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2022 Supreme(Ori) 147
IN THE HIGH COURT OF ORISSA AT CUTTACK
SASHIKANTA MISHRA, J.
Abhimanyu Mallick – Appellant
Versus
State of Odisha & others – Respondent
W.P.(C) No. 17307 of 2020
Decided on : 25-07-2022
For the Appellant :M/s. K.K. Swain, S.C.D Dash & J.R. Khuntia, Advocates
For the Respondent: Mr. R.N. Acharya, adv
Mere involvement in a criminal case cannot be treated as misconduct, and the due procedure must be followed before disengaging a government servant.
Headnote:
Misconduct - Contract Teacher - Odisha Group 'C' and Group 'D' posts (contractual appointment) Rules, 2013 - Rule 12 of the OCS (CCA) Rules, 1962 - The court held that mere involvement in a criminal case cannot be treated as misconduct, especially when the case ended in acquittal. The petitioner, being in judicial custody for more than 48 hours, could have been suspended under Rule 12(1) and (2) of the OCS (CCA) Rules, 1962, but was disengaged without following the due procedure. The impugned order was quashed, and the petitioner was directed to be reinstated and regularized in service with all consequential benefits.
Fact of the Case:
The petitioner, a Contract Teacher, was disengaged from service after being in jail custody for more than 48 hours due to a criminal case. The petitioner sought reinstatement and regularization, claiming that the disengagement order was passed without following due procedure and principles of natural justice.
Finding of the Court:
The court found that the petitioner's involvement in a criminal case could not be treated as misconduct, especially when the petitioner was acquitted. The court also held that the petitioner could have been suspended under Rule 12 of the OCS (CCA) Rules, 1962, but was disengaged without following the due procedure. The impugned order was quashed, and the petitioner was directed to be reinstated and regularized in service with all consequential benefits.
Issues: The issues involved the legality of the disengagement order, the applicability of misconduct in the case of the petitioner's involvement in a criminal case, and the failure to follow the due procedure before disengaging the petitioner.
Ratio Decidendi: The court's decision was based on the interpretation of misconduct, the application of Rule 12 of the OCS (CCA) Rules, 1962, and the requirement to follow the due procedure before disengaging a government servant.
Final Decision: The writ petition succeeded, and the impugned order disengaging the petitioner was quashed. The authorities were directed to reinstate the petitioner with all service benefits and to regularize his services with all consequential benefits.
JUDGMENT :
SASHIKANTA MISHRA, J.
The petitioner, after facing due process of selection was engaged as Contract Teacher (P.E.T.) as per order dated 30.05.2012 passed by the District Education Officer, Dhenkanal (opposite party no.3) and joined as such on 08.06.2012. Such engagement being on contractual basis, the petitioner executed an agreement renewable from year to year. As such, the petitioner completed six years of satisfactory service w.e.f. 08.06.2018. It is stated that as per the Odisha Group “C” and Group “D” posts (contractual appointment) Rules, 2013 (in short “Rules, 2013”), the petitioner is deemed to have been regularized upon completion of six years of satisfactory service. By letters dated 17.12.2019 and 24.10.2019 of the Director, Secondary Education, Odisha, the name of the petitioner finds place in the list of similarly placed Contract Teachers who are to be regularized in service. While the matter stood thus, the opposite party no.3 issued an office order on 27.12.2019 disengaging the petitioner from service on the ground that he had remained in jail custody for more than 48 hours having been arrested in connection with a criminal case relating to murder of his wife. Such order, according to the petitioner, was passed without following the due procedure prescribed in the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962 (in short “OCS(CCA) Rules, 1962”) or without adhering to the principles of natural justice. It is specifically claimed that neither any show cause notice nor any charge sheet was served upon him prior to passing of the impugned order. It is further stated that as per Rule 12 of the OCS (CCA) Rules, 1962, the petitioner could at best have been placed under suspension for being in custody for more than 48 hours. Thus, challenging the impugned order, the petitioner has approached this Court claiming the following relief:
“(a) an appropriate writ may be issued quashing the disengagement order dated 27.12.2019 passed by the District Education Officer, Dhenkanal under Annexure-5 and the petitioner may be reinstated in his former post with all consequential benefits. And the opposite party no.3 (District Education Officer, Dhenkanal) may be directed to issue formal order of regularization in favour of the petitioner treating him as a regular teacher with effect from 08.06.2018 as has been done in the case of other teachers.
(b) any other order/orders or direction/directions may be issued so as to give complete relief to the petitioner;”
2. A counter affidavit has been filed on behalf of the opposite parties, wherein the basic facts relating to engagement of the petitioner and his disengagement etc. have been admitted. It is also admitted that the Government have taken a decision to regularize 449 Contractual Teachers including the petitioner as per Govt. Letter No.5801/SME dated 13.03.2021 communicated by the Director, Secondary Education vide memo no. 10342 dated 01.05.2020. However, since the petitioner had already been disengaged from service on the ground of misconduct w.e.f. 27.12.2019, the Director, Secondary Education instructed not to issue regularization order in his favour. It is further stated that upon report of information from the concerned Police Station regarding involvement of the petitioner in the criminal case, a show cause notice was issued vide letter dated 22.08.2019 calling upon him to submit written statement of defence within seven days which was sent by registered post as well as through the Headmaster of the concerned High School, but the postal department could not serve the letter as he was absent/had absconded from home. The Headmaster also reported that the petitioner was unauthorizedly absent from School from 17.08.2019. It is also stated that the petitioner was disengaged on the ground of gross misconduct as he was involved in a criminal case, which is as per the terms and conditions laid down in the agreement executed by him.
3. The petitioner has fi
