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2011 DIGILAW 134 (ORI)

Sri Jyoti Prasad Roy v. State of Orissa

2011-03-03

R.N.BISWAL

body2011
ORDER 03.03.2011 — Even though the case was listed to date for admission, on consent and request of learned counsel for both sides, the matter was taken up for final disposal and the following order is passed. As per the case of petitioner, he is the Secretary of Ghodasana Grama Panchayat under Naugaon Block of Jagatsinghpur District. He was kept behind the bar from 11.4.2007 to 21.10.2007 on some false allegations. On being released on bail on 22.10.2007 he gave his joining report to the Sarpanch, Ghodasana (opp. party No.5) but he did not accept it. Then he reported the matter to the District Panchayat Officer, who directed the Sarpanch to accept the joining report of the petitioner under Annexure-2, but it did not yield any result. Again, on being moved the B.D.O., Naugaon wrote to the Sarpanch on 26.2.2008 to accept the joining report of the petitioner but in vain. Ultimately the matter was brought to the notice of Collector, Jagatsinghpur, who directed the sarpanch to accept the joining report of the petitioner under Annexure-4, but it also fell flat. Finding no other alternative the petitioner filed the present writ petition. Learned counsel for the petitioner submits that the petitioner had applied for leave for the period 11.4.2007 to 21.10.2007. Admittedly, no show cause notice was issued to the petitioner to explain his absence for the said period. So, the refusal of Sarpanch to accept the joining report of the petitioner is illegal per se. On the contrary, learned counsel for opp. parties contends that as per the provision contained under Rule 214 (d) of the Orissa Grama Panchayat Rules, 1968 (in short G.P. Rules) if the Secretary remains on leave for a period exceeding six months and/or remains absent from duty without proper authority, it should be deemed that his services have been terminated with effect from the expiry of the period of six months’ leave and/or the date of unauthorized absence. In the present case, since the petitioner remained absent from 11.4.2007 to 21.10.2007 i.e. more than six months from duty, albeit he had applied for leave for the said period, still then, in view of the provision contained under Rule 214 (d) of the G.P. Rules, it would be deemed that his service was terminated after the end of six months. So, the Sarpanch rightly did not accept the joining report of the petitioner. So, the Sarpanch rightly did not accept the joining report of the petitioner. Learned counsel for the petitioner submits that despite the deemed provision contained under Rule 214(d) of the G.P. Rules, natural justice demands that the petitioner should have been asked to explain as to why he remained absent for more than six months before refusing to accept his joining report. In support of his submission, he relied on the decision in the case of Lakshmi Precision Screws Ltd. v. Ram Bahagat 2002 SCC (L&S) 926. In that case the respondent was engaged as a workman under the appellant-company on 8.12.1980. He worked till 12.10.1990. From 13.10.90 he remained absent unauthorisedly. On 17.10.1990 the company asked him in writing to join in duty within 48 hours and also to explain his absence or else it would be deemed that he was no more interested in his service and his name would be struck off from the rolls under the Certified Standing Orders of the Company. Since the workman-respondent did not comply with the letter, he was informed through registered post on 25.10.1990 that his name had been removed from the muster rolls in terms of Clause 9(f)(ii) of the Certified Standing Orders of the company. This clause provides that any workman absenting himself for 10 consecutive days without leave, would be deemed to have left the company service without notice thereby terminating his service. Not withstanding such deeming provision, the Apex Court held that removal of name of the workman from the muster rolls was arbitrary and against natural justice. In the case at hand, admittedly, no show cause notice was issued to the petitioner. There was no order of termination of his service. So, there is no reason for opp. party No.5-Sarpanch not to accept the joining report of the petitioner. Therefore, under such premises, the writ petition is allowed. The opp. parties, particularly opp. party No. 5 are directed to accept the joining report of the petitioner, if he tenders a fresh joining report. With regard to payment of back wages there is nothing on record to show that the petitioner was not employed gainfully from 22.10.2007 till date. However, the opp. parties are directed to pay 25% back wages to the petitioner. Accordingly, the writ petition is disposed of. Urgent certified copy of this order be granted as per rules. Petition disposed of.