The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 40107 of 2023 Madhabananda Samal …. Petitioner Ms. S. Devi, Advocate -versus- State of Odisha & Ors. ….
Legal Reasoning
Opposite Parties Mr. S. Jena, AGA JUSTICE BIRAJA PRASANNA SATAPATHY CORAM:
Decision
ORDER 04.01.2024 Order No 02. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Ms. S. Devi, learned counsel for the Petitioner and Mr. S. Jena, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. The present writ petition has been filed inter alia challenging the order dtd.06.07.2023 so passed by the Opp. Party No. 4 under Annexure-6. Vide the said order while disposing the proceeding so initiated against the Petitioner vide Memorandum dtd.10.07.2007, the following punishment was imposed against the Petitioner:- “1. “CENSURE”. 2. The period of suspension 08.07.2007 is treated as leave due & admissible.” i.e. from 29.03.2006 to 4. It is the main contention of the learned counsel for the Petitioner that since punishment of censure is in the nature of a minor punishment, while imposing such punishment, the period of suspension could not have been treated as leave due and admissible // 2 // in view of the decision of this Court in the case of Bani Bhusan Dash Vs. State of Odisha & Ors. (W.P.(C) No. 7635 of 2019) so followed by this Court in its order dtd.05.07.2023 in W.P.C.(OA) No. 2585 of 2016. This Court in the case of Bani Bhusan Dash has held as follows in Para 10 :- the relevant period, “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 in 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 non-engagement certificate the for 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 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 only when 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 Page 2 of 4 // 3 // 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.” 4.1. Similarly, this Court in the case of Dr. Smita Mohanty Vs. State of Odisha & Ors. (W.P.C.(OA) No. 2585 of 2016) has held as follows in Para 6:- “6. Having heard learned counsel appearing for the Parties and taking into account the materials available on record, it is found that while disposing the proceeding the Petitioner was imposed with a minor punishment i.e. stoppage of two increments without cumulative effect. On the face of such punishment imposed and in view of the decisions as cited supra, the period of suspension should not have been treated as such instead of treating the same as duty. Therefore, this Court is inclined to quash the order so far as it relates to treat the period of suspension as such. While quashing the same, this Court directs the Opp. Party No. 1 to treat the period of suspension as duty and extend the financial benefit as due and admissible in favour of the Petitioner. Such an exercise shall be undertaken and completed by the O.P. No 1 within a period of two (2) months from the date of receipt of this order.” 4.2. Making all such submissions, learned counsel for the Petitioner contended that the impugned order so far as it relates to treating the period of suspension as leave due and admissible is not sustainable in the eye of law and it requires interference of this Court. 5. Even though no notice has been issued in the present writ petition, but learned AGA fairly contended that on the face of the decision in the case of Bani Bhusan Dash, the period of suspension could not have been treated as leave due and admissible. Page 3 of 4 // 4 // 6. Having heard learned counsel appearing for the Parties and considering the submissions made as well as placing reliance on the decision in the case of Banibhushan Dash and Dr. Smita Mohanty, this Court is of the view that while imposing the order of punishment of censure, which is in the nature of a minor punishment, the period of suspension from 29.03.2006 to 08.07.2012 could not have been treated as leave due and admissible and it should have been treated as duty. 6.1. In view of the same, this Court while interfering with the office order dtd.06.07.2023 so passed by Opp. Party No. 4 under Annexure-6 so far as it relates to treating the period of suspension as leave due and admissible and the consequential order passed on 24.08.2023 under Annexure-7, is inclined to quash the same. While quashing the same, this Court directs Opp. Party No. 4 to treat the period of suspension as duty and to take follow up action for release of the financial benefit as due and admissible in favour of the petitioner. Such an exercise be undertaken and completed within a period of two (2) months from the date of receipt of this order. 7. The writ petition is disposed of accordingly. (Biraja Prasanna Satapathy) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-Jan-2024 10:40:18 Page 4 of 4