The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OA) No.2043 of 2019 Pradeep Kumar Nayak Special Director General of Police (Special Branch), Odisha & Ors. -versus- ..... CORAM: Petitioner Mr. A.K. Chhatoi, Advocate Opposite Parties Mr. S. Jena, AGA THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY
Decision
ORDER 06.08.2024 Order No. 05 1. This matter is taken up through hybrid mode. 2. Heard Mr. A.K. Chhatoi, learned counsel appearing for the Petitioner and Mr. S. Jena, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. Petitioner has filed the present writ petition inter alia challenging the charge memo dtd.30.08.2011 under Annexure-5, order of punishment passed vide order dtd.30.05.2013 under Annexure-11 and the order of rejection of the appeal vide order dtd.24.05.2019 under Annexure-14 of Opp. Party No. 2. 4. Learned counsel for the Petitioner contended that in the proceeding initiated against the Petitioner, Petitioner was imposed with the following punishment by the disciplinary authority-Opp. Party No. 2 vide order dtd.30.05.2013 under Annexure-11:- “Hence, as per my proposal in the 2nd Show Cause Notice I do here by award him with a “BLACK MARK” for his such delinquency. As he was placed under suspensioin w.e.f.1.08.2011, vide S.B.D.O. No. 919 Dt.01.08.2011, the period of his suspension from 01.08.2011 am to 21.08.2011 pm for 21 days is treated as such. The period of his unauthorised absence from 11.04.2011 AM to Page 1 of 5. 26.04.2011 PM for 16 days has already been treated as „NO PAY‟ vide S.B.D.O. No. 618 Dt.18.06.2011.” 4.1. Learned counsel for the Petitioner contended that while awarding the punishment of one black mark, period of unauthorized absent was treated as No Pay and period of suspension was treated as such by Opp. Party No. 2. It is contended that since no such punishment to treat the period of unauthorized absent as No Pay and period of suspension as such is prescribed under PMR 824, such punishment could not have imposed while imposing the punishment of one black mark vide order under Annexure-11. PMR 824 reads as follows:- “824 Description of departmental punishments –The following punishments which are sanctioned u/s 7 of Act V of 1861 may be inflicted departmentally on a police officer of and below the rank of Inspector:- (a) Dismissal, (b) Removal, [b-1] Compulsory retirement; and] (c) Reduction in rank, (d) Reduction in time-scale. (e) Withholding of the next increment for a specific offence, with or without subsequent corresponding postponement of increments‟ (f) Black mark or marks, (g) Removal from any office of distinction or specific emolument, (h) Censure, (i) Warning, (j) Confinement to quarters for a period not exceeding 15 days (k) Punishment drill, and (l) Extra guard or fatigue duty: Provided that the punishments mentioned in Clauses (i) to (m) shall not be imposed on any officer of on or above the rank of Sub-Inspector nor the punishment mentioned in (l) on any Assistant sub-inspector, Constable of Ordinary Reserve and Havildar of Armed Reserve. Page 2 of 5. Punishments mentioned in Clauses (a) to (h) are classed as major and the rest are minor. All major punishments and censure shall be entered in the service book other minor punishments may be so entered if the officer awarding the punishment so directs.” 4.2. It is contended that challenging the order of punishment so passed under Annexure-11, Petitioner preferred an appeal before the appellate authority-Opp. Party No. 2 on 06.08.2013 under Annexure-12. But when the same was not disposed of, Petitioner approached the Tribunal by filing O.A. No. 2922 of 2018. The Tribunal disposed of the Original Application vide order dtd.11.12.2018 directing Opp. Party No. 1 to consider and dispose of the matter within one month. When the said order was not complied with, Petitioner filed C.P.(C) No. 50 of 2019 and being aggrieved with the notice issued in the Contempt Proceeding, Opp. Party No. 1 rejected the appeal vide order dtd.09.05.2019 under Annexure-14. 4.3. It is contended that since no such punishment under PMR 824 is prescribed to treat the period of unauthorized absent as No Pay and period of suspension as such, the same is not sustainable in the eye of law. But the disciplinary authority as well as the appellate authority never take into consideration that aspect while passing the impugned orders in question. 4.4. In support of his aforesaid submission, learned counsel for the Petitioner relied on a decision of this Court so passed on 22.12.2022 in W.P.C.(OAC) No. 2433 of 2016. This Court in Para 6.1 & 6.2 of the said order has held as follows:- “6.1. This Court also finds from the materials available on record that when the order passed by the learned Tribunal in O.A. No.2494(C) of 2014 under Annexure-6 was not complied with by the present Opposite Party No.1, the petitioner initiated a Contempt Proceeding in C.P. No.15(C ) /2015. Learned Tribunal vide its order dated 26.03.2015 under Annexure-8 when directed Page 3 of 5. for personal appearance of the Opposite Party No.1, the order of punishment was passed on 08.04.2015 under Annexure-9. Hence, the allegation of mala fide alleged against the Opposite Party No.1 cannot be brushed aside by this Court. This Court also finds that the punishment to treat the period of suspension as such, is not prescribed under the PMR and the said fact has not been disputed by the opposite parties while filing their counter. Pursuant to the order passed by this Court on 17.12.2021, learned Additional Standing Counsel brought to the notice of the Court, the information provided by the Opposite Party No.1 with regard to treating the period of suspension as such, as provided under PMR. The information provided by Opposite Party No.1 on 30.08.2022, nowhere indicates that such order of punishment to treat the period of suspension as such is provided under PMR. The information provided by Opposite Party No.1 on 30.8 .2022 is reproduced herein. “With reference to the letter and subject cited above, it is to submit that C/497 Santosh Kumar Sahoo was awarded a “Black Mark” being found guilty in connection with Puri District Proceeding No.24/2010 for dereliction of duty and disobedience of Order and his period of suspension is treated “as such” As per PMR – 840 (a), suspension shall not be awarded as a specific punishment. However Black Mark is a Major Punishment as per PMR 840(a). Hence, suspension period cannot be treated as a Black Mark.” 6.2. Therefore, this Court after going through the materials available on record is of the prima facie view that the prosecution though has not succeeded in proving the charges against the petitioner, but the Opposite Party No. 1 passed the order of punishment though is not provided under PMR. The appellate authority without considering the grounds of appeal rejected the same vide the impugned order under Annexure-11. Hence, this Court is inclined to quash the order under Annexure-9 & 11 and while quashing the same, this Court directs Opposite Party No. 1 to consider the claim of the Petitioner for his promotion to the post of Lance Naik, he is otherwise eligible.” 5. Even though notice of the writ petition has been issued since 12.07.2019, but no counter affidavit has been filed as yet. However, it is contended that since the order of punishment passed by the Page 4 of 5. disciplinary authority has been confirmed by the appellate authority, no interference is called for. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that while disposing the proceeding vide order dtd.30.05.2013 under Annexure-11, Opp. Party No. 2 as the disciplinary authority while imposing the punishment of one black mark, directed to treat the period of suspension as such and period of unauthorized absent as ‘No Pay’. The order of punishment so passed has been confirmed by the appellate authority vide order under Annexure-14. 6.1. Since no such punishment to treat the period of suspension as such and period of unauthorized absent as ‘No Pay’ is prescribed under PMR 824, placing reliance on the said provision and the decision as cited (supra), this Court is inclined to quash the order of punishment so far as it relates to treating the period of suspension as such and period of unauthorized absent as ‘No Pay’ while upholding the charge memo and order of punishment so far as it relates to imposition of one Black mark. While quashing the order in that regard, this Court directs Opp. Party No. 2 to treat the period of unauthorized absent as leave due and admissible and period of suspension as duty for all purposes and extend the benefits accordingly in favour of the Petitioner with passing of an appropriate order. This Court directs Opp. Party No. 2 to complete the entire exercise within a period of three (3) months from the date of receipt of this order. 7. The writ petition is disposed of accordingly. Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Aug-2024 19:45:46 (BIRAJA PRASANNA SATAPATHY) Judge Sneha Page 5 of 5.