The Orissa High Court ruled that a person cannot be removed from his job unless he or she has met all of the statutory 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. As has already stated hereinbefore, a disciplinary proceeding was sought to be initiated against the petitioner but the same was never continued nor reached its logical end.
FACTS
The brief facts of the case are that the petitioner was appointed as a Classical Teacher on 18.11.1976 in Government High School, Dasamantapur, Koraput and after he joined as such on the said date he was transferred to different Government High Schools. While he was working in the Government High School Patraput in the district of Koraput, he took leave from 16.03.2002 for a period of 10 days by submitting necessary application before the Headmaster of that School and subsequently extended such leave by one month. In the meantime the petitioner was transferred from Patraput to Government High School, Hatabarandi in the district of Nabarangpur, which is at a distance of about 200 kms away from his place of posting. Then He applied for advance pay and GPF and submitted leave application to enable him to join in his new post.
But he was not allowed to resume his duties on the ground that he was transferred. While he was on leave as aforesaid, he was again transferred to Government High school, Dolapur, but the said order was not communicated to him. While the matter stood thus, he received a show cause notice dated 12.08.2005, alleging that despite order of the authority he had not joined in his duties by remaining unauthorizedly absent since 23.01.2003 which is a misconduct and secondly he has been charged with misconduct, loss of government property, disobedience of order of authority and dereliction in performing the Government duties. In accordance with Rule 72(1) and (2) [1] of the Odisha Service Code, the petitioner was dismissed from service by the Inspector of Schools, Jeypore Circle. The petitioner preferred to appeal to the Commissioner-cum-Secretary of the Department of School and Mass Education. During the pendency of the appeal, the petitioner filed a complaint with the Odisha Administrative Tribunal, which was disposed of , with the opposite party no. 1 directed to consider and dispose of the petitioner's appeal within three months.
Also a Counter Affidavit has been filed by the District Education Officer, Koraput (opposite party no.3), disputing the averments of the writ petition alleging that he repeatedly disobeyed orders of higher authorities and was subsequently removed from service. A rejoinder has been filed to the counter affidavit explaining the circumstances in which the petitioner could not join in his new place of posting. It is further specifically pleaded that though a disciplinary proceeding was sought to be initiated, but the same was never conducted as per the provisions of OCS (CCA) Rules, 1962 and on the contrary, he was removed from service in terms of Rule 72(2) of the Odisha Service Code.
ISSUE INVOLVED
As no disciplinary proceeding was held as per the OCS (CCA) Rules, 1962 the same amounts to clear violation of the statutory mandate under Rule 72(2) and therefore, the order of removal of the petitioner from service and the rejection of his appeal are not sustainable in the eye of law.
COUNSEL
Mr. K.K.Swain, learned counsel for the petitioner and Mr. R.N. Acharya, learned Standing Counsel appearing for the School and Mass Education Department.
CONTENTIONS OF PETITIONER
Mr. Swain has made a two-fold argument, firstly, that it is not a case of unauthorized absence for 8 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. Secondly, 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 OCS (CCA) Rules, 1962.
Mr. Swain contends that, as a result, an order may be issued instructing the authorities to recognise the full period beginning on his date of joining, i.e., 18.11.1976, as qualifying service for the purposes of pension and other retirement benefits. In his support Mr. Swain has cited a decision of this Court in the case of Karunakar Behera vs. State of Orissa and others, which was reported in 2017(I) ILR-CUT-906.
CONTENTIONS OF RESPONDENTS
Mr. R.N. Acharya 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. He was rightly removed from service in view of the law laid down by the Supreme Court in the cases of Syndicate Bank [2] and Aligarh Muslim University[3].
JUDGMENT
Having heard the rival contentions as above, this Court finds that the basic facts of the case are not seriously disputed inasmuch as the petitioner having availed leave initially for a period of ten days w.e.f. 10 16.03.2002, extended the same for a period of one month but thereafter did not join in his duties. It is also seen that a disciplinary proceeding was initiated against him , in response to which, the petitioner had also submitted his explanation on the proceeding was not taken forward to its logical conclusion by holding an enquiry in the manner prescribed under the Rules.
The Honble Court held that however, 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 OCS (CCA) Rules, 1962. 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 Honble Court placed reliance on the Landmark Case on salutary principle was laid down long back by the Privy Council in the case of Nazir Ahmed v. King Emperor[4] and thereafter followed in numerous decisions of the apex Court and the High Courts of the country. Needless to mention, the said principle still holds good. 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.
In the case of Karunakar Behera (supra) relied upon by Mr. Swain, this Court in a case involving similar facts to the present case, interpreted the provision under Rule -72 of the Odisha Code. 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 denied. [5]
At last , the Honble Court held that
In the result, the writ petition succeeds and is therefore allowed. The impugned orders under Annexures- 8 and 11 are hereby set aside. Further, the petitioners pension and other retiral benefits shall be calculated accordingly and necessary orders be passed to such effect within a period of two months from the date of communication of this order or on production of certified copy thereof by the petitioner, whichever is earlier.
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
[1] Rule no 72. Of Odisha Service Code , 1939 -Removal of Government servant after remaining leave for a continuous period exceeding five years.
(1) No Government servant shall be granted leave of any kind for a continuous period exceeding five years.
(2) Where a Government servant does not resume duty after remaining on leave for a continuous period of five years, or where a government servant after the expiry of his leave remains absent from duty otherwise than on foreign service or on account of suspension, for any period which together with the period of the leave granted to him exceeds five years, he shall unless Government in view of the exceptional circumstances of the case otherwise determine, be removed from service after following the procedure laid down in the Orissa Civil Services (Classifications, Control and Appeal) Rules, 1962.'
[2] Syndicate Bank vs. General Secretary, Syndicate Bank Staff Association and another, AIR 2000 SC 2198
[3] Aligarh Muslim University and another vs. Mansoor Ali Khan, AIR 2000 SC 2783.
[4] AIR 1936 PC 253
[5] Deokinandan Prasad vs. The State of Bihar, AIR 1971 SC 1409
Kishori Dash vs. State of Orissa and others reported in (2008) 105 CLT 309
