KESHAB CHANDRA SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner in this writ application has prayed for quashing the orders passed by the competent authority under Annexures 3, 4, 5 and 6 reengaging opposite party No. 4, discharging the petitioner from service on the ground that his services are no more required and again appointing him under job contract establishment as well as State Administrative Tribunal in Annexures 9 and 10.

(2.) THE case of the petitioner is that he was initially appointed as Orderly Peon on 6.9.1974 under the administrative control of the Consolidation Officer, Salipur Circle under job contract establishment and his appointment was subsequently approved by the Assistant Consolidation Officer (Headquarters), Salipur on 23.9.1974. In July, 1978 he was transferred from Salipur to Kendrapara Circle and he worked there till 30.10.1985. While working as such he was appointed as an Orderly Peon in the regular establishment in the scale of pay of Rs. 570 790/ on 26.6.1986. The opposite party No. 4 was also working as a Peon in the office of the Deputy Director, Consolidation Range III and while in service he was put under suspension from service on the allegation of misconduct and later on a disciplinary proceeding was initiated against him for misappropriation of Government money to the tune of Rs. 14,985.65 paise. In the said departmental proceeding, opposite party No. 4 was found guilty of the charge and ultimately he was dismissed from Government service. A Certificate Case was also initiated against him for recovery of the loss sustained by the Government. The opposite party No. 4 having been dismissed, preferred an appeal before the opposite party No. 2 in June, 1981 and after a long gap the Director (O.P.No. 2) directed reappointment of opposite party No. 4 on compassionate ground vide order dated 20.1.1990. After receipt of the order of the opposite party No, 2 reappointing opposite party No. 4 on compassionate ground, the Deputy Director, Consolidation, Range III, Kendrapara in his letter dated 25. 9. 1990 intimated that since no Class IV post is lying vacant in Range III, reappointment of opposite party No, 4 cannot be considered. However, after joining of the new Director, the matter was reopened and opposite party No. 2 directed that the opposite party No. 4 is to be reappointed by way of discharging the petitioner from service who was junior most Class IV employee of the establishment. Accordingly, in Annexure 5 the petitioner was discharged from service on the ground that his service was no longer required in order to accommodate the opposite party No. 4. However, again on 1.3.90 the petitioner was offered appointment as an Orderly Peon under the job contract establishment on monthly pay of Rs. 378/ with usual D. A. Since the petitioner had no job in his hand, he had no other option except to accept the appointment under job contract basis, but approached the State Administrative Tribunal, Cuttack Bench in O.A. No. 199 of 1990 (O.A. No. 4130(C) of 1996) challenging the order of discharge. While disposing of the original application the Tribunal held that when opposite party No. 4 has been found guilty of misappropriation of Government funds, there was no scope for directing reappointment of opposite party No. 4 and directed the competent authority to reconsider the appeal filed by opposite party No. 4 and also directed that in the event the appeal fails, the petitioner would be given back his employment with all benefits of service. The Tribunal also directed that if there is any Class IV post lying vacant under the Director, the opposite party No. 4 may be adjusted in such a post as Junior Class IV employee and the appeal need not be reopened again. Pursuant to the aforesaid direction of the Tribunal, the appeal filed by the opposite party No. 4 was reopened and it was held that the earlier order passed by the Director in appeal would stand. The petitioner again challenged the said order in O. A. No. 3839(C) of 1997 before the State Administrative Tribunal. While disposing of the Original Application, the Tribunal directed that the petitioner should be regularly appointed against and existing or the first future Class IV vacancy ear marked for general category to which he belongs under the disposal of the Deputy Director, Kendrapara. After his regular appointment, the past service rendered by him in the regular establishment from 26.6.86 till 1.8.90 should be counted towards pension. Challenging the aforesaid direction, the present writ application has been filed on the ground that since the petitioner was holding the post of Orderly Peon under theregular establishment with a regular scale of pay, he should have been directed to be reinstated in that post.

(3.) ON perusal of the annexures, it appears that the petitioner was initially appointed as a Class IV job contract employee and his appointment was approved. Under Annexure 2, the Deputy Director, Consolidation, Range III, Cuttack approved the appointment of the petitioner and appointed him as an Orderly Peon in the regular establishment with a scale of pay of Rs. 570,790/ with usual U.A., A.D.A. and House Rent. It also appears from Annexure 5 that the petitioner being the junior most Class IV employee was discharged from service as his service was no longer required. This order was passed on 21.2.1990. From the record, it further appears that the opposite party No. 4 who was working as peon in the Consolidation Range at Kendrapara was dismissed from service on charges of misappropriation of Government money pursuant to a disciplinary proceeding, but was directed to be re appointed in Annexure 3.In order to accommodate the said opposite party No. 4, the petitioner was discharged from service being the junior most Class IV employee. The order in Annexure 5 was challenged before the State Administrative Tribunal in O.A. No. 4103(C) of 1996 and the Tribunal though made observations in favour of the petitioner directed the appeal of opposite party No. 4 to be reconsidered by the appellate authority and further directed that in the event the appeal fails, the petitioner would be given back the job with all benefits of service. It was also directed that if there is any Class IV post vacant under the Director of Consolidation the petitioner may be adjusted against the said post and it shall be treated as if there was no stigma of discharge against him. After the aforesaid order was passed by the Tribunal, by order dated 9.9.97 the appellate authority again allowed the appeal of the opposite party No. 4. The said order was challenged before the Tribunal in O.A. No. 3839(C) of 1997 and the Tribunal disposed of the original application directing that the petitioner shall regularly be appointed against any existing or the first future Class IV vacancy ear marked for general category to which he belongs under the disposal of Deputy Director, Kendrapara and after his regular appointment, the past service rendered by him in the regular establishment from 26.6.86 till 1.3.90. shall be counted towards pension. Though such a direction was issued by the Tribunal, the petitioner was not given the regular appointment and was directed to join again as job contract employee. The question that arises for consideration by this Court is whether the Tribunal should have quashed the order dated 9.9.97 passed by the Director of Consolidation which was under challenge before it. There is no dispute that the opposite party No. 4 was proceeded departmentally of charge of misappropriation of Government funds. There is also no dispute that the opposite party No. 4 having been found guilty by the Inquiry Officer of the Charges, was dismissed from service. Challenging the said order of dismissal the said opposite party No. 4 filed departmental appeal. The appellate authority had only three options. Either appeal filed by the opposite party No. 4 should have been allowed or dismissed or a lesser punishment could be imposed. The appellate authority did not quash or set aside the order of punishment, but directed re appointment of opposite party No. 4 on compassionate ground in Kendrapara Consolidation Range subject to certain conditions, there is no scope of passing such an order in appeal. Even if this order is accepted to be correct, the opposite party No. 4 having been re appointed on compassionate ground, he could only be appointed provided a vacancy was available as by the time the order in Annexure 3 was passed the petitioner had already been taken as regular employee under the establishment and therefore,even if he was the junior most Class IV employee, he could not have been discharged in order to accommodate opposite party No. 4. Therefore, the Tribunal should have at the very first instance quashed Annexure 5. But in stead left it to the departmental authority to consider. However, since the said order of the Tribunal was not challenged this Court cannot disturb the order passed by the Tribunal in O.A. No. 4103(C) of 1996. The second original application disposed of in Annexure 10 is under challenge before us. On perusal of the said judgment, it is found that there was clear direction by the Tribunal to appoint the petitioner regularly against any existing or first future vacancy ear marked for general category under the disposal of Deputy Director. Kendrapara. In stead of complying with the said direction the petitioner was asked to join as job contract employee in Sambalpur in our view the petitioner, has rightly refused to join the said post and continued in Kendrapara Range.