Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.28593 of 2022 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** Kansari Behera Aged about 64 years Son of Late Prahallad Behera, resident of Village: Patrapada P.O.: Dutipada, Via/P.S.: Khajuripada District: Kandhamal. … Petitioner. -VERSUS- 1. State of Odisha, represented through Principal Secretary, Revenue & Disaster Management Department Odisha Secretariat Unit-V, Bhubaneswar District: Khordha. 2. Revenue Divisional Commissioner, Southern Division At/P.O.: Berhampur District: Ganjam. 3. Collector & District Magistrate, Kandhamal At/P.O.: Phulbani District: Kandhamal. 4. Tahasildar Chakapad Tahasil, W.P.(C) No.28593 of 2022 Page 1 of 55 At/P.O.: Chakapada District: Kandhamal. 5. Principal Accountant General (A & E), Odisha AG Square, Bhubaneswar … Counsel appeared for the parties: Opposite parties. For the Petitioners : M/s. Krishna Chandra Sahu, Sudarshan Pradhan, D.K. Mahalik, Ajaya Kumar Samal, Monalisa Tripathy, Advocates For the Opposite parties : Mr. Arnav Behera, Additional Standing Counsel P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 26.09.2024 :: Date of Judgment : 09.10.2024 J UDGMENT Assailed in the writ petition is the Office Order No.1610- Con.VI-3/2021/BBE dated 05.04.2021 (Annexure-15) whereby and whereunder assuming jurisdiction in purported exercise of powers as if conferred by the Appellate Authority-cum-Revenue Divisional Commissioner (Southern Division), Berhampur, the Disciplinary Authority the Collector, Kandhamal sought to pass further orders by restricting payments during W.P.(C) No.28593 of 2022 Page 2 of 55 the period from 30.09.2000 (date of suspension) to 30.09.2013 (date of reinstatement). 1.1. The petitioner craving to invoke extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India made the following prayer(s): “In view of the facts and submissions mentioned above the petitioner prays for the following relief(s); (i) The Hon‟ble Court be pleased to admit and allow the writ petition. (ii) The Hon‟ble Court be pleased to quash/modify the impugned Order dated 05.04.2021 under Annexure- 15 so far as relating to treatment of the periods of suspension from 30.09.2000 in respect of the petitioner as abandoned and further consequential fixation of pay on notional basis by declaring the same as illegal and unjustified one. to 30.09.2013 (iii) The Hon‟ble Court be further direct the opposite party No.3 i.e. Collector, Kandhamal to treat the periods of suspension of from 30.09.2000 to 30.09.2013 as duty so also to grant/disburse the consequential actual differential arrear financial benefits including the consequential fixation of pay as due and admissible in favour of the petitioner instead of fixing on notional basis within a time bound period for the interest of justice. the petitioner (iv) The Hon‟ble Court may be pleased to pass any Order(s)/direction(s) as deems fit and proper for the interest of justice. W.P.(C) No.28593 of 2022 Page 3 of 55 And for this act of kindness, the petitioner shall as in duty bound ever pray.” Facts: 2. As adumbrated in the pleadings, the petitioner while working as Revenue Inspector under Chakapad Tahasil in the district of Kandhamal, a case bearing Berhampur Vigilance P.S. Case No.36 dated 04.11.1999 was instituted and the petitioner was placed under suspension vide Order dated 30.09.2000 in exercise of powers under Rule 12(2)(b) of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962 (“OCS (CCA) Rules”, for convenience). 2.1. After continuing for more than one year under suspension, a departmental proceeding was initiated against the petitioner vide Memo No.4312 dated 03.11.2000 by the Disciplinary Authority-cum-Collector & District Magistrate, Kandhamal. 2.2. As the allegations in the aforesaid vigilance case and the departmental proceeding were the identical, being emanating from same set of facts, the petitioner approached the learned Odisha Administrative Tribunal, Bhubaneswar by filing Original Application bearing O.A. No.1182 of 2001 wherein vide Order dated 14.08.2001 an interim Order was passed with a direction to the opposite parties not take any further action in the W.P.(C) No.28593 of 2022 Page 4 of 55 departmental proceeding and the matter was kept pending. But while the interim Order was in force and main matter was pending adjudication, the Order of dismissal of the petitioner from service was passed vide Order No.3643, dated 12.09.2001 by inflicting punishment under Rule 13 of the OCS (CCA) Rules. 2.3. With the intervention of the learned Odisha Administrative Tribunal vide Order dated 07.12.2001,
Decision
the said Original Application came to be disposed of with the following observation: “ 2. Heard. The prayer in O.A. is that the imposition of penalties on the applicant be held up till the criminal case in the Court of Special Judge (Vigilance)-cum- Additional District and Sessions Judge, Berhampur, Ganjam is disposed of. By Order dated 14.08.2001 the Tribunal directed that further action on the enquiry report might wait 05.09.2001. No reply has been filed in the meantime and the said date has been extended from time to time. The prayer of the applicant had actually been allowed upto a certain time and the said time has been extended on subsequent 4 occasions. Since the prayer is simple and has almost been allowed, I now direct that the final disposal of the disciplinary proceeding shall be held up till disposal of the criminal case in the Court of the Special Judge (Vigilance)-cum-Additional District & Sessions Judge, Berhampur. W.P.(C) No.28593 of 2022 Page 5 of 55 3. In the result, with the above direction, the O.A. is allowed.” 2.4. The criminal case being G.R. Case No.38 of 1999 (V)/ T.R. Case No.39 of 2021 (arising out of Berhampur Vigilance P.S. Case No.36 dated 03.11.1999 under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988) came to an end vide judgment dated 18.04.2011 delivered by the learned Special Judge (Vigilance), Berhampur, Ganjam with the following observation: “*** 8. In this case, the acceptance of bribe has not been proved beyond reasonable doubt. Mere demand of bribe though proved will not carry any punishment nor a conviction can be based on that. Therefore, on the entire appreciation of the record, it is found that the prosecution is not able to prove the case against the accused beyond all reasonable doubt and as such the accused is found not guilty under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and is acquitted under Section 248(1) Cr.P.C. and set him at liberty. His bail bond is cancelled.” 2.5. Laying challenge against the said Order of acquittal, the Vigilance Authority approached this Court by filing CrlLP No.40 of 2012, which was dismissed vide Order dated 11.12.2018. W.P.(C) No.28593 of 2022 Page 6 of 55 2.6. After finalisation of said vigilance case, the Collector, Kandhamal-opposite party No.3 being approached for withdrawal of Order of dismissal, he passed Order on 21.08.2013 with the following observation: “*** let the the applicant filed O.A. No.1182/2001 Whereas challenging the continuance of Departmental Proceeding drawn up against him. Hon‟ble Odisha Administrative Tribunal, Bhubaneswar in Order No.2 dated 14.08.2001 directed that interim Order to continue till 30.09.2001. But the said Order was received in the Office of the Collector, Kandhamal on 21.09.2001 and finally Order No.7 dated 07.12.2001 the Hon‟ble Odisha Administrative Tribunal white disposing of the case, directive was issued to the effect that, the final disposal of the Disciplinary Proceeding shall be held up till disposal of the criminal case in the Court of the Special Judge (Vigilance)-cum-Additional District & Sessions Judge, Berhampur. By the time of copy of the Order dated 05.09.2001 was received, the Departmental Proceeding bearing No 4312 dated 13.11.2000 initiated against the applicant had already been finalized and disposed of. Accordingly, the applicant was dismissed from service with immediate effect vide Order No. 3643, dated 12.09.2001. i.e., on 21.09.2001, Whereas, the applicant challenging the dismissal Order passed by the Disciplinary Authority vide Order No.3643 dated 12.09.2001 has filed a contempt petition vide C.P.(C) No.71/2002. Whereas, the Ho‟nble Odisha Administrative Tribunal, Cuttack vide Order No. 40, dated 30.01.2013 in C.P. W.P.(C) No.28593 of 2022 Page 7 of 55 71(C)/2002 arising out of O.A. No. 1182/2001 filed by Sri Kansari Behera, Ex. Revenue Inspector has directed undersigned to first purge the contemptuous Order vide Order No. 3643/Estt., dated 12.09.2001 after which any apology by alleged contemnors may be considered. Whereas, again Hon‟ble Odisha Administrative Tribunal, Bhubaneswar vide Order No.41, dated 20.01.2013 served that „the final Order in the Departmental Proceeding dismissing the applicant from service was passed while the stay Order was very much in force. The said stay Order was passed in open Court in presence of the learned Government Advocate. Therefore, even if the plea of the alleged contemnor that the Order was not communicated to him and for that he is not personally liable, is accepted, still the impugned Order of dismissal con be safely held to be non-existent in the eye of law‟. Whereas, the Government in Revenue and Disaster Management Department Odisha, in their Letter No 31273/RD&M, dated 16.08.2013 have allowed to implement the Order No.441 dated 20.03.2013 of the Hen‟ble Odisha Administrative Tribunal passed in C.P.(C) No 71/2002 (arising in O.A. Case No 1182/2001). Whervos, in the meantime the case was heard and the Hon‟ble Tribunal vide Order No. 07 dated 29.07.2013 have allowed time as prayed for to file the full compliance. Therefore, in compliance to the Order No.40 dated 30.01.2013 & No.41 dated 20.03.2013 of the Hon‟ble Odisha Administrative Tribunal, Bhubaneswar passed in above Contempt Proceeding Case and as per instruction of in Revenue and Disaster Management Government Department communicated in Letter No.31273/RD&M, dated 10.08.2013, the Order of dismissal passed vide W.P.(C) No.28593 of 2022 Page 8 of 55 District Office Order No.3643/Estt., dated 12.09.2001 is hereby withdrawn.” 2.7. Accordingly, the petitioner was reinstated in service vide Office Order No.1764— BBE-Con.VI-2/13, dated 24.09.2013 passed by the Collector, Kandhamal with effect from the date of his actual resumption in duty. Text of said Office Order runs as follows: “Sri Kansari Behera, Ex-Revenue Inspector, Bisipada R.I. Circle who was placed under suspension vide District Office Order No.3976 dated 30.09.2000 is reinstated into service with effect from the date he actually resumes his duties. On reinstatement, he is posted as such to Kotagarh Tahasil. Necessary Order for treatment of the period of his suspension will be issued at the time of passing final Orders in the Disciplinary Proceeding bearing No.4312, dated 03.11.2000.” 2.8. Being aggrieved by such observation as to the period of suspension, the petitioner with constraint moved the learned Odisha Administrative Tribunal, Bhubaneswar in Original Application (O.A. No.1066 of 2014) with regard to treatment of the period of suspension for about 13 years, i.e., from 30.09.2000 to 30.09.2013, which came to be disposed of on 13.10.2015 with the following observation: “*** W.P.(C) No.28593 of 2022 Page 9 of 55 The case was heard. In the criminal proceeding the applicant was acquitted, whereas the departmental proceeding is still pending. The proceeding was initiated way back in the year 2000. In the meantime 15 years have already passed. In pursuance of the Order dtd.24.09.2013 as at Annexure-7 of the Collector, Kandhamal, Phulbani, the Order of treatment of the period of his suspension would be issued at the time of passing final Orders in the bearing No.4312, dated Disciplinary 03.11.2000. From this it is clear that there is way to withdraw this disciplinary proceeding. Proceeding At this stage when 15 years has elapsed, it is necessary that the enquiry relating to disciplinary proceeding be concluded at the earliest. Therefore, respondent No.2 is directed that this particular enquiry be completed within a period of four months from the date of receipt of a copy of this Order and subsequent thereto the treatment of the period regarding suspension be decided. In case the disciplinary proceeding is not completed within four months, then the same would be deemed to have been dropped. Further, it is directed that the financial as well as the consequential service benefits may be given to the applicant. With these Orders the O.A. is disposed of.” 2.9. Pursuant to the aforesaid direction of the learned Odisha Administrative Tribunal contained in Order dated 13.10.2015, the Disciplinary Authority-cum-Collector, Kandhamal passed the following Order dated 15.02.2016: W.P.(C) No.28593 of 2022 Page 10 of 55 “*** Whereas, in the re-instatement Order the nature of period of suspension was not spelled out, Hon‟ble Odisha Administrative Tribunal, Bhubaneswar in O.A. No.1066 of 2014 vide Order No.6 dated 13.10.2015 directed the respondent No.2 that „Therefore the respondent No.2 is directed that this particular enquiry be completed within a period of four months from the date of receipt of a copy of this Order and subsequent thereto the treatment of the period regarding suspension be decided. In case the disciplinary proceeding is not completed within four months, then the same would be deemed to have been dropped. Further, it is directed that the financial as well as the consequential service benefits may be given to the applicant.‟ After careful perusal of the charges framed against the D.O., enquiry report dated 30.06.2001 of I.O. wherein the I.O. suggested that the period of suspension to be treated as such and all other relevant documents incidental to the proceeding, the Disciplinary Authority and Collector, Kandhamal has been pleased to Order as follows: „the period of suspension from 30.09.2000 to the date of reinstatement i.e. 30.09.2013 may be treated as such‟.” 2.10. The petitioner, thereafter, assailed the said Order before the Appellate Authority (Revenue Divisional Commissioner (Southern Division), Berhampur, Ganjam) by filing appeal petition dated 19.05.2016 through Tahasildar, K. Nuagaon, which was disposed of by the Appellate Authority in exercise of power under Rule 29 of the OCS (CCA) Rules, 1962 after the petitioner got Page 11 of 55 W.P.(C) No.28593 of 2022 retired from service on attaining age of superannuation on 31.03.2018. The Order-in-Appeal of the Appellate Authority with the following observation was communicated to the petitioner vide Memo No.8706, dated 23.12.2019: in service “The reason for his suspension in this case was his being in the Police Custody for more than 48 hours after arrest and initiating of criminal proceeding against him. Then the fact that when the Court has acquitted him, the very cause for suspension does not exist. It is to be noted that during the period of suspension he was paid subsistence in allowance. Then he was reinstated compliance to the Order of Hon‟ble OAT vide Order dated 20.3.2013 passed in C.P.(C) No.71 of 2002 (arising out of OA No.1182/2001). The Prosecution was not able to prove the case against the accused beyond all reasonable doubt and as such, he was found not guilty under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 by the Hon‟ble Court of the Special Judge (Vigilance), Berhampur and he was acquitted under Section 248(1) Cr.P.C. and set him at liberty. The acquittal passed by the Hon’ble Special Judge (Vigilance), Berhampur was challenged by the Government in G.A. Deptt., Cuttack before the Hon’ble High Court of Orissa vide CRLLP No.40 of 2012 which has been dismissed vide Order dated 11.12.2018. In these circumstances, his acquittal can be said to be without a blame and on merit. The Collector, Kandhamal passed final Order vide Order No.286 dated 15.02.2016, with the penalty that the period of suspension from 30.09.2000 to the date of re- W.P.(C) No.28593 of 2022 Page 12 of 55 instatement i.e. on 30.09.2013 may be treated as such which was unwarranted and justified. Hence, in exercise of the powers conferred under Section 29 of the OCS (CC&A) Rules, 1962, and with a thorough appreciation of the case materials at hand, the appeal is allowed. Considering the merit of the case, the Order of Collector-cum-Disciplinary Authority, Kandhamal passed in Order No.286 dated 15.02.2016 of the Disciplinary Proceeding Case is hereby set aside.” 2.11. The Collector, Kandhamal at Phulbani solicited clarification from the Additional Secretary to Government of Odisha in Revenue and Disaster Management Department, Odisha, by Letter No.2383/BBE, dated 16.05.2020 with respect to “treatment of period of suspension from 30.09.2000 to the date of reinstatement, i.e., 30.09.2013 (more than 13 years) of Sri Behera, Revenue Inspector”. In response thereof, the Revenue and Disaster Management Department instructed the Disciplinary Authority “to pass specific orders for treatment of the suspension period basing on the finding of inquiry in the Disciplinary Proceeding keeping Rule 91 of the Odisha Service Code in view”. 2.12. Accordingly, the Disciplinary Authority-opposite party No.3 passed the following Order on 05.04.2021: “Office of the Collector, Kandhamal, Phulbani. W.P.(C) No.28593 of 2022 Page 13 of 55 No. 1610—Con V1-3/2021/BBE, Office Order dated 05.04.2021 Whereas on consideration of the charges framed against Sri Kansari Dehera, Ex-RI, Tahasil Office, G. Udayagiri, retired as such at Tahasil Office, Chakapad, the following punishment had been awarded vide Order No. 286 dated 15.02.2016. 1. The period of suspension from 30.09.2000 to the date of reinstatement i.e., 30.09.2013 treated as such. Whereas, against the said order the D.O. had preferred the Hon‟ble Revenue Divisional an appeal before Commissioner (Southern Division), Berhampur. The Appellate Authority ordered that considering the merits of the case, the order of Collector-cum-Disciplinary Authority, Kandhamal passed in Order No.286, dated 15.02.2016 of the Disciplinary Proceeding case is hereby set aside. Whereas, since the matter relates to service period of more than 13 years and has financial implications, Government in Revenue Department the Administrative had been moved for clarification vide District Office Letter No.2384 dated 16.05.2020. In response to the same Government in Revenue & Disaster Management Department, Odisha has intimated that the creation of the situation itself may be construed as violation in terms of Conduct Rules which needs consideration to take a stand the Disciplinary on Authority may pass specific order for treatment of the suspension period basing on the findings of inquiry in the Disciplinary Proceedings keeping Rule 91 of Odisha Service Code in view. intervening period. Hence, the W.P.(C) No.28593 of 2022 Page 14 of 55 Whereas, the I.O.-cum-Revenue Officer, Sub Collector‟s Office, Phulbani has reported that the charges levelled against the D.O. are proved and the D.O. is found guilty. Clause (3)(b), 5 of Rule 91 of Odisha Service Code speaks that when a Government Servant, not having been exonerated of the charges fully, is reinstated in service he may be allowed subsistence allowance only for the period of suspension as admissible under Rule 90 and the period of suspension from duty shall not be treated as period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose. Now, therefore, after careful perusal of the enquiry report of I.O., Letter No.35980/R&DM, dated 10.12.2020 of Government in Revenue & Disaster Management Department, Odisha and all other records/documents ancillary and the undersigned has been pleased to pass Orders as follows; the proceeding, incidental to 1. 2. 3. 4. The punishment awarded to Sri Behera vide District Office Order No.286 dated 15.02.2016 is hereby recalled. That the claim of pay minus subsistence allowance for the period under suspension is abandoned. The fixation of pay of Sri Behera and settlement of all his claims relating to arrear pay as per pay fixation from time to time is to be calculated except mentioned at point No.2 above and pay should be fixed notionally. The abandonment of the claim to the above extent would not be treated as punishment as will not have any effect on the service in any manner.” W.P.(C) No.28593 of 2022 Page 15 of 55 2.13. Dissatisfied thereby, the petitioner has knocked the doors of this Court for protection by way of filing the instant writ petition with prayer to invoke extraordinary jurisdiction under Article 226/227 of the Constitution of India. Hearing: 3. Pleadings are completed and exchanged among the counsel for respective parties, and on consent of counsel for both sides, this matter is taken up for final hearing at the stage of admission. 3.1. Accordingly, heard Sri Krishna Chandra Sahu, learned Advocate for the petitioner and Sri Arnav Behera, learned Additional Standing Counsel appearing for the opposite parties and the matter stood reserved for preparation and pronouncement of judgment. Rival contentions and submissions: 4. Sri Krishna Chandra Sahu, learned counsel appearing for the petitioner submitted that the tenor of the order of the Appellate Authority setting aside the Order dated 15.02.2016 of the Disciplinary Authority can very well be couched. Having the order of the Disciplinary Authority being nullified in the appeal, in absence of any further direction, the Disciplinary Authority has no authority to confer upon himself the jurisdiction and assume powers W.P.(C) No.28593 of 2022 Page 16 of 55 to pass fresh/further orders in furtherance of the Appellate Order. 4.1. The Disciplinary Authority, thus, transgressed his authority by passing further order inter alia directing to abandon the claim of pay minus subsistence allowance for the period of suspension inasmuch as there is categorical observation of the Appellate Authority that “the Collector, Kandhamal passed final order vide Order No.286, dated 15.02.2016, with the penalty that the period of suspension from 30.09.2000 to the date of reinstatement, i.e., on 30.09.2013 may be treated as such which was unwarranted and unjustified”. It is vehemently contended that such obnoxious observation and direction of the Collector, Kandhamal, acting as quasi judicial Authority, is questionable as he sought to sit over the decision of the Appellate Authority taking shelter of advisory received from the Revenue and Disaster Management Department vide Letter dated 10.12.2020 (Annexure-14), which is not only wholly impermissible in law but also not above reproach. 4.2. It is submitted that the punishment as imposed in the Order No.286, dated 15.02.2016, that “the period of suspension from 30.09.2000 to the date of reinstatement, i.e., 30.09.2013 may be treated as such” (Annexure-10) has been set aside vide communication dated 23.12.2019 by the Appellate Authority by W.P.(C) No.28593 of 2022 Page 17 of 55 observing that “considering the merit of the case, the order of Collector-cum-Disciplinary Authority, Kandhamal passed in Order No.286, dated 15.02.2016 of the disciplinary proceeding case is hereby set aside” (Annexure-12). Despite such clear observation, as if the Appellate Authority has issued further direction to the Disciplinary Authority to consider imposition of order of punishment afresh, further Order ought not to have been passed on 05.04.2021 (Annexure-15) by holding abandonment of payment, which would tantamount to imposition of penalty. It is vehemently contested that the decision of the Disciplinary Authority, which is a sanctuary of errors cannot be allowed to gain the benefit of sanctuary of protection and acceptance and therefore, the impugned Office Order dated 05.04.2021 does deserve quashment. 5. Sri Arnav Behera, learned Additional Standing Counsel appearing for the opposite parties referring to the counter affidavit filed by opposite party No.3 submitted that fresh Order dated 15.02.2016 passed by the Disciplinary Authority after the Appellate Authority set aside the punishment imposed in the disciplinary proceeding on the ground that the petitioner got acquitted in the criminal case cannot be faulted with. 5.1. He pressed into service the following replies given in counter affidavit at paragraphs-8, 10 and 11: W.P.(C) No.28593 of 2022 Page 18 of 55 “8. That the averments made in para-6 of the writ application, the deponent humbly submits that, in Order No.7 dated 07.12.2001 the Hon‟ble Odisha Administrative Tribunal, Bhubaneswar while disposing off the case, issued directive to the effect that, the final disposal of the disciplinary proceeding shall be held up till disposal of the criminal case in the court of the Special Judge (Vigilance)-cum- Additional District & Sessions Judge, Berhampur. By the time of copy of the Order dated 05.09.2001 was received i.e. on 21.09.2001, the Departmental Proceeding bearing No.4312, dated 13.11.2000 initiated against the applicant had already been finalised and disposed off and accordingly the applicant had already been dismissed from service with effect from 12.9.2001 but did not disclose the same to the Hon‟ble Tribunal. 10. That the averments made in paragraph-9 of the writ application, the deponent humbly submits that, after careful perusal of the charges framed against the D.O., enquiry report dtd.30.06.2001 of I.O. wherein he suggested that the period of suspension to be treated as such and all other relevant documents incidental to the proceedings and having regard to Order No.06 dated 13.10.2015 passed by the Hon‟ble Odisha Administrative Tribunal in O.A. the Disciplinary Authority and No.1066/2014, Collector, Kandhamal decided the period of suspension treating as such vide district office Order No.286, dated 15.02.2016. 11. That, the averments made in paragraphs 10 to 13 of the writ application, the deponent humbly submits (SD), the Appellate Authority-cum-RDC that, W.P.(C) No.28593 of 2022 Page 19 of 55 Berhampur had set aside the Orders passed by Collector cum Disciplinary Authority against the petitioner. Since the matter relates to regularisation of service period of more than 13 years and has financial implications, Govt. in Revenue Department, the Administrative authority had been moved for clarification. In response to the same Government in R&DM Department, Odisha has intimated that the creation of the situation itself may be construed as violation in terms of Conduct Rules which needs consideration to take a stand on the intervening period. Hence, the Disciplinary Authority may pass specific Order for treatment of the suspension period basing on the findings of enquiry in the Disciplinary Proceeding keeping Rule 91 of Odisha Service Code I.O.-cum-Revenue Officer, Sub- in view. The Collector‟s Office, Phulbani has reported that the charges levelled against the DO are proved and the DO is found guilty. Clause (3)(b), 5 of Rule 91 of Odisha Service Code speaks that when a Government servant, not having been exonerated of the charges fully, is reinstated in service he may be allowed subsistence allowance only for the period of suspension as admissible under Rule-90 and the period of absence from duty shall not be treated as period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specific purpose. After careful perusal of the enquiry report of I.O., letter No.35980/R & DM dated 10.12.2020 of Govt. in R & DM Department, Odisha and all other records/documents ancillary and incidental to the proceeding the Disciplinary Authority-cum-Collector, Kandhamal was pleased to pass Orders as follows: W.P.(C) No.28593 of 2022 Page 20 of 55 1. 2. 3. 4. The punishment awarded to Sri Behera and District Office Order No.286 dated 15.02.2016 is hereby recalled. That the claim of pay minus subsistence allowance for the period under suspension is abandoned. fixation of pay of Sri Behera and The settlement of all his claims relating to arrear pay as per pay fixation from time to time is to be calculated except mentioned at point No.2 above and pay should be fixed notionally. The abandonment of the claim to the above extent would not be treated as punishment as will not have any effect on the service in any manner.” 5.2. With the aforesaid backdrop, the learned Additional Standing Counsel wound up his argument by making a statement that when the Appellate Authority has merely set aside the order of the Disciplinary Authority without any instruction as to further action to be taken, there arose justified reason for the Collector, Kandhamal to approach the Government for advice, and on receipt of appropriate response, he could pass the Order dated 03.04.2021 in consonance with Rule 91 of the Odisha Service Code. Discussion, analysis and conclusion: W.P.(C) No.28593 of 2022 Page 21 of 55 6. The issue hovers round whether further order can be passed by the Disciplinary Authority after the Appellate Authority sets aside the order of punishment without spelling out further course of action. 6.1. Rule 12 of the OCS (CCA) Rules, in sub-rule (1) provides as follows: in release “The Disciplinary Authority, while passing the final order the Disciplinary of punishment or of Proceedings against the Government servant, shall give directions about the treatment of the period of suspension, which is passed not as a measure of substantive punishment but as suspension pending inquiry, and indicate whether the suspension would be a punishment or not.” 6.2. Glance at Order No.3976—Con.-III-6/2K, dated 30.09.2000 of the Collector, Kandhamal (Annexure-2) with respect to suspension reveals the fact that, “Whereas a disciplinary proceeding against Sri Kansari Behera, Ex. Revenue Inspector, Paburia of G. Udayagiri, Tehsil, now working as such in Khondmals Tehsil under Bisipada R.I. Circle is contemplated, now, the Collector, Kandamal, Phulbani and therefore, Disciplinary Authority, in exercise of power conferred under clause (b) of sub-rule (2) of Rule 12 of the CCS (CCA) Rules, 1962, hereby places Sri Kansari Behera, Revenue Inspector under suspension with immediate effect. ***” W.P.(C) No.28593 of 2022 Page 22 of 55 6.3. From the aforesaid it appears that while the disciplinary proceeding against the petitioner was under contemplation he was placed under suspension on 30.09.2000. Accordingly, the Disciplinary Proceeding No.4312, dated 03.11.2000 being instituted, the petitioner was called upon to submit explanation and vide Letter No.3643/Estt, dated 12.09.2001, the Collector, Kandhamal afforded opportunity to the petitioner to have his say against the proposition made for inflicting the penalty of „dismissal from service‟, which was subject matter of challenge before the Odisha Administrative Tribunal in O.A. No.1182 of 2001. As interim measure in the said case, vide Order dated 07.12.2001, the disciplinary proceeding was directed to be held up till disposal of the criminal case by the Special Judge (Vigilance)-cum-Additional District and Sessions Judge, Berhampur. Despite such interim order being pronounced in the presence of the counsel for the Government, the Disciplinary Authority proceeded to passed order of dismissal. 6.4. The criminal case being G.R. Case No.38 of 1999 (V)/ T.R. Case No.39 of 2001 culminated in order of acquittal on 18.04.2011 invoking Section 248(1) of the Code of Criminal Procedure, 1973 vide judgment of the learned Special Judge (Vigilance)-cum-Additional District and Sessions Judge, Berhampur finding the petitioner “not W.P.(C) No.28593 of 2022 Page 23 of 55 guilty” under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. Further proceeding before this Court by the Government of Odisha against such order of acquittal resulted in dismissal of Leave Petition bearing CrlLP No.40 of 2012 vide Order dated 11.12.2018. 6.5. Notwithstanding acquittal of the petitioner in the criminal case, by Order dated 24.09.2013, the Collector, Kandhamal though directed reinstatement in service, reserved consideration of “treatment of the period of his suspension” “at the time of passing final order in the Disciplinary Proceeding bearing No.4312, dated 03.11.2000”. The Odisha Administrative Tribunal taking note of such fact in O.A. No.1066 of 2014, in Order dated 13.10.2015 clarified that, “At this stage when 15 years has elapsed, it is necessary that the enquiry relating to disciplinary proceeding be concluded at the earliest. Therefore, respondent No.2 is directed that this particular enquiry be completed within a period of four months from the date of receipt of a copy of this order and subsequent thereto the treatment of the period of suspension be decided.” 6.6. The Disciplinary Authority passed final Order on 15.02.2016 (Annexure-10) by accepting the suggestion of the Inquiring Officer in the Inquiry Report dated 30.06.2001 that the period of suspension to be treated as such, held “the period of suspension from 30.09.2000 W.P.(C) No.28593 of 2022 Page 24 of 55 to the date of reinstatement, i.e., 30.09.2013 may be treated as such”. 6.7. The petitioner having carried the matter in appeal, the Appellate Authority, appreciating the position with regard to criminal case held, challenged by “The acquittal passed by the Hon‟ble Special Judge (Vigilance), Berhampur was the Government in G.A. Deptt., Cuttack before the Hon‟ble High Court of Orissa vide CRLLP No.40 of 2012 which has been dismissed vide Order dated 11.12.2018. In these circumstances, his acquittal can be said to be without a blame and on merit. The Collector, Kandhamal passed final Order vide Order No.286 dated 15.02.2016, with the penalty that the period of suspension from 30.09.2000 to the date of re- instatement i.e. on 30.09.2013 may be treated as such which was unwarranted and justified. Hence, in exercise of the powers conferred under Rule 29 of the OCS (CCA) Rules, 1962, and with a thorough appreciation of the case materials at hand, the appeal is allowed. Considering the merit of the case, the order of Collector-cum-Disciplinary Authority, Kandhamal passed in Order No.286, dated 15.02.2016 of the Disciplinary Proceeding Case is hereby set aside.” 6.8. Perusal of aforesaid Appellate Order transpires that the Appellate Authority has not only taken into consideration the fact of acquittal of the petitioner in the criminal case, but also weighed the merit of the matter W.P.(C) No.28593 of 2022 Page 25 of 55 based on material on record while invoking power under Rule 29 of the OCS (CCA) Rules. 6.9. Rule 29 of the OCS (CCA) Rules spells out as follows: “29. Consideration of Appeals.— (1) In the case of an appeal against an order imposing any of the penalties specified in Rule 131, the appellate authority shall consider— (a) whether the procedure prescribed in these rules has been complied with and, if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (b) whether the findings are justified; and (c) whether the penalty imposed is excessive, adequate or inadequate; and, after consultation with the commission if such consultation is necessary in the case, pass orders— (i) (ii) setting aside, enhancing the penalty; or reducing, confirming or remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case: 1 Rule 13 of the OCS (CCA) Rules, lays down as follows: “13. Nature of penalties.— The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely: *** (v) ***” Suspension; W.P.(C) No.28593 of 2022 Page 26 of 55 Provided that— (i) the appellate authority shall not impose any enhanced penalty which neither such authority nor the authority which made the order appealed against is competent in the case to impose; (ii) no order imposing an enhanced penalty shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against such enhanced penalty; and (iii) if the enhanced penalty which the Appellate Authority proposes to impose is one of the penalties specified in clauses (vi) to (ix) of Rule 13 an inquiry under Rule 15 has not already been held in the case, the Appellate Authority shall, subject to the provisions of Rule 18, itself hold such inquiry or direct that such inquiry be held and, thereafter, on consideration of the proceedings of such inquiry and after giving the appellant an opportunity of making any representation which he may wish to make against such penalty, pass such orders as it may deem fit. (2) In the case of an appeal against any order specified in Rule 232 the Appellate Authority shall consider all 2 Rule 23 of the OCS (CCA) Rules stands as follows: “23. Appeal against other orders.— (1) A Government servant may appeal against an order which— (a) denies or varies to his disadvantage his pay, allowances, pension or other conditions of service as regulated by any rules or by agreement, or interprets to his disadvantage the provision of any such rules or agreement, (b) W.P.(C) No.28593 of 2022 Page 27 of 55 the circumstances of the case and pass such orders as it deems just and equitable. (3) Copies of orders passed by the appellate authority shall be supplied to the appellant free of cost.” 6.10. The Appellate Authority is, thus, empowered under Rule 29 of the OCS (CCA) Rules to examine whether the findings of the Disciplinary Authority are justified and “set aside” the order imposing penalty, i.e., treating the period of suspension from 30.09.2000 to the date of reinstatement, i.e., 30.09.2013 “as such”. to the Governor if the order is passed by the authority which made the rules or agreement, as the case may be, or by any authority to which such authority is subordinate, and to the authority which made rules or agreement, if the order is passed by any other authority. An appeal against an order— (a) (2) (b) (c) (d) stopping a Government servant at the efficiency bar in time-scale on the ground of his unfitness to cross the bar; reverting to a lower service, grade or post, a Government servant officiating in a higher service, grade or post, otherwise than as a penalty; reducing or withholding the pension or denying the maximum pension admissible under the rules; and determining the pay and allowances for the period of suspension to be paid to a Government servant on his reinstatement or determining whether or not such period shall be treated as a period spent on duty for any purpose, shall lie— (i) in the case of an order made in respect of a Government servant on whom the penalty of dismissal from service can be imposed only by the Governor, to the Governor; and in the case of an order made in respect of any other Government servant, to the authority to whom an appeal against an order imposing upon him the penalty of dismissal from service would lie. (ii) EXPLANATION.— In this rule— (i) (ii) the expression of “GOVERNMENT SERVANT” includes a person who has ceased to be in Government service; the expression “PENSION” includes additional pension, gratuity and any other retirement benefit.” W.P.(C) No.28593 of 2022 Page 28 of 55 6.11. In view of provisions contained in Rule 303 of the OCS (CCA) Rules, in absence of any further direction, there is no scope left to the Disciplinary Authority to pass any consequential further orders. 6.12. As the Appellate Authority in his Order made it clear that “The Collector, Kandhamal passed final order vide Order No.286, dated 15.02.2016, with the penalty that the period of suspension from 30.09.2000 to the date of reinstatement, i.e., on 30.09.2013 may be treated as such which was unwarranted and unjustified”, there was no occasion for the Disciplinary Authority to seek for advisory from the Revenue and Disaster Management Department. Nothing is placed on record to show that the Appellate Order in Annexure-12 has ever been challenged and/or varied by any other competent court of law. In such view of the matter, the Collector, Kandhamal was bound by the quasi judicial order-in- appeal, and in defiance thereof he was not competent to pass fresh orders by adhering to directive of the Revenue and Disaster Management Department on the administrative side. Such a course, in flagrant violation of provision of Rule 30 of OCS (CCA) Rules, 1962, is impermissible. 3 Rule 30 of the OCS (CCA) Rules, provides as follows: “Implementation of orders in appeal.— The Authority which made the order appealed against shall give effect to the orders passed by the Appellate Authority.” W.P.(C) No.28593 of 2022 Page 29 of 55 6.13. It is noteworthy that the criminal case ended in acquittal and attained finality on dismissal of CrlLP by this Court and the order passed in disciplinary proceeding also got set aside on consideration of merit of matter on the basis of materials available on record. These factors are indicative of fact that nothing survives against the petitioner and the allegations levelled against the petitioner could not be substantiated by the opposite parties. Therefore, it is obligatory on the part of the Disciplinary Authority to comply with the Order dated 13.10.2015 of the Odisha Administrative Tribunal, Bhubaneswar passed in O.A. 1066 of 2014. In the said Order dated 13.10.2015, it has been stipulated that, “Therefore, the respondent No.2 is directed that this particular enquiry be completed within a period of four months from the date of receipt of a copy of this order and subsequent thereto the treatment of the period regarding suspension be decided. the disciplinary proceeding is not completed within four months, then the same would be deemed to have been dropped. Further, it is directed that the financial as well as consequential service benefits may be given to the applicant.” In case 6.14. However, ultimately the disciplinary proceeding attained finality by virtue of order of the Appellate Authority which nullified the effect of punishment imposed by the Disciplinary Authority. Taking a holistic view of material on record including the finality being attained to the criminal case as also the disciplinary proceeding, there W.P.(C) No.28593 of 2022 Page 30 of 55 remains no scope for the opposite parties not to extend the service and financial benefits as the petitioner has been deprived of for no fault of his own. 6.15. The Hon‟ble Supreme Court of India has exposited the position of the employee, when the order of termination from service is set aside, in Anantdeep Singh Vrs. The High Court of Punjab and Haryana, (2024) 9 SCR 135 = 2024 INSC 673, wherein it has been observed as follows: the directions. Once “21. Once the termination Order is set aside and judgment of the High Court dismissing the writ petition challenging the said termination Order has also been set aside, the natural consequence is that the employee should be taken back in service and thereafter proceeded the with as per termination Order is set aside then the employee is deemed to be in service. We find no justification in the inaction of the High Court and also the State in not taking back the appellant into service after the Order dated 20.04.2022. No decision was taken either by the High Court or by the State of taking back the appellant into service and no decision was made regarding the back wages from the date the termination Order had been passed till the date of reinstatement which should be the date of the judgment of this Court. In any case, the appellant was entitled to salary from the date of fresh judgment dated 20.04.2022 termination Order was passed on 02.04.2024. The appellant would thus be entitled to full salary for the above period to be calculated with all till W.P.(C) No.28593 of 2022 Page 31 of 55 benefits admissible treating the appellant to be in continuous service. 22. Insofar as the period from 18.12.2009 i.e., after the termination Order of 17.12.2009 was passed till 19.04.2022 the date prior to the judgment and Order of this Court, we are of the view that ends of justice would be served by directing that the appellant would be entitled to 50 per cent. of the back wages treating him to be in service continuously. Such back wages to be calculated with all benefits admissible under law to the appellant as if he was in service.” 6.16. In the wake of the above situation, the Order dated 03.04.2021 (Annexure-15), being non est in the eye of law the petitioner is entitled to service and pecuniary benefits as is available in law had he not been suspended since 30.09.2000. 7. Law is no more res integra that disciplinary matters are quasi judicial proceedings. In the case of Mohd. Yunus Khan Vrs. State of Uttar Pradesh, (2010) 10 SCC 539 the Supreme Court has held that holding disciplinary proceeding against a Government employee and imposing punishment on his being found guilty of misconduct under the statutory rule is in the nature of quasi judicial proceeding. Also in the case of Roop Sing Negi Vrs. Punjab National Bank, (2009) 2 SCC 570 the Supreme Court of India has observed that indisputably a disciplinary proceeding is a quasi judicial proceeding and the enquiry officer performs a quasi judicial W.P.(C) No.28593 of 2022 Page 32 of 55 function. This Court at this juncture wishes to have regard to certain decisions of Courts eliciting the purport of appellate orders: 7.1. In Nirmal Chandra Panigrahi Vrs. State of Odisha, 2021 SCC OnLine Ori 807 this Court observed as follows: “23. In Westminster Corpn. Vrs. L.&N. Ry., (1905) AC 426 it was held that it is a condition of any statutory power that it must be exercised reasonably, and without negligence. 24. In Cf. Karnapura Development Co. Vrs. Kamakshya Narain, 1956 SCR 325, the Apex Court held that it is a condition of any statutory power that it must be exercised bona fide. 25. In Commissioner of Police, Bombay Vrs. Gordhandas Bhanji, AIR 1952 SC 16, the Apex Court observed as follows: “10. *** Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the order. *** 28. *** An enabling power of this kind conferred for public reasons and for the public benefit is, in our opinion, coupled with a duty to exercise it when the circumstances so demand. It is a duty which cannot be shirked or shelved nor it W.P.(C) No.28593 of 2022 Page 33 of 55 be evaded, performance of it can be compelled. ***” 26.