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2016 DIGILAW 491 (ORI)

Rama Chandra Sahoo v. State of Odisha

2016-07-05

D.P.CHOUDHURY, I.MAHANTY

body2016
JUDGMENT : D.P. Choudhury, J. The captioned writ petition challenges the order dated 6.3.2012 passed by the learned Orissa Administrative Tribunal, Cuttack Bench, Cuttack (hereinafter called ‘the Tribunal’) in O.A. No.1726 (C) of 2008. FACTS 2. The factual matrix leading to the case of the petitioner is that the petitioner was initially appointed as Fisheries Extension Officer (for short ‘FEO’) by the Director of Fisheries, Odisha (Opposite party No.3) on 27.2.1976 extending the benefit of Scheduled Caste. Accordingly, petitioner joined as FEO on 8.3.1976. It is stated that on 4.12.1980, 12.12.1986 and 30.8.1996 petitioner was promoted to the post of Deputy Superintendent of Fisheries, Superintendent of Fisheries and Assistant Director of Fisheries, respectively. While the petitioner was discharging the duties as an Assistant Director of Fisheries, the opposite party No.4 filed Original Application being O.A. No.1041 (C) of 2007 before the Tribunal challenging the final gradation list in the rank of the Assistant Director of Fisheries wherein the position of opposite party No.4 was at Sl. No.27 and the petitioner’s position was at Sl. No.15. In that Original Application the Tribunal vide order dated 27.4.2007 remitted the matter to Government for appropriate orders. Thereafter, no action was taken by the Government and the D.P.C. was held for filling of seven numbers of posts of District Fisheries Officers. Apprehending non-inclusion of name of opposite party No.4 in the zone of consideration, opposite party No.4 filed another Original Application No.1110 (C) of 2008 for fixation of his seniority by taking his case as the case of reserved category (Scheduled Caste). But the Tribunal again referred the matter to the Government for consideration. Thereafter the State Government rejected the claim of opposite party No.4 and order was communicated on 22.7.2008. 3. It is further stated that opposite party No.4 being aggrieved by the action of the State Government filed another Original Application vide O.A. No.1726 (C) of 2008 assailing the order of the opposite party No.3. In the said Original Application the present petitioner was impleaded as Respondent No.4. In the Original Application the Respondent No.4 has alleged that the applicant has obtained the Scheduled Caste (S.C.) category Certificate falsely and the Certificate is a fake one. In the said Original Application the present petitioner was impleaded as Respondent No.4. In the Original Application the Respondent No.4 has alleged that the applicant has obtained the Scheduled Caste (S.C.) category Certificate falsely and the Certificate is a fake one. It is also asserted by the Respondent No.4 before the Tribunal that by showing fake S.C. certificate, the applicant got appointment as FEO and accordingly his promotion as S.C. candidate is illegal and in fact Respondent No.4 should have got that post. Learned Tribunal after hearing the opposite parties directed that the Respondent No.4 is not entitled to be appointed under S.C. category candidate as he has fake S.C. Certificate and as such the Tribunal directed to revert the Respondent No.4 and the applicant should be appointed in his place and recover the amount already received under such post. But the petitioner alleged that the S.C. Certificate produced by him is genuine and he has been validly appointed. The petitioner challenged such verdict of the opposite party No.8 on various grounds. Hence, this petition. 4. Opposite party No.4 filed counter stating that petitioner belongs to caste ‘Kumbhar’ and at the time of entry into Government service he had mentioned as a candidate of S.C. category by producing the Caste Certificate issued by the District Welfare Officer, Balasore. But at the time when the petitioner entered into Government service the caste ‘Kumbhar’ was not included in the scheduled list of S.C. issued by the Hon’ble President of India. So, a Departmental Proceeding was started against the petitioner for taking benefit of S.C. candidate although it was not S.C. at the time of service but after 1992 the said caste ‘Kumbhar’ was treated as OBC/SEBC. As such, the petitioner got benefit of S.C. category and promoted up to the post of District Fisheries Officer and also since 25.7.2008 enjoying the post of District Fisheries Officer. This fact was informed to the Tribunal while the impugned proceeding in the Tribunal was pending. 5. It is further mentioned in the counter that the opposite party No.4 has challenged the promotion to the post of Odisha Fisheries Service, Class-II vide O.A. No.1041 (C) of 2007 and also challenged the Gradation list in O.A. No.1110 (C) of 2008. But orders passed in both the Original Applications have been duly considered by the opposite party No.1. 5. It is further mentioned in the counter that the opposite party No.4 has challenged the promotion to the post of Odisha Fisheries Service, Class-II vide O.A. No.1041 (C) of 2007 and also challenged the Gradation list in O.A. No.1110 (C) of 2008. But orders passed in both the Original Applications have been duly considered by the opposite party No.1. After complying the orders of the Tribunal appropriately again opposite party No.4 challenged the order of the State Government vide O.A. No.1726 (C) of 2008 wherein opposite party No.4 raised objections about the caste of present petitioner. After the order of the Tribunal, opposite party No.1 has carried out the same by taking departmental action against the petitioner by initiating disciplinary proceeding and there is nothing wrong in the action taken by the present opposite party No.1. It is, therefore, prayed to dismiss the writ application. 6. Rejoinder came to be filed by the petitioner to the counter filed by opposite party No.1. It is only added in the rejoinder that notice was not served in the impugned proceeding before the Tribunal upon the petitioner to submit defence statement. It is further stated that at the time of entry to the post of Fisheries Extension Officer the petitioner and one Ganapati Giri, both belonging to sub-caste ‘Kumbhar’ attended interview as the candidate of S.C. category and both were appointed as FEO. Shri Giri has never been questioned at any occasion whereas the petitioner has been discriminately harassed being proceeded departmentally. The State Government vide their letter No.26968/SSD dated 24.9.2012 clarified that sub-caste ‘Kumbhar’ was included in the Scheduled Caste list of Odisha in the Constitution Scheduled Caste Order, 1950 at Sl. No.49 but vide Home Department Notification dated 29.10.1956 the sub-caste ‘Kumbhar’ was replaced by caste ‘Kumari’ at Sl. No.49 although Government decided to allow the benefit admissible to them as if they were members of the SC and ST except in the matter of representation in State Legislative and Parliament particularly the educational and economic facilities. Vide letter No.20054 dated 22.6.1976 the benefit of SC category for the sub-caste ‘Kumbhar’ was withdrawn but the petitioner was appointed as FEO vide order No.5482 dated 27.2.1976. Vide letter No.20054 dated 22.6.1976 the benefit of SC category for the sub-caste ‘Kumbhar’ was withdrawn but the petitioner was appointed as FEO vide order No.5482 dated 27.2.1976. On the other hand, it is stated that at the time of entry into Government service the benefit of S.C. category was extended to the sub-caste of the petitioner for which D.W.O., Balasore has issued the Caste Certificate to petitioner in pursuance of T & RW Department letter No.26828/TRW dated 8.11.1974 and DWO was competent authority to issue such Certificate vide Department Resolution No.8481-Estt.(R), 1968 – TRW dated 4.4.1968. The petitioner was as such promoted to the post of Superintendent of Fisheries, then Assistant Director of Fisheries and then District Fisheries Officer with due consideration of his merit, suitability and with due regard to seniority. In fact the opposite party No.4 has not got any result in O.A. No.1041 (C) of 2007 and O.A. No.1110 (C) of 2008. The petitioner claims that long after his promotions, a Departmental Proceeding was drawn up against him vide Memorandum No.9942 dated 20.8.2011 arbitrarily ignoring the facts on the record and suppression of the Government Rules but the petitioner was exonerated from all the charges. In the meantime the petitioner has retired from Government service on 30.4.2012 after long of 36 years of continuous service. But unfortunately for the illegal and arbitrary order of the Tribunal the opposite party No.1 has stopped the pension, the petitioner is running from pillar to post for release of DCRG and commuted value of pension except payment of provisional pension. 7. In the rejoinder it has been stated that while the Tribunal has observed that it is inappropriate to open the settled case but surprisingly asked the opposite party No.2 to revert the petitioner and recover the dues. So, it is submitted to allow the writ petition and direct the opposite parties to release of the retiral benefits to the petitioner. SUBMISSIONS 8. Learned counsel for the petitioner submitted that the order of the Tribunal is bias, whimsical, arbitrary and illegal because without any written statement or counter or hearing made available to the petitioner, the order has been passed to revert the petitioner from the promotional post, i.e., after retirement of the petitioner. Further it is very illogical to submit that financial benefit accrued in promotional post should be recovered from the petitioner. Further it is very illogical to submit that financial benefit accrued in promotional post should be recovered from the petitioner. It is contended by the learned counsel for the petitioner that the Tribunal while holding that after long lapse of period the claim of opposite party No.4 in the Original Application is untenable but at the same time observed that petitioner has got the service by producing fake Certificate which should be cancelled. The Caste Certificate being issued by the competent authority and the cancellation of Caste Certificate is only to be determined by the Appellate Authority under Caste Rule, the order of the Tribunal is illegal by observing that such Certificate is illegal and fake one. On the other hand, the Tribunal ought to have passed order directing the concerned authority to take up the matter to cancel the Certificate if at all the Tribunal of the view that such Certificate is a fake Certificate. It is submitted by the learned counsel for the petitioner that the Caste Certificate has been issued legally by the competent authority although after 22.6.1976 such Caste Certificate was made unacceptable. 9. Learned counsel for the petitioner further submitted that the Tribunal has erred in law by violating the natural justice by not giving the petitioner opportunity of hearing while decision was taken observing that the Caste Certificate has not been issued by the competent authority and the petitioner should be reverted from the post of District Fisheries Officer under S.C. category because the petitioner has worked in such post being found suitable by the D.P.C. and the order of reversion was outside the prayer of the petitioner in the Original Application. It speaks about the travesty of justice by the Tribunal. According to him since the petitioner’s right under Articles 14, 16 and 21 of the Constitution has been violated and no natural justice has been awarded, such order is perverse and is liable to be set aside. 10. It is submitted by the learned Additional Government Advocate that the petitioner has been truly promoted up to the rank of District Fisheries Officer but due to claim by the opposite party No.4 they had to open the case although ‘Kumbhar’ sub-caste was of S.C. category but at the time of entry into service by the petitioner it was not S.C. category. State has no serious objection to the order of the Tribunal as it is the matter between the petitioner and the opposite party No.4. However, it is submitted to pass appropriate order. 11. Learned counsel for the opposite party No.4 submitted that the petitioner has got benefit of entry to service under S.C. category and subsequent promotions by fake Caste Certificate showing his caste as ‘Kumbhar’. It is also submitted that opposite party No.4 is also a S.C. category and because of the presence of the petitioner the opposite party No.4 is deprived of the benefit. She stated that the notice was issued to the petitioner but the petitioner did not appear before the Tribunal for which the order of the Tribunal cannot be said to have violated the natural justice. Once an opportunity has been awarded but not availed by the concerned party, the order concerned cannot be said to be illegal and without jurisdiction. It is also submitted that the Caste Certificate being issued by the incompetent authority should not have been looked upon at the time of entry of service by the petitioner. It is also submitted that the subject matter in O.A. No.1041 (C) of 2007 and O.A. No.1110 (C) of 2008 have also relevance because the opposite party No.4 has challenged the Gradation list wherein the name of the present petitioner also finds place. But unfortunately the Tribunal directed the opposite party Nos.1 to 4 to consider the application. It is further submitted that the Tribunal has rightly passed the order directing for reversion of the petitioner, for recovery of the salary already received and to appoint opposite party No.4 in the post of petitioner subject to D.P.C. convened. On the other hand, learned counsel for opposite party No.4 thoroughly supported the impugned judgment and prayed to dismiss the writ application. 12. The points for consideration:- (i) Whether the disciplinary proceeding against the petitioner has been started justifiably. (ii) Whether the order of the Tribunal is correct, legal and proper. DISCUSSIONS POINT NO.(i) : 13. It is not in dispute that petitioner entered in Government service as Fisheries Extension Officer showing himself as member of the Scheduled Caste category. It is admitted fact that petitioner having been appointed as FEO got promotion to the post of Deputy Superintendent of Fisheries on 4.12.1980 and further was promoted to the post of Superintendent of Fisheries on 12.12.1986. It is not in dispute that petitioner entered in Government service as Fisheries Extension Officer showing himself as member of the Scheduled Caste category. It is admitted fact that petitioner having been appointed as FEO got promotion to the post of Deputy Superintendent of Fisheries on 4.12.1980 and further was promoted to the post of Superintendent of Fisheries on 12.12.1986. It is not in dispute that on 30.8.1996 the petitioner was promoted to the post of Assistant Director of Fisheries. It is not in dispute that the petitioner’s position as Assistant Director of Fisheries was at Sl. No.15 whereas the position of opposite party No.4 was at Sl. No.27. It is admitted fact that the opposite party No.4 preferred O.A. No.1041 (C) of 2007 before the Tribunal challenging the final gradation list in the rank of Assistant Director of Fisheries and the Tribunal vide order dated 27.4.2007 remitted the matter to Government for appropriate order. It is not in dispute that the opposite party No.4 filed Original Application vide O.A. No.1110 (C) of 2008 for fixation of his seniority and again the State Government remitted the matter back to the concerned Department for consideration. The opposite party No.3 after considering the case of the opposite party No.4 rejected the claim against which the opposite party No.4 preferred the impugned proceeding again before the Tribunal. 14. It is asserted by the opposite party No.1 and the opposite party No.4 that the petitioner while entered to the Government service as Fisheries Extension Officer, he has declared him as member of the sub-caste ‘Kumbhar’ which was not in the list of Scheduled Caste under Constitution. On the other hand, the petitioner has claimed that he belongs to sub-caste ‘Kumbhar’ which was included in the Sl. No.49 of the Scheduled Caste Order, 1950 under Constitution till 1976, but subsequently the sub-caste ‘Kumbhar’ was excluded from the list of Scheduled Caste Order, 1950 and again the same was included in the Scheduled Caste category by restoring all the benefits to the members of such sub-caste. 15. Annexure-10 which is a Government decision relating to grant of special facilities to some leftout tribes and castes speaks in the following manner:- “GOVERNMENT DECISION RELATING TO GRANT OF SPECIAL FACILITIES TO SOME LEFTOUT TRIBES AND CASTES. 15. Annexure-10 which is a Government decision relating to grant of special facilities to some leftout tribes and castes speaks in the following manner:- “GOVERNMENT DECISION RELATING TO GRANT OF SPECIAL FACILITIES TO SOME LEFTOUT TRIBES AND CASTES. Letter No.7686-Law-7/57-T.R.W., dated Bhubaneswar, the 21st Mary, 1958 from Under Secretary to Government of Orissa, T.& R.W. Department to all Secretaries to Government/all Heads of Department/all District and Sessions Judges/Supdt., Government Press/District Magistrates. In continuation of this Department letter No.18411(13) T.R.W., dated the 14th December 1956 forwarding the copy of the S.C. & S.T. list (Modification) Order, 1956, I am directed to forward copies of Government of India, Ministry of Howe Affairs Letter No.73/57-S.C.T.IV, dated the 26th March, 1957 and letter No.7/3/57-S.C.T., dated the 24th March, 1958 for your information. Will appear from the revised list of S.C. & S.T. published in the above order that some of the communities who are formally included as S.C. and S.T.s under the relevant order which have since been superseded have been excluded from the revised list. A list of such excluded communities is given below:- Scheduled Castes Scheduled Tribe 1. Bhumji 2. Dharua Gorait or Korait 3. Gunju or Ganju 4. Kumbhara 5. Pradhan 6. Satnami 7. Sukuli 8. Kuli residing in districts other than Sambalpur By virtue of exclusion of the communities from the revised lists of S.C. & S.T. the persons belonging to these communities would not ordinarily have been entitled to the facilities they were enjoying before as members of S.T. and S.Ts. But in view of the difficulties of these people and the assurance given by the Government of India in Parliament the State Government have been pleased to decide that above communities who have been excluded from the list of S.C. & S.T. including the members of Kuli communities residing in areas other than the district of Sambalpur will be eligible to the benefits admissible to them as if they were members of such castes and such tribes except in the matter of special representation in the State Legislature and Parliament particularly the educational and economic facilities that they were being allowed to these excluded communities before the introduction of the above order shall continue to be given under otherwise decided. You are also requested to send your recommendation if any on Government of India letter No.7/3/57-S.C.T.IV, dated the 14th March so that the same will be forwarded for inclusion in the Bill proposed to be introduced in the Parliament”. From the aforesaid letter, it appears that ‘Kumbhar’ was basically a Scheduled Caste but was excluded from receiving benefit of Scheduled Caste in the year 1956. But in 1958 the sub-caste ‘Kumbhar’ along with some other sub-castes under the Scheduled Caste category were allowed to get the benefits as admissible to them except in the matter of special representations in the State Legislature and Parliament particularly the education and economic facilities that they were being allowed. 16. Annexure-11 speaks in the following manner:- “No.8481-Estt.(R),1968 –T.R.W. GOVERNMENT OF ORISSA TRIBAL & RURAL WELFARE DEPARTMENT RESOLUTION The 4th April, 1968 SUB: Issue of Caste Certificates to candidates belonging to Scheduled Castes and Scheduled Tribes for the purpose of appointment under Government. The question of determining the competency of authorities to issue caste Certificates to candidates belonging to Scheduled Castes and Scheduled Tribes for the purpose of public appointment was under consideration of Government for sometime past. At present there are general instructions regarding the authority who should issue Caste and Tribe Certificates for the purpose of public appointment. After careful consideration of the question, Government have been pleased to decide that District Magistrates/Sub-divisional Officers/M.L.A.s/Members of Parliament and District Welfare Officers shall be competent to issue Caste and Tribe certificate to candidates seeking employment under the State Governments and public undertakings. The sub-caste and sub-tribe to which the candidates belongs shall also be mentioned in the certificates. Certificates produced from any other authority shall not to be treated as valid. By order of Governor A. DAS Secretary to Government” From the aforesaid letter, it appears that the District Welfare Officer was also competent to issue Caste Certificate since 1968. 17. Annexure-12 also speaks in the following manner:- ”Government of Odisha Tribal & Rural Welfare Department No.RQ-21/74. 26828 (150) TRW. Dated Bhubaneswar, the 8th Nov.74 From Sri S.A. Yunus, O.A.S.(I), Deputy Secretary to Govt. To All Departments of Government/Heads of Departments/R.D.Cs/All Collectors. Sub: Special facilities to be given to some of the S.C. and S.T. excluded from the list of S.C. & S.T. order, 1956. 26828 (150) TRW. Dated Bhubaneswar, the 8th Nov.74 From Sri S.A. Yunus, O.A.S.(I), Deputy Secretary to Govt. To All Departments of Government/Heads of Departments/R.D.Cs/All Collectors. Sub: Special facilities to be given to some of the S.C. and S.T. excluded from the list of S.C. & S.T. order, 1956. Sir, I am directed to invite a reference to this Department Letter No.7686-TRW dated 21.5.58(copy enclosed) and to say that it has been brought to the notice of Government that the members of Sch. Caste and Sch. Tribe referred to in the above mentioned letter are not being extended the facilities and benefits admissible to them as members of Sch. Caste and Sch. Tribe. In this connection, I am to say that they are eligible to the benefits admissible to them as if, they are Sch. Caste and Sch. Tribe except in the matter of special representation in the State Legislative and Parliament. Particularly the educational and economic facilities should continue to be given to them unless otherwise decided. I am therefore to request you to ensure that the above mentioned Sch. Caste & Sch. Tribe are not deprived from the benefits particularly educational and economic facilities. Yours faithfully Sd/- Deputy Secretary to Government” The aforesaid letter is nothing but clarificatory in nature to Annexure-10. Annexure-13 also shows that the petitioner was issued with the Scheduled Caste Certificate by the District Welfare Officer, Balasore on 8.9.1975 stipulating condition as embodied in Annexure-12. The job of the Fisheries Extension Officer is not related to any State Legislature or Parliament for which there is no restriction for the ‘Kumbhar’ Scheduled Caste people to enter service bereft of the State Legislature and the Parliament. Admittedly, the petitioner entered into service on 8.3.1976. So, it is found that the petitioner entered to service being a candidate of Scheduled Caste category on 8.3.1976 and at that time the sub-caste ‘Kumbhar’ was entitled to all facilities as available to Scheduled Caste candidates by virtue of circular of the year 1958 and the Caste Certificate has been issued by the District Welfare Officer by virtue of the power conferred on him in 1974. It is admitted by the petitioner in the rejoinder that the special facilities available to sub-caste ‘Kumbhar’ was withdrawn only on 22.6.1976 and this fact has not been controverted by opposite parties. It is admitted by the petitioner in the rejoinder that the special facilities available to sub-caste ‘Kumbhar’ was withdrawn only on 22.6.1976 and this fact has not been controverted by opposite parties. Besides Annexure-18 submitted by the petitioner shows that a letter was addressed by the Government of Odisha in ST & SC Development Department to the Commissioner for Departmental Inquiries & Ex-officio-Addl. Secretary to Government of Odisha with regard to the disciplinary proceeding drawn up against the petitioner and the same letter is produced below: “GOVERNMENT OF ODISHA ST & SC DEVELOPMENT DEPARTMENT ***** No.26968/SSD, Dated Bhubaneswar the 24th September, 2012 PCR(C)-34/12 From Shri Sitanath Rath, OAS Special Secretary to Govt. To The Commissioner for Departmental Inquiries & Ex-officio- Addl. Secretary to Govt., Odisha, A/8, Unit-V, Bhubaneswar Sub: Regarding disciplinary proceeding drawn up against Sri Rama Chandra Sahoo, Ex-District Fisheries Officer, in CID Case No.4/12. Sir, In inviting reference to your letter No.448(e)/CDI dt.30.08.2012 on the subject noted above, I am directed to say that the Caste “Kumbhar” was included in the SC list of Odisha in the Constitution (SC) Order-1950 at Sl. No.49. But in the SC & ST (modification) Order 1956 published vide Home Deptt. Notification dt.29.10.1956 the Caste “Kumbhar” was replaced by the Caste “Kummari” as Sl. No.49. But as per Govt. decision relating to grant of special facilities to some excluded communities of Tribes & Caste vide letter No.7686/Law 7/57-TRW dt.21.05.1958 they were allowed the benefits admissible to them as if they were the members of such Caste or Tribes except in the matter of representation in the State Legislature & Parliament, particularly the education & economic facilities as they were earlier allowed before introduction of SC & ST (modification) Order 1956. This was also reiterated vide erstwhile T & RW Deptt. Letter No.26828 dt.08.11.1974. The said benefits well withdrawn vide this Deptt. Letter No.20054 dt.22.06.1976. Accordingly the DWO, Balasore had issued him Caste Certificate vide No.2762 dt.08.09.1975 in favour of Sri Rama Chandra Sahoo. Sri Sahoo had no SC status after 22.06.1976. The word “etc” mentioned in the Caste Certificate of Sri Sahoo implied special representation in the State Legislature & Parliament. The said benefits well withdrawn vide this Deptt. Letter No.20054 dt.22.06.1976. Accordingly the DWO, Balasore had issued him Caste Certificate vide No.2762 dt.08.09.1975 in favour of Sri Rama Chandra Sahoo. Sri Sahoo had no SC status after 22.06.1976. The word “etc” mentioned in the Caste Certificate of Sri Sahoo implied special representation in the State Legislature & Parliament. Yours faithfully, Sd/- Special Secretary to Govt.” The aforesaid letter also supports the submission of the petitioner to the effect that the facilities of SC/ST were made available to ‘Kumbhar’ caste till 22.6.1976 and the petitioner had status of Scheduled Caste till 22.6.1976 but not afterwards and the D.W.O. being the competent authority issued the Caste Certificate to petitioner. Thus, while the facility of Scheduled Caste category was available to the ‘Kumbhar’ sub-caste in 1976 before 22.6.1976, the petitioner got employed as FEO being the candidate under Scheduled Caste category. 18. It is contended by the learned counsel for the opposite party No.4 that the petitioner produced a false Caste Certificate issued by the District Welfare Officer, Balasore and basing on his allegation the disciplinary proceeding was started against the petitioner. It is available from the material that opposite party No.4 only entered into service in 1980 about four years after the entry of the petitioner into service. When the petitioner and the opposite party No.4 do not belong to same batch in the feeder cadre, it is surprisingly to note that the opposite party No.4 has come up and challenged the entry of the petitioner into service under the category of Scheduled Caste candidate. When the Certificate has been issued by the D.W.O. by virtue of notification of 1974, it is not conceived as to how the D.W.O. would be incompetent to issue such Certificate in 1976 while such special facility was made available to the Scheduled Caste candidates belonging to sub-caste ‘Kumbhar’. 19. It is contended by the learned Additional Government Advocate and the learned counsel for the opposite party No.4 that the departmental proceeding has been initiated against the petitioner on 20.8.2011 basing on the allegation that he has furnished false Certificate not duly issued by competent person while entered into service as per Annexure-2. It is also revealed that this disciplinary proceeding was started only after the claim is made by opposite party No.4 but not by opposite party No.1. It is also revealed that this disciplinary proceeding was started only after the claim is made by opposite party No.4 but not by opposite party No.1. It is surprised to note that long after entry of the petitioner into service under Scheduled Caste category in 1976, the Departmental Proceeding was started on 20.8.2011 only on the claim made by the opposite party No.4 who joined service four years after the petitioner. No doubt if a misconduct is detected long after during service period, there is no bar for starting disciplinary proceeding if cause of action is continuous. But the basis of such Departmental Proceeding should be from the side of the employer but not on the claim made by another employee. However, it has already been discussed above that the petitioner entered in the feeder cadre as FEO being in the category of Scheduled Caste while his sub-caste ‘Kumbhar’ was Scheduled Caste under relevant Scheduled Caste Order as per the materials discussed above. Even if disciplinary proceeding has been started, but the petitioner states that he has been exonerated of charges. As we have already observed in the aforesaid para that at the time of entry into Government service the petitioner has valid Caste Certificate showing him under Scheduled Caste category, there is no doubt over assertions of petitioner about the result of the disciplinary proceeding started against him on this issue. Point No.(i) is answered accordingly. POINT NO.(ii) 20. It appears that the petitioner has claimed that by virtue of illegal order of the Tribunal the petitioner is deprived of DCRG and all pensionary benefits. It is mainly asserted by the petitioner that he was not given chance of submitting written statement in the Tribunal and he has not been heard but on the other hand the order has been passed illegally to revert him from his promotional post and withdraw all sorts of benefits accrued to him while working in the promotional post. It is profitable to quote the relevant para of the impugned order: “9. After hearing both parties, it is apparent that the applicant has rightly not been promoted in 1986 as he was clearly ineligible not having completed the requisite five years of service in the rank of Deputy Superintendent of Fisheries by 1st Jan of the year when the D.P.C. was held. After hearing both parties, it is apparent that the applicant has rightly not been promoted in 1986 as he was clearly ineligible not having completed the requisite five years of service in the rank of Deputy Superintendent of Fisheries by 1st Jan of the year when the D.P.C. was held. The DPC held on 11.9.86 has gone beyond its power recommending ineligible candidate who had not completed the requisite period of service. Moreover, composition of the DPC is not as per Rule-19 of the Orissa Fisheries Class-II (Recruitment and Conditions of Service) Rules, 1977. However, the applicant had neither represented about this in time nor approached in this Tribunal in time. Hence as up-setting the settled seniority is likely to result in pellmell condition and as per the decision of the Hon’ble Apex Court in the case of Shiba Sankar Mohapatra Vs. State of Orissa, (2011) SCC (L&S) 229, it will be inappropriate reopen the issues after such a long period. The applicant has claimed that in view of order no.1874/FARD dt.1.2.99 ordering his adhoc promotion, his date of promotion as Assistant Director, Fisheries should be indicated as 1.2.99 instead of 2.6.99. Perusal of paragraph-6.6 of the O.A., however, indicate that the applicant has himself averred that he joined Assistant Director, Fisheries on 2.6.99. It is conceded by the authorities, (Respondents) that the applicant’s case for promotion as District Fisheries Officer was considered but others such as respondent no.4 Rama Chandra Sahoo and Pabitra Kumar Behera were promoted against the two S.C. quota posts. It is also admitted that Rama Chandra Sahoo, respondent no.4, has resorted to fraud by posing as a S.C. candidate though he is not a S.C. candidate and his Scheduled Caste certificate has not been issued by the authority competent to issue such certificate. Hence said Rama Chandra Sahoo be reverted from the promotional post of the District Fisheries Officer of the SC category after resorting to due procedure as prescribed in the case of Kumari Madhuri Patil Vrs Addl. Hence said Rama Chandra Sahoo be reverted from the promotional post of the District Fisheries Officer of the SC category after resorting to due procedure as prescribed in the case of Kumari Madhuri Patil Vrs Addl. Commissioner Tribal Development, AIR 1995 SC 94 , and promotion of the applicant as per merit-cum-suitability with due regard to seniority be reconsidered in a properly reconvened as per Rule 8 (1) of the Orissa Fisheries Service (Recruitment and Conditions of Service) Rules, 1977 and in case the applicant is deemed suitable, the applicant should be allowed notional promotion from the date of Sri Rama Chandra Sahu, Respondent no.4, was promoted. Actual financial benefits shall, however, accrue to him only on his assuming superior charge. These order be implemented within a period of three months from the date of receipt”. From the impugned order it appears that the Tribunal has observed that opposite party No.4 was not promoted rightly in 1986 and he has not also approached the Tribunal for setting right of his claim for which the settled position is not required to be reopened. At the same time, the Tribunal has observed that the present petitioner has admitted that he has resorted to fraud by posing as a Scheduled Caste candidate though he is not a Scheduled Caste candidate being not issued with proper Certificate by competent authority and he should be reverted from the post of District Fisheries Officer of Scheduled Caste category and in that post the opposite party No.4 should be promoted notionally subject to convening D.P.C. In the entire order of the Tribunal there is nothing found that notice was served on petitioner and the petitioner was awarded opportunity of filing counter. When the petitioner was not heard in the matter, it is not conceived as to how he admitted to have resorted to fraud by showing him as a Scheduled Caste candidate. It is unethical for the Tribunal to cast aspersion on the petitioner while he was not heard in the matter. The judicial propriety demands that after hearing the person concerned, the Court or Tribunal can opine against him or her. On the other hand, the observation of the Tribunal against the petitioner is absolutely violation of natural justice. Audi alteram partem is the call of the day and violation of the same curtails the right under Articles 14, 16 and 21 of the Constitution. On the other hand, the observation of the Tribunal against the petitioner is absolutely violation of natural justice. Audi alteram partem is the call of the day and violation of the same curtails the right under Articles 14, 16 and 21 of the Constitution. Moreover, opposite party No.4 could not satisfy as to how the fraud has been committed by the petitioner when at the relevant time he has produced the Scheduled Caste Certificate duly issued by the competent authority declared by the State Government. Moreover, when the Tribunal observed that the opposite party No.4 who is petitioner in impugned proceeding was not rightly promoted in 1986, it is not considered as to how he would be adjusted as District Fisheries Officer which is two ranks superior to the post where he was not suitably promoted in 1986 as per Orissa Fisheries Service (Recruitment and Conditions of Service) Rules, 1977. 21. Considering the above materials, we are of the view that the Tribunal has not analyzed the case with proper perspective and the order is palpably wrong, illegal and it does not stand to the test of validity. Point No.(ii) is answered accordingly. CONCLUSION 22. In view of the aforesaid discussion, it is found that the petitioner has entered into service under the Scheduled Caste category and he was also promoted duly to different posts and has retired as District Fisheries Officer. Moreover, the order of the Tribunal is illegal and invalid being passed violating natural justice of the petitioner. 23. It is contented by the learned counsel for the petitioner that due to the illegal order of the Tribunal the Department has continued the Departmental Proceeding and as such stopped all the pensionary benefit of the petitioner by allowing provisional pension to the petitioner. When the order of the Tribunal is wrong, illegal and improper, the question of compliance of the order of the Tribunal about reversion of the petitioner from the post of District Fisheries Officer and promotion of opposite party No.4 to the post of petitioner do not arise. 24. It is reported in State of Jammu & Kashmir v. R.K. Zalpuri & others ( 2015 (10) SCALE 575 = 2015 (9) J.T. 214 ) where Their Lordships observed as follows:- “24. 24. It is reported in State of Jammu & Kashmir v. R.K. Zalpuri & others ( 2015 (10) SCALE 575 = 2015 (9) J.T. 214 ) where Their Lordships observed as follows:- “24. At this juncture, we are obliged to state that the question of delay and laches in all kinds of cases would not curb or curtail the power of writ court to exercise the discretion. In Tukaram Kana Joshi And Ors. Vs. Maharashtra Industrial Development Corporation & Ors (2013) 1 SCC 353 ) it has been ruled that:- “Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third-party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience”. And again:- “No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non-deliberate delay. The court should not harm innocent parties if their rights have in fact emerged by delay on the part of the petitioners. (Vide Durga Prashad v. Chief Controller of Imports and Exports (1969) 1 SCC 185 ; Collector (LA) v. Katiji (1987) 2 SCC 107 ; Dehri Rohtas Light Railway Co. The court should not harm innocent parties if their rights have in fact emerged by delay on the part of the petitioners. (Vide Durga Prashad v. Chief Controller of Imports and Exports (1969) 1 SCC 185 ; Collector (LA) v. Katiji (1987) 2 SCC 107 ; Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur (1992) 2 SCC 598 ; Dayal Singh v. Union of India (2003) 2 SCC 593 and Shankara Coop. Housing Society Ltd. v. M. Prabhakar (2011) 5 SCC 607 .)” 25. Be it stated, in the said case the appellants were deprived of the legitimate dues for decades and the Maharashtra Industrial Development Corporation had handed over the possession of the property belonging to the appellant to the City Industrial Development Corporation of Maharashtra without any kind of acquisition and grant of compensation. This court granted relief reversing the decision of the High Court which had dismissed the writ petition on the ground of delay and non-availability of certain documents. Therefore, it is clear that the principle of delay and laches would not affect the grant of relief in all types of cases. 26. In the case at hand, the employee was dismissed from service in the year 1999, but he chose not to avail any departmental remedy. He woke up from his slumber to knock at the doors of the High Court after a lapse of five years. The staleness of the claim remained stale and it could not have been allowed to rise like a phoenix by the writ court. 27. The grievance agitated by the respondent did not deserve to be addressed on merits, for doctrine of delay and laches had already visited his claim like the chill of death which does not spare anyone even the one who fosters the idea and nurtures the attitude that he can sleep to avoid death and eventually proclaim “Deo gratias” –‘thanks to God’. 28. Another aspect needs to be stated. A writ court while deciding a writ petition is required to remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner. Stale claims are not to be adjudicated unless non-interference would cause grave injustice. The present case, need less to emphasise, did not justify adjudication. Another aspect needs to be stated. A writ court while deciding a writ petition is required to remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner. Stale claims are not to be adjudicated unless non-interference would cause grave injustice. The present case, need less to emphasise, did not justify adjudication. It deserved to be thrown overboard at the very threshold, for the writ petitioner had accepted the order of dismissal for half a decade and cultivated the feeling that he could freeze time and forever remain in the realm of constant present”. 25. With due respect to the aforesaid authorities, the duties are cast on writ Court as to when and how delay and laches would be considered while entertaining the writ application. It is clearly mandated that delay and laches in suitable cases should be entertained if a person sleeps to avoid death and eventually proclaim Deo gratias. At the same time, delay and laches should not also stand on the way to give substantial justice. 26. Now adverting to the present case when the petitioner entered into Government service on 8.3.1976 and has been promoted subsequently, the claim of the opposite party No.4 after long delay to opposite party No.1 alleging about false Caste Certificate used by the petitioner, the delay and laches in our opinion defeats the claim of the opposite party No.4 as he has slept over the matter for long years and the opposite party No.1 without any hesitation has promoted the petitioner from time to time by holding the D.P.C. Be that as it may, the cause of action being not continuous, in our opinion, as per the facts and circumstances of the case delay and laches is the valid ground for not entertaining the Original Application filed by the opposite party No.4 before the Tribunal on the ground of entry of petitioner into service by showing false Caste Certificate, which is of course, groundless as per the discussion made above. The Administrative Tribunal while exercising its power in service matter is essentially entertaining the application and claim therein in the manner of a writ application for which delay and laches the ground under which the writ court has its discretion to consider, same consideration should also be made by the Administrative Tribunal while exercising power under the Administrative Tribunals Act. The Administrative Tribunal while exercising its power in service matter is essentially entertaining the application and claim therein in the manner of a writ application for which delay and laches the ground under which the writ court has its discretion to consider, same consideration should also be made by the Administrative Tribunal while exercising power under the Administrative Tribunals Act. Be that as it may, the claim of the opposite party No.4 before the Tribunal is defeated also by delay and laches as same is travesty of justice and abuse of process of law. 27. Be that as it may, the order of the Tribunal being vitiated by natural justice, the fundamental right of the petitioner under Articles 14, 16 and 21 of the Constitution has been seriously aborted by the opposite parties. So, we have no hesitation to set aside the impugned order of the Tribunal and we do so. We further direct that the petitioner be given all consequential retiral service benefits as he has already retired from service in the meantime as District Fisheries Officer. The writ petition is accordingly disposed of. I. Mahanty, J. : I agree