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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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