State of Orissa vs Santosh Ku. Hota

Biswanath Rath, J—Heard Mr. B. Tripathy, learned Standing Counsel for the petitioners and Mr. L.N. Pattnaik, learned Counsel for the Opp. party.

This writ petition is filed by the School & Mass Education Department, Orissa, Bhubaneswar assailing the impugned order dated 07.5.2008 passed by the Orissa Administrative Tribunal, Bhubaneswar Bench, Bhubaneswar in O.A. No. 1019 of 2004 appearing at Annexsure-1.

It is necessary to take note here that in the first round of litigation, this writ petition was finally heard and disposed of by this Court vide order dated 05.02.2010 and the order passed by this Court in the previous occasion reads as follows:

"05.02.2010:

We do not find any infirmity in the impugned order dated 07.5.2008 passed by the Orissa Administrative Tribunal, Bhubaneswar Bench, in O.A. No. 1019/2004 to be interfered with in this application.

The writ petition is accordingly dismissed."

Being aggrieved by the above dismissal order dated 05.02.2010, the present petitioners approached the Hon''ble Apex Court in SLP (C) No. 23644 of 2010 being converted as Civil Appeal No. 698 of 2014 which Appeal was finally decided by the Hon''ble Apex Court and disposed of vide order dated 17.01.2014 remanding the matter to this High Court for its fresh disposal.

Short back ground involved in the case is that one Santosh Kumar Hota (present Opp. party) approached the Orissa Administrative Tribunal, Bhubaneswar Bench, Bhubaneswar in O.A. No. 1019 of 2004 seeking quashing of the order of termination and for further direction to the State authorities (present petitioners) for treating the period of absence from 01.4.2001 till his joining in the new assignment as duty period and for other service benefits. The aforesaid Original Application was disposed of on contest holding that the appointment of the present Opp. party could not have been treated to be a provisional appointment and further the period from 21.4.2001 to 03.8.2003 should also have been treated as working period and with the aforesaid findings, the learned Orissa Administrative Tribunal, Bhubaneswar Bench, Bhubaneswar while setting aside the order of termination of the Opp. party, directed the State authorities not only to release the salary from 21.4.2001 to 03.8.2003 but also directed for grant of future increments treating the above period as duty for all purposes.

Being aggrieved by the aforesaid direction of the Orissa Administrative Tribunal, Bhubaneswar Bench, Bhubaneswar, the State authorities (present petitioners) approached this Court by filing the present writ petition praying therein for setting aside of the order passed by the Orissa Administrative Tribunal, Bhubaneswar Bench, Bhubaneswar in O.A. No. 1019 of 2004.

The main crux of argument of the learned Standing Counsel for the petitioners is that since the Opp. party was found to be surplus in view of adjustment of some other employees in the particular establishment, there was no illegality in terminating the service of the Opp. party and further since the Opp. party had not worked in between 21.4.2001 to 03.8.2003, this period ought to be treated as "NO WORK NO PAY".

Per contra, learned counsel appearing for the Opp. party submits that the Opp. party being a Rehabilitation Assistance appointee could not have been treated as an irregular appointee and further in view of the type of appointment meted out in case of the Opp. party, there was no question of his termination. So far it relates to treating the period from 21.4.2001 to 03.8.2003 as duty period, learned counsel for the Opp. party submitted that in view of clear interim direction of the learned Orissa Administrative Tribunal, Bhubaneswar Bench, Bhubaneswar to allow continuance of the Opp. party, principle of "NO WORK NO PAY" has no application to the present circumstances and the Opp. party can not be made to suffer financially for the latches of the present petitioners.

There is no dispute at the Bar that the Opp. party was a Rehabilitation Assistance appointee. There is also no dispute at the Bar that the provisions as contained in Rule 10 of the O.C.S (CCA Rules, 1990) has no application in the present circumstances. Further on perusal of the discussions made in the impugned judgment, we find the order of termination as against the Opp. party was issued on 20.4.2001 and the applicant was relieved on 23.4.2001. Original Application No. 510 of 2001 at the instance of present Opp. party was taken up on 25.4.2001 on which date the learned Orissa Administrative Tribunal, Bhubaneswar Bench considering the submissions of the Opp. party passed the following order :

"As regards the prayer for interim relief operation of Annexure-5 order dt. 20.4.2001 is stayed for a period of 14 days in view of preponderance of probability and prima facie case in favour of the applicant. It is directed that if the applicant has been relieved in the meantime, he shall be allowed to resume his duty. List it on 08.5.2001."

The matter was next taken up on 10.5.2001 and the learned Tribunal upon hearing the respective parties was pleased to extend the interim order until further orders. When the petitioners did not allow the Opp. party to rejoin his duties, the Opp. party filed a Contempt Petition (C) No. 136/2001 and the said Contempt petition alongwith some other Miscellaneous petitions were taken up by the Tribunal on 08.01.2002 and on this date the learned Tribunal recording the submission of the State that the present Opp. party shall be adjusted pending final adjudication of the main case, directed by the said order to work out the said order immediately. O.A. No. 518 of 2001, M.P. No. 1015 of 2003 and Contempt Petition (C) No. 136 of 2001 were all disposed of by order dated 19.01.2004 directing as herein below:

"xxx xxxx xxx

Heard. The applicant was provisionally appointed as Junior Clerk under R.A.S. in the office of the D.I. of Schools, Boudh vide annexure-4 dated 19.12.1997. He has filed this O.A. with a prayer to quash Annexure-5 dated 20.4.2001 by which his services were terminated consequent upon abolition of N.F.E. Scheme from 31.3.2001. While admitting and issuing notice vide order dated 25.4.01 it was directed that if the applicant has been relieved in the mean time, he shall be allowed to resume his duty. The applicant filed C.P.(C) 136/2001 alleging disobedience of the order dated 25.4.2001 allowing him to resume his duty. Reply to show cause was filed and charge for contempt of the Tribunal was framed against the D.I. of Schools Hrusikesh Kandi (respondent No. 5) vide order No. 20 dated 9.1.2003. In the meantime the Inspector of Schools vide Annexure-B dated 2.8.2003 to M.P.1015/2003 adjusted the applicant to act as Junior Clerk in the office of D.I. of Schools but directed that the period of absence from 1.4.2001 till the date of joining in the new assignment will be treated as no work no pay. The applicant filed the said M.P. with a prayer to quash sub paragraph (ii) of paragraph 3 of Annexure-A and paragraph 2 of Annexure -B directing that the period of absence with effect from 1.4.2001 till the date of his joining will be treated as no work no pay.

The service of the applicant as Junior Clerk was terminated vide Annexure-5 dated 20.4.2001 on the abolition of N.F.E. Scheme from 31.3.2001.However, after framing of charge in the contempt petition the applicant has been taken to service and posted in the office of respondent No. 5. Hence the prayer in the O.A. to quash annexure-5 and to allow the applicant in the post of Junior Clerk in our opinion has become infructuous. Since the applicant has been adjusted to act as Junior Clerk in the office of respondent No. 5, D.I. of Schools, Boudh it is of no use to allow the contempt proceeding to continue. The applicant is at liberty to file fresh O.A. if so advised if he is affected by the orders under Annexures-A and B to the M.P. treating the period of his absence from 1.4.2001 till his joining in the new assignment vide Annexure-B dated 2.8.2003 to the M.P.

Accordingly, the C.P. is disposed of as dropped. The O.A and M.P. are disposed of as infructuous. "

As appears, the Original Application, the Miscellaneous case and the Contempt proceeding were disposed of giving liberty to the Opp. party to file an independent O.A for treating the period from 21.4.2001 to 03.8.2003 as duty. This gave rise the Opp. party to file the O.A. No. 1019 of 2004. By filing the above Original Application, the Opp. party sought for quashing of the orders of the petitioners available at Annexure-2. In the Original Application to the extent it was related to the Opp. party and the orders vide Annexures-7 & 8 in the Original Application to the extent treating the period of absence from 01.4.2001 till joining in the new assignment as NO WORK NO PAY and for direction for periodical increments on the basis of reckoning the said period as duty. Learned Administrative Tribunal ultimately held that the Opp. party being a Rehabilitation Assistance appointee, he could not have been treated as a provisional employee. Thus while quashing the impugned order vide Annexure-2 keeping in view the interim direction passed in the previous Original Application, directed for release of salary for the period from 21.4.2001 to 03.8.2003 and also for release of his future increments treating him to have been continuing in service all through. We find in deciding this Original Application, learned Orissa Administrative Tribunal, Bhubaneswar Bench ultimately came to hold that the Opp. party being a Rehabilitation Assistance appointee inducted into government service in consideration of the distress which visited the family consequent upon the death of the sole bread earner, could not have been treated as a temporary employee and his appointment being against a regular vacancy, his service could not have been treated as provisional and further could not have also been terminated under any circumstance. We find no illegality in the aforesaid observation/direction of the learned Orissa Administrative Tribunal, Bhubaneswar Bench and consequently we confirm the decision of the learned Orissa Administrative Tribunal, Bhubaneswar Bench so far it relates to termination of the Opp. party from his services is concerned.

Now coming to the direction of the learned Orissa Administrative Tribunal, Bhubaneswar Bench in the matter of treating the period from 21.4.2001 to 03.8.2003, firstly we find that the order of termination of the Opp. party having been set aside, the Opp. party deemed to be continuing all through. Secondly we also find that the learned Orissa Administrative Tribunal, Bhubaneswar Bench by virtue of repeated interim orders, had been allowing the Opp. party to continue in service at least since 25.4.2001 which order remained in force till the Opp. party was adjusted otherwise by virtue of the order of the Inspector of Schools to 02.8.2003. Thus, we find there is no latches on the part of the Opp. party. On the other hand, we find, the petitioners unlawfully prevented the Opp. party from discharging his duties during this period and therefore the Opp. party can not be made to suffer.

Under the above circumstances and the findings arrived at, we have no hesitation to uphold the direction of the learned Orissa Administrative Tribunal, Bhubaneswar Bench, Bhubaneswar vide Annexure-1.

Before parting with the case, since the Opp. party has been made to suffer unnecessarily, forced to face litigation one after another, we award a cost of Rs. 5,000/-(Rupees Five Thousand) which amount be paid by the petitioners(State authorities) to the Opp. party within a period of two weeks hence. We further direct the petitioners to carry out the direction of the learned Orissa Administrative Tribunal, Bhubaneswar Bench, Bhubaneswar vide Annexure-1 as early as possible preferably within a period of three weeks from the date of communication of this order and to release all such benefits alongwith interest @ 7% per annum from the date of entitlement of Opp. party till the date of payment which amount also be paid within a further period of two weeks thereafter.

Writ petition is dismissed with above directions.