The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C(OA) No.832 of 2018 T. Rajesh Kumar …. Petitioner Mr. N. Rath, Advocate State of Odisha and Others -versus- …. Opposite Parties Mr. M.K. Balabantaray, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No. ORDER 05.08.2024 03. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2.
Legal Reasoning
Heard learned counsel for the parties. 3. The Petitioner has filed the present Writ Petition inter alia challenging order of punishment passed by the Opp. Party No.4 vide order dated 05.11.2015 under Annexure-9, further confirmed by the Appellate Authority-O.P. No.2 vide order dated 14.09.2016 under Annexure-10 and order dated 10.12.2017, so passed by the Revisional Authority- O.P. No.1 under Annexure-11. 4. Learned counsel for the petitioner contended that in the proceeding initiated against petitioner under Annexure-4, petitioner duly participated in // 2 // the enquiry and after completing all the formalities, O.P. No.4 as the Disciplinary Authority while disposing the proceeding imposed the following punishment:- “I award him the proposed punishment of “a punishment of “ONE BLACK MARK” carrying equal value of forfeiture of increment for a period of six month without cumulative effect” and the suspension period of 216 days w.e.f. 18.02.2013 to 22.09.2013 will be treated as such.” 4.1. Learned counsel for the Petitioner contended that while awarding the punishment of one black mark carrying equal value of forfeiture of increment for a period of 6 (six) months without cumulative effect, the period of suspension from 18.02.2013 to 22.09.2013 could not have been treated as such as no such punishment is prescribed under PMR-824. PMR-824 reads as follows:- “824. Description of departmental punishments.- The following punishments which are sanctioned u/s 7 of Act. V of 1861 may be inflicted departmentally on a police officer of and below the rank of Inspector :-- (a) Dismissal, (b) Removal, [b-1]- Compulsory retirement; and] (c) Reduction in rank, (d) Reduction in time-scale. (e) Withholding of the next increment for a specific offence, with or without corresponding postponement of subsequent increments, (f) Black mark or marks, Page 2 of 7 // 3 // (g) Removal from any office of distinction or specific emolument, (h) Censure, (i) Warning, (j) Confinements to quarters for a period not exceeding 15 days, (k) punishment drill, and (l) Extra guard or other duty : Provided that the punishments mentioned in Clauses (i) to (m) shall not be imposed on any officer of or above the rank of Sub- Inspector nor the punishment mentioned in (l) on any Assistant sub-inspector, Constable of Ordinary Reserve and Havildar of Armed Reserve. Punishments mentioned in Clauses (a) to (h) are classed as major and the rest are minor. All major punishments and censure shall in the service book other minor punishments may be so entered if the officer awarding the punishment so directs.” be entered
Legal Reasoning
4.2. It is contended that since no such punishment to treat the period of suspension as such is prescribed under PMR-824, such an order of punishment could not have been imposed by the Disciplinary Authority-Opp. Party No.4. It is further contended that even though petitioner challenging the order of punishment, approached the Appellate Authority as well as the Revisional Authority but both the authorities vide order under Annexure-10 and 11 confirmed the order of punishment so far as it relates to treating the period of suspension as such. Page 3 of 7 // 4 // 4.3. In support of his aforesaid submission, Mr. N. Rath, learned counsel for the Petitioner relied on a decision of this Court so passed on 22.12.2022 in W.P.C.(OAC) No.2433 of 2016. This Court in Para 6.1 & 6.2 of the said order has held as follows:- Hence, “6.1. This Court also finds from the materials available on record that when the order passed by the learned Tribunal in O.A. No.2494(C) of 2014 under Annexure-6 was not complied with by the the petitioner present Opposite Party No.1, initiated a Contempt Proceeding in C.P. No.15(C) /2015. Learned Tribunal vide its order dated 26.03.2015 under Annexure-8 when directed for personal appearance of the Opposite Party No.1, the order of punishment was passed on 08.04.2015 under Annexure-9. the allegation of mala fide alleged against the Opposite Party No.1 cannot be brushed aside by this Court. This Court also finds that the punishment to treat the period of suspension as such, is not prescribed under the PMR and the said fact has not been disputed by the opposite parties while filing their counter. Pursuant to the order passed by this Court on 17.12.2021, learned Additional Standing Counsel brought to the notice of the Court, the information provided by the Opposite Party No.1 with regard to treating the period of suspension as such, as provided under PMR. The information provided by Opposite Party No.1 on 30.08.2022, nowhere indicates that such order of punishment the period of to suspension as such is provided under PMR. The information provided by Opposite Party No.1 on 30.8 .2022 is reproduced herein:- treat “With reference to the letter and subject cited above, it is to submit that C/497 Santosh Kumar Sahoo was awarded a “Black Mark” being found guilty in connection with Puri District Proceeding No.24/2010 for dereliction of duty and disobedience of Order and his period of suspension is treated “as such” As per PMR – 840 (a), suspension shall not be awarded as a specific punishment. However Black Mark is a Major Punishment as per PMR 840(a). Hence, suspension period cannot be treated as a Black Mark.” Page 4 of 7 // 5 // that the prosecution 6.2. Therefore, this Court after going through the materials available on record is of the prima facie though has not view succeeded in proving the charges against the petitioner, but the Opposite Party no. 1 passed the order of punishment, one such order of punishment though is not provided under PMR. The appellate authority without considering the grounds of appeal rejected the same vide the impugned order under Annexure-11. Hence, this Court is inclined to quash the order under Annexure-9 & 11 and while quashing the same, this Court directs Opposite Party NO. 1 to consider the claim of the Petitioner for his promotion to the post of Lance Naik, he is otherwise eligible.” 5. Learned Addl. Govt. Advocate on the other hand while supporting the impugned order made his submission basing on the stand taken in the counter affidavit. It is contended that taking into account the nature of charge framed against the petitioner in the proceeding initiated under Annexure-5, O.P. No.4 being the Disciplinary Authority by following due procedure of law and by giving due opportunity of hearing all through imposed the punishment vide order dated 05.11.2015 under Annexure-9. 5.1. The Appellate Authority as well as the Revisional Authority on due consideration of the petition filed by the petitioner also confirmed the order of punishment originally passed by the O.P. No.4. It is contended that since the order of punishment has been confirmed by the Appellate Authority as well as Revisional Authority and such Page 5 of 7 // 6 // an order of punishment has been passed taking into account the charge framed against the petitioner, no illegality or irregularity can be found with regard to punishment imposed on the petitioner. 6. Having heard learned counsel for the parties and considering the submissions made, this Court finds that in the proceeding initiated against the petitioner under Annexure-5, O.P. No.4 being the Disciplinary Authority imposed the punishment of One Black Mark carrying equal value of forfeiture of increment for a period of 6 (six) months without cumulative effect. While imposing such punishment on petitioner, O.P. No.4 also directed to treat the period of suspension as such. Placing reliance on the provisions contained under PMR-824 and the decision of this Court so passed on 22.12.2022 in W.P.C(OAC) No.2433 of 2016, this Court is of the view that since no such punishment to treat the period of suspension as such is prescribed under PMR-824, no such order of punishment could have been imposed by the Disciplinary Authority-O.P. No.4 vide order dated 05.11.2015 under Annexure- 9, so confirmed by the Appellate Authority and the Revisional Authority vide orders issued under Annexure-10 and 11. While interfering with that part of the order, this Court is inclined to quash the order of punishment, so far as it relates to treating Page 6 of 7 // 7 // the period of suspension as such. While quashing the same, this Court directs O.P. No.4 to treat the period of suspension as duty and extend the benefit as due and admissible in favour of the petitioner. This Court directs O.P. No.4 to complete the entire exercise as directed, within a period of 3 (three) months from the date of receipt of this order. 7.
Decision
The Writ Petition is accordingly disposed of. (Biraja Prasanna Satapathy) Judge Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Aug-2024 19:05:04 Page 7 of 7