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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.24199 OF 2011 (An application under Article 226 of the Constitution of India) Rabindra Kumar Sahu … Petitioner -versus- Utkal University & another … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioner : Mrs. Madhumita Panda, Advocate -versus- For Opposite Party Nos.1 & 2 : Mr.Tarananda Pattnaik, Advocate -------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 01.3.2023. Sashikanta Mishra,J. The Petitioner has approached this Court seeking the following relief; “It is therefore, prayed that this Hon’ble Court may be graciously pleased to issue a writ/writs, order/orders and more particularly to issue; Page 1 of 9 (i) Writ of certiorari calling upon the Opp. Parties to produce the relevant record along with returns; (ii) Writ of mandamus directing the opp.Party No.1 to consider the case of the Petitioner for promotion with retrospective effect; (iii) Writ of mandamus declaring the order dated 20.5.2000 as bad, illegal and non-est in the eyes of law; (iv) Writ of mandamus directing
Legal Reasoning
the Opp.Party No.1 to correct/rectify the Gradation List dtd.31.5.2003 vide proper Annexure-3 by giving placement to the Petitioner below the name of Sri Suesh Chandra Jena; (v) Order allowing the petitioner with all consequential service bonafide; (vi) Order allowing the application with cost.” 2. The Petitioner was appointed as Junior Assistant in Utkal University on 12th March, 1976. He was promoted to the post of Senior Assistant on 18th August, 1983. On 31st December, 1995 the University authorities published a Gradation List wherein the Petitioner’s name found place at Sl. No.170 in between Sri Suresh Chandra Jena at Sl. No.169, Sri Upendra W.P.(C) No. 24199 of 2011 Page 2 of 9 Prasad Jena at Sl. No.171 and Sri Pratap Chandra Pani at Sl. No.173. 3. A disciplinary proceeding was initiated against the Petitioner and two other employees of Utkal University in the year 1993 jointly which culminated in finding of guilt. Consequently, by order dated 20th May, 2000, which is enclosed as Annexure-1 to the Writ Petition, the following punishments were imposed; (i) The period of their suspension i.e. from 15.2.1993 to 27.7.1995 shall be treated as such. (ii) They are warned not to repeat such mistake in future. (iii) They should not be posted against sensitive i.e Examination Sections. posts, (iv) Their claim for promotion shall be denied once (this provision does not apply to those who have already been superseded during the pendency of the department proceedings i.e. 15.2.1993 to 16.5.2000). The syndicate at its meeting held on 19.4.2000 has ratified the action taken by the Vice Chancellor. 4. The period from 15th February, 1993 to 27th July, 1995 was not considered as duty. As a result, the W.P.(C) No. 24199 of 2011 Page 3 of 9 Petitioner was superseded by his juniors as would be evident from the Gradation List published on 31st May, 2003, wherein the Petitioner is placed at Sl. No.99 below Seshadev Samal, who is his junior. Alleging that the order of suspension as a measure of punishment cannot affect his seniority, the Petitioner has approached this Court seeking the relief as aforementioned. 5. Be it noted that the order of punishment dated 20th May, 2000 was subsequently modified by order dated 22nd June, 2000 only in respect of the punishment under Paragraph-4(4) of the earlier order. 6. A Counter Affidavit has been filed on behalf of the Opposite Parities refuting the averments made in the Writ Petition and by justifying the Gradation List published by the authorities. 7. Heard Mrs. Madhumita Panda, learned counsel for the Petitioner and Mr. Tarananda Pattnaik, learned counsel for the Opposite Parties. W.P.(C) No. 24199 of 2011 Page 4 of 9 8. Mrs. Panda submits that in the mean time the order of punishment having been challenged by this Court by one of the delinquents namely, Gopal Chandra Mohanty in O.J.C. No.3958/2002 was allowed by judgment dated 22nd March, 2011 passed by a Division Bench, wherein the order of punishment was quashed. On such basis, it is submitted by Mrs. Panda that since the order of punishment was passed in respect of the Petitioner also, it must be treated as quashed in respect of him and therefore, he must be deemed to have been exonerated. 9. Mr. Tarananda Pattnaik, learned counsel appearing for the Opposite Parties, on the other hand, submits that the judgment passed by this Court earlier must be limited in its application to the Petitioner of that case and cannot be extended to the present Petitioner since he had never challenged the same. 10. A reading of the judgment dated 22nd March, 2011 reveals that the Division Bench, after going through W.P.(C) No. 24199 of 2011 Page 5 of 9 the materials on record and the position of law held that- ‘this a case where no charge has been proved against the Petitioner. It is trite that suspicion, however, strong cannot take place of actual proof even in domestic enquiries and no punishment can be awarded on surmises and conjectures as well as on suspicion no punishment can be awarded’. The Division Bench has also referred to some decisions of the Apex Court rendered in the case of Nand Kishore Prasad v. The State of Bihar and others; reported in AIR 1978 SC 1277, wherein the following observations were made; is that "Before dealing with the contentions canvassed, we may remind ourselves of the principles, in point, crystalised by judicial decisions. The first of these principles disciplinary proceedings before a domestic tribunal character; are of a quasi-judicial therefore, the minimum requirement of the rules of natural justice is that the tribunal should arrive at its conclusion on the basis of some evidence, i.e. evidential material which with some degree of definiteness points to the guilt of the delinquent in respect of the charge against him. Suspicion cannot be allowed to take the place of proof even in domestic inquiries. As pointed out by this Court in Union of India v. H.C. Goel, AIR W.P.(C) No. 24199 of 2011 Page 6 of 9 1964 SC 364, "the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applied as much to regular criminal trials as to disciplinary enquiries held under the statutory rules." Similarly the Apex Court in the case of Roop Singh Negi v. Punjab National Bank and others; reported in JT 2009(2) SC 176 held as follows; the
Decision
order "Furthermore, of the the disciplinary authority as also appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied the the confession made by upon appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self- same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, legally admissible. The which provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under is W.P.(C) No. 24199 of 2011 Page 7 of 9 no circumstances be held substitute for legal proof." to be a Ultimately, the impugned order of punishment was quashed. 11. Since a Division Bench of this Court has already examined the matter and held that the order of punishment cannot be sustained in law, this Court can do no more than to follow the ratio of the said judgment. Further, the Petitioner’s claim regarding seniority being apparently affected by the impugned order can be considered by the authorities in view of the finding that the order of punishment is no longer a bar in view of its quashment by this Court in the judgment referred to earlier. 12. For the foregoing reasons therefore, the Writ Petition is allowed and the impugned orders under Annexure-1 and Annexure-3-B in so far as the same relate to the present Petitioner are hereby quashed. It is open to the Petitioner to approach the concerned authority ventilating his grievance relating to inter se W.P.(C) No. 24199 of 2011 Page 8 of 9 seniority in the Gradation List. It is needless to mention that if the authority finds the claim of the Petitioner to be admissible, necessary benefits shall be extended to him without any further delay and in any case, not later than three months from today. ………..…….……………. Judge Sashikanta Mishra, Ashok Kumar Behera W.P.(C) No. 24199 of 2011 Page 9 of 9 W.P.(C) No. 24199 of 2011 Page 10 of 9 W.P.(C) No. 24199 of 2011 Page 11 of 9 W.P.(C) No. 24199 of 2011 Page 12 of 9 W.P.(C) No. 24199 of 2011 Page 13 of 9