Orissa High Court
Jatindra Kumar Das vs State Of Odisha & Others on 18 September, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) (OAC) No.4466 of 2015
Jatindra Kumar Das
.... Petitioner
Mr. B.B. Mohanty, Advocate
-versus-
State of Odisha & Others
.... Opposite Parties
Mr.M.K. Balabantaray, AGA
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
11.09.2023
Order No.
03. 1. This matter is taken up through Hybrid
Arrangement (Virtual/Physical) Mode.
2. Heard learned counsel for the Parties.
3. The present Writ Petition has been filed inter alia
with the following prayer:-
"a) The Original Application be allowed;
b) This Hon'ble Tribunal be pleased to quash the charge memo
dated 23.02.2010, inquiry report dated 14.08.2011, order of
punishment dated 23.11.2011, order of appeal dated
01.05.2013 and order of revision dated 15.12.2014 under
Annexure-3, 7, 10, 12 & 13 respectively.
c) And further be pleased to direct the authorities to exonerate
the applicant from the charges and to grant all consequential
service and financial benefits.
d) Such other order/orders be passed granting complete relief to
the applicant".
4. It is contented that though the Petitioner has no role
with regard to charge framed in the proceeding initiated
under Annexure-3 and the Petitioner as alleged in the
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charge memo was not in charge of the police station
during the relevant time, but the said fact was not taken
into consideration either by the Enquiry Officer or by the
disciplinary authority as well as by the appellate authority
and revisional authority. Without considering the stand
taken by the Petitioner in his written statement of defence
that he was not in charge of the police station during the
relevant point of time, the order of punishment was
passed by awarding one black mark and by treating the
period of suspension as such. The order passed by the
disciplinary authority under Anexure-7 was confirmed by
the appellate authority vide order at Annexure-10 and by
the revisional authority under Annexure-13.
4.1. It is also contended that while awarding one black
mark, the direction to treat the period of suspension as
such is not permissible as no such punishment is
prescribed under PMR-824.
4.2. In support of the aforesaid submission, Mr. Mohanty
relied on the decision of this Court passed on 28.08.2023
in WPC(OAC) No.1723 of 2018. This Court in Para-6 and
6.1. of the said order has held as follows:-
"6. Having heard learned counsel for the Parties and taking
into account the submissions made as well as the order
passed by this Court as cited (supra), this Court is of the view
that while disposing the proceeding with award of one black
mark, no such order should have been passed to treat the
period of suspension as such, the same being not prescribed
under PMR-824.
// 3 //
6.1. Therefore, this Court in view of such position is inclined
to quash that part of the order, wherein the period of
suspension is treated as such. While quashing the same, this
Court directs Opposite Party No.3 to regularize the said period
as leave due and admissible and pass a fresh order to that
effect within a period of three (3) months from the date of
receipt of this order.
4.3. Mr. Mohanty also relied on another decision of the
Hon'ble Apex Court in the case of Vijay Singh vs. State
of U.P. & Others in Civil Appeal No.3550 of 2012( Arising
out of SLP (C) No.27600 of 2011) decided on 13.04.2012.
The view of the Hon'ble Apex Court in Para-15 & 16 of the
said judgment are quoted hereunder:-
"15. Unfortunately, a too trivial matter had been dragged
unproportionately which has caused so much problems to the
appellant. There is nothing on record to show as to whether the
alleged delinquency would fall within the ambit of misconduct
for which disciplinary proceedings could be initiated. It is settled
legal proposition that the vagaries of the employer to say ex post
facto that some acts of omission or commission nowhere found
to be enumerated in the relevant rules is nonetheless a
misconduct (See: M/s. Glaxo Laboratories (I) Ltd. v. Presiding
Officer, Labour Court, Meerut & Ors., AIR 1984 SC 505;
and A.L. Kalra v. The Project and Equipment Corporation of
India Ltd., AIR 1984 SC 1361).
16. Undoubtedly, in a civilized society governed by rule of law,
the punishment not prescribed under the statutory rules cannot
be imposed. Principle enshrined in Criminal Jurisprudence to
this effect is prescribed in legal maxim nulla poena sine lege
which means that a person should not be made to suffer
penalty except for a clear breach of existing law. In S.
Khushboo v. Kanniammal & Anr., AIR 2010 SC 3196, this
Court has held that a person cannot be tried for an alleged
offence unless the Legislature has made it punishable by law
and it falls within the offence as defined under Sections
40, 41 and 42 of the Indian Penal Code, 1860, Section 2(n) of
Code of Criminal Procedure 1973, or Section 3(38) of the
General Clauses Act, 1897. The same analogy can be drawn in
the instant case though the matter is not criminal in nature.
Thus, in view of the above, the punishment order is not
maintainable in the eyes of law".
// 4 //
4.4. It is accordingly contended that since the direction
to treat the period of suspension is not a prescribed
punishment under PMR-824, such a punishment could
not have been awarded in addition to award of one black
mark.
5. Even though Mr. Balabantaray, learned AGA made
his submission basing on the stand taken in the counter
affidavit, but it is fairly contended that no such
punishment to treat the period of suspension as such is
prescribed under PMR-824.
6. Having heard learned counsel for the Parties and
after going through the materials available on record and
placing reliance on the decisions as cited (supra), this
Court is of the view that while awarding the punishment
of one black mark no direction could have been issued to
treat the period of suspension as such, as no such
punishment is prescribed under PMR-824.
6.1. Therefore, the punishment so far as it relates to
treating the period of suspension as such is not
sustainable in the eye of law. Accordingly, this Court is
inclined to quash the punishment so far as it relates to
treating the period of suspension as such so passed by
disciplinary authority-Opposite Party No.4-under
Annexure-7 and confirmed by the appellate and revisional
authority -Opposite Party Nos.3 & 2 vide Annexures-11
// 5 //
and 13. This Court accordingly directs to treat the
period of suspension as leave due and admissible and for
passing of an order to that effect by Opposite Party No.4
within a period of 2 (two) months from the date of receipt
of the order. This Court is not inclined to interfere with
the other punishment i.e. award of one black mark.
7. With the aforesaid modification of the order of
punishment, the Writ Petition stands disposed of.
(Biraja Prasanna Satapathy)
Judge
Subrat
Signature Not Verified
Digitally Signed
Signed by: SUBRAT KUMAR BARIK
Reason: ..
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 18-Sep-2023 13:18:25
