The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.39428 of 2023 Bikali Charan Swain Petitioners Mr.Partha Sarathi Nayak, Advocate …. -versus- State of Odisha and others …. Opp. Parties Mr.Saswat Das, A.G.A CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 12.12.2023 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as the learned Additional Government Advocate. Perused the Writ Petition as well as the documents annexed thereto. 3. The present Writ Petition has been filed with the following prayer : “ Therefore, the Petitioner prays that your Lordship’s may graciously be pleased to consider the facts stated in the petition, allow the same and issue Rule NISI to the Opp.Parties to show cause as to why a writ of mandamus shall not be issued to the Opp.Parties o grant the Petitioner all the service and financial benefits retrospectively from 21..07.2015, which the Petitioner would have been otherwise eligible to had the vigilance proceeding and disciplinary proceedings been not initiated against him illegally; And, if the Opp.Parties fail to show cause or show insufficient cause then make the rule absolute; And, pass any other writ/writs, order/orders, // 2 // direction/directions as your lordships may deem just and proper.” 4. The factual background leading to the present Writ Petition, is that the Petitioner has joined as Junior Engineer (Civil) on 1906.1986. Thereafter, in the year 2010 he was promoted to the post of Assistant Engineer (Civil) and in the year 2013 promoted to the post of Assistant Executive Engineer (Civil). While he was working as Assistant Executive Engineer (Civil), the Petitioner got entangled in Koraput Vigilance P.S.Case no.37 of 2015, which was registered on 20.07.2015. It also appears from the record, the Petitioner was arrested in the aforesaid vigilance case for a brief period. Accordingly, he was placed under suspension on 25.07.2015. While the matter stood thus, a Disciplinary Proceeding was also initiated against the Petitioner vide Memo No.14226 dated 01.11.2016. While the proceeding was pending against the Petitioner, the Opposite Parties published a final gradation list of Assistant Executive Engineer (Civil) on 09.04.2018 wherein the name of the Petitioner finds place at sl.no.4. 5. Learned counsel for the Petitioner at this juncture alleges that in the meantime, while such proceeding was pending against the Petitioner, a DPC was convened and several juniors were given promotion to the post of Assistant Executive Engineer (Civil) ignoring the case of the Petitioner for such promotion on the ground of pendency of the vigilance case and the Disciplinary Proceeding. While the matter stood thus, the Petitioner was finally acquitted in the vigilance case on 04.11.2022. However, prior to such order of acquittal the Petitioner had retired from service on attaining the age of superannuation with effect from 30.04.2022. 6. So far the Disciplinary Proceeding is concerned, learned // 3 // counsel for the Petitioner submitted that an enquiry report has been submitted requesting the authority of the Petitioner to drop the proceeding. Therefore, learned counsel for the Petitioner submitted that both the vigilance case as well as in the Disciplinary Proceeding, the Petitioner has been acquitted/exonerated, therefore, there is no legal impediment in considering the case of the Petitioner and giving him notional promotion and accordingly financial benefit as is due and admissible be calculated and notional financial benefit be paid to the Petitioner within a stipulated period of time. Further, learned counsel for the Petitioner further referring to the Resolution of the G.A. Departmental of the year 1997 and of the year 2021 in the subject submitted before this Court that once the Petitioner is acquitted in criminal case and the Disciplinary Proceeding is dropped, he is entitled to get his service as well as financial benefits as is due and admissible to him. In such view of the matter, learned counsel for the Petitioner submitted that the case of the Petitioner should be considered and consequential service benefits be released in favour of the Petitioner within a stipulated period of time. 7. Learned counsel for the Petitioner further contended that earlier the Petitioner has approached this Court by filing W.P.(C) No.6744 of 2022 with a prayer for a direction to Opposite Parties to give promotion to the Petitioner to the post of Assistant Executive Engineer (Civil) from the date his juniors were given such promotion. This Court vide order dated 08.04.2033 disposed of the matter by granting liberty to the Petitioner to file a fresh representation before the authority, which was to be considered in the light of the Supreme Court judgment as referred to hereinabove in judgment dated 08.042.022 wherein clarification was sought for from the Department of Water Resources vide Office Letter dated // 4 // 09.06.2022 and no final decision was taken awaiting such clarification from the department in respect of the Petitioner. 8. Learned Additional Government Advocate on the other hand contended that the Disciplinary Proceeding, which was initiated against the Petitioner has not come to an end as borne out from the record. He further contended that the Petitioner has only filed a copy of the enquiry report, wherein it has been suggested to drop the proceeding. However, no final order has been produced before this Court to come to a conclusion that the Disciplinary Proceeding has come to an end in the meantime. In such view of the matter, learned Additional Government Advocate submitted that the Petitioner may not get the benefit under the aforesaid G.A. department Resolution. Further, learned Additional Government Advocate further contended that in the event the Petitioner approaches the Opposite parties for early conclusion of the Disciplinary Proceeding taking into consideration the enquiry report, he has no objection to the same. 9. Considering the submissions made by the learned counsel appearing for the respective parties and on careful examination of the background facts as well as the materials on record, this Court further taking into consideration the fact that the Petitioner has been acquitted in the vigilance case and that in the Disciplinary Proceeding an enquiry report has been submitted to drop the proceeding, this Court deems it proper to dispose of the Writ Petition at the stage of admission by directing he Opposite Party No.2, the Disciplinary Authority to pass the final order in the Disciplinary Proceeding taking into consideration the enquiry report under Annexure-11. It is further directed that in the event the Disciplinary Proceeding against the Petitioner is dropped as stated by the Enquiry // 5 // Officer, then the Opposite Parties shall do well to consider the matter in view of the G.A. Department Resolution of the year 2017 and 2021 and consequential order be passed by extending the service as well as financial benefit as is due and admissible within two months from the date of communication of the order. The decision taken by the authorities as directed be communicated to the Petitioner within two weeks from the date of taking such decision. 10. With the aforesaid observation the Writ Petition stands disposed of. 11. Issue urgent certified copy of this order as per Rule. RKS ( A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 16-Dec-2023 16:05:58