CASE TITLE : DR. RUDRA NARAYAN PRADHAN V. STATE OF ODISHA & ANR.
CASE NO : WPC (OAC) NO. 309 of 2015
DATE OF JUDGMENT : May 15, 2023

Act of delinquent must be within the parameters of Rule 46 of the OCS (Pension) Rules, 1992 for consideration of his entitlement to ‘compassionate allowance’.

The petitioner joined as Medical Officer in the year 1977 under the Govt. of Odisha. He was removed from service on 05.10.2003 pursuant to a departmental proceeding instituted against him for remaining absent from service unauthorizedly from 01.01.1988 till the date of removal. Being aggrieved, he filed an original application before the erstwhile Odisha Administrative Tribunal impugning the order of removal. The Tribunal, however, did not deem it proper to interfere with the order of removal but asked the authorities to consider granting ‘compassionate allowance’ to the petitioner as per the provision under Rule 46 of the Odisha Civil Services (Pension) Rules, 1992.

The aforesaid order of the Tribunal was further challenged by the petitioner before the High Court but the Division Bench did not interfere with the order of the Tribunal and reiterated that the removal of the petitioner from the service cannot be interfered with. It, however, asked the authorities to consider for grant of compassionate allowance as provided under Rule 46 of the Odisha Civil Services (Pension) Rules, 1992.

The appropriate authority considered the case of the petitioner for sanction of compassionate allowance but found him ineligible. Therefore, petitioner challenged such rejection order in this petition, mainly on the ground that the authority did not take into account relevant material while passing such order and acted arbitrarily in rejecting the claim.

After hearing the submissions and perusing the pleadings, the Bench referred to the relevant provision i.e. Rule 46 of the 1992 Rules and also relied upon the law laid down in Mahinder Dutt Sharma v. Union of India and others; (2014) 11 SCC 684. Upon examination of the law vis-à-vis the facts of the case at hand, the Court held as follows:

“… … the determination of the claim made by the petitioner under Rule 46 of the OCS (Pension) Rules, 1992 has not been sieved through an evaluation based on series of distinct considerations as illustratively expressed by the Hon’ble Supreme Court in Mahinder Dutt Sharma (supra). The act of the petitioner herein, which resulted in infliction of punishment of removal from service was not an act of moral turpitude, not an act of dishonesty towards his employer, the act may be that of insincerity but something sort of being unscrupulous or untrustworthy or that the petitioner cheated the employer. The act of delinquency was not aimed at deliberately harming a third party interest.”

It was held :

“This Court is of the view that by applying the criterion illustratively expressed by the Hon’ble Supreme Court in paragraph-14 of Mahinder Dutt Sharma (supra), there can be no doubt that the order of dismissal from service of the petitioner from the post was justified, but for determining the question of grant of compassionate allowance, the act of delinquency has to be within the parameters laid down in rule 46 of the OCS (Pension) Rules, 1992.”

Accordingly, the Court came to the conclusion that the reasoning given by the authority in the impugned order denying the petitioner compassionate allowances failed judicial scrutiny and the order was set aside. The authority was asked to decide the claim of the petitioner for compassionate allowance afresh, applying the principles laid down in Mahinder Dutt Sharma (supra), in terms of Rule 46 of OCS (Pension) Rules, 1992 as expeditiously as possible.

CASE TITLE : BANSIDHAR MANDAL & ORS. V. STATE OF ODISHA & ORS.
CASE NO : W.P.(C) NO. 15026 of 2014
DATE OF JUDGMENT : April 10, 2024

Opinion/decision of competent authority cannot be termed as ‘Government order’ unless sanctified as per Articles 77 and 166 of the Constitution, as the case may be.

On 07.02.2013, the Department of School and Mass Education, Government of Odisha communicated its decision to take over the management of the petitioner’s school and declare the same as Project Upper Primary School under Sarva Siksha Abhiyan. Another letter was issued on 19.03.2013 whereby the aforesaid decision was acted upon and the school was declared as such.

While the matter stood thus, the government passed an order dated 30.06.2014 recalling the earlier orders dated 07.02.2013 and 19.03.2013. Therefore, being aggrieved by such modified stance of the government, the petitioners impugned the order by filing writ petition.

The moot questions which arose for consideration were :

1. Whether in terms of Government Odisha Rules of Business the orders dated 07.02.2013 and 19.03.2013 of the State Government can be termed/treated; as orders of the Govt., thereby the consequences thereof have to follow;
2. Whether the order dated 29.01.2013 of the Minister of State (Independent Charge) heading the Department of School & Mass Education is to be treated as orders of the Government;
3. Whether the said orders being orders of the Government confer any rights on the petitioners;
4. Whether in terms of the Govt. Rules of Business the order dated 30.06.2014 issued by the Secretary-in-charge of the Government Department can be treated as a order of Government;
5. If the order dated 30.06.2014 by the Secretary to the Govt is treated as the order of the Government, by the said order, can the earlier order of the Govt. dated 29.01.2013 and letters dated 07.02.2013 and 19.03.2013 could have been recalled and a fresh order could have been passed ?

The Court considering the facts of the case and relying on the law laid down in Sethi Auto Service Station v. Delhi Development Authority: AIR 2009 SC 904: (2009) 1 SCC 180 (paragraph-14 of SCC) held that the notes in the file culminated in an executable order affecting rights of the parties after the Minister (Independent Charge) who is the final decision making authority in the Department, gave his approval by his order dated 21.01.2013 and final order got communicated by letter no.3326 dated 07.02.2013.

The Court relied upon the observations made by the Hon’ble Apex Court in the case of Municipal Corporation of Delhi v. Birla Cotton Spinning & Weaving Mills, AIR 1968 SC 1232 to hold that read along with the Article 166 of the Constitution. Rules of the Odisha Government Rules of Business, 1956 (OGRB), i.e., Rules 4A, 5, 7, 9 (1), First Schedule of the OGRB; entries 2, 3, 4 of Table VI(A), and the instructions issued by the Governor under the Rules: para 1.IV, would lead to an irresistible conclusion that the ‘Business of Govt.’ regarding the petitioners’ claim pertains to the department of School and Mass Education, i.e., in-charge of the Minister of State (independent charge), department of School and Mass Education, it was placed before him for obtaining ‘Govt. Orders’ and he dealt with it by passing order dated 29.01.2023. Therefore, it has to be held that said decision of the Minister was the decision and order of the State Government.

The Court held that the Rules 8(1) and Rule 4A OGRB, 1956 provide that the matter(s) involving the present lis belong to the First Schedule and is not ordinarily required to be considered at a meeting of the Cabinet. The Rule-5 of the OGRB, 1956 further clarifies that the business of the Government in the Department of School & Mass Education has been assigned by the Governor on the advice of the Chief Minister to the charge of a Minister of State. Therefore, as per the principles laid down in Municipal Corporation of Delhi (supra) the order of the Minister dated 29.01.2013 is Government Order and not a noting in the file as argued by opposite parties.

The Court further placed reliance upon the decision of the Hon’ble Supreme Court in State of Uttaranchal v. Sunil Kumar Vaish, (2011) 8 SCC 670 wherein it was categorically held that even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2).

Against this legal backdrop, the Court held that orders dated 07.02.2013 and 19.03.2013 can be said to have been issued in accordance with Articles 166 (1) and (2). Further, it observed as hereunder:

“As already indicated, it is evident that no order by Government, supported by reasons, modifying the decision of the Government order dated 29.01.2013 was ever made after communication of the Government order dated 29.01.2013 to petitioners, other stakeholders and various Government authorities. Therefore, the subsequent ‘reconsideration’ stated in the file and initiated with notes of an Officer, the notings of the Minister following the notes of the officer cannot be held to be order of the Government.”

Applying the tests laid down in Commissioner of Police v. Gordhan Das Bhanji : AIR 1952 SC 16: 1951 SCC 1088 and Mohinder Singh Gill v. Chief Election Commission : (1978) 1 SCC 405 reiterated in Opto Circuits (India) Ltd. v. Axis Bank : (2021) 6 SCC 707: AIR 2021 SC 753 Para-12 of SCC), the Court held supplementary/subsequent reasons those may have been furnished before the Court for so called ‘reconsideration’ would not come to aid of sustaining the ‘reconsideration’ and the purported ‘reconsideration’ was held to be bad in law and set aside.

Resultantly, the recall order dated 30.06.2014 passed by the Commissioner-cum-Secretary was held to be invalid and accordingly, set aside. The authorities were directed the entitlements that would accrue to the petitioners as consequences of the orders dated 07.02.2013 and 19.03.2013, the further benefits that are to follow were to be determined forthwith. The monetary benefits were to be calculated and the current benefits were to be granted within eight weeks. The arrears of admissible monetary benefits, if any, that would be due in terms of the orders dated 07.02.2013 and 19.03.2013 were to be calculated by the appropriate authority and released to the petitioners within a period of eight weeks from the date of release of the current dues.