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2012 DIGILAW 344 (ORI)

Susanta Kumar Tripathy v. State of Orissa

2012-08-08

B.K.NAYAK, B.P.DAS

body2012
ORDER 08.08.2012 : Heard Mr. J. Rath, learned senior counsel for the petitioner and Mr. S. Das, learned Additional Standing counsel for the O.Ps. The petitioner has come up before this Court against the order dated 4.10.20008 passed by the Engineer-in Chief Electricity-cum-Principal Chief Electrical Inspector, Bhubaneswar, O.P.2 dismissing him from the post of Jr. Engineer (Electrical), (Annexure-1) and the order dated 21.2.2009 (Annexure-3) passed by the Commissioner-cum-Secretary to Government in Energy Department, O.P.1, in appeal confirming the order of dismissal. The petitioner has also made a further prayer to direct the opposite parties to reinstate him in service with all the arrear service benefits. The brief facts leading to this writ petition tend to reveal that the petitioner, who was working as Jr. Engineer (Electrical), was prosecuted under the provision of Prevention of Corruption Act by the Special Judge, Vigilance, Cuttack, in T.R. Case No.141/2007 and ultimately, he was convicted and sentenced to undergo R.I. for one year and to pay a fine of Rs.1.00 lakh and in default to payment of fine, to undergo R.I. for a period of six months. Thereafter, the petitioner was dismissed from service in terms of Rule-13 read with 18(1) of Orissa Civil Service (CCA) Rules, 1962 but no disciplinary proceeding was initiated against the petitioner, as stated. The aforesaid order of conviction was challenged in Criminal Appeal No.428 of 2008 and a single Bench of this Court while allowing the said appeal set aside the judgment of the trial Court and acquitted the present petitioner of all the charges and directed to release all his seized materials. Thereafter, the petitioner approached the authority for his reinstatement in service. But as he was dismissed solely on the ground of conviction in criminal case, no action was taken by the authority, which forced the petitioner to approach the Odisha Administrative Tribunal in O.A. No.1342(C)/2012. The Tribunal while disposing of the said Original Application on 17.5.2012 passed the following order :- “....... The reiterate under 18(1) of OCS (CCA) Rules 1962 a person is liable to be dismissed from service, if he is convicted for criminal charge. But after he being acquitted of the charges, he is equally entitled to be reinstated in service. The Tribunal while disposing of the said Original Application on 17.5.2012 passed the following order :- “....... The reiterate under 18(1) of OCS (CCA) Rules 1962 a person is liable to be dismissed from service, if he is convicted for criminal charge. But after he being acquitted of the charges, he is equally entitled to be reinstated in service. After careful consideration, hearing the learned counsel for both sides, without entering into the merit of the claim of the applicant and in view of the acquittal of the applicant by the Hon’ble High Court. Respondent Nos.2 and 3 are directed to consider reinstatement of the applicant in service with all service benefits. This be done within two months from communication of this order.” We are sorry to record that despite our repeated directions and observations in different judgments that the purpose of the Tribunal is to adjudicate the matter and not to leave it to the mercy of the authority against whose arbitrariness; original applications are being filed, instead of adjudicating the matter, the Tribunal allows the applicants again to approach the authority. We are constrained to say that the Tribunal is distancing itself from the statutory obligation cast upon it. In this case also the same thing happens, for which we request the Chairman, State Administrative Tribunal to take effective steps so that the matters are adjudicated. We are constrained to reiterate the decision of this Court in the case of Dr. Prafulla Kumar Sahoo v. State of Orissa and two others, 2009 (II) OLR 709 , in which it is held as follows :- “It is due to failure on the part of the Administrative Authority to give justice to such claim of persons, who were in Govt. service, the legislatures thought it proper to enact the Administrative Tribunal Act, and the Administrative Tribunals were created and another reason for the same is to reduce the burden of the High Court which was flooded with cases relating to service matters. service, the legislatures thought it proper to enact the Administrative Tribunal Act, and the Administrative Tribunals were created and another reason for the same is to reduce the burden of the High Court which was flooded with cases relating to service matters. From the action of the Tribunal in sending back the matter to the Government, it appears that the administrative tribunal is acting like a Post Office and not adjudicating the case as the statute demand.” In the case of State of West Bengal v. Subhas Kumar Chatterjee and Others, AIR 2010 SC 2927 in paragraph-23 the apex Court has held as follows :- “Whether the Administrative Tribunal can delegate its power of judicial review and confer the same upon a Chief Engineer ? The Tribunals cannot travel beyond the power conferred on them and delegate their essential function and duty to decide service related disputes. Such delegation is ab initio void. It is too elementary to restate that no judicial tribunal can delegate its responsibilities except where it is authorized to do so expressly. The power conferred upon the Administrative Tribunals under the provisions of the said Act flows from Article 323-A of the Constitution. Such power can never be delegated except under a valid law made by parliament. The Tribunals by their own act cannot delegate the power to decide any dispute which in law is required to be decided exclusively by such Tribunal.” In the case at hand, the Tribunal on one hand held that the petitioner is entitled to be reinstated in service with all service benefits but on the other hand instead of taking a decision in the matter left it in the hands of the authorities to consider his case for reinstatement. Despite repeated direction, no counter affidavit has been filed by the opposite parties nor has any instruction been obtained by the learned counsel for the State. Undisputedly, the petitioner was dismissed from service only for his conviction in the vigilance case and such conviction being set aside in appeal, he is entitled to be reinstated in service with all service benefits. Undisputedly, the petitioner was dismissed from service only for his conviction in the vigilance case and such conviction being set aside in appeal, he is entitled to be reinstated in service with all service benefits. In such view of the matter, we have no hesitation to set aside the order dated 4.10.2008 passed by the Engineer-in-Chief Electricity-cum-Principal Chief Electrical Inspector, Bhubaneswar, O.P.2, (Annexure-1) and the order dated 21.2.2009 passed by the Commissioner-cum-Secretary to Government in Energy Department, O.P.1, (Annexure-3) so also the order dated 17.5.2012 passed by the Odisha Administrative Tribunal in O.A. No.1342 (C)/ 2012 to the extent of the direction to the respondent-O.Ps. to consider reinstatement of the petitioner in service with all service benefits. The Commissioner-cum-Secretary to Government in Energy Department, O.P.1 is directed to reinstate the petitioner in service and pay him all the consequential service as well as financial benefits within a period of two months from the date of communication of this order. With the aforesaid observation/direction, the writ petition is disposed of. Writ petition allowed. Petition disposed of.