Dr. Keertidhara Das vs State Of Odisha And Others
2022 Latest Caselaw 4303 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                   W.P.C. (OAC) No. 666 of 2017
    An application under Sections 226 and 227 of the Constitution of
    India)

                              ---------------

      Dr. Keertidhara Das           ......               Petitioner

                          -Versus-

      State of Odisha and others           .......   Opp. Parties

      Advocate(s) appeared in this case :-
      _______________________________________________________

        For Petitioner    :      M/s. R. Roy, S.K. Singh,
                                 S. Sourav & A. Pradhan
                                 Advocates

         For Opp. Parties :      Mr. H.K. Panigrahi,
                                 Addl. Standing Counsel
      _______________________________________________________
      CORAM:
           JUSTICE SASHIKANTA MISHRA

                          JUDGMENT

30th August, 2022

SASHIKANTA MISHRA, J.

The petitioner is the wife of one Durga Prasad

Pattnaik, who was working as a Reader in Commerce in

BJB Autonomous College, Bhubaneswar. While in service,

the said Durga Prasad Pattnaik along with two other

Lecturers of the College were proceeded with

departmentally for certain misconducts in employment. A

common inquiry was held and the Inquiry Officer

submitted his report on 01.12.2007 holding the

delinquents guilty of the charges and recommended

imposition of the following penalties on said Durga Prasad

Pattnaik:-

i. censure

ii. withholding of three annual increments without

cumulative effect and

iii. to treat the period of suspension as such.

The disciplinary authority (opposite party No.1) by

office order dated 01.11.2008, however, imposed the

following penalties after obtaining necessary concurrence

of the OPSC:-

i. censure

ii. withholding of three annual increments with

cumulative effect.

iii. to treat the period of suspension as such.

2. The officer challenged the imposition of such

punishments in O.A.No.1569 of 2008 before the erstwhile

Odisha Administrative Tribunal, Bhubaneswar. By order

dated 20.12.2010, learned Tribunal disposed of the O.A.

by quashing the order dated 01.11.2008 of imposing

penalty on the ground that the proposal and

recommendation of the OPSC is not in accordance with

Sub-rule-10 of Rule-15 of OCS (CC&A) Rules, 1962. The

matter was thus remitted to the opposite party no.1 to

consider imposition of penalty in accordance with rules

and with direction to complete the proceeding by

15.01.2011 as the officer was due to retire by the end of

February, 2011. Pursuant to such direction, the opposite

party no.1 recommended to OPSC for imposition of the

same punishment that had been recommended earlier.

However, the OPSC refused to concur with the proposal

on the ground that the officer had retired from service

before finalization of the proceeding and advised to

proceed in terms of Rule-7 of OCS (Pension) Rules, 1992.

While the matter stood thus, the officer died on

18.05.2015. The petitioner came to know that 229 days of

unutilized earned leave had been sanctioned in favour of

her husband on 31.01.2011. She therefore, submitted

representation to opposite party Nos.1 and 3 on

14.03.2016 to release all the dues including salary for the

period of suspension, leave salary, gratuity, provident

fund etc. along with regular pension. By order dated

03.06.2016, the opposite party No.1 dropped the

proceedings against the delinquent officer in terms of the

G.A. Department Circular No.18907 dated 04.11.1986

with direction to treat the period of suspension from

21.11.2005 to 28.06.2007 as leave due admissible in

order to regularize the period of service. The said order is

enclosed as Annexure-10 to the writ petition. Being thus

aggrieved, the petitioner approached the erstwhile Odisha

Administrative Tribunal in O.A. No.666(C) of 2017 seeking

the following relief:-

"Under this circumstances, it is humbly prayed that this Original Application may be allowed; and

a) To regularize the service of the husband of the Applicant namely Late Dr. Durga Prasad Pattnaik by treating the period of suspension as on duty and forthwith release all service & retirement benefits with interest @24% per annum from the date of entitlement & also extend the death

benefits to the family of Late Dr. Durga Prasad Pattnaik.

b) Pass any other order/orders, direction/directions as would be demand fit and proper in the interest of justice.

c) And for this act of kindness, the Applicant shall as in duty bound ever pray."

3. The said OA has since been transferred to this Court

and registered as the present writ petition.

4. Despite repeated opportunities, no counter was filed

by the opposite parties. Learned State Counsel however

was permitted to make oral submissions.

5. Heard Mr. R. Roy, learned counsel for the petitioner

and Mr. H.K. Panigrahi, learned Additional Standing

Counsel for the State.

6. It is argued by Mr. Roy that once the delinquent

officer dies before conclusion of the disciplinary

proceeding, the same is to be dropped in view of the

Circular of the Government in G.A. Department dated

04.11.1986. Though the Government dropped the

proceeding yet treated the period of suspension as leave

due admissible which itself is a penalty and therefore,

could not have been imposed once the proceeding was

dropped.

7. Mr. H.K. Panigrahi, on the other hand, has argued

that as per Rule-12 (6) OCS (CC&A) Rules, 1962 the

Disciplinary Authority is empowered to issue directions as

to how the period of suspension shall be treated, if the

same is passed not as a measure of substantive

punishment, but as suspension pending enquiry. Since

the delinquent officer had expired before finalization of the

proceeding, the period of suspension was required to be

regularized and since he had not rendered work to the

Government during that period, the authority has rightly

passed order for treating the period as leave due

admissible.

8. The facts of the case are not disputed to the extent

that the petitioner was departmentally proceeded with and

the original order of punishment imposed on him was

quashed by the learned Tribunal vide order dated

20.12.2010. Originally, the punishments included the

period of suspension being treated as such. The same was

reiterated by the Disciplinary Authority in its proposal

submitted to OPSC. However, because of retirement of the

petitioner in the meantime, the OPSC rightly held that

Rule -7(2)(a) of the OCS (Pension) Rules, 1992 is attracted

and that the same shall be continued and concluded as

per the provisions laid down therein. It is also not

disputed that the petitioner died on 18.05.2015 and till

such time the proceeding had not been concluded. The

proceeding was concluded ultimately on 03.06.2016. The

Government in G.A. Department in its Circular No.18907

dated 04.11.1986 and Circular No.19806 dated

21.08.2012 have laid down that the departmental

proceeding drawn up against the Government servant

should be immediately closed on the death of the charged

officer. There is of course a provision for realization of

defalcated money from the legal heirs of the deceased

Government servant, but the same is not relevant to the

present case. The purport of the Circulars dated

04.11.1986 and 21.08.2012 otherwise is, if the proceeding

is not concluded during the life time of the Government

servant, it has to be dropped. Dropping of the proceeding

obviously implies that there is no more any proceeding

against him in accordance with law. Therefore, the status

of the Government servant as existing prior to initiation of

the departmental proceeding has to be restored. What the

disciplinary authority has done in the present case is,

though the proceedings have been dropped yet the period

of suspension has been treated as leave due admissible.

This is entirely unconscionable in law, for the reason that

in the absence of any proceeding as per the legal fiction

envisaged in the Circulars dated 04.11.1986 and

21.08.2012, there is no longer any proceeding against the

delinquent officer. Such being the case, the period of

suspension can only be treated as being on duty.

The provision under Rule 12(6) is a general provision

which confers power on the Disciplinary Authority to pass

orders regarding the period of suspension at the end of

the disciplinary proceedings. The same does not

contemplate the situation where the delinquent has

expired and the proceeding has been dropped by

application of the Circulars dated 04.11.1986 and

21.08.2012. The contentions raised by Mr. Panigrahi in

this regard are therefore, not acceptable.

9. For the foregoing reasons therefore, this Court has

no hesitation in holding that the impugned order being

entirely contrary to the letter and spirit of the Circulars

dated 04.11.1986 and 21.08.2012 as also being punitive

in nature without existence of a disciplinary proceeding in

the eye of law, cannot be sustained. Resultantly, the

impugned order dated 03.06.2016 is hereby quashed. The

opposite parties-authorities are directed to release all

consequential and retirement benefits to the petitioner as

admissible in law by treating the period of suspension of

the deceased Government servant for the period from

21.11.2005 to 28.06.2007 as on duty. The entire exercise

shall be completed within a period of two months from the

date of communication of this order or on production of

certified copy thereof by the petitioner.

10. The writ application is disposed of accordingly.

...............................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 30th August, 2022/ B.C. Tudu