Orissa High Court
Dr. Smita Mohanty vs State Of Odisha & Ors on 5 July, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.C.(OA) No. 2585 of 2016
Dr. Smita Mohanty .... Petitioner
Mr. N. Rath, Advocate
-versus-
State of Odisha & Ors. .... Opposite Parties
Mr. R.N. Mishra, AGA
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
05.07.2023
Order No
05. 1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical) Mode.
2. Heard Mr. N. Rath, learned counsel for the Petitioner and Mr.
R.N. Mishra, learned Addl. Govt. Advocate appearing for the Opp.
Parties.
3. The Petitioner has filed the present writ petition inter alia
challenging the order of punishment so passed by the Opp. Party
No. 1 vide order dtd.05.10.2016 under Annexure-11.
4. It is contended that in the proceeding initiated against the
Petitioner on 02.02.2013 final order of punishment was passed vide
the impugned order under Annexure-11. It is contended that since
while disposing the proceeding Opp. Party No. 1 passed the order
of punishment with a direction to stop two increments without
cumulative effect, which is in the nature of a minor penalty as
provided under Rule 13 of the OCS (CCA) Rules, 1962, in view of
the decision of this Court rendered in the case of Bani Bhusan
Dash Vs. State of Odisha & Ors.(W.P.(C) No. 7635 of 2019) vide
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Judgment dtd.28.10.2021, Opp. Party No. 1 should not have treated
the period of suspension as such. It is contended that once the minor
penalty is imposed on a delinquent employee, the period of
suspension should be treated as duty instead of treating the same as
such which has been passed by the Opp. Party No. 1 in the
impugned order.
4.1. Mr. Rath, learned counsel for the Petitioner also relied on
another decision of the Hon'ble Apex Court reported in the case of
Union of India & Anr. Vs. S.C. Parashar ((2006) 3 SCC 167).
This Court in Para 10 of the reported case of Bani Bhusan Dash
has held as follows:-
"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 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 nonengagement 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
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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 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 other than the duty
affecting the service condition of the petitioner."
Similarly, Hon'ble Apex Court in Para 12 of the reported
Judgment in the case of Union of India (supra) has held as follows:-
"12. The penalty imposed upon the respondent is an
amalgam of minor penalty and major penalty. The
respondent has been inflicted with three the tune
penalties: (1) reduction to the minimum of the timescale
of pay for a period of three years with cumulative effect;
(2) loss of seniority; and (3) recovery of 25% of the loss
incurred by the Government to of Rs 74,341.89p. i.e. Rs
18,585.47p. on account of damage to the Gypsy in 18
(eighteen) equal monthly installments. Whereas
reduction of timescale of pay with cumulative effect is a
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major penalty within the meaning of clause (v) of Rule
11 of the CCS Rules, loss of seniority and recovery of
amount would come within the purview of minor penalty,
as envisaged by clauses (iii) and (i)(a) thereof. The
disciplinary authority, therefore, in our opinion acted
illegally and without jurisdiction in imposing both minor
and major penalties by the same order. Such a course of
action could not have been taken in law."
4.2. Placing reliance on the decisions as cited (supra), Mr. Rath,
learned counsel for the Petitioner vehemently contended that since
while disposing the proceeding, minor penalty was imposed with
stoppage of two increments without cumulative effect, the period of
suspension should have been treated as duty instead of treating the
same as such.
5. Mr. R.N. Mishra, learned AGA does not dispute the ratio decided
in the case of Bani Bhusan Dash as well as the view expressed by
the Hon'ble Apex Court in the case of Union of India.
6. Having heard learned counsel appearing for the Parties and
taking into account the materials available on record, it is found that
while disposing the proceeding the Petitioner was imposed with a
minor punishment i.e. stoppage of two increments without
cumulative effect. On the face of such punishment imposed and in
view of the decisions as cited supra, the period of suspension
should not have been treated as such instead of treating the same as
duty. Therefore, this Court is inclined to quash the order so far as it
relates to treat the period of suspension as such. While quashing the
same, this Court directs the Opp. Party No. 1 to treat the period of
suspension as duty and extend the financial benefit as due and
admissible in favour of the Petitioner. Such an exercise shall be
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undertaken and completed by the O.P. No 1 within a period of two
(2) months from the date of receipt of this order.
7. The writ petition is disposed of accordingly.
(Biraja Prasanna Satapathy)
Judge
Sneha
Signature Not Verified
Digitally Signed
Signed by: SNEHANJALI PARIDA
Designation: Jr. Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 07-Jul-2023 13:21:57
