Allowed

Sushanta Kumar Padhan v. State of Odisha

Orissa HC8 May 2023WP(C)/2308/2023

Case brief

AI extract

What is this about?

The High Court set aside the disengagement order against a contractual employee for violating natural justice by denying him the Inquiry Report. The writ petition was allowed, setting aside prior orders and directing the authority to provide the report and another chance to reply.

What did the court decide?

The disengagement order dated 08.06.2012 and subsequent orders were set aside. The authority is directed to supply the Inquiry Report within 15 days. The writ application is allowed.

Sushanta Kumar Padhan Vs State of Odisha — Service and Employment | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P. (C) No.2308 of 2023

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Sushanta Kumar Padhan

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….. Petitioner Mr.Ranjit Mohanty, Advocate

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Vs.

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State of Odisha and others

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….. Opposite Parties Mr.D.Nayak, AGA

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CORAM:

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JUSTICE S.TALAPATRA JUSTICE SAVITRI RATHO

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ORDER

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08.05.2023

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Order No. 1. This matter is taken up through hybrid mode.

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Heard Mr.Ranjit Mohanty, learned counsel appearing for the petitioner and also Mr.D.Nayak, learned Additional Government Advocate appearing for the opposite parties.

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By means of the writ application under Article 226 of the Constitution of India, the petitioner has sought judicial review of the order dated 10.01.2019 delivered in O.A. No.2659 of 2014 by the Orissa Administrative Tribunal, Principal Bench, Bhubaneswar (Annexure-7) and the order dated 11.10.2022 passed in RVWPET (RP) No.38 of 2019 by the learned Single Judge of this Court (Annexure-9).

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It may be noted that by the order dated 11.10.2022, the review

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petition filed by the petitioner was dismissed by affirming the order dated 10.01.2019. There is no dispute relating to the facts of the petitioner’s engagement as Grama Panchayat Technical Assistant (GPTA) and inquiry against him for defalcation of huge amount at the time of implementing MGNREGA services. It is also not in dispute that the petitioner was engaged on contractual basis. But his date of joining could not be ascertained from the records. The last agreement engaging the petitioner was made on 05.09.2011, Annexure-2 to the writ petition for the period from 02.03.2011 to 28.02.2012. It has been provided in the Clause-10 of the said agreement that breach of any terms or condition of the said agreement by the petitioner shall be treated as mis-conduct and in the Clause-11 of the agreement, it has been further provided that the petitioner has agreed to serve and perform in the manner as would be assigned by the employer (DRDA). There is no dispute that the status of the petitioner is not of an employee holding a civil post. Service of such employee will be guided exclusively by the terms of the said project only.

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On the allegations of serious misconduct relating to the financial irregularities and unlawful execution of MGNREGA projects in Kuchinda Block, an inquiry was directed against the petitioner. The

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Inquiry Committee had submitted a report ascertaining that a sum of Rs.98,09,710/- had been defalcated from the projects by the petitioner, in connivance with the contractors. On the basis of that inquiry report, a show cause notice was issued to the petitioner on 30.04.2012. By the said show cause notice, the petitioner was asked to file his reply within seven days. It was categorically mentioned in that notice that the petitioner may inspect the original Inquiry Report submitted by the Inquiry Committee during the office hour in the office of the Project Director, DRDA, Sambalpur, the opposite party No.5.

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In the show cause notice, the DRDA has provided the details of 69 projects where such defalcation had taken place. Notwithstanding that opportunity as aforesaid to the petitioner, the petitioner did not file the reply, even he did not inspect the Inquiry Report and the other related documents. Consequently, the final order dated 08.06.2012 has been passed by dis-engaging the petitioner (Annexure-6 to the Original Application). In the said Original Application, the petitioner has also prayed for regularization of his services.

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Mr. Mohanty, learned counsel appearing for the petitioner has

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strenuously argued before us that the petitioner did not have the requisite knowledge of what had been imputed against him in the

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Inquiry Report. As demand for a copy of the said Report was denied, the petitioner was not in a position to give the appropriate reply against the allegations brought against him. Mr. Mohanty, learned counsel has also indicated to us that the amount which was reflected in the show cause had got changed in the final order. That shows that beyond the show cause notice, some other materials were considered against the petitioner - which is grossly irregular as those were considered behind the back of the petitioner. Mr. Mohanty, learned counsel has relied on a decision of this Court in Ganeshwar Hansda v. State of Odisha and others : 2020 (I) ILR-CUT-113, where it has been observed having relied on Nagarjuna Construction Company Limited v. Government of Andhra Pradesh :(2008) 16 SCC 276 that over the years by a process of judicial interpretation two rules have evolved representing the fundamental principles of natural justice in the judicial process, the quasi-judicial process and the administrative process. An adjudicator should be disinterested and unbias and that the parties shall be given adequate opportunity to be heard. These constitute the basic elements of a fair hearing, foundation of fair play and justice.

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Mr.D.Nayak, learned Additional Government Advocate

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appearing for the opposite parties has submitted that granting a

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reasonable opportunity for making the reply cannot be applied in a

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straight- jacket manner. Adequate opportunity had been provided to the petitioner for giving the befitting reply. He had been given accommodation to inspect all the relevant records including the Inquiry Report for making a substantive defence against the allegations brought against him.

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We have considered the rival contentions of the learned counsel for the parties and we are of the considered view that the opportunity as afforded must be reasonable. The Inquiry Report which is the basic documents, based on which the impugned order of dis-engagement dated 08.06.2012, Annexure-6 to the original application has been passed, should have been given to the petitioner. The petitioner may not be expert in the administrative law, but he is the entitled to take assistance from the person having knowledge of administrative law. Even though the scope of inspection had been granted, but according to us this is not sufficient opportunity to make a substantive reply against the report which is the product of the so-called Inquiry.

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As such, we do interfere with the order of disengagement dated 08.06.2012 and set aside the same. At the same time, we make it abundantly clear that for this order, the petitioner will not have any

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right to claim engagement at all. His re-engagement will remain

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subject to the outcome of the final decision by the authority, i.e., the DRDA. For the same reason, we also set aside the order dated 10.01.2019 delivered in Original Application No.2659 of 2014, Annexure-7 to the writ petition and the order dated 11.10.2022 delivered in RVWPET (RP) No.38 of 2019. We direct the opposite party No.4-Collector-cum-CEO, Zillaparishad, DRDA, Samabalpur to supply a copy of the Inquiry Report to the petitioner. The said copy shall be supplied to the petitioner within a period of 15 days from the date when the opposite parties will receive a copy of this order, by granting another 15 days time for filing the reply. It is made very clear that the petitioner will not claim any further time by way of extension. He shall file the reply substantively within the said period of 15 days. If, for any reason, he defaults, no further time will be provided to him. In that event, the authority, i.e., the opposite party No.4 shall take a final call. But in the event, the petitioner files the substantive reply, the opposite party No.4 shall thoroughly examine the reply and pass a reasoned order as warranted in the circumstances and on perusal of the records. We make it abundantly clear that we have not expressed any opinion on merit of the case.

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