The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P (C) (OAC) No.891 of 2014 Bhagabati Guru …. Petitioner Mr. S.K. Nanda, Advocate -versus- State of Odisha & Others …. Opposite Parties Mr. M.K. Balabantaray, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 21.03.2024 Order No. 11. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard learned counsel appearing for the Parties. 3. Petitioner has filed the present writ petition inter alia with the following prayer:- “(a) The order No.(II) of the Appellate Authority under Annexure- 13 directing the period of suspension including the period of dismissal to be treated as the period spent under suspension be set aside. (b) The Respondents be directed to treat the period of suspension i.e. from 31.01.1996 to 08.05.2000 and the period of dismissal i.e. from 01.09.2001 to 16.01.2007 as period of service and the respondents may be directed to pay fill pay for those period will all service benefits; And (c) the respondents be directed to treat the period of suspension and dismissal as period of service for seniority and other purpose”. 4. It is contended that in the proceeding initiated against the Petitioner vide Memorandum dtd.19.11.1996, Petitioner when was imposed with the punishment of dismissal from service vide order dtd.05.10.2001 under // 2 // Annexure-10, Petitioner preferred an appeal before Government-Opposite Party No.1. The appellate authority after due consideration of the appeal though passed an order of reinstatement vide order dtd.03.01.2007 under Annexure-11, but when held that for the period of suspension, Petitioner will not be entitled to get any benefit, Petitioner challenging the same approached the Tribunal in O.A No.29(S) of 2007. 4.1. The Tribunal vide order dtd.17.10.2011 under Annexure-12, while disposing the matter remitted the same to the appellate authority to pass necessary order in terms of the provisions contained under Rule-29 of the OCS (CC&A) Rules, 1962 (in short Rules). 4.2. It is contended that on being so directed, Opposite Party No.1 passed a fresh order on 16.05.2012 under Annexure-13. Vide the said order, the order of dismissal so passed against the Petitioner on 05.10.2001 though was set aside, but the period of suspension was treated as such.
Legal Reasoning
4.3. Learned counsel for the Petitioner contended that in the proceeding so initiated against the Petitioner vide Memorandum dtd.19.11.1996, after submission of the enquiry report on 30.06.2001, Petitioner was never issued with the 1st show cause along with the enquiry report enabling him to submit the explanation as provided under Rule-15 of the aforesaid rules. The disciplinary authority-Opposite Party No.2 straight away issued the 2nd show cause by proposing the punishment of Page 2 of 6 // 3 // dismissal. Petitioner though submitted her reply to the proposed punishment but vide order dtd.05.10.2001 under Annexure-10, Petitioner was dismissed from Government service with immediate effect and the period of suspension was treated as such. 4.4. It is contended that since the statutory provisions contained under Rule-15 of the Rules was not followed with issuance of 1st show cause along with copy of the enquiry report, the very conduct of the proceeding with passing of the punishment is vitiated and no order of punishment could have been imposed by dismissing the Petitioner from her services. 4.5. However, it is contended that the appellate authority vide order under Annexure-11 though reinstated the Petitioner in her services and subsequently on being remanded the order of dismissal was set aside vide the impugned order dtd.16.05.2012 under Annexure-13, but the period of suspension has been treated as such. 4.6. It is contended that since the very proceeding which culminated with passing of an order on dtd.05.10.2001 under Annexure-10 is vitiated due to non-compliance of the statutory provisions contained under Rule-15 of the Rules, the punishment so imposed is nonest in the eye of law and no such punishment could have been imposed. However, even though Petitioner has been reinstated in her services in terms of the order dtd.03.01.2007 and order of dismissal was set aside vide order dtd.16.05.2012, but she is aggrieved because of the Page 3 of 6 // 4 // action of Opposite Party No.1 in treating the period of suspension as such. It is accordingly contended that punishment so far as it relates to treating the period of suspension as such is liable for interference of this Court. 5. Learned Addl. Government Advocate though made his submission basing on the stand taken in the counter affidavit and contended that since the order of dismissal passed against the Petitioner by the disciplinary authority vide order dtd.05.10.2001 under Annexure-10 was set aside by the appellate authority by allowing reinstatement of the Petitioner vide order dtd.03.01.2007 under Annexure-11, Petitioner is no way prejudiced with regard to treating the period of suspension as such. 6. Considering the stand taken in the counter affidavit, this Court when finds that after submission of the re- enquiry report on 30.06.2001, no show cause was issued to the Petitioner along with copy of the report, this Court passed the following order on 06.03.2024:- “1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the Parties. 3. Learned counsel for the Petitioner contended that even though the Enquiry Officer initially submitted the enquiry report on 28.02.2001 by holding that the period of suspension be treated as leave due and admissible and the Petitioner be censured, but the disciplinary authority – Collector, Deogarh directed Sub-Collector, Deogarh to conduct fresh enquiry vide his order dtd.23.05.2001 under Annexure-8. 3.1. The said Enquiry Officer submitted his report dtd.13.06.2001 vide letter dtd.30.06.2001. Thereafter, Petitioner was issued with the 2nd show cause on 03.09.2001 and order of punishment was passed on 05.10.2001 under Annexure-10. However, Petitioner was Page 4 of 6 // 5 // never issued with the 1st show cause as provided under Rule-15 of OCS (CC&A) Rules, 1962. In the counter affidavit, no document has been filed showing that Petitioner after submission of the enquiry report on 13.06.2001 was issued with the 1st show cause along with copy of the enquiry report. 4. In that view of the matter, this Court directs learned Addl. Government Advocate to produce the document showing issuance of the 1st show cause along with the copy of the enquiry report after 30.06.2001 to the Petitioner on the next date. 5. As requested by Mr. M.K. Balabantaray, learned Addl. Government Advocate for the State, list this matter on 13th March, 2024”. 7. Pursuant to the order passed by this Court, learned Addl. Government Advocate produced the proceeding file before this Court. This Court after going through the same finds that after submission of the re-enquiry report in terms of the order passed by the disciplinary authority on 30.06.2001, Petitioner was never issued with the 1st show cause along with the copy of the enquiry report in terms of the provisions contained under Rule-15 of the Rules. Therefore, it is the view of this Court that since statutory provisions contained under Rule-15 has not been followed by the disciplinary authority, the order of punishment passed under Annexure-10 by the disciplinary authority is vitiated. However, since the order of dismissal has already been set aside by the appellate authority while allowing reinstatement of the Petitioner vide order dtd.03.01.2007, the period of suspension could not have been treated as such. 7.1. In view of such material irregularity which is apparent on the face of the record, this Court is of the view that the period of suspension be treated as leave due Page 5 of 6 // 6 // and admissible, instead of treating the period of suspension as such. While holding so, this Court directs Opposite Party No.3 to pass a fresh order in accordance with law by treating the period of suspension as leave due and admissible within a period of two (2) months from the date of receipt of this order. Consequential follow up action be taken to release the financial benefits as due and admissible within a further period of two (2) months.
Decision
8. Accordingly, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 22-Mar-2024 13:52:19 Page 6 of 6