The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 3577 of 2022 Dr. Jadumani Nayak …. Petitioner Mr. B.P. Das, Advocate on behalf of Mr. S.K. Nayak, Advocate -versus- State Of Odisha & Ors. …. Opposite Parties Mr. R.N. Mishra, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY
Decision
ORDER 08.09.2023 Order No 03. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. B.P. Das, learned counsel appearing on behalf of Mr. S.K. Nayak, learned counsel for the Petitioner and Mr. R.N. Mishra, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. The present writ petition has been filed challenging the order of punishment passed against him on 29.11.2021 under Annexure-8. 4. Learned counsel for the Petitioner contended that the Petitioner while continuing as HOD, Department of Medicines in Fakir Mohan Medical College and Hospital, Balasore, a proceeding under Rule 15 of OCS (CCA) Rules, 1962 was initiated against him with the following charges:- “1. Un-authorised absence from Govt. duty. 2. Dis-obedience of orders of higher authority. 3. Negligence in Govt. duty. 4. Misconduct.” // 2 // 4.1. It is contended that after receipt of the charges, Petitioner filed his written statement of defence on 20.03.2020 under Annexure-2. Thereafter, when the Enquiry Officer on being appointed issued notice to the Petitioner to participate in the enquiry, Petitioner because of his illness prays for time on different occasion and time was also allowed by the Enquiry Officer considering the request made by the Petitioner. But the Enquiry Officer when issued a fresh notice on 18.11.2020 by fixing the date of enquiry to 02.12.2020, Petitioner made an application praying for two (2) months time on 26.11.2020 under Annexure-15. 4.2. It is contended that without allowing further time as requested the Enquiry Officer proceeded with the enquiry ex parte and submitted the report on 11.12.2020 vide Annexure-4 series. Basing on the finding of the Enquiry Officer, Petitioner was issued with the 1st show-cause on 22.01.2021 vide Annexure-3. Petitioner though submitted his reply under Annexure-5, but Opp. Party No. 1 on not being satisfied with the same issued the 2nd show-cause by proposing penalty of dismissal from service on 03.08.2021 under Annexure-6. Petitioner though submitted his reply to the 2nd show- cause on 08.09.2021 under Anexure-7, but Opp. Party No. 1 passed the order of dismissal vide order dtd.29.11.2021 which is impugned in the present writ petition. 4.3. Learned counsel for the Petitioner contended that the proceeding in question was initiated during the time Covid-19 was at its peak. It is also contended that on receipt of the charges though Petitioner filed his written statement of defence on 20.03.2020, but because of his illness he could not appear before the Enquiry Officer, which was also conducted during Covid-19. Though the Enquiry Officer allowed time on two to three occasion, but the Page 2 of 5 // 3 // prayer made by the Petitioner on 26.11.2020 under Annexure-15 was turned down and the Enquiry Officer proceeded with the Enquiry Ex parte and submitted the report on 11.12.2020 vide Annexure-4 series. 4.4. It is contended that since the Petitioner because of his illness and due to the prevailing Covid situation could not participate in the enquiry, the Enquiry Officer conducted the enquiry ex-parte and submitted the report by opining that the Petitioner has remained unauthorized absent from Govt. service, which is not a fact. Basing on such report of the Enquiry Officer, Opp. Party No. 1 by following the provisions contained under Rule 15 of the OCS (CCA) Rules, 1962 passed the impugned order of dismissal on 29.11.2021 under Annexure-8. It is accordingly contended that since the Petitioner could not participate in the enquiry and could not dispute the allegation by giving evidence, he was seriously prejudiced because of the order of dismissal so passed against him. 5. Mr. R.N. Mishra, learned Addl. Govt. Advocate made his submission basing on the stand taken in the counter affidavit. It is contended that after filing of the written statement though the Petitioner was given opportunity to participate in the enquiry by the Enquiry Officer time and again, but the Petitioner deliberately did not appear before the Enquiry Officer. The Enquiry Officer accordingly did not allow any further time as prayed for by the Petitioner in his application dtd.26.11.2020 under Annexure-15 and conducted the enquiry with submission of report on 11.12.2020. It is accordingly contended that since the Petitioner did not avail the opportunity to participate in the enquiry, the Enquiry Officer had no occasion than to submit the report. It is also contended that basing on the finding of the Enquiry Officer, the Petitioner was given due Page 3 of 5 // 4 // opportunity of hearing with issuance of 1st & 2nd show-cause as provided under Rule 15. After due consideration of his reply so submitted to the 1st & 2nd show-cause, the order of dismissal was passed. It is accordingly contended that no illegality has been committed by the authority in passing the order of dismissal. 6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, it is found that the proceeding in question was initiated during the time Covid 19 affected the entire country. Even though the Petitioner submitted his written statement of defence on 20.03.2020, but after receipt of the notice from the Enquiry Officer on 06.08.2020 the Petitioner because of his illness prays for time to participate in the enquiry. Though it is found from the record that the Petitioner was given time on two to three occasion, but the Enquiry Officer when issued a final notice on 18.11.2020 under Annexure-14 fixing the date of enquiry to 02.12.2020, the Petitioner made an application on 24.11.2020 under Annexure-15 with a prayer to allow two (2) months further time. It is found from the record that the Enquiry Officer without allowing further time as prayed for conducted the enquiry and submitted the report on 11.12.2020. Basing on such enquiry report, the impugned order was passed. 6.1. Since it is found from the record that the proceeding was initiated and completed during the time Covid was at its peak, it the view of this Court that the Enquiry Officer should have allowed further time to the Petitioner to participate in the enquiry. Since the impugned order of dismissal has been passed basing on the report submitted by the Enquiry Officer, it is the view of this Court that the Petitioner was not given due opportunity of hearing to dispute the charges by participating in the enquiry. Page 4 of 5 // 5 // 6.2. In view of such position, this Court is of the view that the order of dismissal so passed against the Petitioner on 29.11.2021 under Annexure-8 is not sustainable in the eye of law. While quashing the same, this Court remits the matter to the stage of enquiry. It is observed that the Enquiry Officer will issue fresh notice to the Petitioner for his taking part in the enquiry. After due completion of the enquiry and submission of the enquiry report, Opp. Party No. 1 shall conclude the proceeding within a period of six (6) months from the date of receipt of this order in accordance with law, if there is no other legal impediment. Petitioner is directed to participate in the enquiry and co-operate in all respect for disposal of the proceeding. 7. The writ petition is disposed of accordingly. (Biraja Prasanna Satapathy) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Sep-2023 11:13:23 Page 5 of 5