The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAC) No.3088 of 2016 Dr. Sudhiranjan Pattanaik …. Petitioner Mr. G. Sinha, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. M.K. Balabantaray, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No 04. 1. This matter is taken up through Hybrid Arrangement
Decision
ORDER 05.04.2023 (Virtual/Physical) Mode. 2. Heard Mr. G. Sinha, learned counsel for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. The Petitioner has filed the present writ petition challenging the 2nd show-cause issued on 27.01.2015 under Annexure-9, the order of punishment passed vide office order dtd.02.07.2015 under Annexure-11 and the rejection of his appeal vide order dtd.10.06.2016 under Annexure-13. 4. Learned counsel for the Petitioner contended that because of his remaining on leave w.e.f.27.06.2006, a proceeding was initiated // 2 // against the Petitioner vide Memorandum dtd.03.03.2008 under Annexure-1. After receipt of the written statement of defence, enquiry was conducted with due appointment of the Enquiry Officer and the Marshalling Officer. It is contended that the Enquiry Officer after conducting the enquiry submitted the enquiry report under Annexure-8 with the following recommendations:- ii) Negligence i) Disobedience of orders of <Three charges namely, Govt./Higher Authorities, iii) Misconduct have been leveled against Dr. Pattanaik in the present disciplinary proceedings. Except the act of absence for a long period from duty on genuine medical ground, no other acts or incidents have been cited or placed to justify the above charges against Dr. Pattanaik. in duty and On inquiry, the above charges are found not sustained and not proved for want of good and justifiable reasons to establish the same. During inquiry, it has been transpired that the Charged Officer Dr. Pattanaik appearing before the Principal Secretary to Govt., Health & Family Welfare Department on 30.11.2013 has explained his case at length and considering his case, he has been allowed to join at his previous station at M.K.C.G. Medical College, Berhampur vide order no. 1788 dated 25.01.2014 and Dr. Pattanaik has already joined there on 03.02.2014 forenoon. Except absence from duty, there was no other allegation against Dr. Pattanaik. After joining back at duty, the issue of absence is no longer there. Therefore, the period of absence from duty may be regularized by sanction of leave as per rules in vogue. Under the circumstances, the Disciplinary Authority may kindly consider for dropping of the Charges.= 4.1. Learned counsel for the Petitioner contended that even though the Enquiry Officer while submitting the report under Annexure-8 held the charges not proved against the Petitioner and Page 2 of 9 // 3 // recommended to regularize the period of absence by sanctioning leave as per rules, but the Opp. Party No. 1 while issuing the 2nd show-cause on 27.01.2015 under Annexure-9 proposed to impose the punishment of withholding of one increment without cumulative effect. But while proposing to impose such punishment, O.P. No. 1 when observed that the period of suspension from 27.06.2006 to 28.02.2008 will be treated as leave due and admissible and the period of absence from 01.03.2008 to 02.02.2014 will be treated as extraordinary leave not to count for any service benefit, the Petitioner being prejudiced to the said view submitted his reply under Annexure-10. 4.2. It is contended that without considering the reply so submitted under Annexure-10 Opp. Party No. 1 passed the impugned order of punishment vide order dtd.02.07.2015 under Annexure-11. While disposing the proceeding though Opp. Party No. 1 inflicted the punishment of withholding of one increment without cumulative effect, which is in the nature of a minor penalty, but directed to treat the period of absence from 27.06.2006 to 28.02.2008 as leave due and admissible and the period from 01.03.2008 to 02.02.2014 as extraordinary leave not to count for any service benefits. Page 3 of 9 // 4 // 4.3. It is contended that against such order of punishment though the Petitioner filed an appeal under Annexure-12, but vide order dtd.10.06.2016 under Annexure-13 the appeal was also rejected without proper appreciation of the grounds. Accordingly, the present writ petition has been filed challenging the 2nd show-cause issued under Annexure-9, the order of punishment passed under Annexure-11 and confirmed vide order under Annexure-13. 4.3. It is contended that since the Disciplinary Authority-Opp. Party No. 1 proposed to impose punishment of withholding of one increment without cumulative effect, which is in the nature of minor penalty, as per the decision of this Court in the case of Bani Bhusan Dash Vs. State of Odisha & Ors. (2021 (III) ILR-CUT- 528), the order to treat the period of suspension is not sustainable in the eye of law. This Court in the aforesaid Judgement in Para 7 to 10 has held as follows:- <7. As has been already indicated, impugning the order of punishment passed by the disciplinary authority, vide Annexure-8 dated 15.09.2018, the instant writ petition has been filed. The punishments, which have been imposed are extracted hereunder:- "1. One increment of Sri Bani Bhusan Dash is stopped without any cumulative effect. 2. The delinquent officer posted to any DRDA other than DRDA, Puri. Page 4 of 9 // 5 // 3. Period of his Suspension is treated as leave due and admissible." So far as 1st punishment is concerned, Mr. S.N. Patnaik, learned counsel appearing on behalf of the petitioner very fairly states that he is not pressing the same, as the same has been defined as a minor penalty in terms of the penalties prescribed under Rule-13 of the OCS (CCA) Rules, 1962, which is applicable to the employees of DRDA in Orissa. Therefore, he has no grievance with regard to imposition of that penalty on the petitioner particularly when such punishment has been implemented. 8. In view of the above, now it is to be seen whether 2nd and 3rd punishment imposed by the disciplinary authority be construed punishment in the eye of law and if not, whether the order passed to that extent can sustain or has to be given a go- bye. in the name of penalty 9. So far as the 2 punishment is concerned, with regard to restricting the posting of the petitioner from DRDA, Puri rather to post him in any other DRDA, is not only arbitrary and irrational, but also amounts to misuse of official power bestowed with opposite party no.2. Imposition of such restriction in a departmental proceeding is violative of the service rules and it can be safely construed that such restriction has been put with an ulterior motive especially when the same has not been prescribed as a penalty under Rule-13 of the OCS (CCA) Rules, 1962. Furthermore, Regulation-15 of The Orissa District Rural Development Agency Employees (Recruitment and Conditions of Service) Regulations, 1989 deals with "Transfer" and Regulation 25 thereof deals with "Discipline". While there is a clear provision for applicability of OCS (CCA) Rules, 1962 to the employees of the Agency in the matter of disciplinary control, as per Regulation-25 and Regulation 15 puts a clear bar on transferring of an employee from one agency to another, with exception to consider such transfer only in case of willingness made by the concerned employee and on consent of both the agencies and that too forgoing seniority etc. in new place of posting and taking into account the same, this Court had passed an order on 06.08.2015 in W.P.(C) No. 2955 of 2015 and as such, the 2 punishment imposed in the order impugned vide Annexure-8 does not come within the purview of "penalty" prescribed under Rule-13 of the OCS (CCA) Page 5 of 9 // 6 // Rules, 1962, and more so to give a posting to the petitioner to any other DRDA, other than DRDA Puri cannot be construed to be a punishment within the framework of law, the same cannot be anyway held to be sustainable. 10. Coming to the 3 punishment, as imposed in the impugned order dated 15.09.2018 under Annexure-8, i.e. treating the period of suspension as leave due and admissible, no doubt the authorities are empowered to place an employee under in contemplation or pending drawal of a suspension proceeding exercising their power under Rule-12 of the OCS (CCA) Rules,1962. Accordingly, they have to give a conclusion the manner to treat the period of suspension at the time of passing final order in the departmental proceeding. The authorities are to keep the suspension as such or to revoke the said suspension order by revising the period of suspension as duty, as because honouring non-engagement certificate for the relevant period, the authorities have sanctioned subsistence allowance to the delinquent during the period of suspension. In the instant case, the authority, after taking a decision not to treat the period of suspension as such, is not empowered to take a decision to treat the period of suspension as leave due and admissible. when the petitioner did not ask for any leave during the said period of suspension. Regularization of a particular period treating as leave period of different kinds of leave, as provided under Orissa Leave Rules, can be considered only when the petitioner/employee concerned seeks leave from the competent authority for certain period under certain circumstances. The authority cannot initiate a proposal from its side in assumption of leave application from the delinquent or employee concerned to treat the period as leave due and admissible affecting the delinquent by way of consuming accrued leave in favour of the employee concerned without any fault on his part. As the authority has come to a conclusion to punish the petitioner only with a minor penalty, the decision of the competent authority to place the petitioner under suspension on the allegation of grave misconduct does not appear to be satisfactory, rather it seems that the order of suspension was issued without application of mind or in a routine or mechanical manner. As such, no review of suspension was held, as per the guidelines. Under such circumstances, after concluding the departmental proceeding by imposing minor penalty of stoppage of one increment without cumulative effect, the authority should not have treated Page 6 of 9 // 7 // the period of suspension in any manner other than the duty affecting the service condition of the petitioner.= 5. Even though notice of the writ petition issued by the Tribunal vide order dtd.05.10.2016, but no counter has been filed by the State-Opp. Parties in spite of several opportunities. However, Mr. Balabantaray, learned AGA contended that even though the Petitioner remained on unauthorized leave for the period from 27.06.2006 to 02.02.2014, Opp. Party No. 1 while disposing the proceeding with imposition of the punishment of withholding of one increment without cumulative effect, passed the order to treat the period of suspension from 27.06.2006 to 28.02.2008 as leave due and admissible and the balance period from 01.03.2008 to 02.02.2014 as extraordinary leave not to count for any service benefit. It is accordingly contended that there is no illegality with regard to such an order passed by the O.P. No. 1 under Annexure- 11 and confirmed under Annexure-13. 5.1. It is also contended that on the face of the charges framed against the Petitioner for such unauthorized absence, Opp. Party No. 1 taking a lenient view of the matter only imposed the punishment of withholding of one increment without cumulative effect, O.P. No. 1 in order to see that the period of absence is regularized passed the order to treat the period of absence from Page 7 of 9 // 8 // 27.06.2006 to 28.02.2008 as leave due and admissible and the period from 01.03.2008 to 02.02.2014 as extraordinary leave not to count for any service benefit. It is accordingly contended that since already a sympathetic view has been taken by the O.P. No. 1 by allowing the Petitioner to rejoin in his work, no further claim at the instance of the Petitioner is entertainable. 6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, it is found that even though the Petitioner faced the proceeding so initiated against him vide Memorandum issued under Annexure-1, but after consideration of the report of the Enquiry Officer and the reply submitted by the Petitioner, O.P. No. 1 disposed of the proceeding by imposing the punishment of withholding of one increment without cumulative effect. Since the punishment of withholding of one increment is in the nature of minor penalty as provided under Rule 13 of OCS (CCA) Rules, 1962, O.P. No. 1 while imposing such a penalty, is not supposed to treat the period of absence as leave due and admissible and extraordinary leave and that too by treating the period of absence from 01.03.2008 to 02.02.2014 not to count towards any service benefits. Page 8 of 9 // 9 // 6.1. Placing reliance on the decision of this Court in the case of Bani Bhusan Dash as cited (supra), once the Disciplinary Authority imposes a minor penalty, he has no other alternative than to treat the period of suspension as duty without affecting the service condition of the Petitioner. In view of such position, this Court is inclined to interfere with the matter with regard to the order treating the period of suspension. While interfering with the same, this Court directs the O.P. No. 1 to treat the period of absence of the Petitioner from 27.06.2006 to 02.02.2014 as duty, but on notional basis as the Petitioner has not worked for the period from 27.06.2006 to 02.02.2014. The Petitioner will however be entitled to get the service benefit as due and admissible. 7. With the aforesaid observation and direction, the writ petition is disposed of. (Biraja Prasanna Satapathy) Judge Sneha Page 9 of 9