The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) (OA) No.1607 of 2019 Manoj Kumar Pattnaik …. -versus- Petitioner Mr. K.N. Das, Advocate D.G. & I.G. of Police and Others …. Opposite Parties Mr. S. Rath, ASC CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No. 09. 1. This matter
Decision
ORDER 12.02.2024 taken up is through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the Parties. 3. Petitioner has filed the present writ petition inter alia challenging the order passed by Opposite Party No.3 on 31.10.2017 so upheld by Opposite Party No.2 vide his order dtd.05.10.2018 under Annexure-9. 4. It is the case of the Petitioner that Petitioner was initially allowed leave of 30 days from 20.03.2017 to 19.04.2017. But on the ground that the Petitioner is to take part in the election process, he made a further application seeking grant of leave for another 10 days on 19.04.2017 vide Annexure-2. 4.1. It is contended that after availing the leave of 10 days in terms of Annexure-2, Petitioner could not join because of his ill health. Only after recovery from his // 2 // illness, he submitted his joining along with the medical certificate for the period from 28.04.2017 to 01.08.2017 vide Annexure-7. 4.2. It is contended that since Petitioner after availing 30 days leave he made an application seeking further leave of 10 days on 19.04.2017 vide Annexure-2 and subsequently because of ill health, he could not join for the period from 28.04.2017 to 01.08.2017. While submitting his joining report on 02.08.2017 under Annexure-7, he enclosed the medical certificate so issued by the concerned medical officer vide Annexure-4 showing his illness for the period from 28.04.2017 to 01.08.2017. 4.3. It is contended that since the Petitioner was under treatment from 28.04.2017 to 01.08.2017, the period of leave could not have been treated as no pay vide the impugned order passed on 31.10.2017 under Annexure-6 so confirmed by the appellate authority vide order dtd.05.10.2008 under Annexure-9. 4.4. It is also contended that without initiating a proceeding in terms of the provisions contained under PMR-843, the period of leave could not have been treated as no pay. 4.5. Learned counsel for the Petitioner in support of his aforesaid stand relied on the decision of the Hon’ble Apex Court in the case of Krushnakant B. Parmar vs. Union of India & Another reported in [2012 S.C. Page 2 of 5 // 3 // Serv. R 677]. Hon’ble Apex Court in Para-16 of the said judgment has held as follows:- “16. The question whether ‘unauthorized absence from duty’ amounts to failure of devotion to duty or behavior unbecoming of a Government servant cannot be decided without deciding the question whether absence is willful or because of compelling circumstances”. 5. Mr. S. Rath, learned State Counsel on the other hand while supporting the impugned order contended that Petitioner was allowed leave for 30 days initially for the period from 20.03.2017 to 19.04.2017. Vide Annexure-2, when Petitioner extended his leave for another 10 days w.e.f. 20.04.2017 that was not allowed by the concerned authority and in view of the provisions contained under PMR-802 read with 803 (a), the period from 20.08.2017 to 01.08.2017 was treated as no pay. 5.1. It is contended that as provided under PMR- 802 since the application submitted by the Petitioner on 19.04.2017 under Annexure-2 was never accepted, Petitioner after expiry of his leave should have joined on 20.04.2017. Since the Petitioner never joined on 20.04.2017 and overstayed the leave till 01.08.2017, the said period was treated as no pay, relying on the provisions contained under PMR 802, read with 803 (a). 5.2. With regard to the submission made by the learned counsel for the Petitioner that without taking recourse to the provisions contained under PMR-843, Page 3 of 5 // 4 // the period could not have been treated as no pay, learned State Counsel contented that PMR-843 deals with the power of the authority to impose further punishment bereft of the punishment permissible under PMR-802 read with 803(a). 5.3. It is accordingly contended that since Petitioner over stayed the period of leave beyond 20.08.2017, in view of the provisions contained under PMR-802 read with 803(a), the said period has been rightly treated as no pay and it requires no interference. 6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that Petitioner was allowed leave for the period from 20.03.2017 to 19.04.2017. Seeking extension of the leave for another 10 days, Petitioner made an application on 19.04.2017 under Anexure-2. Placing reliance on the provisions contained under PMR-802, this Court is of the view that since the extension of leave as prayed for in Annexure-2 was never allowed it amounts to deemed denial and Petitioner in view of the said provision should have joined on 20.04.2017. Since admittedly Petitioner remained on leave beyond 19.04.2017 till 01.08.2017, as per the considered view of this Court, the said period has been rightly treated as no pay taking recourse to the provisions contained under PMR-802 read with 803(a). The provisions contained under PMR- 843 so relied on by the learned counsel for the Page 4 of 5 // 5 // Petitioner is not acceptable, as under PMR -843 over and above the punishment permissible under PMR- 802, further punishment could have been imposed on the Petitioner for his overstaying leave with initiation of a proceeding. Since that has not been done in the present case, PMR-843 has got no application to the case of the Petitioner and so also the decision relied on by the learned counsel for the Petitioner. 7. In view of the same, this Court finds no illegality or irregularity with the impugned order of punishment passed on 31.10.2017 under Annexure-6 so confirmed vide order dtd.05.10.2018 Annexure-9 and confirm the same. 8. Accordingly, the Writ Petition stands dismissed. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 27-Feb-2024 18:29:56 Page 5 of 5