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2015 DIGILAW 434 (ORI)

KASHINATH DAS MOHAPATRA v. STATE OF ORISSA

2015-07-24

A.K.RATH

body2015
JUDGMENT : Dr. Akshaya Kumar Rath, J - The instant challenge is to laciniate the order of suspension dated 24.6.2015 passed by the Chief Administrator, Shree Jagannath Temple, Puri-opposite party No. 2, vide Annexure-2 and the memorandum of charges dated 24.6.2015, vide Annexure-3. 2. Shorn of unnecessary details, the short facts of the case of the petitioner are that he is a Daitapati Sevak of Shree Jagannath Temple. In the record of rights of Shree Jagannath Temple, late Adhar Das Mohapatra, father of the petitioner, has been recorded as "Daita". Being the successor, the petitioner used to do seva puja of Lord Shree Jagannath, Balabhadra and Devi Subhadra in the Nabakalebar as per the record of rights. Though it is the duty of the 'Badagrahi' to change the "Ghata" of the Lords, other "Daitapaties" may also remain present inside the temple. On 16.6.2015 four numbers of "Badagrahi" had been to the temple to change the "Ghata". The petitioner, being a "Daitapati", was also present inside the temple to perform the seva puja. It is further stated that due to delay in "Niti", there was delay in change of "Ghata" for about four hours, which created dissatisfaction amongst the devotees. While the matter stood thus, vide Office Order No. 17/Con dated 24.6.2015, the opposite party No. 2 placed the petitioner under suspension pending drawal of disciplinary proceedings against him, vide Annexure-2. The order of suspension was passed under Section 21-B of Shree Jagannath Temple Act, 1954 (hereinafter referred to as "the Act") during morning hours of 24.6.2015. In the evening of the same day, the petitioner received a notice issued by the opposite party No. 2 under Section 21-A of the Act calling upon him to file reply within a period of thirty days on the allegations that he created disturbance for which there was delay in "Niti" of changing "Ghata" by the Badagrahis, vide Annexure-3. With this factual scenario, the present writ application has been filed. 3. Pursuant to issuance of notice, a counter affidavit has been filed by the opposite parties 2 and 3. It is stated that as per the temple record of rights, "Ghata Paribartan" ritual is a secret/gupta ritual. For performance of the said ritual, four main doors of the temple were closed from about 3.30 A.M. on 15.6.2015 till 8.00 P.M. of the next day. It is stated that as per the temple record of rights, "Ghata Paribartan" ritual is a secret/gupta ritual. For performance of the said ritual, four main doors of the temple were closed from about 3.30 A.M. on 15.6.2015 till 8.00 P.M. of the next day. As per the prevailing custom and tradition, only Daita Sevaks, Pati Mahapatra were supposed to stay in the inner bedha of the temple and Deulakaran and Tadhau Karan in outer bedha of the temple for performance of "Ghata Paribartan" ritual. No staff or officer of the temple administration was present inside the temple during the said period. Since reports have been published in print as well as electronic media that there was delay and disturbance in performance of "Ghata Paribartan" ritual, the Chief Administrator initiated proceeding, being Misc. Case No. 8 of 2015, to enquire into the cause of alleged delay and disturbance in "Ghata Paribartan" ritual. During preliminary inquiry, it was prima facie revealed that there was delay and disturbance in "Ghata Paribartan" ritual. The petitioner was the instrumental in causing delay and disturbance in "Ghata Paribartan" and his continuance will seriously subvert the smooth performance of Ratha Yatra, 2015. The opposite party No. 2 in exercise of its power conferred under Section 21-B of the Act, pending drawal of disciplinary proceedings has placed the petitioner under suspension with immediate effect until further order, vide Office Order No. 17/Con dated 24.6.2015. On the same day show cause notice under Section 21-A of the Act has also been issued to the petitioner, vide Notice No. 23/Con dated 24.6.2015 directing him to submit his reply on the charges levelled against him within thirty days from the receipt of notice. The misconduct is serious in nature and detrimental to the interest of the temple administration as well as the devotees. The opposite party No. 2 prima facie taking into consideration the gravity and seriousness of the allegations has issued the order of suspension against the petitioner. It is further stated that father of the petitioner, namely, Adhar Das Mohapatra has been recorded in the temple record of rights as a "Daita Sevak". The petitioner and his son, being the successors of late Adhar Das Mohpatra, are performing the "Daita Seva". The details of "Daita Seva" have been recorded at Seva Sl. No. 20 of the temple record of rights. Daita Seva is a group seva. The petitioner and his son, being the successors of late Adhar Das Mohpatra, are performing the "Daita Seva". The details of "Daita Seva" have been recorded at Seva Sl. No. 20 of the temple record of rights. Daita Seva is a group seva. All Daita Sevaks perform their seva during Nabakalebar as a team. This being a group seva, absence of one or two Daita Sevaks no way affects smooth performance of rituals required to be performed by Daita Sevaks. In the remark column of Seva Sl. No. 20, it is mentioned that only the Badagrahis perform the "Ghata Partibartan' ritual. The other Daitas may be present and work. As per the custom and tradition prevailing since long, only four Badagrahis are competent to enter the Anasar Pindi to perform the "Ghata Paribartan" ritual. The other Daita Sevaks may remain present inside the temple, but they have no right to enter the Anasar Pindi with the Badagrahis. It is further stated that enquiry is going on. None of the witnesses, so far examined, has alleged that due to negligence of Badagrahis, "Ghata Paribartan" ritual was delayed by four hours. Prima facie, it is found that the petitioner insisted to remain present in the Anasar Pindi along with the Badagrahis to witness the "Ghata Paribartan" ritual. Since the Badagrahis opposed to the same, the petitioner and his son, Jayakrushna Das Mohapatra, obstructed the Badagrahis to enter the Anasar Pindi for performing "Ghata Paribartan' ritual and scolded them. The misconduct and unruly behavior of the petitioner and his son acted as a catalyst in causing delay in performance of "Ghata Paribartan". The assertion of the petitioner that in the "Ghata Paribartan" 1977 and 1996 Nabakalebar, except four Badagrahis, other sevaks/Badagrahi were allowed to perform the change of "Ghata" ritual has been specifically denied. 4. Heard Mr. Pitambar Acharya, learned Senior Advocate along with Mr. Biren Sankar Tripathy, Advocate for the petitioner, learned Additional Government Advocate for the opposite party No. 1 and Mr. Patitapabana Panda, learned Advocate for the opposite parties 2 and 3. 5. Mr. Acharya, learned Senior Advocate argued with vehemence that the impugned order of suspension smacks mala fide and violative of Articles 14 and 21 of the Constitution of India. No opportunity of hearing was provided under Section 21-A of the Act before placing the petitioner under suspension. Patitapabana Panda, learned Advocate for the opposite parties 2 and 3. 5. Mr. Acharya, learned Senior Advocate argued with vehemence that the impugned order of suspension smacks mala fide and violative of Articles 14 and 21 of the Constitution of India. No opportunity of hearing was provided under Section 21-A of the Act before placing the petitioner under suspension. He submitted that the grounds/charges mentioned in the show cause notice, vide Annexure-3, are not so grave, which warrants a drastic action by the Chief Administrator, Shree Jagannath Temple-opposite party No. 2. He further submitted that the petitioner is a hereditary sevak of Lord Jagannath Mahaprabhu. In the record of rights prepared by Shree Jagannath Temple Administration Act, 1952 and Rules made thereunder, name of Adhar Das Mohapatra, father of the petitioner, has been mentioned in Chapter-20 Form-'D'. Drawing attention of this Court to the record of rights, Mr. Acharya, learned Senior Advocate submitted that Badragrahis perform the "Ghata Partibartan" ritual. At the same time other Daitas may also remain present. He further submitted that the allegations made in the show cause notice are unfounded and baseless. Neither the petitioner nor his son created any disturbance during "Ghata Paribartan" ritual. An attempt has been made to oust the petitioner from doing seva puja of the Lords during Nabakalebar, 2015. He further submitted that delay in causing the "Ghata Paribartan" cannot be attributed to the petitioner. 6. Per contra, Mr. Panda, learned Advocate for the opposite parties 2 and 3 submitted that since there was delay and disturbance in the "Ghata Paribartan" ritual, the opposite party No. 2 initiated proceeding, being Misc. Case No. 8 of 2015, to enquire into the cause of delay and disturbance in performance of "Ghata Paribartan" ritual. Enquiry is going on. During enquiry, it is prima facie revealed that the petitioner and his son obstructed the Badagrahis, insisted upon to enter the Ansar Pindi and abused the Badagrahis in the obscene language, for which the opposite party No. 2 in exercise of power under Section 21-B of the Act placed the petitioner under suspension. Section 21-B of the Act does not contemplate to provide opportunity of hearing to the petitioner. He further submitted that the charges levelled against the petitioner are very serious warranting no interference of this Court in the order of suspension as well as memorandum of charges. Section 21-B of the Act does not contemplate to provide opportunity of hearing to the petitioner. He further submitted that the charges levelled against the petitioner are very serious warranting no interference of this Court in the order of suspension as well as memorandum of charges. He further submitted that misconduct of the petitioner is serious in nature and detrimental to the interest of the temple administration as well as the devotees. 7. Provisions of Sections 21-A and 21-B of the Act, which are relevant, may be noticed. The same are quoted hereunder:-- "21-A. Control of Sevaks, etc. -All sevaks, office-holders and {Employees} attached to the Temple or in receipt of any emoluments or perquisites the reform shall, whether such service is hereditary or not, be subjected to the control of [Chief Administrator] who may, subject to the provisions of this Act and the regulations, made by the Committee in that behalf, after giving the person concerned a reasonable opportunity of being heard.- (a) withhold the receipt of emoluments or requisites; (b) impose a fine of an amount not exceeding [two thousand rupees]; (c) suspend; or (d) dismiss; any of them for breach of trust, incapacity, disobedience of lawful orders, neglect of or willful absence from duty, disorderly behaviour or conduct derogatory to the discipline or dignity of the Temple or for any other sufficient cause. 21-B. "Suspension pending inquiry- The Chief Administrator may place any sevak, office holder or employee attached to the Temple under suspension,- (a) where a disciplinary proceeding against him is contemplated or is pending; or (b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial." 8. The general law on the subject of suspension has been laid down by the apex Court in a catena of judgments. After survey of the earlier decision, the apex Court in the case of State of Orissa Vs. The general law on the subject of suspension has been laid down by the apex Court in a catena of judgments. After survey of the earlier decision, the apex Court in the case of State of Orissa Vs. Bimal Kumar Mohanty, AIR 1994 SC 2296 : (1994) 68 FLR 970 : (1994) 2 JT 51 : (1995) 1 LLJ 568 : (1994) 1 SCALE 685 : (1994) 4 SCC 126 : (1994) 2 SCR 51 : (1994) 2 SLJ 72 : (1994) 1 UJ 665 of the report held as follows:-- "It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental inquiry or trial of a criminal charge." 9. On the anvil of the decision citied supra, this Court has examined the case. The submission of Mr. Acharya, learned Senior Advocate for the petitioner that the order of suspension is an infraction of principles of natural justice though at first blush appears to be attractive, but on a deeper scrutiny of the provisions contained in Sections 21-A and 21-B of the Act, the same is like a billabong. 10. On a conspectus of Section 21-B(a) of the Act, it is evident that the Chief Administrator may place any sevak, office holder or employee attached to the temple under suspension, where a disciplinary proceeding against him is contemplated or is pending. (emphasis laid) 11. On a cursory perusal of Section 21-A of the Act, it is manifest that the Chief Administrator after giving the person concerned a reasonable opportunity of hearing may impose any of the punishment prescribed under Clauses "a to d". The same can only be done after conclusion of inquiry. Under Section 21-A of the Act, the Chief Administrator may impose penalty of suspension, but the same can be imposed after the charges levelled against the person concerned is proved. Sections 21-A and 21-B of the Act operate in different filed. 12. It is trite that suspension pending inquiry is not a punishment. An interim suspension can be passed against a sevak while an inquiry is pending into his misconduct as has been held by the apex Court in the case cited supra. Sections 21-A and 21-B of the Act operate in different filed. 12. It is trite that suspension pending inquiry is not a punishment. An interim suspension can be passed against a sevak while an inquiry is pending into his misconduct as has been held by the apex Court in the case cited supra. Suspension is not a punishment, but is only one of forbidding or disabling a sevak to discharge the duties of office, it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of the public that dereliction of duty would pay fruits and the offending sevak could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent to scuttle the inquiry. A Daita Sevak performs the seva for a limited period of the Lords starting from Jyestha Sukla Trayadoshi Tithi till Niladree Bije and on some festive occasions, such as Chitalagi Amabasya, Gamha Purnami, Radhastami, Kumar Purnima and Rekha Panchami. From the charge-sheet, it is vivid and luminescent that the allegations made against the petitioner are grave. The charges reveal that not only the petitioner obstructed the Badagrahis for performance of "Ghata Paribartan", but also abused them. The "Ghata Paribartan" is a scared ritual of the Lords. Due to unreasonable delay and disturbance in performance of "Ghata Paribartan", the same brought disrepute to the ancient temple. Devotees were shocked and flabbergasted. The temple administration apprehends that continuance of the petitioner will cause serious bottleneck in the smooth conduct of the Rath Yatra, 2015. The submission of Mr. Acharya, learned Senior Advocate for the petitioner that the order of suspension smacks mala fide and violative of Articles 14 and 21 of the Constitution of India has no legs to stand. There is no material on record to justify the stand of the learned Senior Counsel. 13. On taking a holistic view of the matter, this Court is of the opinion that the order of suspension dated 24.6.2015 passed by the Chief Administrator, Shree Jagannath Temple, Puri-opposite party No. 2, vide Annexure-2 as well as the memorandum of charges dated 24.6.2015, vide Annexure-3 does not suffer from any illegality and infirmity so as to warrant interference of this Court. The writ application, sans any merit, is dismissed. No Costs. 14. The writ application, sans any merit, is dismissed. No Costs. 14. Before parting with the case, this Court observes that various words pertaining to Seva Puja and Nitikranti of the Lords have been used, taking a cue from the record of rights. This Court does not find any synonyms words in English.