The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC (OAC ) No.2614 of 2012 Sarbeswar Barik …. Petitioner Mr. G.R. Sethi, Adv. -versus- State of Odisha & Others …. Opposite Parties Mr. M.K. Balabantaray, Addl. Govt. Advocate CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 27.06.2023 Order No 04. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. G.R. Sethi, learned counsel appearing for the Petitioner and Mr. M.K. Balabantaray, learned Additional Government Advocate. 3. The Petitioner has filed the present Writ Petition with the following prayer. “(i) To quash the order dtd.11.03.2008 under Annexure-8. (ii) To direct the respondents to grant all financial and consequential benefits with effect from 08.10.1985 to 23.08.98 (iii) And pass such other order/orders as may be deemed fit and proper for the interest of justice. (iv) To quash DO NO-803 dtd.24.07.2000 under Annexure-5.= 4. Learned counsel appearing for Petitioner contended that in a proceeding initiated against the // 2 // Petitioner; when the Petitioner was removed from his service vide order dt.08.10.1985, the Petitioner challenged the same before the Tribunal in OA No.584 of 1993. The Tribunal vide order dt.21.05.1998
Decision
disposed of the said matter with the following direction: <We, therefore, direct that the applicant shall be reinstated in service forthwith and given all service benefits according to rules. We further direct that respondent 4 (Superintendent of Po9lice, C.I.D., Crime Branch, Cuttack (Orissa) shall pass orders imposing appropriate penalty or penalties on the applicant (delinquent employee) as indicated herein. IN view of our hereinabove findings on the cost important pleas of the applicant and the directions, we have not considered it necessary to look into the other minor pleas. In the result, the Original Application is allowed as indicated and directed hereinabove. There shall be no order as to costs.= 4.1. Learned counsel appearing for the Petitioner contended that on being communicated with the order passed by the Tribunal, the Opp. Party NO.3 passed an order on 01.09.1998 by allowing re-instatement of the Petitioner in his service w.e.f 24.08.1998 at Annexure-2. In the said order, Opp. Party No.3 also took a decision to decide the claim of the Petitioner for the period, he remained out of employment i.e 08.10.1985 to 23.07.1998. Subsequently vide order dt.17.12.1998 available at Annexure-3, the self-same authority decided to treat the period of service from 08.10.1985 to 23.08.1998 as duty. However, it is contended that taking advantage of the liberty granted by the Tribunal in its order under Anenxure-1, subsequent Superintendent of Police passed the another order in the proceeding so initiated against the Petitioner vide the impugned order dt.24.07.2005 under Annexure-5. In the said order, Opp. Page 2 of 8 // 3 // Party No.3 directed to treat the period from 08.10.1985 to 23.08.1998 as Leave without Pay. 4.2. Mr. G.R Sethi, learned counsel for the Petitioner contended that while complying the order passed by the Tribunal since the previous incumbent vide its order dt.17.12.1998 at Annexure-3 directed to treat the period in question as duty, the subsequent incumbent should not have treated the said period as Leave Without Pay vide the impugned order dt.24.07.2000 under Annexure-5. It is further contended that the order passed at Annexure 5 was challenged by the Petitioner before the Tribunal and the Tribunal vide its order dt.03.11.2006 under Annexure-7 directed Opp. Party No.2 to take a fresh decision on the claim of the Petitioner. However, the Opp. Party No.2 without proper appreciation of the Petitioner’s claim, rejected the prayer by upholding the order passed by Opp. Party No.3 on 24.07.2000 under Anenxuire-5 vide order under Annexure-8. 4.3. Learned counsel for the Petitioner vehemently contended that since the previous incumbent holding the post of Superintendent, CID, CB while implementing the order so passed by the Tribunal under Annexure-1, directed to treat the period in question as duty, the subsequent incumbent should not have passed a different order by treating the said period as Leave without Pay. The said anamoly in the order passed by two different incumbent holding the post of Opp. Party No.3, was not taken into consideration by Opp. Party No.2 while passing the order at Annexure-8. Accordingly, it is contended that the order at Annexure-5 as well as Annexure-8 are liable for interference of this Court. Page 3 of 8 // 4 // 5. Mr. M.K. Balabantaray, learned Additional Government Advocate on the other hand contended that even though while implementing the order passed by the Tribunal under Annexure-1, the Petitioner was re-instated in his service vide order under Annexure-2 and subsequently vide order under Annexure-3, the period in question was treated as duty, but in view of the liberty granted by the Tribunal in its order under Annexure-1, the subsequent incumbent while finalizing the proceeding so initiated against the Petitioner treated the period as Leave without Pay vide order dt.24.07.2000 under Annexure-5. The said order when was challenged by the Petitioner before the Tribunal, the Tribunal in its order under Annexure-7 directed the Opp. Party No.2 to take a fresh decision. It is further contended that Opp. Party No.2 after due consideration of the Petitioner’s claim rejected the prayer by upholding the order passed under Annexure-5. It is accordingly contended that since the Petitioner was terminated from his service basing on the final order passed in the disciplinary proceeding and pursuant to the order passed by the Tribunal, he was reinstated in service w.e.f 24.8.1998, he is not eligible and entitled to get the financial benefit for the period from 08.10.1985 to 23.08.1998. Accordingly, it is contended that no illegality is there with the order passed under Annexure-5 and so confirmed under Annexure-8. 5.1. To the aforesaid submission of Mr. M.K. Balabantaray, learned Additional Government Advocate, Mr G.R, Sethi, learned counsel for the Petitioner contended that after due appreciation of the order passed by the Tribunal under Annexure-1, the Petitioner was reinstated in his service w.e.f Page 4 of 8 // 5 // 24.08.1998 and Opp. Party No.3 subsequently directed to treat the said period as duty. The subsequent incumbent holding the post of Opp. Party No.3 should not have passed a different order under Annexure-5. 6. Mr. G.R. Sethi, learned counsel appearing for the Petitioner also relied on a decision of this Court reported in 2022(2) OLR 763. It is contended that once a person is reinstated in service after due consideration of the matter, the employee concerned is eligible and entitled to get the back wages for the periodd he remained out of employment. The view expressed by this Court in paragraphs 7,8 & 11 of the aforesaid decision are reproduced herein. 7. The Petitioner challenged initiation of Second Disciplinary Proceeding in O.A. NO.2510(C )/2010 on the ground that since the punishment of compulsory retirement has already been passed in First D.P. i.e. D.P. NO.1 of 2003, the continuance of Second D.P is bad in law. During adjudication, the Tribunal clubbing three O.As., namely, O.A. NO.1208(C ) of 2009, in which the punishment order passed n First D.P. was under challenge, O.A No.2510' of 2010, in which continuance of Second D.P. was under challenge, and O.A. NO.1068(C ) of 2008 for reference as the same was disposed of on 21.10.2008. The Tribunal, after due adjudication, vide judgment dated 01.11.2011 allowed O.As No.1208(C ) of 2009 and No.2510(C ) of 2010 by quashing both the Disciplinary Proceedings. But, at the same time, though O.A. No.1068(C ) of 2008 was disposed of earlier, but he same was again disposed of directing the authority to consider the representation regarding Subsistence Allowance, which could not have been directed by the Tribunal. But, fact remains, in O.A. NO.1068' of 2008, the order dated 31.08.2007 reducing the Subsistence Allowance was it was already disposed of on challenged and 21.10.2008. Keeping in view the error apparent on the face of the record, the Petitioner filed Review Petition NO.37(C ) of 2012 to review the judgment only to the extent of wrong disposal of O.A. NO.1068(C ) of 2008. The Tribunal, though not indicated in the order but upon consideration of R.P. NO.37' of 2012, reviewed the judgment and removed the O.A. No.1068(C ) of Page 5 of 8 // 6 // 2008 from the cause title of the judgment, which is impugned in the present writ petition. Though the judgment was communicated to the Authorities, but they did not reinstate the petitioner and he was allowed to reach the age of superannuation on 31.01.2012. 8. In the impugned Order, the Tribunal found that the Government admitted that Project Administrator’s Report, which formed basis of charge in both the Disciplinary Proceedings, was not available. Therefore, the Tribunal held that the charges in both the proceedings are not tenable and accordingly, quashed the same and directed that the Petitioner is entitled to be reinstated in service immediately and at the same time, relying upon the judgment passed in Vijay Singh V. Union of India, 2007 (2) SCC (L & S) 664, held that the Petitioner is not entitled to back wages. As such, if the proceedings initiated against the Petitioner were quashed, the Petitioner was continuing in service. Therefore, question of non-grant of back wages to him cannot sustain in the eye of law. is deemed that it 11. In view of law laid down by the apex Court in Sardul Singh (supra), the Petitioner is entitled to get wages, as it is deemed that he has retired in normal course from the post, which he was occupying at the time of compulsory retirement and thus is entitled to get back wages along with all monetary benefits. Therefore, the order dated 01.11.2022 under Annexure-1 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. NO.1208(C ) of 2009 refusing to grant back wages to the Petitioner cannot sustain in the eye of law and the same is liable to be quashed and is hereby quashed. Thereby, this Court directs the Opposite Parties to comply with he direction contained hereinbefore with regard to back wages and all other monetary benefits within a period of four months from the date of receipt of this order.= 7. Having heard learned counsel for the parties and taking into account the materials available on record, this Court is of the view that while implementing the order of the Tribunal, Opp. Party No.3 initially while reinstating the petitioner w.e.f 24.08.1998 vide order under Annexure-2, decided to treat the period from 08.10.1985 to 23.08.1998 as duty vide order dt.17.12.1998 under Annexure-3. The subsequent Page 6 of 8 // 7 // incumbent assuming the charge of Opp. Party No.3 prior to treating the said period as Leave without Pay vide the impugned order under Annexure-5 should have taken into consideration the earlier order passed by the self-same authority on 17.12.1998. Since the subsequent incumbent while passing the order at Annexure-5 has not taken into consideration the earlier order passed by the self-same authority under Annexure-3, the order at Annexure-5 as per the considered view of this Court is not sustainable in the eye of law. 7.1. Therefore, this Court is also inclined to quash the order at Annexures-5 & 8. While quashing both the orders under Annexures-5 & 8, this Court remits the matter to Opp. Party No.1 to take a fresh decision on the petitioner’s claim to get the benefit for the period in question. This Court directs Opp. Party No.1 to take a fresh decision on the claim of the petitioner within a period of three(3) months from the date of receipt of this order. 5.4. It is observed that while taking such a decision, the order passed by the previous incumbent/Opp. Party No.3 on 17.12.1998 and the order passed by the subsequent authority under Annexure-5 shall be taken into consideration in its proper prospective. This Court also directs the Opp. Party No.1 to take into account the decision of this court as cited (supra) while taking a fresh decision in the matter. The entire exercise shall be undertaken and completed within a period of three (3) months from the date of receipt of this order. Page 7 of 8 // 8 // 6. The Writ Petition is accordingly disposed of with the aforesaid observation and direction. (Biraja Prasanna Satapathy) Judge sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: High Court of orissa, Cuttack Date: 12-Jul-2023 12:41:26 Page 8 of 8