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GOVERNMENT BEING A MODEL EMPLOYER CANNOT BE SEEN TO TAKE STEPS TO SECOND-GUESS ITS OPPONENT IN LITIGATION LIKE A PRIVATE LITIGANT: ODISHA HIGH COURT

This particular decision is upheld by the High Court of Odisha through the division bench of Justice Sashikanta Mishra in the case of Amar Kumar Behera v State of Odisha and Ors (WPC (OAC) No. 1493 of 2018)

FACTS

The petitioner had originally filed O.A. No.1493(C) of 2018 before the learned Odisha Administrative Tribunal, Cuttack Bench, Cuttack to declare the conduct of disciplinary proceeding against him as ultra vires under Rule-15 of the OCS (CCA) Rules, 1962 and Article-14 of the Constitution of India as also to declare the enquiry report as null and void. During pendency of the O.A. the second show cause notice was served upon him on 30.06.2018 proposing the punishment of dismissal from service. The petitioner approached the learned Tribunal in S.P. No. 74(C) of 2018 against such action of the authorities. While the matter stood thus, vide order dated 15.05.2020, the opposite party no.1 passed an order finalizing the disciplinary proceeding and imposing the penalty of dismissal from service and for recovery of the allegedly misappropriated amount of Rs.81,02,370 /- from the petitioner.

JUDGEMENT

From the foregoing narration it is clear that the Government has taken prevaricating pleas in the matter, which are also self-contradictory and hence, prima facie, not acceptable. Firstly, if it is held that the interim order dated 09.07.2018 was not in force after 08.08.2018 since nothing was stated in such order regarding extension of the order dated 09.07.2018, then the question of applicability of the ratio of the decision in Asian Resurfacing (Supra) becomes redundant. Secondly, if the impugned order was issued on the basis of the Asian Resurfacing (Supra) then the inordinate delay of nearly one and half years in issuing such order ought to have been satisfactorily explained. Thirdly, if the Government had already issued the order of dismissal, as according to it, there was no interim order in operation, then for what reason was the decision taken to file a petition for vacation thereof? All these questions remain unanswered which strongly persuade the Court to hold that the action of the Government cannot be countenanced in law.

As has already been held hereinbefore, the Government by issuing the impugned order without obtaining leave of the Tribunal despite clear orders to do so must therefore be held to have acted in violation thereof for which the impugned order has to be treated as a nullity in the eye of law and is therefore, held as such. Consequently, the impugned order is set aside and the parties are restored to the position as existing prior to issuance of the impugned order. Further, the opposite party authorities are restrained from passing any final order in the disciplinary proceeding till finalization of the writ petition.

JUDGEMENT REVIEWED BY NAISARGIKA MISHRA

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