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2017 DIGILAW 343 (ORI)

Bimal Krushna Tripathy v. State of Odisha

2017-03-29

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT S.N. PRASAD, J. - This writ petition has been filed to quash the order dtd. 16.09.2015 passed in O.A. No. 1032 of 2014 under Annexure-6, order dtd. 13.10.2015 passed in R.P. No. 74 of 2015 under Annexure-8 and order dtd. 31.1.2017 passed in R.P. No. 85 of 2015 under Annexure-9. 2. The brief fact of the case of the petitioner is that while he was continuing as a Jr. Stenographer in the office of Collector, Nabarangpur was placed under suspension vide order dtd. 24.2.1997 on the ground that a disciplinary proceeding is being contemplated and subsequently reinstated in service on 29.08.1998. There was allegation that the petitioner fraudulently registered his name in the employment exchange, Nabarangpur though he is a man of Ganjam district. On that allegation G.R. Case bearing No. 395 of 1996 was registered against the petitioner. Simultaneously a disciplinary proceeding bearing No. 1624 dtd. 05.03.1997 was also initiated. In the G.R. case, vide order dtd. 20.11.2006, the petitioner was acquitted of all the charges. However, in the departmental proceeding, the disciplinary authority imposed punishment of censure, suspension period be treated as such and withholding of annual periodical increment falling due within the period of suspension till issue of final order with cumulative effect. The petitioner preferred appeal before the appellate authority which was rejected. Against the said order the petitioner preferred O.A. No. 1340 of 2011 before the Tribunal and the Tribunal quashed the order of punishment and further ordered that “respondents are at liberty to resume enquiry from the initial stage and complete the same within a period of one year from the date of receipt of these orders. No enquiry shall be conducted after one year from such date and the disciplinary proceeding shall be deemed to be quashed after one year from such date of receipt of these orders. In case such disciplinary enquiry is not completed in all respect, i.e. till the issue of the punishment orders”. However, the respondents did not complete the departmental proceeding within one year. In the meantime one Rosanara Begum, who is junior to the petitioner in the gradation list in the cadre of Jr. Stenographer, has been promoted to the post of Senior Stenographer but in view of departmental proceeding, the recommendation of the D.P.C. in respect of the petitioner was kept in sealed cover. 3. In the meantime one Rosanara Begum, who is junior to the petitioner in the gradation list in the cadre of Jr. Stenographer, has been promoted to the post of Senior Stenographer but in view of departmental proceeding, the recommendation of the D.P.C. in respect of the petitioner was kept in sealed cover. 3. Challenging the action of the respondents, the petitioner again approached the Tribunal in O.A. No. 1032 of 2014 on the ground that since the departmental proceeding is deemed to have been quashed as not completed by 31.01.2014, the sealed cover be opened and the respondents should act on the recommendation of the D.P.C. and he should be promoted from the date his junior, Rosanara Begum was promoted with all consequential benefits and the period of suspension be treated as duty and his salary should be paid along with annual increment. 4. The Tribunal, after considering the submissions made by the parties before it, directed respondent No. 3 –Collector, Nabarangpur (O.P. No. 3 herein) to open the sealed cover containing the recommendation of the D.P.C., which was convened during the promotion of Rosanara Begum, Junior to the petitioner and in case the recommendation of the D.P.C. goes in favour of the petitioner, then she be promoted to the post of Senior Stenographer from the date when his junior Rosanara Bengum was promoted. However, the Tribunal has observed that as the departmental proceeding has been deemed to have been quashed on technical ground, the petitioner has been deprived of getting financial benefits from the date his junior was promoted till the actual joining of the petitioner in the post of Senior Stenographer, but his pay was directed to be notionally fixed from the date his junior was promoted. Besides this the learned Tribunal has also observed that the period of suspension be treated as duty and the salary minus the subsistence allowance be released in favour of the petitioner and the annual increment due in that period was also allowed. Besides this the learned Tribunal has also observed that the period of suspension be treated as duty and the salary minus the subsistence allowance be released in favour of the petitioner and the annual increment due in that period was also allowed. The Tribunal has further clarified his order that in case the junior to the petitioner has promoted to the post of Personal Assistant, then the petitioner be immediately kept below him/her as because for the post of Personal Assistant one has to render actual qualifying service of Senior Stenographer for some years, but the petitioner has been directed to be given notional promotion form the date his junior was promoted. Challenging the clarificatory part of the order, the petitioner has filed review petition, but the same has also been dismissed. 5. We, after hearing the parties at length and after perusal of the order impugned, have found that the issue fell for consideration before the Tribunal was with respect to opening of the sealed cover after conclusion of the departmental proceeding, but the Tribunal exceeding the prayer, has made an observation with respect to the subsequent promotion as Personal Assistant which is now sought to be quashed by the petitioner on the ground that the same will unnecessarily prejudice his case at the time of consideration of his future promotion. 6. Learned counsel appearing for opposite party –State has fairly submitted that part of the order is not on the basis of the issue raised by the parties before the Tribunal. He further submits that the said order be quashed since the Government is competent enough to consider the case of one or the other employee in pursuance to the rule applicable to them. 7. Taking into consideration of the parties and also considering the fact that the Tribunal has exceeded its jurisidciton by entertaining what has not been prayed by the applicant in the original application, we, in exercise of power conferred under Article 226 and 227 of the Constitution of India, quash the order to the extent as being reflected at paragraph 7 of the impugned order. It goes without saying that the Government is to take decision in case of future promotion in accordance with law. With these observations the writ petition stands disposed of. Petition disposed of.