BANSHIDHAR PANIGRAHI Vs. STATE OF ORISSA AND ORS.

JUDGEMENT

(1.) THE Petitioner was a police constable in the Malkangiri P.S. In the district of Koraput. A first information report was lodged against him under Sections 342/392, Indian Penal Code on 25 -3 -1967. He was suspended during the pendency of the Criminal Proceeding on 29 -3 -1967. on order was, passed that he would be entitled to get subsistence allowance under Rule 90 of the Orissa Service Code. On 3 -5 -1968 he was convicted and sentenced to a fine of Rs. 80/ - in default to R.I. for one month. In Criminal Appeal No. 38 of 1968, the conviction was upheld but the sentence was reduced to Rs. 50/ - with a default sentenced. The criminal appeal was dismissed on 3 -4 -1969. During the pendency of the criminal appeal, on 14 -8 -1968 a disciplinary proceeding was initiated against the Petitioner and he was ultimately dismissed on 9 -9 -1969, but the order of dismissal as intimated to him on 19 -9 -1969. On these facts three contentions are raised by Mr. T.V. Murty. They are (a) As the subsistence allowance was not paid regularly and in time there was absence of reasonable opportunity in the departmental proceeding and in consequence the order of dismissal is bad (b) the order of suspension passed during the pendency of the criminal proceeding terminated with the order of conviction and sentence and the Petitioner shall be deemed to be continuing in service thereafter and (c) the Petitioner has been dismissed with effect from 9 -9 -1969, but he received the order of dismissal, on 19 -9 -1969 and on order dismissing the Petitioner retrospectively is bad in law and is liable to be quashed. These three contentions require careful examination.

(2.) IN support of the first contention Mr. Murty places reliance on Ghanshyam v. State of M.P. : A.I.R. 1973 S.C. 1183. A Constitution Bench in that cases held that where the delinquent had specifically communicated his inability to attend the enquiry due to paucity of funds resulting from non -payment of subsistence allowance, the enquiry was vitiated far his non -participation. No adverse inference as to his sources of income could be drawn from the fact that he did not state them in his affidavit in the writ petition or from the fact that he challenged his dismissal by writ petition immediately after his dismissal and subsequently came in appeal before the Supreme Court.

(3.) THE last contention is that the dismissal order was passed on 9 -9 -1969 which the Petitioner received on 19 -9 -1969 and that it should be operative from 19 -9 -1969. The contention is sound and is no longer res integra. It is concluded by State of Punjab v. Amar Singh : 1967 S.C.D. 203 : A.I.R. 1966 S.C. 1313. The result therefore is that the Petitioner shall be deemed to have been dismissed from service with effect from 19 -9 -1969 and not 9 -9 -1969. This contention will succeed.