JUSTICE v. NARASINGH DATE OF FINAL HEARING
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.31785 of 2011 In the matter of an application under Article 226 & 227 of the Constitution of India. ------------------ Sunena Prasad Sharma & Another …. Petitioners -versus- Managing Director, Orissa Forest Development Corporation Ltd., Bhubaneswar …. Opposite Parties For Petitioners For Opposite Parties : : Mr. S. Mohanty, Advocate Mr. S.K. Pattnaik, Sr. Advocate CORAM: JUSTICE V. NARASINGH DATE OF FINAL HEARING : 10.01.2024 DATE OF JUDGMENT : 15.04.2024 V. Narasingh, J. 1. The widow and son of deceased employee (Field Asst. under the OFDC) being substituted assail the order of termination and the order of Appellate Authority of the ex-employee at Annexure-6 & 9 respectively. 2. The facts, germane for just adjudication of this Writ Petition, are stated below: W.P.(C) No.31785 of 2011 Page 1 of 15 Claim of the Petitioner The Petitioner No.1 is the widow of deceased employee who served under Odisha Forest Development Corporation Ltd. (OFDC) on being appointed as a mate on 01.08.1980. During his service period he was promoted to the post of Field Asst. on 08.02.2000. While continuing in the promotional post of Field Asst. in the office of Divisional Manager, Rourkela (C) Division he was transferred to Sambalpur(KL) Division as per order dtd.10.07.2003 being a regular post holder under OFDC Ltd. However on being not relieved from the post and as the transfer order dated 10.07.2003 was not made effective the deceased employee continued to remain in the said station and applied for voluntary retirement. Since there was a delay in consideration of the same the deceased employee sent a leave application on 26.09.2003 to the DM, Rourkela Division and to go on leave and requested to give him voluntary retirement in terms of the Scheme for Voluntary Retirement. 3. Neither the deceased employee was allowed to go on leave nor his request for voluntary retirement under the Scheme in force was considered rather he was issued with a notice to file show cause and to explain his absence from duty since 26.09.2003. He submitted his reply as per his letter dated 15.01.2004 in order to justify that his leave is not unauthorized. 4. Without considering such properly reasoned representation/reply to show cause the authority initiated a Disciplinary Proceeding against the deceased Petitioner on 03.04.2004 on the following allegations; (i) disobedience of order of higher authority, (ii) unauthorized absence from duty, W.P.(C) No.31785 of 2011 Page 2 of 15 (iii) negligence in duty, (iv) misconduct. 5. The delinquent (since deceased) submitted his statement of defence denying the charges levelled against him. The Sub- Divisional Manager, Maneswar(C) Sub-Division was appointed as Inquiring Officer to conduct the enquiry And, he completed the enquiry in one day i.e. 22.08.2006 and submitted the enquiry report dated 02.11.2006 to the Disciplinary Authority. 6. The Disciplinary Authority straight way acted upon the enquiry report and issued a punishment order dt.15.03.2008 by imposing the penalty of termination from service of the husband of Petitioner No.1 and treating the period of absence from duty from 26.09.2003 till the date of punishment order as “no work no pay” treating it as unauthorized absence. 7. The deceased employee had earlier approached this Court challenging the order of termination by filing a Writ Petition bearing W.P.(C) No.3157 of 2011 which was disposed of by order dated 28.02.2011 directing the authorities to consider and dispose of the appeal. 8. Accordingly, husband of Petitioner No.1 preferred an appeal before the Appellate Authority not only to interfere with the order of punishment but also with the Departmental Proceeding. However the Appellate Authority rejected the same vide his order dated 29.08.2011. 9. Being aggrieved with the order of punishment dated 15.03.2008 and rejection of the appeal dated 24.08.2011 at Annexure-6 & 9 respectively, the husband of Petitioner No.1 filed W.P.(C) No.31785 of 2011 Page 3 of 15 this W.P.(C) inter alia on grounds of procedural irregularity, violation of principle of natural justice. 10. It is further contended that in absence of any provision under the statute (Orissa Forest Corporation Service Rules, 1986) in force and which admittedly governs the service condition of the delinquent permitting the Inquiry Officer to suggest the punishment in the present case, the Enquiry Officer not only conducted the enquiry in a perfunctory manner but also suggested for removal of the Petitioner from service. Though the Enquiry Officer arrived at the findings that the statement of the delinquent is false, yet reason for arriving at such finding is conspicuously absent. 11. The entire conclusion derived by the inquiring officer is based on surmises and conjecture without any reasonable basis. Though, the Marshaling Officer stated about the refusal of VRS application, it never saw the light of the day. 12. Accordingly, the Petitioner prayed to set aside the order of termination dated 15.03.2008 based on such perfunctory enquiry and the rejection of appeal by order dated 24.08.2011 vide Annexure- 6 & 9 respectively but also prayed for reinstatement in service with full back wages as much as to issue appropriate direction for acceptance of the VRS application by granting him all other consequential benefits. 13. When the order of termination under challenge in the above noted Writ Petition was subjudice the original Writ Petitioner – the delinquent expired and his wife and son were substituted by order dated 07.07.2022 as the widow would get pension, gratuity, leave dues and other financial benefits in case the order of termination is W.P.(C) No.31785 of 2011 Page 4 of 15 quashed and the service benefits of the deceased employee is restored. Counter 14. Challenging the aforesaid stand of the Petitioner, the Opposite Parties had filed a detailed counter denying the allegations. It was stated by the Opposite Parties that deceased employee worked as Field Assistant under Rourkela Division of the OFDC Ltd. from 01.01.1980 for almost 23 years in one Division. 15. Considering the same, the General Manager, Sambalpur (C) Zone which covers Rourkela Division of the Corporation made a general chain of transfer of the Field Assistants involving around 88 Field Assistants’ transfer including the Petitioner. Wherein the Petitioner was transferred form Rourkela (C) Division to Sambalpur (KL) Division. 16. Instead of complying with such direction of the authorities and joining in his post, the Petitioner submitted an application for voluntary retirement on 16.08.2003 which was forwarded by the competent authority on 01.09.2003. The VRS scheme was no more in force w.e.f. 31.12.2002 and therefore, the request of the Petitioner for his voluntarily retirement under the VRS scheme could not be accepted. 17. Thereafter, the Petitioner was relieved from his previous post on 26.09.2003 but without joining in the new place the Petitioner submitted a leave application on 26.09.2003 to the authority of the previous station. Accordingly, the Petitioner was directed to submit his leave application if any before the Sambalpur (KL) Division as per letter dated 10.10.2003 wherein it was also indicated about non- W.P.(C) No.31785 of 2011 Page 5 of 15 acceptance of his VR application in view of such scheme having been wound up w.e.f. 31.12.2002. 18. The Petitioner neither submitted any leave application before the Sambalpur(KL) Division nor he reported his duty in the division where he has been posted. 19. Accordingly, a show cause explanation was issued by the Divisional Manager, Sambalpur (KL) Division to explain his absence since 26.09.2003. The Petitioner reiterating the sole stand of applying under VRS responded to such letter and justified his not joining at Sambalpur. 20.
Legal Reasoning
In view of the aforesaid background it was felt necessary to draw a Disciplinary Proceeding against the Petitioner by the DM, Sambalpur vide order dated 03.04.2004. The Petitioner submitted his reply on 06.05.2004 and on the same day he further renewed his prayer to accept the VR application. Although his previous VR application were rejected under intimation to him citing the ground of non-availability of such scheme but the DM, Sambalpur vide reply dated 23.07.2005 informed the Petitioner that his application for VR in phase-III was not accepted by the competent authority for his long continuous absconding from duty unauthorizedly. Accordingly this fact was intimated by the Head Office to the Divisional Manger, Sambalpur(KL) Division and the Petitioner was given an option to take voluntary retirement as per Rule 38 of the OFDC Service rules. 21. Taking into consideration the long absence of the Petitioner, the Divisional Manager (KL), Sambalpur further published a notice in newspaper on 20.03.2006 calling upon the Petitioner to join. The Inquiry was conducted in a proper manner and the Petitioner also W.P.(C) No.31785 of 2011 Page 6 of 15 participated in the inquiry process where his statement was recorded in which he took a bald stand that he has not received the leave order and he will not join in the duty unless and until his VR application is sanctioned rather shall remain on leave. The relieve order dated 26.09.2003 was sent by registered post and it was received by one S.P. Sharma for the Petitioner but the Petitioner bluntly denied of receiving the same without any proper justification. 22. The inquiry was concluded, resulting in termination of the Petitioner and treating the unauthorized period of his absence from 26.09.2003 as “no work no pay” (Annexure-6). 23. A copy of the Inquiry Report was not supplied to the Petitioner before the proceeding was concluded for which the Appellate Authority directed for issue of enquiry report to the Petitioner vide order dated 20.07.2011 after which the Petitioner submitted a written reply before the Managing Director on 04.08.2011. The Appellate Authority considered all these aspects and passed a well reasoned order rejecting the appeal of the Petitioner as per order dated 24.08.2011 (Annexure-9). It is thus
Decision
submitted that as such the Writ Petition is liable to be rejected. Rejoinder 24. Disputing and clarifying the submissions on behalf of the Opposite Parties claiming them to be false and misleading the Petitioner by way of a rejoinder affidavit further submitted that though he had submitted his application for voluntary retirement in terms of the VR Scheme which was introduced but the authority did not take any decision on the same under intimation to him whereas for the first time in the year 2009 the letter was issued to the Petitioner to apply VRS in the prescribed form wherein he was also W.P.(C) No.31785 of 2011 Page 7 of 15 directed to join in the office where he has been posted. The Petitioner under compelling circumstances had to remain on leave due to his illness and accordingly he extended his leave from time to time by submitting leave application. Therefore reiterating the grounds stated in the Writ Petition, it was contended that his prayers to quash the order of punishment as well as rejection of appeal deserve to be allowed. 25. The Petitioner strongly objected the stand of the Opposite Parties by submitting that on one hand the authorities had claimed for non-consideration of his claim under VRS in such VRS was not in force at the time of considering his case and on the other hand after such scheme was restored his application for VRS was rejected on the ground of unauthorized absence. Finding 26. The scope of interference by the High Courts in a disciplinary proceeding in exercise of their writ jurisdiction was considered by the Apex Court in the case of State Bank of India vs. Ram Lal Bhaskar & another reported in (2011) 10 SCC 249, in the said judgment the Apex Court quoted with approval its pronouncement in the case of State of Andhra Pradesh & others vs. S. Sree Rama Rao reported in AIR 1963 SC 1723. Paragraphs 12 & 13 of the judgment of the Apex Court in the case of State Bank of India vs. Ram Lal Bhaskar & another reported in (2011) 10 SCC 249 is extracted hereunder:- is not constituted “7.......The High Court in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: W.P.(C) No.31785 of 2011 Page 8 of 15 it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the Rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is petition for not the function of the High Court in a a writ Under Article 226 to review the evidence and to arrive at an independent finding on the evidence…..” “13. Thus, in a proceeding Under Article 226 of the Constitution, the High Court does not sit as an appellate authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not re-appreciate the evidence and come to a different and independent finding on the evidence. This position of law has been reiterated in several decisions by this which we need not refer to, and yet by the Court impugned judgment the High Court has re-appreciated the evidence and arrived at the conclusion that the findings recorded by the enquiry officer are not substantiated by any material on record and the allegations leveled against the Respondent No. 1 do not constitute any misconduct and that the Respondent No.1 was not guilty of any misconduct.” 27. The scope of interference in a departmental proceeding was further reiterated by the Apex Court in its judgment in the case of State Bank of India vs. A.G.D. Reddy reported in 2023 SCC OnLine SC 1064. Paragraph-42 thereof is extracted hereunder:- “It is now well settled that the scope of judicial review against a departmental enquiry proceeding is very limited. It is not in the nature of an appeal and a review on merits of the decision W.P.(C) No.31785 of 2011 Page 9 of 15 is not permissible. The scope of the enquiry is to examine whether the decision-making process is legitimate and to ensure that the findings are not bereft of any evidence. If the records reveal that the findings are based on some evidence, it is not the function of the Court in a judicial review to re- appreciate the same and arrive at an independent finding on the evidence. This lakshman rekha has been recognized and reiterated in a long line of judgments of this Court.” 28. Being conscious of contours of interference and also taking into consideration of the fact that the original Petitioner is no more and has been substituted by his legal heir who can confine their claim in shape of monetary claim only as much there being no scope for remanding the matter to the stage of irregularity for conducting the Departmental Proceeding de novo against a dead person and also the nature of charge which stand on the sole allegation of unauthorized absence from duty this Court confines the scrutiny to the nature of penalty and it’s sustainability. 29. By the punishment order dt.15.03.2008, the service of the husband of Petitioner No.1 was terminated and treating the period of absence from duty from 26.09.2003 till the date of punishment order as “no work no pay” treating it as unauthorized absence are the two punishments imposed and the Appellate Authority has also confirmed the same vide Annexure 6 & 9 respectively. 30. Admittedly, the deceased employee was governed by the Orissa Forest Corporation Service Rules, 1986. Chapter-VIII of such Service Rules deal with disciplinary rules. 31. Rule-121 (Chapter-VIII) thereof outlines the penalties to be imposed and read as under:- 121. Penalties : W.P.(C) No.31785 of 2011 Page 10 of 15 as imposed on hereinafter provided be “The following penalties may, for good and sufficient reasons and an employee/workman, namely: Minor Penalties: i) Fine, ii) Censure, iii) Withholding of promotion, iv) Recovery from pay of the whole or part of any pecuniary toss caused by him to the Corporation by negligence or breach of orders or misappropriation or any other reasons, v) Withholding/stoppage of increments of pay. vi) Suspension. Provided that the penalty of fine shall be nominal and imposed only on Class-IV employees/workmen for specific dereliction of duties. Major Penalties: vii) Reduction to lower stage in the time scale of pay for a specified period with further directions as to whether or not the employee/workman will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of post- poning future Increments of his pay. viii) Reduction to a lower time scale of pay, grade, post of service which shall ordinarily be a bar to the promotion of the employee/workman to the time scale of pay, grade, post or service from which he was reduced, with or without further directions regarding condition of restoration to the grade, post or service from which the employee/workman was reduced and his seniority and pay on such restoration to that grade, post, or service; ix) Compulsory retirement amounting to premature retirement, x) Dismissal from Corporation service which shall ordinarily be a disqualification re- employment.” future employment and for W.P.(C) No.31785 of 2011 Page 11 of 15 32. Rule-122 deals with Disciplinary Authorities sub-Rule 1 thereof reads as under:- “1. Chairman/Managing Director may impose any of the penalties specified in Rule-121 on any employee/workman.” 33. It is apt to note here that in the Explanation-6 appended to Rule-121 of Orissa Forest Corporation Service Rules, 1986 deals with termination of the services, the same is extracted hereunder for convenience of reference. 6. Termination of the services :- “a) of an employee/workman appointed on probation, during or at the end of his probation in accordance with the terms of his appointment or the rules and orders governing such probation; or b) of a temporary workman/employee in accordance with the terms and conditions of his appointment or as per rules or orders prescribing the appointment; or conditions of such temporary appointment; or c) of an employee/workman under an agreement in accordance with terms of such agreement.” On a bare reading of the same, it can be seen that order of termination cannot ex-facie be passed in case of the Petitioner since the same can only be passed qua an employee who is on probation or temporary workman/employee or an employee under an agreement. 34. During the course of submission, learned Senior Counsel on behalf of Opposite Party-OFDC referring to the memorandum of Appeal which is at Annexure-M submits that since the Petitioner had not raised any grievance that the punishment imposed are not envisaged under Rule-121 is estopped from agitating the same at this stage by way of oral submission. W.P.(C) No.31785 of 2011 Page 12 of 15 35. Such contention on behalf of the Corporation is to be negated since the challenge to the punishment being de hors the rules cannot be frustrated under the cover of cannon of pleadings and more so since this Court is of the considered view whether the punishment imposed comes within the punishment as envisaged under the Service Rules is a point of law. 36. In fact both the learned counsels addressed this Court with reference to penalty imposed keeping in view Rule-121 of the Orissa Forest Corporation Service Rules, 1986 on 10.01.2024, the date on which final hearing was taken up and judgment was reserved. 37. Imposition of punishment not in terms of service Rules and effect thereof was extensively dealt with by the Apex Court in the case of Vijay Singh V. State of U.P. and others, 2012 (5) SCC 242: AIR 2012 SC 2840. Paragraphs-15, 21 & 22 which are germane are extracted hereunder:- “15. Imposing the punishment for a proved delinquency is regulated and controlled by the statutory rules. Therefore, while performing the quasi-judicial functions, the authority is not permitted to ignore the statutory rules under which punishment is to be imposed. The disciplinary authority is bound to give strict adherence to the said rules. Thus, the order of punishment being outside the purview of the statutory rules is a nullity and cannot be enforced against the appellant. (Emphasised) 21. Undoubtedly, in a civilised society governed by the Rule of Law, the punishment not prescribed under the statutory rules cannot be imposed. Principle enshrined in criminal jurisprudence to this effect is prescribed in the legal maxim nulla poena sine lege which means that a person should not be made to suffer penalty except for a clear breach of existing law. W.P.(C) No.31785 of 2011 Page 13 of 15 22. In S. Khushboo v. Kanniammal this Court has held that a person cannot be tried for an alleged offence unless the legislature has made it punishable by law and it falls within the offence as defined under Sections 40, 41 and 42 of the Penal Code, 1860, Section 2(n) of the Code of Criminal Procedure, 1973, or Section 3(38) of the General Clauses Act, 1897. The same analogy can be drawn in the instant case though the matter criminal not in is nature.” (Emphasised) 38. Thus, it is well settled that a punishment which is not in terms of the service Rules cannot be imposed even if the charges against an employee are established. 39. Therefore, both the punishments imposed in the present case i.e. Termination from service and treating the period of absence as no work no pay being de hors the purview of “penalty” prescribed under Rule-121 of the chapter VIII of Orissa Forest Development Corporation Rules cannot be construed to be as punishment(s) within the framework of law. The same as such are unsustainable. Therefore the punishments vide Annexure-6 so imposed are accordingly quashed. Consequentially the rejection of appeal order dtd.29.08.2011 at Annexure-9 is also set-aside. 40. As noted the original Writ Petitioner/the employee has unfortunately not survived the litigation leaving behind his legal heirs who are the present Petitioners. 41. Therefore this Court does not find any reason to remit the matter to the stage of irregularity in the proceeding as there cannot be a fresh punishment order against a dead person and more so since the charges are no way related to any financial irregularity or misappropriation. W.P.(C) No.31785 of 2011 Page 14 of 15 42. This Court therefore finds it to be an appropriate case where the original Petitioner has to be treated as an employee who died in harness. And, as such his legal heirs are entitled to get all the financial benefits for the period of his service and after his death. In the considered view of this Court the same would subserve equity and ends of justice. 43. However while calculating the period of length of his service for the purpose of terminal/retirement benefits the period of his leave from 26.09.2003 till the period he would have continued in service, keeping in view that he passed away on 04.05.2021 (as stated in the death certificate annexed to as Annexure-1 to I.A. No.4537 of 2022) shall be taken into consideration. But no arrears salary shall be paid for the said period as the petitioner had actually not served during such period. 44. The entire exercise shall be completed within a period of four months from the date of communication or production of certified copy of the Judgment whichever is earlier. Failing which, interest @ 6% per annum from the date of entitlement shall be also paid to the present Petitioners till the actual disbursement. 45. The Writ Petition thus allowed. No costs. (V. Narasingh) Judge Orissa High Court, Cuttack, Dated the 15th April, 2024/Ayesha Signature Not Verified Digitally Signed Signed by: AYESHA ROUT Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 27-Apr-2024 13:15:00 W.P.(C) No.31785 of 2011 Page 15 of 15