The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.27516 of 2020 An application under Articles 226 and 227 of the Constitution of India. Dillip Kumar Mallik State of Odisha & others Petitioner Mr. Biplaba P.B. Bahali, Advocate -versus- CORAM: Opposite Parties Mr. P.C. Das, A.S.C. JUSTICE A.K. MOHAPATRA _____________________________________________________ Date of hearing : 19.02.2024 | Date of Judgment: 19.02.2024 ______________________________________________________ A.K. Mohapatra, J. : 1. Heard learned counsel for the Petitioner as well as learned Additional Standing Counsel for the State-Opposite Parties. Perused the pleadings of the parties as well as the documents annexed thereto. 2. The present writ application has been filed by the Petitioner with a prayer to quash the impugned rejection order dated 06.02.2020 under Annexure-11 to the writ application and further to direct the Opposite Parties to grant annual increment to the Petitioner as is due and admissible to him as per the rules and // 2 // further to sanction the arrears on such basis and disburse the same within a stipulated period of time. 3.
Facts
The factual background leading to filing the present writ application, in short, is that the petitioner initially appointed vide order under Annexure-1 to writ application as a Junior Clerk in the office Opposite Party No.2. Pursuant to such appointment, the Petitioner submitted his joining report on 15.07.2014. Thereafter, while the Petitioner was working as a Junior Clerk in the Tahasil office, Buguda, he was placed under suspension vide office order dated 19.01.2018 under Annexure-2 to the writ application by the Collector-cum-Disciplinary Authority, Ganjam. Thereafter, the petitioner was served with a memorandum of charges on 04.02.2019 and a Disciplinary Proceeding was initiated against the Petitioner under the provisions of Rule-15 of OCS (CCA) Rules, 1962. 4. In the aforesaid Disciplinary Proceeding the Petitioner filed a written statement of defence under Annexure-5 to the writ application. Thereafter, the enquiry started and the Petitioner was co-operating with the Disciplinary Authority for early conclusion of such Proceeding. During the pendency of the aforesaid Disciplinary Proceeding, the Petitioner being aggrieved by the conduct of the Opposite Parties in not releasing the annual increment in favour of // 3 // the Petitioner approached the Opposite Party No.2. Pursuant to several notices the Petitioner was appearing and co-operation with the Disciplinary Authority. 5. While the matter stood thus, a draft gradation list was published on 15.01.2019 wherein the Petitioner has been shown at Sl. No.145 of the said list. Learned counsel for the Petitioner submitted that although the Petitioner is eligible for promotion to the next higher rank, his case has not been considered for such promotion due to pendency of the aforesaid Disciplinary Proceeding. He further submitted that pursuant to the recommendation of the DPC on 20.09.2019, many similarly situated persons have been given promotion to the rank of Senior Revenue Assistant from the rank of Junior Revenue Assistant. Being aggrieved by such conduct of the Opposite Parties, the Petitioner approached the Chief Development Project Officer, Bhanjanagar-Opposite Party No.6 by filing a representation on 30.11.2019 under Annexure-10 to the writ application for sanction of annual increment in favour of the Petitioner as a Junior Revenue Assistant. 6. It appears from the record that the Petitioner has submitted successive representations on 30.11.2019, 07.01.2020, 04.02.2020 & 30.05.2020. Finally, the Additional District Magistrate, Ganjam // 4 // vide order dated 06.02.2020 under Annexure-11 rejected the prayer of the Petitioner for grant of annual increment on the ground that under the OCS (CC&A) Rules, 1962 all service benefits should be withheld during the pendency of the proceedings where an Officer has been suspended. Since the Petitioner has been suspended w.e.f 09.01.2018, under Rule-12 of OCS (CCA) Rules, 1962, as such, the Disciplinary Authority-cum-Collector, Ganjam has rejected the prayer of the Petitioner for sanction of annual periodical increment with a further observation that the same shall be considered after finalization of the Disciplinary Proceeding initiated against him. 7.
Legal Reasoning
refereed to a judgment of a Division Bench of this Court in State of Odisha & ors. vs. Rabinarayana Mohapatra (W.A. No.1335 of 2022 decided on 03.11.2022). By referring to the aforesaid judgment, learned counsel for the Petitioner submitted that in a similar situation this Court while interpreting the Rule-77 of Odisha Service Code has held that although the Departmental Authorities are competent to withhold the increment during pendency of the Disciplinary Proceeding or any criminal proceeding, however, in the aforesaid judgment, no specific order was passed by the competent authority for the withholding of the increment for the relevant period. Therefore, the decision of the learned Single Judge in directing the Department to extend the benefit of annual increment was confirmed by the Division Bench of this Court. // 6 // 9. In course of his argument, learned counsel for the Petitioner also relied upon a judgment of the Andhra Pradesh High Court in the matter of Dharavathu Adinarayana vs. A.P. Eastern Power Distribution decided in W.P.(C) No.19876 of 2020 vide judgment dated 19.03.2021. He also referred to the judgment of the Hon’ble Supreme Court in Balvantray Ratilal Patel vs. The State of Maharashtra in Civil Appeal No.442 of 1965 decided on 12.12.1967. Further referring to the aforesaid Supreme Court judgment, learned counsel for the Petitioner submitted that the Hon’ble Supreme Court has categorically observed that it is on well settled principle of law that an order of interim suspension can be passed against the employee while an inquiry into his conduct is pending even though there is no such term in the contract of appointment or in the rules, but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statute or rule under which it could be withheld. Further, referring to para-5 of the said judgment, learned counsel for the petitioner also contended that the Supreme Court has categorically observed that if there is no express bar relating to payment during such suspension or if there is no statutory provision in any enactment or rule debarring such payment, the employee is entitled to his full remuneration for the period of his interim suspension. // 7 // 10. Learned Additional Standing Counsel appearing for the State-Opposite Parties, on the other hand, submitted that the State- Opposite Parties have filed a detailed counter affidavit wherein they have supported the action of the Opposite Party No.2 in rejecting the claim of the Petitioner vide their order dated 06.02.2020 under Annexure-11 to the writ application. Learned Additional Standing Counsel specifically referred to Annexure-11 i.e. letter No.644 dated 06.02.2020 and submitted that the same has been issued by the Additional District Magistrate, Ganjam who has rejected the claim of the Petitioner for grant of annual increment on the ground of pendency of the Disciplinary Proceeding. He further referred to Rule-77 of the Odisha Service Code and submitted that if the conduct of the Government servant, has not been good or his work has not been satisfactory then the increment can be withheld by the authorities. In their counter affidavit, they have also referred to the Government circular dated 10.11.1959. By referring to such circular, it was contended that the Government had taken a policy decision to withhold promotion and other special service advantages in a case where a Disciplinary Proceeding has been initiated against a Government employee. 11. On a careful analysis of the averments made in the counter affidavit, this Court found that the Opposite Parties have laid // 8 // emphasis on the Disciplinary Proceeding pending against the present petitioner and that they are taking steps for an early conclusion of the Disciplinary Proceeding. In course of his argument, learned Additional Standing Counsel further submitted that with regard to the promotion of the present Petitioner, the Departmental Promotion Committee meeting which was held on 29.08.2019, had considered the case of the Petitioner, however, the result of such DPC, in respect of the Petitioner, has been kept in a sealed cover and the same shall be subject to the final outcome of the Disciplinary Proceeding which is pending against the present Petitioner. In the aforesaid factual backdrop, learned Additional Standing Counsel submitted that the Opposite Parties have not committed any illegality while passing the impugned order dated 06.02.2020 under Annexure-11 to the writ application. 12. Having due regard to the submissions made by learned counsels appearing for the respective parties and on a careful consideration of the respective pleadings as well as materials on record, this Court is of the view that while disposing of the present writ application this Court is required to examine the impact of Rule-77 of the Odisha Service Code, which deals with grant of increment to Government employee. On a plain reading of Rule-77 it appears that the same provides that on increment shall ordinarily // 9 // be drawn as a matter of course unless the same is withheld by the authority. Of course, the authorities are vested with the power as per Rule-77 to withhold the increment in the event the conduct of the Government servant is found to be not satisfactory. Such provision contained in Rule-77 of the Odisha Service Code is not disputed by learned counsel for the Petitioner. Learned counsel for the Petitioner, has instead, laid emphasis on the fact that there was no specific order passed by the competent authority, so far the present petitioner is concerned, with regard to withholding of such increment. He further contended that withholding of increment can be a punishment which may be passed after the finalization of Disciplinary Proceeding in case the Petitioner is found guilty. Since the Disciplinary Proceeding is pending, it is not within the authority of the Opposite Parties to withhold the release of annual increment in favour of the Petitioner in the absence of any specific order prohibiting grant of such increment. 13. In course of hearing of the present matter, no such specific order was produced before this Court whereunder the payment of annual increment in favour of the Petitioner has been withheld by the Opposite Parties. The impugned rejection order only says that Collector-cum-Disciplinary Authority has been pleased to reject the prayer of the Petitioner for grant of such annual increment. In such // 10 // view of the matter & keeping in view the provision contained in Rule-77, as well as the view taken by the Division Bench of this Court in Rabinarayana Mohapatra’s case (supra), this Court is of the considered view that the impugned rejection order dated 06.02.2020 under Annexure-11 is unsustainable in law since no such order specifically withholding the release of increment in favour of the Petitioner has been passed. Accordingly, the same is hereby set aside. Accordingly, the writ petition deserves to be allowed and the same is hereby allowed. The Opposite Parties are directed to grant the annual increment to the Petitioner as is due and admissible under the law, within a period of six weeks from the date of communication of a copy of this judgment. 14.
Arguments
Learned counsel for the Petitioner in course of his argument submitted that the Rule-12 which provides for suspension during pendency of the Disciplinary Proceeding does not speak of withholding of the annual increments. He further referred to Rule- 77 of the Odisha Service Code which has been quoted hereinbelow:- 77. 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 has not been good or that his work has not been satisfactory, withhold an increment from him in the Police Department Superintendents are empowered increments of Sergeants and Sub-Inspectors. In ordering the withholding of an increment such authority shall state the period for which it is withheld and whether the postponement shall have the effect of postponing future increments. to withhold // 5 // 8. By referring to the aforesaid provision of Rule-77 of Odisha Service Code, learned counsel for the Petitioner submitted that an increment shall ordinarily be drawn as a matter of course unless the same is specifically withheld by the authority. He further submitted that since the Disciplinary Proceeding is pending and no final order has been passed, the Opposite parties have committed an illegality by not sanctioning and disbursing such increments in favour of the Petitioner. Learned counsel for the Petitioner further
Decision
Accordingly, the writ petition is disposed of in terms of the aforesaid observations. However, there shall be no order as to cost. Orissa High Court, Cuttack The 19th of February, 2024/ Anil Jr. Steno (A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 22-Feb-2024 12:55:41