The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C ) No.15842 of 2022 Sanjaya Kumar Sahoo …. Petitioner Mr. S. Mallick, Adv. -versus- State of Odisha & Others … Opp. Parties State Counsel CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No ORDER 15.04.2024 8. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2.
Legal Reasoning
Heard learned counsel for the parties. 3. Petitioner has filed the present Writ Petition inter alia challenging the order dt.06.05.2022 so passed by Opp. Party No.2 under Annexure-6. Vide the said order, the claim of the Petitioner to get the benefit of increment as due and admissible with effect from the year 2005 was rejected. 3.1 Learned counsel for the Petitioner contended that Petitioner while continuing as a Senior Assistant, he was implicated in a vigilance case in the Court of learned Special Judge, Vigilance vide VGR Case No.28 of 2004. On the ground of such implication in the vigilance case and simultaneous initiation of a disciplinary proceeding vide memorandum dt.20.11.2004, petitioner was not extended with the benefit of increment w.e.f 2005. 3.2. It is contended that since neither in the vigilance proceeding nor in the disciplinary proceeding, Petitioner was imposed with any punishment, only on the ground of mere initiation, the increment as due and admissible with effect from 2005 could not have been withheld. The same when was directed to be considered by this Court vide order dt.18.11.2021 in W.P.(C ) No.35752 of 2021, the same was rejected vide the impugned order dt. 06.05.2022 under Annedxure-6. It is accordingly contended that the impugned order is not sustainable in the eye of law and Petitioner is eligible to get the benefit of increment w.e.f 2005 till he attained the age of superannuation on 31.05.2023. 3.2. It is however contended that even though Petitioner was convicted in the vigilance case vide judgment dt.30.07.2016 in VGR Case No.28 of 2004 by the learned Add. District Judge-cum-Spl. Judge (Vigilance) Balasore, but Petitioner was never imposed with any punishment in the disciplinary proceeding till he attained the age of superannuation and allowed to take retirement on 31.05.2023. It is accordingly contended that Petitioner is eligible to get the benefit of increment w.e.f 2005 till he attained the age of superannuation on 31.05.2023.
Legal Reasoning
4. Mr. S.K. Samal, learned Addl. Govt. Advocate made his submission basing on the stand taken in the counter affidavit so filed in the present case. Mr. S.K. Samal, learned AGA contended that because of his implication in the aforesaid vigilance case which was initiated in the year 2004 vide VGR Case No.28 of 2004 and initiation of Disciplinary proceeding vide memorandum Page 2 of 6 dt.20.11.2004, Petitioner was not released with the increment with effect from the year 2005. In support of such denial of increment w.e.f 31.03.2005, Mr. Samal relied on the provisions contained under Rule 77 of the Orissa Service Code. Rule 77 of the Orissa Service reads as follows. “77. An increment shall ordinarily be drawn as a matter of course unless it is withheld. An increment shall ordinarily be drawn as a matter of course unless it is withheld. The authority empowered to make a substantive appointment to the post which a Government servant holds, may, if it considers that the conduct of such Government servant has not been good or that his work has not been satisfactory, withhold an increment Police Department Superintendents are empowered to withhold increments of Sergeants and Sub-Inspectors. IN ordering the withholding of an increment such authority shall state the period for which it is withheld ad whether the postponement shall have the effect of postponing future increments. from him the in Note-1 : In withholding increment as a measure of punishment, the procedure laid down in the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962 shall be followed. Note-2: As per the Odisha Revised Scales of Pay Rules, 2017, after fixation of pay in the appropriate Level in the Pay Matrix under sub-rule (1) of Rule 7 & 8, the subsequent increment in the Level shall be at the immediate next higher Cell vertically arranged in that level. Note-3: The date of next increment in the revised pay structure, shall be twelve months from the date of last increment sanctioned. In case where the pay is fixed in the revised pay structure at the minimum pay or the first Cell in the Level, the date of next increment shall be the anniversary of date of coming over to the revised pay structure.” 4.1. It is further contended that while so continuing, on the face of initiation of the vigilance proceeding and the Disciplinary Proceeding, petitioner was convicted in the vigilance case vide judgment dt.30.07.2016. After such conviction and sentence passed in the vigilance case, Petitioner when was issued with a notice, proposing him to Page 3 of 6 terminate him from his services vide the order dt.29.06.2017, Petitioner challenging the same, approached the Tribunal in OA No.1171 of 2017. Tribunal while issuing notice of the matter vide order dt.31.07.2017 passed an interim order that no final order shall be passed without leave of the Tribunal. 4.2. It is contended that by virtue of the interim order so passed by the Tribunal in 31.07.2017 in OA No.1171 of 2017, Petitioner was allowed to continue till he attained the age of superannuation on 31.05.2023. 4.3. It is further contended that OA No.1171 of 2017 on being transferred to this Court, was registered as WPC(OA ) No.1171 of 2017. The said Writ Petition was also dismissed on the ground of non-prosecution vide order dt.12.03.2024. It is accordingly contended that since Petitioner has been convicted in the vigilance case vide judgment dt.30.07.2016, in view of the provisions contained under Rule 77 of the Orissa Service Code, Petitioner is not eligible and entitled to get the benefit of increment w.e.f 2005 and it has been rightly withheld and the claim was accordingly rejected vide the impugned order under Annexure-6. 5. Having heard learned counsel for the parties and after going the materials available on record, this Court finds that while continuing as a Senior Assistant, Petitioner was implicated in a Vigilance Case vide VGR No.28 of 2004 and a proceeding was also initiated against him vide memorandum dt.20.11.2004. The vigilance case ended with an order of conviction and sentence passed against the Petitioner vide judgment dt.30.07.2016 under Annexure-A/2 to the counter. After such disposal of the Page 4 of 6 vigilance proceeding with the order of conviction and sentence passed against the Petitioner, petitioner though was issued with an order on 29.06.2017 by Opp. Party No.2 proposing therein to impose punishment of dismissal, but in view of the interim order passed by the Tribunal on 31.07.2017 in OA No.1171 of 2017, Petitioner continued in his services till he attained the age of superannuation on 31.05.2023. However, OA No.1171 of 2017 after being transferred to this Court was dismissed for non- prosecution on 12.03.2024. 5.1. In view of the aforesaid analysis and the fact that Petitioner has been convicted in the Vigilance Proceeding vide judgment dt.30.07.2016, it is the view of this Court that Petitioner after 30.07.2016 is not eligible and entitled to get the benefit of increment. However, Petitioner will be entitled to get the benefit of increment w.e.f from the year 2005 till the judgment was so passed on 30.07.2016 as no action was taken to withhold the increment w.e.f 2005 in terms of the provision contained under Note-1 to Rule 77 of the Odisha Service Code. 5.2. This Court while interfering with the impugned order dt.06.05.2022 under Annexure-6 held that Petitioner is entitled to get the benefit of increment w.e.f 2005 till he was convicted in the vigilance proceeding with passing of the judgment on 30.07.2016. While holding so, this Court directs Opp. Party No.2 to extend the benefit of increment for the period 2005 to 2016 and release the consequential benefit as due and admissible. The entire exercise shall be undertaken and completed by Opp. Party No.2 within a period of three (3) months from the date of receipt of this order. Page 5 of 6
Decision
The Writ Petition is accordingly disposed of. (Biraja Prasanna Satapathy) Judge sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: AUTHENTICAITON OF ORDER Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Apr-2024 18:53:32 Page 6 of 6