BIJAYANANDA PANDA Vs. STATE OF ORISSA AND ORS.
LAWS(ORI)-1988-11-25
HIGH COURT OF ORISSA
Decided on November 07,1988

Bijayananda Panda Appellant
VERSUS
State of Orissa and Ors. Respondents

JUDGEMENT

G.B. Patnaik, J. - (1.) THE Petitioner who was the Headmaster of a non -Government Primary School later on became an Up -graded M.E. School, has assailed the order of punishment that has been inflicted upon him by the Inspector of Schools. Ganjam Circle, which has been annexed as Annexure -7 to the writ petition. By the said order, the Petitioner's period of suspension has been treated as leave due admissible and one of his increments has been withheld for a period of two years without cumulative effect. Though against the said order, the Petitioner has preferred an appeal on 3 -12 -1980, which has been annexed as Annexure -B to the writ application yet having not received any order from the Director of Public Instruction (Schools) the Petitioner has preferred the present writ application. At the outset, the learned Counsel for the Petitioner states that the appeal in question is not statutory in nature and yet the Petitioner bad approached the Director of Public Instruction, but the said application not having been disposed of, he was compelled to move this Court. In view of the said submission of the learned Counsel for the Petitioner, there is no difficulty in entertaining the writ petition notwithstanding the application to the Director of Public Instruction under Annexure -8.
(2.) THE charge against the Petitioner in the disciplinary proceeding has been framed by the Inspector of School, Ganjam Circle, Berhampur; and the same has been annexed as Annexure -3. The said document indicates that the Petitioner is stated to have violated Rules 11, 9 and 4 of the Orissa Government Servants Conduct Rules, 1959. The Petitioner asserts in the writ petition that the Government Servants Conduct Rules are not applicable to the case of the Petitioner since the Petitioner is the Headmaster of a fully aided Up -graded M.E. School. Though the writ application was filed as early as on 4 -11 -1981 and the State Counsel entered appearance ever since 1981, yet no counter affidavit has been filed on behalf of the opposite parties. The assertion of the Petitioner in paragraph -IO of the writ petition, therefore, remains unrebutted and consequently, it must be held that the Petitioner being a Headmaster of an Aided Up -graded M.E. School the provisions of the Orissa Government Servants Conduct Rules have no application. If the said Rules have no application, no charges could have been framed against the Petitioner for violation of Rules, 11, 9 and 4 of the said Rules. In the case of A.L. Kalra v. The Project and Equipment Corporation of India Ltd. : A.I.R. 1984 S.C. 1361, the Supreme Court held that there the rules granting advance themselves provided the consequence of breach of condition, there could be no ground for initiating disciplinary inquiry as the breach of the Rules did not constitute misconduct. The said observations of the Supreme Court have been made in connection with a proceeding against the employee of the Project and Equipment Corporation of India Limited, a public sector undertaking. Applying the ratio of the aforesaid case to the facts of the present case, if it is not established that the Government Servants Conduct Rules apply to the case of the Petitioner, it is obvious that the Petitioner could not be charged for the violation of the same and, therefore, the ultimate order of punishment inflicted upon the Petitioner for having violated the provisions of the Orissa Government Servants' Conduct Rules cannot be sustained. In this view of the matter, the impugned order of punishment under Annexure -7 must be quashed and we accordingly quash the same. The writ application is accordingly allowed but in the circumstances, without any order as to costs. L. Rath, J. I agree. Writ application allowed. ;


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