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2019 DIGILAW 319 (ORI)

Swetapadma Dash v. State of Odisha

2019-04-12

B.R.SARANGI

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JUDGMENT : B.R. Sarangi, J. 1. The petitioner, by means of this writ application, seeks to quash order dated 12.07.2011 in Annexure-4, by which the petitioner has been disengaged as Gram Panchayat Technical Assistant (GPTA), and also the order dated 31.07.2012 passed by the Project Director, District Rural Development Agency (DRDA) rejecting the representation of the petitioner, and further seeks for direction to re-engage her in the post of GPTA. 2. The facts of the case, in a nutshell, are that the petitioner is a Diploma Holder Engineer. - On successful completion of Diploma in Civil Engineering, she was empanelled for appointment as a Junior Engineer under the State. The panel is maintained and prepared by the committee of Chief Engineers and Engineer-in-Chief (Civil), Odisha, Bhubaneswar. From the said panel, the names of Junior Engineers are sponsored to different departments of the Government, Government Undertakings and other authorities for appointment as per their requisition. The petitioner's name was sponsored to Panchayati Raj Department for appointment. Accordingly, she was appointed as Junior Engineer under National Food For Work Programme (NFFWP) Scheme, initially for a period of one year, on contractual basis with a remuneration of Rs. 5000/- per month, pursuant to order dated 18.08.2005 of the Project Director, DRDA., Mayurbhanj in Annexure-I, and was posted as GPAT under Shamakhunta Block, in which post she joined on 19.08.2005 on execution of the annual agreement. 2.1. The petitioner was entrusted with execution of a work under MGNREGS (Mahatma Gandhi National Rural Employment Guarantee Scheme) of assigned Gram Panchayat. But it was noticed, while discharging her duties, that she has committed serious irregularities. An enquiry was conducted by the Project Director, DRDA and it was found that the petitioner has committed gross negligence in performing her duty and acted in violation of the principles of Mahatma Gandhi National Rural Employment Guarantee Act and also clauses-2, 9 and 10 of the terms and conditions of the annual agreement. Consequentially, she was disengaged from service vide order dated 12.07.2011 in Annexure-4. Consequentially, she was disengaged from service vide order dated 12.07.2011 in Annexure-4. Against such disengagement order, the petitioner approached this Court by filing W.P.(C) No. 19264 of 2011 and after due adjudication this Court disposed of the writ application by order dated 05.03.2011 with the direction that opposite party No. 3 shall give an opportunity of personal hearing to the petitioner and if the Project Director was satisfied that the petitioner has no role to play in the irregularity that has been committed, then the case of the petitioner for re-engagement shall be considered. Pursuant to such direction, the Project Director, DRDA, affording opportunity of hearing to the petitioner, passed order impugned in Annexure-6 dated 31.07.2012 rejecting claim of the petitioner for re-engagement. Hence this application. 3. Learned counsel for the petitioner has contended that the petitioner was discharging her duties assigned to her with all sincerity, but on the allegation of some irregularities she has been disengaged. It is further contended that a show notice was issued against the petitioner on the allegation of misappropriate of government money to the tune of Rs. 32,650/-, as she had not applied her mind into the selection of a suitable land for sanction of a farm pond in the name of the beneficiary and thereby, there was wrong payment of government money of Rs. 32,650/- without execution of any work, which amounts to misappropriation, and disengagement of the petitioner by the impugned order under Annexure-4 on the basis of such allegation is quiet harsh. It is further contended that challenging the disengagement of contractual engagement of the petitioner under order dated 12.07.2011 in Annexure-4, she approached this Court by filing W.P.(C) No. 19264 of 2011, which was disposed of by order dated 05.03.2012 with a direction to the Project Director, DRDA to consider the representation and pass appropriate order by affording opportunity of hearing and if it is found that the petitioner is no way responsible she may be re-engaged, but the Project Director, DRDA without affording opportunity of hearing to the petitioner passed the order dated 31.07.2012 in Annexure-6 refusing to re-engage the petitioner and thereby rejected the representation filed by the petitioner. 4. Mr. B. Senapati, learned Addl. 4. Mr. B. Senapati, learned Addl. Government Advocate appearing for the State opposite parties, on the other hand, contended that in compliance of order dated 05.03.2012 passed by this Court in W.P.(C) No. 19264 of 2011 due opportunity of hearing was given to the petitioner and as such on the allegation an enquiry was conducted in presence of her and she was not able to satisfy the authority with regard to the irregularities committed by her in course of employment. Consequentially, the order impugned in Annexure-6 has been passed. Thereby, no illegality or irregularity has been committed in passing the order impugned calling for any interference by this Court, and as such, the question of re-engagement of the petitioner at this stage does not arise at all. 5. This Court heard learned counsel for the petitioner and Mr. B. Senapati, learned Additional Government Advocate appearing for the State opposite parties. The pleadings between the parties having been exchanged, with the consent of learned counsel for the parties the case is being disposed of finally at the stage of admission. 6. The facts narrated above are not in dispute admittedly, the petitioner, having been duly selected by the committee of Chief Engineers headed by Engineering-in-Chief (Civil), Odisha, Bhubaneswar, was engaged as GPTA, placed under Panchayati Raj Department and posted under Shamakhunta Block in the district of Mayurbhanj. While she was continuing as such, due to selection of a wrong land for sanction of a farm pond, which resulted in wrong payment of government money to the tune of Rs. 32,65/-, the petitioner was disengaged on the allegation of misappropriation of government money. 7. Subsequently, the Project Director, DRDA, in compliance of the order dated 05.03.2012 passed by this Court in W.P.(C) No. 19264 of 2011, called upon the petitioner to substantiate her case, but she could not produce any such document dislodging the allegations made against her. Rather, the opposite parties substantiated their allegations stating that the petitioner was ignorant of the farm pond and that at the instance of her brother Kanhu Singh muster roll was prepared by herself whereas she has got no business to verify whether labourers engaged by the beneficiary were genuine or not. 8. Rather, the opposite parties substantiated their allegations stating that the petitioner was ignorant of the farm pond and that at the instance of her brother Kanhu Singh muster roll was prepared by herself whereas she has got no business to verify whether labourers engaged by the beneficiary were genuine or not. 8. Apart from the same, an enquiry was conducted in village Salabani and certain irregularities were noticed on payment of wages of labourers who had worked in the farm pond and the said amount was assessed to be Rs. 32,600/-. It was also ascertained in course of enquiry that the petitioner has not verified the labourers who had worked in the farm pond and as such put her signature in the muster roll in the visiting officers column in week end, so as to facilitate misappropriation of government money against the alleged beneficiary whose name has been mentioned in the muster roll. Further, while preparing the muster roll of the farm pond, it came to the light that one Gobardhan Singh, husband of Subhadra Singh is working as constable in the Fire Office of Basta of Balasore district as per statement of Dehuri Singh, brother of Goberdhan Singh. The benefits should not be extended to the wife of government servant. As such, the work order was issued violating the norms of MGNREG scheme by the Block authority. 9. As the above irregularities were found during the course of enquiry, ultimately the Project Director, DRDA carne to the following conclusions: "To sum up the facts and findings narrated above it is ascertain that the petitioner Swetapadma Dash when working as GPTA in the Shamakhunta Block while executing the farm pond of Subhadra Singh has not done work properly as per duty and responsibility assigned to her. The false Muster Roll has been prepared when genuine labourers had not worked in the aforesaid Farm Pond for which Rs. 32,600/- (Rupees Thirty-two Thousand Six Hundred) only was not spent for the benefit of the beneficiary and the entire amount is wasteful expenditure of Govt. money. As a supervising officer petitioner had not performed her duty properly and while executing the farm pond of Subhadra Singh and irregularities have been committed in which role of petitioner) Smt. Swetapadma Dash, Ex-GPTA cannot be ruled out. money. As a supervising officer petitioner had not performed her duty properly and while executing the farm pond of Subhadra Singh and irregularities have been committed in which role of petitioner) Smt. Swetapadma Dash, Ex-GPTA cannot be ruled out. So I am satisfied that these irregularities are happened due to lack of proper supervision and discharging the legitimate assignment of petitioner. As such her prayer for re-engagement deserve no merit for consideration and hence rejected." 10. The Constitution Bench of the Apex Court in Hari Vishnu V. Ahmad Ishaque, AIR 1955 SC 223 laid down the following propositions as well settled and beyond dispute: "(1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction, or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction) as when it decides without giving an opportunity to the parties to be heard) or violates the principles, of natural justice. (3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of facts reached by the inferior court or tribunal, even if they be erroneous. This is on the principle that a court which has jurisdiction over a subject matter has jurisdiction to decide wrong as well as right) and when the legislature does not choose to confer a right of appeal against that decision) it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence, and substitute its own findings in a certiorari." In Champalal v. C.I.T., (1971) 3 SCC 20 : AIR 1970 SC 645 , the apex Court held that the High Court has the power to refuse the writ if it is satisfied that there was no failure of justice. This writ being discretionary, it is not issued merely because it is lawful to do so. Similar view has also been taken by the apex Court in Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675 . 11. This writ being discretionary, it is not issued merely because it is lawful to do so. Similar view has also been taken by the apex Court in Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675 . 11. In view of the afore said facts and circumstances, this Court is of the considered view that this Court cannot give a separate conclusion than the one arrived at by the Project Director, DRDA in course of hearing. As such, the petitioner is not entitled to be re-engaged as GPTA and the impugned orders passed by the Project Director, DRDA in Annexures-4 and 6 are hereby upheld. 12. In the result therefore, this Court does not find any merit in the writ application, which is hereby dismissed. There shall be no order as to costs.