Banamali Patra State of Odisha & Others … v. …
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P (C) (OAC) No. 2620 of 2013 Banamali Patra State of Odisha & Others ….. Vs. ….. Petitioner Mr.B. Dash, Advocate. Opposite Parties
Legal Reasoning
Mr.S.N.Pattnaik, AGA CORAM: MR. JUSTICE BIRAJA PRASANNA SATAPATHY
Decision
ORDER 10.02.2023 Order No. 02. This matter is taken up through hybrid mode. 2. Heard Mr. B. Dash, learned counsel for the Petitioner and Mr. S.N. Pattnaik, learned Addl. Government Advocate for the State. 3. The memo filed by the learned counsel for the Petitioner in Court be kept on record. 4. This Writ Petition has been filed challenging the order dated 08.05.2013 passed under Annexure-11 as well as the initiation of the disciplinary proceeding vide Memorandum dated 22.03.2013 under Annexure-10. 5. Learned counsel for the Petitioner contended that the Petitioner while working as Follow Orderly, he submitted an application seeking his intention to take voluntary retirement from service on 04.03.2013 under Annexure-8. But subsequently when he was directed to make the said application in terms of the provision contained under Rule-42 of the OCS (Pension) Rules, 1992 vide letter under Annexure-9 dated 13.03.2013, he submitted the same once again on 20.04.2013. But it is contended that Page 1 of 4 prior to such submission of the second application, since the proceeding was already initiated against the Petitioner on 22.03.2013 under Annexure-10, the VRS application was rejected on the ground of pendency of the proceeding on 08.05.2013 under Annexure-11. 6. Learned counsel for the Petitioner contended that while continuing in the post in question, the Petitioner was put under transfer vide order dated 25.07.2012 under Annexure-2(a). It is contended that even though he was relieved from his service, he could not join in his place of transfer, because of his illness and suffering from Typhoid. The Petitioner even though apprised such difficulty to the Superintendent of Police, Mayurbhanj under Annexure-4 on 29.09.2012, but he was issued with the notices under Annexure-5 & 6 to join in his place of transfer and he was also directed to vacate the quarter in his occupation. But it is contended that after recovery from his illness as well as the illness of his mother, the Petitioner joined in his service on 01.03.2014. The Petitioner since 01.03.2014 is also continuing in service. 7. It is contended that since initially the Petitioner submitted the application for VRS on 04.03.2013 and no proceeding was pending as on the said date, the grounds taken by the Opposite Party in rejecting the application for VRS is not sustainable in the eye of law. 8. It is also contended that during pendency of the application since the proceeding was initiated against him only on the ground of unauthorized absence vide Annexure-10, the said proceeding is not sustainable in the eye of law and it was so initiated in order to deprive the Petitioner from availing the benefit of voluntary retirement. 9. Mr. S.N. Pattanaik, learned Addl. Government Advocate for the State on the other hand contended that since the application initially Page 2 of 4 submitted by the Petitioner on 04.03.2013 under Annexure-8 was not a proper application in the prescribed format, he was directed to make a fresh application vide letter dated 13.03.2013 under Annexure-9. Pursuant to the said letter and by the time the Petitioner made a fresh application, the proceeding had already been initiated on 22.03.2013. Hence, no illegality has been committed by the Opposite Party No.3 in rejecting such application vide the impugned order at Annexure-11 as well as the initiation of the proceeding under Annexure-10. 10. Mr. Pattnaik also contended that since the Petitioner in spite of being relieved from his service pursuant to his order of transfer, he did not join in his place of transfer nor vacated the quarter in question, the proceeding has been rightly initiated. 11. In course of hearing Mr. Dash, learned counsel for the Petitioner contended that the Petitioner because of his illness as well as the illness of his mother was prevented from joining in his place of transfer and even though the same was duly intimated to the Opposite Party No.3 vide Annexure-4, but no further communication was made by allowing the Petitioner to continue in his leave. Secondly, the authority should have accepted the initial application submitted by the Petitioner to take voluntary retirement on 04.03.2013, as by that date no proceeding was admittedly pending against him. But Mr. Das contended that since the petitioner in the meantime has joined on 01.03.2014 and he does not want to take voluntary retirement from service, he may be allowed to continue in his service and the period of unauthorized absence for which the proceeding under Annexure-10 has been initiated be considered as leave due and admissible with dropping of the proceeding in question. 12. This Court finds that the proceeding under Annexure-10 was initiated only on the ground of unauthorized absence from duty. The Page 3 of 4 Petitioner as found from the record was prevented from joining after his transfer and consequential relieve because of his prolonged illness as well as the illness of his mother. The Petitioner after his recovery from illness was allowed to join on 01.03.2014 and he is continuing as such till date. 13. This Court in view of the peculiar facts and circumstances of this case and the continuance of the Petitioner w.e.f. 01.03.2014 as well as the interim order passed on 26.08.2013 is not inclined to interfere with the impugned order at Annexure-11, so far as it relates to rejection of the application for voluntary retirement. But observes that instead of proceeding with the departmental proceeding so initiated against the Petitioner vide Annexure-10, the Opposite Party No.3 shall close the proceeding with an order to treat the services of the Petitioner for the period he remained absent unauthorisedly as leave due and admissible. The Opposite Party No.3 is directed to take appropriate steps to regularize the services of the Petitioner by treating the same as leave due and admissible and such an order be passed within a period of three months from the date of receipt of this order. The Petitioner is directed to make necessary application seeking regularization of the period of service he remained absent unauthorisedly within a period of ten days from the date of receipt of this order. 14. Accordingly, the Writ Petition stands disposed of. Subrat (Biraja Prasanna Satapathy) Judge Page 4 of 4