Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK WPC (OAC) No.3124 of 2015 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 read with Section 19 of the Administrative Tribunals Act, 1985 *** Arati Mishra Aged about 55 years working as Inspector of Police Special Branch, Odisha, Bhubaneswar District: Khordha … -VERSUS- 1. State of Odisha Represented through its Secretary to Government of Odisha Home Department, Odisha Lok Seva Bhawan, Sachivalaya Marg Bhubaneswar, District: Khordha Petitioner 2. Director General & Inspector General of Police Buxibazar, City & District: Cuttack – 753 001 3. Inspector General of Police (Operation) Odisha, Bhubaneswar District: Khurda … Opposite parties Counsel appeared for the parties: For the petitioner : Mr. Kali Prasanna Mishra, Senior Advocate, along with M/s. Saswati Mohapatra, T.P. Tripathy and L.P. Dwivedy, Advocates WPC (OAC) No.3124 of 2015 Page 1 of 44 For the opposite parties : Mr. Ajodhya Ranjan Dash, A Additional Government Advocate P R E S E N T: THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 08.02.2024 :: Date of Judgment : 12.02.2024 J UDGMENT MURAHARI SRI RAMAN, J.— THE CHALLENGE BY THE PETITIONER: Questioning propriety of Office Order No.608, dated 18.06.2014 passed by the Director General & Inspector General of Police, Odisha, Cuttack in allowing promotion retrospectively from the year 2008 instead of 2006, the petitioner approached the Odisha Administrative Tribunal, Cuttack Bench, Cuttack invoking Section 19 of the Administrative Tribunals Act, 1985, by way of filing Original Application beseeching following relief(s): “(i) Quash the impugned Order under Annexure-5 and grant promotion to the applicant in CSB (Central Selection Board of Constables) held in the year 2006 the consequential and and monetary benefit with effect from the date her admitted juniors were promoted in the year 2006 CSB; thereby allow all WPC (OAC) No.3124 of 2015 Page 2 of 44 (ii) Pass such other order(s) or issue direction(s) as may be deemed fit and proper in the bona fide interest of justice.” 1.1. After abolition of the Odisha Administrative Tribunal by virtue of Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) Notification F. No. A-11014/10/2015-AT [G.S.R.552(E).], dated 2nd August, 2019), the said case having been transferred to this Court, O.A. No. 3124 (C) of 2015 has been re-registered as WPC (OAC) No. 3124 of 2015. FACTS AS ADUMBRATED BY THE PETITIONERS: 2. Shorn off irrelevant material suffice it to narrate the facts as available in the pleadings. 2.1. The petitioner while working as Sub-Inspector of Police Cuttack District Proceeding Nos.44/2001 and 09/2002 were initiated against her in the year 2001 and 2002. As there occurred inordinate delay in completion of the proceedings, the petitioner approached the Odisha Administrative Tribunal, Bhubaneswar in O.A. No.1227 of 2011 and O. A. No.1323 of 2011 praying therein to quash the said disciplinary proceedings. 2.2. O.A. No.1227 of 2011 was disposed of by the Odisha Administrative Tribunal, Bhubaneswar on 05.07.2013 with the following observation: “11. The second show cause notice dated 18.8.2011 at Annexure 15 was served on the applicant on Page 3 of 44 WPC (OAC) No.3124 of 2015 19.8.2011 and the applicant made an application on 20.8.2011 praying for reasonable time to submit her explanation but the Disciplinary Authority rejected the prayer on 22.08.2011 and passed the impugned order of punishment on 23.08.2011. This shows that sufficient opportunity was not given to the applicant to prepare her defence and to reply to the second show cause notice. When the Disciplinary Authority took ten years to complete the proceeding, there was no reason why the applicant should not be given reasonable time to reply to the second show cause notice. The learned Standing counsel argued that in view of the order of the Tribunal fixing the time limit for disposal of the O.A., the Disciplinary Authority could not have given a longer time to the applicant. Nothing prevented the Disciplinary Authority to approach the Tribunal praying for extension of time. Since the Disciplinary Authority took 10 years to complete its part of the job, it was not expected of the authority to reject the applicant’s prayer for reasonable time and to pass the impugned order of punishment within 3 days. The conduct of the Disciplinary Authority to conclude the inquiry in hot haste also shows that the applicant was not given a the fair deal. The Disciplinary Authority and Inquiring Officer are squarely for responsible inordinate delay in completion of the evidence on behalf of the department. 12. Ordinarily, I would have remanded the matter back to the Disciplinary Authority to dispose of the matter afresh after giving reasonable opportunity to the applicant to reply to the second show cause notice the but disciplinary proceeding the applicant for last more than 10 years for the latches is an unfortunate case where is pending against this WPC (OAC) No.3124 of 2015 Page 4 of 44 of the Disciplinary Authority and the applicant also suffered repeated supersession during last seven years and I am therefore not inclined to remand the matter as it would cause further delay in disposal of the matter and in the process the applicant would be subjected to further harassment.
Decision
13. In the result, the O.A is allowed. The impugned order of Punishment dated 23.8.2011 at Annexure 18 stands quashed. The O.A is accordingly disposed of.” 2.3. Similarly, O.A. No.1323 of 2011 also got disposed of on 09.10.2013 by the Odisha Administrative Tribunal, Bhubaneswar with the following order: “9. The proceeding was initiated by framing of charge on 4.2.2002. But there was virtually no progress in the departmental proceeding till the matter came up before this Tribunal and a direction was issued on 17.5.2011 in O.A.No.102(C)/2011 at Annexure-4 to conclude the departmental proceeding within three months from the date of communication of the order. It is explained by the respondents that the delay was due to sickness/continued of absence of the applicant and also her non-cooperation in the matter. Such an explanation is difficult to accept. Nothing prevented the respondents to proceed ex-parte in case of non-cooperation of the applicant. It is thus seen the departmental proceeding was conducted in hot haste without strictly observing the procedure provided under the Rules, thereby causing serious prejudice to the applicant. The impugned order of punishment, therefore, is not sustainable and is liable to be quashed. I would have ordinarily remitted the matter back to the respondents for fresh that WPC (OAC) No.3124 of 2015 Page 5 of 44 disposal of the proceeding by observing the rules. However, I am not inclined to do so in this case in view of the fact that the applicant (delinquent officer) is suffering due to pendency of this departmental proceeding for more than ten years. 10. In the result, the original application is allowed and the impugned order of punishment at Annexure-14 stands quashed” 2.4. Be that as it may, due to pendency of disciplinary proceedings, the CSB held for promotion to the post of Inspector of Police in the year 2006 and 2007, did not consider the case of the petitioner. However, after the Odisha Administrative Tribunal quashed the orders of punishment as discussed supra the petitioner made representations before the competent authority to open the sealed cover and allow her to avail the promotional benefits. 2.5. On consideration of such representation, the petitioner was promoted to the post of Inspector of Police and directed to be relieved from her duty on 07.07.2014 to join Special Branch, Bhubaneswar. Since she was given promotion from the year 2008 instead of 2006, the petitioner submitted a representation to the Director General & Inspector General of Police, Odisha drawing attention to open the sealed cover pertaining to Central Selection Board Meeting in the year 2006. The Additional Inspector General of Police (Personnel), Odisha, Cuttack WPC (OAC) No.3124 of 2015 Page 6 of 44 vide Letter No.Y-65-13/30237/Board, dated 08.08.2014 intimated as follows: “After careful consideration, the DG&IG of Police, Odisha, Cuttack has been pleased to reject the representation dated 01.07.2014 of S.I. Arati Mishra relating to her retrospective promotion to the rank of Inspector of Police from 2006, being devoid of merit. representationist may please be The intimated accordingly under intimation to this Headquarters for reference.” 2.6. Said letter dated 08.08.2014 contained copy of the following Office Order dated 18.06.2014: “Odisha Police State Headquarters Cuttack. OFFICE ORDER No. 608/Exe Date: 18.06.2014 The case of SI Arati Mishra now in Cuttack district was taken into consideration by the Central Selection Boards held in 2006, 2007, 2008 and 2010 for promotion to the rank of Inspector of Police; but the findings of the C.S.Bs. regarding her promotion were kept in Individual sealed covers due to pendency of Cuttack District Proceeding No. 44/2001 and 9/2002 against her. In the meantime the major punishments awarded to her in the above two proceedings have been quashed vide Cuttack district DO, No. 2581 dated 22.10.2013 and 1223 dated 26.04.2014. As such, the sealed covers were opened and it was found that she was not selected by the CSB-2006, 2007 and 2010; but selected by the CSB-2008. Hence, she is allowed promotion retrospectively to the rank of WPC (OAC) No.3124 of 2015 Page 7 of 44 Inspector of Police from the year 2008 as per the results of CSB 2008 held on 22.09.2008 in the Pay Band of Rs.9300-34800/- with Grade Pay of Rs.4600/- per month. This promotion is subject to the decision of Hon’ble High Court in W.P (C) No. 426/06. The conditional promotion will take effect from the date of her assuming higher charge in the promotional post. She may be reverted to her substantive rank of S.I. of Police depending upon the outcome of the judgement of Hon’ble High Court In W.P.(C) No. 426/06. An undertaking to this effect will be furnished by her prior to joining in promotional post. Her inter-se-seniority in the rank of Inspector is fixed above Inspector Chakrapati Kanhar (ST), who was allowed promotion to the rank of Inspector of Police retrospectively from the year 2008 vide State Police Hdqrs. O.O. No.2207/Exe dated 13.12.11. Her pay will be fixed notionally in the pay band of Inspector of Police from the date her immediate junior was promoted to the rank of Inspector of Police. She will not be eligible for any financial benefits for the period she has not actually worked in the higher grade/post. Her posting is to be decided by the Police Establishment Board in accordance with Home Department Notification No. 18407/D&A dated 06.04.2007. (ID-54-08) Sd/- D.G & IG of Police, Odisha, Cuttack” 2.7. The pleading reveals that the petitioner having not been communicated with any adverse remarks at any point of time, but for institution of the disciplinary proceedings WPC (OAC) No.3124 of 2015 Page 8 of 44 in the years 2001 and 2002, which remained inconclusive by the time CSB held in the years 2006, 2007 and 2008, she strongly believes that there was no point for non-consideration of her promotion to the post of Inspector of Police. As in the years 2006, 2007 and 2008 similar circumstances prevailed, giving her retrospective promotion from 2008 instead of 2006 does not stand to reason. Therefore, the petitioner represented before the Competent Authority by stating that the punishments awarded in two disciplinary proceedings are quashed by the Odisha Administrative Tribunal and requested said Authority to consider her case to accord promotion from 2006 instead of 2008. 2.8. It is alleged that the impugned order vide Annexure-5, though is mentioned to be passed on 18.06.2014 by the opposite party No.2-DG & IG of Police, Odisha, the same was not communicated to the petitioner till 01.09.2014. 2.9. It is asserted by the petitioner that she was stated to have been found unsuitable for promotion to the post of Inspector of Police in CSB held in the year 2006 and 2007. During said periods when CSB Meetings were held for preceding five years thereto there was no adverse remark of any nature. By asserting fact that the petitioner has stated that she was never communicated with adverse remarks. With much vehemence the petitioner submitted that the reason that the petitioner WPC (OAC) No.3124 of 2015 Page 9 of 44 was found unsuitable for promotion in the years 2006 and 2007 cannot be held to be sustainable or maintainable in the eye of law. 2.10. Craving indulgence in the matter, the petitioner approached the Odisha Administrative Tribunal for a direction in the manner as prayed for by way of filing the Original Application which was registered as O.A. No.3124 (C) of 2015, and later re-registered as WPC (OAC) No.3124 of 2015. REPLIES OF THE OPPOSITE PARTIES TO THE CONTENTS OF THE WRIT PETITION: 3. On taking up the matter for “Admission” this Court vide Order dated 30.09.2022 issued notice to the opposite parties, consequent upon which counter-affidavit has come to be filed sworn to by Additional Superintendent of Police, State Police Headquarters on behalf of the opposite party No.2-DG & IG of Police, Odisha. 3.1. In the counter-affidavit while it has been admitted that the Odisha Administrative Tribunal has nullified the punishments— “forfeiture of increment for a period of six months with cumulative effect carrying the value of one black mark” vide D.O. No.3395, dated 23.08.2011 in connection with Cuttack District Proceeding No.44 of 2001 and “forfeiture of time scale increment for a period of six months with cumulative effect carrying the value of one black mark” vide D.O. No.3396, dated 23.08.2013 WPC (OAC) No.3124 of 2015 Page 10 of 44 in connection with Cuttack District Proceeding No.09/2002— awarded to the petitioner, the answering opposite party explained as follows: the cover sealed containing “While the situation stood thus, the Petitioner submitted a representation dated 23.10.2013 to the then DGP for consideration of her promotion to the rank of Inspector of Police by opening the sealed cover. Upon approval of the the then DGP, recommendations of the Central Selection Board for promotion to the rank of Inspector of Police for the years 2006, 2007, 2008 and 2010 was opened. After opening, it was found that the Petitioner was not selected by the CSB for the year 2006, 2007 & 2010 but selected by the CSB for the year 2008 only for promotion to the rank of Inspector of Police. Accordingly, the Petitioner was allowed promotion to the rank of Inspector of Police retrospectively from the date her juniors were promoted from the year 2008 vide State Police Headquarters Office Order No.608/Exe, dated 18.06.2014. Promotion to the Post of Inspector of Police is done as per Rule 650(ii) of Police Manual Rule. The criteria for promotion is on the basis of merit-cum-suitability with due regard to seniority. The contention of the Petitioner with regard to promotion to the rank of Inspector of Police from the year 2006 is misconceived and untenable. The Central Selection Board meeting for considering the promotion of eligible S.I. of Police to the rank of Inspector of Police was convened on 19/20.09.2006. The case of the Petitioner was placed before the said Central Selection Board along with the cases of other eligible S.Is for promotion to the rank of Inspector of Police. The Central Selection Board duly examined the service record of the Petitioner and did not WPC (OAC) No.3124 of 2015 Page 11 of 44 recommend the name of the Petitioner for promotion to the rank of Inspector of Police with the remark ‘Not selected. Reportedly absconding while on sick leave and kept in a sealed cover’. The Central Selection Board acted appropriately as it assessed the case of the Petitioner when deciding her promotion to that of the Post of Inspector of Police. Since, the Petitioner was not found suitable by the CSB for 2006 & 2007 for promotion to the Post of Inspector of Police, the petitioner is not entitled promotion to the Inspector of Police from the year 2006. Since the petitioner was found suitable in the year 2008 by the CSB, she has been given promotion to the post of Inspector of Police from the year 2008. Hence, the contrary averments being devoid of merit are liable to be rejected.” HEARING OF WRIT PETITION BEFORE THIS COURT: 4. This Court on earlier occasion vide Order dated 30.09.2022 made it clear while issuing notice to the opposite parties that “the matter is likely to be disposed of at the stage of admission”. 4.1. The matter was on board on 08.02.2024 for “Admission” and the counsel for respective parties conceded that this matter can be disposed of on the available material on record and it requires no further adjournment. Sri Kali Prasanna Mishra, learned Senior Advocate fairly stated that no rejoinder need be filed on behalf of the petitioner. Therefore, on the consent of Sri Kali Prasanna Mishra, learned Senior Advocate appearing for the petitioner and Sri Ajodhya Ranjan Dash, learned Additional Government Advocate appearing for the opposite parties WPC (OAC) No.3124 of 2015 Page 12 of 44 this matter is heard at length and counsel for both sides concluded their arguments on 08.02.2024. SUBMISSIONS AND ARGUMENTS OF RESPECTIVE PARTIES: 5. Sri Kali Prasanna Mishra, learned Senior Advocate for the petitioner reiterating the pleading urged that no adverse remarks being communicated to the petitioner at any point of time prior to 2006 or thereafter and the punishments awarded in two Cuttack District Proceedings are “quashed” by the learned Odisha Administrative Tribunal, which fact has candidly been admitted and accepted by the opposite parties vide paragraph 4 of the counter-affidavit filed on 15.11.2022, there remains no justification for sustaining the impugned Order dated 18.06.2014 of the DG & IG of Police, Odisha, Cuttack as communicated by Letter dated 08.08.2018 vide Annexure-6. 5.1. Whereas during the currency of disciplinary proceedings CSB was required to consider the case of the delinquent for promotion and result of the same was to be kept in sealed cover, there was no plausible reason put forth by the opposite party No.2 as to why she was not considered for promotion to the post of Inspector of Police in the year 2006, particularly when no adverse remark had ever been communicated to her. Even though during the year 2008 the situation was not WPC (OAC) No.3124 of 2015 Page 13 of 44 different, she was considered for said promotion in the year 2008. 5.2. The explanation proffered by the opposite party No.2 in the counter-affidavit that she was not selected for the post of Inspector of Police in the year 2006, because “reportedly absconding while on sick leave and kept in a sealed cover”. Sri Kali Prasanna Mishra, learned Senior Advocate showing his anxious concern continued to argue that such a reason cannot withstand judicial scrutiny inasmuch as when the petitioner is stated to be on “sick leave”, it is inconceivable that she could be said to be “absconding”. The opposite party No. 2 has not applied his mind while stating contradictory facts in the same breath. No iota of evidence has been placed with respect to communication of such fact of “absconding” during the period of “sick leave” to the petitioner. It is submitted that “absconding” and “sick leave” cannot co- exist. Sri Kali Prasanna Mishra vehemently contended that the opposite party No.2 by way of counter-affidavit cannot import new fact other than what has been stated in the Order dated 18.06.2014. Such reason is not forthcoming from the said Order of the Director General & Inspector General of Police, Odisha. 5.3. To buttress his argument that adverse report not communicated cannot be acted upon to deny promotional opportunity, Sri Kali Prasanna Mishra, WPC (OAC) No.3124 of 2015 Page 14 of 44 learned Senior Advocate placed reliance on Gurdial Singh Fijji Vrs. State of Punjab, AIR 1979 SC 1622 = (1979) 2 SCC 368 = (1979) 3 SCR 518; and Amar Kant Choudhary,