Final Order Passed By Any Authority Despite Having Knowledge Of Court's Interim Order For Maintaining Status Quo Is A Nullity: Orissa HC

The Orissa High Court has reiterated that authorities cannot pass final order despite having knowledge that an interim order for maintaining the status quo has been passed by a Court/Tribunal. While granting relief to the petitioner, a Single Judge Bench of Justice Sashikanta Mishra observed, "Since the lis pertains to the legality as well as propriety of the disciplinary proceeding, the direction to obtain leave before finalizing the same was issued with the obvious intent of safeguarding the right of the petitioner to putforth his grievance to be adjudicated upon in accordance with law. Unfortunately, by issuing the impugned order, the Government has sought to frustrate and defeat the very purpose of the original application/writ petition pending before the Tribunal/this Court." Factual Background: The petitioner had originally filed an Original Application ("OA") before the Odisha Administrative Tribunal, Cuttack to declare the conduct of disciplinary proceeding against him as ultra vires under Rule-15 of the OCS (CCA) Rules, 1962 and Article 14 of the Constitution of India, as well as to declare the enquiry report as null and void. During the pendency of the OA, the second show-cause notice was served upon him, proposing the punishment of dismissal from service. The petitioner approached the Tribunal challenging such action of the authorities (respondent no. 1 herein). By order dated 09.07.2018, the Tribunal, inter alia, passed the order directing the petitioner to file show cause but it prevented the authorities to pass any final order without the leave of the Tribunal. Accordingly, it required the status quo as on that day to be maintained. In the meanwhile, through an order dated 15.05.2020, respondent no. 1 passed an order finalizing the disciplinary proceeding and imposing the penalty of dismissal from service and for recovery of the allegedly misappropriated amount from the petitioner. It is noteworthy to mention that after the Odisha Administrative Tribunal was abolished, the matter was transferred to the High Court. Hence, this interim application has been filed challenging the final order in the disciplinary proceeding. Contentions: The petitioner contended the said order is on the face of it, null and void being in direct violation of order passed by the Tribunal. The opposite party in its reply affidavit stated that the order was passed on the basis of the ratio of the decision in Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. v. Central Bureau of Investigation, (2018) 16 SCC 299, wherein the Supreme Court held that in all cases where stay is granted the same will end on expiry of six months from the date of such order unless similar extension is granted by a speaking order. In a rejoinder filed to the reply affidavit, the petitioner contended that the ratio of Asian Resurfacing (supra) applies only to civil and criminal trials and not to matters before the Tribunal. It was further stated that the action of the concerned authority is self-contradictory inasmuch as even assuming that the effect of the interim order passed by the Tribunal was valid only for six months, the authorities could have proceeded against him upon expiry thereof, i.e., in January, 2019 when the Tribunal was functional. But instead, they waited for nearly one and half years to take the impugned action. Further, it contended that the Government in Law Department had decided to file counter affidavit as also a petition for vacation of the order dated 09.07.2018 passed by the Tribunal for expeditious disposal of the OA. As the order passed by the Tribunal was a conditional order, the same as per the petitioner could not be automatically held to have been vacated/expired and any order in violation thereof is a nullity. Observations by the Court: The Court held that if the impugned order was issued on the basis of the Asian Resurfacing (Supra) then the inordinate delay of nearly one and half years in issuing such order ought to have been satisfactorily explained. If according to the Government, the said ratio is applicable, then it was at liberty to take action soon after the expiry of the period of six months from 09.07.2018, i.e., after 09.01.2019. Since the 2nd show cause notice had already been issued to which the petitioner had submitted his reply, there was no reason for keeping the matter in limbo till 15.05.2020. The Court also pointed out that the impugned final order of the opposite party does not contain any reference whatsoever to the purported application of the ratio of Asian Resurfacing (Supra). Again, the Court observed that if the Government had already issued the order of dismissal, as according to it, there was no interim order in operation, then there was no reason for filing a vacation petition. Thus, all these persuaded the Court to hold that the action of the Government cannot be...

Final Order Passed By Any Authority Despite Having Knowledge Of Court's Interim Order For Maintaining Status Quo Is A Nullity: Orissa HC

Jyoti Prakash Dutta

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