B.P.SATAPATHY, J.

1. State of Odisha represented through Addl. Chief Secretary to Government Finance Department is the Petitioner in the present Writ Petition and seeks to challenge the order passed by the Orissa Administrative Tribunal, Bhubaneswar on 11.02.2015 in O.A. No.1771 of 2013.

The Tribunal vide the said order quashed the order of punishment imposed against the private Opposite Party No.1 on 19.07.2013 and further held that the Opposite Party No.1 will be eligible for consequential service and financial benefits.

2. The factual matrix giving rise to filing of the present case is that the Opposite Party No.1 while working as Addl. CTO, Cuttack-III Circle, Jajpur Road, the proceeding was initiated against her vide Memorandum dated 12.05.2004 in terms of the provision contained under Rule-15 of OCS (CCA) Rules, 1962. On receipt of the charges, though the Opposite Party No.1 submitted her representation on 19.07.2004, but the Petitioner herein without considering the same appointed the Enquiry Officer and Marshalling Officer vide order dated 01.10.2004. The Enquiry Officer after completion of the enquiry submitted the report on 30.05.2008 by suggesting to impose the penalty of Censure against the Opposite Party No.1. The Opposite Party No.1 subsequently was permitted to give her representation against the finding of the enquiry officer vide letter dated 12.01.2009 and the Petitioner also made her representation.

2.1. The Disciplinary Authority after consideration of the representation though in principle decided to award the punishment of Censure but sent the same for concurrence by the Orissa Public Service Commission-Proforma Opposite Party No.2 vide letter dated 04.06.2009. The Commission when recommended for imposition of enhanced punishment i.e. to Censure and to withhold one annual increment with cumulative effect, the Opposite Party No.1 vide order dated 27.05.2010 imposed the punishment of Censure and stoppage of one annual increment with cumulative effect.

2.2. The Opposite Party No.1 being aggrieved by the order of punishment dated 27.05.2010 approached the Tribunal in O.A. No.862 of 2010. The Tribunal vide order dated 19.12.2012 disposed of the O.A with the following order:-

“ Learned counsel for the applicant and learned standing counsel are present and heard. Learned counsel for the OPSC is also present and heard.

Copy of the documents, i.e. reference made by the State Government to the OPSC and reply of OPSC are submitted today for perusal. Copies of the said records are taken on record with copy to learned counsel for the applicant. In view of reference to the observations of the PSC relating to enhanced punishment without the disciplinary authority recording detailed reasons for acceptance of such orders in the punishment orders at annexure-11, which is not in harmony with the decision of this Tribunal dtd.5.2.1999 in O.A1074/92-Dr. Dukhshyam Dash-vrs-State of Orissa, reported in (1999) 1 ATT (OAT) 485, stating that the OPSC cannot normally suggest enhancement of punishment beyond punishment proposed by the disciplinary authority and the disciplinary authority has to cite detailed reasons for accepting such recommendation about enhanced punishment, the said punishment order at annexure-11 is untenable and stands quashed. The matter is remitted back to the disciplinary authority for issuing fresh orders in the matter in tune with the decision of the Tribunal in O.A NO.1074/92 Dr. Sukhshyam Dash-vrs-State of Orissa, ibid, within a period of six months from the date of receipt of these orders, failing which the disciplinary proceeding shall stand quashed”. After receipt of the order passed by the Tribunal in O.A. No.862 of 2010, the Petitioner herein vide letter dated 21.03.2013 proposed to impose the punishment of Censure and withholding of one annual increment without cumulative effect. But the proposal when was sent for concurrence of the Commission, once again the Commission vide letter dated 08.05.2013 while giving its concurrence, enhanced the punishment to Censure and withholding of one annual increment with cumulative effect.

2.3. After receipt of the opinion from the Commission, the Opposite Party No.1 was issued with the show cause proposing the punishment of censure and withholding of one annual increment with cumulative effect vide letter dated 21.06.2013. The Opposite Party No.1 though submitted her reply to the same, but the Petitioner imposed the order of punishment vide order dated 19.07.2013 by imposing the punishment of Censure and withholding of one annual increment with cumulative effect.

2.4. The Opposite Party No.1 being aggrieved once again by the order of punishment passed on 19.07.2013, approached the Tribunal in O.A No.1771/2013. The Tribunal vide order dated 11.02.2015 when quashed the order of punishment passed on 19.07.2013 and with a further direction on the Petitioner by holding the Opposite Party No.1 eligible for consequential service and financial benefits, the present Writ Petition was filed by the State.

3. Mr. S.N. Nayak, learned Addl. Standing Counsel appearing for the Petitioner vehemently contended that in the year 2004 because of dereliction of duty, the Opposite Party No.1 was proceeded with in a proceeding vide Memorandum dated 12.05.2004 under Rule-15 of the OCA(CCA) Rules, 1962. In the said proceeding, when the Opposite Party No.1 was imposed with the punishment vide order dated 27.05.2010, the Opposite Party challenging the same approached the Tribunal in O.A No.862 of 2010. The Tribunal vide its order dated 19.12.2012 while quashing the order of punishment by holding the same not sustainable in the eye of law, remitted the same to the Disciplinary Authority for issuing fresh order in the matter, failing which the Disciplinary Proceeding shall stand quashed. After such remittance of the matter, the Petitioner being the disciplinary authority passed the order of punishment afresh on 19.07.2013.

3.1. The Opposite Party No.1 challenging the order dated 19.07.2013 approached the Tribunal in O.A No.1771/2013. But the Tribunal without considering the stand taken by the petitioner quashed the order of punishment by holding the Opposite Party No.1 entitled to get the service and financial benefit.

3.2. Learned counsel for the Petitioner accordingly contended that on remittance of the matter, the Petitioner being the disciplinary authority after re- looking the material available in the proceeding file, rightly imposed the order of punishment vide order dated 09.07.2013. Accordingly, it is contended that the Tribunal should not have interfered with the said order with passing of the impugned order on 11.02.2015 under Annexure-4.

3.3. Mr. Nayak, learned counsel for the Petitioner in support of his submission relied on the decision of this Court passed on 07.07.2022 in W.P.(C) No.580 of 2016. Relying on the said decision, it is contended that the Tribunal should not have passed the order on 19.12.2012 in O.A No.862 of 2010 by fixing the time limit for disposal of the proceeding by observing that the proceeding shall stand quashed, if it is not disposed of within the stipulated time.

4. Mr. S.N. Biswal, learned counsel appearing for the Opposite Party No.1 on the other hand made his submission basing on the stand taken by the Opposite Party in the counter affidavit. It is contended that the Opposite Party No.1 while working as Addl. C.T.O, Cuttack-III, Circle, Jajpur, the proceeding was initiated against her vide Memorandum dated 12.04.2014 and the said proceeding was initiated under Rule-15 of the OCS (CCA) Rules, 1962. In the said proceeding, the Enquiry Officer after completing the enquiry suggested for imposition of penalty of Censure vide the enquiry report submitted on 30.05.2008. The Opposite Party vide letter dated 12.01.2009 was permitted to make her representation against the finding of the enquiry officer.

4.1. It is contended that on receipt of the representation submitted by Opposite Party No.1, the Disciplinary Authority / present petitioner decided to impose punishment of Censure. But in view of the status of the opposite party being a gazetted officer, the proposal to impose the punishment was sent to Orissa Public Service Commission for concurrence vide letter dated 04.06.2009. Though the Commission had no authority to enhance the proposed punishment, but recommended by enhancing the punishment to Censure and to withholding of one annual increment with cumulative effect. On receipt of such recommendation from the Commission, the Petitioner was imposed with the punishment vide order dated 27.05.2010 of the Petitioner. Opposite Party No.1 was imposed with the punishment of Censure and withholding of one annual increment with cumulative effect.

4.2. The Opposite Party No.1 being aggrieved by the order dated 27.05.2010, approached the Tribunal in O.A. No.862 of 2010. The Tribunal disposed of the O.A vide order dated 19.12.2012. As per the said order, the Tribunal while quashing the order of punishment passed against the Opposite Party No.1 on 27.05.2010, remitted the matter with a direction on the Petitioner for taking a fresh decision within a period of six months, failing which the disciplinary proceeding shall stand quashed. The Tribunal passed the said order relying on the order passed in O.A No.1074/1992 (Dr. Dukhishyam Dash v. State of Orissa), wherein it has been held that OPSC cannot nor normally suggest enhancement of punishment beyond the proposed punishment.

4.3. The order passed by the Tribunal on 19.12.2012 though was communicated to the Petitioner, but the Petitioner without proper appreciation of the direction issued by the Tribunal in its order dated 19.12.2012, proposed to impose punishment of Censure and withholding of one annual increment without cumulative effect. The Petitioner thereafter submitted the file to the Commission for its concurrence. But the Commission once again as like the earlier occasion, enhanced the punishment to stoppage of one annual increment with cumulative effect vide letter dated 08.05.2013.

4.4. The Petitioner on receipt of such views of the Commission issued the 2nd show cause on 21.06.2013 proposing to impose the punishment so recommended by the Commission. The Opposite Party though submitted her reply to the 2nd show cause on 24.06.2013, but the Petitioner imposed the punishment vide order dated 19.07.2013 by imposing punishment of Censure and withholding of one annual increment with cumulative effect.

4.5. The Opposite Party No.1 being aggrieved by such order approached the Tribunal in O.A. No.1771 of 2013. The Tribunal relying on its earlier order passed on 19.12.2012 was pleased to quash the order of punishment vide order dated 11.02.2015.

4.6. Mr. Biswal, learned counsel for Opposite Party further contended that since the order passed by the learned Tribunal on 19.12.2012 in O.A No.861 of 2010 was never challenged by the Petitioner, the said order attained finality in the eye of law. Therefore, the decision relied on by the learned counsel for the Petitioner in the case of State of Orissa vs. Mohan Tandi and Others in W.P.(C) No.580 of 2016 is not applicable to the facts of the present case.

4.7. Mr. Biswal, in support of his contention however relied on the decision of the Hon’ble Apex Court in the case of Union of India and Others vs. R.P. Singh reported in 2014(7) SCC-340. Hon’ble Apex Court in Para-23 of the said judgment has held has follows:-

“23. We have referred to the aforesaid decision in B. Karunakar in extenso as we find that in the said case it has been opined by the Constitution Bench that non-supply of the enquiry report is a breach of the principle of natural justice. Advice from the UPSC, needless to say, when utilized as a material against the delinquent officer, it should be supplied in advance. As it seems to us, Rule 32 provides for supply of copy of advice to the government servant at the time of making an order. The said stage was in prevalence before the decision of the Constitution Bench. After the said decision, in our considered opinion, the authority should have clarified the Rule regarding development in the service jurisprudence.”

4.8. Mr. Biswal accordingly contended that the Tribunal has rightly passed the order impugned and it needs no interference by this Court in exercise of its power under Article 227 of the Constitution of India.

5. We have heard Mr. S.N.Nayak, learned counsel for the Petitioner and Mr.S.N.Biswal, learned counsel appearing for the Opposite Party No.1. On the consent of the learned counsel appearing for both the Parties, the matter was heard finally and disposed of at the stage of admission.

6. This Court after going through the pleadings made and the materials available on record finds that in the proceeding initiated against the Opposite Party No.1 on 12.05.2004, the Enquiry Officer after conducting the enquiry submitted his report on 30.05.2008 proposing therein to impose the punishment of Censure. On receipt of the said report, the Petitioner issued the 1st show cause on 12.01.2009 and after considering the representation so submitted by the Opposite Party, the Petitioner decided to impose the punishment of Censure. But the proposal to impose such punishment was sent for concurrence by the Orissa Public Service Commission vide letter dated 04.06.2009. This Court finds that the Commission while giving its concurrence, enhanced the proposed punishment from Censure to Censure and withholding of one annual increment with cumulative effect. Basing on such recommendation of the Commission, the Opposite Party No.1 when was imposed with the punishment vide order dated 27.05.2010, the same was challenged by the Opposite Party No.1 before the Tribunal in O.A No.862 of 2010. The Tribunal vide order dated 19.12.2012 relying on the decision in the case of Dukhishyam Dash as cited (supra) was pleased to quash the order of punishment passed on 27.05.2010 and remitted the same for fresh decision by the Petitioner in tune with the decision rendered in the case of Dukhishyam Dash.

6.1. This Court further finds that the order passed by the Tribunal on 19.12.2012 in O.A. No.862 of 2010 was never challenged and accordingly the same attained the finality in the eye of law. However, on such remand of the matter, it is found that the Petitioner proposed to impose punishment of Censure and withholding of one annual increment without cumulative effect. The Petitioner while proposed to impose the punishment, sought for concurrence of the Commission vide letter dated 21.03.2013. The Commission once again as like the earlier occasion while giving the concurrence enhanced the punishment to Censure and withholding of one annual increment with cumulative effect in place of without cumulative effect. On receipt of such concurrence, the Petitioner when imposed the punishment so recommended by the Commission vide order dated 19.07.2013, the matter was challenged before the Tribunal in O.A. No.1771/2013 by the Opposite Party No.1.

6.2. The Tribunal while dealing with the matter in O.A No.1771/2013 quashed the order of punishment passed on 19.07.2013 as the direction of the Tribunal so passed in its order dated 19.12.2012 was not complied with by the Petitioner as well as by the Commission. The Tribunal while remitting the matter had directed the Petitioner to issue a fresh order in tune with the decision of the Tribunal in the case of Dukhishyam Dash, which deals with the fact that the Orissa Public Service Commission cannot normally suggest for enhancement of punishment beyond punishment proposed by the disciplinary authority and disciplinary authority has to cite the detailed reason for accepting such recommendation. The said direction of the Tribunal not having not been followed by the Petitioner while passing a fresh order on 19.07.2013, the Tribunal as per the considered view of this Court has rightly quashed the said order while allowing the O.A vide order dated 11.02.2015 under Annexure-4.

7. Therefore, taking into account the entirety of the fact that the Petitioner has never challenged the order passed by the Tribunal on 19.12.2012 in O.A No.862/2010, the plea taken by the Petitioner while challenging the impugned order is not sustainable in the eye of law. Hence, this Court is not inclined to interfere with the order passed by the Tribunal on 11.02.2015 and consequentially the prayer made in the writ petition fails and the writ petition is dismissed accordingly.