Orissa High Court
Niranjan Nayak vs State Of Orissa And Ors. on 29 June, 2007
Equivalent citations: 104(2007)CLT517, 2007(II)OLR197
Author: Sanju Panda
Bench: I.M. Quddusi, Sanju Panda
JUDGMENT Sanju Panda, J.
1. The order dated 21.04.2006 passed by the Orissa State Administrative Tribunal, Bhubaneswar in OA No. 529 of 2006 is challenged in the present writ petition.
2. The brief facts of the case are as under:
The petitioner was appointed as Grama Rakshi by order dated 12.7.1997 and while continuing as such he was discharged from service by opposite party No. 4, Superintendent of Police, Nayagarh on 30th May, 2001 for his involvement and arrest in a criminal case and the said order of discharge was issued during the pendency of a criminal case. The petitioner was acquitted from the charges under Sections 366/109 IPC by the Asst. Sessions Judge-cum-Chief Judicial Magistrate, Nayagarh in Sessions Trial No. 72/280 of 2002 by order dated 02.12.2005. Thereafter he has filed Original Application before the Orissa State Administrative Tribunal to quash the discharge order passed by opposite party No. 4. The Tribunal held that the petitioner was holding a civil post and was allegedly involved in a criminal case. Subsequently he has been acquitted from the criminal case as the prosecution has failed to provide adequate evidence but the needle of suspicion continued to be pointing at him. Therefore^ the Tribunal did not interfere with the order of discharge passed by opposite party No. 4, vide Annexure-3. However, the Tribunal observed that if the petitioner makes a representation to the appropriate authority seeking review of their decision at Annexure-3 in the light of his acquittal in the criminal case, the authority may consider his representation.
3. Petitioner has challenged the aforesaid order of the Tribunal in the present writ petition on the ground that as per Rule 24 of the Grama Rakshi Rules, before imposition of major punishment the authority should have called for an explanation from the concerned Grama Rakshi and intimated the said fact to the concerned SDPO and the concerned SDPO after conducting such inquiry as he deems necessary, pass the order of dismissal is appropriate punishment then he will record the grounds thereof and call for an explanation to show cause within a specific period against the proposed punishment and after considering the explanation of the Grama Rakshi concerned, the order of punishment should have; been passed. As the Rule lays down the procedure for imposing a major punishment after completion of due inquiry by the concerned authority and same should be communicated to the delinquent to give an explanation and after considering such reply the authority may pass order of dismissal. I in the present case the authority has neither followed the procedure prescribed in the Orissa Grama Rakshi Rules, 1969 nor followed the principle of natural justice before imposing punishment of discharge.
4. The following question arises to determine in the present writ petition is;
Whether a Grama Rakshi will have to be treated as holder of civil post and what disciplinary rules would be applicable to the Grama Rakshi?
5. The expression "Civil Post" prima facie means an appointment or office in the civil side of the administration as distinguished from a post under the defence force. The only persons who are excluded from the purview of Article 311(1) are;
(i) members of defence service;
(ii) persons holding a post connected with defence but not police officers.
All persons who hold any post under the administrative control of the Union or State hold a civil post for discharge of public duties. The expression is wide enough to include all such employees whether permanent or temporary, or on probation or on officiating basis.
6. The Orissa Grama Rakshi Act, 1967 and Orissa Grama Rakshi Rules, 1969 govern the conditions of service of Grama Rakshi. Sections 4 and 5 in particular of the aforesaid Act provides regarding the provision of administration and control of Grama Rakshi and appointment of Grama Rakshis respectively. The power of administration and control of the Grama Rakshi within a district is vested with the District Magistrate subject to the control and direction of the Revenue Divisional Commissioner. The Magistrate of the District may appoint, within his jurisdiction, persons as Grama Rakshi having prescribed qualification or delegate his power to the Superintendent of Police of the District with approval of the Revenue Divisional Commissioner.
From the above it reveals that Gcama Rakshi posts is under the administrative control of the District Magistrate and the Grama Rakshi post is a civil post.
7. As per the Orissa Grama Rakshi Rules, 1969 more particularly Rule 15(1)(d) read as follows:
15(1) Grama Rakshi:
(d) shall be liable to be discharged, if he changes his residence from the Beat for which he is appointed, or if at any time during the tenure of his appointment found physically unfit td perform the duties of a Grama Rakshi, or if he is convicted or reasonably suspected to be concerned in any offence.
8. In the present case, the petitioner was discharged from service during the pendency of a criminal case. The discharge order was passed on 30th May, 2001 during the pendency of the criminal case. The authority reasonably suspected to be concerned in the aforesaid offence, has passed the order of discharge against the petitioner. A perusal of the provision under Rule 15(1)(d), clearly shows that it only provides for order of discharge and there is no provision for punishment like removal or dismissal as provided under Rule 24 of the Orissa Grama Rakhi Rules, 1969. The punishment to discharge the employee disqualified from future employment as it will be treated as stigma. There is no doubt that the discharge order passed by the authority casts a stigma on the service career of the petitioner and the order being passed by way of punishment the petitioner is entitled to the protection afforded under the provision of Article 311(2) of the Constitution of India as well as Rule 24 of the Orissa Grama Rakshi Rules.
9. In the instant case, the authority has passed the order of discharge on the sole ground that the criminal proceeding was pending against the petitioner. It was never the intention of the authority to impose punishment and it is settled law that the form of order in which the employment of a servant is determined, is not conclusive of the true nature of the order. The form may be merely camouflage an order of dismissal for misconduct and it is always open to the Court before whom an order is challenged to go behind the form and ascertain the true character of the order. In view of the above impugned order of discharge if allowed to stand it will cause injustice to the petitioner.
10. In the premises aforesaid, we are constrained to hold that the order passed by the authority to discharge the petitioner from service is illegal. Hence, the order dated 21.04.2006 passed by the Orissa State Administrative Tribunal, Bhubaneswar in OA No. 529 of 2006 and the order of discharge under Annexure-3 are hereby quashed. We direct the concerned authority to consider the case of the petitioner to reinstate him in the post of Grama Rakshi.
With the above direction the writ petition is allowed.
I.M. Quddusi, J.
11. I agree.