IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.38226 of 2023 In the matter of an application under Articles 226 and 227 of the Constitution of India. ……………… Damodar Mishra …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner : Mr. B. Routray, Sr. Advocate with Mr. J. Biswal, Advocate For Opp. Parties : Mr. P.K. Panda, ASC PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------- Date of Hearing:05.03.2026 and Date of Judgment:05.03.2026 -------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. Heard Mr. B. Routray, learned Senior Counsel along with Mr. J. Biswal, learned counsel for the petitioner and Mr. P.K. Panda, learned Addl. Standing Counsel for the State. 2. The present Writ Petition has been filed inter alia with the following prayer: - “It is therefore, most humbly prayed that this Hon'ble Court be graciously pleased to i) Admit the writ application. ii) Call for the record. iii) Issue Rule Nisi calling upon 0pp. Parties more particularly 0pp. Party No.1 and 2 to show cause as to why the order No.11911 dtd. 11.12.2017 under Annexure-8, Order No.5931 dtd. 23.10.2019 under Annexure-10 and Order No. 6285 dtd. 01.09.2023 under Annexure-12 shall not be quashed. iv) If the 0pp. Parties more particularly 0pp. Party No.2 and 3 fails to show cause or show insufficient cause issue a writ in the nature of certiorari or any other appropriate writ/writs, order/orders, direction/directions by quashing the order No.11911 dtd. 11.12.2017 under Annexure-8, Order No.5931 dtd. 23.10.2019 under Annexure10 and Order No. 6285 dtd. 01.09.2023 under Annexure-12. v) Issue a writ in the nature of mandamus or any other appropriate writ/writs, order/orders, direction/directions directing the opposite party No. 2 to treat the period of suspension from 03.03.2011 to 25.12.2011 as duty and consequentially allow all the service benefits and emoluments for the said period. vi) And/or pass such other order/orders, direction/directions as the Hon'ble Court may deem fit and proper for the ends of justice.” 3. It is contended that in the proceeding initiated against the petitioner vide Memorandum dated 28.04.2012 under Annexure-2, after completion of the enquiry under Annexure-4, petitioner was issued with the 2nd show-cause on 17.08.2017 under Annexure-6 by proposing the following punishment:- “1. One increment to be stopped without cumulative effect. 2. The period of suspension with effect from 03.03.2011 to 25.12.2011 to be treated as such.” 3.1. It is however contended that after consideration of the reply made by the petitioner to the 2nd show- cause under Annexure-7 and while disposing the proceeding vide order dated 11.12.2017 under Annexure-8, the Disciplinary Authority-Opp. Party No.2 imposed the following punishment on the petitioner:- “1. D.O. is warned not to commit such mistake in future. 2. The period of suspension with effect from 03.03.2011 to 25.12.2011 to be treated as such.” 3.2. It is contended that while disposing the proceeding, Opp. Party No.2 since imposed the punishment of warning which is a minor punishment as prescribed under Rule-13 of OCS(CCA) Rules, 1962 (in short Rules) in view of the decision in the case of Bani Bhusan Dash Vrs. State of Odisha and Others (W.P.(C) No.7635 of 2019 decided on 28.10.2021), the period of suspension could not have been treated as such. This Court in Para 10 of the decision in the case of Bani Bhusan Dash 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 affecting the delinquent by way of consuming accrued leave in favour of the employee concerned without any fault on his part. As the authority has come to a conclusion to punish the petitioner only with a minor penalty, the decision of the competent authority to place the petitioner under suspension on the allegation of grave misconduct does not appear to be satisfactory, rather it seems that the order of suspension was issued without application of mind or in a routine or mechanical manner. As such, no review of suspension was held, as per the guidelines. Under such circumstances, after concluding the departmental proceeding by imposing minor penalty of stoppage of one increment without cumulative effect, the authority should not have treated the period of suspension in any manner other than the duty affecting the service condition of the petitioner.” 3.3. It is contended that challenging such order of punishment, petitioner when moved Opp. Party No.1- Appellate Authority by filing an appeal under Annexure-9, the Appellate Authority vide order dated 23.10.2019 under Annexure-10, modified the order to the following effect:- “i. He is censured. ii. The period of suspension from 03.03.2011 to 25.12.2011 may be treated as such.” 3.4. It is contended that Review filed by the petitioner against the order of punishment passed by the Appellate Authority was also rejected vide order dated 18.09.2023 under Annexure-12. 3.5. Learned Senior Counsel appearing for the Petitioner contended that since while disposing the proceeding so modified in appeal, punishment of censure so imposed, is in the nature of a minor punishment, in view of the decision in the case of Bani Bhusan Dash so cited (supra) so followed by this Court in various Writ Petitions, the period of suspension could not have been treated as such and instead the period of suspension is to be treated as duty for all purposes. 3.6. This Court placing reliance on the decision in the case of Bani Bhusan Dash has passed the following order in W.P.(C) No.11038 of 2022. Para-7 and 7.1 of the order reads as follows:- “7. Having heard learned counsel appearing for the Parties and taking into account the materials available on record, it is found that while disposing the proceeding vide order dt.21.08.2015 under Annexure- 7, Petitioner was imposed with a minor punishment i.e. stoppage of one increment without cumulative effect. Appeal filed against such order of punishment was rejected vide order dt.25.03.2022 under Annexure10. 7.1. On the face of such punishment imposed and in view of the decisions as cited supra, the period of suspension should not have been treated as such, instead of treating the same as duty. Therefore, this Court is inclined to quash the order so far as it relates to treating the period of suspension as such. While quashing the same, this Court directs Opp. Party No. 2 to treat the period of suspension as duty and extend the financial benefit as due and admissible in favour of the Petitioner. Such an exercise be undertaken and completed by the O.P. No. 2 within a period of two (2) months from the date of receipt of this order.” 3.7. It is accordingly contended that while imposing the punishment of censure, which is a minor punishment, period of suspension treated as such, requires interference of this Court. 4. Learned Addl. Standing Counsel on the other hand made his submission basing on the stand taken in the counter affidavit so filed. It is contended that since in the proceeding in question, there is no allegation that petitioner has not been provided with due opportunity of hearing and there is violation of any statutory rule, no illegality or irregularity can be found with the impugned order. 4.1. It is also contended that since the order passed by the Disciplinary Authority has been considered and modified by the Appellate Authority vide order under Annexure-10 so upheld in Review, challenge made to the order of punishment is no more entertainable. 5. Having heard learned counsel for the parties and considering the submission made, this Court finds that in the proceeding initiated vide Memorandum dated 28.04.2012 under Annexure-2 and while disposing the proceeding vide order dated 11.12.2017 under Annexure-8, Opp. Party No.2 being the Disciplinary Authority imposed the following punishment:- “1. D.O. is warned not to commit such mistake in future. 2. The period of suspension with effect from 03.03.2011 to 25.12.2011 to be treated as such.” 5.1. In the appeal so filed by the petitioner, Appellate Authority imposed the following punishment:- “i. He is censured. ii. The period of suspension from 03.03.2011 to 25.12.2011 may be treated as such.” 5.2. The order passed in appeal has been confirmed in Review vide order dated 18.09.2023 under Annexure-12. This Court taking into account the nature of punishment imposed by the Appellate Authority under Annexure-10, so confirmed in Review, is of the view that since while disposing the appeal, petitioner was imposed with the punishment of censure, which is a minor punishment, in view of the decision in the case of Bani Bhusan Dash so cited (supra) and followed by this Court in W.P.(C) No.11038 of 2023, while imposing such a minor punishment, the period of suspension could not have been treated as such. 5.3. Therefore, placing reliance on the aforesaid decision and subsequent decision in W.P.(C) No.11038 of 2022, this Court is inclined to quash the order so far as it relates to treating the period of suspension as such. While quashing that part of the order, this Court directs Opp. Party No.2 to treat the period of suspension from 03.03.2011 to 25.12.2011 as duty for all purpose and extend the consequential benefit as due and admissible in favour of the petitioner. This Court directs Opp. Party No.2 to complete the entire exercise within a period of 2 (two) months from the date of receipt of this order. 6. The Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 5th March, 2026/Basudev