Parishad, Khurda to take fresh decision after considering the reply already submitted by the petitioner by taking independent decision without being influenced by the instruction of the Commissioner-cum-Secretary, School and Mass Education Department and providing opportunity of personal hearing to the petitioner.

It is expected that the Collector-cum-CEO, Zilla Parishad, Khurda shall take decision without further delay preferably within period of four weeks from receipt of certified copy of this order which shall be presented by the petitioner.

The writ petition is disposed of with the aforesaid observation and direction.