Orissa High Court
Kansari Behera vs State Of Odisha on 9 October, 2024
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.28593 of 2022
In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950
***
Kansari Behera
Aged about 64 years
Son of Late Prahallad Behera,
resident of Village: Patrapada
P.O.: Dutipada, Via/P.S.: Khajuripada
District: Kandhamal. … Petitioner.
-VERSUS-
1. State of Odisha,
represented through
Principal Secretary, Revenue &
Disaster Management Department
Odisha Secretariat
Unit-V, Bhubaneswar
District: Khordha.
2. Revenue Divisional Commissioner,
Southern Division
At/P.O.: Berhampur
District: Ganjam.
3. Collector & District Magistrate,
Kandhamal
At/P.O.: Phulbani
District: Kandhamal.
4. Tahasildar
Chakapad Tahasil,
W.P.(C) No.28593 of 2022 Page 1 of 55
At/P.O.: Chakapada
District: Kandhamal.
5. Principal Accountant General
(A & E), Odisha
AG Square, Bhubaneswar … Opposite parties.
Counsel appeared for the parties:
For the Petitioners : M/s. Krishna Chandra Sahu,
Sudarshan Pradhan,
D.K. Mahalik,
Ajaya Kumar Samal,
Monalisa Tripathy, AdvocatesFor the Opposite parties : Mr. Arnav Behera,
Additional Standing CounselP R E S E N T:
HONOURABLE
MR. JUSTICE MURAHARI SRI RAMANDate of Hearing : 26.09.2024 :: Date of Judgment : 09.10.2024
J UDGMENT
Assailed in the writ petition is the Office Order No.1610-
Con.VI-3/2021/BBE dated 05.04.2021 (Annexure-15)
whereby and whereunder assuming jurisdiction in
purported exercise of powers as if conferred by the
Appellate Authority-cum-Revenue Divisional
Commissioner (Southern Division), Berhampur, the
Disciplinary Authority the Collector, Kandhamal sought
to pass further orders by restricting payments duringW.P.(C) No.28593 of 2022 Page 2 of 55
the period from 30.09.2000 (date of suspension) to
30.09.2013 (date of reinstatement).
1.1. The petitioner craving to invoke extraordinary
jurisdiction of this Court under Articles 226 and 227 of
the Constitution of India made the following prayer(s):
“In view of the facts and submissions mentioned above
the petitioner prays for the following relief(s);
(i) The Hon‟ble Court be pleased to admit and allow the
writ petition.
(ii) The Hon‟ble Court be pleased to quash/modify the
impugned Order dated 05.04.2021 under Annexure-
15 so far as relating to treatment of the periods of
suspension from 30.09.2000 to 30.09.2013 in
respect of the petitioner as abandoned and further
consequential fixation of pay on notional basis by
declaring the same as illegal and unjustified one.
(iii) The Hon‟ble Court be further direct the opposite
party No.3 i.e. Collector, Kandhamal to treat the
periods of suspension of the petitioner from
30.09.2000 to 30.09.2013 as duty so also to
grant/disburse the consequential actual differential
arrear financial benefits including the consequential
fixation of pay as due and admissible in favour of
the petitioner instead of fixing on notional basis
within a time bound period for the interest of justice.
(iv) The Hon‟ble Court may be pleased to pass any
Order(s)/direction(s) as deems fit and proper for the
interest of justice.
W.P.(C) No.28593 of 2022 Page 3 of 55
And for this act of kindness, the petitioner shall as in duty
bound ever pray.”
Facts:
2. As adumbrated in the pleadings, the petitioner while
working as Revenue Inspector under Chakapad Tahasil
in the district of Kandhamal, a case bearing Berhampur
Vigilance P.S. Case No.36 dated 04.11.1999 was
instituted and the petitioner was placed under
suspension vide Order dated 30.09.2000 in exercise of
powers under Rule 12(2)(b) of the Odisha Civil Services
(Classification, Control and Appeal) Rules, 1962 (“OCS
(CCA) Rules”, for convenience).
2.1. After continuing for more than one year under
suspension, a departmental proceeding was initiated
against the petitioner vide Memo No.4312 dated
03.11.2000 by the Disciplinary Authority-cum-Collector
& District Magistrate, Kandhamal.
2.2. As the allegations in the aforesaid vigilance case and the
departmental proceeding were the identical, being
emanating from same set of facts, the petitioner
approached the learned Odisha Administrative Tribunal,
Bhubaneswar by filing Original Application bearing O.A.
No.1182 of 2001 wherein vide Order dated 14.08.2001
an interim Order was passed with a direction to the
opposite parties not take any further action in the
W.P.(C) No.28593 of 2022 Page 4 of 55
departmental proceeding and the matter was kept
pending. But while the interim Order was in force and
main matter was pending adjudication, the Order of
dismissal of the petitioner from service was passed vide
Order No.3643, dated 12.09.2001 by inflicting
punishment under Rule 13 of the OCS (CCA) Rules.
2.3. With the intervention of the learned Odisha
Administrative Tribunal vide Order dated 07.12.2001,
the said Original Application came to be disposed of with
the following observation:
” Heard. The prayer in O.A. is that the imposition of
penalties on the applicant be held up till the criminal
case in the Court of Special Judge (Vigilance)-cum-
Additional District and Sessions Judge, Berhampur,
Ganjam is disposed of. By Order dated 14.08.2001
the Tribunal directed that further action on the
enquiry report might wait 05.09.2001. No reply has
been filed in the meantime and the said date has
been extended from time to time.
2. The prayer of the applicant had actually been
allowed upto a certain time and the said time has
been extended on subsequent 4 occasions. Since the
prayer is simple and has almost been allowed, I now
direct that the final disposal of the disciplinary
proceeding shall be held up till disposal of the
criminal case in the Court of the Special Judge
(Vigilance)-cum-Additional District & Sessions Judge,
Berhampur.
W.P.(C) No.28593 of 2022 Page 5 of 55
3. In the result, with the above direction, the O.A. is
allowed.”
2.4. The criminal case being G.R. Case No.38 of 1999 (V)/
T.R. Case No.39 of 2021 (arising out of Berhampur
Vigilance P.S. Case No.36 dated 03.11.1999 under
Section 13(2) read with Section 13(1)(d) of the Prevention
of Corruption Act, 1988) came to an end vide judgment
dated 18.04.2011 delivered by the learned Special Judge
(Vigilance), Berhampur, Ganjam with the following
observation:
“***
8. In this case, the acceptance of bribe has not been
proved beyond reasonable doubt. Mere demand of
bribe though proved will not carry any punishment
nor a conviction can be based on that. Therefore, on
the entire appreciation of the record, it is found that
the prosecution is not able to prove the case against
the accused beyond all reasonable doubt and as
such the accused is found not guilty under Section
13(2) read with Section 13(1)(d) of the Prevention of
Corruption Act, 1988 and is acquitted under Section
248(1) Cr.P.C. and set him at liberty. His bail bond is
cancelled.”
2.5. Laying challenge against the said Order of acquittal, the
Vigilance Authority approached this Court by filing CrlLP
No.40 of 2012, which was dismissed vide Order dated
11.12.2018.
W.P.(C) No.28593 of 2022 Page 6 of 55
2.6. After finalisation of said vigilance case, the Collector,
Kandhamal-opposite party No.3 being approached for
withdrawal of Order of dismissal, he passed Order on
21.08.2013 with the following observation:
“***
Whereas the applicant filed O.A. No.1182/2001
challenging the continuance of Departmental Proceeding
drawn up against him. Hon‟ble Odisha Administrative
Tribunal, Bhubaneswar in Order No.2 dated 14.08.2001
directed that let the interim Order to continue till
30.09.2001. But the said Order was received in the Office
of the Collector, Kandhamal on 21.09.2001 and finally
Order No.7 dated 07.12.2001 the Hon‟ble Odisha
Administrative Tribunal white disposing of the case,
directive was issued to the effect that, the final disposal
of the Disciplinary Proceeding shall be held up till
disposal of the criminal case in the Court of the Special
Judge (Vigilance)-cum-Additional District & Sessions
Judge, Berhampur. By the time of copy of the Order dated
05.09.2001 was received, i.e., on 21.09.2001, the
Departmental Proceeding bearing No 4312 dated
13.11.2000 initiated against the applicant had already
been finalized and disposed of. Accordingly, the applicant
was dismissed from service with immediate effect vide
Order No. 3643, dated 12.09.2001.
Whereas, the applicant challenging the dismissal Order
passed by the Disciplinary Authority vide Order No.3643
dated 12.09.2001 has filed a contempt petition vide
C.P.(C) No.71/2002.
Whereas, the Ho‟nble Odisha Administrative Tribunal,
Cuttack vide Order No. 40, dated 30.01.2013 in C.P.
W.P.(C) No.28593 of 2022 Page 7 of 55
71(C)/2002 arising out of O.A. No. 1182/2001 filed by Sri
Kansari Behera, Ex. Revenue Inspector has directed
undersigned to first purge the contemptuous Order vide
Order No. 3643/Estt., dated 12.09.2001 after which any
apology by alleged contemnors may be considered.
Whereas, again Hon‟ble Odisha Administrative Tribunal,
Bhubaneswar vide Order No.41, dated 20.01.2013 served
that „the final Order in the Departmental Proceeding
dismissing the applicant from service was passed while
the stay Order was very much in force. The said stay
Order was passed in open Court in presence of the
learned Government Advocate. Therefore, even if the plea
of the alleged contemnor that the Order was not
communicated to him and for that he is not personally
liable, is accepted, still the impugned Order of dismissal
con be safely held to be non-existent in the eye of law‟.
Whereas, the Government in Revenue and Disaster
Management Department Odisha, in their Letter No
31273/RD&M, dated 16.08.2013 have allowed to
implement the Order No.441 dated 20.03.2013 of the
Hen‟ble Odisha Administrative Tribunal passed in C.P.(C)
No 71/2002 (arising in O.A. Case No 1182/2001).
Whervos, in the meantime the case was heard and the
Hon‟ble Tribunal vide Order No. 07 dated 29.07.2013
have allowed time as prayed for to file the full compliance.
Therefore, in compliance to the Order No.40 dated
30.01.2013 & No.41 dated 20.03.2013 of the Hon‟ble
Odisha Administrative Tribunal, Bhubaneswar passed in
above Contempt Proceeding Case and as per instruction of
Government in Revenue and Disaster Management
Department communicated in Letter No.31273/RD&M,
dated 10.08.2013, the Order of dismissal passed videW.P.(C) No.28593 of 2022 Page 8 of 55
District Office Order No.3643/Estt., dated 12.09.2001 is
hereby withdrawn.”
2.7. Accordingly, the petitioner was reinstated in service vide
Office Order No.1764– BBE-Con.VI-2/13, dated
24.09.2013 passed by the Collector, Kandhamal with
effect from the date of his actual resumption in duty.
Text of said Office Order runs as follows:
“Sri Kansari Behera, Ex-Revenue Inspector, Bisipada R.I.
Circle who was placed under suspension vide District
Office Order No.3976 dated 30.09.2000 is reinstated into
service with effect from the date he actually resumes his
duties.
On reinstatement, he is posted as such to Kotagarh
Tahasil.
Necessary Order for treatment of the period of his
suspension will be issued at the time of passing final
Orders in the Disciplinary Proceeding bearing No.4312,
dated 03.11.2000.”
2.8. Being aggrieved by such observation as to the period of
suspension, the petitioner with constraint moved the
learned Odisha Administrative Tribunal, Bhubaneswar
in Original Application (O.A. No.1066 of 2014) with
regard to treatment of the period of suspension for about
13 years, i.e., from 30.09.2000 to 30.09.2013, which
came to be disposed of on 13.10.2015 with the following
observation:
“***
W.P.(C) No.28593 of 2022 Page 9 of 55
The case was heard. In the criminal proceeding the
applicant was acquitted, whereas the departmental
proceeding is still pending. The proceeding was initiated
way back in the year 2000. In the meantime 15 years
have already passed.
In pursuance of the Order dtd.24.09.2013 as at
Annexure-7 of the Collector, Kandhamal, Phulbani, the
Order of treatment of the period of his suspension would
be issued at the time of passing final Orders in the
Disciplinary Proceeding bearing No.4312, dated
03.11.2000. From this it is clear that there is way to
withdraw this disciplinary proceeding.
At this stage when 15 years has elapsed, it is necessary
that the enquiry relating to disciplinary proceeding be
concluded at the earliest. Therefore, respondent No.2 is
directed that this particular enquiry be completed within a
period of four months from the date of receipt of a copy of
this Order and subsequent thereto the treatment of the
period regarding suspension be decided. In case the
disciplinary proceeding is not completed within four
months, then the same would be deemed to have been
dropped. Further, it is directed that the financial as well
as the consequential service benefits may be given to the
applicant.
With these Orders the O.A. is disposed of.”
2.9. Pursuant to the aforesaid direction of the learned Odisha
Administrative Tribunal contained in Order dated
13.10.2015, the Disciplinary Authority-cum-Collector,
Kandhamal passed the following Order dated
15.02.2016:
W.P.(C) No.28593 of 2022 Page 10 of 55
“***
Whereas, in the re-instatement Order the nature of period
of suspension was not spelled out, Hon‟ble Odisha
Administrative Tribunal, Bhubaneswar in O.A. No.1066 of
2014 vide Order No.6 dated 13.10.2015 directed the
respondent No.2 that„Therefore the respondent No.2 is directed that this
particular enquiry be completed within a period of four
months from the date of receipt of a copy of this Order
and subsequent thereto the treatment of the period
regarding suspension be decided. In case the disciplinary
proceeding is not completed within four months, then the
same would be deemed to have been dropped. Further, it
is directed that the financial as well as the consequential
service benefits may be given to the applicant.‟After careful perusal of the charges framed against the
D.O., enquiry report dated 30.06.2001 of I.O. wherein the
I.O. suggested that the period of suspension to be treated
as such and all other relevant documents incidental to the
proceeding, the Disciplinary Authority and Collector,
Kandhamal has been pleased to Order as follows:
„the period of suspension from 30.09.2000 to the date of
reinstatement i.e. 30.09.2013 may be treated as such‟.”
2.10. The petitioner, thereafter, assailed the said Order before
the Appellate Authority (Revenue Divisional
Commissioner (Southern Division), Berhampur, Ganjam)
by filing appeal petition dated 19.05.2016 through
Tahasildar, K. Nuagaon, which was disposed of by the
Appellate Authority in exercise of power under Rule 29 of
the OCS (CCA) Rules, 1962 after the petitioner got
W.P.(C) No.28593 of 2022 Page 11 of 55
retired from service on attaining age of superannuation
on 31.03.2018. The Order-in-Appeal of the Appellate
Authority with the following observation was
communicated to the petitioner vide Memo No.8706,
dated 23.12.2019:
“The reason for his suspension in this case was his being
in the Police Custody for more than 48 hours after arrest
and initiating of criminal proceeding against him. Then the
fact that when the Court has acquitted him, the very
cause for suspension does not exist. It is to be noted that
during the period of suspension he was paid subsistence
allowance. Then he was reinstated in service in
compliance to the Order of Hon‟ble OAT vide Order dated
20.3.2013 passed in C.P.(C) No.71 of 2002 (arising out of
OA No.1182/2001). The Prosecution was not able to prove
the case against the accused beyond all reasonable doubt
and as such, he was found not guilty under Section 13(2)
read with Section 13(1)(d) of the Prevention of Corruption
Act, 1988 by the Hon‟ble Court of the Special Judge
(Vigilance), Berhampur and he was acquitted under
Section 248(1) Cr.P.C. and set him at liberty. The
acquittal passed by the Hon’ble Special Judge
(Vigilance), Berhampur was challenged by the
Government in G.A. Deptt., Cuttack before the
Hon’ble High Court of Orissa vide CRLLP No.40 of
2012 which has been dismissed vide Order dated
11.12.2018. In these circumstances, his acquittal
can be said to be without a blame and on merit. The
Collector, Kandhamal passed final Order vide Order
No.286 dated 15.02.2016, with the penalty that the
period of suspension from 30.09.2000 to the date of re-
W.P.(C) No.28593 of 2022 Page 12 of 55
instatement i.e. on 30.09.2013 may be treated as such
which was unwarranted and justified.
Hence, in exercise of the powers conferred under Section
29 of the OCS (CC&A) Rules, 1962, and with a thorough
appreciation of the case materials at hand, the appeal is
allowed. Considering the merit of the case, the Order of
Collector-cum-Disciplinary Authority, Kandhamal passed
in Order No.286 dated 15.02.2016 of the Disciplinary
Proceeding Case is hereby set aside.”
2.11. The Collector, Kandhamal at Phulbani solicited
clarification from the Additional Secretary to
Government of Odisha in Revenue and Disaster
Management Department, Odisha, by Letter
No.2383/BBE, dated 16.05.2020 with respect to
“treatment of period of suspension from 30.09.2000 to
the date of reinstatement, i.e., 30.09.2013 (more than 13
years) of Sri Behera, Revenue Inspector”. In response
thereof, the Revenue and Disaster Management
Department instructed the Disciplinary Authority “to
pass specific orders for treatment of the suspension
period basing on the finding of inquiry in the
Disciplinary Proceeding keeping Rule 91 of the Odisha
Service Code in view”.
2.12. Accordingly, the Disciplinary Authority-opposite party
No.3 passed the following Order on 05.04.2021:
“Office of the Collector,
Kandhamal, Phulbani.
W.P.(C) No.28593 of 2022 Page 13 of 55
No. 1610–Con V1-3/2021/BBE, dated 05.04.2021
Office OrderWhereas on consideration of the charges framed against
Sri Kansari Dehera, Ex-RI, Tahasil Office, G. Udayagiri,
retired as such at Tahasil Office, Chakapad, the following
punishment had been awarded vide Order No. 286 dated
15.02.2016.
1. The period of suspension from 30.09.2000 to the
date of reinstatement i.e., 30.09.2013 treated as
such.
Whereas, against the said order the D.O. had preferred
an appeal before the Hon‟ble Revenue Divisional
Commissioner (Southern Division), Berhampur. The
Appellate Authority ordered that considering the merits of
the case, the order of Collector-cum-Disciplinary Authority,
Kandhamal passed in Order No.286, dated 15.02.2016 of
the Disciplinary Proceeding case is hereby set aside.
Whereas, since the matter relates to service period of
more than 13 years and has financial implications,
Government in Revenue Department the Administrative
had been moved for clarification vide District Office Letter
No.2384 dated 16.05.2020. In response to the same
Government in Revenue & Disaster Management
Department, Odisha has intimated that the creation of the
situation itself may be construed as violation in terms of
Conduct Rules which needs consideration to take a stand
on the intervening period. Hence, the Disciplinary
Authority may pass specific order for treatment of the
suspension period basing on the findings of inquiry in the
Disciplinary Proceedings keeping Rule 91 of Odisha
Service Code in view.
W.P.(C) No.28593 of 2022 Page 14 of 55
Whereas, the I.O.-cum-Revenue Officer, Sub Collector‟s
Office, Phulbani has reported that the charges levelled
against the D.O. are proved and the D.O. is found guilty.
Clause (3)(b), 5 of Rule 91 of Odisha Service Code speaks
that when a Government Servant, not having been
exonerated of the charges fully, is reinstated in service he
may be allowed subsistence allowance only for the period
of suspension as admissible under Rule 90 and the period
of suspension from duty shall not be treated as period
spent on duty, unless such competent authority
specifically directs that it shall be so treated for any
specified purpose.
Now, therefore, after careful perusal of the enquiry report
of I.O., Letter No.35980/R&DM, dated 10.12.2020 of
Government in Revenue & Disaster Management
Department, Odisha and all other records/documents
ancillary and incidental to the proceeding, the
undersigned has been pleased to pass Orders as follows;
1. The punishment awarded to Sri Behera vide District
Office Order No.286 dated 15.02.2016 is hereby
recalled.
2. That the claim of pay minus subsistence allowance
for the period under suspension is abandoned.
3. The fixation of pay of Sri Behera and settlement of
all his claims relating to arrear pay as per pay
fixation from time to time is to be calculated except
mentioned at point No.2 above and pay should be
fixed notionally.
4. The abandonment of the claim to the above extent
would not be treated as punishment as will not have
any effect on the service in any manner.”
W.P.(C) No.28593 of 2022 Page 15 of 55
2.13. Dissatisfied thereby, the petitioner has knocked the
doors of this Court for protection by way of filing the
instant writ petition with prayer to invoke extraordinary
jurisdiction under Article 226/227 of the Constitution of
India.
Hearing:
3. Pleadings are completed and exchanged among the
counsel for respective parties, and on consent of counsel
for both sides, this matter is taken up for final hearing
at the stage of admission.
3.1. Accordingly, heard Sri Krishna Chandra Sahu, learned
Advocate for the petitioner and Sri Arnav Behera,
learned Additional Standing Counsel appearing for the
opposite parties and the matter stood reserved for
preparation and pronouncement of judgment.
Rival contentions and submissions:
4. Sri Krishna Chandra Sahu, learned counsel appearing
for the petitioner submitted that the tenor of the order of
the Appellate Authority setting aside the Order dated
15.02.2016 of the Disciplinary Authority can very well be
couched. Having the order of the Disciplinary Authority
being nullified in the appeal, in absence of any further
direction, the Disciplinary Authority has no authority to
confer upon himself the jurisdiction and assume powers
W.P.(C) No.28593 of 2022 Page 16 of 55
to pass fresh/further orders in furtherance of the
Appellate Order.
4.1. The Disciplinary Authority, thus, transgressed his
authority by passing further order inter alia directing to
abandon the claim of pay minus subsistence allowance
for the period of suspension inasmuch as there is
categorical observation of the Appellate Authority that
“the Collector, Kandhamal passed final order vide Order
No.286, dated 15.02.2016, with the penalty that the
period of suspension from 30.09.2000 to the date of
reinstatement, i.e., on 30.09.2013 may be treated as
such which was unwarranted and unjustified”. It is
vehemently contended that such obnoxious observation
and direction of the Collector, Kandhamal, acting as
quasi judicial Authority, is questionable as he sought to
sit over the decision of the Appellate Authority taking
shelter of advisory received from the Revenue and
Disaster Management Department vide Letter dated
10.12.2020 (Annexure-14), which is not only wholly
impermissible in law but also not above reproach.
4.2. It is submitted that the punishment as imposed in the
Order No.286, dated 15.02.2016, that “the period of
suspension from 30.09.2000 to the date of
reinstatement, i.e., 30.09.2013 may be treated as such”
(Annexure-10) has been set aside vide communication
dated 23.12.2019 by the Appellate Authority by
W.P.(C) No.28593 of 2022 Page 17 of 55
observing that “considering the merit of the case, the
order of Collector-cum-Disciplinary Authority,
Kandhamal passed in Order No.286, dated 15.02.2016
of the disciplinary proceeding case is hereby set aside”
(Annexure-12). Despite such clear observation, as if the
Appellate Authority has issued further direction to the
Disciplinary Authority to consider imposition of order of
punishment afresh, further Order ought not to have
been passed on 05.04.2021 (Annexure-15) by holding
abandonment of payment, which would tantamount to
imposition of penalty. It is vehemently contested that the
decision of the Disciplinary Authority, which is a
sanctuary of errors cannot be allowed to gain the benefit
of sanctuary of protection and acceptance and therefore,
the impugned Office Order dated 05.04.2021 does
deserve quashment.
5. Sri Arnav Behera, learned Additional Standing Counsel
appearing for the opposite parties referring to the
counter affidavit filed by opposite party No.3 submitted
that fresh Order dated 15.02.2016 passed by the
Disciplinary Authority after the Appellate Authority set
aside the punishment imposed in the disciplinary
proceeding on the ground that the petitioner got
acquitted in the criminal case cannot be faulted with.
5.1. He pressed into service the following replies given in
counter affidavit at paragraphs-8, 10 and 11:
W.P.(C) No.28593 of 2022 Page 18 of 55
“8. That the averments made in para-6 of the writ
application, the deponent humbly submits that, in
Order No.7 dated 07.12.2001 the Hon‟ble Odisha
Administrative Tribunal, Bhubaneswar while
disposing off the case, issued directive to the effect
that, the final disposal of the disciplinary proceeding
shall be held up till disposal of the criminal case in
the court of the Special Judge (Vigilance)-cum-
Additional District & Sessions Judge, Berhampur.
By the time of copy of the Order dated 05.09.2001
was received i.e. on 21.09.2001, the Departmental
Proceeding bearing No.4312, dated 13.11.2000
initiated against the applicant had already been
finalised and disposed off and accordingly the
applicant had already been dismissed from service
with effect from 12.9.2001 but did not disclose the
same to the Hon‟ble Tribunal.
10. That the averments made in paragraph-9 of the writ
application, the deponent humbly submits that, after
careful perusal of the charges framed against the
D.O., enquiry report dtd.30.06.2001 of I.O. wherein
he suggested that the period of suspension to be
treated as such and all other relevant documents
incidental to the proceedings and having regard to
Order No.06 dated 13.10.2015 passed by the
Hon‟ble Odisha Administrative Tribunal in O.A.
No.1066/2014, the Disciplinary Authority and
Collector, Kandhamal decided the period of
suspension treating as such vide district office Order
No.286, dated 15.02.2016.
11. That, the averments made in paragraphs 10 to 13 of
the writ application, the deponent humbly submits
that, the Appellate Authority-cum-RDC (SD),W.P.(C) No.28593 of 2022 Page 19 of 55
Berhampur had set aside the Orders passed by
Collector cum Disciplinary Authority against the
petitioner. Since the matter relates to regularisation
of service period of more than 13 years and has
financial implications, Govt. in Revenue Department,
the Administrative authority had been moved for
clarification. In response to the same Government in
R&DM Department, Odisha has intimated that the
creation of the situation itself may be construed as
violation in terms of Conduct Rules which needs
consideration to take a stand on the intervening
period. Hence, the Disciplinary Authority may pass
specific Order for treatment of the suspension period
basing on the findings of enquiry in the Disciplinary
Proceeding keeping Rule 91 of Odisha Service Code
in view. The I.O.-cum-Revenue Officer, Sub-
Collector‟s Office, Phulbani has reported that the
charges levelled against the DO are proved and the
DO is found guilty. Clause (3)(b), 5 of Rule 91 of
Odisha Service Code speaks that when a
Government servant, not having been exonerated of
the charges fully, is reinstated in service he may be
allowed subsistence allowance only for the period of
suspension as admissible under Rule-90 and the
period of absence from duty shall not be treated as
period spent on duty, unless such competent
authority specifically directs that it shall be so
treated for any specific purpose.
After careful perusal of the enquiry report of I.O.,
letter No.35980/R & DM dated 10.12.2020 of Govt.
in R & DM Department, Odisha and all other
records/documents ancillary and incidental to the
proceeding the Disciplinary Authority-cum-Collector,
Kandhamal was pleased to pass Orders as follows:
W.P.(C) No.28593 of 2022 Page 20 of 55
1. The punishment awarded to Sri Behera and
District Office Order No.286 dated 15.02.2016
is hereby recalled.
2. That the claim of pay minus subsistence
allowance for the period under suspension is
abandoned.
3. The fixation of pay of Sri Behera and
settlement of all his claims relating to arrear
pay as per pay fixation from time to time is to
be calculated except mentioned at point No.2
above and pay should be fixed notionally.
4. The abandonment of the claim to the above
extent would not be treated as punishment as
will not have any effect on the service in any
manner.”
5.2. With the aforesaid backdrop, the learned Additional
Standing Counsel wound up his argument by making a
statement that when the Appellate Authority has merely
set aside the order of the Disciplinary Authority without
any instruction as to further action to be taken, there
arose justified reason for the Collector, Kandhamal to
approach the Government for advice, and on receipt of
appropriate response, he could pass the Order dated
03.04.2021 in consonance with Rule 91 of the Odisha
Service Code.
Discussion, analysis and conclusion:
W.P.(C) No.28593 of 2022 Page 21 of 55
6. The issue hovers round whether further order can be
passed by the Disciplinary Authority after the Appellate
Authority sets aside the order of punishment without
spelling out further course of action.
6.1. Rule 12 of the OCS (CCA) Rules, in sub-rule (1) provides
as follows:
“The Disciplinary Authority, while passing the final order
of punishment or of release in the Disciplinary
Proceedings against the Government servant, shall give
directions about the treatment of the period of
suspension, which is passed not as a measure of
substantive punishment but as suspension pending
inquiry, and indicate whether the suspension would be a
punishment or not.”
6.2. Glance at Order No.3976–Con.-III-6/2K, dated
30.09.2000 of the Collector, Kandhamal (Annexure-2)
with respect to suspension reveals the fact that,
“Whereas a disciplinary proceeding against Sri
Kansari Behera, Ex. Revenue Inspector, Paburia of G.
Udayagiri, Tehsil, now working as such in Khondmals
Tehsil under Bisipada R.I. Circle is contemplated, now,
therefore, the Collector, Kandamal, Phulbani and
Disciplinary Authority, in exercise of power conferred
under clause (b) of sub-rule (2) of Rule 12 of the CCS
(CCA) Rules, 1962, hereby places Sri Kansari Behera,
Revenue Inspector under suspension with immediate
effect. ***”
W.P.(C) No.28593 of 2022 Page 22 of 55
6.3. From the aforesaid it appears that while the disciplinary
proceeding against the petitioner was under
contemplation he was placed under suspension on
30.09.2000. Accordingly, the Disciplinary Proceeding
No.4312, dated 03.11.2000 being instituted, the
petitioner was called upon to submit explanation and
vide Letter No.3643/Estt, dated 12.09.2001, the
Collector, Kandhamal afforded opportunity to the
petitioner to have his say against the proposition made
for inflicting the penalty of „dismissal from service‟,
which was subject matter of challenge before the Odisha
Administrative Tribunal in O.A. No.1182 of 2001. As
interim measure in the said case, vide Order dated
07.12.2001, the disciplinary proceeding was directed to
be held up till disposal of the criminal case by the
Special Judge (Vigilance)-cum-Additional District and
Sessions Judge, Berhampur. Despite such interim order
being pronounced in the presence of the counsel for the
Government, the Disciplinary Authority proceeded to
passed order of dismissal.
6.4. The criminal case being G.R. Case No.38 of 1999 (V)/
T.R. Case No.39 of 2001 culminated in order of acquittal
on 18.04.2011 invoking Section 248(1) of the Code of
Criminal Procedure, 1973 vide judgment of the learned
Special Judge (Vigilance)-cum-Additional District and
Sessions Judge, Berhampur finding the petitioner “notW.P.(C) No.28593 of 2022 Page 23 of 55
guilty” under Section 13(2) read with Section 13(1)(d) of
the Prevention of Corruption Act, 1988. Further
proceeding before this Court by the Government of
Odisha against such order of acquittal resulted in
dismissal of Leave Petition bearing CrlLP No.40 of 2012
vide Order dated 11.12.2018.
6.5. Notwithstanding acquittal of the petitioner in the
criminal case, by Order dated 24.09.2013, the Collector,
Kandhamal though directed reinstatement in service,
reserved consideration of “treatment of the period of his
suspension” “at the time of passing final order in the
Disciplinary Proceeding bearing No.4312, dated
03.11.2000”. The Odisha Administrative Tribunal taking
note of such fact in O.A. No.1066 of 2014, in Order
dated 13.10.2015 clarified that,“At this stage when 15 years has elapsed, it is necessary
that the enquiry relating to disciplinary proceeding be
concluded at the earliest. Therefore, respondent No.2 is
directed that this particular enquiry be completed within a
period of four months from the date of receipt of a copy of
this order and subsequent thereto the treatment of the
period of suspension be decided.”
6.6. The Disciplinary Authority passed final Order on
15.02.2016 (Annexure-10) by accepting the suggestion of
the Inquiring Officer in the Inquiry Report dated
30.06.2001 that the period of suspension to be treated
as such, held “the period of suspension from 30.09.2000
W.P.(C) No.28593 of 2022 Page 24 of 55
to the date of reinstatement, i.e., 30.09.2013 may be
treated as such”.
6.7. The petitioner having carried the matter in appeal, the
Appellate Authority, appreciating the position with
regard to criminal case held,
“The acquittal passed by the Hon‟ble Special Judge
(Vigilance), Berhampur was challenged by the
Government in G.A. Deptt., Cuttack before the Hon‟ble
High Court of Orissa vide CRLLP No.40 of 2012 which has
been dismissed vide Order dated 11.12.2018. In these
circumstances, his acquittal can be said to be without
a blame and on merit. The Collector, Kandhamal
passed final Order vide Order No.286 dated
15.02.2016, with the penalty that the period of
suspension from 30.09.2000 to the date of re-
instatement i.e. on 30.09.2013 may be treated as
such which was unwarranted and justified.
Hence, in exercise of the powers conferred under Rule 29
of the OCS (CCA) Rules, 1962, and with a thorough
appreciation of the case materials at hand, the appeal is
allowed. Considering the merit of the case, the order of
Collector-cum-Disciplinary Authority, Kandhamal passed
in Order No.286, dated 15.02.2016 of the Disciplinary
Proceeding Case is hereby set aside.”
6.8. Perusal of aforesaid Appellate Order transpires that the
Appellate Authority has not only taken into
consideration the fact of acquittal of the petitioner in the
criminal case, but also weighed the merit of the matter
W.P.(C) No.28593 of 2022 Page 25 of 55
based on material on record while invoking power under
Rule 29 of the OCS (CCA) Rules.
6.9. Rule 29 of the OCS (CCA) Rules spells out as follows:
“29. Consideration of Appeals.–
(1) In the case of an appeal against an order imposing
any of the penalties specified in Rule 131, the
appellate authority shall consider–
(a) whether the procedure prescribed in these
rules has been complied with and, if not,
whether such non-compliance has resulted in
violation of any provisions of the Constitution
or in failure of justice;
(b) whether the findings are justified; and
(c) whether the penalty imposed is excessive,
adequate or inadequate;
and, after consultation with the commission if such
consultation is necessary in the case, pass orders–
(i) setting aside, reducing, confirming or
enhancing the penalty; or
(ii) remitting the case to the authority which
imposed the penalty or to any other authority
with such direction as it may deem fit in the
circumstances of the case:
1 Rule 13 of the OCS (CCA) Rules, lays down as follows:
“13. Nature of penalties.–
The following penalties may, for good and sufficient reasons and as
hereinafter provided, be imposed on a Government servant, namely:
***
(v) Suspension;
***"
W.P.(C) No.28593 of 2022 Page 26 of 55
Provided that--
(i) the appellate authority shall not impose any
enhanced penalty which neither such authority
nor the authority which made the order
appealed against is competent in the case to
impose;
(ii) no order imposing an enhanced penalty shall
be passed unless the appellant is given an
opportunity of making any representation
which he may wish to make against such
enhanced penalty; and
(iii) if the enhanced penalty which the Appellate
Authority proposes to impose is one of the
penalties specified in clauses (vi) to (ix) of Rule
13 an inquiry under Rule 15 has not already
been held in the case, the Appellate Authority
shall, subject to the provisions of Rule 18, itself
hold such inquiry or direct that such inquiry be
held and, thereafter, on consideration of the
proceedings of such inquiry and after giving the
appellant an opportunity of making any
representation which he may wish to make
against such penalty, pass such orders as it
may deem fit.
(2) In the case of an appeal against any order specified
in Rule 232 the Appellate Authority shall consider all2 Rule 23 of the OCS (CCA) Rules stands as follows:
“23. Appeal against other orders.–
(1) A Government servant may appeal against an order which–
(a) denies or varies to his disadvantage his pay, allowances, pension
or other conditions of service as regulated by any rules or by
agreement, or
(b) interprets to his disadvantage the provision of any such rules or
agreement,
W.P.(C) No.28593 of 2022 Page 27 of 55
the circumstances of the case and pass such orders
as it deems just and equitable.
(3) Copies of orders passed by the appellate authority
shall be supplied to the appellant free of cost.”
6.10. The Appellate Authority is, thus, empowered under Rule
29 of the OCS (CCA) Rules to examine whether the
findings of the Disciplinary Authority are justified and
“set aside” the order imposing penalty, i.e., treating the
period of suspension from 30.09.2000 to the date of
reinstatement, i.e., 30.09.2013 “as such”.
to the Governor if the order is passed by the authority which made the
rules or agreement, as the case may be, or by any authority to which such
authority is subordinate, and
to the authority which made rules or agreement, if the order is passed by
any other authority.
(2) An appeal against an order–
(a) stopping a Government servant at the efficiency bar in time-scale
on the ground of his unfitness to cross the bar;
(b) reverting to a lower service, grade or post, a Government servant
officiating in a higher service, grade or post, otherwise than as a
penalty;
(c) reducing or withholding the pension or denying the maximum
pension admissible under the rules; and
(d) determining the pay and allowances for the period of suspension
to be paid to a Government servant on his reinstatement or
determining whether or not such period shall be treated as a
period spent on duty for any purpose, shall lie–
(i) in the case of an order made in respect of a Government
servant on whom the penalty of dismissal from service can
be imposed only by the Governor, to the Governor; and
(ii) in the case of an order made in respect of any other
Government servant, to the authority to whom an appeal
against an order imposing upon him the penalty of
dismissal from service would lie.
EXPLANATION.–
In this rule–
(i) the expression of “GOVERNMENT SERVANT” includes a person who
has ceased to be in Government service;
(ii) the expression “PENSION” includes additional pension, gratuity and
any other retirement benefit.”
W.P.(C) No.28593 of 2022 Page 28 of 55
6.11. In view of provisions contained in Rule 303 of the OCS
(CCA) Rules, in absence of any further direction, there is
no scope left to the Disciplinary Authority to pass any
consequential further orders.
6.12. As the Appellate Authority in his Order made it clear
that “The Collector, Kandhamal passed final order vide
Order No.286, dated 15.02.2016, with the penalty that
the period of suspension from 30.09.2000 to the date of
reinstatement, i.e., on 30.09.2013 may be treated as
such which was unwarranted and unjustified”, there
was no occasion for the Disciplinary Authority to seek
for advisory from the Revenue and Disaster Management
Department. Nothing is placed on record to show that
the Appellate Order in Annexure-12 has ever been
challenged and/or varied by any other competent court
of law. In such view of the matter, the Collector,
Kandhamal was bound by the quasi judicial order-in-
appeal, and in defiance thereof he was not competent to
pass fresh orders by adhering to directive of the Revenue
and Disaster Management Department on the
administrative side. Such a course, in flagrant violation
of provision of Rule 30 of OCS (CCA) Rules, 1962, is
impermissible.
3 Rule 30 of the OCS (CCA) Rules, provides as follows:
“Implementation of orders in appeal.–
The Authority which made the order appealed against shall give effect to the
orders passed by the Appellate Authority.”
W.P.(C) No.28593 of 2022 Page 29 of 55
6.13. It is noteworthy that the criminal case ended in acquittal
and attained finality on dismissal of CrlLP by this Court
and the order passed in disciplinary proceeding also got
set aside on consideration of merit of matter on the basis
of materials available on record. These factors are
indicative of fact that nothing survives against the
petitioner and the allegations levelled against the
petitioner could not be substantiated by the opposite
parties. Therefore, it is obligatory on the part of the
Disciplinary Authority to comply with the Order dated
13.10.2015 of the Odisha Administrative Tribunal,
Bhubaneswar passed in O.A. 1066 of 2014. In the said
Order dated 13.10.2015, it has been stipulated that,
“Therefore, the respondent No.2 is directed that this
particular enquiry be completed within a period of four
months from the date of receipt of a copy of this order and
subsequent thereto the treatment of the period regarding
suspension be decided. In case the disciplinary
proceeding is not completed within four months, then the
same would be deemed to have been dropped. Further, it
is directed that the financial as well as consequential
service benefits may be given to the applicant.”
6.14. However, ultimately the disciplinary proceeding attained
finality by virtue of order of the Appellate Authority
which nullified the effect of punishment imposed by the
Disciplinary Authority. Taking a holistic view of material
on record including the finality being attained to the
criminal case as also the disciplinary proceeding, there
W.P.(C) No.28593 of 2022 Page 30 of 55
remains no scope for the opposite parties not to extend
the service and financial benefits as the petitioner has
been deprived of for no fault of his own.
6.15. The Hon‟ble Supreme Court of India has exposited the
position of the employee, when the order of termination
from service is set aside, in Anantdeep Singh Vrs. The
High Court of Punjab and Haryana, (2024) 9 SCR 135 =
2024 INSC 673, wherein it has been observed as follows:
“21. Once the termination Order is set aside and
judgment of the High Court dismissing the writ
petition challenging the said termination Order
has also been set aside, the natural
consequence is that the employee should be
taken back in service and thereafter proceeded
with as per the directions. Once the
termination Order is set aside then the
employee is deemed to be in service. We find no
justification in the inaction of the High Court and
also the State in not taking back the appellant into
service after the Order dated 20.04.2022. No
decision was taken either by the High Court or by
the State of taking back the appellant into service
and no decision was made regarding the back
wages from the date the termination Order had been
passed till the date of reinstatement which should
be the date of the judgment of this Court. In any
case, the appellant was entitled to salary from the
date of judgment dated 20.04.2022 till fresh
termination Order was passed on 02.04.2024. The
appellant would thus be entitled to full salary
for the above period to be calculated with all
W.P.(C) No.28593 of 2022 Page 31 of 55
benefits admissible treating the appellant to be
in continuous service.
22. Insofar as the period from 18.12.2009 i.e., after the
termination Order of 17.12.2009 was passed till
19.04.2022 the date prior to the judgment and Order
of this Court, we are of the view that ends of justice
would be served by directing that the appellant
would be entitled to 50 per cent. of the back wages
treating him to be in service continuously. Such back
wages to be calculated with all benefits admissible
under law to the appellant as if he was in service.”
6.16. In the wake of the above situation, the Order dated
03.04.2021 (Annexure-15), being non est in the eye of
law the petitioner is entitled to service and pecuniary
benefits as is available in law had he not been
suspended since 30.09.2000.
7. Law is no more res integra that disciplinary matters are
quasi judicial proceedings. In the case of Mohd. Yunus
Khan Vrs. State of Uttar Pradesh, (2010) 10 SCC 539 the
Supreme Court has held that holding disciplinary
proceeding against a Government employee and
imposing punishment on his being found guilty of
misconduct under the statutory rule is in the nature of
quasi judicial proceeding. Also in the case of Roop Sing
Negi Vrs. Punjab National Bank, (2009) 2 SCC 570 the
Supreme Court of India has observed that indisputably a
disciplinary proceeding is a quasi judicial proceeding
and the enquiry officer performs a quasi judicial
W.P.(C) No.28593 of 2022 Page 32 of 55
function. This Court at this juncture wishes to have
regard to certain decisions of Courts eliciting the purport
of appellate orders:
7.1. In Nirmal Chandra Panigrahi Vrs. State of Odisha, 2021
SCC OnLine Ori 807 this Court observed as follows:
“23. In Westminster Corpn. Vrs. L.&N. Ry., (1905) AC 426
it was held that it is a condition of any statutory
power that it must be exercised reasonably, and
without negligence.
24. In Cf. Karnapura Development Co. Vrs. Kamakshya
Narain, 1956 SCR 325, the Apex Court held that it is
a condition of any statutory power that it must be
exercised bona fide.
25. In Commissioner of Police, Bombay Vrs. Gordhandas
Bhanji, AIR 1952 SC 16, the Apex Court observed as
follows:
“10. *** Public authorities cannot play fast and
loose with the powers vested in them, and
persons to whose detriment orders are made
are entitled to know with exactness and
precision what they are expected to do or
forbear from doing and exactly what authority
is making the order. ***
28. *** An enabling power of this kind conferred for
public reasons and for the public benefit is, in
our opinion, coupled with a duty to exercise it
when the circumstances so demand. It is a
duty which cannot be shirked or shelved nor itW.P.(C) No.28593 of 2022 Page 33 of 55
be evaded, performance of it can be compelled.
***”
26. In Sirsi Municipality Vrs. Cecelia Kom Francis Tellis,
(1973) 1 SCC 409 = AIR 1973 SC 855, the Apex
Court observed that,
“the ratio is that the rules or the regulations are
binding on the authorities”.
27. The issue of writ of mandamus is a most extensive
remedial nature, and is, in form, a command issuing
from the High Court of Justice, directing to any
person, Corporation, requiring him or them to do
some particular thing specified in it which
appertains to his or their office and is in the nature
of a public duty.
28. In Comptroller and Auditor-General of India Vrs. K.S.
Jagannathan, (1986) 2 SCC 679 = (1986) 2 SCC 679
= AIR 1987 SC 537, the Apex Court observed:
„20. There is thus no doubt that the High Courts in
India exercising their jurisdiction under Article
226 have the power to issue a writ of
mandamus or a writ in the nature of
mandamus or to pass orders and give
necessary directions where the Government or
a public authority has failed to exercise or has
wrongly exercised the discretion conferred
upon it by a statute or a rule or a policy
decision of the Government or has exercised
such discretion mala fide or on irrelevant
considerations or by ignoring the relevant
considerations and materials or in such a
manner as to frustrate the object of conferringW.P.(C) No.28593 of 2022 Page 34 of 55
such direction or the policy for implementing
which such discretion has been conferred. In
all such cases and in any other fit and proper
case a High Court can, in the exercise of its
jurisdiction under Article 226, issue a writ of
mandamus or a writ in the nature of
mandamus or pass orders and give directions
to compel the performance in a proper and
lawful manner of the discretion conferred upon
the Government or a public authority, and in a
proper case, in order to prevent injustice
resulting to the concerned parties, the Court
may itself pass an order or give directions
which the Government or the public authority
should have passed or given had it properly
and lawfully exercised its discretion.‟ ***”
7.2. In Shree Sidhbali Steels Limited Vrs. State of Uttar
Pradesh, (2011) 3 SCC 193, it has been observed that by
virtue of Sections 14 and 21 of the General Clauses Act,
when a power is conferred on an authority to do a
particular act, such power can be exercised from time to
time and carries with it the power to withdraw, modify,
amend or cancel the notifications earlier issued, to be
exercised in the like manner and subject to like
conditions, if any, attached with the exercise of the
power. It has been observed as under:
“38. Section 21 is based on the principle that power to
create includes the power to destroy and also the
power to alter what is created. Section 21, amongst
other things, specifically deals with power to add to,W.P.(C) No.28593 of 2022 Page 35 of 55
amend, vary or rescind the notifications. The power
to rescind a notification is inherent in the power to
issue the notification without any limitations or
conditions. Section 21 embodies a rule of
construction. The nature and extent of its application
must be governed by the relevant statute which
confers the power to issue the notification etc.
However, there is no manner of doubt that the
exercise of power to make subordinate legislation
includes the power to rescind the same. This is
made clear by Section 21. On that analogy an
administrative decision is revocable while a judicial
decision is not revocable except in special
circumstances. Exercise of power of a subordinate
legislation will be prospective and cannot be
retrospective unless the statute authorises such an
exercise expressly or by necessary implication.
39. The principle laid down in Section 21 is of general
application. The power to rescind mentioned in
Section 21 is without limitations or conditions. It is
not a power so limited as to be exercised only once.
The power can be exercised from time to time having
regard to the exigency of time. When by a Central
Act power is given to the State Government to give
some relief by way of concession and/or rebate to
newly-established industrial units by a notification,
the same provision and such exercise of power
cannot be faulted on the ground of promissory
estoppel.
40. It would be profitable to remember that the purpose
of the General Clauses Act is to place in one single
statute different provisions as regards
interpretations of words and legal principles whichW.P.(C) No.28593 of 2022 Page 36 of 55
would otherwise have to be specified separately in
many different Acts and Regulations. Whatever the
General Clauses Act says whether as regards the
meaning of words or as regards legal principles, has
to be read into every statute to which it applies.”
7.3. In State of Odisha Vrs. Pratima Mohanty, (2021) 9 SCR
335 it is stated as follows:
“8. At this stage, the decision of the Karnataka High
Court in the case of K. Raju vs. Bangalore
Development Authority in Writ Petition No.11102 of
2008 decided on 15.12.2010 [reported at, 2010 SCC
OnLine Kar 4322 = ILR 2011 Kar 120] dealing with
a somewhat similar situation with respect to the
allotment of plots in discretionary quota is required
to be referred to. In that case also it was a case of
allotment of the plots illegally and arbitrarily in the
discretionary quota. Speaking from the Bench
Justice S. Abdul Nazeer, J. as he then was has
observed and held as under:
„It is well established that a public body invested
with statutory powers has to take care not to exceed
or abuse its powers. It must act within the limits of
authority committed to it.‟„31. BDA is the custodian of public properties. It is
not as free as an individual in selecting the
recipients for its largess. For allotment of the
properties, a transparent, and objective
criteria/procedure has to be evolved based on
reason, fair play and non-arbitrariness. In such
action, public interest has to be the prime
guiding consideration. In Ramana DayaramW.P.(C) No.28593 of 2022 Page 37 of 55
Shetty Vrs. The International Airport Authority
of India, AIR 1979 SC 1628, the Apex Court
has held that it must therefore be taken to be
the law that even in the matter of grant of
largesses including award of jobs, contracts,
quotas, licences, the Government must act in
fair and just manner and any arbitrary
distribution of wealth would violate the law of
land. In Common Cause, A Registered Society
Vrs. Union of India, (1996) 6 SCC 530, the
Apex Court has held as under:
The Government today in a welfare State
provides large number of benefits to the
citizens. It distributes wealth in the form of
allotment of plots, houses, petrol pumps, gas
agencies, mineral leases in contracts, quotas
and licences etc., Government distributes
largesses in various forms. A Minister who is
the executive head of the department
concerned distributes these benefits and
largesses. He is elected by the people and is
elevated to a position where he holds a trust on
behalf of the people. He has to deal with the
people’s property in a fair and just manner. He
cannot commit breach of the trust reposed in
him by the people In Onkar Lal Bajaj and Ors.
Vrs. Union of India, (2003) 2 SCC 673, the
Apex Court has summarised the cardinal
principles of governance, which is as follows:
35. The expression „public interest‟ or „probity in
governance‟ cannot be put in a straitjacket.
„Public interest‟ takes into its fold several
factors. There cannot be any hard-and-fast rule
W.P.(C) No.28593 of 2022 Page 38 of 55
to determine what is public interest. The
circumstances in each case would determine
whether Government action was taken in
public interest or was taken to uphold probity
in governance.
36. The role model for governance and decision
taken thereof should manifest equity, fair play
and justice. The cardinal principle of
governance in a civilized society based on rule
of law not only has to base a transparency but
must create an impression that the decision
making was motivated on the consideration of
probity. The Government has to rise above the
nexus of vested interests and nepotism and
eschew window dressing. The act of
governance has to be withstand the test of
judiciousness and impartiality and avoid
arbitrary or capricious actions. Therefore, the
principles of governance has to be tested on the
touchstone of justice, equity and fair play and
if the decision is not based on justice, equity
and fair play and has taken into consideration
other matters, though on the face of it, the
decision may look legitimate but as a matter of
fact, the reasons are not based on values but to
achieve popular accolade, that decision cannot
be allowed to operate.‟
8.1 It is further observed after referring to the decision of
this Court in the case of Common Cause, A
Registered Society (supra) that if a public servant
abuses his office whether by his act of omission or
commission, and the consequence of that is injury to
an individual or loss of public property, an action
W.P.(C) No.28593 of 2022 Page 39 of 55
may be maintained against such public servant. It is
further observed that no public servant can arrogate
to himself powers in a manner which is arbitrary. In
this regard we wish to recall the observations of this
Court as under:
„The concept of public accountability and
performance of functions takes in its ambit, proper
and timely action in accordance with law. Public
duty and public obligation both are essentials of
good administration whether by the State or its
instrumentalities.‟ [See Delhi Airtech Services (P) Ltd.
Vs. State of U.P., (2011) 9 SCC 354]„The higher the public office held by a person the
greater is the demand for rectitude on his part.‟ [See
Charanjit Lamba Vs. Army Southern Command,
(2010) 11 SCC 314]„The holder of every public office holds a trust for
public good and therefore his actions should all be
above board.‟ [See Padma Vs. Hiralal Motilal
Desarda, (2002) 7 SCC 564]„Every holder of a public office by virtue of which he
acts on behalf of the State or public body is
ultimately accountable to the people in whom the
sovereignty vests. As such, all powers so vested in
him are meant to be exercised for public good and
promoting the public interest. This is equally true of
all actions even in the field of contract. Thus, every
holder of a public office is a trustee whose highest
duty is to the people of the country and, therefore,
every act of the holder of a public office, irrespective
of the label classifying that act, is in discharge of
public duty meant ultimately for public good.‟ [SeeW.P.(C) No.28593 of 2022 Page 40 of 55
Shrilekha Vidyarthi (Kumari) Vs. State of U.P., (1991)
1 SCC 212]„Public authorities should realise that in an era of
transparency, previous practices of unwarranted
secrecy have no longer a place. Accountability and
prevention of corruption is possible only through
transparency.‟ [See ICAI Vs. Shaunak H. Satya,
(2011) 8 SCC 781] ***”
7.4. In Orissa Metaliks Pvt. Ltd. Vrs. State of Odisha, AIR
2021 Ori 85 the following is the observation:
“There is also merit in the contention, based on the
judgment of this Court in Rashmi Cement Ltd. Vrs. State
of Odisha, 113 (2012) CLT 177, which in turn followed the
judgment of the Supreme Court in Commissioner of Police
Vrs. Gordhan Das Bhanji, AIR 1952 SC 16 that a quasi-
judicial authority vested with the power for cancellation of
a license, could not have acted under the „dictation‟ of
another authority. Also the impugned action of suspension
of the issuance of transit passes ought to have been
preceded by an enquiry, that prima facie discloses wrong
doing by Petitioner No.1 in the form of violation of the
terms of the license. The suspension of a licence even
before the inquiry reveals prima facie violation of the
terms of the license would obviously be vulnerable to
invalidation on the ground of it being arbitrary and
irrational.”
7.5. In State of Uttar Pradesh Vrs. Maharaja Dharmander
Prasad Singh, (1989) 1 SCR 176 it has been observed as:
“It is true that in exercise of powers of revoking or
cancelling the permission is akin to and partakes of aW.P.(C) No.28593 of 2022 Page 41 of 55
quasi-judicial complexion and that in exercising of the
former power the authority must bring to bear an
unbiased mind, consider impartially the objections raised
by the aggrieved party and decide the matter consistent
with the principles of natural justice. The authority cannot
permit its decision to be influenced by the dictation of
others as this would amount to abdication and surrender
of its discretion. It would then not be the Authority‟s
discretion that is exercised, but someone else’s. If an
authority „hands over its discretion to another body it acts
ultra vires‟. Such an interference by a person or body
extraneous to the power would plainly be contrary to the
nature of the power conferred upon the authority. De
Smith sums up the position thus:
„The relevant principles formulated by the courts may be
broadly summarised as follows. The authority in which a
discretion is vested can be compelled to exercise that
discretion, but not to exercise it in any particular manner.
In general, a discretion must be exercised only by the
authority to which it is committed. That authority must
genuinely address itself to the matter before it: it must not
act under the dictation of another body or disable itself
from exercising a discretion in each individual case. In the
purported exercise of its discretion it must not do what it
has been forbidden to do, nor must it do what it has not
been authorised to do. It must act in good faith, must have
regard to all relevant considerations and must not be
swayed by irrelevant considerations, must not seek to
promote purposes alien to the letter or to the spirit of the
legislation that gives it power to act, and must not act
arbitrarily or capriciously. Nor where a judgment must be
made that certain facts exist can a discretion be validly
exercised on the basis of an erroneous assumption about
those facts. These several principles can conveniently beW.P.(C) No.28593 of 2022 Page 42 of 55
grouped in two main categories: failure to exercise a
discretion, and excess or abuse of discretionary power.
The two classes are not, however, mutually exclusive.‟
***”
7.6. In Union of India Vrs. Kamlakshi Finance Corporation
Ltd., AIR 1992 SC 711 the Supreme Court had directed
the department to adhere to the judicial discipline and
give effect to the orders of higher appellate authorities
which are binding on them. The relevant observations of
made therein are required to be noted which read thus:
“6. *** The High Court has, in our view, rightly criticised
this conduct of the Assistant Collectors and the
harassment to the assesse caused by the failure of
these officers to give effect to the orders of
authorities higher to them in the appellate hierarchy.
It cannot be too vehemently emphasised that it is of
utmost importance that, in disposing of the quasi-
judicial issues before them, revenue officers are
bound by the decisions of the appellate authorities.
The order of the Appellate Collector is binding on the
Assistant Collectors working within his jurisdiction
and the order of the Tribunal is binding upon the
Assistant Collectors and the Appellate Collectors
who function under the jurisdiction of the Tribunal.
The principles of judicial discipline require that the
orders of the higher appellate authorities should be
followed unreservedly by the subordinate
authorities. The mere fact that the order of the
appellate authority is not “acceptable” to the
department– in itself an objectionable phrase– and
is the subject-matter of an appeal can furnish noW.P.(C) No.28593 of 2022 Page 43 of 55
ground for not following it unless its operation has
been suspended by a competent Court. If this
healthy rule is not followed, the result will only be
undue harassment to assessees and chaos in
administration of tax laws.
***
8. *** The observations of the High Court should be
kept in mind in future and utmost regard should be
paid by the adjudicating authorities and the
appellate authorities to the requirements of judicial
discipline and the need for giving effect to the orders
of the higher appellate authorities which are binding
on them.”
7.7. In the case of Tirupati Balaji Developers Private Ltd. Vrs.
State of Bihar, (2004) 5 SCC 1, the Supreme Court held
thus:
“The very conferral of appellate jurisdiction carries with it
certain consequences. Conferral of a principal substantive
jurisdiction carries with it, as a necessary concomitant of
that power, the power to exercise such other incidental
and ancillary powers without which the conferral of the
principal power shall be rendered redundant. As held by
Their Lordships of the Privy Council in Nagendra Nath
Dey Vrs. Suresh Chandra Dey, AIR 1932 PC 165 (Sir
Dinshah Mulla speaking for the Bench of five), an appeal
is an application by a party to an appellate court asking it
to set aside or revise a decision of a subordinate court.
The appeal does not cease to be an appeal though
irregular or incompetent. Placing on record his opinion,
Subramania Ayyar, J. as a member of the Full Bench (of
five Judges) in Chappan Vrs. Moidin Kutti (1899) 22 ILRW.P.(C) No.28593 of 2022 Page 44 of 55
Mad 68 (at page 80) stated, inter alia, that appeal is ‘the
removal of a cause or a suit from an inferior to a superior
judge or court for re-examination or review’. According to
Wharton‟s Law Lexicon such removal of a cause or suit is
for the purpose of testing the soundness of the decision of
the inferior court. In consonance with this particular
meaning of appeal, „appellate jurisdiction‟ means „the
power of a superior court to review the decision of an
inferior court.‟ „Here the two things which are required to
constitute appellate jurisdiction, are the existence of the
relation of superior and inferior court and the power on
the part of the former to review decisions of the latter.
This has been well put by Story:
„The essential criterion of appellate jurisdiction is, that it
revises and corrects the proceedings in a cause already
instituted and does not create that cause. In reference to
judicial Tribunals an appellate jurisdiction, therefore,
necessarily implies that the subject-matter has been
already instituted and acted upon by some other court,
whose judgment or proceedings are to be revised, (Section
1761, Commentaries on the Constitution of the United
States). ***”
7.8. In Orissa Forest Corporation Ltd. Vrs. Assistant Collector,
1982 SCC OnLine Ori 209 this Court made the following
observation:
“4. We do not think this should be the attitude of the
Union Government. The demand is under the Statute
and the statutory appellate authority, on the set of
facts which are common both to the period when
relief was granted and the period for which the
impugned demand has been made, has already
determined that no levy is exigible. As long as the
W.P.(C) No.28593 of 2022 Page 45 of 55
appellate order stands, it must be duly
respected and only when the revisional
authority vacates the order and holds that the
decision of the appellate authority is wrong
and the demand was justified, no demand
should be raised. It has been indicated on more
than one occasions by the Supreme Court with
reference to directions of the Appellate Tribunal
under the Income Tax Act that such directions are
binding and decisions rendered by appellate
authorities should be respected by the subordinate
revenue authorities and no attempt should be made
to wriggle out of the binding decisions of higher
authorities as long as they remain in force. The
same principle should be applied to the present set
of facts and we are, therefore, inclined to take the
view that the demand under Annexure-4 should be
set aside but we would make it clear that in the
event of the appellate orders being vacated, under
the Statute the liability would revive and
notwithstanding our quashing Annexure-4 the
statutory authority would be entitled to raise a
demand in terms of the decision which may be
ultimately sustained under the Statute.”
7.9. With such conspectus of legal perspective of sanctity
attached to the Appellate Orders, it can be said in the
present context that so long as the order in Appellate
Authority in Annexure-12 stands, the Order dated
05.04.2021 passed by the Disciplinary Authority
(Annexure-15) based on clarification issued by the
Revenue and Disaster Management Department
(Annexure-14) cannot be sustained.
W.P.(C) No.28593 of 2022 Page 46 of 55
8. This Court was drawn attention to Rule 91 of the Odisha
Service Code by the learned Additional Standing Counsel
to justify the Order passed by the Disciplinary Authority
in restricting the payment made during the period of
suspension.
8.1. Rule 91 of the Odisha Service Code stands as follows:
“91. Authority competent to order the reinstatement shall
consider and make a specific order:
(1) When a Government servant who has been
dismissed, removed, compulsorily retired or
suspended is reinstated or would have been
reinstated but for his retirement on superannuation
while under suspension the authority competent to
order the reinstatement shall consider and make a
specific order:
(a) regarding the pay and allowances to be paid to
the Government servant for the period of his
absence from duly or for the period of
suspension ending with the date of his
retirement on superannuation, as the case may
be, and
(b) whether or not the said period shall be treated
as a period spend on duty.
(2) Where such competent authority holds that the
Government servant has been fully exonerated or in
the case of suspension, that it was wholly
unjustified, the Government servant shall be given
the full pay to which he would have been entitled
had he not been dismissed, removed, compulsorilyW.P.(C) No.28593 of 2022 Page 47 of 55
retired or suspended, as the case may be, together
with any allowances of which he was in receipt to
his dismissal, removal or suspension.
(3) (a) In the case of dismissal, removal and
compulsory retirement when a Government
servant who is not completely exonerated of
the charges, is reinstated in service, it shall be
open to the competent authority to decide not to
allow any pay or allowances to him.
(b) In the case of suspension when a Government
servant, not having been exonerated of the
charges fully, is reinstated in service, he may
be allowed subsistence, allowance only for the
period of suspension as admissible under Rule
90.(4) In a case falling under Clause (2) the period of
absence from duty shall be treated as a period spent
on duty for all purposes.
(5) In a case falling under Clause (3) the period of
absence from duty shall not be treated as a period
spent on duty, unless such competent authority
specifically directs that it shall be so treated for any
specified purpose:
Provided that if the Government servant so desires,
such authority may direct that the period of absence
from duty shall be converted into leave of any kind
due and admissible to the Government servant.
Note.–
A permanent post vacated by the dismissal, removal
or compulsory retirement of a Government servantW.P.(C) No.28593 of 2022 Page 48 of 55
should not be filled substantively until the expiry of
the period of one year from the date of such
dismissal, removal or compulsory retirement, as the
case may be, where, on the expiry of the period of
one year, the permanent post filled and the original
incumbent of the post is reinstated thereafter, he
should be accommodated against any post which
may be substantively vacant in the grade to which
his previous substantive post belonged. If there is no
such vacant post, he should be accommodated
against a supernumerary post which should be
created in this grade, with proper sanction and with
the stipulation that it would be terminated on the
occurrence of the first substantive vacancy in that
grade.”
8.2. Bare reading of said provision manifests inter alia that
when the Government servant, who has been dismissed
is reinstated or would have been reinstated but for his
retirement on superannuation while under suspension
the Authority competent to order the reinstatement shall
consider and make a specific order with respect to
payment and allowances for the period of his absence
from duty or for the period of suspension ending with
the date of his retirement on superannuation and as to
treatment of the period of suspension as on duty or
otherwise.
8.3. The case at hand factually does not fit into clause (1) of
Rule 91 of the said Code. Record reveals the fact, which
remained undisputed, that the petitioner was placedW.P.(C) No.28593 of 2022 Page 49 of 55
under suspension vide Order dated 30.09.2000
(Annexure-2) and notwithstanding interim Order dated
07.12.2001 passed in O.A. No.1182 of 2001 by the
learned Odisha Administrative Tribunal in the presence
of counsel appearing for the opposite parties directing
not to proceed with the disciplinary proceeding during
the pendency of criminal case, he was dismissed from
service by the Disciplinary Authority vide Order
No.3643, dated 12.09.2001. The plea of the Disciplinary
Authority that such interim order could come to his
knowledge after passing final order of dismissal was
negatived by the learned Tribunal in its Order No.41
dated 20.03.2013 in CP No.71(C) of 2002 (arising out of
Order in O.A. No.1182 of 2001), which fact is reflected in
Order dated 21.08.2013 of the Collector, Kandhamal.
Such being admitted factual position, the order of
dismissal passed vide District Office Order
No.3643/Estt., dated 12.09.2001 was withdrawn and as
a consequence thereof, the petitioner was reinstated in
service by Office Order dated 24.09.2013 (Annexure-8).
The petitioner got retired from service on attaining age of
superannuation on 31.03.2018 during pendency of
appeal before the Revenue Divisional Commissioner
(Southern Division), Berhampur. The factual narration
as made in the pleadings supported by documents
evinces that the suspension from 30.09.2000 remained
in force till dismissal from service by final Order dated
W.P.(C) No.28593 of 2022 Page 50 of 55
12.09.2001 passed by the Disciplinary Authority despite
interim order of the learned Odisha Administrative
Tribunal. Said Order dated 12.09.2001 has been
withdrawn by Order No.1485/BBE-Con.-VI-2/2013,
dated 21.08.2013 (Annexure7).
8.4. Diligent consideration of the above undisputed factual
matrix transpires that the case of the petitioner does not
fall within the expression “the Government servant who
has been dismissed … or suspended is reinstated or
would have been reinstated but for his retirement on
superannuation while under suspension” and, hence,
there was no competence with the Authority concerned
to make a specific order “regarding the pay and
allowances to be paid to the Government servant … for
the period of suspension ending with the date of his
retirement on superannuation” and to decide “whether
or not the said period shall be treated as a period spent
on duty”, inasmuch as he got superannuated with effect
from 31.03.2018 after being reinstated by Order dated
24.09.2013.
8.5. Taking cue from the observation made by this Court in
Bani Bhusan Dash Vrs. State of Odisha, 2021 (II) OLR
1022 [Review against said Judgment being RVWPET No.
28 of 2022 has been dismissed on 28.11.2022], the
contention raised by the learned Additional Standing
Counsel stemming on the provisions contained in Rule
W.P.(C) No.28593 of 2022 Page 51 of 55
91 of the Odisha Service Code is liable to be repelled,
and this Court does so. Apposite here to extract relevant
observation made in Bani Bhusan Dash (supra):
“11. In Samir Kumar Mitra Vrs. State of Orissa and
others, W.P.(C) No.20827 of 2016 disposed of on
25.08.2016, the 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:
„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 Government
servant, shall give directions about the treatment of
period 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 orderW.P.(C) No.28593 of 2022 Page 52 of 55
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.‟In view of the aforesaid analysis, this Court is of the
considered view that the alleged 3rd punishment
imposed in the impugned order Annexure-8 dated
15.09.2018 cannot sustain in the eye of law.
12. It is of relevance to note here the well 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 law. In S. Khushboo
Vrs. 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) of the General
Clauses Act, 1897.
13. Even though the aforementioned principle has been
laid in connection with a criminal case, but the
analogy can also be applicable to the present
context, which has been referred to of the judgment
of the Apex Court in Vijay Singh Vrs. State of U.P.
and others, (2012) 5 SCC 242 = AIR 2012 SC 2840.
Thereby, on this score only the 2nd 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,
W.P.(C) No.28593 of 2022 Page 53 of 55
1962, such punishment is not maintainable in the
eye of law.”
8.6. In the case at hand, since the allegations levelled against
the petitioner in the criminal case could not be
substantiated which resulted in acquittal by the learned
Special Judge (Vigilance) invoking power under Section
248(1) of the Code of Criminal Procedure, 1973 and the
punishment inflicted in the disciplinary proceeding
under Rule 13 got set aside by the Appellate Authority in
exercise of power under Rule 29 of the OCS (CCA) Rules,
the petitioner should not be made to suffer penalty in
the manner which is reflected in the fresh Order dated
05.04.2021 of the Disciplinary Authority purported to
have been passed as a sequel to Appellate Order vide
Memo No.8706, dated 23.12.2019 with reference to
advice vide Letter dated 10.12.2020 of the Revenue and
Disaster Management Department. The mandate in Rule
30 of the OCS (CCA) Rules makes it clinches that the
Disciplinary Authority is required to give effect to
Appellate Order without being influenced by advisory
received from any other source. Therefore, Order dated
05.04.2021 as passed by the Disciplinary Authority-
opposite party No.3 does require intervention of this
Court.
9. In view of the above, this Court finds that Order dated
05.04.2021 (Annexure-15) is not tenable in the eye of
W.P.(C) No.28593 of 2022 Page 54 of 55
law. Accordingly, this Court invoking power of
extraordinary jurisdiction under Article 226 of the
Constitution of India is inclined to quash the Order
dated 05.04.2021 passed by the Collector, Kandhamal.
Accordingly, the order impugned is quashed.
9.1. Needless to say that the opposite parties are required to
extend all consequential service benefits including
financial benefit, which the petitioner is entitled to in the
light of the discussions made supra, which shall be
granted within a period of three months from today.
9.2. With the above observations and directions, the writ
petition stands disposed of, but there shall be no order
as to costs.
(MURAHARI SRI RAMAN)
JUDGE
Signature Not Verified
Digitally Signed
Signed by: SUCHITRA BEHERA
Designation: JUNIOR STENOGRAPHER
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 09-Oct-2024 13:48:46
High Court of Orissa, Cuttack
The 9th October, 2024//MRS/Laxmikant/Suchitra
W.P.(C) No.28593 of 2022 Page 55 of 55