PURUSHOTTAM BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner, who was working as Branch Manager in Bhawanipatna Branch of Tribal Development Co-operative Corporation, Orissa Ltd., (hereinafter to be referred to as "TDCC") in the district of Kalahandi, has filed this petition challenging the order of his suspension dated 04.03.2008, vide Annexure-1 issued by the authority pending drawal of departmental proceeding, the order dated 17/19.07.2008 passed by the disciplinary authority imposing a major penalty of termination of service w.e.f. 23.06.2008, under Rule 36 of the TDCC Employees' Service Rules, 1990, vide Annexure-4 and the order passed by the appellate authority dated 27.02.2009 rejecting the appeal stating that since the termination of the petitioner has been made as per the provision contained under Rule 36(3) of TDCC Employees Service Rules, 1990, there is no provision for appeal and the President, TDCC is not the appellate authority.

(2.) The factual matrix of the case in hand is that the petitioner entered into service as a Shop Supervisor having been duly selected by a Selection Committee pursuant to interview held on 09.08.1989 and was posted at Umerkote in Koraput District now under Nawarangpur District on reorganization of the districts. While the petitioner was continuing, he was transferred and posted at Bhawanipatna in the district of Kalahandi as Branch Manager on 24.08.2007. During his incumbency as Branch Manager, the petitioner was placed under suspension on 04.03.2008 pending drawal of departmental proceeding against him, vide Annexured-1. He was served with a charge-sheet on 26.06.2008, vide Annexure-2 on the allegation that during his incumbency in the Bhawanipatna Branch of TDCC as Shop Supervisor ( in-charge of Branch Manager) in the year 2007-2008 he committed serious irregularities for which charges were framed under the provisions of the TDCC Disciplinary Proceeding and Appeal Rules, 1988, hereinafter to be referred to as "1988 Rules" vide Annexure-2. He was allowed 15 days' time to submit his written statement of defence from the date of receipt of the charges under the provision of Rules 1988. On 17.7.2008 vide Annexure-3 the petitioner sought one month's time to submit his written statement of defence. But on 19.07.2008 the order of termination was issued which was effective from 23.06.2008 under Rule 36(3) of the 1990 Rules. Challenging such termination order, the petitioner approached this Court by filing W.P.(C) No. 18926 of 2008. This Court vide order dated 11.8.2008 while disposing of the writ petition granted liberty to the petitioner to prefer an appeal before the appellate authority within a period of two months. Consequently, the petitioner filed appeal under Annexure-6 before the President, TDCC under 1990 Rules. Vide Annexure-7, the petitioner sought for time. Accordingly, the appellate authority on 31.10.2009 allowed him time till 11.11.2008 and directed him to appear at 11 A.M. But due to delay in consideration of the appeal, the petitioner again approached this Court by filing W.P.(C) No. 18926 of 2008 and vide order dated 28.1.2009 this Court disposed of the said writ petition directing the President, TDCC, the appellate authority to take a decision on the appeal within a period of three weeks failing which it would amount to contempt. Consequently, the appellate authority-cum- President, TDCC passed final order on 27.2.2009 vide Annexure-9 stating inter alia, that the termination of the petitioner had been made as per the provisions of Section 36(3) of the 1990 Rules and in the said Rules there being no provision of appeal, the President, TDCC being not the appellate authority, rejected the appeal filed by the petitioner vide Annexure-9.

(3.) Mr.Ashok Pattnaik, learned counsel for the petitioner strenuously urged that the order of suspension, Annexure-1, the consequential order of termination of service, Annexure-4 and the order of rejection of appeal, Annexure-9 cannot be sustained in the eye of law and more so, pursuant to Annexure-2 the proceeding having been initiated under 1988 Rules, the authority could not have proceeded against him under the 1990 Rules. In addition to the same, referring to Annexure-4, it is urged that no retrospective termination could be made. Therefore, the order of termination is vitiated in law. In addition to that, it is stated that the termination being a major penalty, procedure has been prescribed under 1988 Rules but without following the said procedure, an action taken for dismissal and consequential rejection of the appeal cannot be sustained in the eye of law. More so, there has been gross non-compliance with the provisions of law 1988 Rules and thereby the authorities having acted arbitrarily, unreasonably, the order of termination of services and consequential rejection of appeal cannot be sustained in law. Further, it is submitted that no due notice has been given, thereby the order impugned cannot be sustained. Thus, the impugned orders having been passed without complying with the principles of natural justice, the same need be set aside.