Allowed

Rasikananda Mohanty v. State of Orissa

Orissa HC13 Mar 2023WP(C)/1641/2018

Case brief

AI extract

What is this about?

This writ petition challenged an order treating the petitioner's alleged absence during an examination as 'no work no pay'. The High Court held the order vitiated by violation of natural justice and lack of positive findings, quashed it, and directed regularization.

What did the court decide?

Impugned order quashed; services regularized by treating the disputed date as duty; consequential benefits to be extended within two months.

Rasikananda Mohanty Vs State of Orissa — 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. 1641 of 2018

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(An application under Article 226 & 227 of the Constitution of India)

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---------------

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AFR Rasikananda Mohanty ...… Petitioner
-Versus-
State of Odisha and others ...... Opposite Parties
Advocate(s) appeared in this case:-

For Petitioner : M/S. S.K. Das,
S.K.Mishra, Advocates.
For Opp. Parties : Mr. R.N.MIshra-II
Additional Government Advocate

CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
13 th March, 2023
SASHIKANTA MISHRA, J. The petitioner while as working, as
Reader in Philosophy Laxmi Narayan Mohavidyalaya,
Jamusuli in the district of Balasore was functioning as the
Principal in charge of the said college. While he was
containing as such, the +3 third, Semester examination
commenced from 12.12.2017. The petitioner was the Centre
Superintendent. On 16.12.2017, the petitioner as the Centre

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Superintendent opened the question paper packets in presence of the Deputy Superintendent and other invigilators at 9.30 a.m and distributed the same to the invigilators of different examination halls. The Regional Director of Education, Bhubaneswar, visited the college on same day at 10 a.m. He allegedly found the petitioner absent which he reported to the President of the Governing Body by the letter under Annexure-5. In said letter, he specifically alleged that the petitioner being the Centre Superintendent was not present at 10 a.m. and also referred to certain allegations made against the petitioner earlier regarding late coming to the college, avoiding to take classes etc. It was also alleged that he had exhibited arrogant and rude behaviour in his office on 13.11.2017 in presence of the President of the Governing Body. As such, the opposite party No.3 held that change should be framed by treating his absence from duty on 16.12.2017 as no work no pay. This was followed by another letter written by opposite party No.3 to the President of the Governing Body on 09.01.2018 (copy enclosed as Annexure-6) and again a letter dated 11.01.2018 (Annexure7). Ultimately on 18.01.2018, the Director of Higher

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Education, Odisha passed an order treating the petitioner’s absence from duty on 16.12.2017 as no work no pay.

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Mr. S.K.Das, learned counsel for the petitioner has contended that the action of the Regional Director as well as Director of Higher Education, Odisha is entirely arbitrary whimsical and in any case, not based on records. He further submits that neither any proceeding was initiated nor the allegation was proved in accordance with law. According to Mr. Das therefore, the impugned order under Annexure-8 cannot be sustained in the eye of law.

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Mr. B.P. Tripathy, learned AGA submits that as the Centre Superintendent it was the duty of the petitioner to remain present and oversee the smooth conduct of the examination. To such extent therefore, the authorities cannot be blamed for taking action against him.

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There is no appearance from the side of the other opposite parties.

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It is borne out from the materials on record that

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the Regional Director of Education instructed the President of the Governing Body of the college on 16.12.2017, 09.01.2018 and 11.01.2018 to initiate proceeding against the petitioner.

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Nothing was done in this matter inasmuch as there is no endeavour of any proceeding having been initiated against the petitioner. Thus, what emerges from the submissions made and materials on record is, the impugned order of treating the petitioner’s so called absence as no work no pay was issued without adhering to the principles of natural justice. Moreover, such order was not preceded by any positive finding regarding the allegation made against the petitioner. That apart, the petitioner also does not appear to have been granted any opportunity of hearing in the matter. 6. It is trite law that when an order is proposed to be passed to the detriment of an employee, it is incumbent upon the said authority to grant an opportunity of hearing to the petitioner.

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Reference may be had to the decision of the Apex Court in the case of State of Odisha vs. Dr. (Miss.) Binapani Dei ; reported in AIR 1967 SC 1269 wherein it was held as follows:-

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“xxx xxx xxx

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An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fairplay. The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance

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with the forms of judicial procedure may not be insisted upon. He is however under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice. For that purpose the person against whom in enquiry is held must be informed of the case he is called upon to meet, and the evidence in support thereof. 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.”

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This Court finds from the documents enclosed to

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the writ application that there is at least prima facie proof of

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the petitioner being present in the college at the relevant time. In any case, without entering into the factual controversy, it would suffice to note that the impugned order

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was passed without any finding establishing the guilt of the petitioner as also without adhering to the principles of natural justice. As such, the impugned order cannot be

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sustained in the eye of law. It is stated at the bar that the petitioner has retired w.e.f. 31.07.2018. This one day break in service may operate adversely to him in so far as the retirement benefits are concerned.

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In the result, the writ application is allowed. The impugned order under Annexure-8 is hear by quashed. The authorities are directed to pass necessary orders to regularise the services of the petitioner by treating 16.12.2017 as being on duty and to extend all consequential benefits to him within a period of two months from the date of communication of this order or on production of certified copy of thereof.

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……..………………….. Sashikanta Mishra, Judge

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Orissa High Court, Cuttack, The 13^th March, 2023/ Deepak

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Rasikananda Mohanty v. State of Orissa

Case brief

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Rasikananda Mohanty v. State of Orissa

Case brief

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