The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OA) No.99 of 2018 Prafulla Kumar Acharya ..... Petitioner Mr.N. Rath, Advocate State of Odisha&Ors. -versus- ..... CORAM:
Legal Reasoning
Opposite Parties Mr.S. Jena, AGA THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY
Decision
ORDER 02.07.2024 Order No.02 1. This matter is taken up through hybrid mode. 2. Heard Mr.N. Rath, 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 impugned order dated 21.12.2017 as at Annexure-6 and direct the respondents to regularize the period of suspension of the applicant from 13.04.2013 to 20.05.2015 as a period of suspension of the applicant from 13.04.2013 to 20.05.2015 as a period spent on duty for all practical purposes, but limiting the financial benefits to the subsistence allowance already received him instead of duty pay and allowances during the suspension period. ii. To grant the applicant all consequential service and financial benefits. iii. To grant any other relief(s) to the applicant.” Page 1 of 5. 4. Learned counsel for the Petitioner contended that in the proceeding initiated against the Petitioner vide Memorandum dtd.08.11.2013 under Annexure-1, Opp. Party No. 1 while disposing the same, imposed the punishment of stoppage of one increment without cumulative effect. But while imposingsuch punishment, which is in the nature of a minor penalty, Opp. Party No. 1 directed to treat the period of suspension as leave due. It is contended that since punishment of stoppage of one increment without cumulative effect is in the nature of a minor penalty, in view of the decision of this Court rendered in the case of BaniBhusan Dash Vs. State of Odisha&Ors. (W.P.(C) No. 7635 of 2019) vide Judgment dtd.28.10.2021, the direction to treat the period of suspension as leave due is not permissible and not sustainable in the eye of law. 4.1. It is also contended that by following the decision in the case of BaniBhusan Dash, this Court in the case of Dr.SmitaMohanty vs. State of Odsiha&Ors. (W.P.C.(OA) No. 2585 of 2016) vide order dtd.05.07.2023 held the Petitioner therein to get the benefit of duty pay for the period Petitioner therein remained under suspension. The view expressed by this Court in Para 4.1, 5 & 6 of the order dtd.05.07.2023 in the case of Dr.SmitaMohanty is reproduced hereunder:- “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:- “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- Page 2 of 5. 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 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 Page 3 of 5. 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 in illegally and without opinion acted imposing both minor and major penalties by the same order. Such a course of action could not have been taken in law.” jurisdiction 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. 5. Mr. S. Jena, learned Addl. Govt. Advocate does not dispute the ratio decided by this Court in the case of BaniBhusan Dash so followed by this Court in the case of Dr.SmitaMohanty as cited (supra). 6. Having heard learned counsel appearing for the Parties and placing reliance on the decisions as cited (supra), this Court is inclined to interfere with the impugned order of punishment so Page 4 of 5. passed by Opp. Party No. 1 vide order dtd.21.12.2017 under Annexure-6 so far as it relates to treating the period of suspension as leave due. While interfering with the said order of punishment, this Court in inclined to quash the same. While quashing the same, this Court directs Opp. Party No. 1 to treating the period of suspension for the period from 13.04.2013 to 20.05.2015 as duty for all purposes and extend the benefit as due and admissible to the Petitioner. Such a fresh exercise as directed be undertaken and completed within a period of three (3) months from the date of receipt of this order. 7. The writ petition is disposed of accordingly. Sneha (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Jul-2024 10:47:38 Page 5 of 5.