Orissa High Court
State Of Odisha & Ors vs Prasant Kumar Mohanty & on 21 September, 2023
1
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P (C) No.5015 of 2017
State of Odisha & Ors. ..... Petitioners
Mr. A.K. Mishra, AGA
Vs.
Prasant Kumar Mohanty & ..... Opposite Parties
Anr. Mr. J.K. Rath, Sr. Advocate
along with Mr. D.N. Rath, Advocate
(O.P.1)
CORAM:
DR. JUSTICE B.R. SARANGI
MR. JUSTICE MURAHARI SRI RAMAN
ORDER
21.09.2023
Order No. This matter is taken up through hybrid mode.
2. Heard Mr. A.K. Mishra, learned Additional Government
Advocate appearing for the State-petitioners and Mr. J.K. Rath,
learned Senior Counsel along with Mr. D.N. Rath, learned
counsel appearing for opposite party no.1.
3. The State and its functionaries have filed this writ petition
seeking to quash the ex-parte order dated 27.07.2016 passed in
O.A. No.1570 of 2016, by which the Orissa Administrative
Tribunal, Principal Bench, Bhubaneswar, has directed the
petitioners to sanction the normal annual increment of opposite
party no.1 which is due with effect from 01.03.2012 till date as
admissible, if there is no legal impediment or specific order to
withhold the same as per rule and the arrear increment be
sanctioned.
4. Mr. A.K. Mishra, learned Additional Government
Advocate appearing for the State-petitioners contended that the
Tribunal has committed gross error apparent on the face of the
records. It is contended that as per Rule-77 of the Orissa Service
Code, the annual increment shall ordinarily be drawn as a matter
of course, unless it is withheld by an order of the appropriate
authority in accordance with the provisions of the OCS (CC&A)
Rules, 1962. Therefore, the Tribunal has directed the petitioners
to sanction the normal annual increment of opposite party no.1,
which is due with effect from 01.03.2012 till date as admissible,
if there is no legal impediment or specific order to withhold the
same as per rule and the arrear increment be sanctioned. It is
further contended that opposite party no.1 had approached the
Tribunal by filing O.As no.466 of 2015 and 792 of 2016 and
after abolition of Tribunal, the said cases were transferred to this
Court and renumbered as WPC(OA) No.466 of 2015 and
WPC(OA) No.792 of 2016 respectively. It is specifically
contended in ground no.B of the writ petition that the
disciplinary proceeding initiated against opposite party no.1, was
the subject matter of challenge in WPC (OA) No.466 of 2015
and WPC(OA) No.792 of 2016. It is further contended that in
the meantime, WPC (OA) No.466 of 2015 has been disposed of
with the following directions:
"4. It is contended that during pendency of the vigilance
proceeding when a disciplinary proceeding was
initiated against the Petitioner by the O.P. No. 1 and the
said Opp. Party proceeded with the same, the present
writ petition was filed with the prayer as indicated
hereinabove. It is further contended that in view of the
interim order passed by the Tribunal while issuing
notice of the matter, the departmental proceeding is
pending before the Authority concerned. Mr. Kar
accordingly prayed that the departmental proceeding be
kept in abeyance till disposal of the vigilance
proceeding.
5. Mr. Pattnaik, learned AGA has got no serious
objection with regard to the prayer made by the learned
counsel appearing for the Petitioner. In view of the
same and while disposing the writ petition, it is
observed that the departmental proceeding initiated
against the Petitioner shall remain stayed till disposal
of the vigilance proceeding."
It is also contended that WPC(OA) No.792 of 2016 has been
disposed of as withdrawn vide order dated 14.09.2021.
Therefore, the direction given by the Tribunal, vide order dated
27.07.2016 passed in O.A. No.15070 of 2016, cannot be
implemented unless the departmental proceeding initiated
against opposite party no.1 is concluded. To that extent, he has
placed reliance on the judgment of this Court in State of Odisha
v. Deepti Ranjan Mohanty (W.P.(C) No.12110 of 2015,
disposed of on 05.07.2022) wherein reference was made to Rule-
77 read with Rule-79 of the Odisha Service Code and this Court
came to a conclusion that in the event increment is granted to
opposite party no.1 during the period of his suspension, which is
treated as such, it may be bonus for him without doing the work.
That is never the purpose of the provisions contained in Rule-77
read with Rule-79 of the Odisha Service Code. Therefore, this
Court held that the Tribunal has committed gross error apparent
on the face of the record directing to pay incremental benefits as
admissible to opposite party no.1, even during the period of his
suspension, which has been treated as such and more
particularly, opposite party no.1 has not challenged the said
order of punishment in any higher forum including the Tribunal,
and, thereby, he has accepted the punishment. Therefore, this
Court held that the direction given by the Tribunal, for payment
of annual increment during the period of suspension is arbitrary,
unreasonable and contrary to the provisions of law.
5. Mr. J.K. Rath, learned Senior Counsel appearing for
opposite party no.1 contended that since the Tribunal has
directed the State-petitioners to sanction normal annual
increments of opposite party no.1, it is automatic one. He has
also relied upon the judgment of this Court in State of Odisha &
Ors. v. Deepti Ranjan Mohanty (W.P.(C) No.12110 of 2015,
disposed of on 05.07.2022) and contended that opposite party
no.1 is entitled to get annual increment automatically. Therefore,
the Tribunal has not committed any error in the order so as to
cause interference of this Court.
6. Considering the contentions raised by learned counsel for
the parties and after going through the records, this Court finds
that opposite party no.1 has been subjected to a departmental
proceeding and a vigilance proceeding. Therefore, the petitioner
filed O.A. No.466 of 2015 and after abolition of the Tribunal,
the said case was transferred to this Court and renumbered as
WPC (OA) No.466 of 2015, wherein opposite party no.1 made
following prayer:
"i. That, the Hon'ble Tribunal may be pleased to direct
the respondents to drop the proceeding initiated vide
memo of charges dtd.01.02.2013 under Annexure-5.
OR
The Hon'ble Tribunal may be pleased to direct the
respondents to withhold the departmental proceeding
and the enquiry till competition of vigilance case (VGR
No. 62/2011) pending before the vigilance court,
Sambalpur.
ii. That, the Hon'ble Tribunal may further be pleased to
direct the respondents not to bring out any final order on
the departmental proceedings till competition of the
aforesaid vigilance case pending before the vigilance
court.
iii. Cost of the litigation may be awarded in favour of the
applicant.
iv. Any other relief(s) as your Honnour may deem (s) fit
and proper."
At the instance of opposite party no.1, said WPC (OA) No.466
of 2015 was disposed of with the observation that the
departmental proceeding initiated against opposite party no.1
shall remain stayed till disposal of the vigilance proceeding.
Therefore, unless the departmental proceeding initiated against
opposite party no.1 is concluded, question of grant of annual
increment at this stage does not arise. So far as WPC (OA)
No.792 of 2016 is concerned, the same has been disposed of as
withdrawn. Thus, the present case is dependant upon the
finalization of departmental proceeding. Therefore, the Tribunal
has committed gross error in passing the order dated 27.07.2016
in O.A. No.1570 of 2016 directing the petitioners to sanction the
normal annual increment of opposite party no.1 which is due
with effect from 01.03.2012 till date as admissible, if there is no
legal impediment or specific order to withhold the same as per
rule and the arrear increment be sanctioned. When the
departmental proceeding is pending, direction given by the
Tribunal in the order dated 27.07.2016 in O.A. No.1570 of 2016
cannot be sustained in the eye of law. As such, this Court in
Deepti Ranjan Mohanty (supra) held that it is not an automatic
one but if Rules-77 & 79 of the Odisha Service Code are given
effect to after conclusion of proceeding. If that be so, the claim
made by opposite party no.1 in compliance of the order of the
Tribunal cannot have any justification. Thereby, the order dated
27.07.2016 passed by the Tribunal in O.A. No. 1570 of 2016 is
quashed. However, liberty is granted to opposite party no.1 to
pursue his remedy before the appropriate forum after
departmental proceeding is concluded.
7. With the above observation, the writ petition stands
disposed of.
(DR. B.R. SARANGI)
JUDGE
Alok (M.S. RAMAN)
JUDGE
Signature Not Verified
Digitally Signed
Signed by: ALOK RANJAN SETHY
Designation: Secretary
Reason: Authentication
Location: Orissa High Court
Date: 21-Sep-2023 17:24:29
