The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.6863 of 2024 Sudipta Kumar Dash …. Mr. S. Routray, Advocate Petitioner -versus- State of Odisha and others …. Opp. Parties Mr. Debasish Nayak, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA Order No. ORDER 27.03.2024 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2.
Legal Reasoning
Heard learned counsel appearing for the Petitioner as well as learned Additional Government Advocate appearing for the State- Opposite Parties. Perused the writ petition as well as the documents annexed thereto. 3. The present writ petition has been filed by the Petitioner with the following prayers:- “It is, therefore, most humbly prayed that this Admit the writ application. Hon’ble Court be graciously pleased to: i) ii) Call for the record. iii) Issue rule nisi calling upon the Opp. Parties more particularly opposite party No.2 to show cause as to why the office order No.2762 dtd. 12.03.2024 under Annexure-8 as well as the // 2 // initiation of the disciplinary proceeding vide Annexuure-4 shall not be quashed. iv) v) If the Opp. Parties more particularly Opp. Party No.2 fails to show cause or show insufficient cause issue a writ in the nature of certiorari or order/orders, writ/writs, any direction/directions by quashing the office order No.2762 dtd. 12.03.2024 under Annexure-8 as the disciplinary initiation of well as proceeding vide Annexure-4. other the Issue a writ in the nature of mandamus or any other writ/writs, direction/directions directing the Opp. Parties more particularly Opp. Party No.2 to reinstate the present petitioner to the post in which he was continuing i.e. Assistant Sub-Inspector of Excise along with all consequential service benefit within a time period to be stipulated by this Hon’ble Court. vi) And/or pass direction/directions as deems fit and proper for the ends of justice.” other order/orders, this Hon’ble Court any 4. Learned counsel for the Petitioner, at the outset, submitted that the Petitioner has been serving as an Assistant Sub-Inspector of Excise. While working as such, a disciplinary proceeding was initiated against the present Petitioner for carrying out illegal trade of I.D. liquor. He further contended that an Enquiry Officer was appointed by the Disciplinary Authority. Such Enquiry Officer has submitted his report dated 01.03.2023 before the Commissioner of Excise. Further, drawing attention of this Court to the Enquiry
Decision
Report under Annexure-7 to the writ petition, learned counsel for the Petitioner submitted that the Enquiry Officer has come to a conclusion that the charges leveled against the Petitioner could not be proved as the facts stated in the records are not supporting the charges leveled against the Petitioner. Accordingly, it was // 3 // recommended that the matter be finalized on the merit of the facts stated above. 5. Learned counsel for the Petitioner further contended that since the report submitted by the Enquiry Officer was not accepted by the Disciplinary Authority, i.e. Commissioner of Excise, Odisha, the Petitioner was issued with the second show cause notice vide order dated 12.03.2024 under Annexure-8 to the writ petition under Rule-15(10)(i)(b) of the O.C.S. (CC&A) Rules, 1962. 6. Learned counsel for the Petitioner assailed the aforesaid show cause notice on the ground that the same is not in terms of the O.C.S. (CC&A) Rules, 1962. While elaborating the argument, learned counsel for the Petitioner referring to the provisions contain in Rule-15(10)(i)(b) of the O.C.S. (CC&A) Rules, 1962, submitted that the Opposite Party-Disciplinary Authority is duty bound to give the reasons as to why he is differing with the findings of the Enquiry officer. He further submitted that the second show cause notice must contain the grounds on which the Disciplinary Authority is differing with the finding of the Enquiry Officer. However, on perusal of the show cause notice under Annexure-8, it appears that the Disciplinary Authority has taken a general ground that the standard of proof in a disciplinary proceeding is preponderance of probabilities. Therefore, on the basis of the materials available on record, it is found that no specific ground has been given as to what are the materials against the Petitioner on the basis of which an inference can be drawn that the Petitioner is guilty of the charges leveled against him. In such // 4 // view of the matter, learned counsel for the Petitioner submitted that the second show cause notice issued to the Petitioner be quashed. 7. Learned Additional Government Advocate appearing for the State-Opposite Parties, on the other hand, contended that the provisions contained in O.C.S. (CC&A) Rules, 1962 are very clear. He further contended that the Disciplinary Authority has every right to defer with the finding of the Enquiry Officer. It was also contended that since the Disciplinary Authority found that there are materials on the basis on which it can be concluded that the Petitioner is guilty of the charges, he has been issued a second show cause notice as provided in the O.C.S (CC&A) Rules, 1962. In such view of the matter, learned Additional Government Advocate submitted that the Opposite Party No.2, i.e. the Disciplinary Authority has not committed any illegality in issuing the second show cause notice under Annexure-8 to the writ petition. In such view of the matter, it was contended that the writ petition is devoid of merit and, accordingly, the same should be dismissed. 8. Having heard the learned counsels appearing for the respective parties and on a careful examination of the background facts as well as the materials on record, this Court observes that the Petitioner faced a disciplinary proceeding while he was working as Assistant Sub-Inspector of Excise. No doubt, the allegations made against the Petitioner are very serious in nature. This Court further observes that Enquiry Officer submitted his enquiry report by exonerating the Petitioner from all charges on the ground that the // 5 // charges against the Petitioner could not be proved as the facts stated in records are not supporting the charges leveled against the Petitioner. However, it was also observed that the disciplinary authority vide his order dated 12.03.2024 under Annexure-8 decided to issue a second show cause notice proposing a punishment of dismissal from Government service. The punishment of dismissal from service is no doubt a major punishment. Therefore, the Opposite Party No.2 is bound to follow the provisions of the O.C.S. (CC&A) Rules, 1962 scrupulously. Any deviation in following the procedure would render the entire proceeding is void. 9. On a careful reading of Rule-15(10)(i)(b) of the O.C.S. (CC&A) Rules, 1962, this Court observes that the same provides as follows:- “On receipt of the representation referred to in Sub-clause (a) the disciplinary authority having regard to the findings on the charges, is of the opinion that any of the penalties specified in Clauses (vi) to (ix) of Rule 13 should be imposed, he shall furnish to the delinquent Government servant a statement of its findings along with brief reasons for disagreement, if any, with the findings of the inquiring officer and give him a notice by Registered post or otherwise stating the penalty proposed to be imposed on him and calling upon him to submit within a specified time such representation as he may wish to make against the proposed penalty : Provided that in every case in which it is necessary to consult the Commission under the provision of the Constitution of India and the Odisha Public Service Commission (Limitation of Functions) Regulation, 1989 the record of Inquiry together with a copy of the notice given under Sub-clause (a) and the representation if any, received within the specified // 6 // time in response to such notice shall be forwarded by the disciplinary authority to the Commission for its advice.” 10. On a careful reading of the aforesaid provisions in Rule-15(10)(i)(b) of the O.C.S. (CC&A) Rules, 1962, it appears that the if Disciplinary Authority, having due regard to the findings on the charges by the Enquiry Officer, is of the view that the penalties specified under Clauses (vi) to (ix) of Rule-13 is required to be imposed, he shall furnish the delinquent Government servant a statement of its findings along with brief reasons for disagreement, if any, with the findings of the inquiring officer and give him a notice by Registered post or otherwise stating the penalty proposed to be imposed on him and calling upon him to submit within a specified time such representation as he may wish to make against the proposed penalty. Therefore, the aforesaid rule clearly provides that the Disciplinary Authority is under a legal obligation to furnish to the delinquent Government servant a statement of his finding along with brief reasons for disagreement. On a careful reading of the notice under Annexure-8 to the writ petition, this Court is of the considered view that the same does not satisfy the requirement of Rule-15(10)(i)(b) of the O.C.S. (CC&A) Rules, 1962. 11. In such view of the matter, this Court has no hesitation in setting aside the notice dated 12.03.2024 under Annexure-8 to the writ petition and, accordingly, the same is hereby set aside. Further, the matter is remanded back to the Opposite Party No.2 to consider the matter afresh and in the event the Opposite Party No.2, i.e. Disciplinary Authority is convinced that there are // 7 // materials against the Petitioner and the matter is required to be taken to a logical conclusion, then the Opposite Party No.2 shall do well to follow the provisions contained in Rule-15(10)(i)(b) of the O.C.S. (CC&A) Rules, 1962 and, accordingly, he shall issue a second show cause notice by complying with the aforesaid provisions contained in the O.C.S. (CC&A) Rules, 1962. 12. With the aforesaid observation and direction, the writ petition is disposed of. Debasis ( A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Reason: Authentication Location: OHC, CUTTACK. Date: 29-Mar-2024 19:18:24