Remanded

Abhaya Kumar Mallik v. the Chairman ,Ocac,Bbsr

Orissa HC26 Jun 2023WP(C)/1352/2021

Case brief

AI extract

What is this about?

This court set aside the impugned order dated 01.06.2020 which rejected the petitioner's appeal without a hearing. The appellate authority was remanded to consider the appeal afresh within two months, providing an opportunity of hearing and issuing a reasoned order.

What did the court decide?

The order dated 01.06.2020 was set aside; matter remanded to the appellate authority to dispose of the appeal afresh within two months after affording an opportunity of hearing.

Abhaya Kumar Mallik Vs the Chairman ,Ocac,Bbsr — Pension and Retirement Benefits | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No.1352 of 2021

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Abhaya Kumar Mallik

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…. Petitioner Mr.D.R.Mohapatra, Advocate

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-versus-

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Chairman, OCAC, Bhubaneswar and another

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…. Opposite Parties

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Mr.S. Das,Advocate

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CORAM:

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JUSTICE A.K. MOHAPATRA

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Order No.

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ORDER 26.06.2023

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1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).

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Heard learned counsel for the Petitioner as well as learned counsel appearing for the Orissa Computer Application Centre, Perused the pleadings of the parties as well as the documents annexed thereto.

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The present Writ Petition has been filed by the Petitioner with the following prayer:

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“It is therefore prayed that let this Hon’ble Court may graciously be pleased to issue rule NISI by calling upon the Opp.Parties to file show cause as to why the order No.1491 dated 31.05.2010 passed by the Opp.PartyNo.2 under annexure-1 shall not be quashed and the Petitioner shall not be reinstated into service with all service benefits and arrear salaries.

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// 2 //

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If the Opp.Parties fail to show cause or show insufficient cause make the rule absolute by quashing the order No.1491 dated 31.05.2020 passed by the Opp.Party No.2 under Annexure-1 and the Office Order No.1295 dated 01.06.2020 passed by the Opp.Partyno.1 shall not be quashed and the Petitioner shall not be reinstated in service with all service benefits and arrear salary.

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And further be pleased to issue any other writ/writs or pass any other order/orders as this Hon’ble Court may deem just and proper in the eye of law;”

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The factual background of the present case is that the Petitioner was initially appointed on 06.05.1992 as Data Entry Operator by the Opposite Parties and accordingly he was posted at Odisha Computer Application Centre, Janpath, Bhubaneswar. On 12.01.2014 the Petitioner was assigned with the work in the State Portal Group at SCCF, Secretariat. While the Petitioner was working as such, the Petitioner remained on unauthorised leave, accordingly he was served with a memorandum of charge on 04.12.2004 by the Chief Executive, Odisha, Computer Application Centre and the Petitioner was asked to show cause on the allegation of gross misconduct and negligence of duty. On 04.01.2005 the Petitioner submitted his reply.

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Thereafter, the mater remained pending and on 03.06.2009 the Enquiring Officer submitted enquiry report suggesting imposition of penalty of dismissal from service. While the matter stood thus, on 31.03.2010 the General Manager, OCAC issue a letter to the Petitioner asking him to appear before the Chairman-cum-Chief Executive, OCAC on 05.04.2010 for personal hearing on the charges made against him in Memorandum dated 04.12.2004.. Pursuant to the aforesaid notice, the Petitioner appeared before the Chairman-cumChief Executive, OCAC on 05.04.2010. Thereafter, the Chairman-

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// 3 //

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cum-Chief Executive, OCAC passed the final order imposing penalty vide his order dated 10.02.2010.

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After the final order was passed in the Disciplinary Proceeding imposition of punishment of dismissal from service, the Petitioner preferred an appeal under Rule 55 of the Orissa Computer Application Centre Service Rules, 1997 on 29.06.2010 before the Chairman of OCAC. Learned counsel for the Petitioner submitted that since the Chief Executive Officer is the disciplinary authority, the impugned order dated 31.05.2010 under Annexure-1 is appealable before the Chairman OCAC as provided under Rule55(1) of Orissa Computer Application Centre Service Rules, 1997. Accordingly, he presented the appeal before the Chairman.

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He further contended that the appeal was not taken up for hearing for a long time, as a result of which the Petitioner was compelled to approached this Court by filing W.P.(C) No.7521 of 2020. It was also contended that the aforesaid Writ Petition was disposed of vide order dated 04.03.2020 directing the appellate authority to dispose of the appeal within a period of three months from the date of communication of certified copy of the order dated 04.03.2020.

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While the matter stood thus, on 01.06.2020 the General Manager (Admn) OCAC issued a letter to the Petitioner bearing Letter No.1295 dated 01.06.2020 indicating therein that the appeal Petition dated 26.06.2010 against the order dated 31.05.2010 of CEO, OCAC was rejected as it had no merit. Learned counsel for the Petitioner further referring to letter dated 25.06.2020, which was obtained under the RTI Act submitted before this Court that in the said letter there is an endorsement by the General Manager (Admn.) mentioning that from the records it is seen that the appeal of the

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// 4 //

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Petitioner was disposed of by the Chairman on 20.12.2010. He further submits that this fact was never intimated to the Petitioner. Further, it is submitted by the learned counsel for the Petitioner that it has been clearly reflected in the said note that the order has not yet been communicated as the copy of the order is not available in the file. Being aggrieved by such action of the Opposite Parties, the Petitioner has approached this Court by filing the present Writ Petition.

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On the other hand, learned counsel appearing for the Opposite parties submitted that the Petitioner was found negligent in duty and committed a gross misconduct by remaining unauthorisedly absent from service. As a result of which, a proceeding was initiated against him in accordance with law and in terms of the relevant Rules of the Orissa Computer Application Centre. After conducting an enquiry it was found that the Petitioner was guilty of the charges brought against him and accordingly the Inquiring Officer suggested for punishment of removal from service.. Thereafter the Disciplinary Authority cum-Chief Executive Officer passed the order of dismissal. It is further contended that on an appeal filed by the Petitioner against the order dated 31.05.2010, the appellate authority has already considered the appeal and it was found that the Petitioner’s appeal is devoid of merit. Accordingly, the appeal was rejected. In this context, learned counsel for the Opposite Parties referred to the order under Annexure-A/1 to the Counter Affidavit. 10. Heard learned counsel for the respective parties and perused the pleadings as well as the documents annexed thereto. 11. On a careful scrutiny of legality and validity of the order passed by the appellate authority on 01.06.2020 under Annexure-A/1 to the Counter Affidavit, this Court is of the view that the appellate

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// 5 //

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authority without following the principles of natural justice by a cryptic order disposed of the appeal. From the admitted fact, it appears that no opportunity of hearing was granted to the Petitioner by the appellate authority while deciding the appeal. At least the order does not reflect that any opportunity of hearing was provided to the Petitioner by the appellate authority. In the aforesaid factual backdrop, this Court is compelled to accept the contention of the Petitioner that the appeal was decided behind the back of the Petitioner without giving him any kind of intimation with regard to date of hearing or affording a reasonable opportunity to present his case.

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In the facts and circumstances of the present case, this Court deems it proper to set aside the order No.1295 dated 01.06.2020 under Annexure-A/1 to the Counter Affidavit. Accordingly, the same is hereby set aside and further the matter is remanded back to the appellate authority i.e. Chairman, Odisha Computer Application Centre to consider the matter afresh in terms of Rule 55 of the Odisha Computer Application Centre Service Rules, 1997. It is needless to mention here that the appellate authority shall do well to provide an opportunity of hearing to the Petitioner before passing the final order in the appeal preferred by the Petitioner. The appellate authority shall also do well to dispose of the appeal by a speaking and reasoned order by taking into consideration the contentions raised by the Petitioner in the appeal memo. The appellate authority shall make every endeavour to dispose of the appeal within a period of two months from the date of communication of a certified copy of this order. The decision so taken be communicated to the Petitioner within two weeks from the date of taking such a decision.

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// 6 //

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With the aforesaid observation the Writ Petition stands disposed of.

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Issue urgent certified copy of this order as per Rules.

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RKS

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( A.K. Mohapatra ) Judge

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Signature Not Verified

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Digitally Signed Signed by: RAMESH KUMAR SINGH Designation: Ex-A.R.-cum-Sr. Secretary Reason: Authentication Location: High Court of Orissa Date: 27-Jun-2023 17:59:20

Abhaya Kumar Mallik v. the Chairman ,Ocac,Bbsr

Case brief

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Abhaya Kumar Mallik v. the Chairman ,Ocac,Bbsr

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