Page 1 of 1 IN THE HIGH COURT OF ORISSA AT CUTTACK WPC (OAC) No. 3917 of 2010 Bairagi Charan Mallick …. Petitioner Mr. N. Biswal, Advocate -Versus - State of Orissa and others …. Opposite Parties Mr. H.K. Panigrahi, Addl. Standing Counsel CORAM: JUSTICE SASHIKANTA MISHRA ORDER_ 14.02.2022 1. This matter is taken up through hybrid mode. 2. The petitioner has filed this writ application seeking the following relief: “(i) To quash the order under Annexure-3 (ii) To direct the respondent to treat the period of suspension from 13.11.02 to 08.05.2003 as qualifying service and further directed to disburse the rest 50% of salary during the period of suspension within a stipulated period. (iii) To pass such other order/orders as deemed fit and proper. (iv) To allow the original application.” 3. The brief facts of the case are that the petitioner while serving as a District Panchayat Officer was departmentally proceeded on 12.11.2002. In the enquiry held against him, the charges were proved. Since the petitioner had retired from Government service by such time, the Government, after consultation with the OPSC imposed the following penalties vide order dated 18.10.2004: Order No. 02. Page 2 of 2 “1. Rs.4000/- shall be recovered from the DCRG of D.O. and 2. The period of suspension from 13.11.2002 to 08.05.2003 shall be treated as such.” Challenging the imposition of such penalties, the petitioner approached the learned Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 2529(C)/2004. The learned Tribunal vide order dated 05.05.2010 while refusing to interfere with the penalty of recovery of Rs.4,000/- from the DCRG of the applicant, held that the 2nd penalty, i.e., suspension after retirement of the applicant, is not sustainable and accordingly quashed the same. The learned Tribunal further directed that an administrative order may be passed under Rule 12(6) of the CCA Rules, 1962 by respondent no.1 about the manner in which the period of suspension from 13.11.2002 to 08.05.2003 shall be treated. Pursuant to such order, the petitioner submitted a representation before the Commissioner- cum-Secretary to Government, P.R. (G.P.) Department, Orissa on 09.06.2010 with prayer to pay the dues pertaining to the suspension period, i.e., from 13.11.2002 to 08.05.2003. The Government in Panchayati Raj Department vide order dated 15.11.2010 ordered that the period of suspension from 13.11.2002 to 08.05.2003 shall not be treated spent on duty and shall not be counted towards qualifying service. The said order is impugned in the present application. Page 3 of 3 4. Heard Mr. N. Biswal, learned counsel for the petitioner and Mr. H.K. Panigrahi, learned Addl. Standing Counsel for the State. 5. It is submitted by learned counsel for the petitioner that the impugned order is on the face of it unsustainable in the eye of law because it does not specify anything as regards the nature of service of the petitioner during relevant period. It is further submitted that the learned Tribunal having quashed the penalty of treating the period of suspension as such, the only recourse open to the Government was to treat the said period as on duty. It is also submitted that the petitioner having retired in the meantime and drawing the full pension, the impugned order, if given effect to, would amount to causing a break in service of the petitioner, which would further penalize him. 6. Mr. H.K. Panigrahi, learned Addl. Standing Counsel submits that the relevant rules i.e. Rule 12(6) of the OCS (CCA) Rules, 1962 does not restrict the power of the Government to pass an order to the effect that the period in question shall not be counted towards qualifying service. He further submits that the petitioner having been placed on suspension during such period on payment of subsistence allowance as per law cannot be treated as being on duty for the said period at this belated stage. 7. It would be relevant to note that the order of the Tribunal in quashing the order imposing the second penalty, i.e., treating the period of suspension as such, has not been challenged before the Page 4 of 4 higher forum and therefore is deemed to have attained finality. The learned Tribunal while quashing the 2nd penalty directed the authority concerned to pass an order under Sub-Rule (6) of Rule-12 of the CCA Rules about the manner in which the period of suspension shall be treated. Sub-Rule (6) of Rule 12 of OCS (CCA) Rules, 1962 reads as follows: “(6) The disciplinary authority, while passing the final order of punishment or of release in the disciplinary proceedings against the government servant, shall give directions about the treatment of the period of suspension, which is passed not as a measure of substantive punishment but as suspension pending inquiry, and indicate whether the suspension would be punishment or not.” 8. A plain reading of the above would indicate that at the time of passing the final order of punishment or release in the disciplinary proceeding, the Government is to qualify as to how the period of suspension which was imposed, not as a measure of punishment but in contemplation of enquiry shall be treated. In the instant case, the Government had imposed the penalty that the period of suspension shall be treated as such. The said order having been quashed, the only thing that the Government could under the fact situation of the case do was to pass an order as to in what manner the period in question shall be treated. However, by directing that the period in question shall not be treated as spent on duty and shall not be counted towards qualifying service by itself Page 5 of 5 amounts to imposing a new penalty, which can not be countenanced in law. That apart, on a plain reading of the impugned order it is clear that by such order the Government has apparently tried to circumvent the order of the Tribunal in so far as it relates to quashing of the period of suspension. In other words, what could not be done directly, it has sought to do indirectly. The impugned order must, therefore, be held to be bad in law thereby warranting interference. 9. For the foregoing reasons therefore, the writ petition is allowed. The impugned order under Annexue-3 dated 15.11.2010 is hereby quashed. The opposite party is directed to issue a fresh order determining the manner in which the period of suspension from 13.11.2002 to 08.05.2003 shall be treated strictly in accordance with law. This order shall be carried out within a period of two months from the date of receipt of a copy thereof. 10. Urgent certified copy of this order be granted on proper application. (Sashikanta Mishra) Judge A.K. Rana