The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAC) No.3156 of 2007 Gourahari Pradhan …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 13.03.2023 Order No 04. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. N. Sarkar, learned counsel for the Petitioner and Mr. D.K. Mohanty, learned Addl. Standing Counsel appearing for the Opp. Parties. 3. The Petitioner has filed the present writ petition with the following prayer:- “(i) Admit and allow this original Application; (ii) Hold/declare that the impugned Disciplinary proceeding and the final order, dated 8.10.2007 were/are bad, illegal, not tenable in the eye of law and thereby quash the same; (iii) Direct/order the Respondents to reinstate the applicant in service forthwith; (iv) Hold/declare that the applicant is entitled for all service and monetary benefits from the date of dismissal and thereby direct the Respondents to extend all the service and monetary benefits with effect from the date of dismissal forthwith along with 18% interest thereon; // 2 // (v) Hold/declare that the suspension of the applicant was/dis bad, illegal and not sustainable in the eye of law and thereby direct/order the Respondents to treat the entire period of suspension as duty and disburse the duty pay for the entire period of suspension as duty and disburse the duty pay for the entire period of suspension; (vi) Pass such other order(s)/direction(s) as may be deemed fit and proper in the bonafide interest of justice.” 4. It is contended that the Petitioner while continuing as a Peon in the establishment of Chief Electoral Officer, Govt. of Odisha, Home (Election) Department, a proceeding was initiated against him vide memorandum dtd.02.08.2006 under Annexure-6. 4.1. Learned counsel for the Petitioner at the very first instance contended that since the Petitioner was an employee of the Home Department at the relevant point of time was continuing as a Peon which is a Group-D post in the Home (Election) Department, the Chief Electoral Officer, Odisha & Ex-Officio, Commissioner-cum- Secretary to Govt. of Odisha, Home (Election) Department is not the competent authority nor the disciplinary authority to initiate the proceeding against the Petitioner. It is contended that taking into account his status as a Group-D employee as provided under rule 2(C) of the OCS (CCA) Rules, 1962, the Under Secretary to the Department is the Disciplinary Authority and the Appellate Authority is the Secretary of the Department for awarding punishment under Rule 13 of the OCS (CCA) Rules, 1962. Accordingly, it is contended that since the proceeding in question under Annexure-7 was initiated by the Appellate Authority, the same is not sustainable in the eye of law and consequentially the order of punishment passed on 08.10.2007 removing the Petitioner from his services is also not sustainable in the eye of law. Page 2 of 5 // 3 // 4.2. Bereft of the aforesaid legal proposition, Mr. Sarkar, learned counsel for the Petitioner also contended that on receipt of the memorandum of charges though the Petitioner at different point of time moved the Chief Electoral Officer-O.P. No. 2 for supply of the documents, but the same was never provided to him and thereby enabling him to file his written statement of defence by taking all the plea was available to him. It is contended that due to non-supply of documents the Petitioner was prejudiced in defending himself in the proceeding in question also. 4.3. Learned counsel for the Petitioner contended that the Petitioner entered into the service in the Home Department where he joined on 20.02.1979 and while so continuing and vide different orders he was allowed to work in the Home (Election) Department. Lastly vide one such order passed on 02.04.1997 under Annexure-23 the Petitioner was allowed to work as a Peon in the Home (Election) Department until further orders. It is contended that while continuing as such in the Home (Election) Department, the proceeding in question was initiated vide Annexure-7. However, since the Petitioner was working as a Peon which comes under the Group-D establishment, the Chief Electoral Officer and Secretary of the Department-O.P. No. 2 is not the competent authority to initiate such proceeding and it is the Under Secretary of the Department, who was due to initiate such proceeding. Accordingly, it is contended that not only the very initiation of the proceeding was vitiated but also the consequential order of punishment. 4.4. Making all such submissions Mr. Sarakar submitted that the very initiation of the proceeding dtd.02.08.2006 under Annexure-7 and the consequential order of punishment passed on 08.10.2007 vide Annexure-A to the counter are not sustainable in the eye of law. Page 3 of 5 // 4 // 5. Mr. D.K. Mohanty, learned Addl. Standing Counsel on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that the Chief Electoral Officer, Odisha & Ex-Officio, Commissioner-cum-Secretary to Govt., Home (Election) Department being the Chief of the Department, he is competent to initiate the proceeding and the Petitioner is not permitted to take such a stand after participating in the proceeding with passing of the impugned order of punishment on 08.10.2007. It is also contended that the Petitioner was supplied with the documents and after receipt of the same he not only filed his written statement of defence but also participated in the enquiry. Accordingly, no illegality has been committed by the Authority concerned while dealing with the matter. 6. Heard learned counsel for the Parties. Perused the materials available on record, this Court after going through the same, finds that the Petitioner entered into service as a Peon originally in the Home Department in the Govt. of Odisha where he joined on 20.02.1979. Subsequently, though the Petitioner at different point of time was allowed to work as such in the Home (Election) Department, but vide order dtd.02.04.1997 under Annexure-23 to the writ petition, the Petitioner was allowed to work in the Home (Election) Department until further orders. It is also found that during his continuance as a Peon in the Home (Election) Department in terms of the order passed under Annexure-23, the proceeding in question was initiated vide Memorandum dtd.02.08.2006. This Court after going through the provisions contained under Rule 2(c) of the OCS (CCA) rules, 1962 read with Rule 14(2) and (4) and the authorities prescribed under Schedule-A, finds that it is the Registrar/Asst. Secretary/Under Secretary of the Department who is only competent authority to initiate the Page 4 of 5 // 5 // proceeding as the Disciplinary Authority of Group-D employees. In the instant case it is found that the proceeding was initiated by the Chief Electoral Officer, Odisha & Ex-Officio, Commissioner-Cum- Secretary t Govt. of Odisha, who is in fact the Appellate Authority to decide the question of punishment to be imposed by the Disciplinary Authority against such Group-D employees. Not only that the Petitioner being an employee of the Home Dept. and as he was working in Home (Election) Dept. in terms of the order at Annexure-23, O.P. No. 2 being not the appointing authority, is not competent to initiate the proceeding also. Since the very initiation of the proceeding is made by an Authority who is not competent to initiate the same, as per the considered view of this Court the proceeding against the Petitioner so initiated under Annexure-7 is bad in the eye of law. 6.1. While holding so, this Court is inclined to quash the order of punishment so passed on 08.01.2007 vide Annexure-A to the counter. However, taking into account the fact that the Petitioner in the meantime has attained the age of superannuation w.e.f.30.06.2014, this Court observes that the period of service from the date of dismissal till 30.06.2014 be treated as qualifying service but on notional basis. While treating the period on notional basis, the Petitioner be sanctioned with all the retiral dues as due and admissible including pension. Such an exercise shall be undertaken and completed by the Opp. Party No. 2 within a period of three (3) months from the date of receipt of this order. 7. The writ petition is disposed of with the aforesaid observation and direction. (Biraja Prasanna Satapathy) Judge Sneha Page 5 of 5