The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.25882 of 2023 In the matter of an application under Article 226 & 227 of the Constitution of India, 1950. ……………… P. Bhaskar Rao …. Petitioner -versus- Director (ST), SC & ST Development M & BCW Dept., BBSR & Anr. …. Opp. Parties For Petitioners : Ms. S. Jena, Adv. For Opp. Parties: :Mr. M.R. Mohanty, Addl. Govt. Advocate PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY Date of Hearing: 30.10.2025 and Date of Judgment: 30.10.2025 ------------------------------------------------------------------------------ Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Facts
2. Heard learned counsel appearing for the Parties. // 2 // 3. Petitioner has been filed the present Writ Petition inter alia challenging order dtd.26.09.2022 so passed by Opposite No.2 under Annexure-1, further confirmed by the appellate authority-Opposite Party No.1 vide order dtd.26.06.2023 under Annexure-3. 4. Learned counsel appearing for the Petitioner contended that in the proceeding initiated against the Petitioner under Rule-15 of the OCS(CCA) Rules, 1962 vide Memorandum dtd.10.12.2018, Opposite Party No.2 being the disciplinary authority while disposing the proceeding vide the impugned order dtd.26.09.2022 under Annexure-1, imposed the following punishment:- “1. He may be censured for not to involve in any such activities in future. 2. The period of suspension may be treated as leave on credit.” 4.1. Learned counsel appearing for the Petitioner contended that even though Petitioner preferred an appeal against such order of punishment vide Annexure-2, but the appellate authority without proper appreciation of the grounds taken in the appeal rejected the same vide order dtd.28.06.2023 under Annexure-3. 4.2. Challenging the order of punishment imposed vide order under Annexure-1, so confirmed vide order under Annexure-3, learned counsel appearing for the Petitioner contended that since while disposing the Page 2 of 9 // 3 // proceeding vide order dtd. 26.09.2022 under Annexure-1 Petitioner was only censured which is a minor punishment as provided under Rule-13 of the OCS (CCA) Rules, 1962, while imposing such a minor punishment, the period of suspension could not have been treated as leave on credit, in view of the decision of this Court in the case of Bani Bhusan Dash Vs. State of Odisha & Others (W.P.(C) No.7635 of 2019)
Legal Reasoning
and further decision passed by this Court in the case of Dr. Smita Mohanty vs. State of Odisha & Others (WPC(OA) No.2585 of 2016. This Court in Para-10 the decision in the case of Bani Bhusan Dash and Para- 4.1., 5 & 6 of the order dtd.05.07.2023 in the case of Dr. Smita Mohanty has held as follows:- “10. Coming to the 3rd punishment, as imposed in the impugned order dated 15.09.2018 under Annexure-8, i.e. treating the period of suspension as leave due and admissible, no doubt the authorities are empowered to place an employee under suspension in contemplation or pending drawal of a proceeding exercising their power under Rule-12 of the OCS (CCA) Rules, 1962. Accordingly, they have to give a conclusion the manner to treat the period of suspension at the time of passing final order in the departmental proceeding. The authorities are to keep the suspension as such or to revoke the said suspension order by revising the period of suspension as duty, as because honouring nonengagement certificate for the relevant period, the authorities have sanctioned subsistence allowance to the delinquent during the period of suspension. In the instant case, the authority, after taking a decision not to treat the period of suspension as such, is Page 3 of 9 // 4 // not empowered to take a decision to treat the period of suspension as leave due and admissible, when the petitioner did not ask for any leave during the said period of suspension. Regularization of a particular period treating as leave period of different kinds of leave, as provided under Orissa Leave Rules, can be considered only when the petitioner/employee concerned seeks leave from the competent authority for certain period under certain circumstances. The authority cannot initiate a proposal from its side in assumption of leave application from the delinquent or employee concerned to treat the period as leave due and admissible affecting the delinquent by way of consuming accrued leave in favour of the employee concerned without any fault on his part. As the authority has come to a conclusion to punish the petitioner only with a minor penalty, the decision of the competent authority to place the petitioner under suspension on the allegation of grave misconduct does not appear to be satisfactory, rather it seems that the order of suspension was issued without application of mind or in a routine or mechanical manner. As such, no review of suspension was held, as per the guidelines. Under such circumstances, after concluding the departmental proceeding by imposing minor penalty of stoppage of one increment without cumulative effect, the authority should not have treated the period of suspension in any manner other than the duty affecting the service condition of the petitioner.” xxx xxx xxx “4.1.Mr.Rath, learned counsel for the Petitioner also relied on another decision of the Hon’ble Apex Court reported in the case of Union of India & Anr. Vs. S.C. Parashar ((2006) 3 SCC 167). This Court in Para 10 of the reported case of BaniBhusan Dash has held as follows:- Page 4 of 9 // 5 // “10. Coming to the 3rd punishment, as imposed in the impugned order dated 15.09.2018 under Annexure-8, i.e. treating the period of suspension as leave due and admissible, no doubt the authorities are empowered to place an employee under suspension in contemplation or pending drawal of a proceeding exercising their power under Rule 12 of the OCS (CCA) Rules, 1962. Accordingly, they have to give a conclusion the manner to treat the period of suspension at the time of passing final order in the departmental proceeding. The authorities are to keep the suspension as such or to revoke the said suspension order by revising the period of suspension as duty, as because honouring non-engagement certificate for the relevant period, the authorities have sanctioned subsistence allowance to the delinquent during the period of suspension. In the instant case, the authority, after taking a decision not to treat the period of suspension as such, is not empowered to take a decision to treat the period of suspension as leave due and admissible, when the petitioner did not ask for any leave during the said period of suspension. Regularization of a particular period treating as leave period of different kinds of leave, as provided under Orissa Leave Rules, can be considered only when the petitioner/employee concerned seeks leave from the competent authority for certain period under certain circumstances. The authority cannot initiate a proposal from its side in assumption of leave application from the delinquent or employee concerned to treat the period as leave due and admissible affecting the delinquent by way of consuming accrued leave in favour of the employee concerned without any fault on his part. As the authority has come to a conclusion to punish the petitioner only with a minor penalty, the decision of the Page 5 of 9 // 6 // competent authority to place the petitioner under suspension on the allegation of grave misconduct does not appear to be satisfactory, rather it seems that the order of suspension was issued without application of mind or in a routine or mechanical manner. As such, no review of suspension was held, as per the guidelines. Under such circumstances, after concluding the departmental proceeding by imposing minor penalty of stoppage of one increment without cumulative effect, the authority should not have treated the period of suspension in any manner other than the duty affecting the service condition of the petitioner.” Similarly, Hon’ble Apex Court in Para 12 of the reported Judgment in the case of Union of India (supra) has held as follows:- “12. The penalty imposed upon the respondent is an amalgam of minor penalty and major penalty. The respondent has been inflicted with three the tune 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 of Rs 74,341.89p. i.e. Rs 18,585.47p. on account of damage to the Gypsy in 18 (eighteen) equal monthly installments. 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 (i)(a) thereof. The disciplinary authority, therefore, in our opinion acted illegally and without jurisdiction in Page 6 of 9 // 7 // imposing both minor and major penalties by the same order. Such a course of action could not have been taken in law.” xxx xxx xxx 5. Mr. R.N. Mishra, learned AGA does not dispute the ratio decided in the case of BaniBhusan Dash as well as the view expressed by the Hon’ble Apex Court in the case of Union of India. 6. Having heard learned counsel appearing for the Parties and taking into account the materials available on record, it is found that while disposing the proceeding the Petitioner was imposed with a minor punishment i.e. stoppage of two increments without cumulative effect. On the face of such punishment imposed and in view of the decisions as cited supra, the period of suspension should not have been treated as such instead of treating the same as duty. Therefore, this Court is inclined to quash the order so far as it relates to treat the period of suspension as such. While quashing the same, this Court directs the Opp. Party No. 1 to treat the period of suspension as duty and extend the financial benefit as due and admissible in favour of the Petitioner. Such an exercise shall be undertaken and completed by the O.P. No 1 within a period of two (2) months from the date of receipt of this order”. 4.2. Placing reliance on the aforesaid two decisions, it is contended that the order of punishment so far as it relates to treating the period of suspension as leave on credit on the face of the minor punishment of censure imposed on the Petitioner, requires interference of this Page 7 of 9 // 8 // Court and the period of suspension is required to be treated as duty for all purposes. 5. Even though notice of the Writ Petition has been issued since 23.08.2023, but no counter affidavit has been filed as yet. However, it is contended that since the order of punishment passed under Annexure-1 has been confirmed by the appellate authority vide order under Annexure-3 and the same has been passed by giving due opportunity of hearing to the Petitioner all through and in accordance with the rules, no interference is called for. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, it is found that in the proceeding initiated against the Petitioner vide Memorandum dtd.10.12.2018, Opposite Party No.2 being the disciplinary authority while disposing the proceeding vide office
Decision
order dtd.26.09.2022 under Annexure-1, imposed the punishment of censure and while imposing such a punishment the period of suspension was treated as leave on credit. The said order has been confirmed by the appellate authority vide order dtd.28.06.2023 under Annexure-3. 6.1. Placing reliance of the decision in the case of Bani Bhusan Dash so followed in the case of Smita Mohanty as cited (supra), it is the view of this Court Page 8 of 9 // 9 // that while imposing the punishment of censure, which is a minor punishment, the period of suspension could not have been treated as leave on credit, instead of treating the same as duty for all purposes. 6.2. In view of the aforesaid analysis, this Court is inclined to quash the order of punishment so far as it relates to treating the period of suspension as leave on credit. While quashing the punishment of treating the period of suspension as leave on creduit vide the impugned order dtd.26.09.2022 under Annexure-1, further confirmed vide order dtd.28.06.2023 under Annexure-3, this Court directs Opposite Party No.2 to treat the period of suspension as duty for all purposes and extend the benefit as due and admissible in favour of the Petitioner. This Court directs Opposite Party No.2 to complete the entire exercise within a period of three (3) months from the date of receipt of this order. 7. Accordingly, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 30th October, 2025/Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2025 18:45:28 Page 9 of 9