Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 1251 (ORI)

Bijay Kumar Sahoo v. State of Orissa

2016-12-20

SANJU PANDA, SUJIT NARAYAN PRASAD

body2016
S.N. Prasad, J. The order passed by the Orissa Administrative Tribunal, Bhubaneswar dated 01.07.2016 passed in O.A. No. 990 of 2013 is under challenge whereby and whereunder the Tribunal instead of passing an order for revocation of order of suspension, has directed the Disciplinary Authority to conclude the departmental proceeding within a period of 8 months failing which the applicant be reinstated in service by revocation of the suspension order. 2. The facts leading to this case is that the applicant while working as Mining Officer, Joda under the Office of Deputy Director of Mines, Joda was placed under suspension vide Office Order No. 6626 dated 16.10.2009 in exercise of power conferred under Rule 12 (2) of Orissa Civil Services (Classification, Control and Appeal) Rules 1962, hereinafter referred as the Rules 1962, with effect from 23.09.2009 on the ground that he was arrested on 23.09.2009 in connection with Balasore Vigilance P.S. Case No. 43 dated 23.09.2009 registered under Section 13(2) read with Section 13(1) (d) of Prevention of Corruption Act, 1988 read with Section 120-B of Indian Penal Code for an allegation that the applicant as Mining Officer facilitated illegal mining theft and transportation of iron ore from Kasibeda mines in the district of Mayurbhanj. The applicant thereafter was released on bail in the vigilance case. The authority has initiated a departmental proceeding even though there is a specific circular of the government to complete the departmental proceeding within six months but departmental proceeding has not been concluded and pending sing long. The authorities on the one hand is not concluding the departmental proceeding while on the other hand keeping the applicant under suspension while the suspension should not ordinarily extend beyond the period of six months from the date of framing of charges. The authorities on the one hand is not concluding the departmental proceeding while on the other hand keeping the applicant under suspension while the suspension should not ordinarily extend beyond the period of six months from the date of framing of charges. The memorandum of charge has also been served upon the applicant on 17.12.2012 but there is no progress in the inquiry, the applicant having no option had approached to the Orissa Administrative Tribunal vide O.A. No. 853 of 2012 which was disposed of by the Tribunal on 23.07.2012 with a direction to the authorities either to frame charges against the applicant or to reinstate him in service within a period of three months from the date of receipt of the order, against this order Writ Petition was filed bearing W.P.(C) No. 16362 of 2012 before this Court wherein this Court has passed an order leaving open for the opposite party to consider the case of the petitioner for his instatement by revoking order of suspension. But even then the suspension was not revoked, the applicant again had approached to the Tribunal vide O.A. No. 1903 of 2012 and the Tribunal has reiterated the order which has been passed by this Court in W.P(C) No. 16362 of 2012. It is the case of the applicant that even after lapse of sufficient period the departmental proceeding is not in progress and for no fault of his own he is under suspension while on the other hand, the employees who has put under suspension along with him i.e., the Deputy Director and Mining Inspector who are also party to the criminal proceeding in pursuance to the FIR by which the petitioner has been implicated but their order of suspension has been revoked and the final order of punishment has also been passed but in the case of the application no such endeavour is being made by the authorities, having no option the applicant has again approached to the Tribunal vide O.A. No. 990 of 2013 raising therein ground for discriminating him in not revoking the order of suspension while it has been revoked with respect to other co-accused person who have been implicated in the same F.I.R. in which the applicant is an accused. The learned Tribunal has passed an order with a direction upon the authorities to conclude the departmental proceeding within a period of eight months in case of non-conclusion, the applicant would be reinstated in service by revocation of the suspension order. 3. The applicant being aggrieved with the order of the Tribunal has filed this writ petition on the ground that before the Tribunal the specific ground has been made for revocation of order of suspension by making reference of the cases of other co-accused persons namely Sri Lal Mohan Soren who at that time of institution of F.I.R. was posted as Deputy Director, Mines, Baripada and one Sri P.C. Sahu, who was posted during the relevant time as Senior Inspector, Mines, Badampahar who have also been taken into custody in connection with the Balasore Vigilance P.S. case no. 43 dated 23.3.2009 but whose suspension order has been revoked but without taking into consideration this aspect, the Tribunal has passed an order directing the authorities to conclude the departmental proceeding within period of 8 months failure in doing so, the applicant would be reinstated in service after revocation of the order of suspension. According to the applicant there cannot be unreasonable classification even in the matter of departmental proceeding or revocation of order of suspension, while fortifying this argument it has been submitted by the learned counsel representing the petitioner-applicant that when the co-employees have been implicated in the similar case and a departmental proceeding had also been initiated against them but their order of suspension has been revoked and they have been reinstated in service in course of pendency of the departmental proceeding, then he is also entitled to be given the same treatment. 4. While on the other hand the learned counsel representing the opposite party-State has vehemently opposed the prayer advanced on behalf of the petitioner by submitting that the petitioner was suspended on the ground of his implication in a criminal case and subsequently a departmental proceeding had also been initiated, since this order of suspension is in contemplation of departmental proceeding and as such there is no unjustification on the part of the State authorities in keeping the petitioner under suspension awaiting for the final order of departmental proceeding. He further submits that the case of Sri Lal Mohan Soren, the Deputy Director, Mines and Sri P.C. Sahu, Senior Inspector, Mines has been taken up by the authority separately, it is for the reason that in their cases the departmental proceeding was at the verge of conclusion, the inquiry had been concluded, they had been issued second show cause, taking into consideration this factual aspect the Government has taken decision to revoke their suspension while in the case of the petitioner the inquiry is going on and as such it is not fit time to revoke the suspension of the applicant, more over the authorities have been directed in the light of the order passed by the Tribunal to conclude the departmental proceeding within the stipulated time and as such it has been prayed that this writ petition needs no interference. We have heard learned counsel for the parties and perused the documents available on record. 5. There is no dispute about the fact that the authorities have been conferred with the power to put government employee under suspension under the provision of sub-rule 2 of Rule 12 of the O.C.S. Rules 1962. It is also not in dispute that the order of suspension can be passed on the ground of pendency of a criminal case or departmental proceeding. Simultaneously, it is also relevant to conclude the departmental proceeding at an early date and for that reason the Government has issued circular time to time for speedy disposal of the departmental proceeding. 6. From the record, we have gathered that the applicant was put under suspension after being arrested in a criminal case being Balasore Vigilance P.S. Case No. 43 dated 23.09.2009 registered under Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 and as such he was placed under suspension vide order dated 16.10.2009 in exercise of power conferred by sub-rule (2) of Rule 12 of O.C.S. Rules, 1962. 7. The applicant was taken into judicial custody, subsequently he was enlarged on bail. The authorities have also decided to initiate a departmental proceeding and accordingly a departmental proceeding was initiated under the provision of Rule 15 of Orissa Civil Services (Classification, Control and Appeal) Rules, 1962, the Enquiry Officer has been appointed and the enquiry is going on. 8. 7. The applicant was taken into judicial custody, subsequently he was enlarged on bail. The authorities have also decided to initiate a departmental proceeding and accordingly a departmental proceeding was initiated under the provision of Rule 15 of Orissa Civil Services (Classification, Control and Appeal) Rules, 1962, the Enquiry Officer has been appointed and the enquiry is going on. 8. We further found from the record that along with the applicant other Officers namely Lal Mohan Soren, who during the relevant time was holding the post of Deputy Director (Mines) and one Shri P.C. Sahoo who was holding the post of Senior Inspector (Mines) during the relevant time had also been implicated in the said criminal case for the same charges and against whom also departmental proceeding had been initiated under the provision of Rule 15 of Orissa Civil Services (Classification, Control and Appeal) Rules, 1962. 9. The applicant was under suspension but when there was no progress in the departmental enquiry, he had approached the court of law for early conclusion of the departmental proceeding or in alternative to revoke the order suspension and the Tribunal although has directed to conclude the departmental proceeding and this High Court also left open upon the State authorities to exercise its discretion in revoking the order of suspension of the applicant but the order of suspension has not been revoked. In the meanwhile, the Dy. Director namely Shri Lal Mohan Soren had approached to the court of law by preferring original application before Orissa Administrative Tribunal wherein the direction has been passed by the Tribunal to conclude the departmental proceeding within a period of two months, failure in conclusion, the applicant would be reinstated in service, during pendency of the departmental proceeding Shri Lal Mohan Soren has been reinstated in service although subsequently he has been inflicted with the major punishment of withholding five annual increment with cumulative effect and the period of suspension to be treated as such. 10. So far as the case of Shri P.C. Sahoo is concerned, his suspension had also been revoked during pendency of the departmental proceeding, although the punishment has been inflicted upon him. 11. The applicant after knowing the fact that the suspension of Mr. Soren, Dy. 10. So far as the case of Shri P.C. Sahoo is concerned, his suspension had also been revoked during pendency of the departmental proceeding, although the punishment has been inflicted upon him. 11. The applicant after knowing the fact that the suspension of Mr. Soren, Dy. Director (Mines) and Shri P.C. Sahoo, Senior Inspector (Mines), whose order of suspension has been revoked, he had approached again to the Tribunal by way of an Original Application being O.A. No.990 of 2013, which is the subject matter of instant writ petition, and the Tribunal has passed an order directing the Disciplinary Authority to conclude the departmental proceeding within period of eight months, failing which the order of suspension would be revoked and the applicant would be reinstated in service, the applicant being aggrieved with the said order is before this Court in this writ petition on the ground that the applicant has been treated differently for the reason that when other employees have been implicated in criminal cases subjected to departmental proceeding whose suspension have been revoked and they had been reinstated in service, hence not revoking the order of suspension is absolutely unjustified decision of the State authorities and when this fact has been brought to the notice of the Tribunal instead of directing for reinstatement of the applicant in service by passing an order for revocation of order of suspension the order has been passed for conclusion of the departmental proceeding within the period of eight months failing which the order of suspension would stand automatically revoked and the applicant would be reinstated in service. 12. There is no dispute about the fact that the suspension is not a punishment and it also not creates stigma but simultaneously it is also to be seen by the Disciplinary Authority that the employee should not continue on suspension for a prolonged period that too in a situation like that of this case when the other co-employees have been reinstated as per revocation of order of suspension but not revoking suspension of the applicant will be said to be an unreasonable classification. It is also not in dispute that revocation of order of suspension upon the decision of the Disciplinary Authority but the said decision is to be applied with due application of mind with all rationality and propriety. 13. It is also not in dispute that revocation of order of suspension upon the decision of the Disciplinary Authority but the said decision is to be applied with due application of mind with all rationality and propriety. 13. We have gathered from the record of the case that apart from the applicant other employees who are holding the higher post i.e., the post of Deputy Director (Mines), whose order of suspension has been revoked in course of pendency of the departmental and judicial proceeding like that of in the case of Shri P.C. Sahoo also but in the case of the applicant, the said decision has not been taken when the departmental proceeding is going on since 2009. We have further gathered from the counter affidavit filed on behalf of the State that the stage of the departmental proceeding is in the enquiry stage. It is very surprising that the departmental proceeding initiated way back in the year 2012 i.e., on 17.12.2012 memo of charge has been served and the petitioner is under suspension w.e.f. 16.10.2009 but even after lapse of substantial period it is in the enquiry stage and the applicant is under suspension and getting his subsistence allowance while on the other hand the other co-delinquent employee who had been implicated in the criminal cases along with the applicant, had been proceeded departmentally along with the applicant had been reinstated after revocation of order of suspension and subsequently the departmental proceeding has been concluded culminating into the order of punishment. 14. The Tribunal after taking into consideration all these aspects of the matter has directed to conclude the departmental proceeding within a period of eight months and the said order has also been communicated before the concerned authority and in terms thereof an office order has been passed on 5.8.2016 directing to conclude the departmental proceeding expeditiously preferably within a period eight months, but while directing so, the Tribunal has not taken into consideration the fact that the petitioner has been discriminated and the principle of parity has not been followed while the case of the petitioner as well as others stands on similar footing, as such the petitioner should not have been differently treated. 15. 15. We after taking into consideration the fact that even in the departmental proceeding the principle of parity is to be maintained that too in the facts of this case when other co-employees have been implicated both in the judicial and departmental proceeding and their suspension has been revoked in course of pendency of the departmental proceeding then denying this benefit to the petitioner will be said to be unreasonable and a decision of the State authorities without any application of mind but the tribunal has not taken into consideration this aspect of the matter and as such we are of the considered view that the applicant of the writ petition is also entitled for a direction for revocation of his suspension order. 16. Accordingly, we direct the authority to take decision for revocation of suspension of the petitioner in the light of observation and discussion made above within two weeks from the date of receipt of copy of this order. 17. We are also conscious of the fact that the departmental proceeding is continuing since long and as such the State authorities is directed to conclude the departmental proceeding as per the time framed by the Tribunal simultaneously the applicant is directed to co-operate with the departmental proceeding, in case of non-cooperation, it is open for the Disciplinary Authority to proceed in accordance with the law. With this observation and direction, the writ petition stands disposed of.