Research › Search › Judgment

Orissa High Court · body

2005 DIGILAW 588 (ORI)

Fazle Rub Jalaluddin Khan v. State of Orissa

2005-10-04

I.M.QUDDUSI, M.M.DAS

body2005
JUDGMENT I. M. QUDDUSI, J. — The petitioner has raised his grievance by challenging the impugned order dated 27.7.2005 passed by the Orissa Administrative Tribunal, Bhubaneswar in Original Applica¬tion No.1132 of 2002. The Original Application was filed by the petitioner before the Tribunal challenging the disciplinary order of his borrowing department in not relieving him for accepting his ad hoc promotion in the parent department. It was alleged that he was detained in the borrowing department despite receipt of his ad hoc promotion in order to be punished through a disci¬plinary process. The Original Application was dismissed by the Tribunal on the ground that the petitioner had not made any appeal against the order of the Disciplinary Authority. The con¬tention of the petitioner before the Tribunal was that since the impugned order was passed by the orders of the Governor, there would be no appeal against such orders under the O.C.S. (C.C. & A) Rules, 1962. 2. The Tribunal disposed of the Original Application with the direction that clarification should be obtained from the General Administration Department explaining as to whether an appeal lies against an order which has been passed in the name of the Governor and only thereafter the petitioner may file a fresh Original Application. 3. In view of the provisions of Article 154 of the Consti¬tution, the executive power of a State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. In Article 166 of the Constitution, it has been provided that if an order has been passed in the name of the Governor or has been expressed to be taken in the name of the Governor, it cannot be said that since the order has been signed by the Secretary or any other officer of the Government, the same has not been passed by the Governor and, as such, if such an order has been passed, whether an appeal would lie against such order or not is a ques¬tion to be determined. Therefore, the Governor is the executive head of the State and no appeal can lie against his order irre¬spective of the fact that whether such powers have been dis¬charged by the Governor himself or through the officers subordi¬nate to him. 4. Therefore, the Governor is the executive head of the State and no appeal can lie against his order irre¬spective of the fact that whether such powers have been dis¬charged by the Governor himself or through the officers subordi¬nate to him. 4. Besides the above, Sub-rule (2) of Rule 22 of the O.C.S. (C.C. & A.) Rules, 1962 provides that a member of Orissa Civil Services, Class-I or Orissa Civil Services, Class-II against whom an order imposing any of the penalties specified in Rule 13 is made by an authority other than the Governor may appeal against such order to the Governor.It is implied from the perusal of that provision that no appeal lies against order of the Governor even if the order is passed by any subordinate officer to the Governor where an order has been expressed to be taken in the name of the Governor. 5. In view of the above mentioned position, we have no hesitation to hold that the Tribunal has committed a manifest error of law in dismissing the Original Application on the ground that the petitioner should seek a clarification from the G.A. Department as to whether any appeal would lie against the im¬pugned order which has been passed in the name of the Governor and disposed of the Original Application with the direction that the petitioner should file a fresh Original Application. 6. Therefore, the writ petition is liable to be allowed and the impugned order passed by the learned Tribunal is also to be quashed and the matter is to be remitted back to the Tribunal for disposal of the Original Application on merits. 7. In the result, the writ petition is allowed and the impugned order dated 27.7.2005 passed by the Tribunal in the aforementioned Original Application is quashed. The matter is remitted back to the Tribunal for fresh disposal of the Original Application on merits after restoring the same to its original number. Since the Tribunal has protected the petitioner to the effect that recovery orders will remain inoperative, we direct that such order of the Tribunal shall continue during pendency of the Original Application. M. M. DAS, J. I agree. Petition allowed.