Gaya Prasad Mandal vs State Of Odisha And
2023 Latest Caselaw 12468 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                    W.P.(C) (OAC) No.2900 of 2017

        Gaya Prasad Mandal               ....                  Petitioner
                                                  Mr. B. Dash, Advocate

                                      -versus-
        State of Odisha and              ....               Opposite Parties
        Others
                                                      Mr. B. Panigrahi, ASC
                           CORAM:
               JUSTICE BIRAJA PRASANNA SATAPATHY
                                 ORDER

05.10.2023 Order No.

10. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. Heard learned counsel for the parties.

3. The Petitioner has filed the present Writ Petition inter alia challenging the order of punishment passed against him by the Disciplinary Authority-Opposite Party No.4 on 27.12.2014 under Annexure-15 and confirmation of the same by the appellate authority vide order dtd.29.07.2017 under Annexure-17.

4. Learned counsel for the Petitioner contended that the Petitioner while working as a Constable at Karanjia Police Station, a proceeding was initiated against him on 31.03.2001. In the said proceeding, when the Petitioner was imposed with the punishment of dismissal from service and the said punishment was confirmed by the appellate authority as well as by the revisional authority, Petitioner challenging the order of punishment so passed approached the Tribunal in O.A No.978(C)/2013.

// 2 //

4.1. The Tribunal vide order dtd.16.10.2012 under Annexure-9, while setting aside the order of punishment so passed against the Petitioner remanded the matter to Opposite Party No.4 to inquire into the charges afresh after complying with all the provisions of OCS (CC&A) Rules, 1962( in short Rules).

4.2. It is contended that pursuant to the order passed by the Tribunal under Annexure-9, Petitioner though was reinstated in his service vide order dtd.01.02.2013 under Annexure-10, but in terms of the order passed by the Tribunal, Petitioner was never supplied with the documents and thereby enabling him to file his written statement of defence. Without providing the documents basing on which the proceeding was initiated Opposite Party No.4 directed for causing fresh enquiry. The Enquiry Officer when submitted his report on 30.06.2013, Petitioner was issued with the 1st show cause under Annexure-12. Petitioner while submitting his reply to the 1st show cause on 16.08.2013, clearly indicated therein that in terms of the order passed by the Tribunal, Petitioner was never provided with the documents basing on which the proceeding was initiated against him. A further stand was also taken that Petitioner in the meantime has been acquitted from the charges with regard to the seizure of Ganja from his possession by the learned Special Judge, Mayurbhanj, Baripada vide his judgment dtd.10.04.2002. Accordingly, Petitioner prayed to exonerate him from the charges.

// 3 //

4.3. It is contended that without proper appreciation of the reply to the 1st show cause, Petitioner when was issued with the 2nd show cause by proposing the order of punishment of dismissal under Annexure-13, Petitioner once again while making his reply under Annexure-14, took similar stand that in terms of the order passed by the Tribunal, Petitioner since was never provided with the documents basing on which, the charges were framed, the issuance of the 2nd show cause by proposing the punishment of dismissal is not sustainable in the eye of law.

4.4. It is contended that without proper appreciation of the order so passed by the Tribunal in its order dtd.16.10.2012 under Annexure-9 and stand taken in the reply to the 2nd show cause under Annexure-14, Opposite Party No.4 passed the order of dismissal vide order dd.27.02.2014 under Annexure-15. Against the order of punishment so passed by Opposite Party No.4, Petitioner preferred an appeal before Opposite Party No.3 vide Annexure-16. In the said appeal, Petitioner also took a stand that in terms of the order passed by the Tribunal, Petitioner since was never provided with the documents, the order of dismissal passed by Opposite Party No.4 is not sustainable in the eye of law. But the appellate authority without proper appreciation of the grounds taken in the appeal as well as the order passed by the Tribunal, confirmed the order of punishment while

// 4 //

rejecting the appeal vide order dtd.29.07.2017 under Annexure-17.

4.5. Learned counsel for the Petitioner contended that since the Tribunal while remanding the matter after quashing the order of punishment of dismissal directed the Opposite Party No.4 to follow the provisions contained under OCS(CC&A) Rules, 1962, Petitioner after such remand of the matter should have been provided with the documents and thereby enabling him to file his written statement of defence as provided under Rule-15(3) of the OCS (CC&A) Rules, 1962. Since that was never followed and the proceeding again started from the stage of enquiry and basing on the enquiry report, Petitioner was imposed with the punishment of dismissal vide order under Annexure-15 so confirmed vide order under Annexure-17, both the orders are not sustainable in the eye of law and requires interference of this Court. It is further contended that since during pendency of the matter, Petitioner has already attained the age of superannuation in the month of April, 2023, appropriate relief be granted.

5. Mr. Panigrahi, learned Addl. Standing Counsel for the State on the other hand made his submission basing on the stand taken in the counter affidavit. Learned Addl. Standing Counsel also produced the proceeding file for perusal of this Court.

// 5 //

5.1. Learned Addl. Standing Counsel contended that after remand of the matter by the Tribunal, enquiry against the Petitioner started afresh and the enquiry officer while submitting the report held the Petitioner guilty of the charges. Taking into account the report, Petitioner was issued with the 1st and 2nd show cause as provided under Rule-15 of the OCS (CC&A) Rules, 1962. After due consideration of his reply to the 1st and 2nd show cause, the order of punishment has been passed against the Petitioner.

It is accordingly contended that no illegality or irregularity has been committed by Opposite Party No.4 as well as by Opposite Party No.3 while passing the order of punishment under Annexures-15 & 17.

6. Having heard learned counsel for the Parties and after going through the materials available on record, this Court finds that the Petitioner in the proceeding when was imposed with the punishment of dismissal, the same was challenged before the Tribunal in O.A. No.978(C)/2006. The Tribunal vide order dtd.16.10.2012 under Annexure-9, while setting aside the order of punishment remanded the matter with a direction on the Opposite Parties to inquire into the charges afresh after complying with all the provisions of OCS (CC&A) Rules, 1962. It is found from the record that the Petitioner though took a stand at every occasion that he was not provided with the documents and thereby enabling him to file his written statement of defence, but the same was

// 6 //

never considered either by the disciplinary authority or by the appellate authority. Since the provisions contained under Rule-15(3) of the OCS (CC&A) Rules, 1962 was never followed after remand of the matter by the Tribunal and the said plea was not taken note of either by the disciplinary authority or by the appellate authority, this Court on the ground of non-compliance of the statutory provision is inclined to quash the order of punishment so passed against the Petitioner by Opposite Party No.4 on 27.12.2014 under Annexure-15 and confirmed by Opposite Party No.3 vide order dtd.29.07.2017 under Annexure-17 and quash both the orders accordingly.

6.1. However, since in the meantime and during pendency of the matter, Petitioner has attained the age of superannuation and no order of reinstatement can be passed, this Court is of the view that the Petitioner be treated to have continued in his service till he attained the age of superannuation in the month of April, 2023. However, it is directed that the period of service from the date of dismissal till attaining the age of superannuation will only be treated on notional basis and Petitioner will not be entitled to get any financial benefits for the period in question. This Court however directs that the Petitioner will be eligible and entitled to get the benefit of pension and other pensionary benefits as due and admissible taking into account his entire period of service till he attained the age of superannuation in the month of April, 2023. This Court directs Opposite Party No.4 to take effective step for sanction of pension and other

// 7 //

pensionary benefits as due and admissible in favour of the Petitioner within a period of three (3) months from the date of receipt of this order.

7. Accordingly, the Writ Petition stands disposed of.

(Biraja Prasanna Satapathy) Judge

Subrat

Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Oct-2023 17:39:58