The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) No.3309 of 2018 R. Padmaja Petitioner Mr. R.C. Swain, Advocate on behalf of Mr. B. Mahapatra, Advocate -versus- D.G. And I.G. of Police, CTC & Ors. ..... Opposite Parties Mr. B. Mohanty, AGA THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY CORAM:
Decision
ORDER 05.08.2024 Order No. 02 1. This matter is taken up through hybrid mode. 2. Heard Mr. R.C. Swain, learned counsel appearing for the Petitioner on behalf of Mr. B. Mahapatra and Mr. B. Mohanty, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. Petitioner has filed the present writ petition inter alia challenging order of punishment passed vide order dtd.01.07.2015 under Annexure-9 of Opp. Party No. 3, so confirmed vide order dtd.02.07.2016 of Opp. Party No. 2 under Annexure-10 and vide order dtd.13.09.2017 of Opp. Party No. 1 under Annexure-11. 4. Learned counsel for the Petitioner contended that in the proceeding initiated against the Petitioner, Petitioner was imposed with the following punishment by the disciplinary authority-Opp. Party No. 3 vide order dtd.01.07.2015 under Annexure-9:- “Hence as proposed she awarded One Black Mark and the unauthorized absent period from 19.07.2012 A.M. to 02.03.2013 P.M. i.e. 227 days treated as No Pay.” Page 1 of 5. 4.1. Learned counsel for the Petitioner contended that while awarding the punishment of one black mark, period of unauthorized absent was treated as No Pay by Opp. Party No. 3. It is contended that since no such punishment to treat the period of unauthorized absent as No Pay is prescribed under PMR 824, such a punishment could not have imposed while imposing the punishment of one black mark vide order under Annexure-9. 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 subsequent corresponding postponement of or without increments’ (f) Black mark or marks, (g) Removal from any office of distinction or specific emolument, (h) Censure, (i) Warning, (j) Confinement to quarters for a period not exceeding 15 days (k) Punishment drill, and (l) Extra guard or fatigue duty: Provided that the punishments mentioned in Clauses (i) to (m) shall not be imposed on any officer of on 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 be entered in the service book other minor punishments may be so entered if the officer awarding the punishment so directs.” Page 2 of 5. 4.2. It is contended that challenging the order of punishment so passed under Annexure-9, Petitioner when preferred an appeal, the appellate authority-Opp. Party No. 2 rejected the appeal vide order dtd.02.07.2016 under Annexure-10. The revision filed against the Petitioner was also rejected by Opp. Party No. 1 vide order dtd.13.09.2017 under Annexure-11. 4.3. It is contended that since no such punishment under PMR 824 is prescribed to treat the period of unauthorized absent as No Pay, the same is not sustainable in the eye of law. But the disciplinary authority as well as the appellate and revisional authority never take into consideration that aspect while passing the impugned orders in question. 4.4. In support of his aforesaid submission, 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 6.2 of the said order has held as follows:- “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 present Opposite Party No.1, the petitioner 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. Hence, 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 Page 3 of 5. on 30.08.2022, nowhere indicates that such order of punishment to treat the period of suspension as such is provided under PMR. The information provided by Opposite Party No.1 on 30.8 .2022 is reproduced herein. “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.” 6.2. Therefore, this Court after going through the materials available on record is of the prima facie view that the prosecution though has not succeeded in proving the charges against the petitioner, but the Opposite Party No. 1 passed the 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. Even though notice of the writ petition has been issued since 01.02.2019, but no counter affidavit has been filed as yet. However, it is contended that since the order of punishment passed by the disciplinary authority has been confirmed by the appellate authority and revisional authority, no interference is called for. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that while disposing the proceeding vide order dtd.01.07.2015 under Annexure-9, Opp. Party No. 3 as the disciplinary authority while Page 4 of 5. imposing the punishment of one black mark, directed to treat the period of unauthorized absent as No Pay. The said order of punishment has been confirmed by the appellate authority vide order under Annexure-10 and by the revisional authority vide order under Annexure-11. 6.1. Since no such punishment to treat the period of unauthorized absent as No Pay is prescribed under PMR 824, placing reliance on the said provision and the decision as cited (supra), this Court is inclined to quash the order of punishment so far as it relates to treating the period of unauthorized absent as No Pay while upholding the order of punishment so far as it relates to imposition of one Black mark. While quashing the said order, this Court directs Opp. Party No. 3 to treat the period of unauthorized absent as leave due and admissible and extend the benefit accordingly in favour of the Petitioner 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: 07-Aug-2024 19:18:04 Page 5 of 5.