The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Sep-2024 13:51:12 IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.11429 of 2024 An application under Articles 226 and 227 of the Constitution of India. ----------------------- Union of India and others ……… Petitioners -Versus- Anusuya Dash and Another ……… Opp. Parties For Petitioners: - Mr. Biswajit Maharana Central Govt. Counsel For Opp. Parties Nos.1 & 2: - None ----------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO AND THE HONOURABLE MR. JUSTICE CHITTARANJAN DASH ………………………………………………………………………………………………………… Date of Argument: 02.09.2024 Date of Judgment: 10.09.2024 ………………………………………………………………………………………………………… S.K. SAHOO, J. The present writ petition has been filed by the petitioners with a prayer to quash the impugned order dated 01.05.2023 passed in O.A. No.222 of 2020 by the learned Central Administrative Tribunal, Cuttack Bench, Cuttack (for Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Sep-2024 13:51:12 short, “Tribunal”) under Annexure-1 in which the O.A. filed by applicant Ramakanta Mishra for quashing the order of punishment dated 24.10.2019 imposed by the Disciplinary Authority so also the order passed by the Appellate Authority dated 09.04.2020 was allowed. Factual Matrix of the Case: 2. The case of the petitioners, in short, is that the late husband of the opp. party no.1, namely, Ramakanta Mishra (hereinafter ‘the applicant’) filed the aforesaid O.A. before the learned Tribunal to quash the orders under Annexure-A/1 dated 20.02.2019, Annexure-A/9 dated 24.10.2019 and Annexure- A/12 dated 09.04.2020 with a further direction to the respondents (present petitioners) to refund the amount illegally recovered from his salary with 12% interest. The applicant while working as Superintendent of Post Offices, Rayagada Division, was served with a minor penalty charge sheet, proposing action under Rule 16 of Central Civil Services (Classification, Control & Appeal) Rules, 1965 (hereafter, ‘1965 Rules’), vide memo dated
Legal Reasoning
20.02.2019 on the allegation that he allowed one Sri Aditya Kumar Majhi, Sub Postmaster, Joypatna SO, to work as Sub Postmaster, Bhawanipatna Stadium SO on deputation without TA/TP from 18.08.2013 to 16.07.2015 vide SPO’s Kalahandi Page 2 of 18 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Sep-2024 13:51:12 Division Memo No.B-629 dated 12.08.2015 in violation of the instruction contained in para-4(v)(ii) of Directorates Memo No. 141-141/2013-SPM-11 dated 31.01.2014 and not allowing the official transferred to the said office to be relieved from Division office for which Sri Majhi got ample scope to commit fraud to the extent of Rs.25,59,500/-. On receipt of the memorandum of charges, the applicant submitted his defence representation stating that the delinquent official worked on deputation in the previous tenure and not regularly posted for which the charge of over tenure is not correct. Further regarding the second charge, he submitted that due to urgent administrative exigencies, the transferred official could not be relieved from Divisional Office. Along with this, he also submitted regarding non-supply of documents by RO Berhampur and other ruling position regarding technicality of the memorandum of charges. After receipt of the said defence representation, the Disciplinary Authority imposed punishment of recovery of a sum of Rs.2,00,000/-(rupees two lakhs) vide memo dated 24.10.2019. Page 3 of 18 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Sep-2024 13:51:12 Being aggrieved with such order of the Disciplinary Authority, the late applicant preferred an appeal to the D.G. Posts. During pendency of the said appeal, the applicant filed O.A. No.821 of 2019 to dispose of the said appeal. The said appeal was considered and rejected vide memo No.32-24/2019- Vig dated 09.04.2020. Being aggrieved, the applicant filed O.A. No.222/2020 impugning the penalty imposed upon him. The petitioners filed their counter affidavit in the O.A. wherein it is stated that claim of the opposite parties is not justified and tenable and therefore, the O.A. should be dismissed. After hearing the arguments from both the sides, the learned Tribunal vide order dated 01.05.2023 held as follows:- “..... Since the basic question arises before the authorities as to whether the posting of Sri Majhi was in violation of the instruction contained in Para-4(v)(ii) of Directorates Memo No.141- 141/2013-SPM-11 dated 31.01.2014, and as to whether the recovery of the loss/fraud committed by another person is in contravention of the DG Post letter no.15-9/74-Inv dated 10.02.1975 with Rule 204 and 204 (A) of P & T Manual Volume-II are the factual in nature and, therefore, by applying the ratio of the decision in the case of O.K. Bhardwaj -Vrs.- U.O.I. & Page 4 of 18 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Sep-2024 13:51:12 Others reported in 2002 SCC (L & S) 188, the respondents department ought to have made an inquiry in the manner which has been followed in case of proceedings initiated under Rule 14. In such peculiar facts and circumstances, the impugned
Decision
order of punishment dated 24.10.2019 imposed by the DA and the order of AA dated 09.04.2020 are hereby quashed. In ordinary circumstances, this matter would have been referred to the authority concerned to cause an inquiry by granting adequate opportunity to the employee concerned, but as the employee concerned is no more, for the ends of justice, the respondents are hereby directed to refund the already recovered amount to the present applicant, namely Anusuya Dash, widow of Ramakanta Mishra, ex-Superintendent of Post Offices, Rayagada Division, within a period of thirty days from the date of receipt of a copy of the order.” Challenging the aforesaid order dated 01.05.2023 of the learned Tribunal, the petitioners have approached this Court by filing this writ petition. Contentions: 3. Mr. Biswajit Maharana, learned Central Government Counsel appearing for the Union of India-petitioners contended that the learned Tribunal without considering the contentions of Page 5 of 18 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Sep-2024 13:51:12 the present petitioners allowed the O.A. basing upon the previous judgments which is completely against the statutory provisions governing the field. Learned counsel further argued that after perusal of documents, the applicant submitted his defence representation dated 22.03.2019 and therefore, he has been provided all related documents and opportunity to defend himself. After going through all connected records, the Chief Postmaster General, Odisha Circle, Bhubaneswar taking a lenient view has ordered for recovery of rupees two lakhs only which is proportionate amount of loss as mentioned in the memorandum of charges and the said order of recovery was decided on the basis of the gravity of offence/negligence committed by the applicant and it was established that he was responsible for such pecuniary/contributory loss and therefore, rejected the appeal of the applicant. Learned counsel argued that the learned Tribunal has interfered in the finding of disciplinary proceedings even if there is no violation in natural justice and the lapses on the part of the applicant has been fully proved basing on documentary evidences after following all due procedure in accordance with rules. The reference judgments of the Hon'ble Supreme Court as indicated by the learned Tribunal in the impugned order dated 01.05.2023 are all implying towards holding of inquiry even in Page 6 of 18 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Sep-2024 13:51:12 the cases of minor penalty but in the instant case, all the related documents were supplied to the applicant for perusal and he has never desired for inquiry as per provisions contained in Rule-16 and therefore, no question of violation of natural justice arises. Learned counsel further argued that the punishment order dated 24.10.2019 has been issued with utmost procedural fairness strictly in accordance with the Departmental rules and guidelines providing the applicant adequate opportunity by supplying him every relevant documents. The learned Tribunal has violated the references made by itself in the said impugned order dated 01.05.2023 as the manner of the proceeding, the procedural justification and compliance of rules of natural justice in the instant case has been overlooked by the learned Tribunal and therefore, the order dated 01.05.2023 should be quashed. Whether the imposition of penalty against the applicant without inquiry is sustainable in the eyes of law?: 4. The imputations against the applicant roves around the allegation that he being the Superintendent of Post Offices, Rayagada allowed Sri Aditya Kumar Majhi to continue as SPM Bhawanipatna Stadium SO beyond his tenure and not allowing the official transferred to the said office to be relieved from Division office for which Sri Majhi got scope to commit fraud to Page 7 of 18 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Sep-2024 13:51:12 the extent of Rs.25,59,500/-. Thus, it is clear that the said pecuniary loss occasioned on account of the act of Sri Majhi and the applicant was not directly involved in the commission of such fraud. However, charges were framed against him on the ground of ‘contributory negligence’ as due to his omission to relieve Sri Majhi as SPM Bhawanipatna Stadium SO, the latter got ample opportunity to commit the fraud. It is further averred that the applicant failed to maintain ‘devotion to duty’ as prescribed under Rule 3(1)(ii) of the Central Civil Services (Conduct) Rules, 1964. Therefore, taking into account such dereliction in duty on the part of the applicant, the Disciplinary Authority resorted to the procedure laid down under Rule 16 of the 1965 Rules and imposed a ‘minor penalty’ for recovery of Rs.2,00,000/-(rupees two lakhs) from the pension of the applicant. While impugning the penalty imposed by the Disciplinary Authority, which was confirmed by the Appellate Authority, it was argued on behalf of the opposite party no.1 that the authority erred in penalizing the applicant without causing an inquiry to be made against him. On the other hand, the petitioners refuted such argument and referred to Rule 16 of the 1965 Rules which does not make it mandatory on the part of the Disciplinary Authority to conduct inquiry before imposing a minor Page 8 of 18 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Sep-2024 13:51:12 penalty, rather it has been made discretionary upon the authority to hold the same if it is of the opinion that such inquiry is necessary. It was the contention of the petitioners that the applicant omitted to claim an inquiry to be caused against him and after such omission during the stage of Rule 16, he cannot be permitted to claim the same while impugning the penalty order. While setting aside the imposition of penalty upon the applicant, the learned Tribunal held that the Disciplinary Authority ought to have conducted an inquiry against the applicant as disputed questions of facts were involved in the case which could only have been resolved through an inquiry. The important question that crops up for consideration is whether inquiry is a mandate under Rule 16 of the 1965 Rules or it is merely a discretion vested in the Disciplinary Authority. To answer this legal quandary, we may profitably refer to the relevant portion of Rule 16 itself, which reads as follows: “16.(1) Subject to the provisions of sub-rule (5) of rule 15, no order imposing on a Government servant any of the penalties specified in clause (i) to (iv) of rule 11 shall be made except after- (a) informing the Government servant in writing of the proposal to take action against him and of the imputations of Page 9 of 18 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Sep-2024 13:51:12 misconduct or misbehaviour on which it is proposed to be taken, and giving him reasonable opportunity of making such representation as he may wish to make against the proposal; (b) holding an inquiry in the manner laid down in sub-rules (3) to (24) of rule 14, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary; (c) taking the representation, if any, submitted by the Government servant under clause (a) and the record of inquiry, if any, held under clause (b) into consideration; (d) consulting the Commission where such consultation is necessary. The Disciplinary Authority shall forward or cause to be forwarded a copy of the advice of the Commission to the Government servant, who shall be required to submit, if he so desires, his written representation or submission on the advice of the Commission, to the Disciplinary Authority within fifteen days; and recording a (e) imputation misbehavior.” or finding on each or misconduct [Emphasis supplied] Page 10 of 18 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Sep-2024 13:51:12 From the plain reading of Rule 16(1)(b), it is clear that holding of an inquiry is subject to the opinion of the authority that such inquiry is necessary for imposing the proposed minor penalty. Needless to mention that the opinion of the authority has to be qualified by the standards of logic, reasonableness and non-arbitrariness. While recording such opinion, the authority is needed to assign reason as to why it came to the conclusion that an inquiry is necessary or why it is superfluous. Whether the pecuniary loss occurred due to any fault on the part of the applicant is a question which can only be answered by examining the factual matrix of the case leading to the imposition of penalty. It was alleged that the applicant, while working as the Superintendent of Post Offices, Kalahandi Division, allowed Sri Aditya Kumar Majhi, Sub Postmaster, Joypatna SO to work as Sub Postmaster, Bhawanipatna Stadium SO on deputation without TA/TP from 18.08.2013 to 16.07.2015, which was in violation of the instruction contained in Para- 4(v)(ii) of Directorates Memo No.141-141/2013-SPM-11 dated 31.01.2014. It was further asserted that the applicant being in the position of a supervisor, faulted in allowing Sri Majhi as the Sub Postmaster, Bhawanipatna Stadium SO on deputation which Page 11 of 18 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Sep-2024 13:51:12 in turn facilitated the latter to commit fraud, resulting in pecuniary loss to the government exchequer. It is no doubt true that unlike Rule 14, the proceeding under Rule 16 does not contemplate mandatory inquiry before imposition of penalty but the discretionary power left with the Disciplinary Authority is not to be construed as discretion based on whims and caprices. In this context, the following observation made by a Division Bench of the Hon’ble Supreme Court in the case of Asha Sharma -Vrs.- Chandigarh Admn. reported in (2011) 10 Supreme Court Cases 86 may be relied upon: “14. Action by the State, whether administrative or executive, has to be fair and in consonance with the statutory provisions and rules. Even if no rules are in force to govern executive action still such action, especially if it could potentially affect the rights of the parties, should be just, fair and transparent. Arbitrariness in State action, even where the rules vest discretion in an authority, has to be impermissible. The exercise of discretion, in line with principles of fairness and good governance, is an implied obligation upon the authorities, when vested with the powers to pass orders of determinative nature. The standard of fairness is also dependent upon certainty in State action, that Page 12 of 18 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Sep-2024 13:51:12 is, the class of persons, subject to regulation by the Allotment Rules, must be able to reasonably anticipate the order for the action that the State is likely to take in a given situation. Arbitrariness and discrimination have inbuilt elements of uncertainty as the decisions of the State would then differ from person to person and from situation to situation, even if the determinative factors of the situations in question were identical. This uncertainty must be avoided.” [Emphasis supplied] The Hon’ble Supreme Court in the case of Shrilekha Vidyarthi (Kumari) -Vrs.- State of U.P. reported in (1991) 1 Supreme Court Cases 212, while explaining the true import of arbitrariness, has held as follows: “36. The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act Page 13 of 18 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Sep-2024 13:51:12 otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that ‘be you ever so high, the laws are above you’. This is what men in power must remember, always.” [Emphasis supplied] The argument advanced from the side of the petitioners that the applicant ought to have claimed for an inquiry to be caused in case he had grievances against the order of penalty without institution of inquiry is concerned, such contention deserves hardly any merit. The very language of Rule 16 of the 1965 Rules vests the power of inquiry upon the Disciplinary Authority and not as a matter of right upon the delinquent employee. Notwithstanding the fact that the nature of the penalty imposed upon the applicant, if he denies the charges against him, the Disciplinary Authority should have instituted an inquiry. This proposition of law is no more res integra as has Page 14 of 18 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Sep-2024 13:51:12 been briefly yet clearly laid down in the case of O.K. Bhardwaj -Vrs.- Union of India reported in (2001) 9 Supreme Court Cases 180: “3…..Even in the case of a minor penalty, an opportunity has to be given to the delinquent employee to have his say or to file his explanation with respect to the charges against him. Moreover, if the charges are factual and if they are denied by the delinquent employee, an enquiry should also be called for. This is the minimum requirement of the principle of natural justice and the said requirement cannot be dispensed with.” Given the factual contradictions, the Disciplinary Authority would have done well to cause an inquiry against the applicant before imposing the penalty which was likely to affect his post-retirement entitlement. This is more so when the applicant has denied the charges framed against him which are factual in nature, veracity of which can only be ascertained through a well-conducted inquiry. Page 15 of 18 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Sep-2024 13:51:12 Whether it is legal and reasonable to allow deduction from the pension of widow of the applicant?: 5. It is time and again reiterated by the Hon’ble Supreme Court as well as by various High Courts that the State is a model employer and unlike private entities, it is expected to be fair and reasonable while dealing with its employees. In the case in hand, the Disciplinary Authority as well as the Appellate Authority has imposed a penalty upon the applicant which resulted in pecuniary deduction from the pensionary benefits. Pension is not a gratuitous or benevolent payment made to an employee; rather it is paid to him as an instrument of social security and financial stability of his family after his superannuation, which is due to him for his decades of hard work and dedication to the public service. The Hon’ble Apex Court in the case of PEPSU RTC -Vrs.- Mangal Singh reported in (2011) 11 Supreme Court Cases 702 has held as follows: “49. To sum up, we state that the concept of pension has been considered by this Court time and again and in a catena of cases, it has been observed that the pension is not a charity or bounty nor is it a conditional payment solely dependent on the sweet will of the employer. It is earned for rendering a long and satisfactory Page 16 of 18 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Sep-2024 13:51:12 service. It is in the nature of deferred payment for the past services. It is a social security plan consistent with the socio-economic requirements of the Constitution when the employer is State within the meaning of Article 12 of the Constitution rendering social justice to a superannuated government servant. It is a right attached to the office and cannot be arbitrarily denied.” When it is already held that the Disciplinary Authority ought to have conducted an inquiry against the delinquent- applicant before imposing the penalty of recovery of money from the pension, it is corollary that his widow wife should not be allowed to suffer financial deprivation after his death. Furthermore, as held above, the State being a model employer should not keep on pestering for recovery of money when it is likely to defeat the social security measures envisioned by the Constitution of India as well as by the public laws. 6. In view of the foregoing discussions, we find no infirmity or illegality in the order dated 01.05.2023 passed by the learned Tribunal in O.A. No.222 of 2020 vide Annexure-1. The petitioners were directed by the learned Tribunal to refund the already recovered amount to the opposite party no.1 Anusuya Dash, widow of Ramakanta Mishra, ex-Superintendent of Post Page 17 of 18 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Sep-2024 13:51:12 Offices, Rayagada Division within a period of thirty days from the date of receipt of the copy of the order. If the same has not yet been carried out, the petitioners shall refund the amount as directed by the learned Tribunal within fifteen days from today. Accordingly, the writ petition merits no consideration and the same is hereby dismissed. ........................ S.K. Sahoo, J. Chittaranjan Dash, J. I agree. ................................... Chittaranjan Dash, J. Orissa High Court, Cuttack The 10th September 2024/RKMishra/Sipun Page 18 of 18