Research › Search › Judgment

Orissa High Court · body

2011 DIGILAW 491 (ORI)

Rushi Guman Singh v. State of Orissa

2011-09-15

B.P.DAS, S.C.PARIJA

body2011
ORDER 15.09.2011 — Heard learned counsel for the petitioner and learned counsel for the State. This writ petition has been filed challenging the order dated 14.9.2010 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack, in O.A. No.1915 (C) of 2009 refusing to interfere with the office order dated 25.2.2009, issued by the Commissioner-cum-Secretary to Government, in Agriculture Department, intimating the petitioner that he is deemed to have been placed under suspension from the date of original order of his removal from Government service and he shall continue to remain under suspension until further orders. The brief facts of the case, as narrated in the writ petition, is that the petitioner while working as Soil Conservation Officer, was placed under suspension by office order dated 12.6.1998, in contemplation of disciplinary proceeding under the provisions of the Orissa Civil Services (Classification, Control & Appeal) Rules, 1962 (hereinafter referred to as “OCS Rules”). After service of memorandum of charges on the petitioner and submission of his written statement of defence, the Commissioner for Departmental Enquiries, General Administration Department, was appointed as the Inquiring Officer. After completion of the enquiry proceeding, the Inquiring Officer submitted the enquiry report exonerating the petitioner from all the charges and recommending that the period of his suspension may be treated as duty. On submission of the enquiry report by the Inquiring Officer recommending for exonerating the petitioner from all the charges and also recommending to treat the period of suspension as on duty, the Disciplinary Authority considered the said enquiry report and decided to differ from the said findings of the Inquiring Officer as the same were found to be based on the pleas/statements of delinquent and without proper application of mind and to finalise the disciplinary proceeding against the petitioner by imposing the punishment of “dismissal from the service” and to treat the period of suspension as such on the grounds stated therein. Accordingly, the petitioner was called upon to submit any representation as he may wish to make against the above findings and decision of the Disciplinary Authority within 30 days from the date of receipt of said notice. The petitioner submitted his representation/reply to the show-cause notice before the Disciplinary Authority, for consideration. Accordingly, the petitioner was called upon to submit any representation as he may wish to make against the above findings and decision of the Disciplinary Authority within 30 days from the date of receipt of said notice. The petitioner submitted his representation/reply to the show-cause notice before the Disciplinary Authority, for consideration. The Disciplinary Authority on receipt of the representation/reply of the petitioner, referred the matter to the Orissa Public Service Commissioner (‘OPSC’ for short) along with all relevant records of the disciplinary proceeding for their opinion/advice. On receipt of advice and the reasoning rendered by OPSC, the Commissioner-cum-Secretary to Government, Agriculture Department, vide office order dated 14.2.2003, intimated the petitioner that the Government has been pleased to accept the said advice of the OPSC and finally order that the petitioner is removed from Government service with immediate effect and the period of suspension from 13.6.1998 to 20.7.1999 is treated as such. Being aggrieved by the office order dated 14.2.2003 removing him from Government service, the petitioner moved the Orissa Administrative Tribunal, Cuttack Bench, Cuttack, in O.A. No.994 (C) of 2003 and having failed to get any relief, the petitioner approached this Court in W.P.(C) No.10653 of 2006. This Court by judgment dated 24.6.2008 quashed the order of removal of the petitioner from Government service and directed the Disciplinary Authority to provide reasonable opportunity of hearing to the petitioner before taking a final decision in the matter relating to the findings on the charges framed against him. This Court further directed the Disciplinary Authority to conclude the disciplinary proceeding expeditiously. Against the said judgment of this Court dated 24.6.2008, passed in W.P.(C) No.10653 of 2006, the State of Orissa moved the Supreme Court in SLP (Civil) No.24190 of 2008, which was dismissed by order dated 17.10.2008. Subsequently, the Commissioner-cum-Secretary to Government in Agriculture Department by office order dated 25.2.2009 (Annexure-3), intimated the petitioner that as per the provisions of Rule 12(4) of the OCS Rules, he is deemed to have been placed under suspension from the date of original order of removal from Government service and shall continue to remain under suspension until further orders. Being aggrieved by the said order of suspension, the petitioner moved the Orissa Administrative Tribunal, Cuttack Bench, Cuttack, in O.A. No.1915 (C) of 2009, which having been dismissed, the present writ petition has been filed. Being aggrieved by the said order of suspension, the petitioner moved the Orissa Administrative Tribunal, Cuttack Bench, Cuttack, in O.A. No.1915 (C) of 2009, which having been dismissed, the present writ petition has been filed. Learned counsel for the petitioner submits that as the petitioner is a Class-I officer of the State Government, the Governor of Orissa is the appointing authority and therefore, the impugned office order dated 25.2.2009, issued by the Commissioner-cum-Secretary to Government in Agriculture Department, placing him under suspension is without jurisdiction. It is further submitted that once the order of removal was held to be invalid by order of this Court, there was no scope for the authorities to place the petitioner under suspension without any conscious decision to hold further enquiry, as has been provided under Rule 12(4) of the OCS Rules. In this regard, learned counsel for the petitioner has relied upon a decision of the apex Court in H.L. Mehra v. Union of India and others, AIR 1974 S.C. 1281 . Learned counsel appearing for the State, with reference to the impugned office order dated 25.2.2009, submits that it is in conformity with the provisions of Rule 12(4) of the OCS Rules and therefore the same cannot be faulted. In this regard, it is submitted that as the order of removal of the petitioner from the Government service has been set aside by this Court in WP(C) No.10653 of 2006 and the matter has been remitted back to the Disciplinary Authority for reconsideration, the disciplinary proceedings stood revived from the stage of inquiry and no fresh decision to hold further inquiry was required and therefore, the petitioner shall be deemed to have been placed under suspension from the date of the original order of removal and shall continue to remain under suspension until further orders. As regard the plea of the petitioner that he being a Class-I officer, the impugned office order dated 25.2.2009 placing the petitioner under suspension passed by the Commissioner-cum-Secretary to Government in Agriculture Department is without jurisdiction, learned counsel for the State submits that as the provisions of Rule 12(4) of the OCS Rules provides for a legal fiction by way of deemed suspension, the same has only been communicated to the petitioner and no independent order of suspension has been passed. Rule 12(4) of the OCS Rules reads as under :- “12(4). Rule 12(4) of the OCS Rules reads as under :- “12(4). Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of law and disciplinary authority, on a consideration of the circumstances of the case decides to hold a further inquiry against him on the allegations on which the penalty of dismissal; removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the appointing authority from the date of the original orders of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders.” The aforesaid provisions of the OCS Rules provides that where a penalty of removal from Government service has been set aside by a Court of law and the Disciplinary Authority decides to hold a further enquiry against him, on the allegations on which the penalty of removal was originally imposed, the Government servant shall be deemed to have been placed under suspension. Hence, the aforesaid provision clearly implies that if the removal from service of a Government servant is set aside by a Court and the matter is remitted back for reconsideration of the Disciplinary Authority, the disciplinary proceeding which stood concluded stands revived and in that case, the Government servant shall be deemed to be placed under suspension. In H.L. Mehra (supra), the appellant therein had been placed under suspension under Rule 10(4) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, which is in pari materia to Rule 12(4) of the OCS Rules. The question which fell for consideration in that case was whether the inquiry continued under the impugned order was an inquiry against the appellant on the allegations on which the original dismissal order was based ? The Hon’ble Court came to find that the enquiry revived and continued was clearly not an enquiry on the allegations on which the penalty of dismissal was originally imposed on the appellant and therefore, the said Rule 10(4) had no application. The said decision therefore, has no application to the facts of the present case. The Hon’ble Court came to find that the enquiry revived and continued was clearly not an enquiry on the allegations on which the penalty of dismissal was originally imposed on the appellant and therefore, the said Rule 10(4) had no application. The said decision therefore, has no application to the facts of the present case. In the case of Khem Chand v. Union of India and others, AIR 1963 S.C. 687 , a Constitution Bench of the Supreme Court, while considering the validity of Rule 12 (4) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, which is identical to the present Rule 12 (4) of the OCS Rules, came to observe as under : “xxx xxx Nobody can seriously doubt the importance and necessity of proper disciplinary action being taken against government servants for inefficiency, dishonesty or other suitable reasons. Such action is certainly against the immediate interests of the Government servant concerned; but is absolutely necessary in the interests of the general public for serving whose interests the government machinery exists and functions. Suspension of a government servant pending an enquiry is a necessary part of the procedure for taking disciplinary action against him. It follows, therefore, that when the penalty of dismissal has been set aside but the disciplinary authority decides to hold a further enquiry on the same facts against him a fresh order of suspension till the enquiry can be completed, in accordance with law, is a reasonable step of the procedure. We have no hesitation in holding, therefore, that in so far as R.12(4) restricts the appellants right under Art. 19(I) (f) of the Constitution, it is a reasonable restriction in the interests of general public. xxx xxx.” In the present case, as the punishment of removal from service imposed on the petitioner has been quashed by this Court, while remitting the matter back to the Disciplinary Authority for reconsideration, the enquiry against the petitioner shall be deemed to be pending till a final decision is taken in the matter by the Disciplinary Authority. Therefore, in such a case, no fresh order of the Disciplinary Authority to hold further inquiry is required, in order to place the petitioner under suspension, as provided under Rule 12(4) of the OCS Rules. Therefore, in such a case, no fresh order of the Disciplinary Authority to hold further inquiry is required, in order to place the petitioner under suspension, as provided under Rule 12(4) of the OCS Rules. Had the matter not been remitted back by this Court, after quashing the order of his removal from service, in that case, the Disciplinary Authority would have been required to take a decision to hold further inquiry against the petitioner on the charges/allegations on which the penalty of removal from service was imposed, in order to apply the provisions of deemed suspension, as provided under Rule 12(4) of the OCS Rules. In view of the above, the impugned office order dated 25.2.2009, placing the petitioner under suspension, does not suffer from any legal infirmity so as to warrant any interference. The writ petition being devoid of merit, the same is accordingly dismissed. Petition dismissed.