Orissa High Court

Amar Kumar Behera vs State Of Odisha & Others on 25 February, 2022

                  ORISSA HIGH COURT: CUTTACK

                          I.A. No. 150 of 2021

            (Arising out of WPC (OAC) No. 1493 of 2018)


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

      Amar Kumar Behera                                .....       Petitioner


                                          -Versus-

      State of Odisha & others                         .....     Opp. Parties


      Advocate(s) appeared in this case :-
      _________________________________________________________
         For Petitioner    :    M/s. D. Mishra, Advocate

         For Opp. Party     :   Mr. H.K. Panigrahi,
                                Addl. Standing Counsel.
      _______________________________________________________

           CORAM
              JUSTICE SASHIKANTA MISHRA

                               ORDER

th 25 February, 2022

SASHIKANTA MISHRA, J. The petitioner has filed the I.A.

seeking the following relief:

"I) Recall/stay the order dated 15.05.2020 under Annexure-1/a.

II) Further direct the Opp.Parties not to make any recovery.

III) Furter directing not to take any coercive action:

And may pass such other order/orders as deem fit and proper"

2. The brief facts, relevant only for deciding the

present application are as follows:

The petitioner had originally filed O.A.

No.1493(C) of 2018 before the learned Odisha

Administrative Tribunal, Cuttack Bench, Cuttack to

declare the conduct of disciplinary proceeding against him

as ultra vires under Rule-15 of the OCS (CCA) Rules, 1962

and Article-14 of the Constitution of India as also to

declare the enquiry report as null and void. During

pendency of the O.A. the second show cause notice was

served upon him on 30.06.2018 proposing the

punishment of dismissal from service. The petitioner

approached the learned Tribunal in S.P. No. 74(C) of 2018

against such action of the authorities. By order dated

09.07.2018, the learned Tribunal, inter alia, passed the

following order:

"So far as S.P. No. 74(C)/2018 is concerned, as in the meantime 2nd show cause notice has been served on the applicant on 30.06.2018 proposing dismissal from service, the applicant is directed to file show cause but no final order shall be passed without leave of the Tribunal.

The status quo as on today be maintained."

3. While the matter stood thus, vide order dated

15.05.2020, the opposite party no.1 passed an order

finalizing the disciplinary proceeding and imposing the

penalty of dismissal from service and for recovery of the

allegedly misappropriated amount of Rs.81,02,370 /- from

the petitioner. The said order is enclosed as Annexure-1/a

to the I.A.

According to the petitioner, the said order is

on the face of it, null and void being in direct violation of

order dated 09.07.2018 passed by the Tribunal.

4. In the Reply affidavit filed by the opposite

party no.1, it has been stated that the order was passed

on the basis of the ratio of the decision in Asian

Resurfacing of Road Agency Pvt. Ltd. and Another vs.

Central Bureau of Investigation, reported in (2018) 16

SCC 299, wherein the Hon'ble Supreme Court held that in

all cases where stay is granted the same will end on expiry

of six months from the date of such order unless similar

extension is granted by a speaking order. It is further

stated that basing on such decision, the Government of

Orissa in G.A. and P.G. Department in its letter dated

29.06.2021 has advised all departments to give due regard

to the said ratio.

5. In a rejoinder filed to the reply affidavit, the

petitioner has basically taken the stand that the ratio of

Asian Resurfacing (supra) applies only to civil and

criminal trials, but not to matters before the Tribunal. It is

further stated that the action of the concerned authority is

self-contradictory inasmuch as even assuming that the

effect of the interim order passed by the Tribunal was valid

only for six months, the authorities could have proceeded

against the petitioner upon expiry thereof, i.e., in January,

2019 when the Tribunal was functional, but instead they

waited for nearly one and half years to take the impugned

action. That apart, in its letter addressed to the learned

Advocate General enclosed as Annexure-1/d to the

rejoinder affidavit, the Government in Law Department

had decided to file counter affidavit as also a petition for

vacation of order dated 09.07.2018 passed by the learned

Tribunal and for expeditious disposal of the original

application. Since the order passed by the Tribunal was a

conditional order the same, according to the petitioner

could not be automatically held to have been

vacated/expired and being in violation thereof, is a nullity.

Be it noted here that the Tribunal having been abolished,

the case record was transferred to this Court and

registered as WPC(OAC) No. 9418 of 2018 on 12.04.2021.

6. Heard Mr. Digambar Mishra, learned counsel

for the petitioner and Mr. H.K. Panigrahi, learned Addl.

Standing Counsel for the State.

7. Mr. Digambar Mishra, learned counsel would

argue that firstly, the ratio of Asian Resurfacing (supra)

does not apply to the case at hand and secondly, by

contemplating to file an application for vacation of stay

and at the same time passing the impugned order reveals

a mutually contradictory stand on the part of the

Government, which cannot be sustained in the eye of law.

It is further argued that the Tribunal was functional till

02.08.2019 and during such time, the Government neither

challenged the interim order in question nor sought leave

of the Tribunal or of this Court. Since leave was not

obtained before finalizing the disciplinary proceedings, the

same is a nullity as the ratio of Asian Resurfacing

(supra) cannot apply to that part of the interim order. It is

further contended that despite opportunity being granted

by this court vide order dated 24.12.2021 to rectify the

mistake, the Government has not done so.

8. Per contra Mr. H.K. Panigrahi, learned Addl.

Standing Counsel has supported the impugned order by

submitting that the interim order dated 09.07.2018 was

not extended beyond 08.08.2018 and therefore, the

Government was well within its right to finalize the

disciplinary proceeding and as such, there was no need for

the Government to seek leave of the Tribunal/Court. Mr.

Panigrahi has also relied upon the ratio of Asian

Resurfacing (Supra) and a judgment passed by a Division

Bench of this Court on 19.03.2021 in W.P.(C) No.

2863/2021, wherein it was held that any stay order

passed by any Court cannot remain effect beyond six

months unless a specific order has been passed by the

Tribunal or Court and therefore, directed the parties to

follow the directions given by the Hon'ble Supreme Court

in the case of Asian Resurfacing (Supra).

9. Before delving into the merits of the rival

contentions noted above, it would be relevant to state at

the outset that vide order dated 24.12.2021, this court

directed the learned Additional Government Advocate to

examine the issue of violation of interim order passed by

the Tribunal in the light of the aforesaid Supreme Court

judgment in Asian Resurfacing (Supra) and further to

take instructions as to whether the order in question

could be revoked by the authority concerned. Since no

steps in this regard were taken, by a further order dated

04.12.2022, this Court directed the State to file an

affidavit indicating as to what steps have been taken to

comply with the order dated 24.12.2021. Pursuant to such

order, an affidavit sworn by the Additional Secretary,

Forest & Climate Change Department has been filed. In

the said affidavit, it is inter alia stated that after passing of

the order dated 24.01.2021 the views of the learned

Advocate General were solicited, who advised to obtain the

views of Law Department as to whether the order of

dismissal of the petitioner dated 15.05.2021 could be

revoked or not. It is further stated that accordingly the fact

was endorsed to Law Department vide UOI No. 8 dated

01.02.2022 seeking its views which are still awaited and

that it is a time consuming process. It is further stated

that on receipt of the views of the Law Department

appropriate order in the matter shall be passed by the

Government. The delay in complying with the order dated

24.12.2021 has also been sought to be explained by

taking the ground of increase in Covid-19 cases and the

restrictions imposed thereby. The affidavit so filed is

intended to be a part of the detailed reply affidavit dated

16.07.2021 filed by opposite party no.1 in the present I.A.

On a reading of the affidavit as above, this

Court finds that the same does not answer the specific

question posed by the Court and on the other hand, is

vague and non-specific in nature evidently intended to by-

pass the pivotal issue at hand.

10. Be that as it may the relevant facts as they

stand are not disputed inasmuch as on 09.07.2018 an

order to maintain status quo as on that date was passed

along with a direction to the petitioner to file reply to the

2nd cause notice with the rider that no final order shall be

passed without leave of the Tribunal. The impugned order

was passed on 15.05.2020 vide Annexure-1/a to the I.A. A

reading of the same shows that though the relevant

particulars of the disciplinary proceeding, the findings

thereof and the penalties proposed to be imposed have

been specifically mentioned along with the fact of

submission of representation of the petitioner to the

second show cause notice as also the concurrence of the

Orissa Public Service Commission to the proposal for

imposition of penalty, yet there is not a whisper with

regard to the pendency of the O.A. No 1493 of 2018, then

pending before the tribunal or to the interim order passed

on 09.07.2018.

Secondly, though it is claimed that the said

order was passed by applying the ratio of the decision in

Asian Resurfacing (Supra), such fact has also not been

mentioned in the impugned order. That apart, from the

letter of Law Department enclosed as Annexure 1/d to the

rejoinder affidavit, it transpires that the Government had

decided to file counter affidavit along with an application

for vacation of order dated 09.07.2018 passed in MP No.

536(C) of 2018. Significantly, the letter bears the date

03.05.2021, by which time, the impugned order had

already been issued on 15.05.2020. Yet at another place

i.e., in pargraph-3 of the reply affidavit filed by the State to

the I.A., the order dated 08.08.2018 has been quoted

along with the averment that order dated 09.07.2018 was

not in force after 08.08.2018.

From the foregoing narration it is clear that

the Government has taken prevaricating pleas in the

matter, which are also self-contradictory and hence, prima

facie, not acceptable. Firstly, if it is held that the interim

order dated 09.07.2018 was not in force after 08.08.2018

since nothing was stated in such order regarding

extension of the order dated 09.07.2018, then the

question of applicability of the ratio of the decision in

Asian Resurfacing (Supra) becomes redundant.

Secondly, if the impugned order was issued on the basis of

the Asian Resurfacing (Supra) then the inordinate delay

of nearly one and half years in issuing such order ought to

have been satisfactorily explained. It is stated at the cost

of repetition that if according to the Government, the ratio

of Asian Resurfacing (Supra) is applicable, then it was at

liberty to take action soon after expiry of the period of six

months from 09.07.2018, i.e., after 09.01.2019. Since the

2nd show cause notice had already been issued to which

the petitioner had submitted his reply, what was the

reason for keeping the matter in limbo till 15.05.2020?

Moreover, as already stated, the impugned order does not

contain any reference whatsoever to the purported

application of the ratio of Asian Resurfacing (Supra).

Thirdly, if the Government had already issued

the order of dismissal, as according to it, there was no

interim order in operation, then for what reason was the

decision taken to file a petition for vacation thereof? All

these questions remain unanswered which strongly

persuade the Court to hold that the action of the

Government cannot be countenanced in law. Even

examined from a different angle, it is seen that the

argument that there was no interim order beyond

08.08.2018 is untenable for the reason that on the said

date the petition filed by the petitioner for amendment of

the O.A. was allowed and nothing was said with regard to

the order of status quo passed on 09.07.2018. Non-

reference to the order dated 09.07.2018 in the order dated

08.08.2018 is sought to be projected as automatic

expiration of the order of status quo. This is a fallacious

argument because on 09.07.2018, it was directed to

maintain status quo as on that date and not till the next

date. As said earlier, on 08.08.2018, the matter was taken

up for a different purpose and not for extension or

vacation of the interim order passed on 09.07.2018. In

any event, the order of status quo was not specifically

vacated. For the above reason therefore, it cannot be said

that the order of status quo granted on 09.07.2018 did not

subsist beyond 08.08.2018.

11. Coming to the next plea taken by the

Government that a decision was taken to file counter

affidavit and petition for vacation for stay is, on the face of

it, self-contradictory, because by such time, the impugned

order had already been passed. If according to the

Government, there was no stay (status quo) then where

was the occasion for filing a petition for its vacation?

12. Coming to the final and most important

argument put forth on behalf of the Government that the

ratio of Asian Resurfacing (supra) squarely applies to the

facts of the case, it is observed that order dated

09.07.2018 had two parts, namely, restraining the

authorities from passing any final order without leave of

the Tribunal and to maintain status quo as on that date.

Even assuming that the ratio of Asian Resurfacing

(supra) is applicable then the same would obviously relate

to the direction to maintain status quo only. But in so far

as the other direction is concerned that no final order

shall be passed without leave of the Tribunal, the same

can by no stretch of imagination be said to be covered

under the ratio of Asian Resurfacing (supra). If the ratio

is applied, it would mean that the Government was free to

pass final order, but in so far as the direction to obtain

leave of the Tribunal is concerned, it cannot be said that it

was permissible for the Government to issue the final

order without obtaining leave of the Tribunal. Since the

lis pertains to the legality as well as propriety of the

disciplinary proceeding, the direction to obtain leave

before finalizing the same was issued with the obvious

intent of safeguarding the right of the petitioner to

putforth his grievance to be adjudicated upon in

accordance with law. Unfortunately, by issuing the

impugned order, the Government has sought to frustrate

and defeat the very purpose of the original

application/writ petition pending before the Tribunal/this

Court. It is well settled that the Government being a model

employer cannot be seen to take steps to second-guess its

opponent in litigation like a private litigant. It is stated at

the cost of repetition that if according to the Government

there was no more restraint upon it to pass the final order,

it should have apprised the Tribunal/this Court

appropriately and sought leave instead of passing a penal

order on the technical ground of non-subsistence of the

interim order. The purported expiry of the interim order

did not give a licence to the Government to act in a

manner contrary to intent of the Tribunal which, the

Government being a model employer is expected to respect

and abide by.

The principle that the State is a model

employer and it is required to act fairly giving due regard

and respect to the rules framed by it, has been time and

again emphasized by the Apex Court in several decisions.

In this context, it would be profitable to refer to the

decision of the Apex Court in the case of Bhupendra Nath

Hazarika and another vs. State of Assam and Others,

reported in (2013) 2 SCC 516, paragraphs 61 to 65 of

which being relevant are quoted herein below.

"61. Before parting with the case, we are compelled to reiterate the oft stated principle that the State is a model employer and it is required to act fairly giving due regard and respect to the rules framed by it. But in the present case, the State has atrophied the rules. Hence, the need for hammering the concept.

62. Almost a quarter century back, this Court in Balram Gupta v. Union of India [1987 Supp SCC 228 : 1988 SCC (L&S) 126 : (1987) 5 ATC 246] had observed thus : (SCC p. 236, para 13) "13. ... As a model employer the Government must conduct itself with high probity and candour with its employees."

In State of Haryana v. Piara Singh [(1992) 4 SCC 118 : 1992 SCC (L&S) 825 : (1992) 21 ATC 403] the Court had clearly stated : (SCC p. 134, para 21) "21. ... The main concern of the court in such matters is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16."

63. In State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] (SCC p. 18, para 6) the Constitution Bench, while discussing the role of State in recruitment procedure, stated that if rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules, for the State is meant to be a model employer.

64. In Mehar Chand Polytechnic v. Anu Lamba [(2006) 7 SCC 161 : 2006 SCC (L&S) 1580] (SCC p. 166, para 16) the Court observed that public employment is a facet of right to equality envisaged under Article 16 of the Constitution of India and that the recruitment rules are framed with a view to give equal opportunity to all the citizens of India entitled for being considered for recruitment in the vacant posts.

65. We have stated the role of the State as a model employer with the fond hope that in future a deliberate disregard is not taken recourse to and deviancy of such magnitude is not adopted to frustrate the claims of the employees. It should always be borne in mind that legitimate aspirations of the employees are not guillotined and a situation is not created where hopes end in despair. Hope for everyone is gloriously precious and a model employer should not convert it to be deceitful and treacherous by playing a game of chess with their seniority. A sense of calm sensibility and concerned sincerity should be reflected in every step. An atmosphere of trust has to prevail and when the employees are absolutely sure that their trust shall

not be betrayed and they shall be treated with dignified fairness then only the concept of good governance can be concretised. We say no more."

As has already been discussed hereinbefore,

the action of the Government in the instant case is

definitely unbecoming of its role as a model employer.

13. It is also well settled that when the Court

intends a particular state of affairs to exist while it is in

seisin of a lis, that state of affairs is not only required to

be maintained but is presumed to exist till the Court

orders otherwise. The above view was taken by the Apex

Court in the case of Surjit Singh & Ors. vs. Harbans

Singh & Ors, reported in 1995 (6) SCC 50.

14. In the case of All Bengal Excise Licensees

Associations vs. Raghabendra Singh, reported in (2007)

11 SCC 374, the Apex Court held that:

" a party to the litigation cannot be allowed to take an unfair advantage by committing breach of an interim order and escape the consequences thereof .........................the wrong perpetrated by respondent contemnors in utter disregard of the order of the High Court should not be permitted to hold good."

15. In view of the facts narrated above, this Court

is persuaded to hold that the Government has acted in

utter disregard of the Tribunal/this Court by issuing the

impugned order without obtaining leave and therefore,

such conduct cannot be sustained in the eye of law.

16. This brings the Court to the question as to

what relief can be granted to the petitioner in the facts and

circumstances of the case.

In the case of Manohar Lal (dead) by LRs vs.

Ugrasen (dead) by LRs & Ors, reported in (2010) 11 SCC

557, the Apex Court relying upon its earlier decision in the

case of Gurunath Manohar Pavaskar & Ors vs. Nagesh