Orissa High Court
Case Details
ORISSA HIGH COURT : C U T T A C K WP(C) NO.14209 2010 In the matter of an application under Articles 226 & 227 of the Constitution of India. Surendra Prasad Singh (since dead), his legal heirs, Aklesh Kumar Singh & ors. : Petitioners -Versus- General Manager, Mahanadi Coalfields Ltd, Jharsuguda & ors. : Opp.Parties For Petitioners For O.Ps. : : Mr.B.Seth, Adv. Mr.S.Mohanty, Adv. CORAM : JUSTICE BISWANATH RATH Date of Hearing : 03.02.2023 & Date of Judgment : 17.02.2023 1. This Writ Petition is originally at the instance of the deceased Petitioner (delinquent) with the following prayer :- “It is, therefore, respectfully prayed that your Lordships may graciously be pleased to admit this Writ Application, issue a Writ of Certiorari, call for the records of the disciplinary proceeding, calling upon the opp. parties to show cause a) as to why the impugned orders passed, vide Annexure-7 as well as Annexure-10 shall not be quashed. b) And if the Opp. Parties fail to show cause or show insufficient cause to make the said Rule absolute eventually quashing Annexure-7 and Annexure-10. Page 1 of 18 // 2 // c) And may further be pleased any other order(s)/direction(s) directing the Opp.Parties to reinstate the Petitioner with full back wages and other consequential service benefits within a time fixed by this Hon’ble Court.” to pass 2. During pendency of the Writ Petition, it appears, there has been death of the original Petitioner, Surendra Prasad Singh, and the Proceeding has been allowed to continue at the instance of the Legal Heirs of the deceased-delinquent. 3.
Legal Reasoning
Factual background involving the case is; originally the delinquent joined as Category-1 Mazdoor on 5.2.1983. While the delinquent was continuing as such, on 19.1.1995 there was an incident taken place involving an allegation that the delinquent assaulted the Medical Officer, Dr.K.A.P. Singh with Chappal (Sandal) in the premises of the Central Hospital, IB Valley area, Brajarajnagar. In drawing a disciplinary proceeding, the delinquent was served with copy of the charge sheet dated 20.1.1995 followed with an order of suspension (Annexure-1). The delinquent submitted his explanation/response to show cause on 17.1.1995 (Annexure-2). On 30.1.1995 being dissatisfied with the response of the delinquent, there is appointment of Dr.S.C.Panda, Personal Manager of IB Valley area, as Enquiring Officer with intimation to the delinquent for commencement of enquiry. Vide, communication dated 3/4.3.1995, the Enquiring Officer intimated the delinquent that the enquiry would commence on 13.3.1995 at 10 A.M. In the meantime, the Page 2 of 18 // 3 // delinquent faced criminal prosecution, vide G.R. Case No.42/1995 also involving same issue on the complaint of the very same Doctor involved and acquitted of the charges by way of judgment, vide Annexure-5. In the meantime, on conclusion of the enquiry on 14.10.1999, enquiry report was prepared by the Enquiring Officer on 15.10.1999. On an explanation being called for in the second show cause notice, the delinquent appears to have submitted his explanation on 27.12.1999. Upon compliance of the requirement by way of second show cause, it appears, by order dated 29.6.2000, the delinquent was dismissed from service, vide Annexure-7. The delinquent preferred an Appeal, vide Annexure-8. In the meantime, the delinquent moved this Court, vide O.J.C. No.12389/2000, which got disposed of on 7.1.2010 directing O.P.3, the Appellate Authority to dispose of the Appeal within three months, which was again extended by
Decision
order of this Court dated 14.5.2010. Finally the Appeal got disposed of by way of confirmation of the order of dismissal on 21.5.2010, vide Annexure-10 resulting in filing of the present Writ Petition. 4. The delinquent raised the following allegations : I. There was no supply of documents including written complain, if any, of the Doctor involved, based on which the disciplinary proceeding was drawn. Page 3 of 18 // 4 // II. No enquiry report was supplied to the delinquent before passing the final order of dismissal by the Disciplinary Authority and it was supplied only after the final order of dismissal by the Disciplinary Authority. III. The Disciplinary Authority has not given its reason in accepting the recommendation of the Enquiring Officer except observing it fully agreed with the Enquiring Officer. IV. Even though the delinquent has requested for examination of twelve witnesses by his application dated 23.2.1999 (Page- 22 of the Brief), the Enquiring Officer allowed only four witnesses and deprived the delinquent from the benefit of principle of natural justice by not allowing him to examine the rest eight witnesses. V. Even though such questions were raised in the Memorandum of Appeal, the Appellate Authority has decided such contentious issue in a cryptic manner as per the observation at Page-34 of the Brief (Annexure-8). 5. In the above background, Mr.Seth, learned counsel for the Petitioners contended, even though the delinquent brought such grounds in the Appeal, vide Annexure-8, there has been disposal of such issue Page 4 of 18 // 5 // mechanically and in cryptic manner by the Appellate Authority. It is further alleged, in spite of the prosecution in the criminal case failing to establish that the delinquent assaulted the Doctor in the criminal proceeding and there is acquittal of the delinquent, this aspect has been taken casually by the Disciplinary Authority as well as the Appellate Authority. 6. Mr.Seth, learned counsel for the delinquent here took help of the decisions of the Hon’ble apex Court in State of Assam vrs. Mohan Chandra Kalita : AIR 1972 SC 2535, Union of India vrs. Mohd.Ramzan Khan : AIR 1991 SC 471 and the decision of Patna High Court in Bibha Devi vrs. State of Bihar & ors. : (Civil Writ Jurisdiction Case No.8052 of 2020 decided on 1.12.2020) on the aspect of position of a disciplinary proceeding on the death of a delinquent appears to be during pendency of the disciplinary proceeding, so also the position of the disciplinary proceeding including the death taken place after passing of the final order also indicates even death of the delinquent taken place during pendency of the Appeal. There is also taking help of another decision of the Hon’ble apex Court in the case of Capt. M.Paul Anthony vrs. Bharat Gold Mines Ltd. & anr. : (1999) 3 SCC 679, a proceeding decided on 30.3.1999. This Court perused the said decision and finds question involved therein appears to be the disciplinary proceeding and proceeding Page 5 of 18 // 6 // in a criminal case launched on the basis of same set of facts can be continued simultaneously and ought to have stayed the disciplinary proceeding till conclusion of the criminal case, which appears to be the case at hand. 7. Answering Respondent, Mr.Mohanty, learned counsel appearing for the O.Ps. while claiming for dismissal of the Writ Petition strongly refuted the allegation of non-supply of the enquiry report before the Enquiring Officer passed the final order of dismissal thereby contended, there is no violation of principle of natural justice, similarly denying the allegation involving violation of principle of natural justice for not allowing the Petitioner to examine all his witnesses having been dealt properly at each level of the matter. On the dropping of witnesses, the Management Counsel through Paragraph-3 of the counter submitted that there has been threatening by the delinquent to the Management Witnesses at some stage resulting their unwillingness to be exposed. Further so far as dropping of delinquent’s witnesses, it is contended, for the delinquent himself submitting not to examine any further witness, there was compelling situation in not going for recording of evidence of all the witnesses on behalf of the delinquent. The Management Counsel also denied the allegation of observation of the Enquiring Officer based on presumption and has no support to evidence. Page 6 of 18 // 7 // Mr.Mohanty, learned counsel for the O.Ps. further on the aspect of dropping the disciplinary proceeding in view of the acquittal of the delinquent in G.R. Case No.42/1995 contended, law has been fairly settled that the proceedings through criminal case and the disciplinary proceeding operated are in completely different spheres and acquittal in criminal case does not automatically result in exoneration of the delinquent in the disciplinary proceeding. It is further pleaded that the Enquiring Officer signed the report on 15.10.1999. The delinquent was asked to submit response to show cause on 20.11.1999. The delinquent submitted his response on 27.12.1999 and the delinquent was acquitted on 10.12.1999. It is in the above situation, Mr.Mohanty, learned counsel for the Management contended, there was no occasion for considering even such judgment by the Enquiring Officer. It is further contended, the delinquent even though submitted his response on 27.12.1999, there is not a single whisper about his acquittal in the criminal proceeding. Mr.Mohanty, however, did not dispute that both the disciplinary proceeding and criminal proceeding were based on complain on same incident and further by same individual. It is also alleged that even in the Appeal, there is no whisper on the acquittal of the delinquent in the G.R. Case. On the allegation of punishment of shockingly disproportionate to quantum of offences, Mr.Mohanty, learned counsel for the O.Ps. contended, the Disciplinary Authority having taken up such issue has Page 7 of 18 // 8 // come to observe, “there is no extenuating circumstances, which would lessen the gravity of the misconduct committed by the Petitioner”. Further the Management took the offence involved is of serious in nature and there was no other option than to dismiss the delinquent. Mr.Mohanty thus contended, for there is appropriate consideration at every stage, learned counsel for the Management contended, there has been proper consideration of the case involved requiring no interference. Mr.Mohanty, learned counsel for the O.Ps., to substantiate his case also relied on the decisions in Kapur Singh “Narang Villa” Simla vrs. Union of India : AIR 1956 Punjab 58, James Bushi vrs. Collector of Ganjam & anr. : AIR 1959 Orissa 152, S.Harjit Singh vrs. I.G. Police, Punjab, Chandigar, : AIR 1963 Punjab 90, Divisional Controller, G.S.R.T.C. vrs. Kadarbhai J.Suthar, : AIR 2007 SC (Supp.) 660, Roop Singh Negi vrs. Punjab National Bank & ors. : 2009(2) SCC 570 and Deputy Inspector General of Police & anr. Vrs. S.Samuthiram : AIR 2013 SC 14 and reading through all these decisions attempted to dislodge the case of the Petitioner on each point he has raised. Mr.Mohanty relies upon Paragraph-11 of the decision in James Bushi (supra), which reads thus : “11. The third point of Mr. Misra deals with the conduct of the enquiring officer (Sub-collector) of Berhampur in refusing permission to the petitioner to examine Sri J.N. Ghosh, the C.I.D. Inspector and to recall Mohan Nayak (P.W. 1) for the purpose of further cross-examination. These are matters to be considered primarily by the enquiring officer and by the appellate authority, namely the Board of Revenue or the State Government. Sri J.N. Ghosh had no personal knowledge of the case and if Page 8 of 18 // 9 // the enquiring officer refused the permit the petitioner to examine the C.I.D. Inspector it cannot be said that the rules of natural justice were violated. As regards Mohan Nayak he was undoubtedly the most important witness against the petitioner and was the first to be examined and also to be cross- examined. It might have been better on the part of the enquiring officer to have permitted the petitioner to recall and further cross-examine Mohan Nayak at a later stage. But, if, in his discretion, he refused to grant such permission, the question as, to how far such refusal materially prejudiced the petitioner would depend upon a careful review of the facts of the case. This is primarily the function of the appellate authority and when the District Collector after reviewing the entire evidence held I that the charges were proved, I do not think it will be proper for this Court to interfere with his order on this ground, in exercise of its extra-ordinary jurisdiction uncle, Art. 226.” Mr.Mohanty further relies upon Paragraph-24 of the decision in S.Samuthiram (supra), which reads thus : “24. We have also come across cases where the service rules provide that on registration of a criminal case, an employee can be kept under suspension and on acquittal by the criminal court, he be reinstated. In such cases, the re-instatement is automatic. There may be cases where the service rules provide in spite of domestic enquiry, if the criminal court acquits an employee honourably, he could be reinstated. In other words, the issue whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right. Such provisions are absent in the Tamil Nadu Service Rules.” 8. Filing rejoinder, the delinquent through paragraph-4 brought further pleading that in submission of the show cause on 27.12.1999, vide Annexure-6, the delinquent here has not only made reference of the acquittal in the criminal proceeding but there has been even enclosing of such judgment through the said response of the delinquent. It appears, there has been also additional affidavit through which the delinquent Page 9 of 18 // 10 // alleged, there has been violation of the provision in the standing order under Clause-28.3 of the South Eastern Coalfields Ltd. 9. Keeping in view the submissions and counter submissions, this Court finds, the undisputed fact remains to be on the selfsame issue, there has been two parallel proceedings; one by way of the disciplinary proceeding by the Disciplinary Authority and the other appears to be a criminal proceeding in G.R. Case No.42/1995 both involving the selfsame issue, appears to be on same foundation and on involvement of one individual. There is no dispute that both the proceedings are undertaken in altogether different manner and by different authorities under different provisions even. This Court here finds, on the selfsame issue, there has been acquittal in the criminal proceeding that this aspect could not have been kept away from consideration. Management’s stand is such copy was not at all available with the Disciplinary Authority but this Court through material finds, there was supply of such order in the response to the second show cause. Thus Management in spite of availability of such order kept it away from being considered. 10. On the allegation that there has been violation of natural justice in depriving the delinquent in examination of his own witnesses, this Court finds, through Page-22 of the Brief, there is an Application by the delinquent on 23.2.1999 clearly disclosing the intention of the delinquent Page 10 of 18 // 11 // examining particular twelve witnesses and there is admission by all the Parties that there has been examination of only four witnesses at the instance of the delinquent. The delinquent in submitting his response dated 27.12.1999 to the Disciplinary Authority has a clear pleading of obstructing further examination of further witnesses by the Enquiring Officer on the involvement of a request of the Enquiring Officer not to linger the proceeding by producing more and more witnesses and as appears, has himself taken decision wrongly recording that the delinquent did not want further examination. This specific allegation was also made in the Memorandum of Appeal at Annexure-8. To this, the Appellate Authority at Annexure-10, Page-41 of the Brief turned down such allegation on the premises that the Enquiring Officer giving appropriate reason in the proceeding dated 6.3.1999 closed the examination of witnesses beyond D.W.4. of course with reason found to be correct and need not be entertained. This Court here observes, the delinquent since belongs to weaker section, looking to the position of the delinquent also involved therein being a Mazdoor and a person facing disciplinary proceeding by the Management must be taken to be in a very very difficult side in taking decision in such matter, appears to have been failed to be appreciated by the Enquiring Officer, the Disciplinary Authority and the Appellate Authority. The Enquiring Officer appears to have taken advantage of the position of the delinquent. This Court here Page 11 of 18 // 12 // also finds, there is a criminal proceeding involving such issue. The proceeding was undertaken in G.R.Case No.42/1995 trying under Sections 332, 294 & 506 of I.P.C. Complain involving charge in the disciplinary proceeding as well as allegation involving criminal case appearing to be one and same. This Court finds, the criminal court framed three points for determination as follows :- “I. Whether on the alleged date, time and place of incident the accused person voluntarily caused hurt to the informant, public servant while discharging his duty as such ? II. Whether on the alleged date, time and place of incident the accused person uttered obscene words to the informant at the public place to the annoyance of others ? III. Whether on the alleged date, time and place of incident the the accused person criminally informant to take away his life with intend to cause alarm to him ? intimidation by threatening 11. Prosecution in the criminal proceeding examined as many as seven witnesses out of fourteen charge-sheeted witnesses and declined to examine the rest of the witnesses. In the criminal proceeding, prosecution though examined two independent witnesses, P.Ws.1 & 2, both of them did not support the case of the prosecution. P.Ws.3 to 6 also did not support the case of the prosecution. It is only for no support at all to the complain of the Management and even after having no support on the three points taken for determination through the prosecution witnesses, the criminal court was compelled to acquit the delinquent from the criminal charges and set him at liberty. This Court surprisingly finds, Page 12 of 18 // 13 // though the Management had a long list of witnesses did not examine any of the witnesses they examined as prosecution witness in the criminal proceeding and examined only one witness in the disciplinary proceeding. Enquiry report has been filed along with the additional affidavit of the delinquent dated 7.8.2013. Apart from examining the Complainant, Dr.K.A.Y.Singh, in the enquiry report there is clear recording that the Management did not produce any witness other than the Doctor may be on the premises that the witnesses are threatened and expressed their inability to produce any other witness. From the discussions in the finding part, it appears, there has been given no much attention to the evidence of D.Ws.2, 3 & 4, who have all appeared to be tutors to support the delinquent and further the fact that this D.Ws. though could be examined in the disciplinary proceeding but were not even examined in the criminal proceeding. 12. This Court here though finds, the Petitioner alleges the impugned action on the premises of non-supply of enquiry report before the first show cause stage of the Disciplinary Authority, this Court finds, there is no such pleading in the Writ Petition requiring no attention to such issue. 13. This Court here considering the allegation that the order of the Disciplinary Authority remains cryptic finds from Annexure-6, i.e., response of the delinquent dated 27.12.1999 appearing to be submitted Page 13 of 18 // 14 // before the final order of punishment passed by the Disciplinary Authority. In the response to the show cause before the Disciplinary Authority takes its decision in Annexure-6, it appears, the delinquent has led a lot of issues. The punishment order at Annexure-7 of the Disciplinary Authority reads as follows :- “…..You have been charge-sheeted with suspension vide charge sheet by No.MCL/IBV/SOM/MGR/LKPOCP/2239, Dt.20.01.95, S.O.M./Manager, Lakhanpur Open Cast Project, under the Clause No.26.4 and 26.18 of the certified standing order of the Company. issued Accordingly, a domestic enquiry was ordered vide office order No.MCL/IBV/SAM/LKPOCP/1049, Dt.30.01.95 in to the said Charge Sheet. The Enquiry Officer has conducted the domestic enquiry on various dates and after completion of the same he has submitted the complete enquiry proceedings along with the findings of the enquiry in the office of the undersigned. After receipt of the aboe I have carefully gone through the enquiry proceeding and findings of the enquiry and found that you have participated in the domestic enquiry along with your coworker and you have been given ample of opportunity to defend your case. As per the findings of the Enquiry Officer, the charges leveled against you under the clause No.26.4. and 26.18 of the certified standing order of the company have been proved beyond any doubt and I fully agree with the Enquiry Officer. Also before imposing any punishment, you have been given the last opportunity to explain your position Vis-à-vis the findings of the enquiry report vide reference No.MCL/GM/LKPA/2275, Dt.19/22.11.99. Your explanation Dt.27.12.99 to the above has also been considered by the undersigned and found that there is no any extenuating circumstances, which would lessen the gravity of the misconduct committed by you. As the charge leveled you have been proved beyond any doubt and the misconduct committed by the you is of serious nature you are hereby dismissed from service. Further you are advised to collect your legal dues on any working day after submission of no dues certificates.” Page 14 of 18 // 15 // Here considering the allegation of the delinquent that the order of the Disciplinary Authority is cryptic and mechanical, this Court reading of the grounds raised by the delinquent in Annexure-6 and the responsibility of the Disciplinary Authority in giving a closure to the enquiry proceeding finds, the role of the Disciplinary Authority is not an empty formality so that it will end the disciplinary proceeding simply recording that it is in agreement with the suggestions of the Enquiring Officer. Once there have been grounds against the observation of the Enquiring Officer, it remains binding on the disciplinary proceeding to overcome such ground by reasonings and then to arrive at its conclusion as the Disciplinary Authority was undertaking the exercise involving a major misconduct resulting in major punishment aspect. In the circumstance, this Court finds, the order of the Disciplinary Authority remains mechanical and cryptic and the Disciplinary Authority failed in discharging its responsibility in dealing with the enquiry report. 14. This Court also on the aspect of judgment in the criminal case acquitting the delinquent, the accused therein, as appearing in the disciplinary proceeding, while not approving the claim of the Counsel of the Management that neither in the show cause response nor in the Appeal, the delinquent ever brought to the notice of the Management of his acquittal in the criminal case, found to be completely false for there is Page 15 of 18 // 16 // clear disclosure on this aspect in the show cause response dated 27.12.1999 at Annexure-6. In the show cause response of the delinquent, vide Annexure-6 clearly appearing in the last part, this Court on examination of the charges and the complain in the G.R. Case finds, both were on the selfsame issue. In the entire reading of the judgment in the G.R. Case, this Court nowhere finds, even there is examination of the Doctor alleged to have been assaulted, who undisputedly was the Party at suffering involving criminal proceeding. This is also a serious issue, which ought to have been kept in mind at the same time while also keeping in mind that if there is acquittal in the criminal charges involving selfsame issue, the same has at least a persuasive value in the disciplinary proceeding though not binding, but for both proceedings bearing selfsame complain acquitted in criminal case gets great bearing. 15. On the complain on punishment disproportionate to the quantum of offence, this Court here looking to the status of employee being a Mazdoor and the incident arises out of complete neglecting the patient involved, further keeping in view the person belongs to Scheduled Tribe and uneducated one, the Management should have taken into account awarding punishment other than dismissal from service. Page 16 of 18 // 17 // 16. This Court here also going through each of the decisions produced by the Management but for all such decisions standing on different facts finds, none of the decisions suits the case of the Management. 17. In the whole background narrated herein above, this Court finds, there is scope for re-opening of the enquiry proceeding at least from the point of view of non-compliance of natural justice, in complete ignoring of the judgment in the criminal proceeding but at this stage, keeping in view the statement of both the learned Counsel that the delinquent has died in the meantime on 11.11.2016 and was already of 56 years while filing the Writ Petition in the year 2010, this Court finds, there is no purpose in remitting the matter for re-commencement of the enquiry proceeding and as it requires disposal after providing natural justice by allowing the delinquent to have his further scope of evidence. Further for the delinquent attaining the age of superannuation in 2014 even prior to his death, there is also no possibility in imposition of punishment, if any, in the fresh disposal of the enquiry proceeding and further as the death of the delinquent already occurred, the enquiry proceeding stood abated. This Court finds, there cannot be continuation of further proceeding of disciplinary proceeding at the instance of the legal heirs of the delinquent otherwise also. It is only keeping in view that the delinquent enjoyed the acquittal order through the criminal proceeding, which again not being Page 17 of 18 // 18 // challenged any further, this Court interferes with the impugned order at Annexure-7 and consequential order at Annexure-10 couple with the observations herein above and remits the matter to the Appointing Authority for releasing the financial benefit by way of superannuatory benefit following the service Rules of the Company in favour of the legal heirs herein treating the Petitioner to have been continuing in service uninterruptedly at least till his superannuation in the year 2014. Considering the Petitioner has not worked from the date of dismissal till the date he attained the age of his superannuation, his legal heirs, the Petitioners herein be paid at least a sum of Rs.2,00,000/- (rupees two lakh) consolidated in lieu of back wages. This payment is in addition to retiral dues, if any. Financial benefit shall be accordingly drawn up and released in favour of the Petitioners as expeditiously as possible by completing entire exercise on the above aspects within a period of two months from the date of communication of the judgment. 18. The Writ Petition succeeds but in the circumstance, there is no order as to costs. ….……………………… (Biswanath Rath, J.) Orissa High Court, Cuttack. The 17th February, 2023/M.K.Rout, A.R.-cum-Sr.Secy. Page 18 of 18