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2016 DIGILAW 1066 (ORI)

Manoj Kumar Garada v. State of Orissa

2016-11-09

A.K.RATH

body2016
JUDGMENT : A.K. RATH, J. By this writ application under Article 226 of the Constitution of India, challenge is made to the order dated 28.2.2015 passed by the Collector-cum-DPC, MGNREGA, Koraput, opposite party no.2, vide Annexure-9, terminating the petitioner from the post of Gram Rozgar Sevak. 2. The case of the petitioner is that he was selected as Multi Purpose Assistant (GRS) by the Project Director, DRDA, Koraput, opposite party no.3. Agreement was executed by him. Thereafter order of appointment was issued by the Sarapanch, Burja G.P. on 2.3.2008. Pursuant to the same, he joined the post. On 20.3.2014 he was appointed as Polling Officer. Thereafter, on 20.12.2014 he was directed to take over the additional charges of Odiapentha G.P. in addition to his own at Burja G.P. There was no blemish in his service career. While the matter stood thus, a show cause notice was issued by opposite party no.3 to him on 24.2.2015, vide Annexure-7, to the effect that no labour was engaged on the day when opposite party no.3 visited the G.P. and reviewed the performance. It was found that MGNREGA Work had not touched 40% of the target. He submitted the reply on 27.2.2015 stating therein that due to additional charge, it was not possible to achieve the target. There might be some inadvertent lapses. The same is not intentional or deliberate. While the matter stood thus, opposite party no.2 issued the order of disengagement on 28.2.2015. 3. Pursuant to issuance of notice, a counter affidavit has been filed by opposite party no.3 stating therein that the post of Multi Purpose Assistant (Gram Rozgar Sevak) has been created under MGNREGA Scheme for effective implementation of the different beneficial programmes for the rural people particularly, to provide them work and wages throughout the year. For manning the post, modalities have been prescribed under the Scheme. The post is temporary. The GRS is engaged for on yearly basis by executing an agreement subject to renewal on satisfactory performance. He can be terminated on non-performance or unsatisfactory performance. GRS should maintain registers like application for registration register, employment register, job card issue register, asset register, muster roll receipt register, work register etc. As per the agreement, the GRS is required to spend 100% of the fund provided to GP during one financial year. He can be terminated on non-performance or unsatisfactory performance. GRS should maintain registers like application for registration register, employment register, job card issue register, asset register, muster roll receipt register, work register etc. As per the agreement, the GRS is required to spend 100% of the fund provided to GP during one financial year. In the present case, besides the spot visit by the Project Director, DRDA, the ABDO, Laxmipur Block has submitted a report, which speaks volumes about the poor performance of the petitioner. It is further stated that the petitioner was engaged as Multi Purpose Assistant (Gram Rozgar Sevak) of Burja G.P. on contractual basis upon execution of an agreement, which empowers the authority to disengage him as per Clause-9 of the said agreement. Since there is an express clause in the agreement for removal, the same can be done even without serving of a show cause notice. The petitioner was given a show cause notice, vide letter no.1450 dated 24.2.2015 and also being given an opportunity of being heard on 27.2.2015, the order of disengagement was passed. The order of disengagement was issued by following due procedure of law. During the visit of Project Director, DRDA, Koraput, opposite party no.3 on 24.2.2015, it was found that not a single wage seeker was engaged and due to such carelessness of the petitioner, the financial performance of Burja G.P. was less than 40% against the target of 81.77 lakhs. 4. The petitioner has filed rejoinder controverting the allegations made in the counter affidavit. He has also filed an additional affidavit annexing the circular dated 21.3.2013 issued by the Government of Orissa, Panchayati Raj Department, vide Annexure-13 that the Collector, Koraput has power to disengage the GRS after following due procedure i.e., asking for show cause and giving the opportunity of hearing. 5. Mr. Kanungo, learned counsel for the petitioner submitted, that the petitioner was in charge of two Gram Panchayats. It was neither possible nor feasible on his part to achieve target. He further submitted that the Collector, Koraput is the appropriate authority to disengage the GRS after following due procedure, but in the instant case, show cause notice was issued by the Project Director, DRDA, Koraput. He further submitted that the Collector, Koraput has passed the order mechanically. 6. It was neither possible nor feasible on his part to achieve target. He further submitted that the Collector, Koraput is the appropriate authority to disengage the GRS after following due procedure, but in the instant case, show cause notice was issued by the Project Director, DRDA, Koraput. He further submitted that the Collector, Koraput has passed the order mechanically. 6. Per contra, learned Additional Government Advocate supported the order and reiterated the stand taken by the opposite party no.3 in the counter affidavit. 7. In Gullapalli Nageswara Rao and others Vrs. Andhra Pradesh State Road Transport Corporation and another, AIR 1959 SC 308 , 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) 8. Admittedly, opposite party no.3 has issued the show cause notice. The petitioner submitted his reply, but then the order of disengagement has been passed by opposite party no.2. From the impugned order, it is evident that no opportunity of hearing was provided to the petitioner by opposite party no.2. Thus, hearing became an empty formality. 9. In the wake of aforesaid, the order dated 28.2.2015 passed by the Collector-cum-DPC, MGNREGA, Koraput, opposite party no.2, vide Annexure-9 is quashed. The opposite party no.2 shall issue a fresh show cause notice to the petitioner and after affording opportunity of hearing, pass necessary order. 10. The writ application is allowed to the extent indicated above.