The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) (OA) No.943 of 2019 Sadananda Pati …. -versus- Petitioner Mr.K.C. Sahu, Advocate State of Odisha & Others …. Opposite Parties Mr. B. Mohanty, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 07.08.2024 Order No. 06. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard learned counsel appearing for the Parties. 3. Petitioner has filed the present Writ Petition inter alia challenging the order dtd.30.04.2016 so passed by Opposite Party No.3 under Annexure-2, further confirmed by the appellate authority –Opposite Party No.2 vide order dtd.14.07.2017 under Annexure-5 and by the Revisional Authority vide order dtd.18.08.2018 under Annexure-8. 4. It is the case of the Petitioner that Petitioner while continuing as a Constable, he remained on leave on medical ground w.e.f. 15.12.2014 by making necessary application to that effect. Petitioner thereafter extended his leave for different period. But while so continuing on // 2 // medical leave, Petitioner vide letter dtd.07.10.2015 so issued by Opposite Party No.3 under Annexure-B/3 when was directed to appear before C.D.M.O, Keonjhar for his appearance before the Special Medical Board, Petitioner appeared on the said date in terms of Annexure-B/3. But thereafter as the Petitioner never recovered from his illness, he continued on leave till 10.01.2016. After availing such medical leave, Petitioner ultimately joined in his work on 11.01.2016 vide Annexure-1-Series. After his joining on 11.01.2016 when the Petitioner made application to regularize the period of leave from 15.12.2014 to 10.01.2016, the impugned order was passed by Opposite Party No.3 vide order dtd.30.04.2016 under Annexure-2. Vide the said order, the period of leave of the Petitioner from 15.12.2014 to 10.01.2016 was treated as leave without pay debitable to his Half Pay Leave Account. 4.1. It is contended that against such order passed by Opposite Party No.3, Petitioner though preferred an appeal vide Annexure-4, but the appellate authority vide order dtd.14.07.2017 under Annexure-5 while rejecting the appeal confirmed the order so passed by Opposite Party No.3 under Annexure-2. Similar thing also happened to the Petitioner when the revisional authority also rejected the revision vide order dtd.28.08.2018 under Annexure-8. Page 2 of 7 // 3 // 4.2. Learned counsel for the Petitioner contended that since Petitioner continued on leave w.e.f. 15.12.2014 to 10.01.2016 and on his joining on 11.01.2016, he submitted application to regularize the said period by enclosing certificate in support of his illness so issued by the concerned Medical Officers, but without considering the same in its proper perspective, the period of leave was treated as leave without pay debitable to his Half Pay Leave Account by Opposite Party No.3 vide order dtd.30.04.2016 under Annexure-2. 4.3. Learned counsel for the Petitioner contended that since Petitioner continued on medical leave for the period in question and in support of his illness, he submitted the certificates issued by the concerned Medical Officers, the said period could not have been treated as leave without pay and instead should have been treated as leave due and admissible. But Opposite Party No.3 as well as the appellate authority and the revisional authority without proper appreciation, held the said period as leave without pay. 4.4. It is accordingly contended that the impugned order treating the leave period of the Petitioner from 15.12.2014 to 10.01.2016 as leave without pay debitable to his Half Pay Leave Account is not sustainable in the eye of law and it requires interference of this Court. Page 3 of 7 // 4 // 4.5. It is also contended that due to non-regularization of the aforesaid period, Petitioner though has retired in the meantime but he is not getting his pension and other pensionary benefits.
Legal Reasoning
5. Mr. B. Mohanty, learned Addl. Government Advocate for the State on the other hand in support of the impugned order made his submission basing on the stand taken in the counter affidavit so filed by Opposite Party Nos.1 to 3. 5.1. It is contended that Petitioner while continuing on medical leave w.e.f. 15.12.2014, Petitioner vide letter dtd.07.10.2015 under Annexure-B/3 was directed to appear before the Medical Board to be conducted in the Office of C.D.M.O, Keonjhar on 09.10.2015. 5.2. Even though in terms of Annexure-B/3, Petitioner appeared before the Medical Board on 09.10.2015, but the said medical board though referred the Petitioner for further examination before the Medical Board in SCB, Medical College & Hospital, Cuttack, but Petitioner never appeared before the said Medical Board in terms of the direction. 5.3. It is contended that since in terms of the further direction issued, Petitioner never appeared before the Medical Board to be held in SCB, Medical College & Hospital, Cuttack and remained on leave till he joined on Page 4 of 7 // 5 // 11.01.2016, the period in question was treated as leave without pay vide the impugned order under Annexure-2, so confirmed by the appellate authority vide order under Annexure-5, and by the Revisional Authority vide under Annexure-8. The stand taken in Para-5 of the counter affidavit reads as follows:- “5. That in reply to the averments made by the petitioner in Para-6.3 of the writ petition, it is humbly submitted that the applicant Constable Sadananda Pati was transferred and post to Barbil TOP-I vide D.O. NO.1522 dt.17.07.2017. According to the transfer order, Head Clerk D.P.O, Keonjhar commanded him to report at R.O., Keonjhar on the same day for the above purpose. Soon after his joining at R.O., Keonjhar he reported sick intentionally to avoid his transfer to Barbil TOP-I. The medical officer of Police Hospital, Keonjhar advised the applicant rest for a period of 07 days and referred to District Hdqrs Hospital, Keonjhar for better treatment. Since his referral to Dist. Hdqrs Hospital Keonjhar, he repeatedly sent sick intimations through registered post. this connection a Medical Board was arranged In according to PMR-797 and the Chief District Medical Officer Keonjhar was requested regarding fixing of date for holding a special Medical Board vide this office letter No.2925/RO dt.05.10.2015. The applicant was also informed to attend the medical Board held at D.H.H. Keonjhar on 09.10.2015 at 10.30 A.M. vide this office letter NO.2962/RO dt.07.10.2015. After Examination, the Medical Board Keonjhar referred him to Special Medical Board Cuttack for his further examination by the Board. He did not turn up to R.O. Keonjhar and fled away somewhere. However, Reserve Sub-Inspector contacted the applicant through telephone but the applicant did not respond in order to avoid special medical Board which was to be held at Cuttack. The applicant did not appear before the same Medical Board nor appeared at R.O., Keonjhar. This office letter No.2925/RO dt.05.10.2015 and No.2962/RO dt.07.10.2015 are enclosed as Annexure-A/3 & B/3”. Page 5 of 7 // 6 // 5.4. It is also contended that Petitioner in support of his illness also never submitted any medical certificate for the period from 8.6.2015 to 17.6.2015. 5.5. It is accordingly contended that no illegality has been committed by treating the period of leave as leave without pay vide order issued under Annexure-2 so confirmed vide order under Annexures-5 & 8. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioner remained on medical leave w.e.f. 15.12.2014. Thereafter, Petitioner continued on leave with submission of leave applications till Petitioner ultimately joined on 11.01.2016. In between Petitioner when was directed to appear before the Medical Board to be conducted by C.D.M.O, Keonjahr vide letter dtd.07.10.2015 under Annexure-B/3, Petitioner duly appeared on 09.10.2015. The stand taken in Para-5 of the counter that after his appearance on 09.10.2015, Petitioner though was directed to appear before the Medical Board to be conducted at SCB, Medical College & Hospital, Cuttack and Petitioner did not comply such direction, is not acceptable this Court as no such document has been enclosed to the counter affidavit showing any such direction issued to the Petitioner after 09.10.2015. Page 6 of 7 // 7 // 6.1. It is also found from the record that Petitioner after continuing on leave from 15.12.2014 to 10.01.2016, was allowed to join on 11.01.2016 as reflected in Annexure-1. 6.2. In view of the aforesaid analysis, this Court is of the view that the period of leave from 15.12.2014 to 10.01.2016 should have been considered as leave due and admissible instead of treating the same as leave without pay vide the impugned order under Annexure-2, so confirmed vide orders issued under Annexures-5 & 8. 6.3. Therefore, this Court is inclined to quash the order to that effect so issued under Annexure-2 and confirmed vide orders under Annexures-5 & 8. While quashing all those orders, this Court directs Opposite Party No.3 to treat the period of leave from 15.12.2014 to 10.01.2016 as leave due and admissible and pass a speaking order within a period of four (4) weeks from the date of receipt of this order considering the fact that Petitioner in the meantime has retired and he is not getting his retiral benefits because of the challenge made in the Writ Petition.
Decision
7. Accordingly, the Writ Petition stands disposed of. Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 09-Aug-2024 11:49:39 Subrat (Biraja Prasanna Satapathy) Judge Page 7 of 7