Contractual Employee Can’t Be Removed From Service Without Following Rules Of Natural Justice, Orissa High Court Reiterates

While providing relief to a junior teacher (contractual), who was removed without being provided an opportunity to defend himself, a Single Judge Bench of Justice Sashikanta Mishra said:

“This Court is not impressed with the argument that being a contractual employee no rules or procedure are required to be followed before disengaging him. It is rather the settled position of law that even in case of a contractual employee the rules of natural justice are required to be followed to the hilt.”

Background

The petitioner was engaged as a Sikshya Sahayak by an order issued by the Chief Executive Officer, Zilla Parisad-cum-Collector, Jagatsinghpur in 2015. In 2018, the District Education Officer, Jagasinghpur issued a show cause notice containing certain allegations asking the petitioner to reply.

He submitted his reply within the stipulated date denying all the allegations. No further communication was made to him till issuance of the impugned notice dated 01.06.2018 by the District Project Co-ordinator, SSA, Jagatsinghpur. Being aggrieved by the notice, the petitioner filed this writ petition.

Contentions of Parties

It was submitted for the petitioner that as he was appointed by the orders of the CEO, Zilla Parisad-cum-Collector, Jagatsinghpur, therefore, he is also the disciplinary authority. Thus, the notices issued by the District Education Officer and District Project Co-ordinator are not tenable as both officials lack jurisdiction to take action, it was argued.

It was further contended that the petitioner was never called upon to attend the so-called enquiry and he had no knowledge whatsoever regarding the same.

However, the counsel for the State defended the issuance of the impugned notice by arguing that the allegations against the petitioner were grave and serious. "He being a contractual employee, the detailed procedure prescribed for taking disciplinary action against a regular government servant is not applicable to him," the counsel said.

Court’s Observations

The Court said as the petitioner was appointed by the CEO, Zilla Parisad-cum-Collector, only he was the competent authority to take disciplinary action.

“Any action proposed to be taken against the incumbent for any misconduct in employment has to be necessarily taken up by the CEO-cum-Collector. To such extent therefore, the District Education Officer cannot be said to have any authority to issue the show cause notice unilaterally to the petitioner,” said the bench.

After perusing the counter affidavit submitted by the opposite party, the court observed that some sort of enquiry was conducted in the matter wherein, the statements of some students including their parents were obtained. 

"Under whose authority and what manner such enquiry was conducted, if at all, is not forthcoming from the records," observed the court.

The court said impugned notice reveals that the findings of the enquiry were relied upon and apparently formed the basis for issuing the impugned notice of disengagement.

Justice Mishra outrightly rejected the argument advanced by the State that no rules or procedure were required to be followed before disengaging the petitioner, i.e. a contractual employee. 

“In the instant case, as already stated, the enquiry was conducted entirely behind the back of the petitioner, inasmuch as he was not given any opportunity to participate and to have his say therein,” the court said.

Accordingly, the writ petition was allowed setting aside the impugned notice.

"It is however, made clear that it shall be open to the disciplinary authority to proceed against the petitioner for his alleged misconduct strictly in accordance with law. It is further made clear that this Court has not expressed any opinion on the merits of the case," Justice Mishra said.

Case Title: Bichitrananda Barik v. State of Odisha & Ors.

Case No.: W.P.(C) No. 10146 of 2018

Counsel for the Petitioner: Mr. J.K. Rath, Sr. Advocate, M/s. Durgesh Narayan Rath, P.K. Rout & A.K. Saa, Advocates

Counsel for the Respondents: Mr. P.K. Panda, Standing Counsel for School & Mass Education Department

Citation: 2023 LiveLaw (Ori) 28