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2017 DIGILAW 1124 (ORI)

Nikunja Bihari Bhukta v. State of Odisha

2017-10-10

SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S. N. Prasad, J. 1. This writ petition is against the order of disengagement dated 4.8.2012 passed by the opposite party no.3-Collector-cum-D.P.C., D.R.D.A., Malkangiri, so far as it relates to the petitioner, by which, the petitioner has been disengaged from service from the post of Gram Rojagar Sevak for Govindapalli Gram Panchayat under Khairput Block in the district of Malkangiri. 2. Learned counsel for the petitioner has vehemently argued this case while assailing the order of disengagement on the ground that the order of disengagement has been passed without issuing any show cause notice and as such, the same is in violation to the principle of natural justice. She further submits that even accepting the show cause notice, which has been annexed in the counter affidavit, the same is also not said to be legal in view of the fact that the performance of the petitioner has been assessed for the financial year 2011-12 and 2012-13, in which, the petitioner has been found to be bad performer. But according to her, petitioner has been engaged as Gram Rojagar Sevak on 15.12.2011 and disengaged from service on 4.8.2012. She further contends that the show cause notice was issued on 19.5.2012 meaning thereby the performance of the petitioner as on 13.5.2012 in the financial year 2012-13 has been assessed, in which, his performance has been found to be zero. She further contends that the show cause notice has been issued is without any application of mind for the reason that since the petitioner has been engaged in service and rendered his service in the financial year 2011-12 for a period of about 3½ months approximately, in which, he has achieved Rs.2.26/- lakh against committed target of Rs.8.94/- lakh, which is 23% of expenditure, but the authorities has assessed the entire financial year which begins from 1st April, 2011 to 31st March, 2012. She further submits that even for the time period of 2012-13, the financial year since beings from 1st April, 2012 and his performance can at best be said to be assessed till 13.5.2012, which is about less than 1½ months and as such, before allowing the petitioner to use his potentiality when it is a maximum length, the show cause notice has been issued and he has disengaged from service. On the strength of this averment, submission has been made that the show cause notice has been issued without any application of mind and as such, the order of disengagement is also not sustainable in the eye of law. 3. Learned counsel appearing for the District Rural Development Agency as also the Collector has vehemently opposed the submission made on behalf of the petitioner and it has been submitted that the show cause notice has been issued to the petitioner, but he has not responded to it. Hence, it is incorrect to say that the principle of natural justice has not been followed. He further submits that the show cause notice has been issued taking into consideration the bad performance of the petitioner in achieving the target as has been fixed by the authority in order to achieve the target fixed. 4. Heard the learned counsel for the parties and perused the documents available on record. 5. The fact which is not in dispute in this case is that the petitioner has been appointed in pursuant to the advertisement vide his engagement on 15.12.2011. He started discharging his duty. The petitioner was disengaged from service on 4.8.2012. The petitioner has approached this Court by way of this instant writ petition assailing the order of disengagement on the ground that the show cause notice has not been issued to him. Hence, the order of disengagement is in violation of principle of natural justice. 6. This Court, after going through the pleadings made in the counter affidavit, has found that the show cause notice has been annexed to it and in the bottom of the said show cause, the concerned B.D.O. has been directed to serve the copy of the same to the petitioner to file proper response, which the petitioner however has denied of its receipt. But learned counsel for the petitioner even accepting the fact that the show cause notice has been issued and he has not responded, has assailed the show cause notice on the ground that the same has been issued without any application of mind. 7. This Court, in order to appreciate the arguments advanced on behalf of the petitioner, has found on scrutiny of the contents of the show cause notice which is the assessment of the performance of the petitioner for the financial year 2011-12 and 2012-13. 7. This Court, in order to appreciate the arguments advanced on behalf of the petitioner, has found on scrutiny of the contents of the show cause notice which is the assessment of the performance of the petitioner for the financial year 2011-12 and 2012-13. The assessment was made on 13.5.2012 by the authorities of the D.R.D.A., Malkangiri, in which, his performance has been found to be poor. Accordingly, the disengagement order has been passed. 8. The date of engagement of the petitioner is not disputed, i.e., on 15.12.2011, which goes to suggest that the petitioner was appointed during the midst of the financial year 2011-12, but the authorities has assessed his performance taking into consideration the entire financial year of 2011-12, likewise the petitioner has been disengaged from service on 4.8.2012. However, his assessment for the financial year 2012-13 has assessed on 13.5.2012 which is only for a period of about 1½ months, in which, his performance is shown to be zero. It is thus evident that the authorities while issuing the show cause notice has not considered this aspect of the matter while assessing the performance of the petitioner of the entire financial year instead of restricting it to the actual working days of the petitioner. 9. Hence, according to the considered view of this Court, the show cause notice dated 19.5.2012 issued to the petitioner is without any application of mind and if the basis of disengagement is bad, the consequence will also be said to be illegal in the eye of law. 10. In view thereof, the order of disengagement dated 4.8.2012 passed by the opposite party no.3-Collector-cum-D.P.C., D.R.D.A., Malkangiri is held to be illegal, so far as it relates to the petitioner and as such, the matter is remitted before the opposite party no.3-Collector-cum-D.P.C., D.R.D.A., Malkangiri to issue fresh show cause notice to the petitioner within two weeks from the date of receipt of certified copy of this order which shall be responded to by the petitioner within three weeks from the date of its receipt. On its receipt, the Collector-cum-D.P.C., D.R.D.A., Malkangiri shall take decision in accordance with law during the aforesaid period. 11. It goes without saying that the further continuation of the petitioner will depend upon the final decision to be taken by the authorities as indicated above. Accordingly, the writ petition is disposed of.