Orissa High Court
Dhaneswar Sahoo vs State Of Odisha & Ors on 17 February, 2022
1
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.28971 OF 2021
Dhaneswar Sahoo ..... Petitioner
Ms. Sagarika Sahoo,
Advocate
Vs.
State of Odisha & Ors. ..... Opposite parties
State Counsel
CORAM:
DR. JUSTICE B.R. SARANGI
ORDER
17.02.2022
Order No. The matter is taken up through hybrid mode.
2. Heard learned counsel for the petitioner.
3. The petitioner has filed this writ petition seeking to
quash the order dated 02.08.2021 under Annexure-1, by
which direction has been given to reduce 50% of his
subsistence allowance on the plea that he had approached
this Court by filing W.P.(C) No.265 of 2020 against the
departmental proceeding initiated against him and the
proceeding has been stayed vide order dated 28.01.2020.
4. Mr. L. Mishra, learned counsel stated that he has
instructions to appear on the behalf of opposite parties no.2
to 5.
5. Let four extra copies of the writ petition be served on
Mr. L. Mishra, learned counsel appearing for opposite
parties no.2 to 5 within three days to enable him to obtain
instructions or file counter affidavit.
6. Put up this matter on 08.03.2022.
DR. B.R. SARANGI, J.
I.A. No. 13407 of 2021
2 This application has been filed by the petitioner for
grant of stay of the order dated 02.08.2021 under Annexure-
1.
2. Heard Miss S. Sahoo, learned counsel for the
petitioner and Mr. L. Mishra, learned counsel for opposite
parties no.2 to 5.
3. Miss S. Sahoo, learned counsel for the petitioner
contended that by virtue of office order dated 02.08.2021
under Annexure-1, the 50% subsistence allowance, which
was admitted to the petitioner has been again reduced to
50% thereby causing hardships to him. It is contended that
such reduction of subsistence allowance is contrary to the
rules governing the field. To substantiate her contentions,
she has relied upon the judgment of the apex Court in B.D.
Shetty v. Ceat Ltd, AIR 2001 SC 2953, wherein it is held
that when a workman approaches a competent court bona
fidely to protect himself from prejudice likely to be caused
by continuing proceedings simultaneously in domestic
inquiry as also in the criminal case grounded on the same set
of facts and succeeds in getting order from a competent
judicial authority staying further proceedings in the
disciplinary proceedings till disposal of the criminal case, it
cannot be said that delay on that account in completion of
disciplinary proceedings is directly attributable to the
conduct of such workman. In addition to that the apex Court
further held that during the period of suspension he has to
support his family and survive to fight or defend his case. It
appears that reference to the delay directly attributable to the
conduct of the workman in the said provision is obviously to
the one where the workman unjustifiably, deliberately or
designedly drags on or prolongs the domestic inquiry. When
the workman is protected by interim order passed by this
Court, reduction of the subsistence allowance by passing the
order impugned cannot be said to be attributable to the
workman. She has further relied upon the judgment of this
Court in Trinath Sahoo v. the Registrar of Cooperative
Societies, Odisha 103(2007) CLT 479, wherein in
paragraph-11 it is held as follows:
"11. Therefore, the only question that is left to be decided in
the present proceeding is whether, approaching a Court of
law or Tribunal and the consequential orders being passed
by the Tribunal or Court of law, may be treated as reasons
contemplated under Rule-36(B)(ii) as attributable to the
petitioner for the purpose of denying the petitioner the
benefit of enhancement of subsistence allowance.
I am clearly of the view that accepting such a proposition
would tantamount to negativing the very foundation of
judiciary, since approaching a Court of law and the direction
of such a Court cannot ever be attributable to a litigant for
the purpose of denying him his lawful price. Accepting the
converse proposition would tantamount to become a
discouragement/impediment to the citizens from approaching
the Court of law for redressal of their grievances. In other
words, while it is true that the petitioner had approached the
Tribunal and the Tribunal passed an order of stay on his
application, continuance of suspension, if at all, is directly
attributable to the direction of the Tribunal. Therefore,
accepting the objection raised by Opp. Party No.3 and
holding that the petitioner's action in moving the 'Tribunal
as adequate ground for denying hi8m the enhanced
subsistence allowance would be a complete negation of the
procedure of law, justice and the entire judicial mechanism."
4. In view of such position, this Court is of the prima
facie view that opposite parties no.2 to 5 have acted in
excess of their jurisdiction by reducing further 50% of the
subsistence allowance and consequentially making the
petitioner to receive 25% subsistence allowance, particularly
when the petitioner is protected by the interim order passed
on 28.01.2020 by this Court in W.P.(C) No.265 of 2020 and
he is entitled to get subsistence allowance as per rules.
5. In that view of the matter, as an interim measure,
it is directed that there shall be stay operation of the office
order dated 02.08.2021 under Annexure-1 and opposite
parties no.2 to 5 shall forthwith pay 50% of the salary as
subsistence allowance in accordance with law from the date
of passing of Annexure-1.
6. Issue urgent certified copy as per rules.
DR. B.R. SARANGI, J.
