Partly allowed

Bani Bhusan Dash v. State of Odisha,Panchayati Raj Drinking Water Dept

Orissa HC28 Oct 2021WP(C)/7635/2019

Case brief

AI extract

What is this about?

This writ petition challenged an order imposing three penalties, including transferring the petitioner to another location and treating suspension as leave. The Court quashed the transfer order as arbitrary and not a recognized penalty, and also quashed the treatment of suspension as leave, citing lack of statutory authority and violation of natural justice principles.

What did the court decide?

The impugned order dated 15.09.2018 is quashed to the extent of the second punishment (transfer) and third punishment (treating suspension as leave).

Bani Bhusan Dash Vs State of… — Pension and Retirement Benefits | Orissa HC (2021)

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ORISSA HIGH COURT: CUTTACK

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W.P(C) NO. 7635 OF 2019

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In the matter of an application under Articles 226 and 227 of the Constitution of India.

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AFR

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Bani Bhusan Dash ..… Petitioner

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-Versus-

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State of Odisha & Ors. ….. Opp. Parties
For Petitioner : Mr. S.N. Pattnaik,
G.R. Sethy, C.S. Panda,
P. Mohapatra,
S. Mohapatra and
A.A. Mohanty.
For Opp. Parties : Mr. A.K. Mishra,
A.K. Sharma, S. Mishra
and A. Mishra.
[Opp. Party Nos. 2 & 3]
P R E S E N T:

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THE HONOURABLE DR. JUSTICE B.R.SARANGI

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Date of hearing and judgment: 28.10.2021

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DR. B.R. SARANGI, J. The petitioner, who is working as Assistant Project Director (Finance) under the District Rural Development Agency, Puri, has filed

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this writ application seeking to quash the order dated

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15.09.2018 under Annexure-8, on the ground that

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the same has been passed in gross violation of the principle of natural justice as well as Rule-15 (10)(i)(a) and Rule 16 (b) of the Orissa Civil Service (Classification Control and Appeal) Rules, 1962.

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The factual matrix of the case, in brief, is that the District Rural Development Agency (DRDA) is a Society registered under the Societies Registration Act, and is being financed by the State Government and Central Government. DRDA is visualized as a specialized and professional agency capable of managing the anti poverty programme of

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the Government and to watch over and ensure effective utilization of funds intended for anti poverty programme in different districts. DRDA in every district of the State functions under the administrative control of the Panchyati Raj & Drinking Water Department. Due to creation of posts of Assistant Project Director (Finance) in DRDA by the Government in Panchyati Raj Department in the

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year 1996, an advertisement was published for filling up of the said post under DRDA, Dhenkanal. Pursuant thereto, the petitioner applied for and he was duly selected and appointed by the order of the Collector & Chairman. Accordingly, he joined in his duty and while he was so continuing, one post of Assistant Project Director (Finance) fallen vacant under Puri DRDA. Thereby the petitioner made a representation before opposite party no.1 for his transfer to Puri DRDA under Regulation 15 of The Odisha District Rural Development Agency Employees (Recruitment and Conditions of Service) Regulation, 1989, with a condition that he will forgo his seniority since the post in question is a district cadre. Accordingly, vide order dated 06.11.2002, he was appointed as Assistant Project Director (Finance) in the DRDA Puri with a stipulation that in the cadre the seniority of the petitioner will be counted from the date of joining in the DRDA, Puri as Assistant Project Director (Finance). Pursuant to such order,

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he joined in the said post and during his continuance, the petitioner along with similarly situated persons approached this Court by filing W.P.(C) No.32335 of 2011 with a prayer to create promotional avenues for them and to grant higher scale of pay at par with Class-I (Junior Branch) of the State Government. But thereafter, he was transferred from Puri to Sambalpur DRDA in gross violation of the provisions contained in DRDA Service Regulation vide order dated 16.02.2015, which was challenged before this Court in W.P.(C) No. 2955 of 2015. After due adjudication, vide order dated 06.08.2015, the order of transfer dated 16.02.2015 was quashed, as the same was passed without complying the provisions contained in Rule-15 of the DRDA Regulation, 1989. Consequentially, the petitioner was allowed to continue where he was posted earlier, i.e. at Puri, vide order dated 01.10.2015.

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2.1 While he was continuing at Sambalpur as Assistant Project Director (Finance), on 07.07.2015 one memorandum of charge was issued to him by the Collector, Puri, opposite party no.2 with regard to gross negligence in Government duty, misappropriation of government money, disregard to the order of the higher authority and for violation of the conduct rules. On receipt of such memorandum, the petitioner submitted his reply denying all the charges, since same are vague and without any basis. Again, on self-same ground another additional memorandum of charge was issued to the petitioner on 24.08.2015, to which the petitioner also filed his reply denying all the charges. But from the date of joining on 09.12.2015 at Puri, he was placed under suspension by opposite party no.2 on the ground of serious financial irregularities committed by the petitioner without any audit report.

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2.2 Consequent upon the memorandum of charge filed against the petitioner and reply submitted by

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him, the ADM, Nabakalebar was appointed as the inquiry officer to enquire into the charges and the Additional P.D (Admn), DRDA, Puri was nominated as the Marshalling Officer to produce the evidence before the inquiry officer. But subsequently, the Secretary, P.K.D.A., Puri was appointed from 29.02.2016 as the inquiry officer, who had submitted his enquiry report indicating that the charges are unsubstantiated and there was no misappropriation of money of the department and suggested that the delinquent officer should be reinstated in service and posted to a DRDA other than the DRDA, Puri and the period of suspension be treated as leave and that the pay perks and other entitlement be released, and that apart he will not lose his seniority and will be given a fitment which the petitioner so deserves. In the said enquiry report, it was also stated that additional charges framed will be taken up for enquiry by his successor. On the basis of the selfsame allegation, additional memorandum of charge

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was submitted on 24.08.2015 under Rule-15 of the OCS (CCA) Rules, 1962 for the irregularities and misconduct committed by the petitioner during his incumbency as APD (Finance), Puri in the said office in continuation of the charges drawn on 07.07.2015. The petitioner submitted his reply denying all the charges level against him. The inquiry officer submitted his report with regard to additional charges, where charge Nos. 1, 2, 3 (with regard to misappropriation of facts), 5, 6, 7, 9 and 10 were not established and Charge Nos. 3 (with regard to negligence in duty), 4 and 8 were established. Therefore, the inquiry officer suggested for punishment for the charge Nos. 3, 4 and 8 for stoppage of one increment, which may be withheld without cumulative effect as per Rule-13 (iii) and Rule 15 of the OCS (CCA), Rules, 1962. Opposite party no.2, being the disciplinary authority, issued a show cause notice on 08.08.2018 to the petitioner in contemplation of imposing punishment on the basis

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of findings of the inquiry officer that one increment be stopped without cumulative effect, the delinquent officer be reinstated in service and be posted to any DRDA other than DRDA, Puri and suspension period be treated as due on leave as admissible under the rules. The petitioner was called upon to show cause on the findings of the inquiry officer on the charges, as required under Rule-13 (iii) and Rule 15 of the OCS (CCA) Rules, 1962, within 15 days from the date of receipt of the show cause notice. It was clearly indicated therein that if no reply is received within the stipulated period, it will be presumed that the petitioner has no reply to offer anything and the matter will be decided on its own merit. After receipt of the 2^nd show cause notice under Annexure-6 on 16.08.2018, the petitioner submitted a detailed and exhaustive reply on 21.08.2018 which was received on 24.08.2018 by the opposite party no.2 as per the postal tracking report, i.e. within the stipulated time. Without considering the same in its proper

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perspective, on the strength of the enquiry report submitted on the additional charges, the opposite party no.2 passed the final order confirming the proposed punishment submitted by the inquiry officer, i.e. stoppage of one increment without any cumulative effect, the petitioner be posted to any DRDA other than DRDA, Puri and the period of suspension be treated as leave due and admissible.

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Challenging such order of punishment dated 15.09.2018, the petitioner approached this

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Court by filing W.P.(C) No. 17977 of 2018 seeking to quash the order of punishment, which was disposed of vide order dated 03.12.2018 with a direction to file appeal before the appellate authority, which would be disposed of within six months from the date of receipt of the appeal. In compliance of the order dated 03.12.2018, the petitioner preferred an appeal on 18.12.2018 before opposite party no.1, but the same was refused to be entertained on the ground

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that the appeal provision is not available for the post held by the petitioner. Hence this writ petition.

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Mr. S.N. Patnaik, learned counsel for the

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petitioner, at the outset, referring to the order of punishment imposed by opposite party no.2 vide order dated 15.09.2018 in Annexure-8, contended

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that so far as the 1^st punishment of stoppage of one increment without any cumulative effect is concerned, the petitioner has no grievance, as the same has already been implemented. But so far as 2^nd punishment, namely “the Delinquent Officer be posted to any DRDA other than DRDA, Puri and the 3^rd punishment, namely, “the period of his suspension be treated as leave due and admissible” are concerned, he contended that these two punishments are not prescribed under the law and, thereby, the same cannot sustain. To substantiate his argument, he has relied upon the judgment of the

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Apex Court in Vijay Singh V. State of U.P. and others , 2012 (5) SCC 242: AIR 2012 SC 2840 and

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the judgment of this Court passed in Samir Kumar Mitra v. State of Orissa and others (W.P.(C) No. 20827 of 2016 disposed of on 25.08.2016).

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Mr. A.K. Mishra, learned counsel appearing for the opposite party Nos. 2 and 3 argued with vehemence that since the petitioner had committed some irregularities steps were taken against him by initiating proceeding and consequentially the imposition of penalty is well justified and may not be interfered with by this court. It is further contended that the disciplinary authority has passed the final order, on the basis of the records of the departmental proceeding, against the petitioner by granting reasonable opportunity in terms of issuing show cause notice as per the provisions contained in OCS (CCA) Rules, 1962. As there is no provision for appeal by the Assistant Project Director (Finance) as per the Orissa District Rural Development Agency Employees (Recruitment and conditions of Service) Regulations, 1989, rightly

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the appellate authority held that the appeal is not maintainable. Accordingly, he contended that the writ application should be dismissed.

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This Court heard Mr. S.N. Patnaik, learned counsel for the petitioner and Mr. A.K. Mishra, learned counsel for opposite party Nos. 2 and 3 by hybrid mode, and perused the record. Pleadings have been exchanged between the parties and with their consent, the writ petition is being disposed of finally

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at the stage of admission.

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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

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extracted hereunder:-

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“1. One increment of Sri Bani Bhusan Dash is stopped without any cumulative effect.

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2. The delinquent officer posted to any DRDA other than DRDA, Puri.

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3. Period of his Suspension is treated as leave due and admissible.”

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So far as 1^st punishment is concerned, Mr. S.N.

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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

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particularly when such punishment has been implemented.

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In view of the above, now it is to be seen whether 2^nd and 3^rd punishment imposed by the disciplinary authority be construed s 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.

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So far as the 2^nd punishment is concerned, with regard to restricting the posting of the petitioner from DRDA, Puri rather to post him in any other

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DRDA, is not only arbitrary 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, Regulation15 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 Regulation25 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

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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^nd 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.

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Coming to the 3^rd punishment, as imposed in the impugned order dated 15.09.2018 under Annexure-8, i.e. treating the period of suspension as

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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

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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

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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

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other than the duty affecting the service condition of the petitioner.

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In Samir Kumar Mitra (supra) , the

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Division Bench of this Court categorically held that in absence of any provision under OCS (CCA) Rules, 1962, the decision of the authorities to treat the period of suspension as leave due is not permissible. In paragraph-12 of the said judgment, this Court held as follows:-

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“It is not in dispute that treating the period of suspension as leave due is not prescribed under the Statute and when the period of suspension has been treated to be leave due, it also amounts to punishment, but since it is not prescribed under the statute and we are also not in agreement with the argument advanced on behalf of the Government before the learned Tribunal that even if it is not prescribed under Rule 13, but as per Rule 12(6) of the Rules, the disciplinary authority, while passing the final order of punishment or of release in the disciplinary proceedings against a Govt. servant, shall give directions about the treatment of period

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of suspension, which is passed not as a measure of substantive punishment, but as suspension pending enquiry and indicate whether the suspension would be the punishment or not. The reason for deciding the said view is that the authorities have not reflected in the order as to whether the order of suspension is by way of punishment or not. Hence, passing the order regarding suspension cannot be said to be in terms of the provisions of Rule 12(6) of the Rules. Accordingly, that part of the order, which related to treating the period of suspension as leave due, is not sustainable and accordingly quashed.

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In view of the aforesaid analysis, this Court is of the

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considered view that the alleged 3^rd punishment imposed in the impugned order Annexure-8 dated 15.09.2018 cannot sustain in the eye of law.

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It is of relevance to note here the well

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made principle enshrined in criminal jurisprudence extending legal maxim “nulla poena sine lege” , which means that a person should not be made to suffer penalty except for a clear breach of existing

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law. In S. Khushboo v. Kanniammal and Anr , AIR 2010 SC 3196, the apex Court held that a person cannot be tried for an alleged offence unless the legislature has made it punishable by law and it falls within the offence as defined under Sections 40, 41 and 42 of the Indian Penal Code, 1860, Section 2 (n) of Code of Criminal Procedure, 1973 or Section 3 (38)

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of the General Clauses Act, 1897.

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Even though the aforementioned principle

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has been laid in connection with a criminal case, but

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the analogy can also be applicable to the present context, which has been referred to of the judgment

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of the apex Court in Vijay Singh (supra). Thereby, on this score only the 2^nd punishment imposed vide order impugned under Annexure-8, having not been contemplated in any of the provisions of the service rules applicable to the employees of DRDA or even in the OCS (CCA) Rules, 1962, such punishment is not maintainable in the eye of law.

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Consequentially, 2^nd and 3^rd punishment imposed in the impugned order dated 15.09.2018 under Annexure-8 is not sustainable in the eye of law and the same is liable to be quashed and, hereby quashed.

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The writ petition is allowed to the extent

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indicated above. No order as to costs.

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…………….…………..….
DR. B.R. SARANGI,
JUDGE
Orissa High Court, Cuttack
The 28 th October, 2021, Arun

Bani Bhusan Dash v. State of Odisha,Panchayati Raj Drinking Water Dept

Case brief

What is this about?

What did the court decide?

Bani Bhusan Dash v. State of Odisha,Panchayati Raj Drinking Water Dept

Case brief

What is this about?

What did the court decide?

What the court decided

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