Orissa High Court
Bhagawan Ghiwala vs State Of Odisha And Ors on 6 April, 2021
W.P.(C) No.1521 of 2012
C O R A M:
SHRI JUSTICE S. K. MISHRA
AND
MISS JUSTICE SAVITRI RATHO
______________________________________________
Bhagawan Ghiwala ...... Petitioner.
- Versus-
State of Odisha and Ors. ...... Opp. Parties.
For Petitioner : Mr. Sidheswar Mallik and
P.C. Das.
For Opp. Parties : Mr. G.N. Rout, ASC.
ORDER
07. 06.04.2021 This matter is taken up by Hybrid mode.
2. Heard Mr. Sidheswar Mallik, learned counsel for the
Petitioner and Mr. G.N. Rout, learned Additional Standing
Counsel for the State.
3. Admit.
4. The short question that arises in this writ petition is
that "whether the order of punishment can be passed by the
Disciplinary Authority, from reversion on rank with
retrospective effect from the date on which the Petitioner-
employee was found to be guilty of the offence by the Enquiry
Officer".
5. Annexure-7, the Office Order No.185 dated 26th
December, 2002 passed by the Opposite Party No.4-
Conservator of Forests (K.L.) Cuttack Circle, Cuttack
reveals that the Petitioner- Bhagaban Ghiwala, Junior
Accountant of Boudh (K.L.) Division was found guilty on 26th
December, 2002. The Petitioner preferred an appeal to the
Appellate Authority i.e. the Opposite Party No.3- Additional
Principal Chief Conservator of Forests, PCCF, (Kendu Leaves),
Odisha, Bhubaneswar, District- Khurda who set aside the
enquiry report and remitted it back to the Opposite Party No.4-
Conservator of Forests (K.L.) Cuttack Circle, Cuttack. The final
order of punishment was passed on 25.09.2004 reverting the
Petitioner to the post of Senior Clerk with effect from 26th
December, 2002. Such order was assailed before the Orissa
Administrative Tribunal, Cuttack Bench, Cuttack (hereinafter
referred to as "the Tribunal" for brevity) in O.A. No.806(C) of
2005.
6. The Tribunal has, inter alia, held as the Appellant was
admittedly reverted on 26.12.2002 when he had assumed
charge and he claims to have assumed charge on 03.01.2003,
there is no illegality in his reversion from rank of Junior
Accountant to Senior Clerk. The Tribunal also expressed its
surprise that the Respondents failed to notice that a
Departmental Proceeding was pending against him since
11.07.2000 and considered him suitable for promotion as Head
Clerk in a D.P.C. on 18.01.2002 and cleared him for promotion
in office order no.1363 dated 19.10.2002 and also posted him
on promotion in consequential order as per order no.177/2
230/2002 dated 12.11.2002, instead of keeping the
recommendations of the D.P.C. in sealed cover which has
mainly led to such avoidable litigation.
7. Mr. S. Mallik, learned counsel for the Petitioner
submits that such order of reversion directing for retrospective
operation is illegal. He relies upon the judgment of the Hon'ble
Supreme Court in the case of State Bank of Patiala and
Another -vrs.- Ram Niwas Bansal (Dead) Through Legal
Representatives: reported in (2014) 12 SCC 106, wherein it
has been held as follows:
"14. The three issues that eminently emerge for
consideration are:
(i) whether the employer Bank could have, in
law, passed an order of dismissal with retrospective
effect;
(ii) whether the delinquent officer stood
superannuated after completion of thirty years as
provided under the Regulations on 25.2.1992; and
(iii) whether the legal heirs of the deceased-
employee are entitled to get the entire salary computed
till the actual passing of the order of dismissal, that is,
22.11.2001 or for that matter till the date of
superannuation, that is, 25.2.1992.
Xx xx xx xx xx xx xx xx xx xx
41. In the case at hand, the disciplinary
proceeding was initiated against the delinquent officer
while he was in service. The first order of dismissal was
passed on 23.4.1985. The said order of punishment was
set aside by the High Court and the officer concerned
was directed to be reinstated for the limited purpose,
i.e., supply of enquiry report and to proceed in the
disciplinary proceeding from that stage. The said order
was not interfered with by this Court. The Bank
continued the proceeding. Needless to emphasise,
the said continuance was in pursuance of the order of
the Court. Under these circumstances, it has to be
accepted that the concept of deemed continuance in
service of the officer would have full play and,
therefore, an order of removal could have been passed
after finalization of the departmental proceeding on
22.11.2001. We have already held that the said order
would not have been made retrospectively operative,
but that will not invalidate the order of dismissal but it
would only have prospective effect as has been held in
R. Jeevaratnam v. State of Madras: AIR 1966 SC
951."
8. The ratio decided in the case of State Bank of Patiala
and Another (supra) applies to the case of the Petitioner.
So, the order of reversion passed by the Opposite
Party No.4- Conservator of Forests (K.L.) Cuttack Circle,
Cuttack on 25th September, 2004 making it effective from
26.12.2002 is incorrect. However, the 1st part of the order
reverting the Petitioner to the rank of lower post i.e. from Junior
Accountant to Senior Clerk cannot be found fault with.
9. Hence, the writ petition is allowed in part. The order
of reversion is, accordingly, modified to the above extent. The
Petitioner is entitled to service benefits both financial and
notional of the senior cadre from 26.12.2002 to 25.09.2004.
10 Accordingly, the writ petition is disposed of.
11. Order be communicated to the appropriate forum
forthwith requisite for which shall be filed by the Petitioner
within fifteen working days hence.
12. As the restrictions due to the Covid-19 situation are
continuing, learned counsel for the parties may utilize a soft
copy of this order available in the High Court's website or print
out thereof at par with certified copy in the manner prescribed,
vide Court's Notice No.4587, dated 25th March, 2020.
........................
(S. K. Mishra)
Judge
.........................
(Savitri Ratho)
Judge
BJ
