Orissa High Court

Afr vs State Of Odisha & Ors on 28 October, 2021

                  ORISSA HIGH COURT: CUTTACK

                        W.P(C) NO. 7635 OF 2019

          In the matter of an application under Articles 226
          and 227 of the Constitution of India.
                              ---------------

AFR Bani Bhusan Dash ..... Petitioner

-Versus-

          State of Odisha & Ors.             .....    Opp. Parties

              For Petitioner     :    Mr. S.N. Pattnaik,
                                      G.R. Sethy, C.S. Panda,
                                      P. Mohapatra,
                                      S. Mohapatra and
                                      A.A. Mohanty.

              For Opp. Parties :      Mr. A.K. Mishra,
                                      A.K. Sharma, S. Mishra
                                      and A. Mishra.
                                      [Opp. Party Nos. 2 & 3]

          P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI

Date of hearing and judgment: 28.10.2021

DR. B.R. SARANGI, J. The petitioner, who is working as

Assistant Project Director (Finance) under the

District Rural Development Agency, Puri, has filed

this writ application seeking to quash the order dated // 2 //

15.09.2018 under Annexure-8, on the ground that

the same has been passed in gross violation of the

principle of natural justice as well as Rule-15

(10)(i)(a) and Rule 16 (b) of the Orissa Civil Service

(Classification Control and Appeal) Rules, 1962.

2. The factual matrix of the case, in brief, is

that the District Rural Development Agency (DRDA)

is a Society registered under the Societies

Registration Act, and is being financed by the State

Government and Central Government. DRDA is

visualized as a specialized and professional agency

capable of managing the anti poverty programme of

the Government and to watch over and ensure

effective utilization of funds intended for anti poverty

programme in different districts. DRDA in every

district of the State functions under the

administrative control of the Panchyati Raj &

Drinking Water Department. Due to creation of posts

of Assistant Project Director (Finance) in DRDA by

the Government in Panchyati Raj Department in the // 3 //

year 1996, an advertisement was published for filling

up of the said post under DRDA, Dhenkanal.

Pursuant thereto, the petitioner applied for and he

was duly selected and appointed by the order of the

Collector & Chairman. Accordingly, he joined in his

duty and while he was so continuing, one post of

Assistant Project Director (Finance) fallen vacant

under Puri DRDA. Thereby the petitioner made a

representation before opposite party no.1 for his

transfer to Puri DRDA under Regulation 15 of The

Odisha District Rural Development Agency

Employees (Recruitment and Conditions of Service)

Regulation, 1989, with a condition that he will forgo

his seniority since the post in question is a district

cadre. Accordingly, vide order dated 06.11.2002, he

was appointed as Assistant Project Director (Finance)

in the DRDA Puri with a stipulation that in the cadre

the seniority of the petitioner will be counted from

the date of joining in the DRDA, Puri as Assistant

Project Director (Finance). Pursuant to such order, // 4 //

he joined in the said post and during his

continuance, the petitioner along with similarly

situated persons approached this Court by filing

W.P.(C) No.32335 of 2011 with a prayer to create

promotional avenues for them and to grant higher

scale of pay at par with Class-I (Junior Branch) of the

State Government. But thereafter, he was

transferred from Puri to Sambalpur DRDA in gross

violation of the provisions contained in DRDA Service

Regulation vide order dated 16.02.2015, which was

challenged before this Court in W.P.(C) No. 2955 of

2015. After due adjudication, vide order dated

06.08.2015, the order of transfer dated 16.02.2015

was quashed, as the same was passed without

complying the provisions contained in Rule-15 of the

DRDA Regulation, 1989. Consequentially, the

petitioner was allowed to continue where he was

posted earlier, i.e. at Puri, vide order dated

01.10.2015.

// 5 //

2.1 While he was continuing at Sambalpur as

Assistant Project Director (Finance), on 07.07.2015

one memorandum of charge was issued to him by the

Collector, Puri, opposite party no.2 with regard to

gross negligence in Government duty,

misappropriation of government money, disregard to

the order of the higher authority and for violation of

the conduct rules. On receipt of such memorandum,

the petitioner submitted his reply denying all the

charges, since same are vague and without any

basis. Again, on self-same ground another additional

memorandum of charge was issued to the petitioner

on 24.08.2015, to which the petitioner also filed his

reply denying all the charges. But from the date of

joining on 09.12.2015 at Puri, he was placed under

suspension by opposite party no.2 on the ground of

serious financial irregularities committed by the

petitioner without any audit report.

2.2 Consequent upon the memorandum of charge

filed against the petitioner and reply submitted by // 6 //

him, the ADM, Nabakalebar was appointed as the

inquiry officer to enquire into the charges and the

Additional P.D (Admn), DRDA, Puri was nominated

as the Marshalling Officer to produce the evidence

before the inquiry officer. But subsequently, the

Secretary, P.K.D.A., Puri was appointed from

29.02.2016 as the inquiry officer, who had submitted

his enquiry report indicating that the charges are

unsubstantiated and there was no misappropriation

of money of the department and suggested that the

delinquent officer should be reinstated in service and

posted to a DRDA other than the DRDA, Puri and the

period of suspension be treated as leave and that the

pay perks and other entitlement be released, and

that apart he will not lose his seniority and will be

given a fitment which the petitioner so deserves. In

the said enquiry report, it was also stated that

additional charges framed will be taken up for

enquiry by his successor. On the basis of the self-

same allegation, additional memorandum of charge // 7 //

was submitted on 24.08.2015 under Rule-15 of the

OCS (CCA) Rules, 1962 for the irregularities and

misconduct committed by the petitioner during his

incumbency as APD (Finance), Puri in the said office

in continuation of the charges drawn on 07.07.2015.

The petitioner submitted his reply denying all the

charges level against him. The inquiry officer

submitted his report with regard to additional

charges, where charge Nos. 1, 2, 3 (with regard to

misappropriation of facts), 5, 6, 7, 9 and 10 were not

established and Charge Nos. 3 (with regard to

negligence in duty), 4 and 8 were established.

Therefore, the inquiry officer suggested for

punishment for the charge Nos. 3, 4 and 8 for

stoppage of one increment, which may be withheld

without cumulative effect as per Rule-13 (iii) and

Rule 15 of the OCS (CCA), Rules, 1962. Opposite

party no.2, being the disciplinary authority, issued a

show cause notice on 08.08.2018 to the petitioner in

contemplation of imposing punishment on the basis // 8 //

of findings of the inquiry officer that one increment

be stopped without cumulative effect, the delinquent

officer be reinstated in service and be posted to any

DRDA other than DRDA, Puri and suspension period

be treated as due on leave as admissible under the

rules. The petitioner was called upon to show cause

on the findings of the inquiry officer on the charges,

as required under Rule-13 (iii) and Rule 15 of the

OCS (CCA) Rules, 1962, within 15 days from the date

of receipt of the show cause notice. It was clearly

indicated therein that if no reply is received within

the stipulated period, it will be presumed that the

petitioner has no reply to offer anything and the

matter will be decided on its own merit. After receipt

of the 2nd show cause notice under Annexure-6 on

16.08.2018, the petitioner submitted a detailed and

exhaustive reply on 21.08.2018 which was received

on 24.08.2018 by the opposite party no.2 as per the

postal tracking report, i.e. within the stipulated time.

Without considering the same in its proper // 9 //

perspective, on the strength of the enquiry report

submitted on the additional charges, the opposite

party no.2 passed the final order confirming the

proposed punishment submitted by the inquiry

officer, i.e. stoppage of one increment without any

cumulative effect, the petitioner be posted to any

DRDA other than DRDA, Puri and the period of

suspension be treated as leave due and admissible.

3. Challenging such order of punishment

dated 15.09.2018, the petitioner approached this

Court by filing W.P.(C) No. 17977 of 2018 seeking to

quash the order of punishment, which was disposed

of vide order dated 03.12.2018 with a direction to file

appeal before the appellate authority, which would be

disposed of within six months from the date of

receipt of the appeal. In compliance of the order

dated 03.12.2018, the petitioner preferred an appeal

on 18.12.2018 before opposite party no.1, but the

same was refused to be entertained on the ground // 10 //

that the appeal provision is not available for the post

held by the petitioner. Hence this writ petition.

4. Mr. S.N. Patnaik, learned counsel for the

petitioner, at the outset, referring to the order of

punishment imposed by opposite party no.2 vide

order dated 15.09.2018 in Annexure-8, contended

that so far as the 1st punishment of stoppage of one

increment without any cumulative effect is

concerned, the petitioner has no grievance, as the

same has already been implemented. But so far as

2nd punishment, namely "the Delinquent Officer be

posted to any DRDA other than DRDA, Puri and the

3rd punishment, namely, "the period of his

suspension be treated as leave due and admissible"

are concerned, he contended that these two

punishments are not prescribed under the law and,

thereby, the same cannot sustain. To substantiate

his argument, he has relied upon the judgment of the

Apex Court in Vijay Singh V. State of U.P. and

others, 2012 (5) SCC 242: AIR 2012 SC 2840 and // 11 //

the judgment of this Court passed in Samir Kumar

Mitra v. State of Orissa and others (W.P.(C) No.

20827 of 2016 disposed of on 25.08.2016).

5. Mr. A.K. Mishra, learned counsel

appearing for the opposite party Nos. 2 and 3 argued

with vehemence that since the petitioner had

committed some irregularities steps were taken

against him by initiating proceeding and

consequentially the imposition of penalty is well

justified and may not be interfered with by this court.

It is further contended that the disciplinary authority

has passed the final order, on the basis of the

records of the departmental proceeding, against the

petitioner by granting reasonable opportunity in

terms of issuing show cause notice as per the

provisions contained in OCS (CCA) Rules, 1962. As

there is no provision for appeal by the Assistant

Project Director (Finance) as per the Orissa District

Rural Development Agency Employees (Recruitment

and conditions of Service) Regulations, 1989, rightly // 12 //

the appellate authority held that the appeal is not

maintainable. Accordingly, he contended that the

writ application should be dismissed.

6. This Court heard Mr. S.N. Patnaik, learned

counsel for the petitioner and Mr. A.K. Mishra,

learned counsel for opposite party Nos. 2 and 3 by

hybrid mode, and perused the record. Pleadings have

been exchanged between the parties and with their

consent, the writ petition is being disposed of finally

at the stage of admission.

7. As has been already indicated, impugning

the order of punishment passed by the disciplinary

authority, vide Annexure-8 dated 15.09.2018, the

instant writ petition has been filed. The

punishments, which have been imposed are

extracted hereunder:-

"1. One increment of Sri Bani Bhusan Dash is stopped without any cumulative effect.

2. The delinquent officer posted to any DRDA other than DRDA, Puri.

3. Period of his Suspension is treated as leave due and admissible."

// 13 //

So far as 1st punishment is concerned, Mr. S.N.

Patnaik, learned counsel appearing on behalf of the

petitioner very fairly states that he is not pressing the

same, as the same has been defined as a minor

penalty in terms of the penalties prescribed under

Rule-13 of the OCS (CCA) Rules, 1962, which is

applicable to the employees of DRDA in Orissa.

Therefore, he has no grievance with regard to

imposition of that penalty on the petitioner

particularly when such punishment has been

implemented.

8. In view of the above, now it is to be seen

whether 2nd and 3rd punishment imposed by the

disciplinary authority be construed s punishment in

the eye of law and if not, whether the order passed to

that extent can sustain or has to be given a go-bye.

9. So far as the 2nd punishment is concerned,

with regard to restricting the posting of the petitioner

from DRDA, Puri rather to post him in any other // 14 //

DRDA, is not only arbitrary and irrational, but also

amounts to misuse of official power bestowed with

opposite party no.2. Imposition of such restriction in

the name of penalty in a departmental proceeding is

violative of the service rules and it can be safely

construed that such restriction has been put with an

ulterior motive especially when the same has not

been prescribed as a penalty under Rule-13 of the

OCS (CCA) Rules, 1962. Furthermore, Regulation-

15 of The Orissa District Rural Development Agency

Employees (Recruitment and Conditions of Service)

Regulations, 1989 deals with "Transfer" and

Regulation 25 thereof deals with "Discipline". While

there is a clear provision for applicability of OCS

(CCA) Rules, 1962 to the employees of the Agency in

the matter of disciplinary control, as per Regulation-

25 and Regulation 15 puts a clear bar on transferring

of an employee from one agency to another, with

exception to consider such transfer only in case of

willingness made by the concerned employee and on // 15 //

consent of both the agencies and that too forgoing

seniority etc. in new place of posting and taking into

account the same, this Court had passed an order on

06.08.2015 in W.P.(C) No. 2955 of 2015 and as such,

the 2nd punishment imposed in the order impugned

vide Annexure-8 does not come within the purview of

"penalty" prescribed under Rule-13 of the OCS (CCA)

Rules, 1962, and more so to give a posting to the

petitioner to any other DRDA, other than DRDA Puri

cannot be construed to be a punishment within the

framework of law, the same cannot be anyway held to

be sustainable.

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 // 16 //

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 for the relevant period, the

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 // 17 //

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 cumulative effect, the authority should not

have treated the period of suspension in any manner // 18 //

other than the duty affecting the service condition of

the petitioner.

11. In Samir Kumar Mitra (supra), the

Division Bench of this Court categorically held that

in absence of any provision under OCS (CCA) Rules,

1962, the decision of the authorities to treat the

period of suspension as leave due is not permissible.

In paragraph-12 of the said judgment, this Court

held as follows:-

"It is not in dispute that treating the period of suspension as leave due is not prescribed under the Statute and when the period of suspension has been treated to be leave due, it also amounts to punishment, but since it is not prescribed under the statute and we are also not in agreement with the argument advanced on behalf of the Government before the learned Tribunal that even if it is not prescribed under Rule 13, but as per Rule 12(6) of the Rules, the disciplinary authority, while passing the final order of punishment or of release in the disciplinary proceedings against a Govt. servant, shall give directions about the treatment of period // 19 //

of suspension, which is passed not as a measure of substantive punishment, but as suspension pending enquiry and indicate whether the suspension would be the punishment or not. The reason for deciding the said view is that the authorities have not reflected in the order as to whether the order of suspension is by way of punishment or not. Hence, passing the order regarding suspension cannot be said to be in terms of the provisions of Rule 12(6) of the Rules. Accordingly, that part of the order, which related to treating the period of suspension as leave due, is not sustainable and accordingly quashed.

In view of the aforesaid analysis, this Court is of the

considered view that the alleged 3rd punishment

imposed in the impugned order Annexure-8 dated

15.09.2018 cannot sustain in the eye of law.

12. It is of relevance to note here the well

made principle enshrined in criminal jurisprudence

extending legal maxim "nulla poena sine lege",

which means that a person should not be made to

suffer penalty except for a clear breach of existing // 20 //

law. In S. Khushboo v. Kanniammal and Anr, AIR

2010 SC 3196, the apex Court held that a person

cannot be tried for an alleged offence unless the