W.P.(C) No.561 of 2024 Page 1 of 56

ORISSA HIGH COURT : CUTTACK

W.P.(C) No.561 of 2024

CNR No.ODHC010019002024

In the matter of an Application under

Articles 226 and 227 of the Constitution of India, 1950

***

Bhagaban Mahapatra

Aged about 65 years

Son of Late Bidyarath Mahapatra

At: Dharampur, P.O.: Raj Berhampur

District: Baleshwar

At present

Retired Assistant Block Education Officer

Khunta, At/P.O.: Khunta

District: Mayurbhanj. … Petitioner

-VERSUS-

1. State of Odisha

Represented through

Secretary to Government

School and Mass Education Department

Odisha, Bhubaneswar.

2. Director

Elementary Education

Odisha, Bhubaneswar.

3. Block Education Officer

Khunta, At/P.O.: Khunta

District: Mayurbhanj. … Opposite parties.

Counsel appeared for the parties: WP(C)/561/2024

ODHC010019002024

2026:OHC:122

W.P.(C) No.561 of 2024 Page 2 of 56

For the Petitioner : M/s. Rama Krishna Bisoi,

Ajit Kumar Samantaray,

Pravat Kumar Dash and

Aruna Mishra, Advocates

For the Opposite parties : Mr. Jayant Kumar Bal,

Additional Government Advocate

P R E S E N T:

HONOURABLE

MR. JUSTICE MURAHARI SRI RAMAN

Date of Hearing : 10.09.2026 :: Date of Judgment : 16.09.2026

JUDGMENT

The petitioner, retired as Assistant Block Education

Officer being promoted from the post of Headmaster,

filed this writ petition under the provisions of Article 226

of the Constitution of India beseeching grant of following

relief(s):

“In view of the aforesaid facts and circumstances as

narrated above, it is ardently prayed that this Hon‟ble

Court graciously be pleased to quash the Order under

Annexure-3 and direct the opposite party No.2 to

sanction and disburse of duty pay salary of the

petitioner with effect from 01.01.2016 to 17.03.2016 by

regularising the leave period within a time stipulation as

fixed by this Hon‟ble Court;

And issue any other appropriate writ/writs, order/orders

or direction/directions as deemed fit and proper in the

fitness of the case;

W.P.(C) No.561 of 2024 Page 3 of 56

And for this act of kindness as in duty bound the

petitioner shall ever pray.”

Facts:

2. The petitioner, appointed as Headmaster on 09.09.1981,

after B.S. Madhusudan Middle English School being

taken over by the Government in the year 1991, got

promotion in the year 2013 to the rank of Level-II in the

Elementary Cadre Service. While serving as Assistant

Block Education Officer in the said Cadre, though he

submitted application to remain on leave from

20.01.2016 to 14.02.2016, he was not disbursed the

salary from 01.01.2016 to 17.03.2016. Nevertheless, he

got retired from service on attaining the age of

superannuation on 31.05.2018.

2.1. On many occasions he approached the authorities for

regularisation of leave, but to no avail. A representation

dated 29.03.2022 submitted to the Director, Elementary

Education, Odisha being not attended to, an application

under Articles 226 and 227 of the Constitution

registered as W.P.(C) No.28842 of 2022 was filed. The

said writ petition stood disposed of on 03.11.2022 by

this Court with the following observation:

“As agreed to by learned counsel for the parties, however,

without expressing any opinion on the merits of the case,

this writ petition stands disposed of directing the opposite

party No.2 to consider the representation filed by the

W.P.(C) No.561 of 2024 Page 4 of 56

petitioner vide Annexure1, and pass appropriate order in

accordance with law within a period of three months from

the date of production of certified copy of this order.”

2.2. The Director, Elementary Education, Odisha,

Bhubaneswar rejected the representation dated

29.03.2022 by Office Order No.11700— 6S-6-2022-VI,

dated 16.05.2023 (Annexure-3) on the ground that the

criminal proceeding and the departmental proceeding

being pending, he is disentitled to be released with duty

pay salary on account leave from 01.01.2016 to

17.03.2016.

2.3. The instant writ petition has been filed questioning

propriety and legality of such rejection.

Counter affidavit filed by the opposite party No.3:

3. A Letter No.Exam-IV(PC)/Vol(10)/5287/16, dated

08.03.2016 is found enclosed with the counter affidavit,

wherefrom it is luculent that with respect to the

educational credentials of the B.A. Degree (April, 1981)

and B.Ed. Degree (May, 1985), the Controller of

Examinations, Utkal University, Vani Vihar,

Bhubaneswar, confirmed that in connection with the

B.A. Examination of April, 1981, no such roll number

was allotted, nor did the tabulation register disclose any

such fact. Furthermore, so far as the B.Ed. qualification

is concerned, no such roll number existed in the

W.P.(C) No.561 of 2024 Page 5 of 56

tabulation register, nor was the certificate ever issued by

the University. Consequent upon the initiation of the

criminal case, the petitioner was arrested and

subsequently released on bail. Before retirement, a

departmental proceeding was also initiated. Since the

petitioner remained on unauthorised leave from

01.01.2016 to 17.03.2016, he is rightly denied the

benefit claimed.

Hearing:

4. On the consent of counsel appearing for both the sides,

the matter was taken up for final hearing.

4.1. Having heard Sri Rama Krishna Bisoi, learned Advocate

for the petitioner; and Sri Jayant Kumar Bal, learned

Additional Government Advocate, and after conclusion of

the hearing, the matter is kept reserved for preparation

and delivery of Judgment/order.

Rival contentions and submissions:

5. Sri Rama Krishna Bisoi, learned Advocate stating that

the representation dated 29.03.2022 of the petitioner at

Annxure-1 has not been taken into consideration in its

right earnest. By taking into account extraneous factors

not germane for consideration of the issue of

regularising unauthorised leave during the period from

01.01.2016 to 17.03.2016, the Director, Elementary

W.P.(C) No.561 of 2024 Page 6 of 56

Education failed to exercise his discretion to grant duty

pay salary.

5.1. Arduous submission is made by Sri Rama Krishna Bisoi,

learned Advocate that the reference to Rule 66 of the

Odisha Civil Services (Pension) Rules, 1992, to deny

benefit of regularisation of leave for the period in

question is uncalled for. Expanding his argument

further, it is submitted that mere pendency of the

criminal case and the departmental proceeding on the

self-same charges should not have deterred the

authority concerned to decide entitlement of the

petitioner for regularisation of period of leave from

01.01.2016 to 17.03.2016 and disburse salary for the

said period. As there is no legal impediment to grant

such a relief prayed for by the petitioner, the Director,

Elementary Education fell in gross error of law as well as

fact by rejecting the representation of the petitioner.

6. Sri Jayant Kumar Bal, learned Additional Government

Advocate referring to detail of facts found mentioned in

the Office Order dated 16.05.2023 of the Director,

Elementary Education and the material provided in the

counter affidavit, submitted that the regularization of the

unauthorized leave from 01.01.2016, to 17.03.2016, can

be considered once the criminal trial and the

departmental proceeding clear the allegations regarding

the fake certificates relating to credentials of B.A. and

W.P.(C) No.561 of 2024 Page 7 of 56

B.Ed. qualifications. In view of factual position contained

in the Letter dated 08.03.2016 issued by the Utkal

University, unless the petitioner is absolved of the

serious allegations levelled against him, he is rightly

refused “duty pay salary from 01.01.2016 to

17.03.2016”. Since he availed leave and/or remained

absent from duty without any sanction and the

departmental proceeding was in progress in connection

with securing the employment by producing fake

educational qualification certificates he was placed

under suspension vide Office Order No.5525— 4A-189-

15-VI, dated 18.03.2016.

6.1. It is vociferously urged by Sri Jayant Kumar Bal, learned

Additional Government Advocate that due to non-

cooperation and non-participation of the petitioner the

criminal case and the departmental proceeding could not

proceed. He went on to submit that as this Court

granted interim protection in a writ petition by directing

not to finalise the departmental proceeding till the

criminal case is culminated, the departmental

proceeding could not reach at the conclusion despite the

fact that the Utkal University has refuted to have issued

such certificate declaring the petitioner qualified in B.A.

and B.Ed.

6.2. He laid emphasis on the factual observation made in the

impugned Order of the Director, Elementary Education

W.P.(C) No.561 of 2024 Page 8 of 56

that though by Letter dated 18.03.2016 in Annexure-

B/3 enclosed with the counter affidavit the petitioner

was placed under suspension and, instead of furnishing

reply to the authority concerned in connection with

Notice dated 23.02.2018, he having approached the

learned Odisha Administrative Tribunal in O.A. No.492

of 2018, the matter remained in suspended animation

since 21.03.2018. As the petitioner got retired with effect

from 31.05.2018, the interim order dated 21.03.2018 got

vacated and the departmental proceeding continued by

dint of Rule 7 of the Odisha Civil Services (Pension)

Rules, 1992. However, the notice issued thereunder

suffered jolt by order of this Court as the departmental

proceeding is directed to be finalised after final

determination by the criminal Court. Under the above

premise, it is strenuously urged that the writ petition

does not deserve consideration on merit.

Conclusion and decision:

7. Reading of paragraph 6 of the writ petition reveals that

the petitioner remained absent from 20.01.2016 to

14.02.2016 by submitting application for grant of leave

to the competent authority by enclosing medical report.

Nonetheless, no material is placed in the writ petition to

substantiate such averment; therefore, this Court does

not find reason to appreciate such a fact as the Office

Order dated 16.05.2023 does not transpire that the

W.P.(C) No.561 of 2024 Page 9 of 56

Director, Elementary Education had the occasion to

verify the veracity of such a contention. Sri Rama

Krishna Bisoi, learned Advocate was candid in his

submission that neither copy of application for leave is

enclosed with the writ petition nor is the medical report

as the same is not available with the petitioner. It is

unfathomable to accept such a stand as the said

application and the medical report are the foundation for

consideration of factum of entitlement for leave. It is not

the case of the petitioner that he remained on leave for

the period specified above upon being granted the same

by the competent authority.

7.1. In this regard it is felt apposite to have regard to the

following view expressed by the Hon’ble Supreme Court

of India in the case of Badami Vrs. Bhali, (2012) 6 SCR

75:

“19. Presently, we shall refer as to how this Court has

dealt with concept of fraud. In S. B. Noronah Vrs.

Prem Kumari Khanna, AIR 1980 SC 193 while

dealing with the concept of estoppel and fraud a

two-Judge Bench has stated that it is an old maxim

that estoppels are odious, although considerable

inroad into this maxim has been made by modern

law. Even so, „a judgment obtained by fraud or

collusion, even, it seems a judgment of the House of

Lords, may be treated as a nullity‟. (See Halsbury‟s

Laws of England, Vol. 16 Fourth Edition para 1553).

The point is that the sanction granted under Section

21, if it has been procured by fraud or collusion,

W.P.(C) No.561 of 2024 Page 10 of 56

cannot withstand invalidity because, otherwise, high

public policy will be given as hostage to successful

collusion.

20. In S. P. Chengalvaraya Naidu (dead) by L.Rs. Vrs.

Jagannath (dead) by L.Rs. and others, AIR 1994 SC

853 this court commenced the verdict with the

following words:

„Fraud-avoids all judicial acts, ecclesiastical or

temporal‟ observed Chief Justice Edward Coke of

England about three centuries ago. It is the settled

proposition of law that a judgment or decree

obtained by playing fraud on the court is a

nullity and non est in the eyes of law. Such a

judgment/decree— by the first court or by the

highest court— has to be treated as a nullity by

every court, whether superior or inferior. It can be

challenged in any court even in collateral

proceedings.‟

21. In the said case it was clearly stated that the courts

of law are meant for imparting justice between the

parties and one who comes to the court, must come

with clean hands. A person whose case is based on

falsehood has no right to approach the Court. A

litigant who approaches the court, is bound to

produce all the documents executed by him

which are relevant to the litigation. If a vital

document is withheld in order to gain

advantage on the other side he would be guilty

of playing fraud on court as well as on the

opposite party.

22. In Smt. Shrist Dhawan Vrs. Mis. Shaw Brothers, AIR

1992 SC 1555 it has been opined that fraud and

W.P.(C) No.561 of 2024 Page 11 of 56

collusion vitiate even the most solemn proceedings in

any civilised system of jurisprudence. It has been

defined as an act of trickery or deceit. The aforesaid

principle has been reiterated in Roshan Deen Vrs.

Preeti Lal, AIR 2002 SC 33, Ram Preeti Yadav Vrs.

U.P. Board of High School and Intermediate

Education and other, (2003) 8 SC 311 and Ram

Chandra Singh Vrs. Savitri Devi and others, (2003) 8

SCC 319.

23. In State of Andhra Pradesh and another Vrs. T.

Suryachandra Rao, AIR 2005 SC 3110 after

referring to the earlier decision this court observed

as follows:

„In Lazaurs Estate Ltd. Vrs. Beasley, (1956) 1 QB

702 Lord Denning observed at pages 712 & 713, „No

judgment of a Court, no order of a Minister can be

allowed to stand if it has been obtained by fraud.

Fraud unravels everything.‟ In the same judgment

Lord Parker LJ observed that fraud vitiates all

transactions known to the law of however high

a degree of solemnity.‟

24. Yet in another decision Hamza Haji Vrs. State of

Kerala & Anr., AIR 2006 SC 3028 it has been held

that no court will allow itself to be used as an

instrument of fraud and no court, by way of

rule of evidence and procedure, can allow its

eyes to be closed to the fact it is being used as

an instrument of fraud. The basic principle is that

a party who secures the judgment by taking

recourse to fraud should not be enabled to enjoy the

fruits thereof.

W.P.(C) No.561 of 2024 Page 12 of 56

25. *** There was an allegation that the respondent was

interfering with the possession of the plaintiff. What

could have transpired that the defendant would go

with the plaintiff and accede to all the reliefs. It not

only gives rise to a doubt but on a first look one can

feel that there is some kind of foul play. However,

the learned trial Judge who decreed the first suit on

27.11.1973 did not look at these aspects. When the

second suit was filed in 1984 for title and the third

suit was filed for possession thereafter, the courts

below had routinely followed the principles relating

to consent decree and did not dwell deep to find out

how the fraud was manifestly writ large. It was too

obvious to ignore. The courts below have gone by the

concept that there was no adequate material to

establish that there was fraud, though it was

telltale. That apart the foundation was the family

arrangement. We have already held that it was not

bona fide, but, unfortunately the courts below as

well as the High Court have held that it is a common

phenomenon that the people in certain areas give

their property to their close relations. We have

already indicated that by giving the entire property

and putting him in possession she would have been

absolutely landless and would have been in penury.

It is unimaginable that a person would divest herself

of one‟s own property in entirety in lieu of nothing.

No iota of evidence has been brought on record that

Bhali, the respondent herein, had given anything to

Badami in the arrangement. It is easily perceivable

that the rustic woman was also not old. Though the

decree was passed in 1973 wherein it was alleged

that the defendant was already in possession, she

lived up to 1992 and expired after 19 years. It is a

matter of record that the possession was not taken

W.P.(C) No.561 of 2024 Page 13 of 56

over and inference has been drawn that possibly

there was an implied agreement that the decree

would be given effect to after her death. All these

reasonings are absolutely non-plausible and

common sense does not even remotely give consent

to them. It is fraudulent all the way. The whole thing

was buttressed on the edifice of fraud and it needs

no special emphasis to state that what is pyramided

on fraud is bound to decay. In this regard we may

profitably quote a statement by a great thinker:

„Fraud generally lights a candle for justice to get a

look at it; and rogue‟s pen indites the warrant for his

own arrest.‟ ***”

7.2. In order to sustain and maintain the sanctity and

solemnity of the proceedings in law courts it is necessary

that parties should not make false or knowingly,

inaccurate statements or misrepresentation and/or

should not conceal material facts with a design to gain

some advantage or benefit at the hands of the court,

when a court is considered as a place where truth and

justice are the solemn pursuits. In exercising

jurisdiction under Article 226 of the Constitution of

India, the conduct of the party who is invoking such

jurisdiction is significant. If the applicant does not

disclose full facts or suppresses relevant materials or is

otherwise guilty of misleading the court, then the Court

may dismiss the action without adjudicating the matter

on merits. The very basis of the writ jurisdiction rests in

disclosure of true, complete and correct facts. If the

W.P.(C) No.561 of 2024 Page 14 of 56

material facts are not candidly stated or are suppressed

or are distorted, the very functioning of the writ courts

would become impossible.

1

7.3. Noteworthy here to have reference to Chapter-XV of the

Rules of the High Court of Orissa, 1948, dealing with

“Applications under Article 226, 227 and 228 of the

Constitution and Rules for the issue of writs under the

said Articles (except writs in the nature of Habeas

Corpus)”, the relevant provision of which reads thus:

“3. (1) The applications shall be accompanied by a

statement setting out the name and description

of the applicant and of the party against whom

relief is sought and the particulars of the

proceeding/proceedings which is/are sought to

be challenged or quashed, and the grounds on

which it is sought. The same shall also contain

the provisions of law under which it is filed, the

reliefs sought and the orders or actions

impugned in the first few paragraphs. All such

particulars as indicated in Appendix-I shall be

duly and correctly furnished by the petitioner.

In the application, the petitioner, after

supplying the aforesaid information, shall also

incorporate in a separate paragraph whether

alternate remedy, if any, available under any

statute has been availed or not.

(2) The facts relied on in the application shall be

verified by an affidavit.

1

Manjula Vrs. D.A. Srinivas, (2026) 6 SCR 1.

W.P.(C) No.561 of 2024 Page 15 of 56

(3) The application shall be accompanied by a

certified copy or certified copies of the relevant

order or orders. In case a certified copy of any

order is not available in law and attested copy

of such order may be filed.

(4) The material documents referred to or

relied upon in the application shall also

be filed along with the application:

Provided that the Court may, in its discretion,

dispense with the production of the same.”

7.4. Having not furnished copy of document evincing that an

application for leave was submitted to the competent

authority or any application has been made to such

authority for sanction and regularisation of leave stated

to have been availed, this Court has no occasion to verify

that the petitioner had ever sought permission to avail

leave while discharging his duty. It is remained disputed

as emerged from the pleadings that (paragraph 7 of the

counter affidavit):

“The petitioner having known of his forged and fake B.Ed.

certificate with an apprehension that FIR would be filed

before Khunta Police Station for initiation of criminal

proceedings and apprehending his arrest by the police he

absconded himself without application/intimation to the

competent authority from 01.01.2016 to 17.03.2016 and

that is to say that he remained unauthorisedly absent in

his duty for the said period.”

W.P.(C) No.561 of 2024 Page 16 of 56

7.5. No rejoinder affidavit is forthcoming from the petitioner

refuting such factual assertion made by the opposite

party No.3. Thus, it is to be construed that the petitioner

has not approached this Court with clean hands and

clear heart. Necessary here to remind this Court about

the observations made in Kishore Samrite Vrs. State of

U.P., (2012) 9 SCR 733 which are to the following effect:

“This Court has had many occasions where it dealt with

the cases of this kind and it has clearly stated the

principles that would govern the obligations of a litigant

while approaching the court for redressal of any grievance

and the consequences of abuse of the process of court. We

may recapitulate and state some of the principles. It

is difficult to state such principles exhaustively and with

such accuracy that would uniformly apply to a variety of

cases. These are:

(i) Courts have, over the centuries, frowned upon

litigants who, with intent to deceive and mislead the

Courts, initiated proceedings without full disclosure

of facts and came to the courts with „unclean hands‟.

Courts have held that such litigants are neither

entitled to be heard on the merits of the case nor

entitled to any relief.

(ii) The people, who approach the Court for relief on an

ex parte statement, are under a contract with the

court that they would state the whole case fully and

fairly to the court and where the litigant has broken

such faith, the discretion of the court cannot be

exercised in favour of such a litigant.

W.P.(C) No.561 of 2024 Page 17 of 56

(iii) The obligation to approach the Court with clean

hands is an absolute obligation and has repeatedly

been reiterated by this Court.

(iv) Quests for personal gains have become so intense

that those involved in litigation do not hesitate to

take shelter of falsehood and misrepresent and

suppress facts in the court proceedings. Materialism,

opportunism and malicious intent have over-

shadowed the old ethos of litigative values for small

gains.

(v) A litigant who attempts to pollute the stream of

justice or who touches the pure fountain of justice

with tainted hands is not entitled to any relief,

interim or final.

(vi) The Court must ensure that its process is not abused

and in order to prevent abuse of the process the

court, it would be justified even in insisting on

furnishing of security and in cases of serious abuse,

the Court would be duty bound to impose heavy

costs.

(vii) Wherever a public interest is invoked, the Court must

examine the petition carefully to ensure that there is

genuine public interest involved. The stream of

justice should not be allowed to be polluted by

unscrupulous litigants.

(viii) The Court, especially the Supreme Court, has to

maintain strictest vigilance over the abuse of the

process of court and ordinarily meddlesome

bystanders should not be granted „visa‟. Many

societal pollutants create new problems of

unredressed grievances and the Court should

W.P.(C) No.561 of 2024 Page 18 of 56

endure to take cases where the justice of the lis well-

justifies it.

[Refer: Dalip Singh Vrs. State of UP. & Ors., (2010) 2 SCC

114; Amar Singh Vrs. Union of India & Ors., (2011) 7 SCC

69 and State of Uttaranchal Vrs Balwant Singh Chaufal &

Ors., (2010) 3 SCC 402].

7.6. A conjoint reading of prayer in the writ petition and

impugned Order of the Director, Elementary Education,

it transpires that the petitioner sought for regularisation

of leave from 01.01.2016 to 17.03.2016 and

disbursement of “duty pay salary” for said period. On the

contrary, in the representation dated 29.03.2022

(Annexure-1) it is apparent that the petitioner remained

on leave from 20.01.2016 to 14.02.2016 and 11.03.2016

to 17.03.2016. To obviate such anomaly in course of

hearing on a query, the learned counsel feigned that

such application is not available. At paragraph 3 of the

writ petition, the petitioner has asserted that the leave

from 20.01.2016 to 14.02.2016 was availed on health

issues. However, no iota of evidence is placed on record

in this regard. Without such vital document(s) forming

part of the writ petition, merely upon the self-serving

assertion of the petitioner, this Court is afraid to extend

the benefit sought for.

8. The events as they emerged from the Order dated

16.05.2023 of the Director, Elementary Education,

demonstrate that to remove shroud of suspicion, the

W.P.(C) No.561 of 2024 Page 19 of 56

Utkal University was instructed to supply information

regarding the marks awarded and certificates issued in

favour of the petitioner by a Letter dated 02.03.2016.

The University on 08.03.2016 furnished adverse report

against the petitioner. An FIR was stated to have been

lodged on 10.03.2016, in pursuance of which the

petitioner was arrested for alleged commission of

offences under Sections 468, 471 and 420 of the Indian

Penal Code, 1860. A criminal case arising out of said FIR

being G.R. Case No.73 of 2016 has been registered and

is now pending before the learned Sub-Divisional

Judicial Magistrate, Udala.

8.1. The counsel for the petitioner could not throw light on

the stage of such G.R. Case. Per contra, the learned

Additional Government Advocate would submit that the

petitioner approached the learned Odisha Administrative

Tribunal by filing Original Application under Section 19

of the Administrative Tribunals Act, 1985, which was

registered as O.A. No.31(B) of 2018, questioning

propriety of continuance of the departmental proceeding

and the criminal case simultaneously. However, after

abolition of the Odisha Administrative Tribunal by virtue

of Ministry of Personnel, Public Grievances and Pensions

(Department of Personnel and Training) Notification F.

No. A-11014/10/2015-AT [G.S.R.552(E).], dated 2

nd

August, 2019), the said case having been transferred to

W.P.(C) No.561 of 2024 Page 20 of 56

this Court, O.A. No.31(B) of 2018 was re-registered as

WPC (OAB) No.31 of 2018. Said case was disposed of

vide Order dated 09.09.2022 with the following

observation:

“3. The petitioner has filed this writ petition seeking to

quash the second show cause notice under

Annexure-9 dated 10.10.2018 and further seeks

for direction to the opposite parties to

regularize the period of suspension of the

petitioner as duty pay and also extend all such

benefits within a stipulated time.

4. Mr. R.K. Bisoi, learned Counsel appearing for the

petitioner contended though a departmental

proceeding was started against the petitioner, but

for the self-same charges, a G.R. Case is also

continuing bearing G.R Case No. 73 of 2016 before

the learned SDJM, Udala. That itself cannot be a

ground not to conclude the proceeding

departmentally which was initiated against

him, depriving the petitioner to get the benefits

as due and admissible in accordance with law.

5. Mr. P.K. Muduli, learned Additional Government

Advocate appearing for the State contended that

since G.R. Case No. 73 of 2016 is pending before the

learned SDJM, Udala, therefore, the departmental

proceeding which was initiated against the

Petitioner is being awaited for disposal of such

criminal case and as such, in the event the

Petitioner is convicted in the criminal case, he

may not get the benefit as claimed in the writ

petition.

W.P.(C) No.561 of 2024 Page 21 of 56

6. Having heard learned counsel for the parties and

after going through the record, it appears that the

petitioner has been visited with a departmental

proceeding by framing the charge under Annexure-2.

He has also been facing the criminal case bearing

G.R. Case No. 73 of 2016, which pending before the

learned SDJM, Udala. In the counter affidavit it

has been stated that since there is a financial

loss to the Government, then a criminal

prosecution will be of no help, as the remedy

can be obtained only through a departmental

proceeding or a civil suit. In such a case it may

be permissible to run the departmental proceeding

concurrently with the criminal case provided that if

there be any action, which may or is likely to cause

embarrassment to the accused and tends to

prejudice the fair and impartial trial of the criminal

case the departmental proceeding will have to be

stayed. As the GR Case is sub judice, the

departmental proceeding will be finalized after final

judgment of the Court.

7. Since the nature of proof in both the cases are

totally different, in that case, the pendency of

the criminal case cannot stand as a bar to

conclude the departmental proceeding. This

Court in W.P.(C) No.35773 of 2021

2 disposed of on

22.11.2022 observed as follows:

„Considering the submission that during pendency of

the criminal trial, filing of defence by the petitioner in

the disciplinary proceeding will jeopardize the

2

Order dated 22.11.2022 in W.P.(C) No.35773 of 2021 has been passed by a

learned Single Judge in Shishir Kumar Das Vrs. State of Odisha, W.P.(C)

No.35773 of 2021. However, contra view is expressed by the Division Bench in

the case of Food Corporation of India Vrs. Kavi, W.A. No.555 of 2026, decided on

10.09.2026, Neutral Citation: 2026:OHC:112-DB

W.P.(C) No.561 of 2024 Page 22 of 56

prospect of the delinquent petitioner involving the

criminal case, this Court finds support of the

submission of learned counsel and also the support

of decision of the Hon‟ble apex Court reported in AIR

1999 SC 1416, decided taking support of the old

decision of the Hon‟ble apex Court reported in AIR

1965 SC 155. This Court accordingly disposes of the

writ petition directing stay of the disciplinary

proceeding vide C.P. H.Q Proceeding No. 02 of 2016

under Annexure-2 involving the petitioner till

finalization of the Criminal Trial vide Bhubaneswar

Vigilance P.S. Case No.06 of 2016 pending in the

court of Special Judge, Vigilance, Bhubaneswar.

This Court also directs the trial involving

Bhubaneswar Vigilance Case No.06 of 2016 be

expedited.‟

8. In view of the above, this Court disposes of the

writ petition directing for stay of the

departmental proceeding initiated under

Annexure-2 and second show cause notice

under Annexure-9 dated 10.10.2018 till

finalization of the criminal case initiated vide

G.R. Case No. 73 of 2016, pending before the

learned SDJM, Udala. This Court also directs

that the G.R. case be expedited and finalized.”

8.2. A departmental proceeding was also initiated prior to

retirement of the petitioner calling upon him to file

statement of defence. Without responding to such notice,

he approached the learned Odisha Administrative

Tribunal in O.A. No.492 of 2018, wherein stay of

departmental proceeding was granted on 21.03.2018

and the said restraint order could be vacated after the

W.P.(C) No.561 of 2024 Page 23 of 56

petitioner got retired on 31.05.2018 from service on

superannuation. The departmental proceeding being

converted to a proceeding under Rule 7 of the Odisha

Civil Services (Pension) Rules, 1992, further notice was

issued on 10.10.2018. The petitioner challenged the said

notice dated 10.10.2018 issued in connection thereof by

way of writ petition, being W.P.(C) No.7640 of 2020,

which was disposed of on 09.02.2024 with the following

order:

“3. Petitioner has filed the present Writ Petition inter alia

with the following prayer:

„In view of the aforesaid facts and circumstances as

narrated above, it is ardently prayed that this

Hon‟ble Court be graciously pleased to direct the

opposite party No.3 to sanction and disburse the

provisional pension of petitioner as per Rule 66 of

Odisha Civil Services (Pension) Rules, 1992 w.e.f.

01.06.2018 onwards within a time stipulation as

fixed by this Hon‟ble Court.‟

***

6. Having heard learned counsel for the parties and

considering the submissions made as well as the

status of the proceeding in G.R. Case No.73 of 2016,

this Court is of the view that since the

departmental proceeding has been stayed by

this Court vide order dated 09.09.2022 and

criminal proceeding has not yet been disposed

of as on date, this Court while disposing the writ

petition directs learned S.D.J.M., Udala to take

W.P.(C) No.561 of 2024 Page 24 of 56

effective steps for disposal of G.R. Case No.73 of

2016 by the end of this year. Learned Addl. Govt.

Advocate is directed to provide a copy of this order

before the learned S.D.J.M., Udala for compliance.

6.1. However, since petitioner has not yet been imposed

with any punishment in either of the proceedings,

taking into account the submissions made and the

fact that the petitioner has retired since 31.05.2018,

this Court directs opposite party No.1 to release the

provisional pension as due and admissible in favour

of the petitioner w.e.f. June, 2018. Such sanction

will be made with consequential release of the

benefits, within a period of 6 (six) weeks from the

date of receipt of this order.

7. The writ petition is accordingly disposed of.”

8.3. It is harped by the learned Additional Government

Advocate forcefully that had the petitioner participated

in the departmental proceeding, he could, by now, have

been vindicated in the event his educational credentials

were found to be genuine. Based on the ratio laid down

in Chairman and Managing Director, FCI Vrs. Jagdish

Balaram Bahira, (2017) 11 SCR 271, the learned

Additional Government Advocate submitted that should

the petitioner fail to establish the genuineness of his

educational credentials in the departmental proceedings,

the withdrawal of all benefits secured on the basis of

such a false claim would be a natural legal consequence.

W.P.(C) No.561 of 2024 Page 25 of 56

8.4. What is perceived from the above events is that on the

one hand the departmental proceeding on the issue of

fake certificates relating to qualifications in B.A. and

B.Ed. has been stayed by this Court in a writ petition

being filed at the behest of the petitioner and on the

other hand it is not made known to this Court by the

petitioner the occurrence of delay in proceeding with the

G.R. Case No.73 of 2016. Verification of the writ petition

it is observed that a certificate is appended to the

following effect without mentioning earlier petitions filed

by the petitioner:

“The matter out of which this present writ petition arises

was never before this Hon‟ble Court”.

Not a single word is whispered about the position with

respect to the departmental proceeding and the criminal

case in the instant writ petition. The learned Additional

Government Advocate could bring on record such facts

in course of hearing.

8.5. In Kusa Duruka Vrs. State of Odisha, (2024) 1 SCR 601 it

is observed as follows:

“6. In Moti Lal Songara Vrs. Prem Prakash @ Pappu and

another, (2013) 9 SCC 199, this Court, considering

the issue regarding concealment of facts beforethe

Court, observed that “court is not a laboratory where

children come to play”, and opined as under:

W.P.(C) No.561 of 2024 Page 26 of 56

„19. The second limb of the submission is whether

in the obtaining factual matrix, the order

passed by the High Court discharging the

accused-respondent is justified in law. We

have clearly stated that though the respondent

was fully aware about the fact that charges

had been framed against him by the learned

trial Judge, yet he did not bring the same to the

notice of the revisional court hearing the

revision against the order taking cognizance. It

is a clear case of suppression. It was within

the special knowledge of the accused. Any one

who takes recourse to method of suppression

in a court of law, is, in actuality, playing fraud

with the court, and the maxim supressio veri,

expression faisi, i.e., suppression of the truth is

equivalent to the expression of falsehood, gets

attracted. We are compelled to say so as

there has been a calculated concealment

of the fact before the revisional court. It

can be stated with certitude that the

accused- respondent tried to gain

advantage by such factual suppression.

The fraudulent intention is writ large. In

fact, he has shown his courage of

ignorance and tried to play possum.

20. The High Court, as we have seen, applied the

principle “when infrastructure collapses, the

superstructure is bound to collapse”. However,

as the order has been obtained by practising

fraud and suppressing material fact before a

court of law to gain advantage, the said order

cannot be allowed to stand.‟

W.P.(C) No.561 of 2024 Page 27 of 56

***

8. In a recent matter, this Court again came across a

litigant who had tried to overreach the Court by

concealing material facts in Saumya Chaurasia Vrs.

Directorate of Enforcement, (2023) 15 SCR 848. It

was a case where the appellant before this Court

had challenged the order passed by the High Court

[High Court of Chhattisgarh at Bilaspur in

Miscellaneous Crl. Case No.1258/2023] rejecting his

bail application. He was accused of committing

various crimes under the Indian Penal Code and the

Prevention of Money Laundering Act, 2002. His bail

application was rejected by the High Court on

23.06.2023. In the pleadings before this Court, it

was mentioned that the High Court had committed

gross error in not considering the chargesheet dated

08.06.2023 and the cognizance order dated

16.06.2023, which clearly suggested that there was

error apparent on the fact of it. The fact which was

available on record was that an order in the bail

application was reserved by the High Court on

17.04.2023 and pronounced on 23.06.2023. Having

some suspicion, this Court directed the appellant to

file an affidavit to clarify the aforesaid position.

There was no specific reply given to the aforesaid

query to the Court. Rather vague statements were

made. Considering the facts available, this Court

observed that there was a bold attempt by and on

behalf of the appellant therein to misrepresent the

facts for challenging the order impugned therein,

regarding the conduct of the parties and the counsel,

this Court made the following observations:

W.P.(C) No.561 of 2024 Page 28 of 56

„14. It cannot be gainsaid that every party

approaching the court seeking justice is

expected to make full and correct

disclosure of material facts and that every

advocate being an officer of the court,

though appearing for a particular party,

is expected to assist the court fairly in

carrying out its function to administer the

justice. It hardly needs to be emphasized that

a very high standard of professionalism and

legal acumen is expected from the advocates

particularly designated Senior advocates

appearing in the highest court of the country so

that their professionalism may be followed and

emulated by the advocates practicing in the

High Courts and the District Courts. Though it

is true that the advocates would settle the

pleadings and argue in the courts on

instructions given by their clients,

however their duty to diligently verify the

facts from the record of the case, using

their legal acumen for which they are

engaged, cannot be obliviated.‟ ***”

8.6. With said note in mind, if the present matter is analysed

it is discernible from the record that the petitioner has

not even spelt out a single word about the stage of the

departmental proceeding and the criminal case. It is not

made known to this Court as to the stage of criminal

case. Nothing is placed by the petitioner to show that

even though by Order dated 09.09.2022 passed in WPC

(OAB) No. 31 of 2018, this Court directed for stay of the

departmental proceeding initiated and second show

W.P.(C) No.561 of 2024 Page 29 of 56

cause notice dated 10.10.2018 till finalization of the

criminal case initiated vide G.R. Case No. 73 of 2016

pending before the learned SDJM, Udala with further

direction to expedite and finalize the G.R. case, it is

unknown whether the petitioner cooperated with the

criminal proceeding. It is not the case of the petitioner

that for the laches on the part of the prosecution, the

G.R. Case could not be ended till date.

8.7. With the serious allegation that by producing fake

certificates (as the University has confirmed not to have

issued such certificates) the petitioner got not only the

job of the Headmaster of Middle English School, but also

got promotion to the rank of the Assistant Block

Education Officer. Moreover, by dint of interim

protection granted in his favour, the petitioner could

successfully complete his stint in a responsible post of

Assistant Block Education Officer. At this juncture, as

the criminal case has not been concluded, it is wholly

premature to accede to the prayer of the petitioner for

regularization of the leave period from 01.01.2016 to

17.03.2016, which the opposite parties claim to be

unauthorized and without any application seeking

permission.

8.8. In the context of use of fake certificate for securing

employment and acquittal of such employee in the

criminal case on account of benefit of doubt, the

W.P.(C) No.561 of 2024 Page 30 of 56

following view has been expressed by the Hon’ble

Supreme Court of India in the case of Indian Oil

Corporation Vrs. Rajendra D. Harmalkar, (2022) 5 SCR

677:

“7.1. In the present case, the original writ petitioner was

dismissed from service by the Disciplinary Authority

for producing the fabricated/fake/forged SSLC.

Producing the false/fake certificate is a grave

misconduct. The question is one of a TRUST. How

can an employee who has produced a fake and

forged marksheet/certificate, that too, at the initial

stage of appointment be trusted by the employer?

Whether such a certificate was material or not

and/or had any bearing on the employment or not is

immaterial. The question is not of having an

intention or mens rea. The question is producing the

fake/forged certificate. Therefore, in our view, the

Disciplinary Authority was justified in imposing the

punishment of dismissal from service.

7.2. It was a case on behalf of the petitioner— original

writ petitioner before the High Court that he pleaded

guilty and admitted

3 that he had submitted a forged

and fake certificate on the assurance that lesser

punishment will be imposed. However, except the

bald statement, there is no further evidence on the

same. Nothing has been mentioned on record as to

who gave him such an assurance.

3

In the present case, as is apparent from the document enclosed with the

counter affidavit, the Utkal University has denied to have issued such certificate

to the petitioner. Such fact is now to be factually established both in the

criminal case as also the departmental proceeding. Not a single word is spelt

out by the petitioner in the instant case disputing such letter of the Utkal

University.

W.P.(C) No.561 of 2024 Page 31 of 56

7.3. Even otherwise the conduct on the part of the

original writ petitioner is required to be considered.

As observed hereinabove, prior to the issuance

of the chargesheet and after the complaint was

received by the Vigilance Officer, there were

repetitive requests and follow up by the

authorities requesting the original writ

petitioner to produce the original SSLC. Initially

the original writ petitioner did not even respond to

the said requests. Thereafter, he came up with a

case that the original SSLC was misplaced. He was

then called upon to obtain a duplicate copy of the

SSLC and to submit the same to the Manager, ER.

However, he continued to evade obtaining the

duplicate certificate from Karnataka Board. Only

thereafter the Manager, ER directly contacted

the authorities of the Board and requested the

Education Board to check up from their

records and only thereafter it was revealed

that the SSLC produced by the original

petitioner was forged and fake and belonged to

or related to some another student and it did

not belong to the original writ petitioner. This

shows the mala fide intention on the part of the

original writ petitioner.

7.4. Now, so far as the submission on behalf of the

original writ petitioner that he was acquitted by the

Criminal Court for the offences punishable under

Sections 468 and 471 IPC in respect of the same

certificate is concerned, the said contention is neither

here nor there and is of no assistance to the original

writ petitioner. Apart from the fact that he was

acquitted by the Criminal Court by giving

benefit of doubt and there was no honourable

W.P.(C) No.561 of 2024 Page 32 of 56

acquittal, in the present case before the

Disciplinary Authority the original writ

petitioner as such admitted that he produced

the fake and forged certificate. Therefore, once

there was an admission on the part of the

respondent— original writ petitioner,

thereafter whether he has been acquitted by

the Criminal Court is immaterial.

7.5. Even from the impugned judgment and order

passed by the High Court it does not appear

that any specific reasoning was given by the

High Court on how the punishment imposed by

the Disciplinary Authority could be said to be

shockingly disproportionate to the misconduct

proved. As per the settled position of law, unless

and until it is found that the punishment imposed by

the Disciplinary Authority is shockingly

disproportionate and/or there is procedural

irregularity in conducting the inquiry, the High Court

would not be justified in interfering with the order of

punishment imposed by the Disciplinary Authority

which as such is a prerogative of the Disciplinary

Authority as observed hereinabove.

7.6. From the impugned judgment and order passed by

the High Court, it appears that the High Court has

denied the back wages and other benefits and has

ordered reinstatement on a concession given by the

learned counsel on behalf of the original writ

petitioner. However, it is required to be noted that for

the period between 2006 to 2017 i.e. during the

pendency of the writ petition the respondent was

working in the Petroleum Division of Reliance

Industries. Therefore, he was aware that even

W.P.(C) No.561 of 2024 Page 33 of 56

otherwise he is not entitled to the back wages

for the aforesaid period. Therefore, the concession

given on behalf of the original writ petitioner as such

cannot be said to be a real concession. In any case

in the facts and circumstances of the case and

for the reasons stated above and considering

the charge and misconduct of producing the

fake and false SSLC Certificate proved, when a

conscious decision was taken by the

Disciplinary Authority to dismiss him from

service, the same could not have been

interfered with by the High Court in exercise of

powers under Article 226 of the Constitution of

India. The High Court has exceeded in its

jurisdiction in interfering with the order of

punishment imposed by the Disciplinary

Authority while exercising its powers under

Article 226 of the Constitution of India.”

8.9. The reasoning of Director, Elementary Education in the

impugned order does clearly reflect that the

departmental proceeding being halted due to order of

this Court, and the criminal case is in progress, in

absence of outcome of such proceedings, the claim of the

petitioner for disbursement of duty pay salary by

regularising the period of leave from 01.01.2016 to

17.03.2016 does not deserve consideration. Taking cue

from the above, since nothing is brought on record by

way of rejoinder affidavit by the petitioner that the letter

of Utkal University does not depict true and correct

factual position, the claim of the petitioner in the present

W.P.(C) No.561 of 2024 Page 34 of 56

writ petition cannot be granted. This Court does not find

flaw in decision making process of the Director,

Elementary Education, Odisha, Bhubaneswar.

9. On his own showing at paragraph 3 of the writ petition

the petitioner has claimed to have availed leave from

20.01.2016 to 14.02.2016 (though it is in dispute that

no application was submitted to the authority

concerned), but he sought for disbursement of duty pay

salary from 01.01.2016 to 17.03.2016. Adopting the

petitioner’s case strictly arguendo regarding the period

from 20.01.2016 to 14.02.2016, there remains a

conspicuous silence in the pleadings concerning the

remaining periods. The petitioner has failed to show

whether any leave was ever sought from 01.01.2016 to

19.01.2016 and from 15.02.2016 to 17.03.2016. The

petitioner has not enclosed document showing he had

made application to the proper officer at the right point

of time and no document is cited to demonstrate that he

had made any application before the competent

authority for regularisation of leave, which is stated to

be unauthorised. Calculated the leave from 01.01.2016

to 17.03.2016 would be more than two months. It was

asserted by the petitioner that medical certificates

indicating health issues were submitted before the

authority; nonetheless, no copy of medical certificate or

W.P.(C) No.561 of 2024 Page 35 of 56

the application for grant of leave has been made part of

the instant writ petition.

9.1. As is manifest from Office Order dated 18.03.2016

issued by the Director, Elementary Education, Odisha,

Bhubaneswar the petitioner was placed under

suspension from that date pending initiation of

disciplinary proceeding for producing fake provisional

certificate. It is with vehemence, Sri Rama Krishna Bisoi,

learned Advocate contended that the petitioner in the

instant case is merely asking for regularising the period

of leave prior to said date, i.e., 18.03.2016. The material

placed apparently shows that the petitioner remained

absent from 01.01.2016 to 17.03.2016 (as no document

could be furnished to suggest that the leave was availed

being granted by competent authority). On and from

18.03.2016 he was suspended. In absence of any

document showing medical exigency, this Court could

not assess the nature of ill-health and ascertain the

difficulty in seeking grant of leave during the period from

01.01.2016 to 17.03.2016.

9.2. In this respect a cue is taken from Viveka Nand Sethi

Vrs. Chairman, J&K, Bank Ltd., (2005) 3 SCR 1095 . In

the said reported case, it is posited as follows:

“*** In the .instant case except for asking for grant

of medical leave, he did not submit any explanation

for his absence satisfying the management that he

W.P.(C) No.561 of 2024 Page 36 of 56

has not taken up any other employment or

avocation and that he has no intention of not

joining his duties. In the aforementioned fact situation

we do not see any reason as to why the Bank could not

arrive at a satisfaction that the workman had no intention

to join his duties. It is interesting to note that though the

said order was passed on 17.05.1984, a representation to

the Bank was made by the workman to reconsider the

said decision after a period of 3 years and 2 months by a

Letter dated 31.07.1987.

Yet again a dispute was sought to be raised by issuance

of a legal notice on the Bank only on 06.04.1989. Mere

sending of an application for grant of leave much

after the period of leave was over as also the date of

resuming duties cannot be said to be a bona fide act

on the part of the workman. The Bank, as noticed

herein before, in response to the lawyer ‟s notice

categorically stated that the workman had been carrying

on some business elsewhere. We cannot accept the

submission of Mr. Mathur that only because on a later

date an application for grant of medical leave was filed,

the same ipso facto would put an embargo on the exercise

of the jurisdiction of the Bank from invoking clause (2) of

the bipartite settlement.

It may be true that in a case of this nature, the principles

of natural justice were required to be complied with but

the same would not mean that a full-fledged departmental

proceeding was required to be initiated. A limited enquiry

as to whether the employee concerned had sufficient

explanation for not reporting to duties after the period of

leave had expired or failure on his part on being asked so

to do, in our considered view, amounts to sufficient

W.P.(C) No.561 of 2024 Page 37 of 56

compliance of the requirements of the principles of natural

justice.

Yet again in terms of the memorandum dated 20.02.1984,

attention of the workman was drawn to the fact that his

application for grant of leave was neither in the

prescribed form nor any medical certificate was attached

thereto. It was pointed out that the medical certificate

shows that he was under the doctor's treatment from

22.10.1983 to 22.01.1984 and as such he should have

reported for duties on 23.01.1984 and as he failed to do

so, it gave rise to an inference that he was not interested

to continue in Bank‟s services. He did not submit any

satisfactory explanation nor he filed any valid

medical certificate. It was in that situation, the order

dated 17.05.1984 was issued which again referred to the

provisions contained in memorandum of settlement dated

08.09.1983. The workman ex facie appears to have

accepted the said order as for a long period he

maintained silence. Had he been interested in the Bank‟s

services, it was expected of him to resume his duties

and/or file proper application for grant of medical leave

with a valid medical certificate.

The principle of natural justice, it is trite, is no unruly

horse. When facts are admitted, an enquiry would be

an empty formality. Even the principle of estoppel

will apply. [See Dr. Gurjeewan Garewal (Mrs.) Vrs. Dr.

Dumitra Dash (Mrs.) and Ors., (2004) 5 SCC 263]. The

principles of natural justice are required to be complied

with having regard to the fact situation obtaining therein.

It cannot be put in a straitjacket formula. It cannot be

applied in a vacuum without reference to the relevant

facts and circumstances of the case. [See State of Punjab

Vrs. Jagir Singh, (2004) 8 SCC 129] and Karnataka State

W.P.(C) No.561 of 2024 Page 38 of 56

Road Transport Corporation and Anr. Vrs. S.G. Koturappa

and Anr., (2005) 2 SCALE 493.”

9.3. Though the aforesaid case is founded upon different

context, this Court taking substance therefrom would

wish to refer that the Hon’ble Supreme Court of India

upon perusal of medical certificate observed as above

indicating purpose of adherence to the norms of natural

justice. In the instant case, in absence of evidence like

application praying therein for grant of leave from

01.01.2016 till 17.03.2016 and the medical certificate as

required under the Odisha Leave Rules, 1966 read with

relevant provisions contained in the Odisha Service

Code, this Court does not find genuineness of claim of

the petitioner. Close scrutiny of the representation dated

29.03.2022, which gave rise to issue of direction to the

competent authority to consider such representation

vide Order dated 03.11.2022 passed in W.P.(C)

No.28842 of 2022, it has come to fore that the petitioner

admitted to have remained on leave (of course, without

permission from the authority concerned) from

20.01.2016 to 14.02.2016 and 11.03.2016 to

17.03.2016. There is no explanation proffered by the

petitioner whether he reported to the duty or remained

on unauthorised leave from 01.01.2016 to 19.01.2016

and 15.02.2016 to 10.03.2016.

W.P.(C) No.561 of 2024 Page 39 of 56

9.4. The provisions of Rule 13 and Rule 17 of the Odisha

Leave Rules, 1966, read as follows:

“13. (1) Extraordinary leave may be granted to any

Government servant in special circumstances—

(i) When no other leave is by rule admissible, or

(ii) When other leave is admissible, but the

Government servant concerned applies in

writing for the grant of extraordinary leave.

(2) Except in the case of a permanent Government

servant and a Government Servant who has

rendered not less than three years continuous

service, the duration of extraordinary leave on

any one occasion shall not exceed the following

limits, namely—

(i) two months;

(ii) four months in special cases, where such

leave is supported by a medical certificate

as required under the rules;

(iii) eighteen months where the Government

servant is undergoing treatment for—

(a) pulmonary tuberculosis either in a

recognised sanatorium or at his

residence under a tuberculosis

specialist recognised as such by the

State Administrative Medical Officer

concerned: or

(b) tuberculosis of any other part of the

body by a qualified tuberculosis

W.P.(C) No.561 of 2024 Page 40 of 56

specialist or a Chief District Medical

Officer; or

(c) leprosy, in are cognised leprosy

institution, or by a Chief District

Medical Officer or a specialist in

leprosy recognised as such by the

State Administrative Medical Officer

Concerned:

Provided that concession of extraordinary

leave up to eighteen months under Clause

(iii) of this sub-rule shall be admissible

only to those Government servants who

have been in continuous Government

service for a period exceeding one year:

Provided further that in the case of

treatment of pulmonary tuberculosis at

the residence, the Government servant

shall produce a certificate from a

specialist to the effect that he is under his

treatment and that he has reasonable

chances of recovery on the expiry of the

leave recommended.

(3) Subject to the provision of Rule 14, a

Government servant not in permanent employ

may be granted during deputation on training,

extraordinary leave from the date of his relief

till the date of resumption of duties on return

from training:

Provided that he has completed a minimum

period of one year continuous service on the

date of deputation and the authority competent

to grant the leave is satisfied that such training

W.P.(C) No.561 of 2024 Page 41 of 56

is necessary for improving the Government

servant‟s professional knowledge,

(4) Where a Government servant who is not in

permanent employ fails to resume duty on the

expiry of the maximum period of extraordinary

leave granted to him or where such

Government servant who is granted a lesser

amount of extraordinary leave than the

maximum amount admissible, remains absent

from duty for any period which together with

the extraordinary leave granted exceeds the

limit up to which he could have been granted

such leave under these rules, he shall, unless

the State Government view of the exceptional

circumstances of the case otherwise determine,

be removed from service after following the

procedure laid down in Orissa Civil Services

(Classification, Control and Appeal) Rules,

1962.

17. (1) Except as provided in sub-rule (2), a

Government servant on earned leave is entitled

to leave salary equal to the average monthly

pay earned during the ten complete months

immediately preceding the month in which the

leave commences or the substantive pay to

which the Government servant is entitled

immediately before the commencement of the

leave, whichever is greater.

(2) A Government servant who proceeds on earned

leave from a post, the maximum of which does

not exceed Rs.100 per mensem, is entitled to

leave salary equal to the pay drawn

immediately before proceeding on leave.

W.P.(C) No.561 of 2024 Page 42 of 56

(3) A Government servant on half-pay leave or

leave not due is entitled to leave salary equal

to half the amount specified in sub-rule (1) or

sub-rule (2), as the case may be, subject to a

maximum of Rs.750:

Provided that this limit shall not apply if the

leave is on medical certificate or for pursuing

an approved course of study, othenivise than

on study leave terms.

(4) Subject to the condition that his leave salary

shall in no case exceed the amount admissible

under sub-rule (1) or sub-rule (2) the leave

salary drawn by a Government servant on

leave out of India and Nepal is subject to a

minimum of Rs.250 per mensem.

(5) A Government servant on commuted leave is

entitled to leave salary equal to the amount

admissible under sub-rule (1) or sub-rule (2), as

the case may be.

(6) A Government servant on extraordinary

leave is not entitled to any leave salary.

Explanation.1:

In respect of any period spent on foreign

service out of India, the pay which the

Government servant would have drawn if on

duty in India but for foreign service out of India

shall be substituted for the pay actually drawn

while calculating average pay.

Explanation.2:

For the purpose of this rule „substantive pay‟

means the substantive pay of the permanent

W.P.(C) No.561 of 2024 Page 43 of 56

post which the Government servant holds

substantively or on which he holds a lien or

would hold a lien, had the lien not been

suspended and includes special pay shown as

part of the scale of pay of the post.”

9.5. Sri Rama Krishna Bisoi, learned Advocate could not be

able to demonstrate that the petitioner has fulfilled the

conditions envisaged in the Odisha Leave Rules as

stated hereinabove. This Court finds from Rule 130 and

Rule 131 of the Odisha Service Code that any leave

admissible may be granted by the State Government and

the leave cannot be claimed “as of right”. It is further

made clear therein that “when the exigencies of the

public service so requires, discretion to refuse or revoke

leave of any description is reserved to the authority

empowered to grant it”.

9.6. The claim of the petitioner is that he availed the leave on

account of ill-health. If this is acceded to, as per Rule

140 of the Odisha Service Code, he was required to

produce medical certificate of fitness in the format

prescribed therewith. The impugned Order does not

speak about such a certificate being produced by the

petitioner nor does the same find place in the writ

petition. Rule 144 of the Odisha Service Code further

specifies that a Government servant, who remains

absent after the end of his leave, is entitled to no leave

salary for the period of such absence, and that period

W.P.(C) No.561 of 2024 Page 44 of 56

will be debited against his leave account as though it

were leave on half average pay, unless his leave is

extended by the State Government and wilful absence

from duty after the expiry of leave may be treated as

misconduct for the purpose of Rule 54. There is no

quarrel that mere acknowledgement of a leave

application would not amount to approval or sanction of

the leave. These are two different things altogether.

Nothing is available on record to suggest that the

petitioner was granted leave by the competent authority

as required under the provisions stated above.

9.7. Meaning of the word “leave” has been taken cognizance

of in Rasesh C. Choksi Vrs. State of Gujarat, (1977) 4

SCC 545, wherein it has been reflected as follows:

“10. In the instant case, having regard to the language of

Rule 23 doubtless the word “leave” has been used

as a verb and not as a noun. Taking the word in its

ordinary parlance if used as a verb it clearly

connotes that the candidate should have given up

the job or quitted the service or severed all

connections with the post that he was holding. If the

word “leave” would have been used as a noun in the

sense of obtaining leave or furlough then the concept

of permission would undoubtedly have to be

considered.

11. In Black‟s Law Dictionary, Revised Fourth Edn. at p.

1036 the author referring the case of Landreth Vrs.

Casey, 340 III 519, 173 NE 84, 85 observes as

follows:

W.P.(C) No.561 of 2024 Page 45 of 56

„Wilful departure with intent to remain away, and

not temporary absence with intention of returning.‟

12. To the same effect is the definition of the word

“leave” when used as a verb in Webster‟ s New

International Dictionary at p. 1287 where it has

been defined as meaning „desert, abandon, forsake,

to give up the practice, to quit service and the alike‟.

13. In Webster‟s New World Dictionary at p. 834 the

word “leave” when used as a verb has been defined

thus:

„To go away from, to give up, abandon, forsake, to

stop working for, depart or set out.‟

14. In the Concise Oxford Dictionary the word “leave”

has been defined as “quit, go away from, depart”.

15. Similarly in Shorter Oxford English Dictionary, Vol. I

at p. 1122 the word “leave” has been defined when

used as a verb as “to depart from, quit relinquish, to

go away from permanently, to abandon, forsake, to

cease, desist from, stop”.

16. In the Random House Dictionary of the English

Language at p. 816 the word “leave” has been

defined when used as a noun as “permission to do

something, to beg leave to go elsewhere, permission

to be absent as from duty”, when used as a verb it

means “a parting, departure, farewell”.

17. In Stroud‟s Judicial Dictionary, Third Edn., p. 1606

when used as a verb “leave” means “going away

from, depart, sail”.

18. Aiyar in Law Lexicon of British India at p. 715

observes as follows:

W.P.(C) No.561 of 2024 Page 46 of 56

„Leave, as a noun, permission. As a verb, according

to the context or the intent with which it is employed

the word may mean to abscond, to deliver, to depart,

to get off, to give, to go away from, to quit.‟ ***”

9.8. Regard may be had to a decision in State of Punjab Vrs.

Dr. P.L. Singla, (2008) 11 SCR 600, wherein it has been

observed that:

“8. Unauthorized absence (or overstaying leave), is

an act of indiscipline. Whenever there is an

unauthorised absence by an employee, two courses

are open to the employer. The first is to condone

the unauthorized absence by accepting the

explanation and sanctioning leave for the

period of the unauthorized absence in which

event the misconduct stood condoned. The

second is to treat the unauthorized absence as

a misconduct, hold an enquiry and impose a

punishment for the misconduct.

9. An employee who remains unauthorisedly absent for

some period (or who overstays the period of leave),

on reporting back to duty, may apply for

condonation of the absence by offering an

explanation for such unauthorized absence and seek

grant of leave for that period. If the employer is

satisfied that there was sufficient cause or

justification for the unauthorized absence (or the

overstay after expiry of leave), the employer may

condone the act of indiscipline and sanction leave

post facto. If leave is so sanctioned and the

unauthorized absence is condoned, it will not be

open to the employer to thereafter initiate

disciplinary proceeding in regard to the said

W.P.(C) No.561 of 2024 Page 47 of 56

misconduct unless it had, while sanctioning leave,

reserved the right to take disciplinary action in

regard to the act of indiscipline. We may note here

that a request for condoning the absence may be

favourably considered where the unauthorized

absence is of a few days or a few months and the

reason for absence is stated to be the sudden,

serious illness or unexpected bereavement in the

family. But long unauthorized absences are not

usually condoned. In fact in Security services where

discipline is of utmost importance, even a few of

days overstay is viewed very seriously. Be that as it

may.”

9.9. An employee who is absent from duty without proper

authorization is strictly not entitled to any pay and

allowances. The unauthorized period is typically treated

as dies non (a day that does not count) for increments,

leave accumulation, and pension.

9.10. On the one hand the petitioner had chosen to pursue

WPC (OAB) No.31 of 2018 for grant of stay of the

departmental proceeding till finalisation of criminal case,

which in fact this Court granted in his favour vide Order

dated 09.09.2022, on the other hand nothing is placed

on record to show the reason for non-finalisation of

criminal case before the learned Sub-Divisional Judicial

Magistrate, Udala in G.R. Case No.73 of 2016. The

Director, Elementary Education having referred to Rule

66 of the Odisha Civil Services (Pension) Rules aptly

stated that where the judicial proceeding and the

W.P.(C) No.561 of 2024 Page 48 of 56

departmental proceeding are pending on the date of

retirement, the delinquent-employee shall be paid a

provisional pension. In the present case, since the

departmental proceeding and the criminal case are

pending, the petitioner may be entitled to provisional

pension. Therefore, acceding to the prayer of the

petitioner that “disburse the provisional pension of

petitioner as per Rule 66 of the Odisha Civil Services

(Pension) Rules, 1992 with effect from 01.06.2018

onwards” this Hon’ble Court directed in W.P.(C) No.7640

of 2020, vide Order dated 09.02.2024, to release the

provisional pension as due and admissible in favour of

the petitioner with effect from June, 2018, as the

petitioner got retired with effect from 31.05.2018.

9.11. It may not be out of place to have reference to the

doctrine of approbate and reprobate as enunciated in

Union of India Vrs. N. Murugesan, (2021) 10 SCR 253:

“Approbate and Reprobate:

26. These phrases are borrowed from the Scott‟s law.

They would only mean that no party can be allowed

to accept and reject the same thing, and thus one

cannot blow hot and cold. The principle behind the

doctrine of election is inbuilt in the concept of

approbate and reprobate. Once again, it is a

principle of equity coming under the contours of

common law. Therefore, he who knows that if he

objects to an instrument, he will not get the

benefit he wants cannot be allowed to do so

W.P.(C) No.561 of 2024 Page 49 of 56

while enjoying the fruits. One cannot take

advantage of one part while rejecting the rest. A

person cannot be allowed to have the benefit of an

instrument while questioning the same. Such a party

either has to affirm or disaffirm the transaction. This

principle has to be applied with more vigour as a

common law principle, if such a party actually

enjoys the one part fully and on near completion of

the said enjoyment, thereafter questions the other

part. An element of fair play is inbuilt in this

principle. It is also a species of estoppel

dealing with the conduct of a party. We have

already dealt with the provisions of the Contract Act

concerning the conduct of a party, and his

presumption of knowledge while confirming an offer

through his acceptance unconditionally.

27. We would like to quote the following judgments for

better appreciation and understanding of the said

principle:

Nagubai Ammal Vrs. B. Shama Rao, 1956 SCR 451:

„But it is argued by Sri Krishnaswami Ayyangar that

as the proceedings in OS. No. 92 of 1938-39 are

relied on as barring the plea that the decree and

sale in OS. No.100 of 1919-20 are not collusive, not

on the ground of res judicata or estoppels but on the

principle that a person cannot both approbate and

reprobate, it is immaterial that the present

appellants were not parties thereto, and the decision

in Verschures Creameries Ltd. Vrs. Hull and

Netherlands Steamship Company Ltd., (1921) 2 KB

608, and in particular, the observations of Scrutton,

LJ, at page 611 were quoted in support of this

position. There, the facts were that an agent

W.P.(C) No.561 of 2024 Page 50 of 56

delivered goods to the customer contrary to the

instructions of the principal, who thereafter filed a

suit against the purchaser for price of goods and

obtained a decree. Not having obtained satisfaction,

the principal next filed a suit against the agent for

damages on the ground of negligence and breach of

duty. It was held that such an action was barred.

The ground of the decision is that when on the same

facts, a person has the right to claim one of two

reliefs and with full knowledge he elects to claim one

and obtains it, it is not open to him thereafter to go

back on his election and claim the alternative relief.

The principle was thus stated by Bankes, L.J.:

„Having elected to treat the delivery to him as an

authorised delivery they cannot treat the same act

as a misdelivery. To do so would be to approbate

and reprobate the same act‟.

The observations of Scrutton, LJ on which the

appellants rely are as follows:

„A plaintiff is not permitted to „approbate and

reprobate‟. The phrase is apparently borrowed from

the Scotch law, where it is used to express the

principle embodied in our doctrine of election—

namely, that no party can accept and reject the

same instrument: Ker Vrs. Wauchope, (1819) 1 Bli 1,

21; Douglas-Menzies Vrs. Umphelby, (1908) AC 224,

232. The doctrine of election is not however confined

to instruments. A person cannot say at one time

that a transaction is valid and thereby obtain

some advantage, to which he could only be

entitled on the footing that it is valid, and then

turn round and say it is void for the purpose of

W.P.(C) No.561 of 2024 Page 51 of 56

securing some other advantage. That is to

approbate and reprobate the transaction‟.

It is clear from the above observations that the

maxim that a person cannot „approbate and

reprobate‟ is only one application of the doctrine of

election, and that its operation must be confined to

reliefs claimed in respect of the same transaction

and to the persons who are parties thereto. The law

is thus stated in Halsbury‟s Laws of England, Vol.

XIII, p. 464, para 512:

„On the principle that a person may not approbate

and reprobate, a species of estoppel has arisen

which seems to be intermediate between estoppel by

record and estoppel in pais, and may conveniently

be referred to here. Thus a party cannot, after

taking advantage under an order (e.g. payment

of costs), be heard to say that it is invalid and

ask to set it aside, or to set up to the prejudice

of persons who have relied upon it a case

inconsistent with that upon which it was

founded; nor will he be allowed to go behind an

order made in ignorance of the true facts to the

prejudice of third parties who have acted on it.‟

State of Punjab Vrs. Dhanjit Singh Sandhu, (2014)

15 SCC 144:

„22. The doctrine of “approbate and reprobate” is

only a species of estoppel, it implies only to the

conduct of parties. As in the case of estoppel it

cannot operate against the provisions of a

statute. (Vide CIT Vrs. V. MR. P. Firm Muar, AIR

1965 SC 1216).

W.P.(C) No.561 of 2024 Page 52 of 56

23. It is settled proposition of law that once an

order has been passed, it is complied with,

accepted by the other party and derived the

benefit out of it, he cannot challenge it on any

ground. (Vide Maharashtra SRTC Vrs. Balwant

Regular Motor Service, AIR 1969 SC 329.)

In R.N. Gosain Vrs. Yashpal Dhir, (1992) 4 SCC

683 this Court has observed as under:

„10. Law does not permit a person to both

approbate and reprobate . This

principle is based on the doctrine of

election which postulates that no

party can accept and reject the same

instrument and that ‘a person cannot

say at one time that a transaction is

valid and thereby obtain some

advantage, to which he could only be

entitled on the footing that it is valid,

and then turn round and say it is

void for the purpose of securing some

other advantage.‟

25. The Supreme Court in Rajasthan State

Industrial Development and Investment Corpn.

Vrs. Diamond and Gem Development Corpn.

Ltd., (2013) 5 SCC 470, made an observation

that a party cannot be permitted to “blow hot

and cold”, “fast and loose” or “approbate and

reprobate”. Where one knowingly accepts

the benefits of a contract or conveyance or

an order, is estopped to deny the validity

or binding effect on him of such contract

or conveyance or order. This rule is applied

to do equity, however, it must not be applied in

W.P.(C) No.561 of 2024 Page 53 of 56

a manner as to violate the principles of right

and good conscience.

26. It is evident that the doctrine of election is

based on the rule of estoppel, the principle that

one cannot approbate and reprobate is inherent

in it. The doctrine of estoppel by election is one

among the species of estoppel in pais (or

equitable estoppel), which is a rule of equity.

By this law, a person may be precluded, by

way of his actions, or conduct, or silence when

he has to speak, from asserting a right which

he would have otherwise had.‟

Rajasthan State Industrial Development &

Investment Corpn. Vrs. Diamond & Gem

Development Corpn. Ltd., (2013) 5 SCC 470:

“I. Approbate and reprobate

15. A party cannot be permitted to “blow hot-blow

cold”, “fast and loose” or “approbate and

reprobate”. Where one knowingly accepts the

benefits of a contract, or conveyance, or of an

order, he is estopped from denying the validity

of, or the binding effect of such contract, or

conveyance, or order upon himself. This rule is

applied to ensure equity, however, it must not

be applied in such a manner so as to violate

the principles of what is right and of good

conscience. [Vide Nagubai Ammal Vrs. B.

Shama Rao, AIR 1956 SC 593, CIT Vrs. V. MR.

P. Firm Muar, AIR 1965 SC 1216, Ramesh

Chandra Sankla Vrs. Vikram Cement [(2008)

14 SCC 58 = AIR 2009 SC 713, Pradeep Oil

Corpn. Vrs. MCD, (2011) 5 SCC 270 = AIR 2011

W.P.(C) No.561 of 2024 Page 54 of 56

SC 1869, Cauvery Coffee Traders Vrs. Hornor

Resources (International) Co. Ltd., (2011) 10

SCC 420 and V. Chandrasekaran Vrs.

Administrative Officer, (2012) 12 SCC 133.]

16. Thus, it is evident that the doctrine of election

is based on the rule of estoppel— the principle

that one cannot approbate and reprobate is

inherent in it. The doctrine of estoppel by

election is one among the species of estoppel in

pais (or equitable estoppel), which is a rule of

equity. By this law, a person may be

precluded, by way of his actions, or

conduct, or silence when it is his duty to

speak, from asserting a right which he

would have otherwise had.‟ ***”

9.12. It is unjustified to reap the benefit of protection against

culmination of the departmental proceeding with respect

to allegation of fake certificate being utilised for securing

the employment at one time and claiming that the

petitioner is entitled to duty pay salary for the period he

remained absent from duty without grant of approval or

application for leave. Though the petitioner got retired in

the year 2018, for disbursal of such duty pay salary

relating to 2016 he has approached this Court in the

year 2024 (conspicuously after eight years). Such delay

being not explained cannot be condoned. It is a fit case

where the cost ought to be imposed upon the petitioner

for abusing the process of law; however, taking into

consideration that the petitioner had retired way back in

W.P.(C) No.561 of 2024 Page 55 of 56

the year 2018, this Court restraint from imposing any

costs.

9.13. It is not demonstrated by necessary pleading by

supporting document that the petitioner had applied for

leave from 20.01.2016 to 14.02.2016 and 11.03.2016 to

17.03.2016. It is not the case of the petitioner that he

worked from 01.01.2016 to 19.01.2016 and from

15.02.2016 to 10.03.2016; nor has shown that he was

entitled to any other kind of leave in his leave account. It

does emanate from record that the petitioner remained

unauthorizedly absent for the aforesaid period. Under

the above premises, it is crystal clear from the provisions

and factual position as narrated hereinabove that the

petitioner is not entitled to duty pay salary for the

periods from 01.01.2016 to 17.03.2016, which can only

be considered, if circumstances so warrant, after

culmination of the departmental and the criminal

proceedings.

10. Vital material facts supported by documents are

withheld by the petitioner. On account of paucity of

material, it is not evinced that the petitioner at any point

of time had applied to the competent authority for grant

of leave from 01.01.2016 till 17.03.2016. In view of

discussions made in the foregoing paragraphs and

reasons ascribed to be coupled with the reasons

assigned by the Director, Elementary Education in the

W.P.(C) No.561 of 2024 Page 56 of 56

impugned Office Order dated 16.05.2023, there is no

other option left for this Court than to dismiss the writ

petition, being found devoid of merit. Needless to clarify

that in view of Order dated 09.09.2022 passed in WPC

(OAB) No.31 of 2018 of this Court directing for

expediting and finalising the criminal case, the same be

strictly enforced. Having taken notice of said order

granting stay of departmental proceeding till finalisation

of criminal case, it is hoped and trusted that the

petitioner shall cooperate with not only in the criminal

case in G.R. Case No.73 of 2016, stated to be pending

before the learned Sub-Divisional Judicial Magistrate,

Udala, but also after finalisation of said criminal case

participate in the departmental proceedings to facilitate

the authority concerned to arrive at logical conclusion.

The Office Order No.11700 — 6S-6-2022-VI, dated

16.05.2023 (Annexure-3) of the Director, Elementary

Education, Odisha, Bhubaneswar rejecting the

representation dated 29.03.2022 of the petitioner

cannot, thus, be faulted with.

11. Ex consequenti, the writ petition is dismissed; but in the

circumstances, there shall be no order as to costs.

(MURAHARI SRI RAMAN)

JUDGE

High Court of Orissa, Cuttack

The 16th September, 2026//Aswini/MRS/Laxmikant