STATE OF ORISSA vs. KANHU CHARAN MAJHI

REPORTABLE

J U D G M E N T JUDGMENT ANIL R. DAVE, J. 1. Leave granted. 2. Being aggrieved by the judgment delivered in Writ Petition (C) No. 2492 of 2010 by the High Court of Orissa, the appellant-State has filed this appeal. By virtue of the impugned judgment delivered by the High Court, the order passed by the Orissa Page 1 th Administrative Tribunal in O.A. No. 831 of 2006 dated 27 November, 2008 has been confirmed.

under :- The respondent was appointed as an Inspector of Supplies on the post which had been reserved for SC/ST candidates. It was reported to the Government Authorities that, in fact, the respondent was not belonging to either SC or ST and therefore, proceedings were to be initiated against him so as to ascertain whether the information received was correct. Though the proceedings had th been initiated, by an order dated 16 October, 1995, the said th proceedings had been dropped. Thereafter, on 4 September, 2000, JUDGMENT the aforesaid decision with regard to closing the proceedings under th order dated 16 October, 1995 had been reconsidered and a notice was issued to the respondent with regard to initiation of the departmental proceedings. 4. The re-initiation of the proceedings had been challenged by the respondent before the Orissa Administrative Tribunal even at an 2 Page 2 earlier point of time and the Tribunal had decided the same in favour of the respondent but, at this stage, we are not concerned with the earlier proceedings and therefore, we do not refer to the same. 5. Ultimately the respondent had challenged the disciplinary th proceedings initiated against him as well as the decision dated 4 th September, 2000, whereby the order dated 16 October, 1995 had been reviewed and it was decided to initiate departmental proceedings against the respondent. Thereafter, by an order dated th 27 November, 2008, the Orissa Administrative Tribunal decided the said case in favour of the respondent and therefore, the appellant-State had filed the above referred Writ Petition (C) No. 2492 of 2010 before the High Court, which has been finally JUDGMENT dismissed and thus, the State of Orissa has filed this appeal. 6. The issue involved in the present litigation is with regard to powers of the Governor and the State Government Authorities in relation to review under the provisions of Rules 31 and 32 of the Orissa Civil Services (Classification, Control & Appeal) Rules, 1962 (hereinafter referred to as “the Rules”). 3 Page 3 7. The case of the respondent before the Tribunal as well as the High th Court was that once a decision was taken on 16 October, 1995 to

Therefore, no proceedings could have been initiated against the th respondent in pursuance of the said order dated 4 September, 2000. 8. The submissions advanced before the Tribunal, the High Court and before this Court on behalf of the respondent-employee were to the effect that under Rule 31 of the Rules only the Governor has the power to take any order in review whereas under Rule 32 of the Rules, the appellate-authority can take any order into review, but in JUDGMENT th the instant case, none could have reviewed the order dated 16 October, 1995. The aforestated two Rules have been reproduced hereinbelow :- “31. Governor’s power to review – Notwithstanding anything contained in these rules, the Governor may, on his motion or otherwise, after calling for the records of the case, review any order which is made or is appealable under these rules or the rules repealed by 4 Page 4 Rule 33, and, after consultation with the Commission where such consultation is necessary – (a) confirm, modify or set aside the order ;

(d) pass such other orders as he deems fit; Provided that – (i) an order imposing or enhancing a penalty shall not be passed unless the person concerned has been given an opportunity or making any representation which he may wish to make against such enhanced penalty; (ii) if the Governor proposes to impose any of the penalties specified in Clauses (vi) to (ix) of Rule 13 in a case where an enquiry under Rule 15 has not been held, he shall, subject to the provisions of Rule 18, direct that such inquiry be held and, thereafter, on consideration of the proceedings of such inquiry and after giving the person concerned an opportunity of making any representation which he may wish to make against such penalty, pass such orders as he may deem fit. JUDGMENT 32. Review of Orders in Disciplinary Cases – The authority to which an appeal against an order imposing any of the penalties specified in Rule 13 lies may, of its own motion or otherwise, call for the records of the case in a disciplinary proceeding, review any order passed in such a 5 Page 5 case and, after consultation with the Commission, where such consultation is necessary, pass such orders as it deems fit as if the Government servant had preferred an appeal against such order :

9. It had been submitted on behalf of the respondent-employee that in th the instant case, the order dated 4 September, 2000 was not passed by the Governor and therefore, the power under Rule 31 of the Rules had not been exercised. So far as Rule 32 of the Rules is concerned, there is a period of limitation, which is six months and if the power was exercised under Rule 32, it was bad in law th because the order dated 4 September, 2000, was passed in review after about 5 years from the initial order. So, in either case, the JUDGMENT th order dated 4 September, 2000, whereby it was decided to initiate departmental proceedings was not in accordance with the Rules and therefore, the impugned judgment upholding the view of the Tribunal is correct. Therefore, the appeal should be dismissed. 10. On the other hand, it had been submitted on behalf of the th appellant-State that the order dated 4 September, 2000 had been 6 Page 6 passed under the provisions of Rule 31 of the Rules and therefore, there was no question with regard to limitation because only Rule 32 of the Rules provides for limitation of six months whereas

exercised at any time. 11. It had been further submitted that, in fact, the order had been passed by the Governor because according to the Rules of business of the appellant-State it is not necessary that the Governor himself should sign the order to be passed by the Governor. The Rules of business provide that in the name of the Governor, an order can be passed by the concerned officer. Thus, all the departmental proceedings were just and proper and the Division Bench of the High Court had committed an error by upholding the view of the JUDGMENT Tribunal. 12. We have heard the concerned counsel and have carefully gone through the impugned judgment as well as the order passed by the th Tribunal dated 27 November, 2008. We have also gone through the relevant orders placed on record before this Court by both the parties. 7 Page 7 13. Upon hearing the learned counsel and looking to the provisions of th the Rules we are of the view that the order dated 4 September, th 2000, reviewing the order dated 16 October, 1995 was not in

October, 1995, it was decided to drop the departmental proceedings initiated against the respondent-employee and the said th decision was taken in review by virtue of the order dated 4 th September, 2000 and upon review, the order dated 16 October, 1995 was set aside and it was decided to initiate proceedings against the respondent-employee again. 14. We have considered the provisions of Rule 31 of the Rules, whereby power has been given to the Governor to review any order and therefore, it was open to the Governor to review the JUDGMENT th order dated 16 October, 1995. Now the question is whether the order was passed by the Governor. It is true that when any statute empowers the Governor to pass an order, the Governor himself need not sign and need not pass the order. The Rules of business of the particular State deal with the procedure as to how an order is to be passed by the Governor or in the name of the Governor. In th the instant case, the order dated 4 September, 2000 was passed by 8 Page 8 the Under Secretary, Food Supplies & Consumer Welfare Department of the Government of Orissa. According to Rules 11 and 12 of the Orissa Government Rules of Business, an Under

th in view of the said legal position, the order dated 4 September, 2000 can be said to have been passed by the Governor, exercising power under Rule 31 of the Rules. 15. So far as the exercise of power under Rule 32 of the Rules is concerned, it is very clear from the proviso to the Rule that no action can be taken under the said Rule after more than six months from the date on which the order to be reviewed was passed. By th th virtue of the order dated 4 September, 2000, the order dated 16 October, 1995 had been taken into review and as it was taken into JUDGMENT review after more than six months, the order would be bad if it was passed under Rule 32 of the Rules. Thus, initiation of proceedings th in pursuance of order dated 4 September, 2000 was bad and rightly held so by the Tribunal and confirmed by the High Court. 16. Upon perusal of both the aforestated Rules, it is clear that an order, passed by the Government Authorities, can be reviewed. So far as Rule 32 of the Rules is concerned, in a disciplinary case the 9 Page 9 Appellate Authority can review the order but the Authority can review the order within six months from the date of passing of that order and thereafter the order cannot be reviewed as specified in

17. So far as the power of the Governor with regard to review of an order is concerned, Rule 31 of the Rules does not prescribe any period of limitation. Normally, when no period of limitation is prescribed, for exercising the power of review, the power of review should be exercised within a reasonable period from the date of order which is sought to be reviewed. In the instant case, the Governor had reviewed the order after about five years. In any case, period of five years cannot be said to be a reasonable period. The action with regard to review of the order, so as to make it JUDGMENT effective, ought to have been passed within reasonable period and the facts of each case would determine as to what period would be reasonable. In the instant case, looking at the fact that Rule 32 of the Rules prescribe period of six months as limitation for exercising power of review in disciplinary cases, one can reasonably infer that period of five years cannot be said to be reasonable for exercise of power under Rule 31 of the Rules. We, therefore, conclude that even if the Governor had power to review 10 Page 10 th the order dated 16 October, 1995, which pertains to dropping of the departmental proceedings initiated against the respondent, the said power could not have been exercised after about five years, as

reasonable in the facts of the case. 18. It might be open to the appellant-State to initiate some proceedings against the respondent-employee again. However, the subsequent development in the matter is that the respondent-employee has already reached the age of superannuation. Looking at the peculiar facts of the case and in the interest of justice, we feel that no further action should be taken against the respondent-employee as the matter is pending since long and it requires a quietus. In view of these peculiar circumstances, following the principle of “no JUDGMENT work, no pay”, we direct that no back wages should be paid to the respondent-employee for the period during which he had not worked with the appellant-State. The respondent-employee should, however, be paid pension from the date on which he would have been superannuated on the basis of the last pay actually drawn by him. The amount so payable to the respondent-employee shall be calculated and paid to him within three months from today and 11 Page 11 thereafter, he should be paid the pension so determined in normal course. 19. The appeal is dismissed subject to the aforesaid direction and

shall be no order as to costs. ………………................................J . (ANIL R. DAVE) ….................................................J. (DIPAK MISRA) New Delhi October 28, 2013. JUDGMENT 12 Page 12