Orissa High Court
Suresh Chandra Meher vs State Of Odisha & Others .... Opposite ... on 21 January, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.8945 of 2024
In the matter of an application under Articles 226 & 227 of
the Constitution of India, 1950
..................
Suresh Chandra Meher .... Petitioner
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s. P.K. Mohapatra & S.C.
Sahoo.
For Opp. Parties : M/s. Mr. P.K. Panda,
Addl. Standing Counsel.
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing:21.01.2025 and Date of Judgment:21.01.2025
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Biraja Prasanna Satapathy, J.
1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical) Mode.
2. Hard copy of the Counter affidavit filed in Court be
kept in record.
3. Heard learned counsel appearing for the Parties.
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4. The present Writ Petition has been filed by the
Petitioner inter alia challenging order dtd.15.04.2023 so
passed by Opposite Party No.3 under Annexure-4 and
further order passed on 14.03.2024 under Annexure-6.
Vide the said order, Opposite Party No.3 though was
inclined to drop the departmental proceeding so initiated
against the Petitioner on 08.11.2007, but directed to treat
the period of suspension as leave due and admissible.
5. Learned counsel for the Petitioner contended that
Petitioner while continuing in service, a proceeding was
initiated against him vide Departmental Proceeding
No.1217 dtd.08.11.2007. Petitioner was also proceeded
with in a criminal proceeding in Patnagarh P.S. Case
No.121 of 2007 corresponding to G.R. Case No. 216 of
2007 in the file of learned S.D.J.M., Patnagarh.
5.1. It is contended that in the criminal proceeding in G.R.
Case No.216 of 2007, Petitioner was honourably acquitted
vide judgment dtd.20.12.2021 under Annexure-3.
5.2. Taking into account the order of acquittal passed in
the criminal proceeding, vide order dtd.15.04.2023 under
Annexure-4, Opposite Party No.3 though dropped the
disciplinary proceeding initiated against the Petitioner, but
treated the period of suspension from 11.06.2007 to
11.01.2009 as leave due and admissible.
5.3. It is contented that since the departmental proceeding
initiated against the Petitioner was dropped and no order of
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punishment was passed, in view of the decision in the case
of Bani Bhusan Dash Vs. State of Odisha & Others
(W.P.(C) No.7635 of 2019) and further decision passed by
this Court in the case of Dr. Smita Mohanty vs. State of
Odisha & Others (WPC(OA) No.2585 of 2016, the period
of suspension could not have been treated as leave due and
admissible and the said period should have been treated as
duty for all purposes.
5.4. It is also contended that challenging the order passed
on 15.04.2023 under Annexure-4, Petitioner though
preferred an appeal before Opposite Party No.2, but the
same was also rejected vide order dtd.14.03.2024 under
Annexure-6. Accordingly, challenging the order passed
under Annexures-4 & 6 Petitioner is before this Court in
the present Writ Petition.
5.5. It is contended that since Opposite Party No.3 vide
order dtd.15.04.2023 was inclined to drop the proceeding,
the direction to treat the period of suspension as leave due
and admissible could not have issued in view of the
decision in the case of Bani Bhusan Dash so followed in
the case of Dr. Smita Mohanty. This Court in Para-10 the
decision in the case of Bani Bhusan Dash and Para- 4.1.,
5 & 6 of the order dtd.05.07.2023 in the case of Dr. Smita
Mohanty has held as follows:-
"10. Coming to the 3rd punishment, as imposed in the impugned
order dated 15.09.2018 under Annexure-8, i.e. treating the period
of suspension as leave due and admissible, no doubt the
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authorities are empowered to place an employee under
suspension in contemplation or pending drawal of a proceeding
exercising their power under Rule-12 of the OCS (CCA) Rules,
1962. Accordingly, they have to give a conclusion the manner to
treat the period of suspension at the time of passing final order in
the departmental proceeding. The authorities are to keep the
suspension as such or to revoke the said suspension order by
revising the period of suspension as duty, as because honouring
nonengagement certificate for the relevant period, the authorities
have sanctioned subsistence allowance to the delinquent during
the period of suspension. In the instant case, the authority, after
taking a decision not to treat the period of suspension as such, is
not empowered to take a decision to treat the period of
suspension as leave due and admissible, when the petitioner did
not ask for any leave during the said period of suspension.
Regularization of a particular period treating as leave period of
different kinds of leave, as provided under Orissa Leave Rules,
can be considered only when the petitioner/employee concerned
seeks leave from the competent authority for certain period under
certain circumstances. The authority cannot initiate a proposal
from its side in assumption of leave application from the
delinquent or employee concerned to treat the period as leave due
and admissible affecting the delinquent by way of consuming
accrued leave in favour of the employee concerned without any
fault on his part. As the authority has come to a conclusion to
punish the petitioner only with a minor penalty, the decision of
the competent authority to place the petitioner under suspension
on the allegation of grave misconduct does not appear to be
satisfactory, rather it seems that the order of suspension was
issued without application of mind or in a routine or mechanical
manner. As such, no review of suspension was held, as per the
guidelines. Under such circumstances, after concluding the
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departmental proceeding by imposing minor penalty of stoppage
of one increment without cumulative effect, the authority should
not have treated the period of suspension in any manner other
than the duty affecting the service condition of the petitioner."
"4.1.Mr.Rath, learned counsel for the Petitioner also relied on
another decision of the Hon'ble Apex Court reported in the case
of Union of India & Anr. Vs. S.C. Parashar ((2006) 3 SCC 167).
This Court in Para 10 of the reported case of BaniBhusan Dash
has held as follows:-
"10. Coming to the 3rd punishment, as imposed in the
impugned order dated 15.09.2018 under Annexure-8, i.e.
treating the period of suspension as leave due and
admissible, no doubt the authorities are empowered to
place an employee under suspension in contemplation or
pending drawal of a proceeding exercising their power
under Rule 12 of the OCS (CCA) Rules, 1962.
Accordingly, they have to give a conclusion the manner to
treat the period of suspension at the time of passing final
order in the departmental proceeding. The authorities are
to keep the suspension as such or to revoke the said
suspension order by revising the period of suspension as
duty, as because honouring non-engagement certificate
for the relevant period, the authorities have sanctioned
subsistence allowance to the delinquent during the period
of suspension. In the instant case, the authority, after
taking a decision not to treat the period of suspension as
such, is not empowered to take a decision to treat the
period of suspension as leave due and admissible, when
the petitioner did not ask for any leave during the said
period of suspension. Regularization of a particular
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period treating as leave period of different kinds of leave,
as provided under Orissa Leave Rules, can be considered
only when the petitioner/employee concerned seeks leave
from the competent authority for certain period under
certain circumstances. The authority cannot initiate a
proposal from its side in assumption of leave application
from the delinquent or employee concerned to treat the
period as leave due and admissible affecting the
delinquent by way of consuming accrued leave in favour
of the employee concerned without any fault on his part.
As the authority has come to a conclusion to punish the
petitioner only with a minor penalty, the decision of the
competent authority to place the petitioner under
suspension on the allegation of grave misconduct does not
appear to be satisfactory, rather it seems that the order of
suspension was issued without application of mind or in a
routine or mechanical manner. As such, no review of
suspension was held, as per the guidelines. Under such
circumstances, after concluding the departmental
proceeding by imposing minor penalty of stoppage of one
increment without cumulative effect, the authority should
not have treated the period of suspension in any manner
other than the duty affecting the service condition of the
petitioner."
Similarly, Hon'ble Apex Court in Para 12 of the reported
Judgment in the case of Union of India (supra) has held as
follows:-
"12. The penalty imposed upon the respondent is an
amalgam of minor penalty and major penalty. The
respondent has been inflicted with three the tune
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penalties: (1) reduction to the minimum of the timescale of
pay for a period of three years with cumulative effect; (2)
loss of
seniority; and (3) recovery of 25% of the loss incurred by
the Government to of Rs 74,341.89p. i.e. Rs 18,585.47p.
on account of damage to the Gypsy in 18 (eighteen) equal
monthly installments. Whereas reduction of timescale of
pay with cumulative effect is a major penalty within the
meaning of clause (v) of Rule 11 of the CCS Rules, loss of
seniority and recovery of amount would come within the
purview of minor penalty, as envisaged by clauses (iii) and
(i)(a) thereof. The disciplinary authority, therefore, in our
opinion acted illegally and without jurisdiction in
imposing both minor and major penalties by the same
order. Such a course of action could not have been taken
in law."
xxx xxx xxx
5. Mr. R.N. Mishra, learned AGA does not dispute the ratio
decided in the case of BaniBhusan Dash as well as the view
expressed by the Hon'ble Apex Court in the case of Union of
India.
6. Having heard learned counsel appearing for the Parties and
taking into account the materials available on record, it is found
that while disposing the proceeding the Petitioner was imposed
with a minor punishment i.e. stoppage of two increments without
cumulative effect. On the face of such punishment imposed and in
view of the decisions as cited supra, the period of suspension
should not have been treated as such instead of treating the same
as duty. Therefore, this Court is inclined to quash the order so far
as it relates to treat the period of suspension as such. While
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quashing the same, this Court directs the Opp. Party No. 1 to
treat the period of suspension as duty and extend the financial
benefit as due and admissible in favour of the Petitioner. Such an
exercise shall be undertaken and completed by the O.P. No 1
within a period of two (2) months from the date of receipt of this
order".
5.6. It is accordingly contended that the impugned order
so far as it relates to treating the period of suspension as
leave due and admissible is not sustainable in the eye of
law and the same be treated as duty for all purposes.
6. Mr. P.K. Panda, learned Addl. Standing Counsel for
the State basing on the stand taken in the counter affidavit
so filed by Opposite Party No.3, contended that since
because of the implication of the Petitioner in the criminal
case followed by the initiation of the disciplinary
proceeding, he remained under suspension for the period
from 11.06.2007 to 11.01.2009, after his acquittal in the
criminal proceeding, while dropping the departmental
proceeding vide order dtd.15.04.2023, the period of
suspension was treated as leave due and admissible.
6.1. It is also contended that since the period of
suspension has been treated as leave due and admissible, it
is not causing any prejudice to the Petitioner and on
regularization of the said period as leave due and
admissible, Petitioner will get the financial benefit as will be
due to him. It is accordingly contended that no illegality or
irregularity can be found with such direction contained in
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order under Annexure-4, further confirmed vide order
under Annexure-6.
7. Having heard learned counsel appearing for the
Parties and considering the submissions made, this Court
finds that because of the implication of the Petitioner in the
criminal proceeding in Patnagarh P.S. Case No.121 of 2007,
the departmental proceeding was initiated against him vide
Proceeding No.12017 dtd.08.11.2007. As found the
criminal proceeding initiated against the Petitioner ended in
acquittal vide judgment dtd.20.12.2021 under Annexure-3.
On being acquitted in the criminal proceeding vide order
dtd.15.04.2023 under Annexure-4, Opposite Party No.3
dropped the departmental proceeding. But while dropping
the said proceeding, the period of suspension was treated
as leave due and admissible.
7.1. Against such order of punishment, Petitioner though
preferred an appeal under Annexure-5 before Opposite
Party No.2, but the said authority without proper
appreciation of the grounds taken in the appeal rejected the
same vide order dtd.14.03.2024 under Annexure-6. Placing
reliance on the decision in the case of Bani Bhusan Dash
so followed in the case of Dr. Smita Mohanty, it is the view
of this Court that since the departmental proceeding so
initiated against the Petitioner on 08.11.2007 was dropped,
no direction could have been issued to treat the period of
suspension as leave due and admissible.
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7.2. Therefore, this Court is inclined to interfere with the
order dtd.15.04.2023 so confirmed in order dtd.14.03.2024
under Annexures-4 & 6, so far as it relates to treating the
period of suspension as leave due and admissible. While
quashing that part of the order, this Court directs Opposite
Party No.3 to treat the period of suspension on duty for all
purposes and extend the benefit as due and admissible to
the Petitioner. This Court directs Opposite Party No.3 to
complete the entire exercise within a period of two (2)
months from the date of receipt of this order.
8. Accordingly, the Writ Petition stands disposed of.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Dated the 21st January, 2025/Subrat
Location: HIGH COURT OF ORISSA, CUTTACK
