Disciplinary authorities cannot classify an employee's unrequested suspension as leave due when only a minor penalty is imposed, which violates service conditions.

JUDGMENT :

Biraja Prasanna Satapathy, J.

1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. Heard learned counsel appearing for the Parties.

3. Petitioner has been filed the present Writ Petition inter alia challenging order dtd.26.09.2022 so passed by Opposite No.2 under Annexure-1, further confirmed by the appellate authority-Opposite Party No.1 vide order dtd.26.06.2023 under Annexure-3.

4. Learned counsel appearing for the Petitioner contended that in the proceeding initiated against the Petitioner under Rule-15 of the OCS(CCA) Rules, 1962 vide Memorandum dtd.10.12.2018, Opposite Party No.2 being the disciplinary authority while disposing the proceeding vide the impugned order dtd.26.09.2022 under Annexure-1, imposed the following punishment:-

“1. He may be censured for not to involve in any such activities in future.

2. The period of suspension may be treated as leave on credit.”

4.1. Learned counsel appearing for the Petitioner contended that even though Petitioner preferred an appeal against such order of punishment vide Annexure-2, but the appellate authority without proper appreciation of the grounds taken in the appeal rejected the same vide order dtd.28.06.2023 under Annexure-3.

4.2. Challenging the order of punishment imposed vide order under Annexure-1, so confirmed vide order under Annexure-3, learned counsel appearing for the Petitioner contended that since while disposing the proceeding vide order dtd. 26.09.2022 under Annexure-1 Petitioner was only censured which is a minor punishment as provided under Rule-13 of the OCS (CCA) Rules, 1962, while imposing such a minor punishment, the period of suspension could not have been treated as leave on credit, in view of the decision of this Court in the case of Bani Bhusan Dash Vs. State of Odisha & Others (W.P.(C) No.7635 of 2019) and further decision passed by this Court in the case of Dr. Smita Mohanty vs. State of Odisha & Others (WPC(OA) No.2585 of 2016. This Court in Para-10 the decision in the case of Bani Bhusan Dash and Para- 4.1., 5 & 6 of the order dtd.05.07.2023 in the case of Dr. Smita Mohanty has held as follows:-

“10. Coming to the 3rd punishment, as imposed in the impugned order dated 15.09.2018 under Annexure-8, i.e. treating the period of suspension as leave due and admissible, no doubt the authorities are empowered to place an employee under suspension in contemplation or pending drawal of a proceeding exercising their power under Rule-12 of the OCS (CCA) Rules, 1962. Accordingly, they have to give a conclusion the manner to treat the period of suspension at the time of passing final order in the departmental proceeding. The authorities are to keep the suspension as such or to revoke the said suspension order by revising the period of suspension as duty, as because honouring nonengagement certificate for the relevant period, the authorities have sanctioned subsistence allowance to the delinquent during the period of suspension. In the instant case, the authority, after taking a decision not to treat the period of suspension as such, is not empowered to take a decision to treat the period of suspension as leave due and admissible, when the petitioner did not ask for any leave during the said period of suspension. Regularization of a particular period treating as leave period of different kinds of leave, as provided under Orissa Leave Rules, can be considered only when the petitioner/employee concerned seeks leave from the competent authority for certain period under certain circumstances. The authority cannot initiate a proposal from its side in assumption of leave application from the delinquent or employee concerned to treat the period as leave due and admissible affecti