RAJKISHORE DASH Vs. STATE OF ORISSA

JUDGEMENT

(1.) Order of the Orissa Administrative Tribunal (in short, the 'Tribunal') directing petitioner to avail appellate forum purportedly available under Rule 23 (1) of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 (in short, 'Rules') is under challenge in this writ application.

(2.) THERE is practicably no dispute on the factual aspect, and a brief reference thereto would suffice. Petitioner was proceeded against in a departmental proceeding and on conclusion thereof, he was exonerated from the charges. However, period of suspension was treated as such considering alleged gravity of charges. Said order was challenged before the Tribunal. Petitioner took the stand that since he has not been held guilty of the charges, it cannot all be conceived that period of suspension was to be treated as a measure of penalty. Tribunal held that all the same, order varied of his disadvantage of service benefits, and was to be assailed in an appeal under Rule 23 (1) of the Rules. Since remedy was not exhausted, Original Application was not entertained. Direction was given that paper book filed by Tribunal was to be sent to the Special Secretary, G.A.Department to treat the same as an appeal under Rule 23 (1) of the Rules and obtain Government orders on the same and communicate them to the applicant within three months from the date of receipt of a copy of the order. It was further directed that while processing the appeal, provisions of Rule 91 (2) of the Orissa Service Code (in short. 'Code') were to be kept in view.

(3.) TO appreciate the rival submissions, it is necessary to take note of a few provisions. Rule 91 of Code so far as relevant reads as follows: Rule 91 of the Code. '91 (1). When a Government servant who has been dismissed, removed, compulsorily retired or suspended is reinstated or would have been reinstated but for his retirement on superannuation while under suspension the authority competent to order the re -instatement shall consider and make a specific order : (a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty or for the period of suspension ending with the date of his retirement on superannuation, as the case may be. and (b) whether or not the said period shall be treated as a period spent on duty. (2) Where such competent authority holds that the Government servant has been fully exonerated or in the case of suspension, that it was wholly unjustified, the Government servant shall be given the full pay to which he would have been entitled had he not been dismissed, removed, compulsorily retired or suspended, as the case may be, together with any allowances of which he was in receipt prior to his dismissal, removal or suspension. (3) xxx xxx xxx (4) In a case falling under Clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. (5) xxx xxx xxx' Rule 12 (6) of the Rules. '12. xxx xxx xxx (6) The disciplinary authority