The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC (OAC) No.486 of 2017 Satya Narayan Kar …. -versus- Petitioner Mr. N. Rath, Advocate State of Odisha & Others …. Opposite Parties Mr. B. Mohanty, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY
Decision
ORDER 27.08.2024 Order No. 02. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the Parties. 3. This Writ Petition has been filed by the Petitioner inter alia challenging the order of punishment so passed by Opposite Party No.4 vide order dtd.03.01.1998 under Annexure-9, further confirmed by the appellate authority- Opposite Party No.2 vide order dtd.12.05.2010 under Annexure-11. 4. Learned counsel for the Petitioner contended that in the proceeding initiated against the Petitioner vide Memorandum dtd.02.05.1994, Petitioner was imposed with the punishment of recovery of a sum of Rs.7524/- along with stoppage of one increment without cumulative effect, // 2 // vide order dtd.03.01.1998 under Annexure-9. It is contended that since the punishment of recovery of Rs.7524/- and stoppage of one increment without cumulative effect are minor punishments as prescribed under Rule-13 of the OCS (CCA) Rules, 1962, while imposing such minor punishment, the period of suspension could not have been treated as leave due and admissible vide the impugned order passed by Opposite Party No.4 under Annexure-9. 4.1. In support of his aforesaid contention, learned counsel for the Petitioner relied on the decision of this Court so passed in the case of Bani Bhusan Dash vs. State of Odisha & Others, followed by an order passed in W.P.(C) (OA) No.2585 of 2016. This Court in the case of Bani Bhusan Dash in Para- 10 has held as follows:- “10. Coming to the 3rd 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 suspension in contemplation or pending drawal of a 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 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 nonengagement 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 in Page 2 of 5 // 3 // only when 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 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 the period of suspension in any manner other than the duty affecting the service condition of the petitioner.” 4.2. It is contended that Petitioner challenging such order of punishment though preferred an appeal, but the appellate authority vide order dtd.12.05.2010 under Annexure-11, while rejecting the same, confirmed the order of punishment. 4.3. It is contended that since Petitioner in the proceeding in question was imposed with minor punishments of recovery of Rs.7524/- with stoppage of one increment without cumulative effect, while imposing such minor punishments, the period of suspension could not have been treated as leave due and admissible in view the decision in Page 3 of 5 // 4 // the case of Bani Bhusan Dash, so followed by this Court in its order passed in WPC(OA) No.2585 of 2016. 5. Even though learned AGA while supporting the impugned order made his submission, but he does not dispute the decision of this Court in the case of Bani Bhusan Dash so followed by this Court in its order in W.P.(C) (OA) No.2585 of 2016. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that in the proceeding initiated against the Petitioner, Opposite Party No.4 as the disciplinary authority imposed the punishment of recovery of Rs.7524/- and stoppage of one increment without cumulative effect vide order dtd.03.01.1998 under Annexure-9. Since punishments of recovery of Rs.7524/- and stoppage of one increment without cumulative effect are minor punishments as prescribed under Rule-13 of OCS (CCA) Rules, 1962, placing reliance on the decision in the case of Bani Bhusan Dash, it is the view of this Court that while imposing such minor punishment, the period of suspension could not have been treated as leave due and admissible. 7. Therefore, this Court while interfering with that part of the order so far as treating the period of suspension as leave due and admissible is inclined to quash the same. While quashing the order so far as it relates to treating the period of suspension as leave due and admissible, this Court directs Opposite party No.4 to treat the period of Page 4 of 5 // 5 // suspension as duty for all purposes. This Court accordingly directs Opposite Party No.4 to pass a fresh order by treating the period of suspension as duty and extend the benefit as due and admissible accordingly. The entire exercise shall be undertaken and completed by Opposite Party No.4 as directed within a period of three (3) months from the date of receipt of this order. 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: 28-Aug-2024 18:24:04 Page 5 of 5