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Judgment
Biraja Prasanna Satapathy, J.
This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Heard learned counsel appearing for the Parties.
The present Writ Petition has been filed inter alia with the following prayer:-
“The petitioner, therefore prays that this writ petition may be admitted, connected records called for and an appropriate writ in the nature of mandamus certiorari or as deemed fit and proper be issued directing the quashing of the order in Annexure-13 and 17 and it be declared that he has been continuing in service in spite of and ignoring the said order on being entitled to all the consequential and financial benefits according from the quashing of the said order.
"And further prayed to issue direction to the Opp. Parties to treat the petitioner as a regular employees of the Odisha Forest Development Corporation with effect from 17.11.1980, as on the said date the Junior to the petitioner were regularized under Annexure-3 and Annexure-4 of the Writ Petition.
And further prayed to grant all the consequential and retirement benefit after the date of retirement be granted as on 30.01.2015 within a stipulated period.
And/or any other order as deemed fit and proper be issued in the circumstances of the case.”
Learned counsel appearing for the Petitioner contended that Petitioner was initially engaged as a Mate on daily wages basis, where he joined on 17.11.1978. However, while so continuing, Petitioner when was illegally terminated w.e.f. 15.05.1983, the matter was carried to the learned Industrial Tribunal in I.D. Case No.57 of 1984. The Tribunal vide its award dtd.31.07.1986 under Annexure-1, while declaring the termination of the Petitioner as illegal directed for reinstatement with full back wages from the date of removal till the Petitioner is reinstated.
It is contended that pursuant to such order passed by the Tribunal on 31.07.1986, Petitioner was reinstated and joined as a DLR Mate in Bhagabanpur Depot of the Corporation on 31.12.1986.
Learned counsel appearing for the Petitioner contended that even though Petitioner was reinstated in his work, where he joined on 31.12.1986, but as per the settlement arrived at between the Management of the Opposite Party-Corporation and its workman represented through All Odisha Forest Corporation Karmachari Sangh under Annexure-2 dtd.14.03.1980, the Corporation decided to regularize the DLRs, who are in continuous service for at least two years on daily wages basis. In terms of the said Memorandum though similar situated DLR Mates were regularized, but because of the termination of the Petitioner w.e.f. 15.05.1983 and the order of reinstatement passed by the Tribunal in I.D Case No.57 of 1984 with reinstatement of the Petitioner on 31.12.1986, Petitioner was never regularized as against the post of Mate.
It is also contended that claiming such benefit of regularization, Petitioner once again moved the learned Industrial Tribunal in I.D. Case No.10 of 1989. Learned Tribunal vide its award dtd.07.01.1995 under Annexure-4, though came to a finding that Petitioner is entitled to get the benefit of regularization as against the post of Mate, but observed that such a claim of the Petitioner can only be considered after disposal of the pending domestic enquiry.
Learned counsel appearing for the Petitioner contended that after his joining in the Bhagabanpur Depot on being reinstated on 31.12.1986, Petitioner though was illegally transferred to Dasapalla Sub-Division vide order dtd.18.08.1987, but Petitioner was never relieved in terms of the said order. However Petitioner was prevented from signing in the Attendance Register by the Divisional Officer w.e.f. 20.08.1987. Even though Petitioner made various grievances with a prayer to allow him to work and to regularize him in his services as Mate as persons similarly situated and engaged along with the Petitioner as DLR Mate, pursuant to the tripartite settlement entered into on 14.03.1980 under Annexure-2 have already been regularized, but Petitioner’s claim was never considered and instead proceedings were initiated against him for unauthorized absence vide Memorandum No.490, dtd.21.09.1987 and another proceeding vide Memorandum No.147 dtd.08.06.1988 under Annexure-10. Opposite Party No.3 vide order dtd.30.03.1996 under Annexure-8 appointed the Enquiry Officer to enquire into both the proceedings.
It is contended that taking into account such pendency of the disciplinary proceeding initiated vide Memorandum dtd. 21.09.1987 and Memorandum dtd. 08.06.1988 under Annexure-10, the Tribunal in I.D. Case No.10 of 1989, in its award dtd.07.01.1995 under Annexure-4, though came to a finding that Petitioner is eligible and entitled to get the benefit of regularization, but observed that such regularization shall be subject to final outcome of the proceedings. Accordingly, Petitioner was deprived to get the benefit of regularization even though he was otherwise eligible to get the same.
Learned counsel appearing for the Petitioner contended that after disposal of the I.D. Case No.10 of 1989 vide award dtd.07.01.1995 under Annexure-4, Petitioner submitted his written explanation to the Memorandum dtd.08.06.1988 on 02.05.1996 under Annexure-11. Petitioner thereafter participated in the enquiry so conducted. However, the Enquiry Officer in its report dtd.22.07.1996 so available under Annexure-F to the counter affidavit, though come to a conclusion that charge with regard to gross mis-conduct vis-‡-vis disobedience of the order from higher authority is established and Petitioner is seriously negligent in his duty with a claim to remain nearby to Bhubaneswar, but observed that since persons similarly situated and engaged on daily wages basis in the year 1978 have already been absorbed as regular staff, Petitioner’s claim be considered as per the rules of the Corporation on humanitarian point of view and his period of absence may be treated as ‘no work no pay’ w.e.f. 20.08.1987. Finding of the enquiry officer so reflected in Para-5 and 6 of Annexure-F reads as follows:-
“5.Delinquent official is very serious to be remained adjoining to BBSR as a ground with scanty low pay unabling to manage at Dasapalla. This attitude should not be expected from a daily wage staff. Only made series of correspondence not to allow him working at Depot after August, 1987 and not considering him regularisation. Delinquent official should give respect to the order of higher official. When two reminders are issued during March and May, 1988 to join at Dasapalla he at that time under presumption that the management is not considering his representation and in constrain in that order for his joining at Dasapalla.
6.So in context of above discussion I am in view that charge (1) Gross misconduct vis-a-vis disobedience of order of higher authority is established and seriously neglect in his duty was done by him claiming to be remained nearby Bhubaneswar.
However, from the paper of representation filed by delinquent to C.E. (General Manager), Bhubaneswar Zone it appeared that he is serving in Corporation from 1978 as daily wage staff. His colleagues have already absorbed as a regular staff. So his case may be considered, if there is provision as per rule of 200packet Corporation. On humanitarian point of view as regular basis and the period of his absence in duty may be treated as "no work, no pay" basis from 20.8.87.”
Learned counsel appearing for the Petitioner contended that after submission of the enquiry report on 22.07.1996 under Annexures-F and G, in both the proceeding, the disciplinary authority-Opposite Party No.3, without following the provisions of Rule-121 to 125 of the Service Rules while disposing both the proceedings vide order dtd.31.07.1996 under Annexure-13 imposed the following punishments:-
“1)The period of un-authorized absence in duty 1.0. from 19-1-87 to 24-1-87, 12-2-87 to 19-2-17, 3-7-87, 10-7-87 to 137-87, 29-7-87 to 30-7-87 and from 20-8-87 to till date of final order issued is treated as 'No work, no Pay'.
2)His services is no longer required in this Organization”.
It is contended that since on the face of the enquiry report submitted by the Enquiry Officer under Annexures-F and G to the counter affidavit and without following the provisions contained under the relevant service rule, more particularly Rule-121 to 125, both the proceedings were disposed of by the disciplinary authority-Opposite Party No.3 vide order under Annexure-13, the said order is not sustainable in the eye of law. Rule-121 to 125 of the Rules reads as follows:-
“121. Penalties:
The following penalties may, for good and sufficient reasons and as hereinafter provided be imposed on an employee/workman, namely:
Minor Penalties:
i)Fine.
ii) Censure,
iii) Withholding of promotion,
iv) Recovery from pay of the whole or part of any pecuniary loss caused by him to the Corporation by negligence or breach of orders or misappropriation or any other reasons,
v)Withholding/stoppage of increments of pay.
vi) Suspension.
Provided that the penalty of fine shall be nominal and imposed only on Class-IV employees/workmen for specific dereliction of. duties,”
Major Penalties:
vii) Reduction to lower stage in the time scale of pay for a specified period with further directions as to whether or not the employee/work man will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of post-poning future increments of his pay.
viii) Reduction to a lower time scale of pay, grade, post of service which shall ordinarily be a bar to the promotion of the employÈe/workman to the time scale of pay, grade post or service from which he was reduced, with or without further directions re-garding condition of restoration to the grade, post or service from which the employee/workman was reduced and his seniority and pay on such restoration to that grade, post, or service;
ix) Compulsory retirement amounting to premature retirement, x) Dismissal from Corporation service which shall ordinarily be a disqualification for future employment and re-employment.
Explanation:
The following shall not amount to a penalty within the meaning of this Rule, namely
1.Withholding of increments of pay of an employee/workman for his failure to pass any examination in accordance with the rules or orders governing the service to which he belongs or post which he holds or the terms of his appointment;
2.Stoppage of the E. B. in the time scale of pay on the ground of his unfitness to cross the bar:
3.Non promote of an employee/workman, whether in a substantive or officiating capacity, after consideration of his case, to a service, grade or post for promotion to which he is eligible to be considered.
4.Reversion of an employee/workman officiating in higher service Grade or post to a lower service, grade or post on the ground that he is considered to be unsuitable for such higher service, grade of post of on are administrative ground unconnected with his conduct;
5.Reversion of an employee/workman, appointed on probation to or post during of at the end of the period of probation in accordance any other higher services, grade or post to his permanent service, grace with the terms of his appointment of the rules and orders governing such probation;
6.Termination of the services:
a)of an employee/workman appointed on probation, during or at the end of his probation in accordance with the terms of his appointment or the rules and orders governing such probation: or
b)of a temporary workman/employee in accordance with the terms and conditions of his appointment or as per rules of conditions of such temporary orders prescribing the appointment, or
c)of an employee/workman under an agreement in accordance with terms of such agreement.
7.Compulsory retirement of an employee/workman in accordance with the provisions relating to his superannuation or retirement
122. Disciplinary authorities:
1.Chairman/Managing Director may impose any of the penalties specified in Rule-121 on any employee/workman.
2.Without prejudice to the provision of Sub-rule 3 below. any of the penalties specified in Rule-121 may be imposed on an employee/workman after observing the procedure laid down in these Rules by the appointing authority or the authority specified in the Schedule in this behalf or by any other authority empowered in this behalf by general or special order of the Chairman/Managing Director.
3.Notwithstanding anything contained in this Rule-
a)no major penalty specified in Clauses VII to X of Rule-121 shall be imposed by any authority lower than the appointing authority or any other authority so delegated by the appointing authority.
123. Authority to institute proceedings:
1.The Chairman/Managing Director or any other authority duly empowered by general or special order may:-
a)institute disciplinary proceedings against any employee/workman for specific lapses, dereliction of duties, misconduct etc.
b)direct the disciplinary authority to institute disciplinary proceedings against any employee/workman on whom that disciplinary authority is competent to impose any of the penalties under these Rules"
2.The disciplinary authority competent under these Rules to impose any of the minor penalties specified under Clauses (1) to (VI) of Rule-121 may initiate disciplinary proceedings against the employee/workman for the imposition of any of the major penalties specified in Clauses (VII to X)of Rule-121 notwithstanding that such disciplinary authority is not competent under these Rules to impose any of the major penalties.
124. Procedure for imposing major penalties:
1.No order imposing any major penalties specified in Clauses (VII) to (X) of Rule-121 shall be made except after inquiry held as far as may be, in the manner hereinafter provided.
2.The disciplinary authority shall frame definite charges on the basis of allegations on which inquiry is to be held.
Such charges, together with statement of the allegations on which they are based, and a list of documents and witnesses by which such articles of charges are proposed to be sustained or substantiated shall be communicated in writing to the charged employee/workman, Explanations should be received within 30 days. The disciplinary authority may of the delinquent shall be called for on the basis of charges. The explanation should be received within 30 days. The disciplinary authority may extend the time for submitting the explanation for good and sufficient reasons to be recorded in writing.
NOTE 1: The charged employee/workman shall for the purpose of preparing his defence, be allowed to inspect and take extracts from the relevant records as he may specify at his own cost, provided that such permission may be refused if for reasons, to be recorded in writing, in the opinion of disciplinary authority such records are not interest to allow him access thereto relevant for purpose or it is against the Corporation's
2.a) On receipt of the written statement of defence, the disciplinary authority, may itself enquire into such of the articles of charge as are not admitted, or if he considers it necessary to do so appoint an enquiring authority for the purpose, and where all the articles of charges have been admitted by the employee/workman in his written statement of defence, the disciplinary authority shall record its findings on each charge after taking such evidence as it may deem fit.
b)If no written statement of defence is submitted by the charged employee workman, the disciplinary authority may itself enquire into the articles of charge, or may, if he considers it necessary to do so, appoint an enquiring authority for the purpose.
c)The disciplinary authority may nominate any person, called as the Presenting Officer or the Marshaling Officer, to present the case in support of the charges before the authority enquiring into the charges.
The charged employee/workman shall have the right to take assistance of any other employee workman of the Corporation, as his Assisting Officer provided that the Assisting Officer shall not take u more than two such cases at any point of time.
3.The charged employee/workman shall appear in person before. the enquiring authority called as the Enquiring Officer, on such day and at such time within one month from the date of appointment of the said authority, as may in writing be specified by him or in his behalf or within such further time not exceeding fifteen days as the enquiring authority may allow.
4.If the charged employee/workman does not admit any of the articles of charge in his written statement of defence or has not submitted any written statement of defence, and appears before the enquiring authority, such authority shall ask whether he is guilty or has any defence to make and if he pleads guilty to any of the articles of charges, the enquiring authority shall record the plea, sign the4. the record and obtain the signature of the charged employee/workman thereon.
5.The enquiring authority shall return a finding of guilty in respect of those articles of charge to which the charged employee/workman pleads guilty. If the charged employee/workman to whom a copy of the articles of the charge has been delivered, does not submit written statement of defence on or before the date specified for the purpose, or does not appear in person before the enquiring authority, or otherwise fails or refuses to comply with the provisions of this Rule, the enquiring authority may proceed to record his findings exparte on merits. However, the charged employer workman may participate at any stage of the proceedings. But the proceedings shall not be re-opened and the witnesses already examined shall not be recalled for cross examination.
6.On the date fixed for enquiry, the oral and documentary evidence by which the articles of the charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority The witnesses shall be examined by the Presenting Officer and may be cross-examined by or on behalf of the employee/workman. The Presenting Officer shall be entitled to re-examine the witnesses on any point on which they have been cross examined but not on any new matter, without the leave of the enquiring authority. The enquiring authority may also put such questions to the witnesses as he thinks fit. Before the date fixed for Enquiry, the Presenting Officer shall make a written request to the enquiring authority to summon such witnesses, who cannot be otherwise produced by the Presenting Officer to prove the articles of charges.
7.When the case of the Management is closed, the employee/workman shall be required to state whether he wants to examine any required to be summoned by the enquiring authority. The enquiring authority on receipt of such written list of witness shall proceed to summon such witnesses who cannot be otherwise produced by the charged employee / workman:
Provided that the enquiring authority may refuse to summon such witnesses whose evidence in his opinion would not be relevant or material to the articles of charge and / or whose presence cannot be easily and timely secured. and timely secured.
8.The evidence on behalf of the charged employee/workman himself on his own behalf, if he so prefers and in that case he is liable workman or summoned shall then be examined and shall be liable to for cross-examination. The witnesses produced by the charged employee cross examination, re-examination and examination by the enquiring authority.
9.The enquiring authority may after the completion of the production of evidence, hear the Presenting Officer and the charged employee/workman or permit them to file written briefs of their respective case, it they so desire.
10.Where a disciplinary authority competent to impose any of the minor penalties specified in Clauses (i) to (vi) of Rule 121 but not competent to impose any of the major penalties specified in Clauses (vii) to (xi) of Rule 121, has itself enquired into or caused to be enquired into the articles of any charge and that authority, having regard of its own findings or having regard to its decision on any of the findings of any enquiring authority appointed by it, is of the opinion that the penalties specified in Clauses (vii) to (x) of Rule-121 should be imposed on the delinquent employee/workman, that authority shall forward the record of the enquiry to such disciplinary authority as is competent to impose the major penalties.
11.The disciplinary authority to which the records are so forwarded may act on the evidence of records or may, if it is of the opinion that further examination of the witnesses is necessary in the interest of justice. recall the witness and examine and re-examine them and may impose. on the delinquent employee/workman such penalty as may deem fit in. accordance with these Rules and after affording an opportunity to the delinquent employee/workman to defence himself.
12.Whenever any enquiring authority, after having heard and recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein and is succeeded by another enquiring authority which has and which exercises, such jurisdiction, the enquiring authority so succeeding, may act on the evidence so recorded by its predecessor, or partly recorded by its predecessor and partly recorded by itself.
Provided that if the succeeding enquiring authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, it may re-call, examine, cross-examine any such witness as hereinbefore provided.
Enquiry Report:
13.After the conclusion of the inquiry, a report shall be pre-pared and it shall contain:-
a)the articles of charge and the statement of the imputations of the misconduct arid misbehaviour;
b)the defence of the employee/workman in respect of each articles of charge;
c)an assessment of the evidence adduced in respect of each article of charge.
d)the findings on each article of charge and the reasons therefor. He should state whether the charges have been proved or not and recommend punishment in respect of charge (s) proved,
Explanation:-
i)If in the opinion of the enquiring authority, the proceedings the original articles of charge, it may record its findings of the enquiry establish any articles of charge different from. such articles of charge:
Provided that the findings on such articles of charge shall not be recorded unless the employee/workman has either admitted the facts on which such article of charge is based on has had a reasonable opportunity of defending himself against such article of charge.
Care record of Enquiry:
14.The enquiring authority, where it is not itself the disciplinary records of enquiry, shall forward to the appropriate disciplinary authority the records of enquiry which shall include:-
a)the charges framed against the delinquent and the statement of allegations furnished to him,
b)the report prepared by it under Clause (13).
c)the written statement of defence, if any, submitted by the employee/workman,
d)the oral and documentary evidence produced in course of the enquiry and the list of witnesses examined.
e)written briefs, if any, filed by the Presenting Officer or the employee/workman or both during the course of the enquiry, and
f)the orders, made by the enquiring authority in regard to the enquiry from time to time.
15.a) The authority competent to impose major penalties under Clauses (vii) to (x) of Rule 121 if he himself is the enquiring authority, record after conclusion of the enquiry, the punishment awarded to the employee/workman in respect of the articles of charges proved and communicate the same to the delinquent along with a copy of the enquiry report,
b)On receipt of the enquiry report under Clause (14) from the enquiring authority, who is not himself the disciplinary authority empowered to award major punishments under Clauses (vii) to (x) of Rule 121 the competent disciplinary authority shall decide the penalty to be awarded and communicate the same to the delinquent along with a copy of the enquiry report.
125. Procedure for imposing minor penalty:
1.No order imposing any of the minor penalties specified in Clauses, to (vi) of Rule-121 shall be imposed except after-
a)The employee/workman is informed in writing of the proposal to take action against him and of the allegation on which it is proposed to be taken and given an opportunity to make any representation he may wish to make within a time limit as may be specified;
b)Such representation, if any, is taken into consideration by the disciplinary authority.
2.The record of proceedings in such cases shall include:-
i)a copy of the intimation to the employee/workman of the-proposal to take action against him;
ii) a copy of the statement of allegation communicated to him:
iii) his representation, if any, and
iv) the orders on the case together with the reasons thereof.
NOTE. 1: No oral enquiry is necessary where the punishment proposed is a minor one.
2.where two or more employees/workmen are concerned in any case, the authority empowered to impose the penalty on all such employees/workmen may make an order directing that the disciplinary action against all of them may be taken in any common proceeding”.
Learned counsel appearing for the Petitioner further contended that even though challenging the order passed by the disciplinary authority under Annexure-13, Petitioner moved the appellate authority-Opposite Party No.1, but the appellate authority without proper appreciation of the grounds taken in the memo of appeal under Annexure-15, rejected the same by a non-speaking order vide order dtd.26.05.1997 under Annexure-17. Petitioner accordingly challenging the order of punishment passed by the disciplinary authority under Annexure-13, so confirmed by the appellate authority in its order under Annexure-17, is before this Court in the present Writ Petition.
It is contended that since the proceedings in question so initiated vide Memorandum dtd.21.09.1987 and 08.06.1988 were disposed of without following the relevant service rules more particularly Rule-124(15)(b) of the Rules, and Petitioner was never provided with a copy of the enquiry report prior to finalization of both the proceedings vide order dtd.31.08.1996 under Annexure-13, the order of punishment so passed by Opposite Party No.3 stands vitiated and is not sustainable in the eye of law.
Not only that appeal filed by the Petitioner was also rejected by Opposite Party No.1 vide order dtd.26.05.1997 under Annexure-17 without assigning any reason and without giving an opportunity of hearing to the Petitioner. It is contended that since the appellate authority rejected the appeal by a non-speaking order and without assigning any reason, the order passed by Opposite Party No.1 under Annexure-17 is also illegal and liable to be set aside.
In support of his aforesaid submission, reliance was placed to the following decisions 2013 (Supp.1) OLR-736 and 2012(1) OLR-87.
This Court in Para-8 & 10 of the said judgment reported in 2012(1) OLR-87 has held as follows:-
“8.Admittedly, the aforesaid order does not contain any reason for rejecting of the bid and cancellation of the tender. Law is no more res integra that an authority must pass a reasoned order indicating the material on which its conclusion are based.
xxx xxx xxx
10.Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same it becomes lifeless. [See Raj Kishore Jha v. State of Bihar (2003) 11 SCC 510]”.
This Court in Para-13 of the said judgment reported in 2013 (Supp.1) OLR-736 has held as follows:-
“13.After giving our anxius hearing to the matter and keeping in mind the position of law and the CCA Rules, we are constrained to hold that the learned Tribunal failed to exercise its jurisdiction in the matter. The impugned order of the Tribunal smacks of application of judicial mind and conscience. It is to be remembered that the reasons are the soul of orders. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. The orders of the Court must reflect what weighed with the Court in granting or declining the relief claimed by the Petitioner”.
It is further contended that in the case in hand, Petitioner was put to undue harassment, when he was illegally terminated while continuing as a DLR w.e.f 15.05.1983. Even though such termination of the Petitioner was declared as illegal by the Tribunal in its award dtd.31.07.1985 under Annexure-1 and direction was given to reinstate the Petitioner with full back wages, but after reinstatement of the Petitioner on 31.05.1986, Petitioner was illegally transferred by the Divisional Manager- Opposite Party No.3 to Daspalla Sub-Division, who was having no authority to pass such an order of transfer.
It is contended that since Petitioner at the relevant point of time was continuing under Bhubaneswar Sub-Division-Opposite Party No.3 was not competent to put the Petitioner under transfer to Dasapalla Sub-Division, coming under Nayagarh Division. Even though Petitioner raised objection to such order of transfer, but such grievance of the Petitioner was never considered and in the alternate taking into account such order of transfer having been passed on 18.08.1987, Petitioner was not allowed to discharge his duty in Bhagabanpur Depot of Bhubaneswar Sub-Division w.e.f. 20.08.1987.
However, on the ground that Petitioner has remained unauthorized absent from duty w.e.f. 20.08.1987 a proceeding was initially initiated vide Memorandum No.490 on 21.09.1987. Subsequently another proceeding was initiated with the following charges vide Memorandum dtd.08.06.1988 under Annexure-10.
“i)Gross mis-conduct.
ii) Negligence in duty.
iii) Disobedience of order of higher authority”.
It is contended that in both the proceedings the Enquiry Officer though found the Petitioner guilty of the charges, but taking into account the fact that similarly engaged DLRs have got the benefit of regularization in terms of the tripartite settlement entered into in between the Corporation and the Union in the year 1980, the Enquiry Officer in its report under Annexures-F and G to the counter affidavit, further observed that Petitioner be regularized in his service as a Mate and the break period of service be treated as ‘no work no pay’. On the face of such finding of the Enquiry Officer and without following the provisions contained under Rule-124(15)(b) of the Service Rules and without providing a copy of the enquiry report to the Petitioner, Petitioner was terminated from his services vide order dtd.31.07.1996 of Opposite Party No.3 under Annexure-13. Not only that the appellate authority also by a non-speaking order rejected the appeal vide order dtd.26.05.1997 under Annexure-17.
It is further contended that Petitioner was not only deprived to continue under the Corporation with due regularization of his service on the face of his juniors being regularized in the year 1980, but also Petitioner was deprived of his livelihood, on being terminated vide order dtd.31.07.1996.
It is also contended that had the Petitioner been allowed to continue, Petitioner was due to retire on 31.01.2015 on attaining the age of superannuation, Petitioner’s date of birth being 24.01.1995.
Making all the submissions, learned counsel appearing for the Petitioner contended that the impugned order of termination passed by Opposite Party No.3 in its order dtd.31.08.1996 under Annexure-13, so confirmed by the appellate authority-Opposite Party No.1 vide order under Annexure-17 are required to be quashed and by holding that the Petitioner continued as a regular Mate from the year 1980 till he attained the age of superannuation on 31.01.2015, Petitioner be released with all service and financial benefits as due and admissible.
Mr. U.C. Mohanty, learned counsel appearing for the Opposite Party Nos.1 to 3-Corporation on the other hand made his submission basing on the stand taken in the counter affidavit so filed.
It is contended that Petitioner though was engaged as a Mate on daily wages basis w.e.f. 17.11.1977, but since Petitioner remained absent from his work, he was terminated w.e.f. 15.05.1983. Pursuant to the award passed by the learned Tribunal in I.D. Case No.57 of 1984 on 31.07.1985 under Annexure-1, Petitioner though was reinstated and allowed to join in the Bhagabanpur Depot of Bhubaneswar Sub-Division w.e.f 31.12.1986, but thereafter Petitioner remained absent without any intimation for different periods w.e.f. 19.01.1987 to 30.07.1987. Not only that Petitioner when misbehaved with the Divisional Manager-Opposite Party No.3, he was transferred to Dasapalla Sub-Division vide order dtd.13.08.1987. After being so transferred vide order dtd.18.08.1987 under Annexure-B to the counter affidavit Petitioner though was directed to join at Dasapalla but he never joined there. Accordingly, a proceeding was initiated vide Memorandum dtd.21.09.1987.
Thereafter, Petitioner vide letter dtd.01.03.1988 and 28.05.1988 under Annexure-C and D though was directed to join at Dasapalla, but Petitioner never followed the said direction by joining at Dasapalla. Accordingly, for such unauthorized absent w.e.f. 19.01.1987 and the misbehavior committed by the Petitioner with the Deputy Divisional Manager on 30.07.1987, another proceeding was initiated against the Petitioner vide Memorandum dtd.08.06.1988 under Annexure-10.
It is contended that during pendency of the proceedings, Petitioner though moved the learned Industrial Tribunal in I.D. Case No.10 of 1989 seeking regularization of his services, but the Tribunal though held that Petitioner is entitled to get the benefit of regularization vide its award dtd.06.02.1995 under Annexure-4, but observed that it will be subject to final outcome of the domestic enquiry.
It is contended that challenging such award passed in I.D. Case No.10 of 1995 under Annexure-4, Petitioner moved this Court by filing OJC No.2639 of 1995. The said Writ Petition however was dismissed vide order dtd.26.03.1996 under Annexure-7. Petitioner also agreed to participate in both the proceedings.
It is contended that even though the proceedings were initiated vide Memorandum dtd. 21.09.1987 and 08.06.1988, but on the ground of pendency of I.D. Case No.10 of 1989 and thereafter filing of OJC No.2639 of 1995, Petitioner never filed any reply to the charges. Only after dismissal of the Writ Petition vide order dtd.26.03.1996 under Annexure-7, Petitioner submitted his explanation on 02.05.1996 under Annexure-11.
It is contended that the Enquiry Officer after conducting the enquiry submitted the report on 22.07.1996 under Annexure-F and G to the counter affidavit in both the proceedings.
It is however fairly contended that even though the Enquiry Officer in his report under Annexure-F and G observed that the period of absence be treated as ‘no work no pay’ and Petitioner’s claim be considered to get the benefit of regularization, but taking into account the conduct of the Petitioner in remaining absent for different spell w.e.f. 19.01.1987 onwards, and the misbehavior shown to Opposite Party No.3, the disciplinary authority-Opposite Party No.3 imposed the punishment vide order dtd.31.07.1996 under Annexure-13, holding therein that Petitioner’s services is no more required.
Learned counsel appearing for the Opposite Party-Corporation contended that Petitioner faced two proceedings so initiated vide Memorandum dtd.21.09.1987 and 08.06.1988, which was also admitted by the Petitioner in OJC No.2639 of 1995. However taking into account the conduct of the Petitioner in remaining absent w.e.f. 19.01.1987 and not joining at Dasapalla on the face of the order passed on 13.08.1987 and further direction issued under Annexures-B, C and D to the counter, Opposite Party No.3 being the disciplinary authority, thought it proper not to follow the observation of the Enquiry Officer so submitted under Annexure-F & G and accordingly passed the order under Annexure-13, holding that Petitioner’s services is no more required.
Learned counsel appearing for the Opposite Party-Corporation contended that Petitioner because of his unauthorized absence was terminated initially w.e.f. 15.05.1983. However pursuant to the order passed by the learned Tribunal in I.D. Case No.57 of 1984 under Annexure-1, Petitioner was reinstated and allowed to join on 31.05.1986. But thereafter Petitioner remained unauthorized absent w.e.f. 19.01.1987 for different spell. Taking such absence of the Petitioner w.e.f. 19.01.1987 for different period, proceeding dtd.21.05.1987 was initiated against him. Thereafter, Petitioner when misbehaved with Opposite Party No.3, Petitioner was transferred to Dasapalla vide order dtd.13.08.1987. But in terms of order dtd.13.08.1987, Petitioner never joined at Dasapalla and also did not follow the direction issued under Annexures-B to D of the counter. Because of such conduct of the Petitioner, another proceeding was initiated vide Memorandum dtd.08.06.1988 under Annexure-10.
It is accordingly contended that taking into account the conduct of the Petitioner all through Petitioner has been rightly not permitted to continue under the Corporation vide order under Annexure-13, so confirmed vide order under Annexure-17 and it requires no interference of this Court. Period of absence has also been treated as ‘No work No pay’ rightly. Accordingly, it is contended that the Writ Petition is liable for dismissal.
Having heard learned counsel appearing for the Parties, considering the submissions made and after going through the materials available on record, it is found that Petitioner was engaged as a DLR under the Opposite Party-Corporation w.e.f. 17.11.1978. As found, Petitioner while so continuing was terminated from his work w.e.f. 15.05.1983. However, such termination when was declared as illegal by the Tribunal in its award dtd.31.07.1985 under Annexure-1 in I.D. Case No.57 of 1984, Petitioner was reinstated and allowed to join on 31.08.1986 in Bhagabanpur Depot coming under Bhubaneswar Sub-Division.
However, it is found that on his joining at Bhagabanpur Depot on 31.05.1986, Petitioner remained absent without any intimation w.e.f. 19.01.1987 on different occasion. Taking into account such unauthorized absent w.e.f. 19.01.1987, proceeding dtd.21.09.1987 was initiated against the Petitioner.
It is also found that Petitioner while remaining on unauthorized absent, when misbehaved with the Deputy Divisional Manager on 30.07.1987, Petitioner was transferred to Dasapalla Sub-Division vide order dtd.13.08.1987. It is however found that Petitioner in terms of the said order and subsequent direction issued under Annexures-B to D of the counter, never joined at Dasapalla, nor such an order was assailed before any forum.
In the alternate, Petitioner once again moved the Tribunal in I.D. Case No.10 of 1989 seeking regularization of his services. The Tribunal vide its award dtd.06.02.1995 under Annexure-4, though held that Petitioner is eligible to get the benefit of regularization, but observed that such claim of the Petitioner for regularization will be considered after disposal of the disciplinary proceedings so initiated against the Petitioner on 21.09.1987 and 08.06.1988.
Even though Petitioner challenged the said award before this Court in OJC No.2639 of 2025, but the said Writ Petition was dismissed vide order dtd.26.03.1996 under Annexure-7. Only after dismissal of the Writ Petition, Petitioner filed his written explanation on 02.05.1996 under Annexure-11, which is more than eight (8) years of the initiation of the proceedings.
It is found from the enquiry report available under Annexure-F & G to the counter that the Enquiry Officer though held the Petitioner guilty of the charges, but observed that Petitioner be regularized as his break period of service be treated as ‘no work no pay’. However, the disciplinary authority-Opposite Party No.3, on the face of the observation made by the Enquiry Officer, passed the final order vide order dtd.31.07.1996 under Annexure-13, holding therein that the Petitioner’s service is no more required and the period of unauthorized absence was treated as ‘no work no pay’.
Such an order though was assailed before Opposite Party No.1 by filing an appeal, but the appellate authority rejected the same vide order dtd.24.05.1997 under Annexure-17.
It is however found that after submission of the enquiry report in both the proceedings by the enquiry officer on 22.08.1996 under Annexures-F and G to the counter, as provided under the relevant service rule, more particularly Rule-125(15)(b) of the Service Rules, Petitioner was never provided with the enquiry report by the disciplinary authority, prior to imposing the major penalty so prescribed under Rule-121 of the Rules.
It is found that even though such a stand was taken by the Petitioner in his appeal, but the appellate authority-Opposite Party No.1 dismissed the appeal by a non-speaking order without assigning any reason.
Considering the stand taken in the memo of appeal so filed by the Petitioner under Annexure-15 and the fact that the appellate authority rejected the same without assigning any reason, this Court placing reliance on the decision in the case of 2013 (Supp.1) OLR-736 and 2012(1) OLR-87, for the present is inclined to quash order dtd.26.05.1997 so passed by Opposite Party No.1 under Annexure-17. While quashing the said order, this Court remits the matter to Opposite Party No.1, to re-decide the appeal taking into account the stand taken by the Petitioner in his memo of appeal under Annexure-15. This Court directs the appellate authority-Opposite Party No.1 to take a fresh decision in the appeal by giving an opportunity of hearing to the Petitioner as expeditiously as possible preferably within a period of four (4) months from the date of receipt of this order.
Accordingly, the Writ Petition stands allowed and disposed of.