The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) No.4013 of 2016 Suresh Kumar Grahacharya …. Petitioner Mr. Subrata Mishra, Advocate -versus- Principal Secretary to Government of Odisha, Transport & Commerce Department & another …. Opposite Parties Mr. A.R. Dash, AGA CORAM: JUSTICE MURAHARI SRI RAMAN Order No. 02.
Decision
ORDER 09.02.2024 This matter is taken up through hybrid mode. 2. The petitioner has filed Original Application seeking for following reliefs:- “The applicant prays for the following reliefs:- i) To quash the order dt.31.3.2006 passed by the Respondent No.2 under Annexure-3. ii) To quash the order dt.25.10.2016 passed by the Respondent No.1 under Annexure-5 as the dismissal order in case of a Class- shockingly employee IV disproportionate. is iii) To direct the Respondents to convert the to compulsory order of dismissal retirement and the retiral dues may be sanctioned and disbursed in favour of the applicant from the date of compulsory retirement.” Page 1 of 5 // 2 // On abolition of the Administration Tribunal, the matter has been transferred to this Court and the Original Application has been renumbered as WPC(OAC) No.4013 of 2016. 3. The petitioner, joined as Helper on 04.12.1981 in the Office of the Director, Printing, Stationary & Publication, Odisha in Madhupatna, Cuttack, faced Disciplinary Proceeding initiated against him vide Departmental Proceeding No.2/2000 on the ground that he remained absent from duty unauthorizedly for a long period of time. Based on enquiry report, he was dismissed from service on 31.03.2006. His appeal/representation before the Principal Secretary to Government, Odisha Transport & Commerce Department- cum-Appellate Authority stood rejected on 25.10.2016. Challenging the order of the appellate authority, the petitioner has filed the aforesaid Original Application / writ petition. 4. Notice being issued, the Opposite Party No.2- Commissioner-cum-Director, Printing, Stationary and Publication, Government Press filed counter affidavit on 02.12.2022, inter alia stating as follows:- that, “7. That in reply to the averments made in Paragraph-6.3 of the Writ Petition, it is humbly submitted the Inquiry report on D.P. No.02/2000 against Sri Grahacharya was submitted on 31.10.2005 to the Disciplinary Authority. It is revealed from the Inquiry Report that Sri Grahacharya was on leave for 3847 days (10.53 Yrs.) during the year 1992 to 2004. Further he also admitted during enquiry that his unauthorized absence from duty w.e.f. 18.11.2002 is still continuing. It is humbly submitted that basing on the Inquiry Report, 2nd show cause notice bearing letter No:5100/PSP., dt.29.11.2005 was served to Grahacharya on dt.1.12.2005 wherein it was Page 2 of 5 // 3 // proposed to dismiss him from Govt. service and to submit his written he was called upon statement of defence and then he submitted his written statement of defence praying to allow 7 days more time to join in his duty with fit Medical Certificate. But he failed to submit the same and did not join duty till 27.03.2006. Since he was given reasonable opportunity to defend himself and he neither joined his duty nor submitted any document showing the causes of his unauthorized absence, Sri Grahacharya was dismissed from service w.e.f. 27.03.2006.” It is submitted by said Opposite Party No.2 that the Disciplinary Proceeding was initiated for gross misconduct as envisaged under Rule-15 of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962 for prolonged absence from duty. Such a conduct of the petitioner cannot be condoned and the Authority has taken correct decision. 5. It is submitted by Mr. Subrata Mishra, learned counsel for the petitioner that the punishment inflicted on a Class-IV (Group-D) employee is too harsh and lenient view could have been taken by the authority concerned. The absence of the petitioner from duty was beyond his control as he was sick for long time. It is submitted on behalf of the petitioner that the punishment of dismissal ought to have been converted to one of voluntary retirement by the authority concerned. 6. Refuting such a claim made on behalf of the petitioner, Mr. A.R. Dash, learned Additional Government Advocate contended that the enquiry report shows the period of absence as follows:- “1992 1993 1994 1995 - - - - 223 days 275 days 344 days 220 days Page 3 of 5 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 - - - - - - - - - - // 4 // 257 days 278 days 299 days 365 days 366 days 281 days 208 days 365 days 366 days Till not joined” He further submitted that Rule-52 of the Odisha Government Press Industrial Employees (Classification, Recruitment, Promotion, Conditions of Service and Appeal) Rules, 1978 provides for dismissal from service as a major punishment. Unreasonable period of absence from duty without authorization from the competent authority entails major punishment. Therefore, the quantum of punishment cannot be said to be arbitrary. The justified action of the authority concerned does not warrant interference at this distance of time by this Court. 7. Heard the rival contentions and perused the records. On scrutiny of documents available on record, it is admitted position that the petitioner has been continuously remaining in absence from duty unauthorizedly since 1992 to 2005. It is fact on record that since 1992 till 2005, for which the enquiry was conducted, it is reported that on an average of 225 days the petitioner was absent from duty. Therefore, the Enquiring Officer observed such misconduct as dereliction of duty and willful absence from duty and such habitual absentee cannot be shown leniency. The appellate authority has also recorded as a matter of fact that there was gross indiscipline, misconduct and his unauthorized absence from the duty was almost for fifteen years. Page 4 of 5 // 5 // Since facts are not disputed and infliction of major punishment is considered justified by the appellate authority, this Court is not inclined to show any indulgence in the order dated 25.10.2016 passed by the Principal Secretary to Government of Odisha, Commercial Transport (Commerce) Department, which is impugned herein in this writ petition. 8. At the end of argument, Mr. Subrata Mishra, learned counsel for the petitioner prays for mercy and suggested that the petitioner may be given opportunity to move appropriate authority for modification of major punishment to one of voluntary retirement. This Court is not inclined to accede such a prayer save and except to say it is open for the petitioner to do so before the appropriate authority. 9. With the aforesaid observation, this writ petition stands disposed of. Judge (M.S. Raman) Aswini/MRS Signature Not Verified Digitally Signed Signed by: MANORANJAN SAMAL Designation: PERSONAL ASSISTANT Reason: Authentication Location: Orissa High Court, Cuttack Date: 09-Feb-2024 17:34:14 Page 5 of 5