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Dayanidhi Rath Sharma Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtOrissa High Court
Decided On
Judge
Reported in33(1967)CLT1065; (1968)IILLJ533Ori
AppellantDayanidhi Rath Sharma
RespondentState of Orissa
Cases ReferredO. M. Development Company v. Sales Tax Commissioner A.I.
Excerpt:
.....hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - they were satisfied that the case is not a fit case for review. it is well-settled by authorities that if a petitioner has disabled himself from availing of the statutory remedy by his own fault in not doing so within the..........from service on 24 october 1952. against the said order of dismissal he filed an application (original jurisdiction case no. 84 of 1958) before this court and by an order dated 38 november 1964, a division bench of this court held that the order of dismissal was invalid, inasmuch as the punishment proposed to be passed against him and of which he was given notice as required by article 311(2) of the constitution was lesser in degree than the punishment actually imposed upon him and consequently there was contravention of the mandatory provisions of that article. the court therefore declared that the order of dismissal dated 21 october 1952 was void and insperative and that the petitioner continued to be in service as a grade ii assistant in the secretariat. [the judgment has been.....
Judgment:

R.K. Das, J.

1. The petitioner was working as a grade II assistant is defunct Development Department now called as the Agriculture and Animal Husbandry Department of the Government of Orissa. A department proceeding was started against the petitioner and he was placed under suspension on 24 July 1963 and was dismissed from service on 24 October 1952. Against the said order of dismissal he filed an application (Original Jurisdiction Case No. 84 of 1958) before this Court and by an order dated 38 November 1964, a Division Bench of this Court held that the order of dismissal was invalid, inasmuch as the punishment proposed to be passed against him and of which he was given notice as required by Article 311(2) of the Constitution was lesser in degree than the punishment actually imposed upon him and consequently there was contravention of the mandatory provisions of that article. The Court therefore declared that the order of dismissal dated 21 October 1952 was void and insperative and that the petitioner continued to be in service as a grade II assistant in the Secretariat. [The judgment has been reported in Dayanidhi v. State I.L.R. 1955 Cuttack 53] On receipt of this order of the High Court a fresh notice was issued on the petitioner on 29 December 1954 calling upon him to show cause why he should not be dismissed from service. The previous suspension order dated 24 July 1952 was made retrospectively effective.

2. The petitioner submitted his explanation in due course. but was eventually dismissed from service on 17 February 1955. As against this order of dismissal the petitioner filed Original Jurisdiction Case No. 300 of 1955. That petition was dismissed on 26 April 1956. The Court held that no contravention of any of the constitutional provision was made out. They declined to enter into the merits of the case and examine whether the evidence was sufficient to prove the charges levelled against him. In view of the decision of the Supreme Court is Om Prakash Gupta v. State of Uttar Pradesh 1966-I L.L.J. 1 however, the Advocate General conceded that the petitioner was entitled to full salary from 24 October 1952 the date of the first dismissal order which previsely was set aside by the High Court till 29 October 1951 when a fresh notice was given the the order of suspension was passed and he was also held to be entitled to subsistence allowance from 29 October 1954, the date of the said notice, till 17 February 1955, the date of his second dismissal order.

3. The petitioner again filed another (third) application (Original Jurisdiction Case No. 358 of 1956) mainly for two reliefs:

(i) To review the judgment of this Court passed in Original Jurisdiction Case No. 359 of 1955 as it was based upon some errors of record and to bold that the second order of dismissal passed on 17 February 1955 was void and inoperative; and

(ii) to direct the Government to pay the petitioner his full salary and increments from the date of his first suspension. that is, 24 July 1952 till the data of his first dismissal, that is, 24 October 1962.

4. The Court found that there was no error of record in the judgment to justify any interference in their previous order by way of a review. In respect of the second relief the Court also rejected the case of the petitioner, the ground being that nowhere the Court held the first suspension order dated 24 July 1952 to be invalid nor the entire proceeding commoncise from that date. They held that the petitioner under the circumstances was entitled only to subsistence allowance from the date of his first suspension (24 July 1952) to the date of his first dismissal (24 October 1952). The original jurisdiction case application was dismissed on 14 November 1957.

5. Thereafter the petitioner filed another (fourth) application (Original Jurisdiction Case No. 186 of 1957) seeking for the same relief which was rejected by the Court on 3 March 1959. The Court held that the point raised in the petition was practionally concluded or the decisions given on 14 November 1957 in Original Jurisdiction Case No. 366 of 1956. Is substance they found this application to be a review petition of that decision. They were satisfied that the case is not a fit case for review. Thereafter, the petitioner submitted several memorials to the Government of Orissa and the Government by their order dated 29 April 1930 vacated the order of dismissal dated 17 February 1955 and said that the petitioners is discharged from Government service with effect from that date (17 February 1955). In other words, the Government substituted the order of dismissal by an order of discharge, the date remaining the same. As against the order of discharge, the petitioner submitted some memorial and representation but to no effect. Shortly after the order of discharge was passed, the petitioners was appointed on 2 May 1960 as a junior auditor in the Development Department: now called the Agriculture and Animal Hasbandry Department on a different scale of pay and the petitioner is now serving in the said capacity under the Finance Department.

6. In the present application, the petitioner has sought for the following reliefs:

(i) to set aside the retrospective suspension order dated 24 July 1952 and the discharge order passed on 29 April 1960, with retrospective effect from 17 February 1955;

(ii) to direct the State Government to pay him his full pay along with all the emoluments from 24 July 1952 to 1 May 1960 and to direct that his past service be (sic) for the purpose of pension; and

(iii) for a direction to the State Government to appoint him in the selection grade post with a suitable of pay.

7. In so far as the first relief is concerned, the matter was fully dealt with by the previous decisions of this Court, though in a different context. The facts in the judgment in Original Jurisdiction case No. 84 of 1953 disclose that the petitioner was placed under suspenstion on 24 July 1952 and was dismissed on 24 October 1952. This Court quashed the order of dismissal mainly on the ground that the petitioner was nor given notice of dismissal, but was given notice of a leaser punishment than that was actually imposed on him and as such the mandatory provisions of Article 311(2) of the Constitution were voilated. Thereafter, fresh proceedings were started and the petitioner was dismissed from service with effect from 17 February 1955 after due departmental enquiry. This order of dismissal was Challenged by the petitioner in Original Jurisdication Case No. 359 of 1955, but the Court held that the order of dismissal does not entail any violation of the constitutional provisions and the petition was dismissed on 26 April 1956. The result, therefore, was that the Court refused to interfere with the second order of dismissal passed on 17 February 1955. The application of the petitioner (Original Jurisdiction Case No. 856 of 1956) to review the judgment in the previous case was also dismissed as the Court held that there was no ground to interfere by way of review and it was observed:

If the petitioner felt aggrieved by that order, he ought to have appealed to the Supreme Court.

The last original jurisdiction case petition was also rejected on similar grounds.

8. In all there proceedings, the validity of the suspension order dated 24 July 1952 and the second dismissal order dated 17 February 1955 came up for consideration and the Court refused to interfere with the said orders and dismissed the last three positions. In view of the said decision, it is not open to the petitioner to reagitate the question about the validity of the said order of suspension or the order of dismissal.

9. The very contention that the authorities had no jurisdiction to pass an order of suspension with retrospective effect from 24 July 1952 and that they could only pass a prospective order of suspension was also raised in the previous writ petitions, but were rejected. While dismissing the Original Jurisdiction Case No. 856 of 1966, the Court expressly held that:

Under the circumstances the petitioner is entitled only to subsistence allowance from the date of his first suspension till the date of his first dismissal.

As already seen, this Court also refused to interfere with the second order of dismissal dated 17 February 1955 as there was no contravention of any constitutional provisions.

In view of the previous decision and on the general principles of res judicata, it is so more open to the petitioner to urge that very pont here again [see Gulab Chand v. State of Gujarat A.I.R. 1965 S.C. 1158].

10. The other contention of the petitioner relates to the construction of the order dated 28 April 1960 passed by the Government on his memorial filed against the order of dismissal dated 17 February 1955. In that order it was said:

that the order of his dismissal from Government service passed in Government Order No. 2222-D, dated 17 February 1956 is vacated and Rath is discharged from Government service with effect from 17 February 1956.

The argument of the petitioner is that by this order, the Government set aside the order of dismissal and (sic) a first discharge order on 29 April 1960, Since no discharge order could be passed with retrospective effect from 17 February 1965, he is entitled to his salary for the full period till 29 April 1960 or 1 May 1960. If the order of dismissal would have been set aside on merits. the petition might have been different. There is, however, nothing is the said order to show that the order of dismissal was set aside on the merits of the charges or for violation of any constitutional of other legal provision. The only reasonable inference that could be drawn from the order dated 29 April 1960 is that the Government merely wanted to deal with the petitioner with a certain amount of leniency and wanted to modify the nature of the punishment by substituting an order of discharge in place of an order for dismissal; the date of effect of the order remaining the same. Thus, this is not a case of passing of any retrospective order of discharge. That being so, the petitioner shall be deemed to have been discharged from service with effect from 17 February 1960. Consequently the petition is that he is not entitled to the emoluments up to 1 May 1960 as claimed by him.

11. Assuming the petitioner was entitled to the salary for the period claimed by him, the claim is also barred by the law of limitation. The present petition was fled on 29 September 1966 long after the expiry of the period of limitation under Article 102 (old) and Article 7 (now) of the Limitation Act as a suit for recovery of arrears of salary has to be filed within three years from the date when the salary due accured. The petitioner's case is that on grounds of poverty he was unable to file a regular suit. He could have filed a suit in forma pauperis. That apart, there is no ground to exercise here the extraordinary jurisdiction under Article 226 of the Constitution. It is well-settled by authorities that if a petitioner has disabled himself from availing of the statutory remedy by his own fault in not doing so within the prescribed time, he cannot certainly be permitted to urge that as a ground before the Court dealing with his petition under Article 226 to exercise its discretion in his favour [see A.V. Venkatetwar v. R. Woohari : 1983ECR2151D(SC) ]. This Court also has in a number of cases applied this rule and refused to grant relief to the parties whose claim was found to be time-barred [see Dr. J. N Das T. State of Orissa (1965-I LLJ. 173)]; [O. M. Development Company v. Sales Tax Commissioner A.I.R 1960 Orissa 79]. There la thus no merit in this application which is accordingly dismissed, but without costs.

S. Barman, C.J.

12. I agree.


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