The High Court
Case Details
AFR IN THE HIGH COURT OF ORISSA, CUTTACK W.A. No.625 of 2022 From an order dated 05.04.2022 passed in W.P.(OAC) No.2477 of 2014 --------------------- Dr. Ratnarenu Baliarsingh ...... Appellant -Versus- State of Odisha & others …… Respondents For Appellant : Mr. Bisikesan Pradhan For Respondents : Mr. P.K. Mohanty, Addl. Standing Counsel ------------------ P R E S E N T: THE HONOURABLE SHRI JUSTICE JASWANT SINGH A N D THE HONOURABLE SHRI JUSTICE M.S. SAHOO ------------------------------------------------------------------------------ Date of hearing: 22.11.2022 Date of judgment: 03.02.2023 ------------------------------------------------------------------------------ M.S.SAHOO, J. The Intra Court Appeal has been filed challenging the order dated 05.04.2022 of the learned Single Judge passed in W.P. (OAC) No.2477 of 2014 dismissing the petition filed by the appellant, who is at present working as Professor & Head of the Department, Department of Pedodontics & Preventive Dentistry, SCB Medical College & Hospital, Cuttack. // 2 // The facts in brief : 2. The writ petition, W.P.(OAC) No.2477 of 2014 was registered before this Court after the Original Application filed on 14.08.2014 before the learned Odisha Administrative Tribunal, Cuttack Bench, Cuttack was transferred to this Court upon abolition of the learned Tribunal. The facts which remain undisputed are reproduced here in brief : 2.1 The petitioner was appointed as Assistant Dental Surgeon in the District Headquarters Hospital, Phulbani in June 1994 after completion of Master’s Degree in Dental Surgery from the King George Medical College, Lucknow. The petitioner was transferred to SCB Dental College and Hospital, Cuttack on 17.12.1995. She was working there as Associate Professor in the Department of Pedodontics and Preventive Dentistry till she was transferred to V.S.S. Medical College and Hospital, Burla vide Government of Orissa Notification dated 11.11.2011. 2.2 There was an allegation against the present petitioner and a preliminary enquiry was conducted by the Joint Director, Medical Education and Training (DMET)(O) on the alleged complaint by the Principal, SCB Dental College and Hospital, Cuttack. Thereafter, memorandum and article of charges against the petitioner were framed. The article of charges are reproduced herein : Page 2 of 16 // 3 // “Dr. Ratna Renu Baliarsingh, Asso. Prof. Deptt. Pedodontics & Preventing Dentistry, SCB MCH, during the visit of Cuttack found absent Principal, SCB, Dental College & Hospital, Cuttack. Further she remained frequently absent during postgraduate seminars for which she being alleged of misbehaviour and dereliction of official duty. When Dr. Baliarsingh was being asked for explanation regarding her absence during duty hours on three different occasions she confronted Principal in abusive language on 25.08.20`11 in front of Post Graduate students, a Professor & an Asst. Dental Surgeon. Thus the following articles of charges are framed against her for violation of Rule 3 and 4 of the Odisha Govt. Servants Conduct rules, 1959. 1. Unauthorized and willful absence from Govt. duty. 2. Dereliction of Govt. duty 3. Misconduct Sd/- 29.11.11 Under Secretary to Govt.” 2.3 After initiation of the disciplinary proceeding, by issuance of memorandum dated 29.11.2011 enclosing articles of charges and statement of imputations of misconduct and the memo of evidence, the departmental enquiry proceeded. After recording of the statements of the witnesses, filing of the written statement of defence by the appellant facing the allegations specifically denying the allegations, the enquiring officer submitted his report dated 08.07.2013 (Annexure-9) to the Government, the Appointing Authority holding her guilty Page 3 of 16 // 4 // of charge No.3 only i.e. misconduct of “in subordination to higher authority”. The recommendations of the enquiring officer regarding punishment for gross misconduct on the part of the Delinquent Officer being proved, was that she may be censured with a direction not to repeat such type of behaviour in future. 2.4 The Government sought for response of the alleged delinquent officer-appellant to the enquiry report, by letter dated 26.07.2013 (Annexure-10). The appellant filed her representation dated 12.08.2013 (Annexure- 11) against the findings of the enquiring authority. 2.5 The Government after consideration of enquiry report and the response of the appellant thought it appropriate to communicate the appellant the proposed punishment by its notification dated 23.10.2013 issued by the order of the Governor/appointing authority (Annexure-12) by proposing two punishments for one established charge. The relevant extract of the said notice dated 23.10.2013 is quoted herein : “... ... Whereas Government while accepting the findings of the Inquiring Officer have not accepted the recommendation of the Inquiring Officer to censure her because she was lacking in decorum of conduct and he behavior towards her immediate authority clearly violates rule 3 of the Odisha Government Servants’ Conduct Rules, 1959. Accordingly, the following penalties are proposed to be awarded. Page 4 of 16 // 5 // (i) Censure (ii) Withholding two without cumulative effect. of increments Now, therefore, in accordance with clause (i) (b) of Sub-Rule 10 of Rule 15 of OCS (CC&A) Rules, 1962, she is called upon to submit such representation as she may wish to make against the proposed penalty within 30 days from the date of receipt of this notice.” 2.6 The appellant in response to the notice dated 23.10.2013 submitted her representation under Clause (i) (b) of Sub-Rule 10 of Rule 15 of the OCS (CC & A) Rules, 1962 (Annexure-14). The Government by order of Governor dated 18.02.2014 awarded two minor penalties of “censure” and “withholding of two increments without cumulative effect.” The appeal filed by the appellant against the order of punishment was rejected by order of the Governor dated 03.06.2014.
Legal Reasoning
3. Heard Mr. B. Pradhan, learned counsel for appellant and Mr. P.K.Mohanty, learned Additional Standing Counsel for Respondents No. 1 to 5. 4. Learned counsel for the appellant confines his submission to the aspect that imposition of two punishments, “censure” as well as “withholding two increments without cumulative effect” without assigning any reason; is not contemplated in the Odisha Civil Services (Classification, Control & Appeal) Rules, 1962. Therefore, imposition of two punishments is liable to be set aside. Page 5 of 16 // 6 // 5. It has to be noticed here that the Enquiring Officer exonerated, the appellant on charges (i) Unauthorized and willful absence from Govt. duly and (ii) Dereliction of Govt. duty. However, the Enquiring Officer held the appellant guilty of the charge : (iii) Misconduct of insubordination to higher authorities. It is also to be noticed, the Inquiring Officer had recommended only one punishment : “censure” whereas the Appointing Authority issued notice dated 23.10.2013 (Annexure-12) indicating therein regarding imposition of two punishments. ANALYSIS : 6. For convenience of reference, Rules 13 & 14 of Odisha Civil Services (Classification, Control & Appeal) Rules, 1962 is quoted herein : of increments “13. Nature of penalties-The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely :- (i) Fine; (ii) Censure; (iii) Withholding cumulative effect)] (iii)-A.Withholding of promotion (iv) recovery from pay of the whole, or part of any pecuniary loss caused to Government, or to a company, association or body of individuals, whether incorporated or not, which is wholly or substantially by Government or to a local authority set up by an Act of Parliament or of the Legislature of a State, by negligence or breach of orders] controlled (without owned or Page 6 of 16 // 7 // for from shall following shall future service which (v) Suspension; (vi) reduction to a lower service, grade or post or to a lower time-scale or to a lower stage in a time-scale. (vi)A.Withholding of increments (with cumulative effect)] (vii) compulsory retirement; (viii) removal from service which shall not be disqualification for future employment, and (ix) dismissal ordinarily be a disqualification employment : Provided that the penalty of fine shall be imposed only on Group-D Government servants. Explanation –The not amount to a penalty within the meaning of this rule :- (a) Withholding of increments of a Government servant for failure to pass a departmental examination in accordance with the rules or orders governing the service or post of the terms of his appointment; (b) Stoppage of a Government servant at the efficiency bar in the time-scale on the ground of his unfitness to cross the bar. (c)Non-promotion, whether in a substantive or officiating capacity, of a Government servant after consideration of his case, to a service, grade or post for promotion to which he is eligible; (d) Reversion to a lower service, grade or post of a Government servant officiating in a higher service, grade or post on the ground that he is considered, after trial,to be unsuitable for such higher service, grade or post, or on administrative grounds unconnected with his conduct; (e) Reversion to his permanent service, grade or post of a Government servant appointed on Page 7 of 16 // 8 // probation to another service, grade or post during or at the end of the period of probation in accordance with the terms of his appointment or the rules and order governing probation; (f) Replacement of the service of a Government servant whose services have been borrowed the Central or a State Government from or an authority under the control of the Central or a State Government at the disposal of the authority which had lent his services; (g) Compulsory retirement of a Government servant in accordance with the provisions relating to his superannuation or retirement; (h) Termination of the services – (i) of a Government servant appointed on probation during or at the end of the period of probation in accordance with the terms of his appointment or the rules and orders governing probation; or (ii) of a temporary Government servant in accordance with of his the appointment ; or (iii) of a Government servant employed under an agreement in accordance with the terms of such agreement.” terms (1) The impose any of penalties in Rule-13 on any Government “14. Disciplinary Authorities – Government may specified servant. (2) Without prejudice to the provisions of the Sub-rule (4), any of the penalties specified in Rule 13 may be imposed on a member of a civil service or a person appointed to a civil post by any other appointing authority or the authority specified in schedule or by any other authority empowered in this behalf by a general or special order of the Governor. (3) Subject to the provisions of Sub-rule (4), the power to impose any of the penalties specified in Rule 13 may also be exercised in Page 8 of 16 // 9 // the case of a member of a Civil Service. Group-C or Civil Service, Group-D. the Secretary (a) if he is serving in Department of the Government, by the Government of Odisha in that Department. (b) if he is serving in any other office, by the head of that office, except where the head of that office is lower in rank than the authority competent to impose the penalty under Sub-rule (2). to (4) Notwithstanding anything contained in this Rule- (a) no penalty specified in Clauses (vi) to (ix) of Rule 13 shall be imposed by any authority the appointing authority lower than (b) where a Government servant, who is a member of a service or is substantially appointed to any Civil Post, is temporarily appointed to any other service or post and the authority which would have been competent under Sub-rule to impose upon him any of the penalties specified in Clauses (vi) to (ix) of Rule 13 had he not been so appointed to such other service or post is not subordinate authority competent to impose any of the said penalties after such appointment, the latter authority shall not impose any such penalty except after consultation with the former authority.” the (2) to (Underlined to supply emphasis) 6.1 In our considered opinion a conjoint reading of the relevant Rules, i.e., Rules 13 & 14 of the Orissa Civil Services (Classification, Control & Appeal) Rules, 1962, Page 9 of 16 // 10 // would lead to conclusion that the Government may impose any of the penalties specified in Rule-13 on a Government Servant. The language being clear and unambiguous it has to be read in that way only. The Rule 14 is very specific to the extent that the Government may impose any of the penalties specified in Rule 13, which cannot be read as any such penalties so as to lead to interpretation that even more than one penalty can be imposed. It has to be held that imposition of two penalties as has been done in the case at hand is contrary to the Rules. 7. Regarding interpretation of Rule-14 of the Orissa Civil Services (Classification, Control & Appeal) Rules, 1962, learned counsel for the appellant relies on the decision of the Constitution Bench in State of Uttar Pradesh and others v. Babu Ram Upadhya, AIR 1961 Supreme Court 751. Paragraph-23 relied on by the petitioner is reproduced herein : “What then is the effect of the said propositions in their application to the provisions of the Police Act and the rules made thereunder? The Police Act of 1861 continues to be good law under the the Police Constitution. Paragraph 477 of Regulations shows that the rules in Chapter XXXII thereof have been framed under s.7 of the Police Act. Presumably, they were also made by the Government in exercise of its power under s. 46(2) of the Police Act. Under para. 479(a) the Governor's power of punishment with reference to all officers is preserved; that is to say, this provision expressly saves the power of the Governor under Art. 310 of the Constitution. Page 10 of 16 // 11 // judicially noticed "Rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act, and are to be for all purposes of construction or obligation": see Maxwell "On the Interpretation of Statutes", 10th edn., pp. 5051. The statutory rules cannot be described as, or equated with, administrative directions. If so, the Police Act and the rules made thereunder constitute a self-contained code providing for' the appointment. of police officers and prescribing the procedure for their removal. It follows that where the appropriate authority takes disciplinary action under the Police Act or the rules made thereunder, it must conform to the provisions of the statute or the rules which have conferred upon it the power to take the said action. If there is any violation of the said provisions, subject to the question which we will presently consider whether the rules are directory or mandatory, the public servant would have a right to challenge the decision of that authority.” (Emphasis supplied) In our considered opinion, the judgment of Babu Ram Upadhya (supra) cited by the learned counsel for the appellant supports the contention raised on behalf of the respondents that action of the appropriate authority imposing two punishments after taking disciplinary action under the OCS(CCA) Rules, did not confirm to the provisions of the statute i.e. Rule 14 read with Rule 13 of the OCS(CCA) Rules. The Rule provides that the disciplinary authority “may impose any of the penalties specified in Rule 13”. The language being plain and Page 11 of 16 // 12 // simple, it cannot be interpreted to be read as the authority may impose any such penalties. 8. Hon’ble Supreme Court in the decision rendered in Union of India v. S.C.Parashar : (2006)3 SCC 167 had the occasion to deal with a challenge to imposition of three penalties on a Deputy Commandant working in the Central Reserve Police Force after Disciplinary Proceeding was initiated under the provisions of the Central Civil Services (CCS) Rules, it was held “such a course of action could not have been taken in law.” The relevant paragraphs of S.C. Parashar (supra) are quoted herein (SCC) : “9. The only question, therefore, which arises for consideration is as to whether in terms of the Rules the penalty imposed on the respondent was permissible in law. The relevant provision of Rule 11 of the CCS Rules reads thus: “11. Penalties.—The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a government servant, namely— Minor Penalties— (i) censure; (ii) withholding of his promotion; (iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders; (iii)(a) reduction to a lower stage in the timescale of pay for a period not exceeding 3 years, without cumulative effect and not adversely affecting his pension; *** Major Penalties— Page 12 of 16 // 13 // (v) save as provided in clause (iii)(a), reduction to a lower stage in the timescale of pay for a specified period, with further directions as to whether or not the government servant will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay;” x x x 12. The penalty imposed upon the respondent is an amalgam of minor penalty and major penalty. The respondent has been inflicted with three penalties: (1) reduction to the minimum of the timescale of pay for a period of three years with cumulative effect; (2) loss of seniority; and (3) recovery of 25% of the loss incurred by the Government to the tune of Rs 74,341.89p. i.e. Rs 18,585.47p. on account of damage to the equal monthly (eighteen) Gypsy instalments. Whereas reduction of timescale of pay with cumulative effect is a major penalty within the meaning of clause (v) of Rule 11 of the CCS Rules, loss of seniority and recovery of amount would come within the purview of minor penalty, as envisaged by clauses (iii) and (iii)(a) thereof. The disciplinary authority, therefore, in our opinion acted illegally and without jurisdiction in imposing both minor and major penalties by the same order. Such a course of action could not have been taken in law. in 18 to there cannot be any doubt 13. However, whatsoever that the disciplinary authority never intended impose a minor penalty. The concession of the learned counsel appearing for the appellant before the High Court was apparently erroneous. It is now well settled that wrong concession made by a counsel before the court cannot bind the parties when statutory provisions clearly provide otherwise. (See Union Page 13 of 16 // 14 // of India v. Mohanlal Likumal Punjabi [(2004) 3 SCC 628 : 2004 SCC (Cri) 844].) The penalty imposed upon the respondent, in our considered view, therefore, should be kept confined to the reduction to the minimum of the timescale of pay for a period of three years with cumulative effect. The effect of such a penalty has been considered by in Shiv Kumar this Court Sharma v. Haryana SEB [1988 Supp SCC 669 : 1989 SCC (L&S) 51 : (1988) 8 ATC 792 : AIR 1988 SC 1673] in the following terms: (SCC pp. 671-72, para 6) to accept “6. We are unable the above contention. The penalty was imposed on 15-4- 1968 and, as a result of which, he was deprived of the monetary benefit of one increment for one year only. The penalty by way of stoppage of one increment for one year was without any future effect. In other words, the appellant's increment for one year was stopped and such stoppage of increment will have no effect whatsoever on his seniority. Accordingly, the Board acted illegally and most arbitrarily in placing the juniors of the appellant above him in the list and/or the seniority appellant in the post with effect from 1-12-1969, that is, long after the date of confirmation of the said Respondents 2 to 19. The question of seniority has nothing to do with the penalty that was imposed upon the appellant. It is apparent that for the same act of misconduct, the appellant has been punished twice, that is, first, by the stoppage of one increment for one year and, second, by placing him below his juniors in the seniority list.” confirming 14. The ratio of the said decision is applicable to the facts of the present case also. Page 14 of 16 // 15 // 15. In this view of the matter, indisputably, the respondent was entitled to be considered for promotion after a period of three years. We have, however, been informed that he has since been promoted to the rank of Commandant. 16. We, therefore, in modification of the order of the High Court hold that the punishment which could have been imposed upon the respondent herein was reduction of pay for a period of three years with cumulative effect and, thus, if his case is considered for promotion after the said period, no further direction is required to be issued. We set aside the directions of the High Court to the effect: “The petitioner shall be entitled to the seniority on the basis of DPC which was held on 7-4- 1997 when his immediate junior was promoted rank of Second-In-Command. The to petitioner shall also be entitled to all consequential benefits which stood denied due to punishment of loss of seniority”, the that and direct the punishment shall be reduction of pay to the minimum of the timescale of pay for a period of three years with cumulative effect.” (emphasis supplied ) By applying the principles laid down in S.C.Parashar (supra) to the present case, it has to be held that the disciplinary authority acted illegally and without jurisdiction in imposing two minor penalties by the same order and such a course of action could not have been taken in law. Page 15 of 16 // 16 // 9. Since no other contention is raised by the appellant for consideration of this Court, while upholding imposition of the penalty, this Court directs that the authority shall issue of a revised order imposing penalty by indicating one penalty out of those provided in Rule 13 of Orissa Civil Services (CC & A) Rules, 1962 which may be either “censure” or “withholding of two increments without cumulative effect”. The order dated 18.02.2014 (Annexure-15) issued by the Government is set aside with liberty to pass a fresh order imposing either of the minor punishments as indicated herein. The Writ Appeal is allowed to the aforesaid extent,
Decision
however there shall be no order as to costs. (Jaswant Singh) Judge (M.S.Sahoo) Judge Orissa High Court, Cuttack The February, 2023/dutta/Gs Page 16 of 16