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2015 DIGILAW 675 (ORI)

Qaisar Iqbal Ali v. State of Odisha

2015-12-03

B.R.SARANGI

body2015
JUDGMENT : B.R. Sarangi, J. 1. The petitioner, who is working as Planning Member, Sambalpur Development Authority, Sambalur (in short hereinafter referred to as 'SDA') has filed W.P.(C) No. 12007/2015 to quash the proceeding initiated against him with its memorandum of charges dated 30.05.2015 under Annexure-6 and he has filed W.P.(C) No. 12011/2015 challenging the order of suspension dated 24.06.2015 vide Annexure-8 issued by opposite party No. 3 as he has no authority to pass such order in view of Rule-6(1) of the Orissa Development Authorities Rules, 1983. 2. The factual matrix of the case in hand is that the petitioner while working as a Asst. Town Planner under Bhubaneswar Development Authority (in short hereinafter referred to as 'BDA') on substantive basis was sent on deputation in the guise of transfer and posted as Planning Member, SDA, Sambalpur with the additional charge of Secretary, JRIT, Jharsuguda, SPA, Deogarh vide Government notification dated 18.02.2013. Assailing the so called order of transfer in the guise of deputation, the petitioner approached this Court by filing W.P.(C) No. 4077/2013 on the ground that the officers and employees of the BDA belong to a different establishment than that of the officers and staffs of SDA and other development authorities of the State. Since there exists no common cadre, the order of transfer is not permissible. Considering the same, this Court by order dated 28.02.2013 passed an interim order directing that the order of transfer may not be given effect to till the end of April, 2013. Despite such interim order, the petitioner was shown relieved from the post vide order dated 20.02.2013, but before receipt of such relieve order the petitioner had applied for leave. In spite of interim order passed by this Court, the authority did not allow him to join in the office of BDA. By order dated 02.05.2013 this Court dismissed W.P.(C) No. 4077/2013 and vacated the interim order. After dismissal of the writ petition and vacation of the interim order, the Senior Administrative Officer, BDA in his letter dated 02.05.2013 refused the leave application of the petitioner dated 23.03.2013 on the ground that no Casual Leave can be sanctioned by BDA as he has already been relieved from the office of the BDA w.e.f 20.02.2013. However, the petitioner joined as Planning Member under SDA on 06.05.2013 which was duly intimated to the State Government on the very same day. However, the petitioner joined as Planning Member under SDA on 06.05.2013 which was duly intimated to the State Government on the very same day. His LPC was forwarded by BDA to the office of the SDA vide letter dated 18.12.2013. While the petitioner was so continuing and discharging his duty as Planning Member of the SDA, he was promoted to the next higher grade i.e. Associate Town Planner (Class-1 post) on the recommendation of the Departmental Promotion Committee with the approval of the authority and such order was passed on 15.11.2014. While the petitioner was continuing and discharging his duty as Planning Member of the SDA, he received a letter of Vice Chairman, BDA with regard to initiation of departmental proceeding against him under Rule 15 of the OCS (CCA) Rules, 1962 and also was served the memorandum of charges with articles and imputations thereof. Assailing such initiation of proceeding, the petitioner has approached this Court by filing W.P.(C) No. 12007/2015. Thereafter, Vice Chairman, BDA issued order of suspension dated 24.06.2015 and challenging the same, the petitioner has also approached this Court by filing W.P.(C) No. 12011/2015. Hence these applications. 3. Mr. R.K. Rath, learned Senior Counsel appearing for the petitioner strenuously urges that the initiation of proceeding against the petitioner by the Vice Chairman, BDA dated 30.05.2015 is illegal and also without jurisdiction. Though the petitioner is an officer of BDA and now on deputation to SDA by order of the Government approval under the provisions of Section 3(5)(e) of the Orissa Development Authorities Act, 1982 and as such a statutory member of the SDA, he shall hold office during the pleasure of the State Government as per the provisions of Section 3(8) of the Orissa Development Authorities Act, 1982. In view of Rule 6(1) of the Orissa Development Authorities Rules, 1983, the Vice Chairman has the power of appointment, promotion and punishment of officers and employees of the authority other than those on deputation. The proviso to Rule 6(1) states that in case of appointment, promotion and removal of service of any officer belonging to Class-I and II posts, the Vice Chairman may exercise such power with the previous approval of the authority. It is further urged that the Vice Chairman, BDA has no authority to proceed against the petitioner as he is neither the appointing authority nor the disciplinary authority of the petitioner. It is further urged that the Vice Chairman, BDA has no authority to proceed against the petitioner as he is neither the appointing authority nor the disciplinary authority of the petitioner. Moreover, while the Vice Chairman initiated disciplinary proceeding he has not obtained prior approval of the "Authority". Therefore, the initiation of the proceeding against the petitioner is bad in law and also without jurisdiction and the consequential order suspending the petitioner also cannot sustain in the eye of law. 4. Mr. B. Senapati, learned Additional Government Advocate submits that the petitioner though is an employee of BDA was on deputation to SDA with due approval of the State Government and has discharged the duty assigned to him in accordance with law. 5. Mr. Sisir Das, learned counsel for opposite party Nos. 2 and 3 justifies the action of the Vice Chairman, BDA instituting disciplinary proceeding against the petitioner by letter dated 30.05.2015 with memorandum of charges under Rule 15 of the OCS (CCA) Rules, 1962. It is urged that even if the petitioner was relieved from duty on 20.02.2013 having been transferred on 18.02.1013, he did not receive the relieve order and remained absent from 21.02.2013 to 05.05.2013 without taking permission of the authority. Further he joined at SDA on 06.05.2013 without intimating the Vice Chairman, BDA and applied for E.L. from 21.02.2013 to 05.05.2013 without intimating his whereabouts for the said period. It is further urged that the Vice Chairman, BDA has the authority to proceed against the petitioner. Defending the order of suspension, it is alleged that the petitioner has shown undue favour in approving the building plan of Sri Suresh Chandra Bhura over Plot No. 63/1274 in Mouza-Madhusudan Nagar Bhubaneswar. 6. Mr. D. Mohapatra, learned counsel for SDA submits that the petitioner is discharging his duty as Planning Member on deputation from BDA and such deputation has been duly approved by the State Government. 7. On the basis of facts pleaded above, the only question that is to be considered is whether the initiation of departmental proceeding and placing the petitioner under suspension are within the jurisdiction of the Vice Chairman, BDA or not. The admitted fact is that the petitioner was discharging his duty as Assistant Town Planner in BDA, but he was transferred to SDA as Town Planner. The same was challenged before this Court in W.P.(C) No. 4077/2013. The admitted fact is that the petitioner was discharging his duty as Assistant Town Planner in BDA, but he was transferred to SDA as Town Planner. The same was challenged before this Court in W.P.(C) No. 4077/2013. While entertaining the said writ petition, this Court passed an interim order on 28.02.2013. Subsequently, the opposite parties participated in the proceeding and ultimately the said writ petition was dismissed. 8. The State Government in exercise of power under Sub-Section (3) of Section 4 of the Orissa Development Authorities Act has transferred the petitioner. Such transfer of the petitioner is to be treated as deputation to SDA. On consideration of such contention the said writ petition was dismissed. In any case, the order of transfer having been passed on 18.02.2013, BDA relieved the petitioner on 20.02.2013, but such relieve order has not been communicated to the petitioner. After dismissal of W.P.(C) No. 4077/2013 on 02.05.2013, the petitioner joined as Town Planner under the SDA on 06.05.2013 which was also duly intimated to the State Government on the very same day and in between the petitioner applied for C.L. on 02.05.2013. The same was rejected on the ground that C.L. cannot be sanctioned by BDA as the petitioner has been relieved from his office on 20.02.2013. Further the E.L. applied for the period from 21.02.2013 to 05.05.2013 has not been considered by the Vice Chairman, BDA, but the very same authority, namely, Vice Chairman, BDA initiated proceeding under Rule-15 of the OCS (CCA) Rules and submitted memorandum of charges to the petitioner calling for explanation vide Annexure-6 to the writ petition and also placed him under suspension vide Annexure-8 in W.P.(C) No. 12011/2015. 9. Clause (e) of Sub Section (5) of Section-3 of the Orissa Development Authorities Act, 1982 states that a Town and regional Planning member, to be appointed by the State Government. Sub-section (8) of Section-3 states that the Chairman, Vice-Chairman and members appointed under Clauses (c) to (f) of Sub-section (5) shall hold office during the pleasure of the State Government. Since Sub-Section (5) deals with a Town and Regional Planning member, the petitioner holds office during the pleasure of the State Government. Sub-section (8) of Section-3 states that the Chairman, Vice-Chairman and members appointed under Clauses (c) to (f) of Sub-section (5) shall hold office during the pleasure of the State Government. Since Sub-Section (5) deals with a Town and Regional Planning member, the petitioner holds office during the pleasure of the State Government. Therefore, the petitioner has been transferred and posted as Town Planner and to hold office during pleasure of the State and such transfer is termed as deputation in view of Sub-Section (3) of Section-4 though the petitioner is an employee of BDA but by way of deputation his services can be placed under another authority for such period not exceeding six years at a time and on such conditions, as may be specified in the direction. In the case of the petitioner, this Court has already held that the order of transfer which is the subject matter of the challenge before this Court is to be treated as deputation to the SDA and such transfer cannot amount to be a transfer to a different cadre. When the petitioner is on deputation to SDA, the BDA initiated the proceeding by issuing memorandum of charge in Annexure-6 and also placed him under suspension. 10. In exercise of powers conferred under Section 123 of the Orissa Development Authorities Act and in consultation with the Accountant General, Orissa as required by Sub-section (1) of Section 81 of the Act, the State Government has made a rule called "Orissa Development Authorities Rules 1983. Rule-6(1) is as follows: "6. Appointing authority, supervision and control-(1) The powers of appointment, promotion, and punishment of officers and employees of the Authority other than those on deputation shall vest in the Vice-Chairman: Provided that in case of appointment, promotion and removal from service of any officer belonging to Class I and Class II Posts, the exercise of such power by the Vice-Chairman shall require previous approval of the Authority". The aforementioned Rules clearly indicates that power of appointment, promotion and punishment of officers and employees of the Authority other than those on deputation shall vest in the Vice-Chairman. Therefore, the employees who are on deputation, the Vice-Chairman has no power of appointment, promotion and punishment. The aforementioned Rules clearly indicates that power of appointment, promotion and punishment of officers and employees of the Authority other than those on deputation shall vest in the Vice-Chairman. Therefore, the employees who are on deputation, the Vice-Chairman has no power of appointment, promotion and punishment. As per proviso to Subsection (1) in case of appointment, promotion and removal from service of any officer belonging to Class I and Class II Posts, the exercise of such power by the Vice-Chairman shall require previous approval of the Authority. What is the nature of work and status of position to be discharged on deputation is specified under Sub-rule (4) of Rule 6 of the said Rules. 11. Sub-rule (4)(m) of Rule (6) states that the borrowing authority with prior approval of the Administrative Department may initiate disciplinary action against the employee concerned on the ground of misconduct under Orissa Civil Services (Classification, Control and Appeal) Rules, 1962, in case he violates the rules and regulations of the borrowing authority. Therefore, in view of the statutory provisions contained in Sub-rule (4)(m) of Rule (6), Vice-Chairman, BDA has no power to impose punishment by initiating proceeding against the petitioner. 12. It is an elementary principle of construction of statutes that the words have to be read in their literal sense. Thus, generally speaking, words and expressions would be given their plain and ordinary meaning which cannot be cut down or curtailed unless they in themselves are clearly restrictive. 13. In Nokes V. Doncaster Amalamated Collieries Ltd., (1940) 3 ALL ER 549, VISCOUNT SIMON, L.C., said: "The golden rule is that the words of a statute must prima facie be given their ordinary meaning". 14. In Jugalkishore Saraf v. Raw Cotton Co. Ltd., AIR 1955 SC 376 , S.R. Das, J., referring to the golden rule of interpretation the apex Court has stated: "The cardinal rule of construction of statutes is to read the statutes literally, that is, by giving to the words their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning, the Court may adopt the same. But if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation. If, however, such a reading leads to absurdity and the words are susceptible of another meaning, the Court may adopt the same. But if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation. In the present case the literal construction leads to no apparent absurdity and therefore, there can be no compelling reason for departing from their gold rule of construction." 15. In Mahadeolal Kanodia v. Administrator General of West Bengal, AIR 1960 SC 936 , DAS GUPTA, J., referring to the rules of construction the apex Court said: "The intention of the Legislature has always to be gathered by words used by it, giving to the words their plain, normal, grammatical meaning", 16. In RS Nayak v. AR Antulay, AIR 1984 SC 684 , the apex Court held: "If the words of the statute are clear and unambiguous, it is the plainest duty of the Court to give effect to the natural meaning of the words used in provision." Similar view has also been taken by the Apex Court in Chandvarkar Sita Ratna Rao v. Ashalata S. Guram, (1986) 4 SCC 447 : AIR 1987 SC 117 . 17. If the language used by the legislature is clear and unambiguous, a Court of law at the present day has only to expound the words in their natural and ordinary sense; 'Verbis plane expressis amnino standum est'. In Mc Cowaan v. Baine, [1980 AC 401], LORD WATSON laid down the canon as follows: "It is said that for some reason the primary and natural meaning of the words is to be extended......... I am at a great loss to see why I think an Act of Parliament, an agreement, or other authoritative document, ought never to be dealt with in this way, unless for a cause amounting to a necessity or approaching to it. It is to be remembered that the authors of the document could always have put in the necessary words if they had thought fit. If they did not, it was either because they thought of the matter and did not, or because they did not, think of the matter. In neither case ought the Court to do it. It is to be remembered that the authors of the document could always have put in the necessary words if they had thought fit. If they did not, it was either because they thought of the matter and did not, or because they did not, think of the matter. In neither case ought the Court to do it. In the first case it would be no make provisions opposed to the intention of the framers of the document; in the other case, to make a provision not in contemplation of these framers." 18. It is elementary that the primary duty of a court is to give effect to the intention of the legislature as expressed in the words used by it and not outside consideration can be called in aid to find that intention. A statute must be constructed in a manner which carried out the intention of the legislature. The intention of the legislature must be gathered from the words of the statute itself. 19. In Nathi Devi v. Radha Devi Gupta, (2005) 2 SCC 271 , the apex Court held that if the words are unambiguous or plain they will indicate the intention with which the statute was passed and object to be obtained by it. 20. In view of the clear provisions of Statute itself, the initiation of proceeding by the Vice-Chairman, BDA by issuing memorandum of charges impugned in W.P.(C) No. 12007/2015 and the order of suspension issued against the petitioner in W.P.(C) No. 12011/2015 under Annexures-6 and 8 respectively cannot sustain in the eye of law and as such the initiation of proceeding by the Vice-Chairman, BDA is without jurisdiction and contrary to Rule-6(1) of the Orissa Development Authorities Rules, 1983 and the same are therefore quashed. 21. The writ petitions are allowed. No order to cost.