Sanjay Kumar Jena Vs State of Odisha

IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) No.5462 of 2023

(Application under Articles 226 and 227 of the Constitution of India)

A.F.R. Sanjay Kumar Jena … Petitioner - versus- State of Odisha & others … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioner : Mr.P.K.Mishra, Advocate. - versus- For Opposite Party Nos.1 to 4 : Mr. S.N.Patanaik, A.G.A For Opposite Party No.5 : Mr. Ramdas Achary, Advocate --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA

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W.P.(C) No.5462 of 2023 Page 1 of 11

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JUDGMENT

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09.08.2024.

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Sashikanta Mishra,J . The Petitioner in the present Writ Petition

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challenges the order dated 28.12.2022 issued by the Sarpanch, Hatabaradihi Gram Panchayat (Opposite Party No.5) in terminating his services as Jogan Sahayak.

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2 . The brief facts of the case are that the Petitioner

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was engaged as Jogan Sahayak as per order dated 18.5.2013 of the B.D.O, Chilika and was allotted to Hatabaradihi Gram Panchayat. While continuing as such the Petitioner was issued with a letter on 30.11.2022 by the Sarpanch of the said Gram Panchayat asking him to show cause as to why the P.D.S. items were not distributed to the beneficiaries in

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the months of October and November, 2022. In his reply dated 09.12.2022, the Petitioner informed that he was absent in the Gram Panchayat due to his illness and other problems since 23.11.2022. While the matter stood thus, an F.I.R. was lodged by one Minati Behera on 11.12.2022, a Samiti Member of the Gram

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Panchayat, Tangi being P.S. Case No.840/2022, against the Petitioner for the alleged commission of offences under Sections 294/500/506 of I.P.C. read with Section 3(1)(r)(s)(2)(va) of the S.C and S.T. P.A. Act. On 28.12.2022, the Sarpanch issued the impugned letter of termination on the ground that the Petitioner had not properly distributed the P.D.S. articles to the beneficiaries who were deprived since 23.12.2022 as he was in jail custody in connection with the aforementioned case. As such, a decision was taken in the presence of all the Ward Members to terminate the engagement of the Petitioner. The Petitioner submitted a representation to the Collector on 09.2.2023 alleging that there was nothing adverse against him since the date of his engagement but after joining of the new Sarpanch, problems arose as the Sarpanch demanded Rs.30,000/- to Rs.40,000/- from him every month, which he was unable to pay and for which a false case was foisted against him. No action was taken on such representation though in the meantime by order dated 12.12.2022 of the BDO, the

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Jogan Sahayak of Chandeswar Gram Panchayat was kept in charge of Hatabaradihi Gram Panchayat. On such facts, the Petitioner has filed this Writ Petition with the following prayer;

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“ Under these circumstances, the Petitioner prays that this Hon’ble Court would graciously be pleased to admit this writ application, issue notice to the Opposite Parties and after hearing the parties, quash the termination letter dated 28.12.2022 under Annexure-5 to reinstate the Petitioner in his post (Jogan Sahayak) within a stipulated period.”

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3. Counter affidavit has been filed by the State-

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Opp. Party Nos.1,2 and 4. It is stated that Sarpanch, being the appointing authority of Jogan Sahayak, can initiate appropriate action as clarified by the Government in its letter dtd.27.3.2018 followed by the letter dated 31.3.2018 of the Civil Supplies Officer, Khordha. On merits, it is stated that the Petitioner had distributed only 83.7% of the allotment in the months of October and November, 2022 though full quota was received well in advance. He did not complete the distribution within the stipulated time even after repeated reminders due to which many ration card

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holders were unable to avail their entitlement. Further,

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an F.I.R. was lodged against the Petitioner. A written complaint was received from the Petitioner regarding demand of Rs.30,000/- to Rs.40,000/- per month by the Sarpanch. Earlier, a sum of Rs.500/- was imposed as fine on the Petitioner for irregular maintenance of FPS centre.

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4. Counter affidavit has also been filed by the Sarpanch, Opposite Party No.5. It is stated that after registration of the F.I.R. against the Petitioner, an urgent meeting of the members of the Gram Panchayat was conducted on 26.12.2022 wherein decision was taken to disengage the Petitioner and accordingly, he was disengaged as per the impugned order.

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5 . The Petitioner has filed a rejoinder affidavit stating that as admitted by the State-opposite parties, he had distributed 83.7% of the PDS stock from the allotted quota which shows that there was no laxity and dishonesty on his part. Further, he was never granted an opportunity of hearing before terminating his services.

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6. Heard Mr. P.K.Mishra, learned counsel for the Petitioner, Mr. S.N.Patanaik, learned Addl. Government Advocate for the State and Mr. Ramdas Achary, learned counsel appearing for the Opposite Party No.5.

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7. Mr. Mishra would argue that the B.D.O. having issued the order of engagement in favour of the Petitioner, the Sarpanch has no authority to terminate his services. On merits, it is submitted by Mr. Mishra that the Petitioner being admittedly in jail custody cannot be blamed for non-distribution of P.D.S. commodities to the beneficiaries during that period. Further, he was never called upon to explain his stand before taking the drastic step of disengaging him.

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8. Mr. S.N.Patanaik, learned Addl. Government Advocate, submits that as per the Consolidated Guidelines issued by the Government in Food, Supplies and Consumer Welfare Department on 27.8.2018, the engagement of Jogan Sahayak is to be made by the concerned Gram Panchayat on the

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recommendation of the Selection Committee headed by B.D.O. On merits, it is submitted by Mr. Patanaik that in course of a joint enquiry, it was revealed that the Petitioner had not distributed 100% stock though the same was received well in advance.

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9 . Mr. Achary, learned counsel appearing for the Sarpanch (Opposite Party No.5) would submit that the Sarpanch being the appointing authority has the power to terminate the engagement. In the absence of specific rules in this regard Section 16 of the General Clauses Act, 1997 would apply and therefore, the impugned order cannot be said to have been issued without authority. On merits, it is submitted that the Petitioner was earlier fined with Rs.500/- for dereliction of duty, subsequently a Police case was also registered against him. Therefore, in the interest of the beneficiaries, a decision was taken by all the members of the Gram Panchayat to terminate his engagement.

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10. On the question of competence of the Sarpanch to pass the impugned order, it is seen that the

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consolidated guidelines issued by the Government on 27.8.2018 provide that the appointment of Jogan Sahayak is to be made by the concerned Gram Panchayat. Further, by letter dtd.31.3.2018, the Civil Supplies Officer, Khordha issued a clarification to the Sub-Collector, Khorda referring to the aforementioned guidelines to the effect that the Gram Panchayat is the appointing authority in respect of Jogan Sahayak. Further, there being no guidelines of Government regarding disengagement of Jogan Sahayak, the responsibility lies with the appointing authority (Gram Panchayat) as payment of honorarium is being made by the Gram Panchayat. In view of the above guidelines and clarifications there is no doubt that the Sarpanch was competent to issue the order of disengagement of the Petitioner from the post of Jogan Sahayak.

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11. Coming to the merits of the case, a careful reading of the pleadings of the parties would reveal that a fine of Rs.500/- was imposed on the Petitioner

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by the licensing authority and Sub-Collector, Khordha, by his order dated 26.7.2022 whereby the concerned Panchayat Extension Officer was also imposed with fine of Rs.5,000/-. Such action was apparently taken after a joint enquiry being conducted by the Asst. Civil Supplies Officer, Khordha, and Inspector of Supplies, Chilika, but then it is evident that the said matter was set at rest by imposition of fine on the Petitioner. Another show cause notice was issued by the Sarpanch on 30.11.2022 which evidently

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has no nexus with the action taken against the Petitioner previously. The Petitioner submitted his reply on 09.12.2022. A few days later an F.I.R. was lodged against him by a Ward Member of the Gram Panchayat making certain personal allegations. While the mater stood thus, the impugned order of disengagement was issued on 28.12.2022. Perusal of the impugned order shows that the Petitioner was alleged to have not distributed the PDS commodities to the beneficiaries within the stipulated time and further

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he being in jail custody since 13.12.2022, the

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beneficiaries were deprived. Citing such grounds, the members of the Gram Panchayat unanimously decided to disengage him.

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12. Two things are apparent- Firstly, the impugned

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order does not specify the period of alleged dereliction of duty by the Petitioner and other particulars such as the number of beneficiaries deprived etc. Secondly, except for issuing a show cause to the Petitioner for alleged non-distribution of PDS commodities in the months of October and November, 2022, which was duly replied to by the Petitioner, no further opportunity of hearing was granted to him. In any case, there is nothing in the impugned order to suggest that it had any nexus with the show cause notice issued against him on 30.11.2022. That apart, the Petitioner being admittedly in jail custody obviously could not have distributed the PDS commodities to the beneficiaries during such period. Reading of the F.I.R. reveals that the same contains purely personal allegations having

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no nexus whatsoever with the official work of the

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Petitioner. Therefore, pendency of the criminal case obviously cannot be a ground to disengage the Petitioner.

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13. From the above narration, it is quite clear that the impugned order is at best vague, non-specific and since it operates to deprive a person of his livelihood which is guaranteed under Article 21 of the Constitution of India, the same cannot be sustained in the eye of law.

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14. In view of the above findings, the Writ Petition is allowed. The impugned order of termination dated 28.12.2022, enclosed as Annexure-5, is hereby quashed. The Petitioner be reinstated in service from 28.12.2022 but he shall not be entitled to any back wages though his service from the date of termination till reinstatement shall be notionally counter for continuity.

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…………….…………….

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Sashikanta Mishra,

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Signature Not Verified Judge

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Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Ashok Ku mar Behera Location: High Court of Orissa, C utta ck Date: 09-Aug-2024 16:36:25

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W.P.(C) No. 5462 of 2023 Page 11 of 11

Sanjay Kumar Jena v. State of Odisha

Case brief

What is this about?

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Sanjay Kumar Jena v. State of Odisha

Case brief

What is this about?

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