Orissa High Court
Himansu Sekhar Acharya vs ) State Of Odisha ..... Opposite Parties on 7 May, 2024
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.11216 of 2024
Himansu Sekhar Acharya ..... Petitioner
Represented By Adv. -
Nihal Rath
-versus-
1) State Of Odisha ..... Opposite Parties
2) Director, Horticulture, Bbsr Represented By Adv. -
Mr.D.Mohapatra, ASC
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA
ORDER
Order No. 07.05.2024
01. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard learned counsel for the Petitioner as well as learned
Additional Standing Counsel for the State. Perused the Writ Petition
as well as the documents annexed thereto.
3. The Petitioner has filed the present writ application with the
following prayer:
"The Petitioner, therefore most humbly prays that
this Hon'ble Court may graciously be pleased to admit
the writ application, to issue rule Nisi calling upon the
Opposite Parties to show cause as to why the prayers
made hereunder be not allowed. Upon showing
insufficient cause/no cause make the said Rule absolute,
issue writ/writs in the nature of
i) Certiorari quashing the impugned order dated
02.11.2019 under Annexure-9 with respect to
punishment to treat the period of suspension of
the Petitioner as leave due and admissible and
the orders of rejection of appeals communicated
in letter of Opp.Party No.1 dated 17.02.2022 and
letter of Opp.Party no.1 dated 27.12.2023 under
Annexures-12 and 13 declaring he same to be
illegal and unconstitutional and direct the
Opp.Parties to pass appropriate orders treating
the period of suspension of the Petitioner from
31.01.2015 to 01.12.2015 as duty and disburse all
arrear financial benefits along with penal interest
@ 12% per annum after adjustment of the
subsistence allowance he had already received
together with consequential service benefits
within a period stipulated by this Hon'ble Court.
ii) AND may pass such other writ/writs,
order/orders, direction/directions as this Hon'ble
Court may think fit and proper for the ends of
justice."
4. It is submitted by the learned counsel for the Petitioner that the
Petitioner has approached this Court being aggrieved by the order of
rejection dated 02.11.2019 under Annexure-9 whereby the Opposite
Parties have concluded the Disciplinary Proceeding by imposing
certain punishments on the Petitioner. Further, learned counsel for
the Petitioner submitted that while imposing punishment the
Petitioner has been awarded censure and the period of suspension
from 31.01.2015 to 03.12.2015 is directed to be treated as leave due
and admissible. Further, referring to the judgment of this Court in
Bani Bhusan Dash-versus State of Odisha and others decided in
W.P.(C) No.7635 of 2019 vide judgment dated 28.10.2021, learned
counsel for the Petitioner submitted that the coordinate Bench of this
Court while considering an identical issue has concluded that the
period of suspension is to be treated as such or the same is to be
treated as on duty. He further contended that the Opposite Parties-
Disciplinary Authority has committed illegality by treating the
suspension period as leave due and admissible. It was further
contended that in the case of Bani Bhusan Dash, the coordinate
Bench while considering the aforesaid aspect has come to a
conclusion that the period of suspension cannot be treated as leave as
due and admissible as the same is not provided under the OCS(CCA)
Rules, 1962.
5. Learned Additional Standing Counsel for the State on the other
hand contended that the aforesaid judgment of this Court in Bani
Bhusan Dash's has not been brought to the notice of the
Disciplinary Authority. Further, he contended that in the event the
Petitioner is aggrieved by the imposition of punishment, the order is
an appelable order. Therefore, it was contended by the learned
Additional Standing Counsel that the Petitioner should have raised
the aforesaid ground either before the Disciplinary Authority or, later
before the appellate authority. Having not raised the same ground, it
is no more open to the Petitioner to raise the same ground in the
present Writ Petition. On such ground, it was submitted by the
learned Additional Standing counsel for the State, the Writ Petition is
devoid of merit and the same is liable to be dismissed at the
threshold.
6. Having heard learned counsels for the respective parties, on
careful examination of the factual background of the present case as
well as taking note of the principle laid down by this Court in Bani
Bhusan Dash (supra), this Court deems it proper to dispose of the
Writ Petition at the stage of admission by directing the Petitioner to
approach the appellate authority along with a copy of the judgment
in Bani Bhusan Dash's case (supra). In such eventuality learned
appellate authority shall pass necessary orders in accordance with
law, within two months from the date of communication of the order
by the Petitioner. It is needless to mention here that while considering
the case of the Petitioner the appellate authority shall not be
influenced by the previous order dated 17.02.2022 under Annexure-
12.
7. With the aforesaid observation/direction, the writ application
stands disposed of.
Issue urgent certified copy of this order as per Rules.
( A.K. Mohapatra )
Judge
RKS
Location: High Court of Orissa
Date: 09-May-2024 17:50:38
