Orissa High Court
Sapan Kumar Banerjee vs State Of Orissa And Another ....... Opp. ... on 12 March, 2012
Author: I.Mahanty
Bench: Pradip Kumar Mohanty, Indrajit Mahanty
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No.9528 of 2010
In the matter of an application under Articles 226 & 227 of the
Constitution of India
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Sapan Kumar Banerjee ....... Petitioner
-Versus-
State of Orissa and another ....... Opp. Parties
For Petitioner : In person.
For Opposite Parties : Addl. Standing Counsel.
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P R E S E N T:
THE HON'BLE MR. JUSTICE PRADIP KUMAR MOHANTY.
&
THE HON'BLE MR. JUSTICE INDRAJIT MAHANTY.
Date of hearing: 15.02.2012 Date of Judgment: 12.03.2012
I. Mahanty, J.In this writ application, petitioner-Sapan Kumar Banerjee has sought to challenge the order dated 26.11.2009 passed in O.A. No.1249(C) of 2008 (Annexure-10), whereby, the learned Member (Administration), Orissa Administrative Tribunal, Cuttack Bench, Cuttack was pleased to dismiss his application, upholding the Office Order No.4738/Estt. dated 18.12.2007 (Annexure-9) on a finding that the same was in due compliance of the directions issued earlier by a 2 Division Bench of the Orissa Administrative Tribunal in O.A. No.82 of 1986 vide judgment dated 02.09.1991 and other connected orders.
2. Shorn of unnecessary detail, it would suffice to note herein that the petitioner, while working as "Junior Clerk" in the Office of the Collector, Cuttack, tendered his resignation from service on 25.01.1977 and prior to any action being taken on the said resignation, he withdrew his resignation on 10.01.1978. The petitioner also submitted his joining report at Kanika Tahasil but was allegedly not allowed to join in spite of numerous representations to the Collector, Cuttack and on 05.02.1986, the Establishment Officer of Cuttack Collectorate directed the petitioner to produce his service book for consideration of his representation. The petitioner further alleged that in spite of production of the required documents, the petitioner was not allowed to join. Hence, the petitioner was compelled to file O.A. No.82 of 1986 before the Orissa Administrative Tribunal. The said O.A. came to be heard by a Division Bench of the Administrative Tribunal consisting of the Chairman and Member (Judicial) and the said O.A. came to be disposed of by judgment dated 02.09.1991 with the following directions.
"7. Shri K.M. Mishra, learned Government Advocate during course of hearing fairly conceded that in the facts and circumstances of the case, petitioner cannot be deemed to have ceased to be a Government servant and is entitled for reinstatement. However, Shri Mishra strenuously urged that on 3 reinstatement he should not be allowed to claim back wages and salary for the period he remained absent and did not work. Shri R.K. Rath, learned counsel appearing for the petitioner fairly conceded that the petitioner would not claim for salary and allowances for the period he did not work, but he should be entitled to continuity in service and the period of absence should be regularized as per the Leave Rules.
8. On fair concession from both sides as stated above we direct that the petitioner be allowed to join in his post immediately. On joining the post though he shall be entitled to continuity in service and the period of absence be regularized as per the Leave Rules, he shall hot be entitled to salary and allowances for the period he did not work.
9. In view of the petitioner's various representations which remained un-answered and the authorities for the reasons best known to them did not dispose of the same in time, the proceeding contemplated under the O.C.S. (CCA) Rules, 1962 for taking action against him as per Rule 72(2) of Orissa Service Code is redundant and the same is therefore quashed. In our opinion petitioner has faced sufficient harassment and non-payment of his salary for a long period should be treated as adequate punishment for the delinquency alleged to have been committed by him."
3. Pursuant to the aforesaid directions of the Tribunal, by order of the Collector, Cuttack dated 24.02.1992 under Annexure-3, the petitioner was directed to join as Junior Clerk in the office of the Tahasildar, Rajnagar and the petitioner continuously served as a Lower Division Clerk till the date of his retirement i.e. on 30.04.2005 without any promotion or any pay fixation/revision. 4
4. Although the petitioner rejoined the post of Junior Clerk vide direction dated 24.02.1992 under Annexure-3, he was not released his salary, inter alia, on the purported ground that there had been bifurcation of Cuttack District and on the creation of Kendrapara District. Therefore, the petitioner was compelled to file M.P. No.431 of 1995 in the earlier disposed of O.A. No.82 of 1986. The said Misc. Petition came to be disposed of vide order dated 22.03.1995 by the learned Chairman of the Orissa Administrative Tribunal noting therein, the assurance given by the Senior Clerk in the Establishment Section of Cuttack Collectorate that within one month, the Collector, Kendrapara would make arrangement to pay the salary of the petitioner. In spite of such direction, the same was not complied with and the petitioner in O.A. No.82 of 1986 also filed another M.P. No.1857 of 1995, wherein, the learned Chairman of the Tribunal took note of the entire facts situation and came to hold that, while the petitioner was continuing at Rajnagar Tahasil, Cuttack district was divided and the petitioner was posted at Narsinghpur Tahasil.
5. In this background since the petitioner had been paid only the minimum in the scale of pay and did not receive the benefits of service during the controversial period for which he had approached the Tribunal for initiation of proceeding for contempt. Notice to show cause was issued. Since it was stated that steps were being taken to pay all the dues and on such assurance the proceeding was dropped. 5 However, since the petitioner found that no steps had been taken and he is being harassed, he once again approached the Tribunal for initiation of a proceeding for contempt and once again notice to show cause was issued.
6. In reply to the aforesaid show cause, it was stated on behalf of the Collector, Cuttack that the petitioner's pay had not been fixed according to the pay scale because the options and other service particulars were not available and once again stated that no sooner the same are supplied by the petitioner, pay would be fixed. Keeping the aforesaid facts and circumstances, into consideration the Tribunal came to direct as follows:-
"Pay is to be fixed by the appointing authority. If any particulars are necessary from the employee concerned the same can be called for specifically. When duty of fixing pay in the scale lies with the appointing authority, he cannot avoid the same awaiting the particulars and an employee should not be allowed to suffer on account of fixation of pay."
Considering the aforesaid statements, the Tribunal directed that the technicalities should not be adhered to by the Collector for the purpose of granting legitimate dues to an employee and keeping the matter pending on some technical ground or other, would be of no assistance to the Collector and accordingly, the learned Chairman, Orissa Administrative Tribunal, directed that within six months of receipt of that order, the Collector shall fix the pay of the petitioner in 6 the scale admissible and pay him the arrears on that basis. The Tribunal passed the aforesaid order keeping in view the grievance of the petitioner that his salary from the date of the decision in O.A. No.82 of 1986 i.e 02.09.1991 till the date of posting, had not been paid and further that the petitioner should be treated to be, on duty from the date of the decision in O.A. No.82 of 1986 i.e. on 02.09.1991 till the date of his reposting as Junior Clerk and the same shall be released to him.
7. In spite of the aforesaid directions both in O.A. as well as the Misc. Petition and Contempt Petitions as noted herein above, the petitioner did not get his relief and ultimately retired from service on 30.04.2005. Finding no other alternative, the petitioner filed a fresh application registered as O.A. No.1586(C) of 2006 (hereinafter referred to as the 2nd O.A) before the Orissa Administrative Tribunal. This matter was heard by the learned Vice-Chairman of the Tribunal and disposed of vide order dated 05.12.2006 with the following directions:
" xxx xxx xxx But considering the long pending grievances of the applicant I think, this paper book would be sent to respondent No.5 i.e., Secretary to Government, Revenue Department, who would call for the papers from the R.D.C. and Collector i.e. respondents Nos.1 & 3 and all others who may be concerned in the matter, allow an opportunity of personal hearing to the applicant and pass appropriate orders for disposal of the pending representations of the applicant. Respondent No.5 also should keep in mind the observations of the Tribunal in the order dated 15.12.1995 disposing 7 of M.P.1857/1995. In regard to the disciplinary proceedings where appeal is pending, suitable direction be issued for disposal of the appeal within a reasonable time frame. This entire exercise should be completed within a period of three months from the date of receipt of a copy of these orders. I also give liberty to the applicant to approach the Tribunal if he continues to remain aggrieved even after that.
Disposed of with the above orders."
Instead of complying with the aforesaid directions of the Tribunal in the second OA. No.1586(C) of 2006, within the time stipulated, Misc. Petition No.156(C) of 2007 was filed by the Collector, Cuttack seeking eight months time from 15.03.2007 to enable them to implement the order of the Tribunal. By order dated 21.08.2007, the Tribunal came to a conclusion that the persons who had not been complied with the order of the Tribunal are the Collector, Cuttack, Collector, Kendrapara, Tahasildar, Raj Kanika and Tahasildar, Rajnagar. While finding the said officers had failed to comply with the directions of the Tribunal, once again six months time was granted to pass final orders in compliance of its earlier directions.
8. By the Office Order dated 18.12.2007 (Annexure-9), the Collector, Cuttack passed the order to the following effect:
"OFFICE OF THE COLLECTOR: CUTTACK.
No.4738/Estt.,Dt.18.12.2007 OFFICE ORDER In accordance with & taking into account the terms in the direction of the Hon'ble O.A.T. vide their order Dt.2.9.1991 passed in O.A. No.82/86, order Dt.5.12.06 in O.A. No.1586(C)/06 read with Govt. instruction communicated vide order 8 No.10397/R&DM., Dt. 14.3.2007 of the Govt. in Revenue & D.M. Deptt. the period of absence from duty i.e. 17 years 6 months & 25 days with effect from 6.2.1974 to 1.9.1991 of Sri Sapan Kumar Banerjee, Ex-Jr. Clerk is hereby sanctioned as extraordinary leave being treated as without pay and allowances in his favour as per Orissa Leave Rules 1966. The aforesaid period will not count as qualifying service for pension and other service benefits.
Sd/-
COLLECTOR: CUTTACK"
9. The aforesaid Office Order claiming to be complying with the directions dated 02.091991 passed in O.A. No.82 of 1986 as well as O.A. No.1586(C) of 2006 was the subject matter of a fresh challenge in O.A. No.1249(C) of 2008 (hereinafter referred to as the 3rd O.A.). This O.A was filed by the petitioner claiming therein that the Office Order dated 18.12.2007 of the Collector, Cuttack was not in compliance of the directions of the Tribunal passed earlier. But the contention of the petitioner did not find favour of the learned Member (Administration) of the Orissa Administrative Tribunal and this O.A. came to be rejected vide judgment dated 26.11.2009. The dismissal of this O.A. is the subject matter of challenge before us in the present proceeding.
10. Mr. Sapan Kumar Banerjee (the petitioner in person) addressed us on various factual issues noted hereinabove and submitted that the Office Order dated 18.12.2007 under Annexure-9 was a mere sham compliance and was passed merely to show token compliance of the earlier directions of the Tribunal in O.A. No.82 of 9 1986 as well as in O.A. No.1586(C) of 2006. It was further submitted by him that the earlier directions of the Tribunal were clear and categorical and, in fact, till date the same remain to be complied with.
The Division Bench of the Administrative Tribunal had taken note of the concessions offered by both the petitioner as well as the opposite parties (State) on the basis of which the petitioner had given up his claim for salary and allowances for the period he did not work and as a consequence of such a concession, the Tribunal directed that the petitioner to be allowed to join in his post immediately and further directed that he shall be entitled to continuity of service and the period of absence be regularized as per the Leave Rules, though he shall not be entitled to the salary and allowances for the period he did not work.
Mr. Banerjee further submits that by the impugned Office Order dated 18.12.2007 (Annexure-9), the Collector, Cuttack had sanctioned the period of petitioner's absence from duty i.e. from 06.02.1974 to 01.09.1991 as extraordinary leave without pay and allowances and while doing so further came to hold that the said period "will not count as qualifying service for pension and other service benefits".
Mr. Banerjee submits that the submission/concession made on his behalf by his counsel before the Tribunal was that he would not claim for the salary for the period for which he was not allowed to 10 work, but, his main submission was that, the further directions of the Tribunal that, the petitioner would be entitled to continuity in service and the period of absence be regularized as per the leave rules has been disregarded and not complied with till date, as a consequence of which the petitioner never received any annual increment from the date of appointment, never granted any promotion (appointed as Lower Division Clerk and retired on the same post), no fixation of pay scale has been done till date, no revised pay scale has been extended to the petitioner, no salary has been released from 02.09.1991 (Date of judgment in O.A. No.82 of 1986) till the date of his joining i.e. 03.03.1992, no gratuity and other pensionary benefits have yet been released in favour of the petitioner. Hence, he prays that all his financial benefits as well as pensionary benefits may be released in his favour along with the interest thereon.
11. Mr. Rath, learned Additional Standing Counsel on behalf of the State submits that the petitioner should have no grievance against the impugned Office Order dated 18.12.2007 under Annexure-9, since the same has been passed in due compliance of the directions issued by the Tribunal both in O.A. No.82 of 1986 as well as in O.A. No.1586(C) of 2006. He further submits that the period of his absence from duty has been sanctioned as extraordinary leave by the said impugned order but the said period has been correctly directed not to count as qualifying service for pension and other service benefits since 11 the principle of 'No work no pay' would apply to the case of the petitioner. In other words, Mr. Rath submits that the petitioner cannot claim pensionary benefits for the period he did not work since the same would tantamount to granting the petitioner financial benefits, even for a period during which he did not work for the State.
12. In the light of the circumstance as noted hereinabove, the only question that arises for our consideration in the present petition, is as to whether the office order dated 18.12.2007 under Annexure-9 is in due compliance of the direction issued by the Tribunal or not. In this regard it become necessary at the outset to first of all keep in view the direction issued by the Tribunal in O.A. No.82 of 1986 as noted in Para-2 hereinabove. In the said judgment, a Division Bench headed by the learned Chairman of the Orissa Administrative Tribunal, directed reinstatement of the petitioner without making any claims for the period he did not work but directed that he shall be entitled to continuity of service and the period of absence be regularized as per the Leave Rules. In this respect, the impugned office order has been passed under the Orissa Leave Rules, 1966 and Rule 13 thereof is extracted hereinbelow for necessary reference:
"13. (1) Extraordinary leave may be granted to any Government servant in special circumstances-
(i) When no other leave is by rule admissible;
or 12
(ii) When other leave is admissible, but the Government servant concerned applies in writing for the grant of extraordinary leave.
(2) Except in the case of permanent Government servant and a Government servant who has rendered not less than 3 years continuous service, the duration of extraordinary leave on any one occasion shall not exceed the following limits, namely :-
(i) two months;
(ii) four months in special cases, where such leave is supported by a medical certificate as required under the rules;
(iii) eighteen months where the Government servant is undergoing treatment for-
(a) pulmonary tuberculosis either in a recognized sanatorium or at his residence under a tuberculosis specialist recognized as such by the State Administrative Medical Officer concerned; or
(b) tuberculosis of any other part of the body by a qualified tuberculosis specialist or a (Chief District Medical Officer) or
(c) leprosy, in a recognized leprosy institution, or by a (Chief District Medical Officer) or a specialist in leprosy recognized as such by the State Administrative Medical Officer concerned:
Provided that the concession of extraordinary leave up to eighteen months under clause (iii) of this sub-rule shall be admissible only to those Government servants who have been in continuous Government service for a period exceeding one year :
Provided further that in the case of treatment of pulmonary tuberculosis at the residence, the Government servant shall produce a certificate from a specialist to the effect that he is under his treatment and that he has reasonable chances of recovery on the expiry to the leave recommended.
(Notification No.5959-Codes-183/70F., dated the 17th February, 1971) (3) Subject to the provision of rule 14, a Government servant not in permanent employ 13 may be granted during deputation on training extraordinary leave from the date of his relief till the date of resumption of duties on return from training provided that he has completed a minimum period of one year continuous service on the date of deputation and the authority competent to grant the leave is satisfied that such training is necessary for improving the government servant's professional knowledge.
(4) Where a Government servant who is not in permanent employ fails to resume duty on the expiry of the maximum period of extraordinary leave granted to him or where such Government servant who is granted a lesser amount of extraordinary leave that the maximum amount admissible remains absent from duty for any period which together with the extraordinary leave granted exceeds the limit up to which he could have been granted such leave under these rules, he shall, unless the State Government in view of the exceptional circumstances of the case otherwise determine, be removed from service after following the procedure laid down in Orissa Civil Services (Classification, Control and Appeal Rules, 1962.) (Notification No.44206-C.S. 11-26-73 F., Dt. 1st October, 1973)"
On a reading of the aforesaid rule as noted hereinabove, as well as the directions of the Tribunal in O.A. No.82 of 1986, there cannot be any doubt that, the petitioner is entitled to claim for continuity in service and the period of absence was required to be regularized as per the Leave Rules. Hence, it is clear that the said direction of the Orissa Administrative Tribunal has not yet been carried out. Therefore, we are of the considered view that the submissions made by the petitioner in this regard are well based. In the impugned office order dated 18.12.2007 while sanctioning the 14 extraordinary leave for the period of petitioner's absence from duty, while, no objection can be raised to the same, yet, the further direction contained therein, holding that the said period of absence would not count as qualifying service for pension and other service benefits, clearly stand, vitiated in view of the direction of the tribunal as noted herein above.
13. Apart from the above, we are also constrained to take note of the manner in which the directions passed by a Division Bench of the Orissa Administrative Tribunal headed by the learned Chairman has come to be treated in the impugned order under Annexure-10. The learned Member (Admn.) of the Orissa Administrative Tribunal, rejected the petitioner's O.A., effectively negating the directions issued by a Division Bench of the Tribunal passed earlier in O.A. No.82 of 1986 and in O.A. No.1586(C) of 2006. We are constrained to note that the judicial propriety demanded that the learned Member (Admn.) act in due consonance with the earlier directions of the Division Bench of the Tribunal. Judicial discipline demands that judgments of larger Benches are not only binding on Benches with lesser quorum but also must be implemented without in any manner commenting or frustrating the decision of the larger Bench.
14. We are also of the considered view that the reference made by the learned Member, Orissa Administrative Tribunal in the impugned Judgment under Annexure-10, to the judgments of the 15 Hon'ble Supreme Court in the case of Vijay Singh vs. Union of India, 2007(3) SLR 371 as well as in the case of Lajpat Rai Mehta vs. Secretary, Government of Punjab, Irrigation and Power, 2009(1) SCC (L & S) 647, are of no application to the facts of the present case, since the principle of 'No work no pay' had already been adopted by the Tribunal in its judgment dated 02.09.1991 passed in O.A. No.82 of 1986. The Tribunal had recorded the concession offered by the petitioner not to claim for payment for the period he did not work. The Tribunal had directed not only reinstatement of the petitioner but also declared the entitlement of "continuity in service" and the said direction has been clearly frustrated by passing the impugned Office Order dated 18.12.2007 under Annexure-9.
15. Apart from the reasons as noted hereinabove, we are also constrained to note herein that while directions had been issued in O.A. No.1586(C) of 2006 dated 5.12.2006, the Secretary to the Government in the Revenue Department had been issued with various directions including to call for the papers from the R.D.C, Collector and from all other persons who should be concerned in the matter and also to allow an opportunity of hearing to the petitioner and had been further directed to pass final orders disposing the pending representation of the petitioner. In course of hearing, the learned counsel for the State was asked to point out as to whether this direction had been complied with and as to whether the Revenue 16 Secretary had passed any order in compliance of the aforesaid direction.
16. Mr. Rath, learned counsel for the State produced before this Court the file containing all correspondences including the original service book. The letter dated 14.3.2007 purportedly issued by the Commissioner-cum-Secretary, the Department of Revenue and Disaster Management is extracted herein below.
"Government of Orissa Revenue and Disaster Management Department ....
ORDER Dated. Bhubaneswar, the 14.3.07 NO.NGE(C)III-E(Lit)28/2006 10397/R & D.M. In pursuant to order No.5 dtd.5.12.2006 of Hon'ble O.A.T., Cuttack in O.A. Case No.1586(C)/2006 between Sri Sapan Kumar Banarjee-Vrs-Collector, Cuttack and Other, the Commissioner-cum-
Secretary, Revenue and D.M. Deptt. (Respondent No.5) after careful consideration of the representation of the petitioner Sri Sapan Kumar Banerjee as well as the averment made in the O.A. Case , has been pleased to pass the following order.
(1) R.D.C. (Central Division), Cuttack (Respondent No.3) should take immediately steps to finalise the personal claims of Sri Banerjee within 15 days.
2. Collector, Cuttack (Respondent No.1) should take immediate steps to finalise the following personal claims of Sri Banerjee within the above stipulated period.
(a) Revision of his pay.
(b) Payment of his arrear salary from
2.9.1991 to 3.3.1993 and 36 days salary during service under Athagarh Tahasil alongwith house rent.17
(c) Payment of his pending R.C.M. claims, the Collector should also take steps to fix up of his final pension and send the pension paper to A.G. Orissa after finalization of disciplinary proceeding immediately. Action taken in the matter shall be intimated to Govt. and Hon'ble O.A.T. immediately.
By order of Commissioner-cum-Secretary S.K. Mishra, Under Secretary to Government"
17. On a plain reading of the aforesaid order, it is clear that the Secretary Revenue Department has not acted in terms of the directions of the Tribunal passed in O.A. No.1586(C) of 2006. In terms of the said directions, it was incumbent upon the Secretary to call for the records, give an opportunity of hearing to the petitioner and then dispose of the representation. From the aforesaid order, it is clear that the Secretary has not called for any record but has merely directed the R.D.C., Central Division, Cuttack to take steps to dispose of the appeal of the petitioner and further directed the Collector, Cuttack to take immediate steps to finalise the personal claims of the petitioner within the stipulated time.
18. This act on the part of the then Secretary, Revenue Department clearly amounts to abdication of responsibility and/or non-compliance of the direction of the Tribunal. Clearly it was expected that the Secretary Revenue would find the necessary time to call for the record from all concerned and also to afford an opportunity 18 of hearing to the petitioner. It appears from the aforesaid order that none of the steps were undertaken by the Revenue Secretary. We are also constrained to take note of the aforesaid fact to highlight the plight of a common litigant who having succeeded before the Tribunal in the year 1991 continued in the same post without any promotion or revision of salary, right up to his retirement in the year 2005. We are really concerned that highly placed Government Officials should ensure that an adequate care and caution are shown to comply with the directions of competent Courts of Law in order to ensure that rule of law which is guaranteed under the Constitution of India to every citizen does not remain a mere illusion or distant dream.
19. Therefore, we are left with no other alternative other than to direct quashing of the judgment dated 26.11.2009 passed by the learned Member (Administration), Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.1249(C). The Office Order dated 18.12.2007 passed by the Collector, Cuttack under Annexure-9 to the extent that "The aforesaid period will not count as qualifying service for pension and other service benefits" stands quashed and in its place it is held that the said period of absence shall count as qualifying service both for pension and other service benefits.
20. We further direct that all service & financial benefits of the petitioner shall be duly computed in terms of the order passed in O.A. 19 No.82 of 1986 as well as in O.A. No.1586(C) of 2006 and the Collector shall take all necessary steps ensuring (payment to the followings):
(i) Fixation of pay scale,
(ii) Revised pay scale,
(iii) Annual increment,
(iv) Promotional benefits,
(v) Salary for the period from 02.09.1991 to
03.03.1992,
(vi) Gratuity and;
(vii) All other financial & pensionary benefits
in favour of the petitioner positively within a period of three months from today.
21. The Writ petition is accordingly allowed.
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I.Mahanty, J.
Pradip Mohanty, J. I agree.
.................................
Pradip Mohanty,J
ORISSA HIGH COURT : CUTTACK
12th March, 2102 /PKP