JUDGMENT Dr. B.R.Sarangi, J. - The petitioner, who was working as a 'Gram Rozgar Sevak' of Bankili Gram Panchayat under Kolnara Block in the district of Rayagada on contractual basis, has filed this writ petition seeking to quash the office order dated 31.07.2012 under Annexure-12 terminating his service and relieving him of his duty w.e.f. 31.07.2012, and further seeks direction to reinstate him in the said post. 2. The factual matrix of the case, in hand, is that the Collector, Rayagada issued an advertisement inviting applications for the post of 'Gram Rozgar Sevak' (GRS) from eligible intending candidates of different Gram Panchayats under Rayagada district. As per the said advertisement, preference was to be given to the candidates belonging to their own Gram Panchayat. In response to the said advertisement, the petitioner, having requisite qualification for the post of GRS, submitted his candidature in respect to Bankili Gram Panchayat under Kolnara Block. By following due procedure of selection, the petitioner was selected for the post of GRS and his service was placed at the Bankili Gram Panchayat under Kolnara Block vide letter dated 22.02.2009 and he was engaged on contractual basis under the MGNREG Scheme. Thereafter, an agreement was executed on 17.02.2009 between the Sarapanch, Bankili Gram Panchayat and the petitioner, as per the government instructions. As per the terms and conditions of the agreement, monthly salary of the petitioner was fixed at Rs.2,000/- for a period of one year with effect from the date of agreement. The service of the petitioner was also extended up to 01.03.2013 with same terms and conditions, but the consolidated remuneration was enhanced and fixed at Rs.3,000/-. While he was so continuing, on 09.05.2012, the Block Development Officer, Kolnara issued a show cause notice to all persons associated with the project to submit their reply pertaining to irregularities committed by them regarding execution of 'Mo Pokhari' of Smt. Amana Senapati of village- Kankubadi under MGNREG Scheme on the basis of the audit report dated 18.04.2012. 2.1. On 11.05.2012, the petitioner received an order from the B.D.O., Kolnara- opposite party no.3 regarding deposit of an amount of Rs.35,625/- in MGNREGS account. Therein, the BDO, Kolnara had specifically directed that all the persons, those who were associated with the project and were found guilty, were to deposit equally an amount of Rs.7,125/-each in MGNREGS account. 2.1. On 11.05.2012, the petitioner received an order from the B.D.O., Kolnara- opposite party no.3 regarding deposit of an amount of Rs.35,625/- in MGNREGS account. Therein, the BDO, Kolnara had specifically directed that all the persons, those who were associated with the project and were found guilty, were to deposit equally an amount of Rs.7,125/-each in MGNREGS account. The BDO also issued an individual show cause notice to the petitioner on 11.05.2012, wherein he was directed to file reply for the gross irregularities. On being noticed, the petitioner on 22.05.2012 submitted his explanation to the imputations made against him in show cause notice dated 11.05.2012 for committing irregularities in execution of work under his Gram Panchayat and withdrawal of amount by adducing false bills. 2.2. The petitioner on 26.05.2012 approached the learned Ombudsman (MGNREGS), Rayagada for consideration of his case contending that behind his back, the opposite parties no. 4 and 5 had prepared a false bill and directed him to make/prepare muster roll of the said job, which was not within his knowledge. The measurement of the work was done by the opposite party no.4 in October, 2011 and, thereafter, check measurement was done by the Asst. Engineer- opposite party no.5. As such, the said opposite parties no. 4 and 5 are the real culprits and the author of the irregularities and have prepared the false bills. By stating so, he denied to be any way connected with such irregularities and contended that such irregularities were committed by opposite parties no. 4 and 5. 2.3. On 23.06.2012, the opposite party no.1- Collector-cum-DCP, MGNREGS, Rayagada issued show cause notice to the petitioner to submit his explanation for violating the norms of MGNREGS, fabricating the muster roll knowingly in the sense that no such work of 'Mo Pokhari' of Smt. Amana Senapati of Kankudibadi village under Bankili Gram Panchayat of Kolnara Block was done. In respect to the same, the petitioner submitted his explanation on 19.07.2012 to the charges levelled against him by the opposite party no.1 in show cause notice dated 23.06.2012 and refuted all the allegations made against him. After submission of show cause reply on 19.07.2012, he was terminated from service vide order dated 31.07.2012 and relieved on the very same day. Hence this application. 3. Mr. After submission of show cause reply on 19.07.2012, he was terminated from service vide order dated 31.07.2012 and relieved on the very same day. Hence this application. 3. Mr. B.P. Das, learned counsel for the petitioner contended that while terminating the petitioner from the service, he has not been given opportunity of hearing and, more so, no show cause notice was issued to opposite parties no. 4 and 5, who are associated with the said alleged work and, as such, the order dated 11.05.2012 issued by the BDO, Kolnara Block had never been taken into consideration. The enquiry conducted by the opposite party no.2 has no transparency and the persons, who had committed gross irregularities and misappropriation of public funds by way of adducing false bills, have been exonerated. In order to save the opposite parties no. 4 and 5, the petitioner has been crucified by terminating him from service by the impugned order. It is further contended that the BDO, Kolnara Block in his letter dated 11.05.2012 vide Annexure-6 clearly mentioned that all the persons associated with the said work were jointly and severally liable for the loss and accordingly directed each persons to pay Rs.7,125/- in order to save the public fund. This fact has never been taken into consideration by the opposite party no.1, while passing the order of termination against the petitioner. Before taking such drastic action of termination of service of the petitioner, the petition dated 26.05.2012 of Srinibas Heprka, Sarapanch of Bankili Gram Panchayat, the petition of Krushna Chandra Senapati and the account slip dated 25.05.2012 have never been taken into consideration. The account slip dated 25.05.2012 clearly reveals that there was deposit of entire amount of Rs.35,625/-by the son of the beneficiary. As the amount involved has already been deposited in the account of State exchequer, passing order of termination for the self same cause of action, cannot sustain in the eye of law. It is further contended that when Ombudsman, MGNREGS was causing an enquiry, at that stage, the action taken by the opposite party no.1-Collector, Rayagada terminating the service of the petitioner without awaiting the report of the Ombudsman cannot sustain in the eye of law and, thereby, the same should be quashed. To substantiate his contention, he has relied upon the judgment of this Court in Haramohan Samantaray v. Commissioner-cum-Secretary to Govt. To substantiate his contention, he has relied upon the judgment of this Court in Haramohan Samantaray v. Commissioner-cum-Secretary to Govt. Panchayat Raj Department, Odisha, Bhubaneswar and three others, 2014 (II) OLR-75. 4. Per contra, Mr. Y.S.P. Babu, learned Addl. Government Advocate for the State contended that several opportunities were given to the petitioner by the opposite party no.1-Collector, Rayagada and opposite party no.3- BDO, Kolnara to adduce his grievance. Firstly, he was issued with show cause notice vide letter dated 11.05.2012 by opposite party no.3, which was duly replied by him. Secondly, a personal hearing before the Ombudsman, MGNREGS, Rayagada was given to the petitioner along with other concerned officials on 25.05.2012 in the Block Office, during which the petitioner submitted his reply. Subsequently, the opposite party no.1- Collector-cum- DPC, MGNREGS, Rayagada gave him another chance to show cause vide letter no. 1833 dated 23.06.2012, to which the petitioner replied. Therefore, having not satisfied with such replies, action has been taken by the Collector, which is well within his competence and, thereby, the action so taken is well justified. It is further contended that the petitioner was entered with an agreement. Clauses-1, 10 and 11 of the agreement stipulate the grounds for termination of service. For the irregularities committed by the petitioner, even without notice on the ground of misconduct, he can be disengaged from service in terms of the agreement and, thereby, no irregularity or illegality can be said to have been committed by the Collector in taking the impugned action. It is further contended that the petitioner is responsible for proper maintenance of muster roll for the work in question. As such, he violated the norms of MGNREGS and fabricated the muster roll for execution of work without asking opposite parties no. 4 and 5 for payout, which amounts to gross misconduct and doubtful integrity of the petitioner. The muster roll was prepared without any spot visit and as per direction of opposite party no.4, which itself is a serious misconduct. Thereby, the Collector is well justified in terminating the service of the petitioner vide impugned order dated 31.07.2012 under Annexure-12. Accordingly, the writ petition is liable to be dismissed. 5. This Court heard Mr. B.P. Das, learned counsel for the petitioner and Mr. Y.S.P. Babu, learned Addl. Government Advocate appearing for the State opposite parties by virtual/physical mode, and perused the records. Accordingly, the writ petition is liable to be dismissed. 5. This Court heard Mr. B.P. Das, learned counsel for the petitioner and Mr. Y.S.P. Babu, learned Addl. Government Advocate appearing for the State opposite parties by virtual/physical mode, and perused the records. In this writ petition, this Court issued notice, vide order dated 22.11.2012, to the opposite parties and passed interim order that any appointment made to the post of Gram Rojgar Sevak of Bankili Gram Panchayat under Kolnara Block shall be subject to the result of this writ petition. Notice as against opposite parties no. 1 to 4 has been made sufficient after valid service. So far as AD in respect of opposite party no. 5 is concerned, a report was called for from the customer care of Post Office, Chandinichowk and on the basis of the letter of the Manager, GPO, Cuttack, this Court vide order dated 26.08.2014 held that service of notice on opposite party no.5 is sufficient. As it reveals, the opposite parties no. 4 and 5 have been impleaded as parties by name, who were working as Gram Panchayat Technical Assistant, Kolnara Block and Asst. Engineer, Kolnara Block respectively at relevant point of time and they chose not to appear. The opposite parties no. 1 to 3 have filed their counter affidavit on 24.09.2014, to which the petitioner has filed rejoinder affidavit on 25.11.2014. Consequentially, an affidavit was also filed by opposite parties no.1 and 3 on 06.12.2019 and reply affidavit to the same was also filed by the petitioner on 13.12.2019. Though it is a case of the year 2012, this Court proceeded with the matter for final disposal with the consent of the learned counsel for the petitioner and learned Addl. Government Advocate appearing for the Stateopposite parties. 6. Admittedly, the petitioner was duly selected as GRS and engaged in Bankili Gram Panchayat by way of executing an agreement between the Sarapanch of the Bankili Gram Panchayat and the petitioner on 17.02.2009, vide Annexure-3. Clause-1, 10 and 11 of the agreement read as follows: '1. Government Advocate appearing for the Stateopposite parties. 6. Admittedly, the petitioner was duly selected as GRS and engaged in Bankili Gram Panchayat by way of executing an agreement between the Sarapanch of the Bankili Gram Panchayat and the petitioner on 17.02.2009, vide Annexure-3. Clause-1, 10 and 11 of the agreement read as follows: '1. That the First Party shall provide engagement to the Second Party in Block for a period of one year commencing on 17 day 02 Month 2009 year and ending on the 16 day of 02 Month of 2010 Year as agreed to by both the parties and the contract of this engagement ipso facto shall be terminated on completion of the date specified for which no formal notice or order is required to be issued by the first party. The contract will stand rescinded on expiry of the period. xx xx xx 10. That breach of any of the terms or, condition of this agreement by the Second Party shall be treated as misconduct. 11. That the Second Party has agreed to serve in the manner as required and perform the duties as assigned by the First Party and he/she has agreed to be disengaged without any notice on the ground of misconduct even during the operation of this agreement.' Such agreement was extended by executing subsequent agreement on 02.03.2012 and was valid up to 01.03.2013 vide Annexure-4 with same terms and conditions mentioned under Clauses-1 to 12. As such, the petitioner is bound by the agreement executed between the Sarapanch and himself. 7. The parliament, in order to provide for the enhancement to livelihood security of the households in rural areas of the country by providing at least one hundred days of guaranteed wage employment in every financial year to every household whose adult members volunteer to do unskilled manual work and for matters connected therewith or incidental thereto, has enacted an Act called the 'National Rural Employment Guarantee Act, 2005' (in short the 'Act, 2005'). For the purpose of an effective adjudication of the case, Sections-19, 25, and 27, being relevant, are quoted below: '19. The State Government shall, by rules, determine appropriate grievance redressal mechanisms at the Block level and the district level for dealing with any complaint by any person in respect of implementation of the Scheme and lay down the procedure for disposal of such complaints. xx xx xx 25. The State Government shall, by rules, determine appropriate grievance redressal mechanisms at the Block level and the district level for dealing with any complaint by any person in respect of implementation of the Scheme and lay down the procedure for disposal of such complaints. xx xx xx 25. Penalty for non-compliance.-Whoever contravenes the provisions of this Act shall on conviction be liable to a fine which may extend to one thousand rupees. Xx xx xx 27. Power of Central Government to give directions.-(1) The Central Government may give such directions as it may consider necessary to the State Government for the effective implementation of the provisions of this Act. (2) Without prejudice to the provisions of subsection (1), the Central Government may, on receipt of any complaint regarding the issue or improper utilisation of funds granted under this Act in respect of any Scheme if prima facie satisfied that there is a case, cause an investigation into the complaint made by any agency designated by it and if necessary, order stoppage of release of funds to the Scheme and institute appropriate remedial measures for its proper implementation within a reasonable period of time.' On perusal of the above mentioned provisions, it is made clear that the State shall by rules have to determine the appropriate grievance redressal mechanisms at the Block level and the district level for dealing with any complaint by any person in respect of implementation of the Scheme and lay down the procedure for disposal of such complaint. For effective implementation of the provisions of Act, 2005, the Central Government has got power to issue direction as it may consider necessary to the State Governments for implementation of such Act. It also states, if any prima facie satisfaction is made, then it may cause an investigation into the complaint made by any agency designated by it and if necessary, order stoppage of release of funds to the Scheme. Consequentially, appointment of Ombudsman was made in consonance with the provisions contained under Section 27 of the Act. Accordingly, notification dated 19.06.2010 was issued by the State Government to all the Collector-cum-DPCs and notification of the Government of India dated 14.06.2011 explicitly provide the power and function of Ombudsman vide Annexure-17 series. Consequentially, appointment of Ombudsman was made in consonance with the provisions contained under Section 27 of the Act. Accordingly, notification dated 19.06.2010 was issued by the State Government to all the Collector-cum-DPCs and notification of the Government of India dated 14.06.2011 explicitly provide the power and function of Ombudsman vide Annexure-17 series. The power of Ombudsman is provided by the Government of Odisha in its letter dated 19.06.2010 by the Panchayati Raj Department, which reads as follows: 'Power of Ombudsman. The Ombudsman shall have the power to : 1. Receive complaints from MGNREGA workers and others. 2. Consider such complaints and facilitate their disposal in accordance with law. 3. Require the NREGA Authority complained against to provide any information or furnish certified copies of any document relating to the subject matter of the complaint which is or is alleged to be in his possession. 4. Issue direction for conducting spot investigation. 5. Lodge FIRs against the erring parties. 6. Initiate proceedings suo motu in the event of any circumstance arising within his jurisdiction that may cause any grievance. 7. Engage experts for facilitating the disposal of the complaint. 8. Direct redressal, disciplinary and punitive actions. 9. Report his findings to the Chief Secretary of the State and the Secretary, Panchayati Raj Department for appropriate legal action erring persons. Ombudsman is not a Judicial body. Ombudsman should report the State Government to take disciplinary action against an officer found guilty following the laid down procedure for such disciplinary and punitive action. The findings of Ombudsman will be investigated and action will be taken by the State Government if deemed necessary. But the Ombudsman can not directly hand out punishments.' In view of such letter, the Ombudsman can direct for redressal, disciplinary and punitive actions and report his findings to the Chief Secretary of the State and the Secretary, Panchayati Raj Department for appropriate legal action against erring persons. As such, it has also been clarified that the Ombudsman should report the State Government to take disciplinary action against an officer found guilty following the laid down procedure for such disciplinary and punitive action. The findings of Ombudsman will be investigated and action will be taken by the State Government, if deemed necessary, but the Ombudsman cannot directly handout punishments. The findings of Ombudsman will be investigated and action will be taken by the State Government, if deemed necessary, but the Ombudsman cannot directly handout punishments. In view of such power vested with the Ombudsman, an enquiry was conducted to the allegations made, so far as the irregularities committed by the persons indulged in such activities. The Ombudsman submitted his report on 17.12.2012 with following conclusions. ' Conclusion: From the statements submitted by different Officials, it was confirmed that a. The existing pond was excavated during the financial year 2006-07/2007-08 by Watershed department and reported by PD Watershed. b. Participants in the Social Audit held on 18.04.2012 raised the issue and recorded in the proceedings vide Sl. No. 5. As JE and AE taken initiative for measurement and check measurement without anybody's knowledge, which at later stages automatically ended with preparation of muster roll and releasing of payment to the tune of Rs.35,625/- and further as confirmed, both of them have knowingly done the unknown mistake in good faith with negligence. However, by virtue of their experience and exposure in the same field they are supposed to identify the status of work as regards to current and old. Moreover without plan and layout why and how Sri Sahu GPTA was tempted to measure the said Pokhari of Bankili GP working in Theruvali GP, which was further endorsed by Sri B.V. Raman AE through check measurement with the same intensity of mistake.' On perusal of the above conclusion it is made clear that illegality started from the very beginning, i.e., from the stage of measurement and check measurement done by opposite parties no. 4 and 5 respectively, and he suggested to take action against those erring officials. Nothing has been placed on record to show that there is involvement of the present petitioner in such irregularities. As it reveals from the documents filed by the opposite parties no. 1 to 3, disciplinary proceeding was already initiated by the BDO, Kolnara on 11.05.2012 under Annexure-C/3 and by the Collector, Rayagada on 15.02.2012 under Annexure-M/3. FIR was also lodged by the BDO, Kolnara regarding irregularities committed by Ex-Sarapanch, Bankili Panchayat, Executive Officer, Bankili, Gram Rozgar Sevak, Bankili, GPTA, Kolnara Block and Asst. Engineer, Kolnara Block. 8. 1 to 3, disciplinary proceeding was already initiated by the BDO, Kolnara on 11.05.2012 under Annexure-C/3 and by the Collector, Rayagada on 15.02.2012 under Annexure-M/3. FIR was also lodged by the BDO, Kolnara regarding irregularities committed by Ex-Sarapanch, Bankili Panchayat, Executive Officer, Bankili, Gram Rozgar Sevak, Bankili, GPTA, Kolnara Block and Asst. Engineer, Kolnara Block. 8. Section 25 of the Act, 2005 envisages that if anybody contravenes the provisions of Act shall be liable to pay fine which may extend to Rs.1,000/-, Thereby, there is a penal provision available under the Act for contravention of the provisions of Act itself. During course of hearing, this Court passed orders on 01.07.2019, 24.07.2019 and 17.01.2020 to the following effect: '15. 01.07.2019 Heard Mr. B.P. Das, learned counsel for the petitioner and Mr. S. Mishra, learned Addl. Government Advocate. Mr. B.P. Das, learned counsel for the petitioner undertakes to file appropriate application for deletion of opposite party no.2 as party to this case. Mr. B.P. Das, learned counsel for the petitioner contended that as per the National Rural Employment Guarantee Act, 2005, power has been vested with the Central Government to issue direction to the State Government for effective implementation of the Act and in reference to Section 27(1) of the said Act, the Panchayatiraj Department of Orissa has to appoint Ombudsman in each district, who shall report the State Government to take disciplinary action against the officers found guilty following the laid down procedure for such disciplinary and punitive action. The findings of the Ombudsman will be investigated and action will be taken by the State Government, but the Ombudsman cannot directly hand out punishments. It is contended that the petitioner approached the Ombudsman and the Ombudsman has given a report in Annexure-15 dated 17.12.2012 and before the Ombudsman submitted its report, the petitioner has already been disengaged from service on 31.07.2012. It is contended that the disengagement of the petitioner has to be followed by the report given by the Ombudsman, but here the Ombudsman has given the report subsequent to the disengagement order passed by the authority concerned. It is also contended that under Section 25 of the Act, only penalty of Rs.1000/- can be imposed on the petitioner not the order of disengagement. It is also contended that under Section 25 of the Act, only penalty of Rs.1000/- can be imposed on the petitioner not the order of disengagement. To substantiate such contention, reliance has been placed on the judgment of this Court in the case of Haramohan Samantray v. Commissioner-cum-Secretary to Government, Panchayati Raj Department, Odisha, Bhubaneswar, 2014 (II) OLR 75 . Mr. S. Mishra, learned Addl. Government Advocate seeks time to examine the matter. List after two weeks.' '16. 24.07.2019 Heard Mr. B.P. Das, learned counsel for the petitioner and Mr. D.K. Pani, learned Addl. Standing Counsel for the State. Mr. D.K. Pani, learned Addl. Standing Counsel for the State will apprise the Court under what provision of law, the Collector has got jurisdiction to initiate proceeding against the petitioner, though it is contended that in view of the Clause-10 of the agreement if there is breach of any of the terms or, condition of the agreement by the second party shall be treated as misconduct, save and except nothing has been mentioned with regard to jurisdiction of the Collector to initiate proceeding. On the next occasion he will produce the relevant provision of law indicating that the Collector has jurisdiction to initiate such proceeding. Call this matter after two weeks.' '21. 17.01.2020 Heard Mr. B.P. Das, learned counsel for the petitioner and Mr. A.K. Mishra, learned Additional Government Advocate. In compliance of the order dated 01.07.2019, the State Government filed an affidavit on 06.12.2019 wherein it is contended that in view of letter dated 25.08.2006 under Annexure-O/3 issued by Panchayati Raj Department the selection of Gram Rozgar Sevaks will be done strictly on the basis of marks obtained in the 10+2 examination and shall be made at the district level by a Committee headed by the Collector-cum-CEO, Zilla Parishad, other members of the Committee being nominated by Collector-cum-CEO. Thereby, the Collector-cum-CEO, Zilla Parishad is also competent to take disciplinary action including removal for unsatisfactory performance, indiscipline or otherwise after getting feedback from the concerned Gram Panchayat through Programme Officer. Mr. Thereby, the Collector-cum-CEO, Zilla Parishad is also competent to take disciplinary action including removal for unsatisfactory performance, indiscipline or otherwise after getting feedback from the concerned Gram Panchayat through Programme Officer. Mr. B.P. Das, learned counsel for the petitioner refuted such contentions raised in the affidavit and stated that in the reply to affidavit dated 06.12.2019 filed by the State Government wherein it is stated that as per notification dated 19.06.2010 issued by the State Government, Ombudsman is the competent authority for taking disciplinary action and report his findings to the Chief Secretary of the State and the Secretary, Panchayati Raj Department for appropriate legal action against erring persons. the findings of Ombudsman will be investigated and action will be taken by the State Government if deemed necessary. But the Ombudsman cannot directly hand out punishments. It is stated that since the Ombudsman is causing inquiry at that stage, the Collector-cum-CEO, Zillaparishad has taken punitive action disengaging the petitioner from the post of Gram Rozgar Sevak and as such, the said order is without jurisdiction. Mr. A.K. Mishra, learned Additional Government Advocate seeks time to obtain instructions whether the Collector-cum-CEO, Zilla Parishad is competent enough to pass any order without receiving information from Ombudsman, when Ombudsman is enquiring into the matter. Put up this matter after two weeks.' In compliance of order dated 01.07.2019, affidavit was filed by opposite parties no. 1 and 3 on 06.12.2019, paragraph-4 whereof reads as under: '4. That in pursuance to Clause-A (ii) of letter No. 17146 /PR, dtd.25.8.2006, the selection of Grama Rozgar Sevak (GRS) was being done in the year, 2006 strictly on the basis of marks obtained in 10+2 examination and shall be made at the district level by a Committee headed by the Collector-cum-Zilla Parishad, other members of the Committee being nominated by Collector-cum-CEO. Likewise Collector-cum-CEO, Zilla parishad is also competent to take Disciplinary Action including removal for unsatisfactory performance, indiscipline or otherwise after getting feed back from concerned Gram Panchayat through Programme Officer. Copy of Letter No. 17146/PR dtd. 25.08.2006 issued by the Panchayati Raj Department is annexed herewith as ANNEXURE-O/3. ' In reply to the order dated 17.01.2020, nothing has been placed on record by the State Counsel to show, whether the Collector-cum-CEO, Zilla Parishad is competent enough to pass any order without receiving information from Ombudsman, when Ombudsman is enquiring into the matter. 9. 25.08.2006 issued by the Panchayati Raj Department is annexed herewith as ANNEXURE-O/3. ' In reply to the order dated 17.01.2020, nothing has been placed on record by the State Counsel to show, whether the Collector-cum-CEO, Zilla Parishad is competent enough to pass any order without receiving information from Ombudsman, when Ombudsman is enquiring into the matter. 9. Admittedly, in the present case, when the Ombudsman was seisin over the enquiry proceeding, the order terminating the petitioner was passed vide Annexure-12 dated 31.07.2012. As it reveals from the documents available on record, the Ombudsman submitted his report on 17.12.2012 vide Annexure-15, whereas the impugned order was passed on 31.07.2012, which is much prior to the enquiry report submitted by the Ombudsman. From the conclusion part of such enquiry report, it is revealed that opposite parties no. 4 and 5 had admitted that the irregularities were committed by them. In the counter affidavit filed by opposite parties no. 1 to 3, it is stated that the BDO, Kolnara confirmed the involvement of the petitioner regarding initiation of false muster roll in execution of 'Mo Pokhari' of Amana Senapati, without intimating the opposite parties no. 4 and 5 for giving layout of the work, but when this fact has no justification, relying upon the report of the BDO, the Collector placed the petitioner under suspension for misconduct. 10. The entire gamut indicates that the authorities have tried to crucify the petitioner, who is the lowest rank employee in the Scheme and, as such, he has to act in accordance with the directions given by the authority concerned. Nothing has been placed on record to show his involvement in preparing the muster roll, as alleged. Rather, the Ombudsman, who caused an independent enquiry, has reported involvement of opposite parties no. 4 and 5 and suggested for proceeding against them. 11. In Haramohan Samantaray (supra), this Court has already held that if any irregularity is found out by the competent authority, the person under whom the work was done should be responsible. In that case, without application of mind, the proceeding was initiated against the petitioner, who was no way connected with the project work and ultimately he was disengaged from the service. In that case, without application of mind, the proceeding was initiated against the petitioner, who was no way connected with the project work and ultimately he was disengaged from the service. Thereby, this Court held that the action so taken is absolutely based on no materials and, as such, the same is illegal, arbitrary and unreasonable, and accordingly directed for reinstatement of the petitioner in service. 12. In the case at hand, admittedly, the petitioner was engaged on contractual basis as a tenure employee. On perusal of the impugned order of termination, it would be seen that the same has been passed in terms of agreement clauses-1, 10 and 11, which is of penal in nature. 13. In A.P. State Federation of Coop. Spinning Mills Ltd. v. P.V. Swaminathan, (2001) 10 SCC 83 , the apex Court held that although the termination simpliciter of a tenure employee is permissible, the courts will review and set aside such termination where it is penal. And for this purpose even though the order itself is innocuously couched, the Court will consider the attendant circumstances, as well as the affidavit filed, to come to the conclusion that the termination was penal. 14. It cannot be lost sight of that on the allegation of misconduct on the part of the petitioner, drastic action of termination from service has been taken by the impugned order under Annexure-12 dated 31.07.2012. 15. In Union of India v. J. Ahmad, (1979) 2 SCC 286 , the apex Court held, 'misconduct' means, misconduct arising from ill motive; acts of negligence, error of judgment, or innocent mistake, do not constitute such misconduct. This meaning has been taken from STROUD'S Judicial Dictionary. Similar view has also been taken by the apex Court in Punjab State Civil Supplied Corpn. Ltd. v. Sikander Singh, (2006) 3 SCC 736 . 16. In Baldev Singh Gandhi v. State of Punjab, (2002) 3 SCC 667 : AIR 2002 SC 1124 , the apex Court held that the expression 'misconduct' means, wrong or improper misconduct, unlawful behaviour, misfeasance, wrong conduct, misdemeanour etc. 17. If the above meaning of 'misconduct' is applied to the present context, nothing has been placed on record to indicate the manner and the way in which the petitioner has misconducted himself, save and except alleging that muster roll was prepared at the behest of the opposite parties no. 4 and 5 by the petitioner. 17. If the above meaning of 'misconduct' is applied to the present context, nothing has been placed on record to indicate the manner and the way in which the petitioner has misconducted himself, save and except alleging that muster roll was prepared at the behest of the opposite parties no. 4 and 5 by the petitioner. But the Ombudsman in his enquiry report has specifically mentioned to take action against the opposite parties no. 4 and 5 and nothing has been stated about the petitioner. Thereby, this Court comes to a definite conclusion that in order to cause harassment, the petitioner, who was engaged on contractual basis for his livelihood, has been deprived of the same by issuing the impugned order of termination dated 31.07.2012 under Annexure-12, which is liable to be quashed and is hereby quashed. The Collector, Rayagada-opposite party no.1 is directed to forthwith reinstate the petitioner in service as before. 18. The writ petition is accordingly allowed. No order as to costs.