Service Law | Govt. Employees Can't Be Removed From Service Without Following Due Statutory Procedures: Orissa High Court
The Orissa High Court has held that a person cannot be removed from his service without complying the relevant statutory pre-requirements. A Single Judge Bench of Justice Sashikanta Mishra held, "Therefore, notwithstanding the fact that the petitioner can be prima-facie held guilty of disobeying the orders of the authority by remaining continuously absent for more than five years, yet...
The Orissa High Court has held that a person cannot be removed from his service without complying the relevant statutory pre-requirements. A Single Judge Bench of Justice Sashikanta Mishra held,
"Therefore, notwithstanding the fact that the petitioner can be prima-facie held guilty of disobeying the orders of the authority by remaining continuously absent for more than five years, yet he cannot simply be removed without taking recourse to the prescribed statutory process."
Factual Background:
The Inspector of Schools, Jeypore Circle vide removed the petitioner from service in terms of Rule 72(1) & (2) of the Odisha Service Code. The petitioner preferred an appeal before the Commissioner-cum-Secretary, School and Mass Education Department. During pendency of the appeal the petitioner approached the Odisha Administrative Tribunal in, which was disposed of directing the opposite party no. 1 to consider and dispose of the appeal of the petitioner within a period of three months.
Despite such directions, the opposite party no. 1 delegated the power tol ("the Rules"), should be conducted before taking any action.
Counter affidavit was filed by the District Education Officer, Koraput (opposite party no.3) denying the averments of the writ petition. It was stated that since the petitioner continuously disobeyed the order of the higher authorities, a disciplinary proceeding was initiated by the Inspector of Schools. It was further stated that despite initiation of the disciplinary proceeding, the petitioner was given another opportunity to join in his duty, but he did not respond and therefore, finding no other way out, he was removed from service. A rejoinder was filed to the counter affidavit explaining the circumstances in which the petitioner could not join in his new place of posting.
Contentions of the Petitioner:
Mr. K.K. Swain, counsel for the petitioner submitted that it is not a case of unauthorized absence for continuous period of five years, since the petitioner was never relieved from his parent High School nor he was allowed to join in his new place of posting. Further, the action of the authority in straightway removing him from service is entirely contrary to Rule 72(1) & (2) of the Odisha Service Code, inasmuch as the same mandates that action can be taken only after following the procedure under Rule 15 of the Rules.
Therefore, he contends that as the mandatory statutory requirement was not fulfilled, the order is rendered a nullity and thus, deserves to be set aside. However, in the meantime, the petitioner attained the age of superannuation. Hence, he argued that an order may be passed directing the authorities to treat the entire period from his date of joining i.e., 18.11.1976 as qualifying service for the purpose of pension and other retirement benefits. In support of his contention, he has placed reliance upon a decision of the High Court in Karunakar Behera v. State of Orissa and Ors..
Contentions of the Respondents:
Mr. R.N. Acharya, counsel for the respondents has contended that it is a clear case of unauthorized absence and disobedience of the orders of the higher authority by the petitioner which amounts to misconduct. Despite being granted repeated opportunities, the petitioner did not avail of the same and chose to remain absent from duties continuously for more than five years. Therefore, according to Mr. Acharya, he was rightly removed from service in view of the law laid down by the apex Court in the cases of Syndicate Bank v. General Secretary, Syndicate Bank Staff Association & Anr. and Aligarh Muslim University and another v. Mansoor Ali Khan.
Observations of the Court:
The Court held that in so far as the Odisha Service Code is concerned there is a clear-cut statutory provision that even in a case of a Government Servant remaining absent from duty exceeding five years, he shall be removed from service but only after following the procedure laid down in the Rules. Law is well established that when the statute requires a thing to be done in a particular manner, the same is to be done in that manner or not at all. The Court cited decision of the Privy Council in Nazir Ahmed v. King Emperor, AIR 1936 PC 253 in support of the above proposition.
The Court then placed reliance on Karunakar Behera (supra), wherein the High Court in a case involving similar facts, interpreted the provision under Rule 72 of the Code as also relied upon the decision of the Apex Court in the case of Deokinandan Prasad v. The State of Bihar and the decision of the High Court in Kishori Dash v. State of Orissa & Ors. to hold that in the absence of any proceeding under the OCS(CCA) Rules, 1962, a primary school teacher even if he remains absent for more than five years, can neither be removed nor his pensionary benefits be denied.
The Court then agreed to the ratio laid down in Karunakar Behera (supra) and held that the action of the authorities in removing the petitioner from service in gross violation of the provision under Rule 72(2) of the Odisha Service Code cannot be sustained in law. Consequently, it was also held that the rejection of the appeal filed by the petitioner also cannot be sustained in law.
Case Title: Akshay Kumar Nayak v. State of Odisha & Ors.
Case No.: WPC (OA) No. 125 of 2019
Judgment Dated: 17 March 2022
Coram: Justice Sashikanta Mishra
Counsel for the Petitioner: Advocates Mr. K.K. Swain, Mr. P.N. Mohanty, Mr. U. Chhotray, and Mr. P.K. Mohapatra
Counsel for the Respondents: Mr. R.N. Acharya, Standing Counsel for S & ME Department
Citation: 2022 LiveLaw (Ori) 28