Orissa High Court
Prasanna Kumar Mishra vs State Of Odisha & Ors. .... Opposite ... on 18 April, 2023
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C)(OAC) No.4733 of 2016
Prasanna Kumar Mishra .... Petitioner
Mr. S.K. Mishra, Advocate
-versus-
State of Odisha & Ors. .... Opposite Parties
Mr. S. Rath, ASC
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
18.04.2023 Order No
03. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
2. Heard Mr. S.K. Mishra, learned counsel for the Petitioner and Mr. S. Rath, learned Addl. Standing Counsel appearing for the Opp. Parties.
3. The Petitioner is aggrieved by the order passed by the Opp. Party No. 3 on 11.05.2015 under Annexure-4.
4. It is contended that even though the charges framed against the Petitioner in a departmental proceeding is treated as dropped, but without following the order passed by the Director under Annexure- 3, O.P. No. 3 illegally and arbitrarily directed to treat the period of suspension as such.
5. Learned counsel for the Petitioner contended that as the proceeding was treated as dropped, there is no occasion on the part // 2 // of the Opp. Party No. 3 to treat the period of suspension as such instead of treating the same as duty.
6. Mr. Mishra, learned counsel for the Petitioner in support of hs aforesaid submission relied on a decision of this Court in the case of Bani Bhusan Dash Vs. State of Odisha & Ors. (2021 (III) ILR- CUT-528). This Court in Para 7 to 10 of the Judgment in Bani Bhusan Dash has held as follows:-
"7. As has been already indicated, impugning the order of punishment passed by the disciplinary authority, vide Annexure-8 dated 15.09.2018, the instant writ petition has been filed. The punishments, which have been imposed are extracted hereunder:-
"1. One increment of Sri Bani Bhusan Dash is stopped without any cumulative effect.
2. The delinquent officer posted to any DRDA other than DRDA, Puri.
3. Period of his Suspension is treated as leave due and admissible."
So far as 1st punishment is concerned, Mr. S.N. Patnaik, learned counsel appearing on behalf of the petitioner very fairly states that he is not pressing the same, as the same has been defined as a minor penalty in terms of the penalties prescribed under Rule-13 of the OCS (CCA) Rules, 1962, which is applicable to the employees of DRDA in Orissa. Therefore, he has no grievance with regard to imposition of that penalty on the petitioner particularly when such punishment has been implemented.
8. In view of the above, now it is to be seen whether 2nd and 3rd punishment imposed by the disciplinary authority be construed punishment in the eye of law and if not, whether the order passed to that extent can sustain or has to be given a go- bye.
9. So far as the 2 punishment is concerned, with regard to restricting the posting of the petitioner from DRDA, Puri rather to post him in any other DRDA, is not only arbitrary Page 2 of 4 // 3 // and irrational, but also amounts to misuse of official power bestowed with opposite party no.2. Imposition of such restriction in the name of penalty in a departmental proceeding is violative of the service rules and it can be safely construed that such restriction has been put with an ulterior motive especially when the same has not been prescribed as a penalty under Rule-13 of the OCS (CCA) Rules, 1962. Furthermore, Regulation-15 of The Orissa District Rural Development Agency Employees (Recruitment and Conditions of Service) Regulations, 1989 deals with "Transfer" and Regulation 25 thereof deals with "Discipline". While there is a clear provision for applicability of OCS (CCA) Rules, 1962 to the employees of the Agency in the matter of disciplinary control, as per Regulation-25 and Regulation 15 puts a clear bar on transferring of an employee from one agency to another, with exception to consider such transfer only in case of willingness made by the concerned employee and on consent of both the agencies and that too forgoing seniority etc. in new place of posting and taking into account the same, this Court had passed an order on 06.08.2015 in W.P.(C) No. 2955 of 2015 and as such, the 2 punishment imposed in the order impugned vide Annexure-8 does not come within the purview of "penalty" prescribed under Rule-13 of the OCS (CCA) Rules, 1962, and more so to give a posting to the petitioner to any other DRDA, other than DRDA Puri cannot be construed to be a punishment within the framework of law, the same cannot be anyway held to be sustainable.
10. Coming to the 3 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 Page 3 of 4 // 4 // 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 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."
7. In view of the decision as cited (supra) and since the proceeding against the Petitioner was treated as dropped, the period of suspension from 07.03.1994 to 22.03.1998 cannot be treated as such as has been done in the impugned order dt.11.05.2015 under Annexure-4. This Court while holding so is inclined to quash the order at Annexure-4 and while quashing the same, directs the Opp. Party No. 3 to treat the period of suspension as duty and extend the benefit as due and admissible in favour of the Petitioner within a period of two (2) months from the date of receipt of this order.
8. The writ petition is disposed of accordingly.
(Biraja Prasanna Satapathy) Judge Sneha Page 4 of 4