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2006 DIGILAW 371 (ORI)

Rabinarayan Sethi v. State of Orissa

2006-05-10

I.M.QUDDUSI, N.PRUSTY

body2006
JUDGMENT I. M. QUDDUSI, J. : The instant writ application has been filed against the judgment and order dated 12.4.2005 passed by the Orissa Administrative Tribunal, Bhubaneswar dismissing the O.A. No.1768 of 1999 filed by the petitioner. 2. The brief facts of the case are that the disciplinary proceedings were initiated against the petitioner vide order dated 7.11.1983 while he was working as Progress Assistant by submission of charge-sheet. He was also placed under suspension under contention of enquiry vide order dated 9.8.1983. The three charges leveled against him were as under : “(i) Unauthorisedly including the name of affluent person of his native village as beneficiary under E.R.R.P. Scheme in con¬travention of the provisions of the said scheme. (ii) Negligence of duty and disobedience of instructions of B.D.O., Jajpur and (iii) Unauthorized absence from duty without application. 3. Enquiry Officer conducted enquiry and found the peti¬tioner not guilty in respect of charge Nos.1 and 2 as mentioned above. But in respect of charge No.3 he found the petitioner guilty. Thereafter the enquiry report was submitted to the puni¬shing authority, i.e., O.P. No.2 who passed the order directing to stop one increment with cumulative effect and to treat the period of suspension as such, communicated by the Joint Secretary to Government, C.D. and R.R. Department vide order dated 11.12.1989. Being aggrieved, the petitioner filed an appeal before the State Government which was decided vide order dated 26.10.1993 setting aside the punishment of stoppage of one incre¬ment with cumulative effect but the direction to treat the period of suspension as such, passed by the punishing authority was upheld. The petitioner filed a review before the Tribunal regis¬tered as O.A. No.2191(C) of 1996, which was disposed of vide order dated 30.8.1996 with the following order : “Tribunal is not the appellate authority of the administrative authorities. Where there is no allegation of sufficient proof of mala fide or victimisation, it would allow the authorities to rectify their mistakes as found out by the Tribunal and ought not to substitute its own views as an ap¬pellate authority. Keeping this principle in mind, I direct the appellate authority to decide the question of treatment of the period of suspension as required under Rule 91 of the Orissa Service Code. Keeping this principle in mind, I direct the appellate authority to decide the question of treatment of the period of suspension as required under Rule 91 of the Orissa Service Code. I make it clear that appellate authority shall not interfere with the order setting aside the order of penalty which has been affirmed in review also.” 4. Thereafter the appellate authority vide order dated 17.6.1999 directed that the period of suspension of the petition¬er-delinquent officer from 9.8.1983 till his re-instatement shall be treated as such. 5. Feeling aggrieved the petitioner filed the above-mentioned O.A. (O.A. No.1768 of 1999) before the Tribunal which was dismissed vide the impugned order dated 12.4.2005. Hence the instant writ application. 6. At present we are not considering as to whether the order passed by the Tribunal earlier to the impugned order, was proper or not. But the appellate authority had passed the order dated 26.10.1993 in view of the directions issued by the Tribunal in its earlier order as quoted above. 7. It is a fact that the petitioner having not fully exonerated from the charge No.3 as it was found to be proved, he was found guilty in respect of the same and on that basis, the punishing authority imposed punishment. The appellate authority while setting aside the punishment of stoppage of one increment with cumulative effect, had not exonerated the petitioner in respect of charge No.3. Therefore, the petitioner is considered to be held guilty by the punishing authorities well as by the reviewing authority in respect of charge No.3. After setting aside the punishment of stoppage of one increment with cumulative effect, the appellate authority had not ordered that the period of suspension shall be treated as such after the direction issued by the Tribunal as quoted above. 8. The order dated 17.6.1999 directing that though the period of suspension of the delinquent officer-petitioner from 9.8.1983 till his re-instatement to be treated as such was passed by the appellate authority/State Government partly upholding the order dated 11.12.1989 passed by the punishing authority to the extent of treatment of the period of suspension as such. 9. 8. The order dated 17.6.1999 directing that though the period of suspension of the delinquent officer-petitioner from 9.8.1983 till his re-instatement to be treated as such was passed by the appellate authority/State Government partly upholding the order dated 11.12.1989 passed by the punishing authority to the extent of treatment of the period of suspension as such. 9. At this stage, it is necessary to peruse the provisions of Rule 91(3)(b) of the Orissa Service Code which is reproduced as under : “In the case of suspension, when a Government servant not having been exonerated from the charges, if he is reinstated in service, he may be allowed subsistence allowance only for the period of suspension as admissible under Rule 19”. 9. In view of the specific statutory provision quoted above, it cannot be said that the order passed by the punishing authority as well as the appellate authority to treat the period of suspension as such, was illegal or improper. 10. Mr. Panda submitted that the order passed by the ap¬pellate authority to treat the period of suspension as such without providing any opportunity to show-cause is on extraneous consideration. But to our mind, in fact, the order of punishment was passed by the disciplinary authority and the appellate authority has only affirmed the part thereof to the extent that the period of suspension shall be treated as such and the order regarding stoppage of one increment with cumulative effect, was set aside by the appellate authority. 11. There is no law to provide opportunity to show-cause at the appellate stage and, therefore, it cannot be said that since the appellate authority had not granted opportunity to the peti¬tioner to show-cause, there was violation of principles of natu¬ral justice. It was his own appeal and, therefore, whatever he wanted to say, should have been mentioned in the memorandum of appeal. In respect of the order of the disciplinary authority, the Tribunal had already looked into the matter in the earlier O.A. as quoted above and it has become final as the same was not challenged by the either party. 12. Considering the facts and circumstances, we find no impropriety or manifest error of law in the impugned order passed by the Tribunal. As such the writ application devoids merit and the same is, therefore, dismissed in limine. Petition dismissed.