The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) No.693 of 2018 Rabindra Kumar Sethy ..... Petitioner Mr. G. Sinha, Advocate State of Odisha & Ors. ..... -versus- Opposite Parties Mr. Jena, AGA THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY CORAM: ORDER 06.09.2024 Order No. 04 1. This matter is taken up through hybrid mode.
Legal Reasoning
4.8. Similarly, this Court in Para 10 of the Judgment in the case of Bani Bhushan Dash has held as follows:- the period of suspension as “10. Coming to the 3rd punishment, as imposed in the impugned order dated 15.09.2018 under Annexure-8, i.e. treating 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 not empowered to take a decision to treat the period of suspension as leave due and Page 4 of 8. 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 the duty affecting petitioner.” the service condition of 4.9. Not only that learned counsel for the Petitioner also relied on another decision of this Court so passed in the case of Bijaya Kumar Routray vs. Registrar (Administration), Orissa High Court, 2005 (I) OLR 685. In the said reported Judgment this Court on a similar issue held that if the proceeding is dropped, the period of suspension cannot be treated as such. 4.10. Placing reliance on the aforesaid decisions, learned counsel for the Petitioner contended that since the proceeding initiated against the Petitioner was dropped vide order dtd.13.05.2016 under Annexure-8, the period of suspension could not have been treated as such and it should have been treated as duty for all purposes and Page 5 of 8. the absence period from 28.02.2015 to 04.06.2015 should have been regularized in accordance with law. It is accordingly contended that the impugned order passed by the appellate authority under Annexure-10 is not sustainable in the eye of law and requires interference of this Court. 5. Mr. S. Jena, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit so filed by the Opp. Parties. It is the main contention of the learned Addl. Govt. Advocate that against the order of punishment passed under Annexure-8, when the Petitioner preferred an appeal, the appellate authority with due consideration of the same passed a modified order vide order dtd.22.08.2017 under Annexure-10. It is also contended that the order passed by the appellate authority under Annexure-10, has already been implemented with passing of an order on 13.10.2017 under Annexure-A/3. Since the order passed by appellate authority under Annexure-10, has already been complied with vide order dtd.13.10.2017, unless the order dtd.13.10.2017 is challenged by the Petitioner, no fruitful order can be passed by this Court. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioner while continuing in service, he remained on medical leave w.e.f.28.02.2015. But on the ground that Petitioner’s leave is unauthorized, he was referred to the Medical Board on 04.06.2015. The Medical Board after due examination of the Petitioner accepted the view of the Petitioner that he was suffering from illness and accordingly submitted a report on 04.06.2015 under Annexure-7. In terms of the said report of the Medical Board under Annexure-7, Page 6 of 8. Petitioner joined on 04.06.2015. But subsequently on similar allegation Petitioner was placed under suspension vide order dtd.05.12.2015 under Annexure-2 and the said order was also withdrawn vide order dtd.29.04.2016. It is also found that the proceeding initiated against the Petitioner for such unauthorized absence from 28.02.2015 to 04.06.2015, was dropped vide order dtd.13.05.2016 under Annexure-8. 6.1. Placing reliance on the decisions as cited (supra), this Court is of the view that since the proceeding initiated against the Petitioner was dropped vide order under Annexure-8, period of suspension could not have been treated as such. Therefore, this Court is inclined to quash the order passed in that regard by the appellate authority vide order dtd.22.08.2017 under Annexure-10. While quashing the same, this Court directs Opp. Party No. 2 to treat the said period as duty for all purposes. Similarly, the period of absence from 28.02.2015 to 04.06.2015 as per the considered view of this Court is required to be regularized by sanctioning leave as due and admissible. Therefore, this Court is also inclined to quash office order dtd.22.08.2017 so passed by Opp. Party No. 1 under Annexure-10 in that regard. While quashing order dt.22.08.2017, this Court directs Opp. Party No. 2 to treat the period of suspension as duty and extend the benefit as due and admissible. Similarly, the period from 28.02.2015 to 04.06.2015 be treated as leave due and admissible with passing of an appropriate order in that regard. This Court directs Opp. Party No. 2 to pass a detailed order as directed within a period of six (6) weeks from the date of receipt of this order and extend the benefit as due and admissible to the Petitioner within a further period of six (6) weeks. Page 7 of 8.
Arguments
2. Heard Mr. G. Sinha, learned counsel appearing for the Petitioner and Mr. S. Jena, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. Petitioner has filed the present writ petition inter alia with the following prayer:- “(i) To quash the suspension order dated 05.12.2015 (Annexure-2) passed by the Respondent No. 3; (ii) To quash the letter dated 13.05.2016 (Annexure-8) passed by the Respondent No. 2; (iii) To quash the letter dated 22.08.2017 (Annexure-10) passed by the Respondent No. 1 to the extent that the suspension period from 05.12.2015 to 29.04.2016 be treated as Extra Ordinary leave with no leave salary; (iv) To quash the letter of rejection dated 04.12.2017 (Annexure-11) passed by the Respondent No. 1; (v) And to direct the Respondents to treat the period as duty from 05.12.2015 to 29.04.2016 and release the salary of the Applicant; Page 1 of 8. (vi) And to direct the Respondents to release the salary from 05.06.2015 to 05.12.2015 which was not disputed by the Respondents; (vii) And pass such other order (s)/direction (s) as may be deemed fit and proper in the interest of justice;” 4. Learned counsel for the Petitioner contended that the proceeding in question was initiated vide GRP-Rourkela District Proceeding No. 1 dtd.21.03.2016 on the ground that Petitioner remained on unauthorized absence for the period from 28.02.2015 to 04.06.2015. 4.1. Learned counsel for the Petitioner contended that because of his illness he remained on medical leave for the period in question and on being referred to the Medical Board, the Medical Board in its proceeding dtd.04.06.2015 also accepted the illness of the Petitioner vide Annexure-7. Basing on such report of the Medical Board Petitioner was allowed to join on 04.06.2015 after remaining on leave for the period from 28.02.2015 to 04.06.2015. 4.2. It is also contended that prior to initiation of the proceeding vide charge memo dtd.21.03.2016 under Annexure-4 series Petitioner was placed under suspension vide order dtd.05.12.2015 under Annexure-2. Such order of superannuation was subsequently withdrawn vide office order dtd.29.04.2016. 4.3. It is contended that in the proceeding initiated against the Petitioner vide charge memo dtd.21.03.2016, Opp. Party No. 2 as the disciplinary authority though dropped the proceeding vide order dtd.13.05.2016, but while exonerating the Petitioner from the charges by dropping the proceeding, not only the period of suspension was treated as such, but also the absence period from 28.02.2015 to 04.06.2015 was treated as leave without pay. Page 2 of 8. 4.4. Challenging such order of punishment on the face of the dropping of the proceeding by Opp. Party No. 2, Petitioner filed an appeal before Opp. Party No. 1. Opp. Party No. 1 in consideration of the same while modifying the impugned order of punishment, passed a fresh order on 22.08.2017 to the following effect:- “Unauthorized absence period on medical ground from 28.02.2015 to 04.06.2015 be treated as leave (extraordinary leave/commuted leave) and suspension period from 05.12.2015 to 29.04.2016 be treated as extraordinary leave with no leave salary.” 4.5. Learned counsel for the Petitioner contended that it is not disputed that Petitioner was on medical leave for which he was referred to the Medical Board and the Medical Board while submitting the report under Annexure-7, also accepted the suffering of the Petitioner for the period in question. The Medical Board while accepting such illness of the Petitioner submitted the report under Annexure-7 on 04.06.2015 and in terms of the said report Petitioner was allowed to join on 04.06.2015 also. 4.6. Therefore, the period from 28.02.2015 to 04.06.2015, while dropping the proceeding, could not have been treated as leave (extraordinary/commuted) by the appellate authority vide order dt.22.08.2017 under Annexure-10. Similarly, since the proceeding was dropped against the Petitioner so initiated vide order dtd.13.05.2016 under Annexure-8, the period of suspension could not have been treated as such in view of the decision of the Apex Court in the case of Union of India & Anr. Vs. S.C. Parashar, (2006) 3 SCC 167 and decision of this Court in the case of Bani Bhusan Dash Vs. State of Odisha & Ors.(W.P.(C) No. 7635 of 2019) vide Judgment dtd.28.10.2021. Page 3 of 8. 4.7. Hon’ble Apex Court in Para 12 of the Judgment in the case of S.C. Parashar 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 instalments. 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 imposing both minor and major penalties by the same order. Such a course of action could not have been taken in law.”
Decision
7. With the aforesaid observation and direction, the writ petition is disposed of. Sneha (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 12-Sep-2024 11:15:28 Page 8 of 8.