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2015 DIGILAW 537 (ORI)

DILIP KUMAR v. BARAD STATE OF ORISSA

2015-09-10

A.K.RATH

body2015
JUDGMENT : Dr. Akshaya Kumar Rath, J. - By this writ petition under Article 226 of the Constitution of India, challenge is made to the order dated 29.6.2013 passed by the Collector-cum-Chief Executive Officer, Zilla Parishad, Sambalpur-opposite party No. 2, vide Annexure-5, disengaging the petitioner from the post of Gram Rozgar Sevak, Sankarma Gram Panchayat of Dhankauda Block. Sans details, the case of the petitioner is that pursuant to the advertisement for the post of Gram Rozgar Sevak, the petitioner made an application. He was selected. On 11.1.2008, the opposite party No. 2 sent a letter to the Sarpanch, Sankarma Gram panchayat of Dhankuda Block, vide Annexure-1, enclosing therein the panel of the candidates in order of their merit approved by the District Level Selection Committee for engagement as Multi Purpose Assistant (Gram Rojgar Sevak) in the Gram Panchayat on contractual basis on certain terms and conditions. The name of the petitioner found place at serial No. 1 of the list. On 15.1.2008, vide Annexure-2, the Sarpanch, Sankarma Gram Panchayat sent a letter to the petitioner appointing him to the post of Gram Rozgar Sevak. While the matter stood thus, on 18.6.2013, the Project Director, DRDA, Sambalpur-opposite party No. 3 issued notice to the petitioner asking him show cause. Pursuant to the same, he filed a show cause, vide Annexure-4, denying the allegations. By order dated 29.6.2013, the opposite party No. 2 disengaged him from the post. 2. Pursuant to issuance of notice, a counter affidavit has been filed by the opposite party No. 2. It is stated that MGNREGS, being a rural poverty alleviation programme, aims at mobilizing the manual job seekers, who are generally unaware of the provisions of the scheme. It is the prime duty of a Gram Rozgar Sevak (GRS) to mobilize the job seekers and collect demand from them explaining the scope of the earning potential and creation of community asset. The authority has fixed a specific target to achieve and successful implementation of MGNREGA scheme. The staffs working under MGNREGS including Gram Rozgar Sevaka (GRS) are paid from the 6% contingency of the scheme and the achievement of the GRS in the Gram Panchayat is far below from the target. The man-days generated up to 20.6.2013 against target are 0% only, which is not at all satisfactory and the position of the GP is in 145th in the district out of 148 Gram Panchayats. The man-days generated up to 20.6.2013 against target are 0% only, which is not at all satisfactory and the position of the GP is in 145th in the district out of 148 Gram Panchayats. The petitioner failed to collect job applications from the prospective job seekers, maintenance of Muster Roll and to execute the MGNREGS scheme. It is further stated that the petitioner was not doing anything for the scheme for which he was engaged. His achievement in the Gram Panchayat is nil. The show cause was issued directing the petitioner to submit his reply as to why he shall not be disengaged from engagement for the above lapses and unsatisfactory performance. It is further stated that as many as four numbers of notices to show cause have been issued to him. The petitioner has not replied. The show cause attached in the writ petition is vague and false. The reply to show cause was not received. It is further stated that as per the power vested by the Government, Collector-cum-CEO of Zilla Parishad is the competent authority to take disciplinary action including removal of GRS for unsatisfactory performance, indiscipline or otherwise after observing due formalities. In this case, the applicant was given ample opportunity of being heard. The act of the Collector in disengaging the petitioner is based on sufficient reasons and, therefore, cannot be termed as illegal, arbitrary and violation of the principles of natural justice. 3. Heard Mr. S.B. Jena, learned counsel for the petitioner and Mr. P.C. Panda, learned counsel for the opposite parties. 4. Notice was issued by the opposite party No. 3 on 18.6.2013, vide Annexure-3, asking the petitioner to show cause for dereliction of the duties. The charges levelled against the petitioner are as follows:-- "xxx xxx xxx 8. You have not cooperating the Job Card holders for opening of Savings Bank Account. 9. You have not prepared the list of unskilled labourers who have engaged below 100 days. 10. You have not report the detail position of Job seekers to BDO-cum-P.O. 11. You have not collected the applications from job seekers on the day of Rozgar Divas. 12. You have not attended the weekly meeting in the Block regularly. 13. You have not maintained properly the Job Card register and employment register. 14. You have not provided the records during Social Audit of MGNREGA." 5. You have not collected the applications from job seekers on the day of Rozgar Divas. 12. You have not attended the weekly meeting in the Block regularly. 13. You have not maintained properly the Job Card register and employment register. 14. You have not provided the records during Social Audit of MGNREGA." 5. The order of disengagement dated 29.6.2013 passed by the opposite party No. 2, vide Annexure-5, reveals that performance of the petitioner was not at all satisfactory as reported by the Sarapanch, Sankarma Gram Panchayat and the B.D.O., Dhanakuda Block. He remained absent from the Gram Panchayat Office willfully and unauthorizedly and failed to fulfill the terms and conditions of the agreement. He was not regular in his duties and respectful to higher authority and violated the agreement. The impugned order does not reveal that the charges levelled against the petitioner were proved. The opposite party No. 2 has not considered the case in its proper perspective. 6. The matter may be considered from another angle. Notice to show cause was issued by the opposite party No. 3. The petitioner filed his show cause before the opposite party No. 3. It is strange that the order of disengagement was passed by the opposite party No. 2. Nothing fetters the opposite party No. 2 to issue notice to show cause to the petitioner. Thus, issuance of show cause and consideration of reply becomes an empty formality. 7. In Gullapalli Nageswara Rao and Others Vs. Andhra Pradesh State Road Transport Corporation and Another the apex Court held that personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear-up his doubts during the course of arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. (emphasis laid) In view of the same, the order dated 29.6.2013 passed by the Collector-cum-Chief Executive Officer, Zilla Parishad, Sambalpur-opposite party No. 2, vide Annexure-5, is hereby quashed. The matter is remitted back to the opposite party No. 2. The opposite party No. 2 shall issue a fresh notice to show cause to the petitioner granting him opportunity to file reply. After considering the same, the opposite party No. 2 shall pass order in accordance with law. The petition is disposed of. Final Result : Disposed Off