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2017 DIGILAW 871 (ORI)

Subash Chandra Panda v. State of Orissa

2017-08-11

B.R.SARANGI

body2017
JUDGMENT : B.R. Sarangi, J. The petitioner, who is an employee of Orissa State Police Housing Welfare Corporation Limited (hereinafter referred to as ‘Corporation’), files this application seeking direction to opposite party no.2 to pay the 50% balance back wages for the suspension period w.e.f. 02.09.2010 to 30.06.2011 and full salary for the period from 14.12.2012 to 14.01.2013 within a stipulated time, and further to allow him to work as Deputy Manager (Civil) as per the judgment dated 13.12.2012 passed by a Division Bench of this Court in W.P.(C) No. 24213 of 2011. 2. The factual matrix of the case, in hand, is that the petitioner was initially appointed as a Junior Engineer (Civil) by the Managing Director of the Corporation pursuant to order dated 23.01.1989 on ad hoc basis for a period of 44 days only on a consolidated pay of Rs.900/-with site allowance of Rs.150/-per month. His services were regularized w.e.f. 23.09.1991 and he was posted as an Asst. Project Manager (Civil). Being aggrieved by the action of the Corporation in not considering the case of the petitioner for promotion to the post of Deputy Project Manager, he had approached this Court in W.P.(C) No.10388 of 2007 challenging promotion of two persons from the post of Asst. Project Manager (Civil) to the post of Deputy Project Manager on the ground that those two persons had only about six months of regular service, whereas the petitioner had more than 2 ½ years of regular service and, therefore, the promotion of those persons were made arbitrarily and had been done with extraneous consideration. 2.1. Due to publication of some news items both in Odia and English with regard to corruption and misappropriation of funds against the authorities of the Corporation, may be at the instance of the petitioner, a charge sheet was issued on 01.12.2010 calling upon him to file explanation vide letter dated 14.12.2010. Prior to issuance of charge sheet, the petitioner was placed under suspension vide order dated 02.09.2010 while working as Deputy Manager in Solara in the district of Jajpur and a Departmental Proceeding bearing No.2 of 2010 was initiated against him. During the suspension period, his headquarters was fixed at Rayagada, which is about 400 Kms. away from his place of working. As such, the petitioner was entitled to get subsistence allowance during his suspension period. During the suspension period, his headquarters was fixed at Rayagada, which is about 400 Kms. away from his place of working. As such, the petitioner was entitled to get subsistence allowance during his suspension period. As the said benefit was not extended, he had approached this Court in W.P.(C) No.15285 of 2010, which was disposed of directing the Corporation to fix the headquarters of the petitioner at either Cuttack or Bhubaneswar Head Office of the Corporation and release the subsistence allowance as due and admissible to him. 2.2. In the Departmental Proceeding No. 2 of 2010, the Chairman-cum-Managing Director of the Corporation passed an order on 23.04.2011 that it is proposed to remove the petitioner from employment and treat the period of suspension as such in calculation of financial dues and directed the petitioner to show-cause before 10.05.2011. Pursuant thereto, the petitioner filed his show cause reply to the proposed punishment on 31.05.2011. Before that, though the petitioner vide letter dated 07.03.2011 requested the Corporation to change the Enquiry Officer as he was not expecting a fair enquiry from the said Enquiry Officer, the same was rejected vide order dated 14.03.2011. The Enquiry Officer after examination of the evidence on record and written statement of witnesses came to the conclusion that the charge of gross misconduct, dereliction of duty and disobedience of orders against the petitioner in Departmental Proceeding No.2 of 2010 have been proved and submitted the report to the Disciplinary Authority for necessary action. The Chairman-cum-Managing Director of the Corporation after examination of the show cause submitted by the petitioner and other connected records, passed an order on 30.06.2011 removing the petitioner from service and also held that the period of suspension from 02.09.2010 to 30.06.2011 is to be treated as such. 2.3. The order dated 30.06.2011 removing the petitioner from service was challenged in W.P.(C) No. 24213 of 2011 on the ground that the same was highly illegal, arbitrary, prejudged, without having competency to do the same and also in gross violation of the principles of natural justice as well as tainted with mala fide, legal malice and also violation of both the Service Rules and the provisions prescribed under Article 311 of the Constitution of India. After due adjudication, the Division Bench of this Court by judgment dated 13.12.2012, having regard to the nature of charges and the explanation offered by the petitioner, wherein it is stated that the Disciplinary Proceeding was initiated as a measure of counter blast and as the punishment imposed on the petitioner is shockingly disproportionate, held that the punishment imposed against the petitioner should be modified to that of stoppage of two annual increments with cumulative effect. By holding so, the Division Bench of this Court quashed the order of punishment of removal from service passed against the petitioner by the Corporation on 30.06.2011 and imposed the punishment of stoppage of two annual increments of the petitioner with cumulative effect and further directed the Corporation to reinstate him in the post of Deputy Manager and release 50 % of his back salary from 30.06.2011 till 13.12.2012, i.e., the date of order of dismissal from service till the date of passing of the judgment, within a period of four weeks from the date of production of a certified copy of that judgment. 2.4. The petitioner, having obtained a certified copy of the aforesaid judgment, submitted a representation on 21.12.2012 to the Corporation to reinstate him in the post of Deputy Manager. On receipt of the same, the Corporation sought for legal opinion vide letter dated 22.12.2012 to the extent; that the order is silent on how to treat the period of suspension in view of the reduced penalty while in Para 9 (Page-15) of the judgment the Court has observed that removal from service and ‘treating the period of suspension as such’ amounts to double punishment; that as the Court has reduced the quantum of punishment in its order dated 13.12.2012, it has accepted the charges being proved; and that in such instances the period of suspension is treated as such. In response to the same, it was opined that if the matter is carried to the Supreme Court, then the period of suspension cannot be touched one way or the other since everything will depend on the final outcome of the SLP. But if the judgment is to be accepted by the Corporation as such, then in view of the observations of the Court at Para-9 (Page-15), the period of suspension is to be regularized. But if the judgment is to be accepted by the Corporation as such, then in view of the observations of the Court at Para-9 (Page-15), the period of suspension is to be regularized. On receipt of the legal opinion, the Corporation reinstated the petitioner vide office order dated 14.01.2013, pursuant to which he submitted his joining report on 15.01.2013. Even though the Corporation has reinstated the petitioner in service, but has not paid his 50% balance back wages for the suspension period from 02.09.2010 to 30.06.2011 and full salary for the period from 14.12.2012 to 14.01.2013, i.e., the period from the date of passing of the judgment to the date of reinstatement in service, because this Court directed to pay 50% of his back salary from 30.06.2011 till 13.12.2012, i.e. the date of order of dismissal from service till the date of judgment. 3. Mr. S.N. Biswal, learned counsel for the petitioner states that the Corporation having not been registered under the Companies Act, 1956, is regulated by its own byelaws. Under subclause (c) (iii) of Clause-9 of the Byelaws, suspension has not been indicated as measure of punishment. As such, during the suspension period from 02.09.2010 to 30.06.2011 the petitioner having paid his subsistence allowance @ 50% of his salary, in view of the observation made by this Court in paragraph 9 of judgment dated 13.12.2012 passed in WP(C) No. 24213 of 2011; that treating the period of suspension as such, being considered as punishment in addition to the order of removal from service, which amounts to double punishment, is not permissible in service rules; the petitioner is entitled to get the balance 50% of the salary for the period from 02.09.2010 to 30.06.2011 during which he was placed under suspension. He is also entitled to get 50% of back salary from 30.06.2011, the date of dismissal from service, till 13.12.2012, the date of delivery of judgment, as directed by this Court in the judgment referred to above. But after 13.12.2012, the date of delivery of the judgment, i.e., 14.12.2012 till the actual reinstatement in service, i.e. 14.01.2013 no salary having been paid to the petitioner, he claims full salary for the said period. 4. Mr. But after 13.12.2012, the date of delivery of the judgment, i.e., 14.12.2012 till the actual reinstatement in service, i.e. 14.01.2013 no salary having been paid to the petitioner, he claims full salary for the said period. 4. Mr. G.P. Dutta, learned counsel appearing for the Corporation, referring to the averments made in paragraph 18 of the counter affidavit, states that this Court by judgment dated 13.12.2012 has specifically directed the Corporation to allow the petitioner only 50% of salary for the period from 30.06.2011 to 13.12.2012, i.e., from the date of order of punishment of removal from service till the date of delivery of judgment. When the order of removal from service was quashed, he could have been considered for full salary for the said period, but this Court directed for payment of 50% of salary. Therefore, the claim of the petitioner for payment of full salary from 02.09.2010 to 30.06.2011 is unwarranted. As per the direction of this Court, within a period from four weeks the petitioner was reinstated w.e.f. 14.01.2013 and he also submitted his joining report on 15.01.2013, which was accepted by the Corporation. Accordingly, his full salary was paid to him w.e.f. 15.01.2013 and 50% of salary for the period from 30.06.2011 to 13.12.2012 was also disbursed to him. Therefore, the claim for grant of any other financial benefit does not arise. 5. Having heard learned counsel for the parties and after perusing the records, since pleadings between the parties have been exchanged, with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 6. The questions centers around the fact are that: (i) After the judgment was delivered on 13.12.2012 in W.P.(C) No. 24213 of 2011, what would be its consequential effect so far as treating the period of suspension from 02.09.2010 to 30.06.2011; (ii) Whether the petitioner is entitled to get full salary for the period from 14.12.2012 to 14.01.2013; and (iii) Whether the petitioner can be allowed to work as Deputy Manager of the Corporation. 7. The factual matrix, as delineated above, is undisputed. While dealing with the punishment of removal from service followed by a disciplinary proceeding, this Court by judgment dated 13.12.2012 in paragraphs 9 and 10 held as follows: “9. 7. The factual matrix, as delineated above, is undisputed. While dealing with the punishment of removal from service followed by a disciplinary proceeding, this Court by judgment dated 13.12.2012 in paragraphs 9 and 10 held as follows: “9. ………This Court in exercise of its judicial review power feels that it is a fit case where the punishment of removal from service imposed on the petitioner under Annexure-1 is liable to be quashed as the same suffers from doctrine of proportionality, based on perverse enquiry report, without following the procedure and law laid down by the Supreme Court in catena of cases particularly not taking into consideration the past service record and made the petitioner to suffer mental agony from the date of passing of the order of his removal till today as it has not been proved that the petitioner was gainfully employed during the said period. This Court is also of the view that the order of removal of the petitioner from service is disproportionate to his misconduct and contrary to law and as the petitioner remained unemployed from the date of his removal from service, he is entitled to 50 % of his salary from the said date till today. Further the impugned order of removal is also bad in law on the ground that pending disposal of Disciplinary Proceeding the petitioner was kept under suspension and pursuant to the order passed by this Court, the subsistence allowance was paid to the petitioner as provided under Service Rules. After completion of the enquiry, accepting the enquiry report, the punishment of removal from service was imposed on the petitioner treating the period of suspension as such is also a punishment in addition to the order of removal from service, which amounts to double punishment and not permissible under Service Rules. xxxx If the enquiry report is liable to be quashed then the matter is required to be remanded to the Disciplinary Authority for conducting the enquiry de novo. But having regard to the nature of charges and the explanation offered by the petitioner wherein it is stated that the Disciplinary Proceeding was initiated as a measure of counter blast and as the punishment imposed on the petitioner is shockingly disproportionate, this Court is of the view that the punishment imposed against the petitioner should be modified to that of stoppage of two annual increments with cumulative effect. 10. 10. After hearing learned counsel for the parties, going through the materials available on record and following the principles laid down by the Supreme Court in the cases (supra), this Court, while quashing the impugned order of removal from service passed against the petitioner by opposite party no.2 on 30.6.2011 under Annexure-1 imposes the punishment of stoppage of two annual increments of the petitioner with cumulative effect and directs the said opposite party to reinstate the petitioner in the post of Dy. Manager, OPHWC, Cuttack and release 50 % of his back salary from 30.6.2011 i.e. the date of order of dismissal from service till today within a period of four weeks from the date of production of a certified copy of this judgment. The Writ Petition is accordingly allowed. Issue Rule.” Sub-clause (c) of Clause-9 of the Byelaws of the Corporation, which deals with punishment, reads as follows: “9(c) PUNISHMENT:- (i) The appointing authority is competent to dismiss/remove/discharge any subordinate. (ii) A temporary sub-ordinate or sub-ordinate officers who has not been declared permanent or who has served the Corporation for less than 3 years can be discharged by the appointing authority without showing any reason. (iii) The following punishments can be awarded by the competent officers explained below: (a) Dismissal, removal (b) Censure in the service book. (c) Warning in the service Book. (d) Forfeiture of increment. (e) Reduction in rank. (f) Monetary Penalty. (g) Recovery for loss, dues damage caused to the government properties.” 8. So far as question no. (i) is concerned, as would be evident from the above quoted observations, this Court in the judgment dated 13.12.2012 passed in W.P.(C) No. 24213 of 2011 came to a definite finding that imposition of punishment of removal from service on the petitioner treating the period of suspension as such, which was also punishment in addition to order of removal from service, would amount to double punishment and was not permissible in service rules. In sub-clause (c)(iii) of Clause-9 of the Byelaws of the Corporation, as extracted above, suspension has not been defined as punishment, which can be awarded by the competent officers. In sub-clause (c)(iii) of Clause-9 of the Byelaws of the Corporation, as extracted above, suspension has not been defined as punishment, which can be awarded by the competent officers. If the suspension has not been defined as punishment and during suspension period, i.e. from 02.09.2010 to 30.06.2011 the petitioner, having been paid the subsistence allowance of 50% of his salary, is entitled to get the balance 50% salary, otherwise it would be contrary to the finding of this Court and also contrary to Byelaws regulating the service conditions of the employees. Once this Court has modified the order of punishment of removal from service to that of stoppage of two annual increments with cumulative effect and considered that the period of suspension would amount to double punishment, which is not permissible under law, in that case, the petitioner is entitled to get the salary which has not been paid during the suspension period from 02.09.2010 to 30.06.2011. Admittedly, for the aforesaid period the petitioner, having been paid the subsistence allowance of 50%, is entitled to get balance 50% of his salary as has been claimed in the writ petition. In view of this, question no.(i) is answered accordingly. 9. So far as question no.(ii) is concerned, this Court by judgment dated 13.12.2012 passed in WP(C) No. 24213 of 2011 in paragraph-10, as mentioned above, has specifically directed the Corporation to release to the petitioner 50% of his back salary from 30.06.2011 till 13.12.2012, i.e., from the date of dismissal from service till the date of delivery of judgment. In compliance of the said judgment, 50% back salary for the period from 30.06.2011 till 13.12.2012 has already been paid. But for the period from 14.12.2012 (the next day of the judgment) to 14.01.2013 (the day of reinstatement in service), the petitioner has not been paid his salary. Since the petitioner has been reinstated in service by virtue of the judgment of this Court quashing the order of punishment of removal from service, the petitioner is entitled to get salary for the period from 14.12.2012 to 14.01.2013. Accordingly, question no.(ii) is answered. 10. Since the petitioner has been reinstated in service by virtue of the judgment of this Court quashing the order of punishment of removal from service, the petitioner is entitled to get salary for the period from 14.12.2012 to 14.01.2013. Accordingly, question no.(ii) is answered. 10. Coming to question no.(iii), with regard to reinstatement of the petitioner as Deputy Manager of the Corporation, there is no dispute on that because in the operative portion of the judgment dated 13.12.2012 in paragraph-10 this Court categorically directed the Corporation to reinstate the petitioner in the post of Deputy Manager. If for any reason that part of the order has not been complied with, remedy lies with the petitioner how to implement the same, instead of asking for such relief in the present writ petition, which is not permissible. 11. In view of the aforesaid facts and circumstances, the writ petition is allowed to the extent indicated above. No order as to cost.