Kanhu Charan Bastaray Vs State of Odisha

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C). No. 6517 of 2024

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

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--------------Kanhu Charan Bastaray ...… Petitioner -VersusState of Odisha and Ors ...... Opposite Parties

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Advocate(s) appeared in this case:-

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_______________________________________________________ For Petitioner : Dr. Simanchalla Ranjit Advocate. For Opp. Parties : Mr. S.N.Pattnaik Additional Government Advocate _______________________________________________________ CORAM:

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JUSTICE SASHIKANTA MISHRA

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JUDGMENT

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1^st August, 2024

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SASHIKANTA MISHRA, J. The petitioner has approached this

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Court with the following prayer:

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“Under the aforesaid facts and circumstances, it would be expedient in the interest of justice to admit this petition, issue

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notice to the opposite parties and after hearing the parties be pleased to quash and set aside the impugned disengagement of service as the Jogan Sahayaka proceedings against the petitioner and disengagement as such by the Collector, Dist. Gajapati (O.P.No.2) and other O.Ps. No. 3 to 9 communicated on 12.01.2024 vide the Letter No. 600-1-1065/2024 dtd. 12.01.2024 of the Asst. Collector, Judicial, Collectorate, DistGajapati/O.P. No.3 to the petitioner placed under Annexure-17 series as the same being arbitrary, unilateral, illegal, violative of natural justice and doctrine of Promissory Estoppel;

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Further be pleased to issue a writ in the nature of Mandamus and/or order or orders and/or direction or directions to the Collector, Dist-Gajapati(O.P. No.2) to consider the representation dated 17.10.2022 placed under Annexure-13 and allow the petitioner to resume and continue his duty at Birikote G.P./O.P. No.9;

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Be pleased to issue a writ in the nature of Mandamus and/or order or orders and /or direction or directions to the Collector, DistGajapati (O.P.No.2) to consider the sick leave period from 27.05.2022 to 27.07.2022 and illegal denial of duty period from 28.07.2022 to till date as service continuation with provision of some monetary compensations;

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For the bonafide interest of justice may pass any appropriate order/orders, direction/directions as this Hon’ble Court may deem just and proper including imposing exemplary cost against the Opposite parties for acting not bonafide being contrary to law and depriving livelihoods of the petitioner for almost two years;

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And for this act of your kindness the petitioner shall as in duty bound ever pray.

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And if they fail to show cause or show insufficient cause the rule may kindly be made absolute.

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And any other relief(s) which your Lordship deem just and proper;

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And for which act of kindness the petitioner as

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in duty bound shall ever pray.”

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The case of the petitioner is that he was engaged as

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Jogan Sahayak under Birikote Gram Panchayat in the district of Gajapati w.e.f. 13.09.2017. While working as such, he remained on medical leave. After recovering from his illness, he wanted to join but was not allowed to do so. Subsequently, his medical papers were sent to the CDMPHO, Paralakhemundi for verifying their veracity and genuineness. On production of medical certificate by the petitioner, he was asked to appear before the medical board.

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The medical board found that the medical documents produced by the petitioner was genuine and accordingly recommended leave on medical ground. In spite of such recommendation, the petitioner was not permitted to join. Subsequently, by letter dated 12.11.2014, the Assistant Collector (Judicial) informed that he had been disengaged from service on the basis of a joint inquiry conducted in respect of certain allegations levelled against him. In the Counter affidavit filed by the State, it is stated that there was complaint of receipt of demand of bribe by the petitioner from several beneficiaries. Accordingly, a joint inquiry committee was constituted by the Block Development Officer, Mohana. The said committee conducted an inquiry and submitted its report holding that the petitioner had demanded bribes for issuance of new Ration Card, addition of name in the existing Ration Card and even for issuing PMAY houses. Accordingly, by order dated 19.07.2023 the CSO, Gajapati requested the BDO to issue order of disengagement, who in turn directed the Sarpanch, Birikote Gram Panchayat to issue necessary

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order. Accordingly, the Sarpanch vide letter dated 27.08.2023 disengaged the petitioner from his post.

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In course of hearing, it is submitted by learned counsel for the petitioner that the impugned order was passed without granting any opportunity of hearing to the petitioner. In fact the petitioner was also not called upon to participate in the joint inquiry held against him.

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Learned State counsel submits that the inquiry was conducted because several complaints were received against the petitioner which were found to be true. Therefore, appropriate action was taken against him.

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The facts of the case are not disputed. It is trite that when there is an allegation of misconduct by an employee, the same is to be inquired into by the concerned authority by giving proper opportunity of hearing to the said employee. In the instant case, there appears to be some complaints of demand of bribe by the petitioner for which a joint inquiry committee was conducted by the PEO, Birikote, Mohana, GPEO, Mohana and ABDO, Mohana. Perusal of the joint inquiry report dated 02.02.2023, copy enclosed as Annexure

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B/5, does not reveal that the petitioner was asked to submit his explanation. In fact there is nothing to show that the petitioner was ever part of such inquiry. The principles of natural justice as embodied in the maxim Audi Alteram Partem mandate that no one should be condemned unheard. From what has been narrated above, it is clear that the drastic step of disengaging the petitioner from service was taken without affording any opportunity to him to put forth his defence in the matter. In fact, the so called joint inquiry was conducted entirely behind the back of the petitioner and the report was based only on the statements made by some of the complainants. According to the considered view of this Court, such course of action cannot be countenanced in law being contrary to the rules of natural justice. It is needless to mention that the right to livelihood is included in right to life guaranteed under Article 21 of the Constitution of India. As such, no person can be deprived of such right without following the due process of law. In such view of the matter, this Court is left with no doubt that the impugned order of disengagement cannot be sustained in the eye of law.

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In the result, the writ application is allowed. The impugned order dated 21.08.2023, passed by the Sarapanch Birikote Gram Panchayat, is hereby quashed. The Sarpanch is directed to reinstate the petitioner in service forthwith with all consequential service and financial benefits. As regards the allegations levelled against the petitioner, necessary inquiry may be conducted afresh granting proper opportunity of defence to the petitioner. It goes without saying that the authorities would be at liberty to take appropriate action in the matter depending on the outcome of the inquiry.

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