STATE OF ORISSA Vs. KARUNAKAR BISWAL

JUDGEMENT

(1.) The State of Odisha and its functionaries have filed this writ petition assailing the order dtd. 27/2/2019 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 229 (C) of 2020, by which the orders passed by the authorities, vide Annexures-2 and 3 to the Original Application, have been quashed and the present petitioners have been directed to take back opposite party no.1 into service by entitling him the service benefits from the date of his appointment, with the observation that he will not be entitled to any financial benefits for the period during which he had not performed any duty.

(2.) The factual matrix of the case, in brief, is that opposite party no.1, who was the applicant before the Orissa Administrative Tribunal, after being selected through a process of selection, was appointed as a Sepoy in 5thBattalion, Baripada vide order dtd. 10/2/2009. Subsequently, he was deputed to OASP 3rdBattalion, Koraput for undergoing advance training course. During the training period, he applied for 10 days C.L. w.e.f. 16/5/2013 to 25/6/2013 on the ground of his father's death. But subsequently it came to light that the reason shown in the said C.L. application, i.e., his father's death was false and accordingly he was removed from government service w.e.f. 7/6/2013, as per the instruction of SAP Headquarters, Orissa, Cuttack, communicated on 30/5/2013 read with PMR 668-A, as per order issued by Commandant, OSAP, 5thBattalion, Baripada vide Annexure-2 to the Original Application. In the said order dtd. 7/6/2013, it was further alleged that earlier opposite party no.1 had availed paternity leave for 15 days from 10/9/2012 to 25/9/2012, but, instead of joining on duty on 26/9/2012, he over-stayed till 23/3/2013 on the plea of death of his grandmother. Even though such allegations were made, neither any show cause notice was issued by the disciplinary authority nor any disciplinary proceeding was initiated against him and without giving him any opportunity of being heard, he was imposed with a major penalty. Thereafter, he preferred appeal before the DG and IG of Police, which was not considered in proper perspective and the same was rejected vide order dtd. 7/9/2013. Therefore, challenging the order of removal from service as well as the order of rejection of his appeal, the petitioner approached the tribunal by filing O.A. No. 229 (C) of 2014 contending therein that the order of removal from service was in clear violation of principle of natural justice and the order of rejection of his representation was also arbitrary, unreasonable, discriminatory and contrary to the settled principles of law. After due adjudication, the tribunal, vide order dtd. 27/2/2019, quashed the impugned orders of removal and rejection of his appeal under Annexures-2 and 3 to the Original Application and directed the present petitioners to take back opposite party no.1 into service. However, the tribunal observed that opposite party no.1 will be entitled to service benefits in accordance with the date of his appointment, but he will not be entitled to any financial benefits for the period during which he had not performed any duty on the basis of Annexures-2 and 3 to the O.A.. As such, the time limit was fixed by the tribunal to complete the entire exercise within a period of two months. This writ petition has been filed by the State functionaries, who were the opposite parties before the tribunal, alleging that the tribunal has committed error apparent on the face of the record, so as to warrant interference by this Court by quashing the impugned order.

(3.) Mr. M.K. Khuntia, learned Additional Government Advocate appearing for the State-petitioners, vehemently contended that the tribunal has committed gross error apparent on the face of the record granting relief in favour of opposite party no.1. According to him, on a bare reading of PMR 668-A, it would be clear that formalities required under Rule 828 are not required for removing the probationer under PMR 668. By conduct opposite party no.1 had proved himself to be unfit for appointment as Sepoy in the Battalion, which is a disciplined force. He further contended that opposite party no.1 was on probation and bound to adhere to the police ethos and discipline. More so, it is contended that Rule-14 (3) of the Method of Recruitment and Conditions of Service of Sepoys/Constables in Battalions Rules, 2011 provides that the person appointed shall be on probation for a period of two years or till successful completion of basic course of training. Opposite party no.1 had not completed basic course of training and he was on probation at the time of discharge under PMR 668. Thereby, the tribunal has committed grave error for not taking into consideration such provision and passed the impugned order which cannot sustain in the eye of law.