The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC (OAC) No.3246 of 2011 Gokul Chandra Mishra …. Petitioner -versus- State of Odisha and Others …. Opp. Parties CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No ORDER 14.03.2023 5. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. S. Behera, learned counsel for the Petitioner and Mr. YSP Babu, learned Additional Government Advocate for the State. 3. The Petitioner has filed the present Writ Petition challenging the order of punishment passed under Annexure-10 and confirmed by the Appellate Authority vide order at Annexure-15. It is contended that the Petitioner while continuing as a Range Officer, a proceeding was initiated against him vide Memorandum dated 26.11.1986. In the said proceeding when the disciplinary authority without following the provisions contained under Rule-15 of OCS (C.C.&A) Rules, 1962 imposed the order of punishment vide order dated 09.05.1989 under Annexure-1, the Petitioner challenging the same moved the Appellate Authority. It // 2 // is contended that after much persuasion, the Appellate Authority remanded the matter back for fresh disposal with direction on the disciplinary authority to provide the petitioner a copy of the inquiry report and to proceed in the matter accordingly. In terms of the order passed by the Appellate Authority, the Petitioner was provided with a copy of the inquiry report and the disciplinary authority after due consideration of the matter passed the impugned order of punishment under Annexure-10. 4. Learned counsel for the petitioner contended that while imposing the order of punishment under Annexure-10, since the disciplinary authority did not follow the provisions contained under Rule-82 of Orissa Service Code, the petitioner challenging the same once again moved the Appellate Authority by preferring an appeal vide Annexure-11. In the said Memo of appeal, the petitioner in Para-8 (f) also took a stand, that the order of punishment so imposed by the Disciplinary Authority under Annexure-10, since is not in confirmity with the provisions contained under Rule-82, the said order of punishment is not sustainable in the eye of law. However, it is contended that the Appellate Authority while considering the matter held that the order of punishment so imposed by the Disciplinary Authority under Annexure-10 shall be prospective in nature and the reduction of the scale of pay is forever. 4.1. Learned counsel for the Petitioner contended that even though under Rule-82(2) of the Orissa Service Page 2 of 5 // 3 // Code, the authority concerned is competent to prescribe the period, for which the reduction of the Scale of Pay shall remain effective, but in view of the instructions issued by the Government vide FD No.35722/F, dated 07.12.1969, it has been specified that the reduction cannot be of a permanent measure and it cannot be also for an unspecified period. Relying on the said instruction, learned counsel for the petitioner contended that the Appellate Authority while dealing with the provision contained under Rule-82 of the Orissa Service Code has not followed the instructions, so issued by the Government on 07.12.1969. In view of such instruction issued by the Government the reduction of scale of pay cannot be permanent in nature and the Appellate Authority without following the said instruction, disposed of the appeal vide the impugned order at Annexure-15. 5. Mr. YSP Babu, learned Additional Government Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that in terms of the modified order passed by the Appellate Authority under Annexure-15, the Petitioner was denied the benefit of increment for 2 (two) consecutive year and the pay fixation of the petitioner has been made by following the punishment so imposed under Annexure-B/2. It is accordingly contended that since the Appellate Authority by following the provisions contained under Rule-82 of the Orissa Service Code has clarified the effectiveness of the order of punishment, no Page 3 of 5 // 4 // illegality or irregularity cannot be found with the modified order so passed by the Appellate Authority under Annexure-15. 6. Heard learned counsel for the parties. Perused the materials available on record. This Court after going through the same finds that the disciplinary authority while imposing the order of punishment under Annexure-10 has admittedly not followed the provisions contained under Rule-82 of the Orissa Service Code. Rule-82 of the Orissa Service Code is reproduced hereunder:- “82. RESTORATION AFTER DEDUCTION AND THE CONSEQUENTIAL BENEFITS: (1) If a Government servant is reduced as a measure of penalty to a lower state in his time-scale, the authority ordering such reduction shall state the period for which it shall be effective and whether, on restoration, the period of reduction shall operate to postpone future increments and, if so, to what extent. (2) If a Government servant is reduced as a measure of penalty to a lower service grade or post or to a lower time-scale the authority ordering the reduction may or may not specify the period for which the reduction shall be effective but where the period is specified, that authority shall also state whether, on restoration the period of reduction shall operate to postpone future increments, and if so, to what extent.” 6.1. It is also found that though under Rule-82(2), the authority concerned is competent to direct the reduction of scale of pay without prescribing the period for which the reduction shall be effective, but in view of the instruction issued by the Government vide FD Page 4 of 5 // 5 // No.35722/F dated 07.12.1969, the said reduction cannot be of permanent in nature. Since it is found from the order at Annexure-15 that the Appellate Authority has held the reduction to be forever, as per the considered view of this Court, the same is contrary to the instruction issued by the Government on 07.12.1969. Therefore, relying on the said instruction, this Court is inclined to set aside the order dated 23.06.2011 passed by the Opposite Party No.1 under Annexure-15. While quashing the same, this Court remits the matter back to the Appellate Authority/Opposite Party No.1 to redecide the appeal. While deciding the appeal afresh, Opposite Party No.1 is directed to follow the provisions contained under Rule- 82 vis-à-vis, the instructions provided by Government vide FD No.35722/F dated 07.12.1969. Such a fresh decision shall be taken by the Opposite Party No.1 within a period of 2 (two) months from the date of receipt of this order. 7.
Decision
The Writ Petition is disposed of with the aforesaid observation and direction. (Biraja Prasanna Satapathy) Judge Basudev Page 5 of 5