Trinath Samasi vs State Of Odisha & Others
2023 Latest Caselaw 12148 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                  W.P.(C) No.31260 of 2023
                 Trinath Samasi                           ....              Petitioner
                                                         Ms. K.R. Choudhury, Advocate
                                              -versus-
                 State of Odisha & others                 ....       Opposite Parties
                                                                    Mr. S. Das, A.G.A.

                                           CORAM:

                             JUSTICE A.K. MOHAPATRA

                                           ORDER

Order No.                                 09.10.2023
    01.     1.      This matter is taken up through Hybrid Arrangement (Virtual
            /Physical Mode).

2. Heard learned counsel for the Petitioner as well as the learned Additional Government Advocate for the State-Opposite Parties. Perused the Writ Petition as well as the documents annexed thereto.

3. The present writ petition has been filed by the Petitioner with the following prayers:-

"Under facts and in the circumstances stated above it is humbly prayed that this Hon'ble Court may graciously be pleased to admit the writ petition, call for and peruse the connected records so that conscionable justice can be done and after hearing the Petitioner's Counsel, be further pleased to:-

i. Issue Rule NISI calling for the O.P. to show cause as to why the award of BLACK MARK to the petitioner shall not be quashed and if they show no/insufficient cause make the Rule absolute;

ii. And further be pleased to direct the O.P. to decide the case of the petitioner in the light of principle settled by this Hon'ble Court in W.P.(C) No.27484/2022.

iii. Issue direction to the O.P. and/or their sub ordinates not to take any coercive action against the petitioner till the disposal of the writ petition.

iv. And may pass any such other order(s)/direction(s) as this // 2 //

Hon'ble Court deemed just and proper."

4. It is submitted by learned counsel for the Petitioner that being aggrieved the punishment imposed by the Disciplinary Authority, the Petitioner has approached this Court by filing the present writ petition thereby challenging the impugned order dated 29.06.2021 under Annexure-1. In the impugned order dated 30.05.2020 under Annexure- 2, the Petitioner has been imposed with a punishment of forfeiture of increment for a period of one year without cumulative effect carrying a value of two Black marks. Learned counsel for the Petitioner referring to the punishment imposed by the Opposite Parties submitted before this Court that the Petitioner has been imposed with a punishment of stoppage of increment for a period of one year without cumulative effect which is equivalent to two Black marks. Since the Petitioner has already suffered the stoppage of increment for a period of one year, therefore, the punishment of two Black marks shall not be considered while considering the total Black marks accumulated by the Petitioner during his service carrier. Learned counsel for the Petitioner further referring to the judgment of this Court in Biswajit Panigrahi v. State of Odisha & others (W.P.(C) No.27484 of 2022, decided on 19.5.2023), submitted before this Court that an identical issue was before this Court. This Court after a detail hearing of the learned counsels appearing in that case has answered the issue by a judgment dated 19.5.2023 holding that the Black mark value as contained in Rule-835(1) of the Police Manual does not have effect after the expiry period for which reductions, forfeiture or withholding has been imposed. In the context of the present writ petition, learned counsel for the Petitioner submitted that since the Petitioner has already suffered the punishment of stoppage of increment for six months, the Black mark shall not be taken into consideration in view of Rule-835(1) of the Police Manual as has been decided in the aforesaid case.

5. Learned Additional Government Advocate appearing for the // 3 //

State-Opposite Parties, on the other hand, contended that the Petitioner has not approached the Departmental Authority before approaching this Court by filing the present writ petition. In such view of the matter, learned Additional Government Advocate submitted that the Petitioner be directed to approach the Departmental Authority first and in such event, the Departmental Authority be directed to consider the same within a stipulated period of time and strictly in accordance with law and he will have no objection to the same. Learned Additional Government Advocate further submitted that a similar issue is the subject matter of dispute before the Hon'ble Supreme Court in S.L.P. No.1310 of 2021 (State of Odisha v. Alekh Bag). In such view of the matter, learned Additional Standing Counsel submitted that unless a final decision is taken by the Hon'ble Supreme Court, it would not be proper to follow the judgment of this Court in Biswajit Panigrahi's case (supra).

6. This Court on a careful analysis of the submissions made by the learned Additional Government Advocate, is of the view that a judgment delivered by this Court is binding on the Opposite Parties until and unless the same is set aside by the Hon'ble Apex Court. Moreover, it was not brought to the notice of this Court that whether any interim order was passed in the above noted matter which is pending for adjudication before the Hon'ble Apex Court.

7. In such view of the matter, this Court is of the considered view that the judgment delivered by this Court on an identical issue and the finding therein shall have a binding effect till the same is specifically set aside by the Hon'ble Supreme Court in an appeal preferred by the State-Opposite Parties.

8. In view of the aforesaid analysis as well as keeping in view the submissions made by the learned counsels appearing for the respective parties and further keeping in view the limited nature of the grievance involved in this writ petition, this Court deems it proper to dispose of // 4 //

the writ petition by directing the Petitioner to approach the Opposite Party No.2-The D.I.G. of Police, Special Armed Police, Bhubaneswar, Odisha by filing a grievance petition taking therein all the grounds along with supporting documents within three weeks from today. In the event such a grievance petition is filed, the Opposite Party No.2 shall do well to consider the same keeping in view the law laid down by this Court in Biswajit Panigrahi's case (supra) within a period of two months from the date of presentation of such grievance petition before him. It is needless to mention here that the Opposite Party No.2 shall consider the representation of the Petitioner in accordance with law and shall dispose of the same by passing a speaking and reasoned order. The decision so taken thereon be communicated to the Petitioner within two weeks thereafter.

9. With the aforesaid observations/ directions, the writ application stands disposed of.

Issue urgent certified copy of this order as per Rules.

( A.K. Mohapatra ) Judge Anil

Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 13-Oct-2023 17:45:00