STATE OF ORISSA Vs KANHU CHARAN MAJHI
Bench: ANIL R. DAVE,DIPAK MISRA
Case number: C.A. No.-009650-009650 / 2013
Diary number: 32171 / 2011
Advocates: SHIBASHISH MISRA Vs
CHANDRA BHUSHAN PRASAD
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9650 OF 2013 (Arising out of SLP (C) No. 29409 of 2011)
State of Orissa .....Appellant
Versus
Kanhu Charan Majhi …..Respondent
J U D G M E N T
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
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Administrative Tribunal in O.A. No. 831 of 2006 dated 27th
November, 2008 has been confirmed.
3. The facts giving rise to the present litigation, in a nutshell, are as
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
been initiated, by an order dated 16th October, 1995, the said
proceedings had been dropped. Thereafter, on 4th September, 2000,
the aforesaid decision with regard to closing the proceedings under
order dated 16th 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
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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
proceedings initiated against him as well as the decision dated 4th
September, 2000, whereby the order dated 16th October, 1995 had
been reviewed and it was decided to initiate departmental
proceedings against the respondent. Thereafter, by an order dated
27th 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
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”).
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7. The case of the respondent before the Tribunal as well as the High
Court was that once a decision was taken on 16th October, 1995 to
drop the departmental proceedings initiated against him, the said
decision could not have been reviewed on 4th September, 2000.
Therefore, no proceedings could have been initiated against the
respondent in pursuance of the said order dated 4th 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
the instant case, none could have reviewed the order dated 16th
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
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Rule 33, and, after consultation with the Commission where such consultation is necessary –
(a) confirm, modify or set aside the order ;
(b) impose any penalty or set aside, reduce, confirm or enhance the penalty imposed by the order ;
(c) remit the case to the authority which made the order or any other authority directing such further action or inquiry as he considers proper in the circumstances of the case; or
(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.
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
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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 :
Provided that no action under this rule shall be initiated more than six months after the date of the order to be reviewed.”
9. It had been submitted on behalf of the respondent-employee that in
the instant case, the order dated 4th 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
because the order dated 4th September, 2000, was passed in review
after about 5 years from the initial order. So, in either case, the
order dated 4th 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
appellant-State that the order dated 4th September, 2000 had been
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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
power of the Governor to take an order into review can be
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
Tribunal.
12. We have heard the concerned counsel and have carefully gone
through the impugned judgment as well as the order passed by the
Tribunal dated 27th November, 2008. We have also gone through
the relevant orders placed on record before this Court by both the
parties.
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13. Upon hearing the learned counsel and looking to the provisions of
the Rules we are of the view that the order dated 4th September,
2000, reviewing the order dated 16th October, 1995 was not in
accordance with the Rules. By virtue of the order dated 16 th
October, 1995, it was decided to drop the departmental
proceedings initiated against the respondent-employee and the said
decision was taken in review by virtue of the order dated 4th
September, 2000 and upon review, the order dated 16th 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
order dated 16th 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
the instant case, the order dated 4th September, 2000 was passed by
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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
Secretary is empowered to sign in the name of the Governor. Thus,
in view of the said legal position, the order dated 4th 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
virtue of the order dated 4th September, 2000, the order dated 16th
October, 1995 had been taken into review and as it was taken into
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
in pursuance of order dated 4th 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
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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
the proviso to Rule 32 of the Rules.
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
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
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the order dated 16th 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
by no stretch of imagination, period of five years can be said to be
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
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
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thereafter, he should be paid the pension so determined in normal
course.
19. The appeal is dismissed subject to the aforesaid direction and
modification in the judgment delivered by the High Court. There
shall be no order as to costs.
………………................................J.
(ANIL R. DAVE)
….................................................J. (DIPAK MISRA)
New Delhi October 28, 2013.
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