Nihar Ranjan Choudhury v. State of Odisha & Anr.

Case Number: W.P.(C) No.21793 of 2021
Date of decision: 6th November 2023

Prolonged deprivation of service benefits/promotion to a government employee
on the ground of pending criminal trial amounts to ‘double jeopardy’.

In this case, The Petitioner was seeking direction against the Opposite Parties to give promotion to him to the post of Deputy Executive Engineer, Executive Engineer and Superintendent Engineer from the date his immediate juniors got such promotion and to grant him all consequential service benefits. The Petitioner was facing a criminal prosecution initiated in the year 2001, therefore, although DPC had recommended his case for promotion but sealed cover procedure has been adopted owing to the pendency of the criminal prosecution against him. There is no disciplinary proceeding initiated by the department against him.

The Government Advocate vehemently opposed the prayer made by the Petitioner and contended that no ad-hoc promotion pending vigilance proceeding could be given to the Petitioner in view of the judgment of the Division Bench of this Court passed on 11.05.2023 in W.A. No.805 of 2021 and batch of Writ Appeals. The Petitioner relied upon the judgment of the Division Bench of this Court passed on 06.05.2022 in W.P.(C) No.18500 of 2015, which squarely covers his case. In the said case as well, pending vigilance proceedings although the DPC had recommended the promotion of the Petitioner, but the same was withheld keeping the result in the sealed cover. Therefore, the Division Bench of this Court had directed to open the sealed cover and grant promotion accordingly.

This Court observed that it is necessary to ensure that the disciplinary case/criminal prosecution instituted against any Government servant is not unduly prolonged and all efforts to finalize expeditiously the proceedings should be taken so that the need for keeping the case of a Government servant in a sealed cover is limited to the barest minimum. It has, therefore, been decided that the appointing authorities concerned should review comprehensively the cases of Government servants. In the present case since 2014, the DPC has recommended the case of the Petitioner for promotion, which has been kept in the sealed cover without even once subjecting the same to review. This is nothing but adding insult to the injury. Unexplained prolongation of criminal trial violates the constitutional rights of an accused and denial of statutory or any other rights, for that matter, for a delinquent officer/government servant impending such delayed trial is indeed a case of double jeopardy. Therefore, this Court allowed the petition.

Tapan Kumar Das v. State of Odisha & Ors.

Case Number: W.P.(C) No.21003 of 2021
Date of decision: 15th September 2023

Rules of natural justice are needed to be followed even before
terminating service of a contractual employee.

In this case, the Petitioner raised his grievance that he was working as a Junior Engineer (Civil) on contractual basis. While serving as such he was terminated from service on 08.06.2020 on the basis of certain allegation of irregularities committed by him. He was not subjected to any disciplinary proceeding as mandated in the provision of OCS (CC & A) Rules, 1962, therefore, he alleged that the unilateral termination order dated 08.06.2020 is directly in violation of the principle of natural justice.

The Petitioner contended that the termination order passed against the Petitioner should have been preceded an inquiry by giving the Petitioner sufficient opportunity to explain. Although record reveals that the entire departmental inquiry has been conducted to ascertain the allegation but the said inquiry appears to be a unilateral inquiry without affording any opportunity to the Petitioner to explain the allegation made againt him.

The Counsel for the State contended that a detailed inquiry was conducted by the Superintending Engineer in Rural Works Circle, Sambalpur. At the time of said inquiry the Petitioner was also present and an opportunity was afforded to him to explain. The said inquiry culminated into an inter-departmental report dated 09.05.2020. Perusal of the said inquiry report indicates that it is unilateral report which appears to have been submitted on the basis of site inspection and the explanation offered by the Petitioner is not even taken into consideration.

This Court is not impressed with the argument that being a contractual employee no rules or procedure are required to be followed before disengaging him. It is rather the settled position of law that even in case of a contractual employee the rules of natural justice are required to be followed to the hilt. In the instant case, as already stated, the enquiry was conducted entirely behind the back of the petitioner, inasmuch as he was not given any opportunity to participate and to have his say therein. On this ground alone, this Writ Petition was liable to be allowed.

Raghunath Naik v. State of Odisha & Ors.

Case Number: W.P. (C) No. 36822 OF 2022
Date of decision: 29th September 2023

The Court held that caste of a person is determined by birth.

In this case, the Petitioner had challenged the order passed by the Opposite Party No.3 removing him from the service with effect from 28.01.2011. The Petitioner was provisionally appointed as a Sepoy on 22.12.2006 after undergoing the rigors of the recruitment process. In the appointment letter dated 22.12.2006, there is a recitation that the appointment is purely provisional and temporary. In case of any discrepancy/falsity/adverse report, they would be summerly discharged from service without calling for any explanation and whenever necessary appropriate criminal proceedings will also be initiated against them.

At the time of appointment, the Petitioner relied upon a Caste Certificate to avail the reservation benefit under Schedule Caste category. He produced a Caste Certificate No.3661 of 2003 purported to have been issued by the Tahasildar, Dhenkanal. A verification report was received from the Additional Tahasildar with regard to the said certificate. On the basis of the said verification report, the Petitioner was suspended from 22.05.2010 and was subjected to a departmental proceeding. In the departmental proceeding the Tahasildar, Dhenkanal was examined, who deposed against the Petitioner inter alia stating that the Caste Certificate produced by the Petitioner bearing No.3661 of 2003 purported to have been issued by the Additional Tahasildar, Dhenkanal is a forged one and the same is not matching with the entry made in the Register maintained at the Dhenkanal Tahasil.

The Petitioner was put to trial under G.R. Case No.857 of 2010. The learned trial Court on 07.12.2011 framed charges against the Petitioner under Section 468/420 of I.P.C. and subjected the Petitioner to trial. Eventually the trial Court vide its detailed judgment dated 13.10.2022 recorded an acquittal in favour of the Petitioner and stated that the prosecution had failed to establish the case against the Petitioner. Since no Appeal has been preferred by the State against the acquittal order passed in favour of the Petitioner before any superior court of law, the acquittal order attains finality.

The Petitioner contended that the Caste Certificate subsequently produced by the Petitioner in the year 2010 is found to be genuine, however since the Petitioner had applied for the Post of Sepoy in 2006 on the basis of a Caste Certificate of 2003 and the said Caste Certificate is not a genuine document. From the factual scenario it emerges that the Petitioner belongs to Schedule Caste category being a “PANA”. The Government Advocate submitted that the certificate he produced at the time of applying for appointment to the post of Sepoy was a forged document. The Petitioner was subjected to a departmental proceeding and it is established that he had used a forged document to be a genuine one for the purpose of availing reservation in the appointment. Therefore, he submits that although the Petitioner is a Schedule Caste, the fact that he had used a forged certificate cannot be doubted in view of the deposition made by the Tahasildar, Dhenkanal in the departmental proceeding.

This Court while placing reliance on the decision of the apex Court in Civil Appeal No.487 of 2018 in the case of Sunita Singh vs. State of Uttar Pradesh & others and stated that there cannot be any dispute that caste be determined by birth and if born as a Schedule Caste, it always remain and continuing a Schedule Caste. The fact of the present case being same, it cannot be doubted that the Petitioner belongs to Schedule Caste being a “PANA”. Therefore, his entitlement to the reservation for the post of Sepoy cannot be found fault with.

Shantilata Pradhan v. State of Odisha & Ors.

Case Number: W.P.(C) No.16230 of 2021
Date of decision: 6th October 2023

Transfer of an employee from under one authority to
another shall be deemed to be ‘deputation’.

In this case, the Petitioner assailed the office order dated 31.03.2021 passed by the Opposite Party No.3 thereby relieving her from Talcher- Angul-Meramandali Development Authority (TAMDA) with effect from 31.03.2021 and to join Paradeep Development Authority. The Petitioner had joined as an Architectural Assistant in the Office of the Special Planning Authority of Paradeep Development Authority. While she was posted there, an office order was issued on 20.12.2014 by the Additional Secretary to Government of Odisha, Housing and Urban Development Department transferring her from Paradeep Development Authority to Talcher-Angul-Meramandali Development Authority (for short ‘TAMDA’). The said transfer appears to be in place of one Smt. Nilima Mohapatra, Architectural Assistant who was employed in TAMDA. The office order indicates that the petitioner and Smt. Nilima Mohapatra were transferred in exchange between the two authorities.

The issue in the present matter is whether the office order dated 20.12.2014 is a mere transfer on mutual basis or it is a transfer on deputation. Bare reading of Sub-Section (3) of Section 4 of Odisha Development Authorities Act, 1982 indicates that for the purpose of smooth and efficient administration of the affairs of the Authorities, the State Government at the instance of any Authority can depute any officer from other Authority for a period not exceeding six years. After the expiry of six years, the officer would be reverted back to his/her parent employer.

This Court observed that the office order dated 20.12.2014 indicates that the Housing and Urban Development Department of the State of Odisha had intervened and passed the said order transferring the petitioner from M/s. Paradeep Development Authority to TAMDA. The contention was petitioner is trying to derive advantage from the expression ‘transfer’ used in the said letter. But in fact the word ‘transfer’ loosely used in the office order dated 20.12.2014, in place of the word ‘deputation’. Because there was no occasion for the State Government to pass any order transferring an employee of one Authority to the other except on deputation under the command of sub-section (3) of Section 4. Therefore, the order dated 20.12.2014 was nothing but an order of transfer of the petitioner on deputation from her parent organization, i.e., M/s. Paradeep Development Authority to Talcher-Angul- Meramandali Development Authority. Since the period of deputation expires on 30.12.2020 after completion of six years, the TAMDA have issued the impugned office order dated 31.03.2021 repatriating the petitioner to its parent organization, i.e., Paradeep Development Authority. To that extent, no fault can be found on the issuance of such direction. Therefore, the Writ Petition was dismissed being devoid of merits.