Partly allowed

Bhagaban Ghiwala v. State and Ors.

Orissa HC6 Apr 2021WP(C)/1521/2012

Case brief

AI extract

What is this about?

In this writ petition, the petitioner challenged the retrospectivity of a disciplinary order reverting him to a lower rank. The Court held that while retrospective punishment is illegal, the reduction in rank itself was valid. The retrospective effect was modified to grant service benefits for the intervening period.

What did the court decide?

The order of reversion modified to deny retrospective effect; Petitioner entitled to financial and notional service benefits from 26.12.2002 to 25.09.2004.

Bhagaban Ghiwala Vs State and Ors. — Pension and Retirement Benefits | Orissa HC (2021)

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W.P.(C) No.1521 of 2012

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C O R A M:

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SHRI JUSTICE S. K. MISHRA AND MISS JUSTICE SAVITRI RATHO

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________________________________________________ Bhagawan Ghiwala …… Petitioner. - VersusState of Odisha and Ors. …… Opp. Parties.

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For Petitioner : Mr. Sidheswar Mallik and P.C. Das. For Opp. Parties : Mr. G.N. Rout, ASC.

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O R D E R

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07. 06.04.2021

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This matter is taken up by Hybrid mode.

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Heard Mr. Sidheswar Mallik, learned counsel for the Petitioner and Mr. G.N. Rout, learned Additional Standing Counsel for the State.

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Admit.

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The short question that arises in this writ petition is that “whether the order of punishment can be passed by the Disciplinary Authority, from reversion on rank with retrospective effect from the date on which the Petitioneremployee was found to be guilty of the offence by the Enquiry Officer”.

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Annexure-7, the Office Order No.185 dated 26^th December, 2002 passed by the Opposite Party No.4-

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Conservator of Forests (K.L.) Cuttack Circle, Cuttack reveals that the Petitioner- Bhagaban Ghiwala, Junior Accountant of Boudh (K.L.) Division was found guilty on 26^th December, 2002. The Petitioner preferred an appeal to the Appellate Authority i.e. the Opposite Party No.3- Additional Principal Chief Conservator of Forests, PCCF, (Kendu Leaves), Odisha, Bhubaneswar, District- Khurda who set aside the enquiry report and remitted it back to the Opposite Party No.4Conservator of Forests (K.L.) Cuttack Circle, Cuttack. The final order of punishment was passed on 25.09.2004 reverting the Petitioner to the post of Senior Clerk with effect from 26^th December, 2002. Such order was assailed before the Orissa Administrative Tribunal, Cuttack Bench, Cuttack (hereinafter referred to as “the Tribunal” for brevity) in O.A. No.806(C) of 2005.

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The Tribunal has, inter alia , held as the Appellant was admittedly reverted on 26.12.2002 when he had assumed charge and he claims to have assumed charge on 03.01.2003, there is no illegality in his reversion from rank of Junior Accountant to Senior Clerk. The Tribunal also expressed its surprise that the Respondents failed to notice that a Departmental Proceeding was pending against him since 11.07.2000 and considered him suitable for promotion as Head Clerk in a D.P.C. on 18.01.2002 and cleared him for promotion in office order no.1363 dated 19.10.2002 and also posted him

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on promotion in consequential order as per order no.177/2 230/2002 dated 12.11.2002, instead of keeping the recommendations of the D.P.C. in sealed cover which has mainly led to such avoidable litigation.

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Mr. S. Mallik, learned counsel for the Petitioner submits that such order of reversion directing for retrospective operation is illegal. He relies upon the judgment of the Hon’ble Supreme Court in the case of State Bank of Patiala and Another –vrs.- Ram Niwas Bansal (Dead) Through Legal Representatives : reported in (2014) 12 SCC 106, wherein it has been held as follows:

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“14. The three issues that eminently emerge for consideration are:

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(i) whether the employer Bank could have, in law, passed an order of dismissal with retrospective effect;

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(ii) whether the delinquent officer stood superannuated after completion of thirty years as provided under the Regulations on 25.2.1992; and

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(iii) whether the legal heirs of the deceasedemployee are entitled to get the entire salary computed till the actual passing of the order of dismissal, that is, 22.11.2001 or for that matter till the date of superannuation, that is, 25.2.1992.

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Xx xx xx xx xx xx xx xx xx xx

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In the case at hand, the disciplinary proceeding was initiated against the delinquent officer while he was in service. The first order of dismissal was passed on 23.4.1985. The said order of punishment was set aside by the High Court and the officer concerned was directed to be reinstated for the limited purpose, i.e., supply of enquiry report and to proceed in the disciplinary proceeding from that stage. The said order was not interfered with by this Court. The Bank

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continued the proceeding. Needless to emphasise, the said continuance was in pursuance of the order of the Court. Under these circumstances, it has to be accepted that the concept of deemed continuance in service of the officer would have full play and, therefore, an order of removal could have been passed after finalization of the departmental proceeding on 22.11.2001. We have already held that the said order would not have been made retrospectively operative, but that will not invalidate the order of dismissal but it would only have prospective effect as has been held in R. Jeevaratnam v. State of Madras : AIR 1966 SC 951.”

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The ratio decided in the case of State Bank of Patiala and Another (supra) applies to the case of the Petitioner.

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So, the order of reversion passed by the Opposite Party No.4- Conservator of Forests (K.L.) Cuttack Circle, Cuttack on 25^th September, 2004 making it effective from 26.12.2002 is incorrect. However, the 1^st part of the order reverting the Petitioner to the rank of lower post i.e. from Junior Accountant to Senior Clerk cannot be found fault with.

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Hence, the writ petition is allowed in part. The order of reversion is, accordingly, modified to the above extent. The Petitioner is entitled to service benefits both financial and notional of the senior cadre from 26.12.2002 to 25.09.2004.

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10 Accordingly, the writ petition is disposed of.

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Order be communicated to the appropriate forum forthwith requisite for which shall be filed by the Petitioner within fifteen working days hence.

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As the restrictions due to the Covid-19 situation are continuing, learned counsel for the parties may utilize a soft copy of this order available in the High Court’s website or print out thereof at par with certified copy in the manner prescribed, vide Court’s Notice No.4587, dated 25^th March, 2020.

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…………………… ( S. K. Mishra) Judge

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….………………… (Savitri Ratho) Judge

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Bhagaban Ghiwala v. State and Ors.

Case brief

What is this about?

What did the court decide?

Bhagaban Ghiwala v. State and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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