The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAC) No.1816 of 2018 Rabindra Prasad Mishra …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 03.03.2023 Order No 13. 1.This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. Satyajit Behera, learned counsel for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. The present writ petition has been filed inter alia with the following prayer:- “Under the above mentioned facts and circumstances of the case this Hon’ble Court may graciously be pleased to set aside the order No. 28908 dtd.11.10.2018 directing the Opp. Parties to disburse the salary of the differential salary of the the post of Agricultural Officer Petitioner against w.e.f.21.04.2006 in scale of pay of Rs.4750-125-7500 with usual D.A. And further be pleased to pay interest on differential amount of salary at prevailing bank rate. And/or pass any other order/orders as this Hon’ble Court may deem fit and proper; And allow this original application with cost.”
Legal Reasoning
4. It is contended that even though the Petitioner was eligible for his promotion w.e.f.21.04.2006, but he was not given such promotion illegally and arbitrarily by the Opp. Parties. However, vide order dtd.11.10.2018 the Petitioner though was allowed the benefit of // 2 // promotion w.e.f.21.04.2006, but the period from 21.04.2006 to 28.02.2018 i.e. the date of retirement of the Petitioner has been treated as on notional basis. It is contended that since for no fault of the Petitioner, he was deprived to get the benefit of promotion w.e.f.21.04.2006 to 28.02.2018, the Petitioner is entitled to get the financial benefit for the said period and it should not have been made on notional basis. 5. Mr. Balabantaray, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that even though the Petitioner was found eligible to be extended with the benefit of promotion as per the DPC recommendation to the post of Agriculture Officer w.e.f.21.04.2006, but the said benefit was not given because of the pendency of the proceeding against the Petitioner vide proceeding No. 1471 dtd.21.07.2004. Accordingly, the case of the Petitioner was kept in a sealed cover. Subsequently, in the DPC held on27.12.2006 the case of the Petitioner once again was not recommended and it was kept in a sealed cover due to pendency of the Proceeding. 5.1. Though the proceeding initiated against the Petitioner on 21.07.2004 was disposed of vide order dtd.18.07.2007 with imposition of punishment of censure and the DPC held on 30.07.2007 recommended the case of the Petitioner for his promotion, but basing on the letter issued by the Collector, Kandhamal on 06.01.2006 the matter was held up. But, by the time basing on the DPC held on 30.07.2007, benefit of promotion was extended in favour of eligible persons to the post of Agriculture Officer vide order dtd.18.02.2008, but the Petitioner was not given such promotion as another proceeding was already initiated against the Petitioner on 10.09.2007. Page 2 of 8 // 3 // 5.2. It is contended that in between when the Petitioner approached the Tribunal in O.A. No. 1499 of 2011 with a prayer to direct the Opp. Parties to consider his case for promotion and the Tribunal vide order dtd.16.07.2012 directed the Opp. Parties to consider the same, but the claim of the Petitioner was rejected vide order dtd.26.08.2012 because of the pendency of the proceeding against the Petitioner. The Petitioner challenging the order dtd.26.08.2012 approached the Tribunal in O.A.No.366 of 2014. 5.3. It is also contended that the Proceeding initiated against the Petitioner on 10.09.2007 when was disposed of vide orderdtd.01.02.2013 with imposition of punishment of stoppage of three (3) annual increments with cumulative effect, the Petitioner challenging such order, preferred an appeal. But, when the Appellate Authority vide his order dtd.12.12.2013 rejected the appeal, the Petitioner challenging the order dtd.01.02.2013 as well as 12.12.2013 and the very initiation of the proceeding dtd.10.09.2007 approached the Tribunal once again in O.A. No. 07 of 2014. 5.4. It is contended that vide order dtd.12.03.2015 when the Tribunal declined to interfere with the prayer for directing the Opp. Parties to extend the benefit of promotion as prayed in O.A. No. 366 of 2014, the Petitioner challenging the said order, approached this Court in W.P.(C) No. 7111/2015. But, in the meantime O.A.
Decision
No. 07 of 2014 so filed by the Petitioner was disposed of vide order dtd.23.09.2015. The Tribunal while disposing the matter, quashed the order dtd.01.02.2013 and 12.12.2013 and directed the Opp. Parties to conclude the proceeding afresh within a period of four (4) months or else, the proceeding will be treated as quashed and the Petitioner will be entitled to get all the service and financial benefits. Page 3 of 8 // 4 // However, when the Petitioner was issued with a notice on 25.04.2016 to take part in the proceeding in terms of the order passed by the Tribunal on 23.09.2015, the Petitioner once again approached the Tribunal challenging such action of the Opp. Parties in issuing notice to participate in the enquiry in O.A. No. 868 of 2016. 5.5. It is contended that O.A. No. 868 of 20116 was disposed of by the Tribunal vide order dtd.27.03.2017, wherein the direction issued to the Petitioner to participate in the proceeding vide order dtd.25.04.2016 was not only quashed, but also the further continuance of the proceeding dtd.10.09.2007 was held as not sustainable, and accordingly it was quashed. The Tribunal further directed to extend all the consequential service and financial benefits in favour of the Petitioner as has been ordered on 23.09.2015 in O.A. No. 07 of 2014. 5.6. It is further contended that W.P.(C) No. 7111 of 2015 was also disposed of in the meantime vide order dtd.24.04.2017. This Court while disposing the writ petition, directed the Opp. Parties to take consequential steps in view of the order passed by the Tribunal on 23.09.2015 in O.A. No.7 of 2014 and order dtd.27.03.2017 passed in O.A. No.868 of 2016. 5.7. In view of such orders passed by the Tribunal as well as by this Court the Petitioner was extended with the benefit of promotion w.e.f.21.04.2006 on adhoc basis vide order dtd.23.04.2018 under Annexure-3. However, challenging the order passed by this Court on 24.04.2017 in W.P.(C) No. 7111 of 2015, the Opp. Parties approached the Hon’ble Apex Court in SLP (C) No. 20775 of 2018. Hon’ble Apex Court when dismissed the SLP vide order dtd.24.07.2018, the Petitioner was ultimately extended with the Page 4 of 8 // 5 // benefit of promotion w.e.f.21.04.2006 in the scale of pay as due and admissible from time to time vide order dtd.11.10.2018 under Annexure-4. But since the Petitioner was not given promotion because of the initiation of the proceeding against him and the continuance of the proceeding before the Tribunal as well as before this Court and Hon’ble Apex Court, the benefits as due and admissible in favour of the Petitioner w.e.f.21.04.2006 was decided to be extended on notional basis. 5.8. Mr. Balabantaray accordingly contended that since the Petitioner was not given the benefit of promotion even though found eligible because of the pendency of the proceedings, no illegality or irregularity has been committed by the Opp. Parties in directing to fix the pay of the Petitioner on notional basis w.e.f. the date of his promotion. It is, however, contended that vide the said order under Annexure-4 the Petitioner was made entitled to get the consequential pensionary benefits. 6. Having heard learned counsel appearing for the Parties and after going through the materials available on record as well as the submissions made by the learned counsel appearing for the Parties, it is not disputed that even though the Petitioner was found eligible to get the benefit of promotion w.e.f.21.04.2006, but he was not extended with the said benefit w.e.f.21.04.2006 because of the pendency of the proceeding vide Proceeding No. 1471 dtd.21.07.2004. The proceeding dtd.21.07.2004 though was disposed of on 18.07.2007 and again the Petitioner was found eligible to get the benefit of promotion by the DPC held on 30.07.2007, but by the time the recommendation of the DPC was extended on 18.02.2008, another proceeding was already initiated on 10.09.2007. Page 5 of 8 // 6 // In the proceeding initiated on 10.09.2007 when the punishment was imposed vide order dtd.01.02.2013 and the said order was confirmed in appeal vide order dtd.12.12.2013, the Petitioner challenging both the orders as well as the initiation of the proceeding, approached the Tribunal in O.A. No. 7 of 2014. The Tribunal vide order dtd.23.09.2015 disposed of the O.A. with the following order:- “10. Thus, from the above discussions, we find that the order of punishment vide Annexure-14 and order of appellate authority vide Annexure-16 are vitiated being violative of the mandatory provisions as envisaged in the OCS (CC&A) Rules, 1962 and hence quashed and consequently, the proceeding is remitted to the disciplinary authority to proceed with the inquiry afresh from the stage of supplying of documents required by the applicant and proceed with the inquiry in accordance with law and conclude the same within a period of four months from the date of receipt of a copy of this order, failing which, the proceeding shall be deemed to have been quashed and the applicant will be entitled to all consequential service and financial benefits. At the same time, the applicant is directed to con-operate the disciplinary authority for conclusion of the inquiry within the stipulated period.” 6.1. It is found from the records that without concluding the proceeding within a period of four (4) months so directed by the Tribunal in its order dtd.23.09.2015, when vide order dtd.25.04.2016 the Petitioner was directed to take part in the enquiry, the Petitioner challenging the same approached the Tribunal in O.A. No. 868 of 2016. The Tribunal relying on the order passed on 23.09.2015, disposed of the O.A. No. 868 of 2016 vide order dtd.28.03.2017 with the following direction: Page 6 of 8 // 7 // “5. Considering all such aspects & in view of the earlier order of the Tribunal with due regard to the decision of the Hon’ble High Court (supra), I am of the considered view that the impugned order dated 25.04.2016 under Annexure- 13 along with the decision for further continuance of the dept. proceeding is not sustainable and is liable to be quashed and is hereby quashed. 6. In the result, the O.A. is allowed and the respondents are directed to extend all the consequential service and financial benefits in favour of the applicant as has been ordered on 23.09.2015 in O.A. No. 7/2014 by treating the so called departmental proceeding as non-existence.” 6.2. It is also found from the records that on the face of the order passed by the Tribunal on 23.09.2015 as well as 27.03.2017 and the order passed by this Court on 24.04.2017 in W.P.(C) No. 7111 of 2015, the Petitioner only vide order dtd.28.02.2018 under Annexure-3 was given promotion w.e.f.21.04.2006 on adhoc basis. Only after dismissal of the SLP by the Hon’ble Apex Court on 24.07.2018 which was filed by the State-Opp. Parties challenging the order dtd.24.04.2017 of this Court, the Petitioner was given the benefit of promotion w.e.f.21.04.2006 vide order dtd.11.10.2018 under Annexure-4. In view of such action of the Opp. Parties, it is the view of this Court that since the order dtd.23.09.2015 passed in O.A. No. 07 of 2014 was never assailed by the Opp. Parties, they are bound to comply with the said order. Instead of complying the same, when the Petitioner was issued with a notice to appear and take part in the proceeding beyond the period of four (4) months on 25.04.2016, the said action of the Opp. Parties was quashed by the Tribunal vide its order dtd.27.03.2017 in O.A. No. 868 of 2016. This Court in the meantime vide order dtd.24.04.2017 in W.P.(C) No. 7111 of 2015 Page 7 of 8 // 8 // also directed the Opp. Parties to comply with the order passed on 23.09.2015 and 27.10.2017. Therefore, taking into account the entirety of the facts and the admitted in-action of the Opp. Parties in not complying with the order dtd.23.09.2015, it is the view of this Court that the direction issued in order dtd.11.10.2018 under Anenxure-4 to treat the entire period from 21.04.2006 to 28.02.2018 i.e. till the date of retirement of the Petitioner on notional basis is not just and proper. 6.3. However, taking into account the fact that the Petitioner was facing the proceeding starting from 21.04.2006, it is the view of this Court that the Petitioner is not entitled to get the financial benefit from 21.04.2006. However, in view of the specific order passed by the Tribunal on 23.09.2015 and subsequent order passed on 27.03.2017 as well as by this Court on 24.04.2017, this Court deems it just and proper to hold that the Petitioner is entitled to get the financial benefit w.e.f23.09.2015. While holding so, this Court directs the Opp. Parties more particularly Opp. Party No. 2 to extend the financial benefits in favour of the Petitioner as due and admissible for the period from 23.09.2015 to 28.02.2018. The benefit so directed be extended within a period of two (2) months from the date of receipt of this order. 7. The writ petition is disposed of with the aforesaid observation and direction. However, there shall be no order as to costs. (Biraja Prasanna Satapathy) Judge Sneha Page 8 of 8