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2016 DIGILAW 1198 (ORI)

Bhakta Bandhu Mishra v. State of Orissa

2016-12-05

SANJU PANDA, SUJIT NARAYAN PRASAD

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JUDGMENT : S. N. Prasad, J. O.J.C. No. 6691 of 1997 has been filed for issuance of a direction to the opposite parties to sanction and disburse all the arrear claims in favour of the petitioner prior to his retirement due on 31.5.1997 pursuant to the direction of the Orissa Administrative Tribunal dated 19.6.1996 in O.A.No. 1343 of 1996 and to hold the action of the opposite parties withholding crossing of efficiency bar as illegal and violative of the fundamental rights. W.P.(C) No. 9858 of 2005 has been filed with a prayer to direct the opposite parties to release the salary for the period from 5.4.1970 to 3.6.1971 by quashing the disciplinary proceeding (Annexure-2), the order of punishment (Annexure-10) by which one increment has been withheld with cumulative effect and the period of suspension has been treated as the duty period and also to quash the order passed by the Orissa Administrative Tribunal in O.A.No. 328 of 1990. 2. The brief facts of the case of the petitioner is that while he was discharging his duties as Junior Assistant Surgeon under the Medical Officer, Astaranga Primary Health Centre in the district of Puri, a disciplinary proceeding was initiated against him by the order of the CDMO, Puri, which ultimately culminated into an order of punishment withholding one annual increment with cumulative effect vide order dated 25.4.1977 (Annexure-10 to W.P.C No. 9858 of 2005). 3. The petitioner even knowing about this fact has filed an Original Application before the Orissa Administrative Tribunal vide O.A.No. 1343 of 1996 praying therein to regularize his pay after fixing it under the Revised Scales of Pay, which came into force in the year 1985 and 1989 and accordingly, to disburse the arrears of differential salary. 3. The petitioner even knowing about this fact has filed an Original Application before the Orissa Administrative Tribunal vide O.A.No. 1343 of 1996 praying therein to regularize his pay after fixing it under the Revised Scales of Pay, which came into force in the year 1985 and 1989 and accordingly, to disburse the arrears of differential salary. The O.A.No. 1343 of 1996 has been disposed of vide order dated 19.6.1996 whereby and whereunder the learned Tribunal has passed an order directing the authorities to send the paper book before the Secretary for fixation of his pay on the basis of Annexure-5, in the revised scales of pay as has been revised in the year 1989, which has been directed to be sanctioned within a period of three months from the date of copy of receipt of copy of the order without prejudice to his claims to allow him to cross the efficiency bar with effect from 01.01.1982, in other words, if on disposal of the appeal it is decided that he is to cross the efficiency bar w.e.f. 1.1.1982, then he shall be entitled to revised scales of pay and accordingly to disburse the differential amount to be paid in his favour. The petitioner being aggrieved with the order passed in O.A.No. 1343 of 1996 has filed O.J.C.No. 6691 of 1997. When the case has been called out on the specific query made by us regarding the result of the appeal, which is a condition precedent of crossing the efficiency bar w.e.f. 1.1.1982, no such reply has been given. 4. In W.P.(C) No. 9858 of 2005 the petitioner while challenging the order of the learned Tribunal dated 4.4.2005 passed in O.A.No. 328 of 1990 has sought to declare the departmental proceeding as non est, but the learned Tribunal while passing the order in O.A.No. 328 of 1990 dismissed the Original Application on merit as well as on the ground of limitation. 5. We after going through the records of both the writ petitions, found that the petitioner has filed O.J.C.No. 6691 of 1997 for a declaration from the court of law for getting entitlement of the revision of pay scale without crossing the efficiency bar and the same has been disposed of directing the authorities to consider the claim of the petitioner after disposal of the appeal. The admitted factual aspect of these cases is that a Departmental Proceeding was initiated against the petitioner in which the petitioner has been punished by imposing a punishment of withholding one annual increment. The said order of punishment was passed way back in the year 1977 challenged in the year 1990 before the learned Tribunal and the learned Tribunal after taking into consideration the factual aspects and the nature of allegations and also taking into consideration the fact the limited jurisdiction to exercise the power under Article 226 of the Constitution of India to assume the power of the appellate court for reversing the fact finding the order of punishment, declined to interfere with the same by dismissing the O.A.No. 328 of 1990, which has been challenged in W.P.(C) No. 9858 of 2005. 6. After going through the finding given by the learned Tribunal, we are of the view that there is no infirmity both on fact and the limitation as because the order of punishment, which was passed in the year 1977 has been assailed in the year 1990 before the learned Tribunal and also taking into consideration the fact that the Writ Court under Article 226 of the Constitution of India cannot reverse the fact finding after the charge having been proved in the Departmental Proceeding, which exactly the case herein. Accordingly, we find that the learned Tribunal has committed no error in passing the order in O.A.No. 388 of 1990. Accordingly, the writ petition bearing W.P.(C) No. 9858 of 2005 is dismissed. 7. So far as OJC No.6691 of 1997 is concerned, in view of the fact that the order of punishment dated 25.4.1977 which has been approved while passing the order in O.A., the petitioner cannot be held to be entitled for the relief sought for in this writ petition. 8. Accordingly, both the writ petitions are dismissed.