Orissa High Court
Samir Kumar Swain vs State Of Odisha & Ors. …. Opposite … on 4 August, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 45 of 2022
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
..................
Samir Kumar Swain .... Petitioner
-versus-
State of Odisha & Ors. .... Opposite Parties
For Petitioners : Mr. L. Pangari, Sr. Advocate
along with
Mr. S.K. Ojha, Advocate
For Opp. Parties : Mr. B. Nayak,
Addl. Govt. Advocate
Mr. B.K. Dash, Advocate
(Opp. Party Nos. 2 to 4)
PRESENT:
THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY
---------------------------------------------------------------------------------------
Date of Hearing: 04.08.2025 & Date of Judgment: 04.08.2025
---------------------------------------------------------------------------------------
Biraja Prasanna Satapathy, J.
1. This matter is taken up through hybrid mode.
2. Heard Mr. L. Pangari, learned Sr. Counsel appearing for the
Petitioner along with Mr. S.K. Ojha, learned counsel, Mr. B. Nayak,
// 2 //
learned Addl. Govt. Advocate appearing for the State-Opp. Party and
Mr. B.K. Dash, learned counsel appearing for Opp. Party Nos. 2 to 4.
3. Though the present writ petition was originally filed challenging
order dtd.31.12.2021 so passed by the Govt.-Opp. Party No. 1 under
Annexure-2, but it is fairly contended in the Bar that after passing of
the said order and taking into account the interim order passed by this
Court on 04.01.2022, Petitioner was not only allowed to continue but
also was allowed to resign from his services and in the meantime, he
has joined in some other organization.
4. It is however contended that since while passing the impugned
order, Govt.-Opp. Party No. 1 observed that continuance of the
Petitioner is detrimental to the interest of the organization, which is a
stigma attached to the order, the same could not have been used by
Govt.-Opp. Party No. 1 against the Petitioner.
5. Learned Sr. Counsel appearing for the Petitioner contended that the
very word ‘Detrimental to the interest of the Organization’ is a stigma
attached with the order and in absence of any material such an
observation could not have been made. In support of the same he
relied on the decision in the case of Jagdish Mitter Vs. Union of
Page 2 of 10
// 3 //
India (AIR 1964 SC 449). Hon’ble Apex Court in Para 22 of the said
Judgment has held as follows:-
“22. However, the appellant’s contention that the order of
discharge passed against him on the face of it shows that it is
not discharge but dismissal, cannot be rejected. We have
already observed that Article 311 applies to temporary
servants or probationers, so that if it is shown that instead of
terminating their services by one month’s notice under the
terms of the contract or the relevant rules, the authority
proceeds to dismiss them, it is incumbent on the authority to
afford to the said temporary servants or probationers the
protection guaranteed by Article 311(2). The appellant’s
contention is that in the present case, the order itself shows
that it is not a discharge but a dismissal, and that naturally
involves the question as to the construction of the order. The
order reads, thus:
“Shri Jagdish Mitter, a temporary 2nd Division Clerk of
this office having been found undesirable to be retained in
government service is hereby served with a month’s notice of
discharge with effect from November 1, 1949.”
22. No doubt the order purports to be one of discharge and
as such, can be referred to the power of the authority to
terminate the temporary appointment with one month’s notice.
But it seems to us that when the order refers to the fact that the
appellant was found undesirable to be retained in government
service, it expressly casts a stigma on the appellant and in that
sense, must be held to be an order of dismissal and not a mere
order of discharge. The learned Additional Solicitor-General
attempted to argue that what the order really meant was that
Government did not think it desirable or necessary to continue
the appellant in its employment. He fairly conceded that the
words used in the order were somewhat unfortunate, but he
urged that the order should be liberally construed and should
be held to have been passed by the authority by virtue of its
Page 3 of 10
// 4 //
power to terminate the services of the appellant on one month’s
notice. We are not prepared to accept this argument. It is
obvious that to say that it is undesirable to continue a
temporary servant is very much different from saying that it is
unnecessary to continue him. In the first case, a stigma
attaches to the servant, while in the second case, termination
of service is due to the consideration that a temporary servant
need not be continued, and in that sense, no stigma attaches to
him. It seems that anyone who reads the order in a reasonable
way, would naturally conclude that the appellant was found to
be undesirable, and that must necessarily import an element of
punishment which is the basis of the order and is its integral
part. When an authority wants to terminate the services of a
temporary servant, it can pass a simple order of discharge
without casting any aspersion against the temporary servant or
attaching any stigma to his character. As soon as it is shown
that the order purports to cast an aspersion on the temporary
servant, it would be idle to suggest that the order is a simple
order of discharge. The test in such cases must be : does the
order cast aspersion or attach stigma to the officer when it
purports to discharge him? If the answer to this question is in
the affirmative, then notwithstanding the form of the order, the
termination of service must be held, in substance, to amount to
dismissal. That being so, we are satisfied that the High Court
was in error in coming to the conclusion that the appellant had
not been dismissed, but had been merely discharged. It is
conceded that if the impugned order is construed as one of
dismissal, the appellant has been denied the protection
guaranteed to temporary servants under Section 240(3) of the
Government of India Act, 1935, or Article 311(2) of the
Constitution, and so, the order cannot be sustained.”
5.1. It is also contended that the dictionary meaning of the word
detrimental reads as follows:-
Page 4 of 10
// 5 //
“damaging, deleterious, harmful, injurious, prejudicial”
5.2. It is accordingly contended that since without having any
material, while passing the impugned order dtd.31.12.2021 under
Annexure-2, an observation was made that further continuance of the
Petitioner is detrimental to the interest of the Organization i.e.
OPTCL, the said observation being in the nature of a stigma requires
interference of this Court.
5.3. It is also contended that in terms of the order passed by this Court
though an affidavit has been filed by the State enclosing therein the
relevant file with regard to appointment of the Petitioner as Director,
Finance in OPTCL on 21.02.2023 and his termination vide the
impugned order dt.31.12.2021 under Annexure-2, but in the said file
no material is available against the Petitioner, to take a view that
further continuance of the Petitioner is detrimental to the interest of
OPTCL.
6. Mr. B. Nayak, learned Addl. Govt. Advocate on the other hand
contended that since after appointment of the Petitioner as Director,
Finance in OPTCL vide order dtd.28.05.2020 under Annexure-1, it
was found that Petitioner’s further continuance is not in the better
Page 5 of 10
// 6 //interest of the OPTCL, the impugned order dtd.31.12.2021 under
Annexure-2 was issued. Even though the impugned order was stayed
by this Court vide order dtd.04.01.2022, but in the meantime while
continuing in terms of order under Annexure-1, Petitioner was
allowed to resign from his post.
6.1. It is also contended that pursuant to the order dtd.16.02.2023, an
affidavit has already been filed by Opp. Party No. 1 enclosing therein
the relevant file relating to appointment and termination of the
Petitioner. Since while dealing with the issue, it was found that further
continuance of the Petitioner is not in the interest of OPTCL, the
impugned order under Annexure-2 was passed with the observation
that Petitioner’s further continuance is detrimental to the interest of
the Organization. It is accordingly contended that such an observation
has been rightly made and it requires no interference.
7. Similar contention was also raised by Mr. B.K. Dash, learned
counsel appearing for the OPTCL. In addition to that and with regard
to the observation made in the impugned order that further
continuance of the Petitioner is detrimental to the interest of OPTCL,
learned counsel appearing for the OPTCL relied on a decision of the
Hon’ble Apex Court in the case of Punjab State Power Corporation
Page 6 of 10
// 7 //
Ltd. & Ors. Vs. Hari Kishan Verma reported in (2015) 13 SCC 156.
Hon’ble Apex Court in Para 19 to 21 of the said Judgment has held as
follows:-
“19. In the present case, on an anxious and careful scrutiny of
the words used in the order, there can be no quarrel over the
fact that previous misconduct and the punishment visited to the
respondent have been stated. The decision-making process of
the Committee has been reflected in the order. It includes the
disciplinary proceedings, personal records and the reputation.
The reputation here has insegregable nexus, as is seen, with his
ACRs and poor performance. The use of words like
“inefficiency” and “not fit” cannot be put on a pedestal to
confer on them such status so that they convey the meaning of
“stigmatic”. It cannot be remotely so.
20. On the contrary, the order in R.K. Panjetha [(2002) 10
SCC 590] was ex facie stigmatic. It is worth noting that the
learned Single Judge has drawn a parity solely on the ground
that the relationship between an employer and in employee is
common and the employer, PSEB has passed the order on two
different occasions in respect of two different employees. Their
status is absolutely irrelevant for the purpose of determination
of the controversy in question. It is the nature of the order which
will judge its character, namely, simpliciter or stigmatic.
21. The learned counsel for the respondent has canvassed
with immense enthusiasm that one of the punishment has been
set aside. Be that as it may, in such a case it will not make any
difference. It cannot be said there is non-application of mind.
The entire record has been scrutinised, valid punishments have
been taken into consideration and the ACRs have been criticallyPage 7 of 10
// 8 //scrutinised. The order, according to us, dwells totally in a
different realm than the order passed in R.K. Panjetha
case [(2002) 10 SCC 590]. The distinction is obvious and the
same has been obviously missed by the High Court, which
makes its order fallacious.”
7.1. Placing reliance on the aforesaid submission, it is contended that
taking into account the performance and conduct of the Petitioner after
his appointment as Director (Finance) and while reviewing the same,
since it was found that, Petitioner is not efficient to discharge his duty,
the order under Annexure-2 was issued by the Govt.. It is contended
that Petitioner could not discharge his duty efficiently and because of
such inefficiency on his part, while issuing the order under Annexure-
2, it was observed that Petitioner’s further continuance is detrimental
to the interest of the Organization. It is accordingly contended that
such an observation has been rightly made.
8. Having heard learned counsel appearing for the Parties and
considering the submissions made, it is found that Petitioner vide
office order dtd.28.05.2020 under Annexure-1 so issued by Opp. Party
No. 1, was appointed as Director (Finance) to the Board of Directors
in OPTCL for a period of 5 years or till he attains the age of
superannuation i.e. 60 years, whichever is earlier.
Page 8 of 10
// 9 //
8.1. After such order of appointment issued under Annexure-1, it is
found that, vide the impugned order dtd.21.12.2021 under Annexure-
2, Petitioner was terminated with immediate effect and such an order
of termination was issued on the ground that further continuance of
the Petitioner is detrimental to the interest of the Organization. On the
face of such order passed under Annexure-2 and while continuing
under OPTCL by virtue of the interim order, Petitioner was allowed to
resign from his service. Therefore, it is the view of this Court that
challenge made to the order of termination has become academic.
8.2. However, with regard to the challenge made to the observation in
the impugned order that further continuance of the Petitioner is
detrimental to the interest of the Organization, this Court finds no
materials being placed either by the State or by OPTCL, inter alia
permitting to take the view that further continuance of the Petitioner is
detrimental to the interest of the Organization.
8.3. Since there is no material placed before this Court either by the
State or by the Corporation showing that Petitioner’s further
continuance is detrimental to the interest of the Organization, this
Court in absence of any such material, is of the view that such an
observation could not have been made by Opp. Party No. 1 while
Page 9 of 10
// 10 //
issuing the order dtd.31.12.2021. Placing reliance on the decision in
the case of Jagdish Mitter as cited (supra) and the dictionary meaning
of the word detrimental, this Court is also of the view that such an
observation is in the nature of a stigma on the career of the Petitioner.
8.4. Therefore, this Court is inclined to quash the observation that
further continuance of the Petitioner is detrimental to the interest of
the Organization so taken in the impugned order dt.31.12.2021 under
Annexure-2. While quashing the observation, the writ petition stands
disposed of.
(BIRAJA PRASANNA SATAPATHY)
Judge
Orissa High Court, Cuttack
Dated the 4th August, 2025/Sneha
Signature Not Verified
Digitally Signed
Signed by: SNEHANJALI PARIDA
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 13-Aug-2025 10:50:21
Page 10 of 10
[ad_1]
Source link