High Court
Case Details
IN THE HIGH C CK IGH COURT OF ORISSA AT CUTTACK W.P.(C) No.4013 of 2021 W (Through Hybrid Mode) (T Pramod Kumar Adhikari ..... Petitioner Union of India and others ..... Opposite Parties Oppo -versus- Advocates appea appeared in this case: For Petitioner : Mr. S. K. Ojha, Advocate arties For Opp. Parties arya, : Mr. Goutam Kumar Acharya, Senior Advocate CORAM: THE HON'BL INHA ON'BLE MR. JUSTICE ARINDAM SINHA AND THE HON'B ON'BLE MR. JUSTICE M.S.SAHOO J U D G M E N T ------------------------- Dates of heari D ------------------------- ARINDAM SIN ----------------------------------------------------------------------- hearing: 26th November, 2024 and 7th Janua Date of Judgment: 7th January, 2025 ----------------------------------------------------------------------- SINHA, J. ----------------------- January, 2025 ----------------------- 1. The writ pe petition stands specially assigned. 2. Mr. Ojha Ojha, learned advocate appears on behalf of alf of petitioner and submits, un ts, under challenge is order dated 18th Janu January, 2021 W.P.(C) no.4013 of 2021 Page 1 of of 13 made by the Ce the Central Administrative Tribunal (CAT), , perversely holding there is n re is no scope, necessity or justification to inte to interfere with order dated 16th th January, 2015 issued by the Disciplinary linary Authority (DA) upon invo n invoking clause (ii) under rule 19 in Cen in Central Civil Services (Classif Classification, Control and Appeal) Rules, 1 ules, 1965. The clause is reprodu produced below. “19. Spec Special Procedure in certain cases Notwithstanding anything contained in Rul Notw Rule 14 to Rule 18- (i) (ii) … … … Where the Disciplinary Authority is satis satisfied for reasons to be recorded by it in writing t ng that it is not reasonably practicable to hold an in n inquiry in the manner provided in these rules, or ... ... ... the Discipl sciplinary Authority may consider the circum rcumstances of the case case and make such orders thereon as it deem deems fit: Provided … ed … …” In this connection nection clause (b) under 2nd proviso, article 311 le 311 (2) in the Constitution of In n of India is also reproduced below. “311. Dis Dismissal, removal or reduction in ra rank of persons em s employed in civil capacities under the Un e Union or a State- (1) ... ... ... W.P.(C) no.4013 of 2021 Page 2 of of 13 (2) No s No such person as aforesaid shall be dismis ismissed or removed or reduced in rank except after an i remo an inquiry in which he has been informed of the c in w e charges against him and given a reasonable opportu agai ortunity of being heard in respect of those charges: bein Provided … … … Prov Prov Provided further that this clause shall not app (a) … … … (a) t apply- (b) where the authority empowered to dism (b) w dismiss or remove a person or to reduce him in r remo in rank is satisfied that for some reason, to be record satis ecorded by that authority in writing, it is not reas that reasonably practicable to hold such inquiry; or ... ... ... prac ...”
Legal Reasoning
Mr. Acharya, le rya, learned senior advocate virtually appea appears on behalf of opposit pposite parties. 3. Mr. Ojha s Ojha submits, the DA invoked the provision ision to avoid holding the inqu e inquiry. Charges were leveled against his c t his client by unidentified pers d persons, who were not noticed in the inqu e inquiry. As such, invoking th ing the power to not hold the inquiry, was arbi s arbitrary. 4. For our as our assistance Mr. Ojha had filed three brief e briefs under headings compe compendiums 1, 2 and 3. He demonstrate nstrates from paragraph-4 in or 4 in order dated 26th November, 2024, the same e same officer being District an rict and Sessions Judge (retired) was the the Inquiring W.P.(C) no.4013 of 2021 Page 3 of of 13 Authority (IA) in in two departmental inquiries. He had com d commenced preliminary hear y hearing of the two disciplinary proceeding eedings being D.P. no.1 of 201 of 2012-13 and D.P. no.1 of 2013-14 respect espectively on 13th May, 2014 a 2014 and 20th May, 2014. In minutes dated 20 ated 20th May, 2014, certain rem in remarks were made by the IA, which canno cannot be said to find basis in th is in the earlier minutes of the first proceeding eeding held on 13th May, 2014. 2014. He lays emphasis that minute dated 13 ted 13th May, 2014 in D.P. no. .P. no.1 of 2012-13 does not contain a single single remark about his client’s client’s conduct or of alleged misconduct. In ct. In minutes dated 20th May, 2 May, 2014 of D.P. no.1 of 2013-14 there are re are remarks about his client’s lient’s misconduct, as alleged to be contained tained in said minutes of the e the earlier proceeding held on 13th May, 2 ay, 2014. He submits, there th ere thus is demonstration of illegal invoking voking of the provision by the y the DA, to deny his client’s defence in the in the inquiries. 5. Mr. Ojha s Ojha submits, his client has suffered double je uble jeopardy, denial of inquir nquiry and punishment of compulsory ret ry retirement. Impugned order b order be quashed and there be direction for con for conducting the enquiries. O . Opposite parties are resisting conduct onducting the inquiries because ecause result of them will be in favour of his cli his client. W.P.(C) no.4013 of 2021 Page 4 of of 13 6. Mr. Achar Acharya submits firstly, petitioner cannot m nnot maintain challenge in the w
Decision
n the writ petition because he has already obta obtained his benefits pursuant rsuant to application made. He relies on view t view taken by a Division Bench Bench of the Madras High Court on judgmen dgment dated 10th September, mber, 2018 passed in W.P. no.10328 of 2 of 2014 (S. Murugadoss v. ss v. State of Tamil Nadu) available at 201 2018 SCC OnLine Mad 29 ad 2929. Mr. Acharya relies on paragraph raph-9 of the judgment as qu as quoted in the written notes. He then re hen relies on judgment of the f the Supreme Court in Union of India v. T a v. Tulsiram Patel. He submit ubmits, it is a Constitution Bench judgment rep ent reported in AIR 1985 SC SC 1416. Thereby was declaration of la of law with reference to clau o clause (b) in second proviso under article 3 ticle 311(2) in the Constitution titution of India, of there being situatio situations for discontinuing wit ing with inquiry. 7. Mr. Achar Acharya draws attention to confidential letter letter dated 15th July, 2014 writte written by the IA to the Accountant General. H eral. He submits there are materia aterials in it apart from Daily Order Sheet (D DOS) dated 13th and 20th M May, 2014. The IA was appointed to co to conduct the inquiries after e fter earlier incumbent had recused. Those a hose are cogent W.P.(C) no.4013 of 2021 Page 5 of of 13 grounds for exer r exercise of the power to not have continued ntinued with the inquiries. The wr he writ petition be dismissed. 8. The facts a facts as far as we have been able to ascertain ertain are, there were three discip disciplinary proceedings initiated against peti st petitioner. By memorandum da dated 29th August, 2013 there was alle as allegation of misconduct and o t and or misbehavior against petitioner, who w who was said to have interfered fered with official work of the Block De k Development Officer. Departm epartmental inquiry was ordered on 16th September, 2013. It appears pears from order dated 16th January, 2015 of the DA, there was anothe another inquiry in respect of complaints ma ts made by the villagers against gainst petitioner. Said order goes on to say th say that the IA, while writing D ing DOS dated 20th May, 2014, brought to ght to light the improper and i and insulting comments made by petition etitioner in the immediate previo previous sitting on 13th May, 2014 in anoth another inquiry proceeding. Pe all . Petitioner’s behaviour became all the more t reprehensible, w when he forcibly penned through some some portion of recording in DO in DOS dated 20th May, 2014 stating the the recording relates to 13th M May, 2014, ‘cut by him’. Relevant passage assage from said order dated 16th th January, 2015 of the DA is reproduced be ced below. “... .... W . While writing the D.O.S. dated 20.05.201 .2014,, the I.A. brough ought to light the improper and insulting com comments W.P.(C) no.4013 of 2021 Page 6 of of 13 made by t by the C.O. in the immediate previous sitt sitting on 13.05.2014 2014 in another inquiry proceeding that h at he (the I.A.) was v as valued like a “potato” in the vegetable ble market which cou could never be a costlier vegetable like “to “tomato” and that th at the staff of this office were condemning hi g him. The CO’s beha behaviour became all the more reprehensible sible when he forcibly cibly penned through some portion of record cordings in DOS dated ated 20.05.2014 stating that “the recording ing relates to 13.05.20 05.2014, “cut by me”, without however dispu isputing its veracity or ty or truth. ... ...” 9. It appears pears from said order dated 16th January, 20 ry, 2015 of the DA, one more more inquiry was launched against petit petitioner for demonstrating ins ting inside office building and inducing others t thers to do so in violation of offic f office order, pursuant to memorandum dated dated 17th June, 2014. Another p ther person was appointed IA in said inquiry inquiry. Said IA was resident in nt in a colony, where petitioner was Preside President of the Residents’ Comm Committee. The IA lodged complaint on 19th th September, 2014 that his ho house was locked from outside in the mor e morning. The date was incide incidentally first date of preliminary hearin hearing of the inquiry. As such s such the inquiry was not held and said or aid order made invoking the pow he power under rule 19 (ii). Punishment impos imposed was of compulsory retire y retirement. W.P.(C) no.4013 of 2021 Page 7 of of 13 10. According rding to the date chart filed in the Tribunal b unal by opposite parties, on 12th February, 2015 the Accountant General ha eral had allowed for payment of nt of all retirement and compassionate b ate benefits to petitioner in acco accordance with provisions relating to super superannuation. We e have found, fo earlier Original Applicatio lication (OA) no.260/0038/201 8/2015 was filed in the Tribunal challenging nging said order dated 16th Januar January, 2015. The Tribunal by order dated 2 ted 2nd February, 2017 allowed t wed the challenge on ground that the d the disciplinary proceedings wer s were initiated by the Accountant Gene General, when petitioner had be ad been appointed by the Principal Accountan ountant General. Opposite parties arties challenged said order of the Tribunal in nal in this Court by W.P.(C) No.2 ) No.2725 of 2017. Coordinate Bench on orde order dated 5th March, 2020 up 20 upheld the challenge directing that the at the Tribunal should dispose of the OA on the matter remitted back to i ck to it for fresh adjudication. Th The Tribunal then passed impugned ord ed order, under challenge in the w n the writ petition. 11. We have have satisfaction that the IA made record ecord regarding conduct of petitio petitioner in DOS of 20th May, 2014, giving ving basis as in DOS dated 13th th May, 2014. On perusal of DOS dated dated 13th May, 2014 we do not s o not see reflection therein regarding any misc y misconduct on W.P.(C) no.4013 of 2021 Page 8 of of 13 part of petitioner itioner. In the circumstances, basis relied upon upon by the IA as in DOS dated dated 20th May, 2014 does not appear in t in the record. Hence, recusal o usal of the IA citing misconduct exhibited by by petitioner in the proceedi oceeding held on 13th May, 2014 does does not stand substantiated. It ed. It appears from the record and we under understand that petitioner had fi had filed application citing bias of the IA, IA, soon after making of said m said minutes dated 20th May, 2014. 12. Further rea her reason for our aforesaid satisfaction is, w where DOS dated 13th May, May, 2014 does not contain record of m of misconduct exhibited by peti y petitioner, on the day of hearing in anothe another inquiry, same IA dealing ealing with that inquiry in the sitting held on ld on 20th May, 2014 made rema remarks regarding what happened in the ear he earlier sitting on 13th May, 201 ay, 2014. Considering the remarks did not fin not find basis in said minutes date es dated 13th May, 2014, we understand petitio petitioner’s state of mind in havin having scored through the remarks to endo endorse ‘cut by me’. On careful areful scrutiny of said order dated 16th January anuary, 2015 of the DA, we hav e have not seen a finding therein that the at the other IA appointed in the 3 in the 3rd departmental inquiry had been locked locked inside his house on 19th Se September, 2014 by petitioner himself, the lf, the President of the Residents’ idents’ Committee. We cannot act on presum resumption that W.P.(C) no.4013 of 2021 Page 9 of of 13 petitioner had ca had caused the IA to be locked in since, the there was no steps taken, as as appears from said order, in the dir he direction of establishing peti g petitioner’s involvement. Regarding cont contention of opposite parties b arties based on the confidential letter, we are c are constrained to confine oursel ourselves to impugned order and impugned the ed therein order dated 16th Januar January, 2015, for adjudication on whether they they are to be maintained or int or interfered with. 13. On the question of fact regarding applicat the plication for disbursement of nt of the benefits consequent to the com e compulsory retirement impo imposed as punishment, Mr. Acharya sub a submits, in 20 of paragraph-20 of the counter clear statement was was made. Paragraph-20 is r 20 is reproduced below. “20. That That it is pertinent to mention here th that the petitioner ner during the pendency of his O.A. appli pplied for disburseme sement of his retirement benefits like pe e pension, gratuity an ty and GPF, etc. in term of the order of Acco Accountant General-O Opp. Party No.3 and hence, he has alread ready been paid full full GPF balance and pension with effec ffect from 17.01.2015 2015, however, the gratuity has been withh ithheld for adjustment ment against his liabilities towards gover overnment dues and p nd personal loan from bank in which the D he DDO of the office s ice stands guarantor.” W.P.(C) no.4013 of 2021 Page 10 10 of 13 Mr. Ojha submits ubmits, his client was in need of sustenance. H nce. He was told to apply for th for the benefits consequent to punishment hment order of compulsory retir y retirement. He is ready to return the be the benefits on reinstatement, up ent, upon impugned order being set aside. He e. He said so in paragraph-14 of 14 of the rejoinder, wherein paragraph 20 in th in the counter stood dealt with t with. Paragraph-14 from the rejoinder is r r is reproduced below. “14. That i hat in reply to the averments made in Para ra-20 of the Counter, i er, it is respectfully submitted that the righ right of the petitioner ner cannot be affected and wrong committe itted by the DA cannot nnot be legalized merely because the service vice benefits extended to ed to an employee. Once, the petitioner is tak is taken back to his earli earlier service he is ready to refund the bene benefits paid to him tow towards the retirement dues.” 14. Impugned gned is order dated 18th January, 2021. The w The writ petition was presented on ted on 1st February, 2021. In relied upon parag n paragraph-9 of S. Murugadoss adoss (supra), there was discussion made o ade on several judgments of the of the Supreme Court regarding approbation, reprobation and election. We have already noticed opposite pa ite parties had contended in the in the Tribunal that soon after order dated 16 ted 16th January, 2015 had been m een made by the DA, on 12th February, 2015 p 015 payment of the benefits was s was allowed. We have perused said earlier o rlier order dated W.P.(C) no.4013 of 2021 Page 11 11 of 13 2nd February, 20 ry, 2017 passed by the Tribunal, quashing th the order of the DA. In recor record of submissions made by opposite par ite parties, there does not appear ppear a submission made by opposite parti parties that in prosecuting his c g his case before the Tribunal, after having ob ing obtained the benefits, petition etitioner was guilty of approbation and reprob reprobation. Nor is there record ecord of submission made by opposite pa ite parties that petitioner after ha fter having challenged said order of the DA, had elected to accept the DA he DA’s order. So much so, opposite parties c rties challenged said order befor before this Court by their earlier writ pe rit petition and obtained direction irection for remitting the matter back to the Trib he Tribunal. 15. As aforesa foresaid, we do not find basis of petitioner’s m er’s misconduct as appearing from g from DOS dated 13th May, 2014, given to be n to be reason in DOS dated 20th th May, 2014 in the other enquiry proceed oceeding by the same IA. Hence, ence, the circumstances in which the IA rec IA recused from conducting the e the enquiry are such as causes doubts to aris to arise. Where there are doubts oubts arising in respect of exercise of power, ower, to deny a person inquiry, uiry, we are inclined and do interfere, to re, to set aside impugned order order as well as order dated 16th January, 20 ry, 2015 of the DA. Tulsiram P ram Patel (supra) has no application in the fa the facts of this case. On query uery from Court Mr. Ojha submits, his clie is client is little W.P.(C) no.4013 of 2021 Page 12 12 of 13 more than two y two years away from achieving age of super superannuation. Position prior to ior to order dated 16th January, 2015, issued b sued by the DA, is restored. Both . Both parties must accept the consequenc quences of the direction and act nd act accordingly. Petitioner is to be re-instate instated with full back wages and t s and there is to be recovery of all monies paid s paid to him on severance in ex in executing, herein also set aside, order rder dated 16th January, 2015. 015. In event opposite parties proceed by res by resuming the inquiries, we dir e direct that petitioner must be on best beha t behaviour and duly participate. ipate. He must take care to ensure there is no is no reason or even remote caus te cause for the employer to allege that he has in e has indulged in unacceptable beh le behaviour in the resumed inquiry or inquirie quiries. 16. The writ pe writ petition is allowed and disposed of as abov s above. (Arindam Sin Sinha) Judge ahoo) (M.S. Saho Judge Page 13 13 of 13 Gs/dutta Prasant Signature Not Verified Digitally Signed Signed by: GAGAN BIHARI SAMAL Reason: Authentication Location: ohc Date: 13-Jan-2025 12:10:17 W.P.(C) no.4013 of 2021