CASE TITLE : BAIJAYANTI NAYAK V. STATE OF ODISHA AND OTHERS
CASE NO : W.P.(C) No. 34453 of 2021
DATE OF JUDGMENT : January 03, 2024

The present Writ Petition has been filed by the Petitioner challenging the order dated 28.06.2020 passed by the Opposite Party No.1-Bank and with a prayer to direct the Opposite Party No.1-Bank to allow the petitioner to join the pension scheme in terms of Allahabad Bank Employees’ Pension Regulations, 1995 and the Instructions Circular No.11143/PA/2010-11/27 dated 15.09.2010 under Annexure-3 (“the Circular”) with all pensionary benefits as is due and admissible to him.

The Petitioner had initially joined in service of the Bank in 10.01.1978. Later, disciplinary proceeding was initiated against the Petitioner on 17.03.1997 with respect to transactions during the period form 12.10.1991 to 02.07.1995. Eventually, a penalty of “removal of service” was imposed on the Petitioner vide order dated 19.08.1999. It is the aforesaid order that is at the heart of the issue at hand. The aforesaid order of the Disciplinary Authority imposing punishment, which was confirmed by the Appellate and the Reviewing Authorities, was assailed before this court in W.P.(C) No.5845 of 2003. The Learned Single Judge, vide judgement dated 04.08.2015 quashed the assailed orders on the ground of non-compliance with the principles of natural justice and the law governing the field. The said order of the Learned Single Judge was confirmed in W.A. No.543 of 2015 (vide judgment dated 04.08.2015) and thereafter in SLP(C) No.35985 of 2016 (vide order dated 16.12.2016). Pursuant to the aforesaid development, the Petitioner submitted a representation before the Opposite Parties, which was dismissed on the ground that the Petitioner has not exercised the option under the Instruction Circular. As such, the pertinent benefits were not extended to the Petitioner.

The foremost contention of the Petitioner is that had he not been burdened with the order of removal of service, he would have continued in service till 10.01.1978, i.e. the date of his retirement. Therefore, it was stated that the Petitioner fulfills the conditions stipulated in the circular dated 15.09.2010. As such, the Petitioner be granted an opportunity to exercise the option with regard to such circular. On the contrary, the main thrust of the contention of the Bank is that the Instruction Circular dated 15.09.2010 is binding on the parties and therefore, no condition laid therein can be waived/relaxed in favour of the Petitioner. To bolster their stance, the Opposite Parties, referring to a judgement of this court dated 20.11.2019 in W.P.(C) No.7326 of 2012 (Dhirendra Kumar Behera v. Indian Bank), have submitted that in a similar scenario the cut-off date stipulated for exercising option from the date of offer to become a member of the Pension Fund was not relaxed.

Finally, adjudicating the issue, the Hon’ble Court has first observed that since the petitioner was treated as being in service since 19.08.1999 and he suffered a legal disability due to no fault of his own, he could be extended with the benefit under the Pension Regulations by condoning the period stipulated in the Instruction Circular dated 15.09.2010. Thereafter referring to a catena of judgements and pronouncements, the Hon’ble Court has enumerated the law with respect to the ‘doctrine of Impossibility’ and has held that the Petitioner could not comply with the terms of the Circular since he was contesting the penalty imposed against him. As such, the petitioner cannot be denied his legitimate entitlement of becoming a member of the Pension Fund by dint of the stipulation as to period in terms of paragraph 1.2.1(b) of the Circular. No one can be supposed to perform that which is not possible due to prevailing circumstances beyond the control of the person. Additionally, referring to Anantdeep Singh Vrs. The High Court of Punjab and Haryana, 2024 INSC 673, the Hon’ble Court has held that after the quashment of the punishment inflicted by the Disciplinary Authority attained finality, the petitioner is relegated to the position as on 19.08.1999 and he is to be treated as if he were not removed from service. Therefore, he is entitled to all benefits conferred on the employees who were continuing at that point in time.

Furthermore, it has been observed that in light of the judgement dated 04.05.2015 in W.P.(C) No.5845 of 2003, the Opposite Parties ought to have extended the benefits under Instruction Circular dated 15.09.2010 to the Petitioner. Consequently, the Hon’ble Court has set aside the impugned order dated 28.09.2020 and remitted the matter to the Opposite Party No.1 to reconsider the claim of the Petitioner in light of the present judgement.

CASE TITLE : KANSARI BEHERA VS. STATE OF ODISHA & ORS.
CASE NO : W.P.(C) NO.28593 of 2022
DATE OF JUDGMENT : October 09, 2024

The Petitioner has assailed the Office Order No. 1610-Con.VI-3/2021/BBE dated 05.04.2021, where the Collector, Kandhamal has passed orders restricting the payments to the Petitioner from the date of suspension (30.09.2000) to the date of reinstatement (30.09.2013).

The issue arose when a criminal case (Berhampur Vigilance P.S. Case No.36 dated 04.11.1999) was instituted against the Petitioner and he was placed under suspension vide Order dated 30.09.2000, under Rule 12(2)(b) of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962 (“OCS (CCA) Rules”). This was followed by a departmental proceeding vide Memo No.4312 dated 03.11.2000. The said proceeding was directed (by the learned OAT in O.A. No.1182 of 2001) to be held up till the disposal of the criminal case. In the meanwhile, the Petitioner was acquitted in the criminal case. The said acquittal was challenged by the Vigilance Authority, but it was dismissed by this court vide order dated 11.12.2018. Thereafter, the Petitioner was reinstated in service but, the period from 30.09.2000 to 30.09.2013 has been treated as the period of suspension.
It is the Petitioners case that the order of the Disciplinary Authority being nullified in appeal, it cannot bestow upon itself the jurisdiction and assume powers to pass fresh/further orders in furtherance of the Appellate Order, specifically in absence of any further direction to that effect. Therefore, the Disciplinary Authority transgressed his authority by passing further order directing to abandon the claim of pay minus subsistence allowance for the period of suspension inasmuch as there is categorical observation of the Appellate Authority that “the Collector, Kandhamal passed final order vide Order No.286, dated 15.02.2016, with the penalty that the period of suspension from 30.09.2000 to the date of reinstatement, i.e., on 30.09.2013 may be treated as such which was unwarranted and unjustified”. Furthermore, the punishment imposed by Order No.286 dated 15.02.2016 was set aside by the Appellate Authority vide communication dated 23.12.2019, therefore, the order dated 05.04.2021 abandoning payment ought not to have been passed. Such an order would tantamount to imposition of penalty. The backbone of the rival contentions by the Opposite Parties was that since the Appellate Authority merely set aside the order of the Disciplinary Authority without any instruction as to further action to be taken, the Collector, Kandhamal was justified in approaching the Government for advice and passing the Order dated 05.04.2021 in consonance with Rule 91 of the Odisha Service Code.

In adjudication of the matter at hand, the Hon’ble court has placed reliance on Mohd. Yunus Khan Vrs. State of Uttar Pradesh, (2010) 10 SCC 539 and Roop Sing Negi Vrs. Punjab National Bank, (2009) 2 SCC 570 to observe that disciplinary proceedings are quasi-judicial in nature. The Appellate Order in Annexure-12 has not been challenged and/or varied by any other competent court of law, therefore, the Collector, Kandhamal was bound by the quasi-judicial order-in-appeal, and in defiance thereof he was not competent to pass fresh orders by adhering to directive of the Revenue and Disaster Management Department on the administrative side. Such a course, in flagrant violation of provision of Rule 30 of OCS (CCA) Rules, 1962, is impermissible. Therefore, it is obligatory on the part of the Disciplinary Authority to comply with the Order dated 13.10.2015 of the Odisha Administrative Tribunal, Bhubaneswar passed in O.A. 1066 of 2014.

As far as Rule 91 of the Odisha Service Code (which was relied upon by the Opposite Parties to buttress their stance) is concerned, the Hon’ble Court has held that the present case does not fit into clause (1) of the said rule. As a result, the authority concerned was not competent to make any order regarding the payment and allowances to the Government Servant, and could not decide whether the said period is to be treated as time spent on duty. Finally, the order dated 05.04.2021 has been quashed and the Opposite Parties have been directed to extend all consequential service benefits to the Petitioner within three months.