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THE HIGH COURT OF ORISSA AT CUTTACK AFR W.P.(C) No.9788 of 2014 An application under Articles 226 and 227 of the Constitution of India. Nilamani Tripathy ……. Petitioner -Versus- State of Orissa & Others ….….. Opp. Parties ___________________________________________________________ For Petitioner : Mr. Kamal Behari Panda, Advocate. For Opposite Parties : Ms. S. Patnaik, Additional Government Advocate ___________________________________________________________ CORAM: THE HONOURABLE MR JUSTICE S. TALAPATRA THE HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 5th of July,2023 S. Talapatra, J. By means of this writ petition, the petitioner has challenged the order dated 04.04.2014 delivered in Original Application No. 514 of 2012 passed by the State Administrative Tribunal. The Original Application (OA) was filed by the petitioner to challenge the order dated 05.05.2012 passed by the Principal Secretary to the Government of Odisha, Home Department. It has been held that the respondent No.1 by the said order dated 04.04.2014 has right to withhold the pension. Further it has been observed as follows: 2 “Had it been so, the power of the Government would have been limited to withhold or with draw the pension. In the instant case, the disciplinary proceeding was initiated by the Government itself, much prior to the retirement of the applicant. Rule 7 (2) (a) of the OCS Pension Rules, 1992 lays down that a DP if instituted while the Government Servant was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service. Since the proceedings were initiated and concluded by the Government, it is not open to the applicant to contend that the respondent No.1 had no jurisdiction to treat the period of suspension as such.” 2. According to the petitioner, he had entered in the Odisha Police as Sub Inspector in the year 1971. During the course of his service, the petitioner was promoted as Inspector of Police on 21.09.1988, Deputy Superintendent of Police on 28.12.1998 and to the rank of Additional Superintendent of Police on 18.11.2002. During these years, it has been contended by the petitioner that he had flaw-less career and he was awarded outstanding remarks all through. For his outstanding service record, the petitioner’s name was recommended for the President’s Police Medal, 2003. While the petitioner was promoted to the post of Addl. Superintendent of Police, 47 officers, who were senior to him, were superseded on consideration of his outstanding performance. 3 3. In Para-6 of the writ petition, the petitioner has averred that before his promotion to the rank of Additional Superintendent of Police in November, 2002 the State Vigilance Department had given him clearance certificate to the effect that no case or inquiry was pending against him. The petitioner has further contended that one of the officers who was superseded was instrumental to initiate an inquiry against him. The petitioner’s residence was raided on 09.05.2003. After the said raid, the Vigilance Department submitted their report to the Home Department, recommending institution of Departmental Proceeding against the petitioner. 4. According to the petitioner, the said action was entirely malafide. However, placing reliance on the report dated 05.06.2003 of the Vigilance Department, the petitioner was placed under suspension by Notification No. 28473 dtd. 20.6.2003 with immediate effect pending the departmental enquiry under Rule 12 (1) of the Orissa Civil Services (Classification, Control & Appeal) Rules, 1962. In the suspension order, it was reflected that the disciplinary proceeding to be initiated against the petitioner was on the basis of the allegation of violating Rule 21 and Rule 24 (2) of the Odisha Government Servant’s Conduct Rules, 1959. The order of suspension dt.20.6.2003 is available at Annexure -2 to the writ petition. By the memorandum dated 4 11.02.2004 (Annexure-3 to the writ petition) articles of charges, the statements of imputations of alleged misconduct, the list of documents and the list of witnesses were communicated to the petitioner. Immediately after receipt of the said memorandum dated 11.02.2004, the petitioner had submitted his written statement of defence by denying the charges. But the disciplinary authority was not satisfied with the said reply and thus, by the letter dated 22.09.2004, the D.I.G. of Police, Bhubaneswar Range was appointed as Inquiring Officer and the S.P., Vigilance Cell was appointed as Marshalling Officer to conduct the inquiry against the petitioner on the charges as described in the memorandum dated 11.02.2004. 5. The petitioner has admitted that 40 witnesses were adduced to substantiate the charge against him. Listed documents were admitted in the evidence to establish the allegations and imputations. On completion of inquiry, the Inquiring Officer submitted an exhaustive report on 21.07.2005 exonerating the petitioner from the charges. After analysing the entire evidence, the documents and the records available it was held by the Inquiring Officer that there was no evidence to show that the petitioner had led bigamous life. Further, the alleged two ladies with whom the petitioner was alleged of having bigamous relation were proved to be sister and sister-in-law of the 5
Decision
petitioner. The said inquiry report (Annexure-5 to the writ petition) has clearly held that the allegations as leveled against the petitioner could not be proved. The report quite categorically held that the petitioner was not found to have committed any misconduct as alleged or otherwise. But the disciplinary authority did not take any decision, even though it was within his knowledge that the petitioner would retire from service on 31.01.2007. As no decision was being taken, on 27.06.2006 the petitioner filed the Original Application in the State Administrative Tribunal. It was after a year of forwarding of the inquiry report to the disciplinary authority, the said Original Application, praying for quashing of the proceedings and his reinstatement in service on treating the period of suspension as on duty was filed. 6. The State Administrative Tribunal disposed of the said Original Application being O.A. No.803 of 2006 by its order dated 07.07.2006 (Annexure-6 to the writ petition) directing the disciplinary authority to pass the final order within a period of 2 months from the date of receipt of the said order on intimation to the applicant, if the enquiry report was furnished to the petitioner. If the inquiry report had not been furnished, the respondent was directed to ensure that the inquiry report is furnished within a month from the date of receipt of a copy of that order and in that event, the time-frame would be extended 6 by another one month i.e. the entire process should be completed by the end of September, 2006. It was also observed that the disciplinary authority may also review the necessity of continuance of suspension, pending finalization of the proceeding. 7. According to the petitioner, the disciplinary authority did not comply the order of the State Administrative Tribunal. The disciplinary authority surprisingly had directed the Inquiring Officer for conducting further inquiry by the letter dated 01.11.2006. The said letter dated 01.11.2006 clearly hinted that the Opposite Parties were bent upon to hold the petitioner guilty by any means. It may be noted that the said order of further inquiry as contained in the letter dated 01.11.2006 remained unchallenged. Consequently, the Inquiring Officer, so appointed, conducted further inquiry into the allegations and imputations. At the time of submitting his report dated 19.02.2007 (Annexure 8 to the writ petition) the Inquiring Officer has categorically held that inference cannot be drawn on surmises and suspicion and there is no legal evidence to substantiate the charge leveled against the charged officer. The disciplinary authority had been in the process of passing the appropriate order, but the petitioner (the charged officer) had superannuated from the service on 31.01.2007. 7 8. The disciplinary authority again directed to conduct a third enquiry by their letter dated 05.09.2007. The third inquiry was also conducted and the report was submitted. By the said report dated 19.07.2008 (Annexure-9 to the writ petition), the petitioner was exonerated from the charges. As all the inquiries had established that there was no material to hold that the petitioner had committed any misconduct in the manner as stated in the memorandum of charge, it was expected that the petitioner would be discharged from the allegation. In spite of this, the disciplinary authority held that the charge against the petitioner of violating Rule 24 (2) of the Odisha Government Servants Conduct Rules, 1959 has been proved. By the letter dated 06.02.2009 (Annexure-10 to the writ petition), the petitioner was called upon to make a representation, if any, against the findings of the disciplinary authority which stood contrary to the findings of the Inquiring Authority within a period of two weeks from the date of receipt, failing which it would be presumed that the petitioner had nothing to say on the matter. 9. The petitioner had filed his representation on 21.02.2009 denying all the allegations. However, the State Government has rejected the representation of the petitioner, even though there was no material against him. Finally, a show cause notice was issued on 18.03.2009 8 declaring the petitioner guilty of the alleged charge. The petitioner was asked to show cause as to why the proposed punishment of withholding of pension and gratuity in full shall not be imposed and why the period of suspension should not be treated as not spent on duty. 10. On receipt of the said show cause notice dated 18.03.2009, the petitioner had asked for supplying the copies of the documents for preparing the final reply. But such request was not acceded to. On 09.06.2009 (Annexure-13 to the writ petition), the petitioner had communicated his inability to file the reply in as much as the documents as used against him were not supplied for purpose of making a comprehensive reply to the show cause dated 18.03.2009 (Annexure-12 to the writ petition). 11. The disciplinary authority before passing the final order sought advice from the vigilance for finalization of the proceeding. It has been stoutly contended for the petitioner that after conclusion of the disciplinary proceeding, the Vigilance Department cannot play any role. Their advice at that stage would only vitiate the process. 12. The petitioner has categorically stated that despite the specific direction from the State Administrative Tribunal to wind up the departmental proceeding initiated against the petitioner, the disciplinary authority continued further inquiries and thereafter, sought advice of the 9 Vigilance Department most illegally. On the face of such non- compliance, the petitioner had initiated a contempt proceeding against the responsible persons. Having considered that the contempt proceeding will not be able to bring substantive justice, the petitioner had filed another Original Application before the State Administrative Tribunal being O.A. No.778 of 2011. The State Administrative Tribunal, having granted 3 months more time, disposed of the Original Application No.778 of 2011. While disposing the Original Application No.778 of 2011 by the order dated 20.04.2012, the State Administrative Tribunal held that in case, the departmental proceeding is not disposed of against the petitioner within three months from the date of communication of the order, the proceeding would stand quashed without any further reference and accordingly, the applicant (the petitioner herein) would be entitled to get all service, monetary and retirement benefits. The said order dated 20.04.2012 of the State Administrative Tribunal is available at Annexure-15 to the writ petition. 13. Situated thus, the disciplinary authority passed the order dated 05.05.2012 by imposing the major penalty of withholding pension and gratuity in full and in perpetuity. Both the orders – the order dated 20.04.2012 (Annexure-15 to the writ petition) and the order dated 05.05.2012 (Annexure-16 to the writ petition) were challenged in the 10 Original Application No.514 of 2012. In the course of time, the said Original Application being 514 of 2012 was dismissed. It has been observed by the State Administrative Tribunal that the petitioner is not entitled to get any relief. 14. The petitioner had challenged the final order imposing penalty on the ground that the disciplinary authority had acted, by reversing the finding of the Inquiring Authority, arbitrarily and arrived at the inference without any materials thereof. The entire disciplinary proceeding was malafide for taking revenge as he had previously been given promotion for his outstanding performance. There is no charge of monetary loss to the Government. The only charge is of bigamy and that too in the absence of supporting materials. As such, the order dated 04.04.2014 (Annexure-1 to the writ petition) is unsustainable. The two women whose names have been associated to prove the bigamous life of the petitioner were not examined. There had been no complaint against the petitioner from any quarters of the society in this regard. 15. According to the petitioner, in view of the guidelines as provided by the memorandum No.1150 (68) A dated 23.01.1954, which has been mentioned in the P & S Deptt. Memo No.2170 (72) Gen. dt.20.02.1954, further inquiry was not called for in the circumstances. 11 For purpose of reference, the relevant part of the said notification dated 20.02.1954 is extracted hereunder: “(3) After the enquiry (third stage) has been completed and the Enquiring Officer has submitted his report to the competent officer as in item (2) above, the letter should not at this stage permit a search for fresh evidence or take into account such evidence against the accused. If fresh evidence comes to light and it is considered serious enough to be a subject of a formal proceeding, the proper course would be, to frame fresh charges in respect of that evidence in the usual way” 16. According to the petitioner, the impugned order dated 04.04.2014 (Annexure-1 to the writ petition) is erroneous, unsustainable and grossly arbitrary. By the order dated 05.05.2012, the disciplinary authority (the Principal Secretary to the Government of Odisha, Home Department) has observed that the petitioner, instead of submitting the written statement of defence, either admitting the charge or denying the same, challenged the charge as false and motivated, and requested the disciplinary authority to drop the proceeding. 17. After careful consideration of his representation, the Government was of the opinion that that there were reasons for inquiry into the article of charge. Admittedly, the petitioner had appointed his assistant to project his case in the enquiry proceeding. It has been also stated in the said order dated 05.05.2012 that reasons for disagreement were duly communicated to the charged officer by the Home 12 Department letter No.6160 dated 06.02.2009. The quantum of the proposed penalty had been communicated through the second show cause notice. Therefore, all the legal requirements were fully met. The petitioner had been deemed to have been continuing in service in terms of Rule 7 (2) (a) of the Orissa Civil Services (Pension) Rules, 1992. The disciplinary authority imposed two penalties under Rule 7 of the O.C.S. (Pension) Rules, 1992, those are: 1. withholding of pension and gratuity in full and 2. the period of suspension be treated as not spent on duty, meaning that for the said period of suspension, the petitioner will not get pay and allowances except the subsistence allowance. 18. The grounds of the challenge as raised before the State Administrative Tribunal were all rejected by the impugned order dated 04.04.2014 delivered in O.A. No.514 of 2012. 19. Mr. K.B. Panda, learned counsel has submitted that this is a case where the disciplinary authority has passed the order of penalty without any evidence. The State Administrative Tribunal has failed to appreciate that aspect of the matter. There is no definition in the Orissa Civil Services (Classification, Control & Appeal) Rules, 1962 or in the Orissa Civil Services Pension Rules, 1992 explaining what bigamy is. In 13 this case as pointed by Mr. Panda, learned counsel that the two women named as wives of the petitioner have been kept out of the proceeding. It is also an admitted fact that there had been no complaint from any quarters as regards the petitioner’s conduct. Therefore, the imputation of bigamy should have been nixed at the threshold. Consequently, three different inquiry officers held that there is no material against the petitioner to substantiate the charge of misconduct as leveled. Moreover, as per the Home Department Guidelines, as reflected in the memorandum dated 23.01.1954, this is not a case where the re-inquiry would have been directed. Admittedly, if fresh evidence comes to light and it is considered serious enough to be the subject of a formal proceeding, the proper course would be to frame fresh charges having regard to the said evidence. But, no fresh evidence, in the case in hand, had been discovered or placed before the disciplinary authority. 20. In this regard, Mr. Panda, learned counsel has submitted that Section 198 of the Cr.P.C. clearly prohibits the court to take cognizance of an offence of bigamy under Section 494 of the IPC, except upon a complaint by some person aggrieved by the offence. It is therefore clear that the purport of Section 198 of the Cr.P.C. is to prohibit others except the aggrieved persons from prosecuting. Mr. Panda, learned counsel has further contended that merely on the basis of 14 surmise, no inference can be drawn following the standard of the preponderance of probability. He has reiterated that the petitioner had completed 32 years of service maintaining his outstanding performance but on a flimsy allegation, not supported by any evidence, the benefits what the petitioner could have earned at the end of service, have been taken away. 21. From the other side, Ms. S. Patnaik, learned Addl. Government Advocate appearing for the Opposite Parties, in order to repel the contentions of the petitioner, has stated that, the disciplinary authority has given sufficient reasons in its order to hold that the inquiry report suffers from serious infirmity. The defects have been catalogued in the order dated 06.02.2009. 22. Ms. S. Patnaik, learned Addl. Government Advocate has highlighted some of the reasons therefrom. [1] on the basis of the documentary evidence at Sl. No.12 & 19, she submitted that the inquiry officer could have insisted on production of the photos and could have asked the charged officer to identify himself and others in the first photo considering that marshalling officer did not do it in order to elicit truth. But the inquiry officer chose not to do it, instead he tried to blame the marshalling officer. Observing that not a 15 single photograph of the charged officer with any lady has been exhibited in the proceeding. [2] The inquiry officer erred as he failed to rely on the documentary evidence, which could have been put to the seizure witnesses who are all Government servants having capacity to read and write. Further, it has been mentioned that all the necessary formalities had been observed before and after the search. [3] The charged officer had sufficient opportunity before institution of the vigilance case and during the disciplinary proceeding which set out the due process, to place his objection, had he really been aggrieved by the incorrect recording of the documents. The inquiry officer has failed to appreciate that aspect of the matter. [4] By the LIC policy document (Ext.9), the petitioner was sought to be shown as the husband of Srimati Usharani Satpathy, but the said document was not considered as the proof of marriage between the petitioner and Srimati Usharani Satpathy. Ext.3 (1)-affidavit ought not to have been brushed aside by the inquiry officer considering that it was a contemporaneous document. That apart, the family photos 16 sized during the search, school admission register, High School Certificates of Preeti and Swati and the voter list indicates that Nilamani Tripathy is the husband of the Sandhyarani Rajguru and father of those girls. 23. On the basis of those observations, the petitioner was asked to file the representation and accordingly the petitioner has filed a comprehensive representation, completely denying those facts which were relied on for the note of difference. From the representation dated 21.02.2009 (Annexure-11 to the writ petition), it will be apparent that the petitioner has sought to establish why the so called points of difference cannot be taken as the grounds for reversing the finding of the consecutive three inquiry reports. The petitioner has given the reasons why the said proceeding should be treated as malafide. 24. It has been stated that inclusion of someone’s name in the LIC cannot be treated as the evidence of bigamy. In this background, the petitioner has quite distinctly submitted that Usharani Satapathy was not married at the time of issue of the policy. The entry of Usharani Satapathy as the wife of the petitioner is grossly wrong and without any substantive evidence whatsoever. The petitioner has also asserted that the inquiry officer had collected sufficient evidence and he has reflected in his report that Sandhyarani Rajguru is the cousin sister and Usharani 17 Satapathy is the sister-in-law of the charged officer. From the statement of Kailash Chandra Rajaguru, the elder brother of Sandhyarani Rajguru, the said observation has got further nourishment. 25. Ms. S. Patnaik, learned Addl. Government Advocate, having referred to the impugned Judgment and Order has contended that the State Administrative Tribunal has analysed all the objection and has observed that there had been nothing on record to suggest that the disciplinary authority (the respondent No.1) in O.A. No.514 of 2012 was in any way influenced by any extraneous opinion. No such opinion has been referred to, in order to show its impact. Thus, it has been firmly held that no prejudice has been caused to the petitioner by seeking the opinion of Additional DG of Police (Vigilance). It has been also held that no illegality in respect of jurisdiction has been committed by continuing the proceeding even after the date of superannuation of the petitioner. In this regard Rule 7 (2) (a) of the Orissa Civil Services Pension Rules, 1992 has been referred to by the State Administrative Tribunal. The said Rule prescribes that a departmental proceeding, if instituted while the Government Servant was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the Government Servant, be deemed to be a proceeding under the said rule and shall be continued and concluded by the 18 authority, by which said proceeding was set out, in the same manner as if the Government servant had continued in service. Since, the proceedings were initiated and concluded by the Government, it is not open to the petitioner to contend that the respondent No.1 had no authority to pass the final order after the petitioner’s superannuation. 26. Ms. S. Patnaik, learned Addl. Government Advocate has stated that one of the observations made by the State Administrative Tribunal should be taken into consideration by this Court before treating this case as a case of no evidence. For purpose of reference, the passage as has been referred by Ms. S. Patnaik, learned Addl. Government Advocate is reproduced hereunder: “The word ‘evidence’ means both oral and documentary evidence. The disciplinary authority mostly relied on documentary evidence for differing from the findings of the Inquiring Officer and I hold that this is not a case of no evidence. Law is well settled that in a departmental proceeding conclusion is to be reached on the basis of preponderance of probabilities and the charge need not be established beyond all reasonable. doubts as is required in a criminal case.” 27. In order to appreciate the rival contentions as raised by the counsel for the parties, we think it would be apposite, even at the cost of the repetition, that the foundation, based on which the disciplinary authority has recorded difference of opinion with the findings of the inquiry officer by his report dated 21.07.2005 (Annexure-5 to the writ 19 petition) is required to be critically analysed. From the records it has transpired that the first inquiry report was submitted on 14.07.2005 [see the order dated 07.07.2006 passed in O.A. No.803 of 2006]. 28. Thereafter, admittedly, by the report dated 19.02.2007 (Annexure-8 to the writ petition), the inquiry officer has observed as follows: “None of the witnesses examined in this proceeding deposed anything against the officer relating to bigamous marriage or extra-marital sexual relation or conduct of unbecoming of Government servant against the charged officer. In view of the all the above facts, the inference can be drawn only on facts but not on surmisation or suspicion. So, there is no evidence to substantiate the charge leveled against the charged officer.” 29. The said report was prepared by the Deputy Inspector General of Police, Central Range, Cuttack on the basis of the reference that was made to him for further inquiry by the communication dated 01.11.2006. Outcome of the said inquiry has been catalogued in the said report dated 19.02.2007. The inquiry revealed further: “1. There is no complaint either from the relevant parties, ladies or her relatives or even by the wife of the charged officer. 2. There is no complaint from any public relating to any bigamous or extramarital activities of the charged officer. 3. None of the witnesses cited in the proceeding has proved the charge. 4. The official witnesses were tentative, uncertain and also did not prove the fact. 20 5. Seizure witnesses proved that they were not allowed to remain present at spot during search and denied to have any knowledge of details of seizure. 6. The I.O. clearly stated that no documents were seized to prove bigamous marriage.” 30. It has been specifically observed by the inquiry officer that the women whose name have been referred are the close relatives of the charged officer. 31. According to the Service Conduct Rules, no Government servant, having a spouse living shall enter into, or contract a marriage with any person, provided that the Government may permit a Government servant to enter into or contract any such marriage as is referred to in clause (1) or clause (2), if they are satisfied that- (a) such marriage is permissible under the personal law applicable to such Government servant and the other party to the marriage; and (b) there are other grounds for so doing so. The sine qua non of the proof of contracting marriage is the performance of marriage. The State Administrative Tribunal has observed that the documents as mentioned by the disciplinary authority sufficiently proves the marriage. But it is an admitted position that there is no document placed in the inquiry proceeding which can be treated as proof of marriage during subsistence of valid marriage. In Para-3 of the differing note dated 06.02.2009 [as reproduced before] the reasons which are set out are not sustainable. A 21 marriage cannot be proved by a group photograph. That apart, none of the witnesses have stated that they were witness to the performance of any marriage between the petitioner and any of those two women. There is a marked distinction between the birth of children and the marriage. For birth of child, performance of marriage cannot be inferred. Marriage falls within a distinct category for which the facts of performance are to be essentially proved. 32. Besides Rule 24 (2) of the Conduct Rules, we can also take aid from the provision of Section 494 of the Indian Penal Code. That provision clearly reflects on definition of bigamy without using the word bigamy as such. It has been provided by the said Section that whoever, having a husband or wife living, marries, in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. The exception has been provided below and there are several situations in which a person can have the protection from any prosecution. 33. In this case what we have observed is that there is no proof of the first marriage as well as there is no proof of contracting the second marriage by the petitioner. Some documents not relating to the 22 marriage at all, have been sought to be placed as the proof of marriage. One document namely LIC insurance policy has been produced to prove one of the women as the wife of the petitioner. Some school certificates have been proved for this purpose. We are constrained to observe that for purpose of Rule 24 of the Conduct Rule as referred above, these documents cannot be treated as the documentary evidence for purpose of proving the marriage. We are concerned with the fact of contracting the second marriage during subsistence of the first marriage. There is no documentary evidence nor any oral evidence. Further, we have noticed that the disciplinary authority and the State Administrative Tribunal have observed that the petitioner had onus to prove that he was not the father of the children. This proposition can be accepted as much as those documents cannot be treated as primary evidence. In a case of disciplinary proceeding, the fundamental burden always lies with the person who makes the allegation to prove the allegation. Only when the person who has been alleged of doing a misconduct or any act has contended differently and the person who alleged had discharged his or her burden, then the onus would shift to the person who has been alleged of doing some misconduct, to prove his contention, otherwise not. 23 34. Therefore, the first scrutiny of the evidence would be confined to the evidence that has been led by the disciplinary authority. If that evidence is not sufficient to prove the charge, then the charged officer shall be exonerated from the charge. Three consecutive inquiry reports and also the note of the Deputy Inspector General of Police, Central Range, Cuttack (Annexure-8 to the writ petition) have unequivocally stated that “there is no evidence to substantiate the charge leveled against the charged officer.” 35. The reasons as provided by the disciplinary authority in the order dated 06.02.2009 (Annexure-10 to the writ petition) are flimsy and the order does not refer to any documentary evidence which can be accepted as proof of contracting the second valid marriage during subsistence of the first valid marriage. For purpose of proving the misconduct of contracting the second marriage, the essential evidence which are to be led are the proof of the first marriage and then the proof of the second marriage. Proving the performance of marriage means how the marriage was solemnized or contracted. No secondary evidence can be relied upon for this purpose. One of the unique features which we have noticed in this case is that there is no complaint against the petitioner for leading a bigamous life. It all started with a search on a 24 different allegation and thereafter, the disciplinary authority as it surfaced had tried to dig out a case of bigamous life of the petitioner. 36. We are constrained to observe that even applying the standard of preponderance of the probabilities, there is no case against the petitioner. Three inquiry officers have returned their identical observations that there is no material to prove the charge against the petitioner. Despite that the disciplinary authority recorded difference of opinion and finally, passed the final order recording the penalty, as noted above. 37. Hence, we are of the considered opinion that the petitioner has made out a case to interfere with the impugned Judgment dated 04.04.2014 as delivered in O.A. No.514 of 2012 by the State Administrative Tribunal, Bhubaneswar. In addition, we find that the order dated 05.05.2012 as passed by the Principal Secretary to the Government of Odisha, Home Department is also unsustainable for the same reason and accordingly, the said order is quashed. The said order dated 05.05.2012 is based on the note of difference as reflected in the communication dated 06.02.2009 issued by the Under Secretary to the, Government of Odisha, Home Department, Bhubaneswar. According to us, those reasons are so flimsy that on the basis of such reasons, the opinion of the inquiry officer ought not to have been reversed. 25 Accordingly, the said opinion, contained in the communication dated 06.02.2009, is set aside. 38. We, therefore, hold that the findings of the State Administrative Tribunal is not sustainable. Since, it is clearly a case of no evidence, this court can exercise its power of judicial review. For this reason, we may refer to the decision of the apex court in B.C. Chaturvedi vs Union of India And Others: (1995) 6 SCC 749 where the apex court held that where the conclusion or the finding reached by the disciplinary authority is based on no evidence and if the conclusion or finding is such, as no reasonable person would have ever reached, the Court/Tribunal may interfere with such conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case. 39. It has been also held that in exercise of power of judicial review, the High Court cannot assess the adequacy of the evidence. But if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is found perverse or suffering from patent error on the face of the record or is based on no evidence at all, a writ of certiorari could be issued. 40. In High Court of judicature at Bombay represented through its Registrar Vs. Sashikant S. Patil and Another: (2000) 1 SCC 416, the apex court has clearly laid down the law as follows: 26 “The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution.” 41. In State Bank of Bikaner and Jaipur Vs. Nemi Chand Nalwaya: (2011) 4 SCC 584 the apex court has observed as follows: “ It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (vide B. C. Chaturvedi vs. Union of India - 1995 (6) SCC 749, Union of India vs. G. Gunayuthan - 1997 (7) SCC 463, and Bank of India vs. Degala Suryanarayana - 1999 (5) SCC 762, High Court of Judicature at Bombay vs. Shahsi Kant S Patil - 2001 (1) SCC 416).” [Emphasis added] 42. Having regard to the legal position as discussed, we have seen that the order of the disciplinary authority is arbitrary, capricious and based on no evidence. In this juncture, we should observe that the 27 reference made to the Director, Vigilance after the the conclusion of the disciplinary proceeding is wholly unwarranted and without sanction of law. This also indicates to searching for some opinion based on which an order of penalty can be passed in order to harass the petitioner. 43. We have already noted that there is no legal evidence on which the finding can be based. This is not a question of reliability or nature of evidence, but of relevance of evidence. We have not appreciated the adequacy of the evidence in as much as legal evidence contracting the second marriage demands the proof of the valid marriage [proof the first valid marriage] and the proof of contracting the subsequent marriage during subsistence of the first valid marriage. The proof of the second marriage, as we have already noted, is not available on the record. 44. According to us, the order of the disciplinary authority is perverse and suffers from patent error on the face of the record and differing note is based on no evidence. 45. The cumulative effect of these observations is that the order dated 05.05.2012 cannot be sustained and accordingly, the said order is set aside for all purposes. 46. In view of the above observation, we direct the State Opposite Parties to release the pension and gratuity in full to the 28 petitioner within a period of 3 (three) months from the date of receipt of the certified copy from the petitioner. 47. We direct that the period of suspension shall be treated as the period spent on duty and consequently the full pay and allowances of the petitioner for that period be released to him, after adjusting the subsistence allowance within the said period as stipulated above. 48. It is made absolutely clear that if the payment is not made within the stipulated period, the petitioner shall be entitled to interest at the rate of 7% per annum from 05.05.2012. We also direct that if any other benefits such as release of increment etc. is due to the petitioner, that shall be released and paid within the said stipulated period. 49. In the result, this writ petition stands allowed. …………………………. (S. Talapatra, J) [ . Savitri Ratho, J. I agree. Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Aug-2023 14:11:31 Orissa High Court, Cuttack. The 5th of July, 2023/ R.R. Nayak, Jr. Steno. …………………………. (Savitri Ratho, J)