BABARAO HIMIRIKA Vs. STATE OF ODISHA

JUDGEMENT

(1.) The petitioner has filed this writ petition with the following prayer:-

(2.) The facts of the case, briefly stated, are that the petitioner was initially engaged as Swechasevi Sikshya Sahayak (SSS) on a fixed monthly honorarium of Rs.1500.00 and posted to U.P. School, Matikona in the district of Rayagada as per order dtd. 3/12/2003 issued by the Chief Executive Officer, Zilla Parishad-cum-Collector, Rayagada. While working as such, a decision was taken to disengage persons similarly situated as the petitioner for which they approached this Court in W.P.(C) No.11191 of 2010. By order dtd. 17/5/2012, this Court disposed of the writ petition directing the Secretary in the Department of School and Mass Education Department to consider the representation of the petitioner. In the meantime, by order dtd. 4/5/2011, the petitioner was re-engaged and posted at Matikona, PUPS. While working as such, it was alleged that he had committed criminal act by engaging 17 children (14 girls and 3 boys) of the school for plucking cotton in his own field at Bhakuraguda, 8 kilometers away from their village, for three days till they were rescued by members of the Child Welfare Committee (CWC) on 12/1/2015. The Block Education Officer deputed the Asst. Block Education Officer (A.B.E.O) to enquire into the matter. The A.B.E.O. submitted his report on 13/1/2015 holding the allegations to be true. Such finding was based upon the purported confession of guilt by the petitioner during such enquiry. The matter being placed before the Collector, without following due procedure of law, he issued an order of disengagement of the petitioner on 14/1/2015. The petitioner challenged the said order before this Court in W.P.(C) No.17073 of 2015. By order dtd. 16/10/2015, this Court held that the rule of natural justice had been violated during the inquiry. As such, the matter was remanded to the Collector to take a fresh decision after granting opportunity of hearing to the petitioner. The petitioner was thereafter directed to appear before the Collector on 24/11/2015 and 8/12/2015 and his statement was recorded. Ultimately, by order dtd. 23/2/2016, the Collector held that the disengagement of the petitioner is justified. It is the further case of the petitioner that he had also received notice from the Asst. Labour Commissioner, Rayagada for violation of Sec. 9(2) of the Child Labour (Prohibition and Regulation) Act, 1986 (for short, the Act) pursuant to which he had submitted his reply and the matter was pending. On such facts, the petitioner approached this Court with the prayer as mentioned before. Subsequently, the petitioner filed an Additional Affidavit enclosing copy of order dtd. 2/8/2017 passed by the learned Nyaydhikari, Gram Nyayalaya, Kolnara at Rayagada in 2(c) CC No.3 of 2016, whereby he was discharged from the offence under Sec. 14(3)(a) of the Act, as the Court did not find any prima facie material to proceed against him. It is therefore stated that in view of his discharge in the criminal case on the same charge, the order of disengagement warrants interference.

(3.) Counter Affidavit has been filed by the District Project Coordinator-Opposite Party No.3. After referring to the admitted facts relating to disengagement of the petitioner, the details of the allegation leveled against the petitioner and how the same was proved during inquiry have been stated including the fact that the petitioner confessed of not informing the parents of the students at the time of engaging them. As regards discharge in the criminal case, it is stated that as per the settled position of law, acquittal in a criminal case is not conclusive proof of the suitability of the candidate in the post concerned. Mere acquittal or discharge cannot always lead to the inference that he was falsely involved. In any case, it is always open to the employer to consider the antecedents and examine whether the person is suitable for appointment to the post. Since the petitioner was engaged in a noble profession like teaching that shapes the character, caliber and future of others, no leniency should be shown to him.