Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.33315 of 2011 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950). Bidhubhusan Kar …. Petitioner(s) -versus- Orissa Forest Development Corporation and others …. Opposite Party (s) Advocates appeared in the case throughHybrid Mode: For Petitioner(s) For Opposite Party (s) : : Mr. M. Mohanty, Adv. Mr. S.K. Pattanaik, Sr. Adv. along with Mr. S.P. Das, Adv. for OFDC CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-10.07.2024 DATE OF JUDGMENT: -06.09.2024 Dr. S.K. Panigrahi, J. 1. In the present Writ Petition, the Petitioner, formerly employed as a Field Assistant with the Opposite Party Corporation, contests both the order imposing a minor penalty involving a recovery of Rs.70,819/- dated 15.07.2008, and the subsequent Appellate order dated 08.07.2010, which denied the appeal on the grounds that it was filed 17 months beyond the prescribed 30-days period following receipt of the penalty order on 19.07.2008. Page 1 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 I. 2. (i) FACTUAL MATRIX OF THE CASE:
Facts
The brief facts of the case are as follows: The Petitioner was serving as Field Assistant under the Corporation and he had joined the service on 01.11.1981 and his service was regularised as per the Orissa Forest Corporation Regulation Rules, 1980.The petitioner retired from service under the V.R.S. scheme of the Corporation on dated 20.03.2007, after completion of 25 years of service. (i). The petitioner was engaged in the Vedavyas Retail Sale Firewood Depot
Legal Reasoning
“If the conditions of the constitutional protection have been complied with, is not justiciable. Therefore if the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the enquiry officer or the Tribunal Prima facie make out a case of misdemeanour, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice.” 8. In B.C. Chaturvedi vs. Union of India,2 the Supreme Court also held that judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. The relevant excerpt is produced hereinbelow: “Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether 2(1995) 6 SCC 749 Page 11 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.” 9. When an inquiry is conducted on the charges of misconduct by an employee of the state, the Court or Tribunal would be concerned only to the extent of determining whether the inquiry was held by a competent officer or whether the rules of natural justice and statutory rules were complied with. 10. In Om Kumar & Others vs. Union of India,3 the Supreme Court also after considering the Wednesbury Principles and the doctrine of proportionality held that the question of quantum of punishment in 3(2001) 2 SCC 386 Page 12 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 disciplinary matters is primarily for the disciplinary authority, and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or the other of the well-known principles known as “Wednesbury Principles” namely whether the order was contrary to law, or whether relevant factors were not considered, or whether irrelevant factors were considered or whether the decision was one which no reasonable person could have taken. The Apex Court held as following: “In this context, we shall only refer to these cases. In Ranjit Thakur v. Union of India, [1987] 4 SCC 611, this Court referred to ’proportionality’ in the quantum of punishment but the Court observed that the punishment was ’shockingly’ disproportionate to the misconduct proved. In B.C. Chaturvedi v. Union of India, [1995] 6 SCC 749, this Court stated that the court will not interfere unless the punishment awards was one which shocked the conscience of the Court. Even then, the Court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the Court could award an alternative penalty. It was also so stated in Ganayutham. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as ’arbitrary’ under Article 14, the Court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing Court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to Page 13 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and such extreme or rare cases can the Court substitute its own view as to the quantum of punishment.”(Emphasis supplied) 11. Now, with the above principles in mind, this Court shall consider the arguments of the counsel for the petitioner, one by one, against the arguments of the counsel for the Opp. Parties. V. COURT’S REASONING AND ANALYSIS: 12. A review of the charges indicates a significant discrepancy between the quantity of firewood recorded by the petitioner and the amount discovered during the inspection. This discrepancy underscores the seriousness of the matter. The variance in recorded figures raises substantial concerns about accuracy and integrity in the reporting of firewood quantities, which could indicate potential mismanagement or misconduct. Such a discrepancy warranted a thorough investigation to determine the cause and address any underlying issues as well as a departmental inquiry against the petitioner. 13. In asserting violations of natural justice, the petitioner has relied solely on speculation and conjecture, claiming a lack of access to pertinent documents and that their arguments were not considered. The petitioner has failed to adequately substantiate these claims. To establish a breach of natural justice, concrete evidence must be presented demonstrating that the procedural rights of the petitioner were compromised. Without substantial proof, such allegations remain Page 14 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 unsupported and cannot undermine the findings of the inspection or the charges levied. 14. Furthermore, it is essential for the petitioner to provide a clear and compelling case to challenge the findings of the inspection. The absence of relevant evidence or a substantive argument diminishes the credibility of the petitioner’s claims. Effective legal remedies require a robust presentation of facts and evidence; thus, the petitioner must address the identified discrepancies with factual accuracy and provide credible documentation to support their position. Only through a detailed and substantiated approach can the petitioner hope to refute the charges and demonstrate that their procedural rights were indeed violated. 15. It is evident that the petitioner’s appeal is barred by the limitation period, as contended by the counsel for the Opposite Parties. The argument presented regarding the limitation was well-substantiated and persuasive. Accordingly, the Court concurs with this argument and acknowledges that the appeal was indeed time-barred. So, this Court will not make any observations against it. 16. Now, the penalty imposed on the petitioner, amounting to Rs.70,000/-, is deemed proportionate to the charges substantiated by the evidence. The significant discrepancy between the recorded and inspected quantities of firewood highlights a serious lapse in the petitioner’s reporting, which directly impacts the integrity of the records and operational accountability. Given the gravity of the discrepancy and its Page 15 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 implications, the financial penalty serves as a reasonable measure to address the breach and deter similar misconduct in the future. 17. Moreover, the penalty reflects a balance between the severity of the offense and the need for corrective action. It is designed to reflect the seriousness of the charges while considering the scale of the discrepancy. The imposition of Rs.70,000/- as a penalty is, thus, an appropriate response, aimed at ensuring compliance and maintaining the accuracy of operational records. This amount aligns with the nature of the infraction and the need for accountability, making it a proportionate sanction in light of the proved charges. VI. CONCLUSION: 18. 19. In light of the facts and circumstances of the present case, this Court finds no merit in the current petition. The Petitioner has not succeeded in establishing grounds for interference with the impugned order.
Arguments
from 31.03.2005, to 26.10.2005. He assumed charge from Sri Anadi Roul, Field Assistant, with an initial physical stock of 266.64 quintals of firewood. During his tenure at the Vedavyas Depot, the petitioner received an additional 3,428.02 quintals of firewood, bringing the total stock received to 3,694.66 quintals. Out of this total, he sold 3,162.59 quintals. According to the book balance, the closing stock should have been 532.07 quintals. However, upon physical verification, only 43.66 quintals of firewood were found, revealing a discrepancy of 488.41 quintals. (ii). For the above lapses, after issuance of preliminary show cause notice, a Departmental proceeding was initiated against the petitioner on6.1.2006, for causing financial loss to the Corporation by his negligent conduct. (iii). In the said Departmental proceeding following charges wereframed:- (1) Negligence of duty. Page 2 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 (2) Loss of Corporation’s money towards shortage of 488.41 qnts. of round fire wood and cost of which is Rs.145/- per quintal which comes to Rs.70,819/-. (3) Criminal motive on misappropriation Corporation’s Money (4) Gross Misconduct. (ii) On 20.10.2005, the trustee of Vedavyas Trust Board also intimated the facts to the Divisional Manager, Orissa Forest Development Corporation, Rourkela, explaining the shortage in weight during processing of wood. (iii) By Office Order No.11 dated 06.01.2006, the Divisional Manager, OFDC Ltd., Rourkela (C-KL) Division, initiated a departmental proceeding against the petitioner and asked to submit his written statement of defence. Accordingly, the petitioner submitted his defence in the departmental proceeding. By office order No.68 dated 30.03.2006 of the Divisional Manager, OFDC Rourkela, the Sub-Divisional Manager, Zarda Sub-division was appointed as Inquiry Officer and the Head Asst. of Rourkela Division was appointed as Marshalling Officer. (iv) The Inquiry Officer after completion of the Inquiry submitted his report to the Disciplinary Authority on 31.12.07 with findings that the Petitioner was found guilty in Charge Nos.1, 2, 3 and gave the findings that Charge No.4 gross misconduct could not be established. The Inquiry Officer rendered suggestion for recovery of Rs.70,819/- from the service benefit and payable dues of the Petitioner who retired under VRS. Page 3 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 (v) By letter No.1701 dated 25.03.2008, the Disciplinary Authority accepted the finding/suggestion of the inquiry officer and proposed to impose the punishment for recovery of Rs. 70,819/- from the dues of the retired petitioner. Further, the petitioner was issued a show cause notice, inquiring why the proposed punishment should not be imposed upon him. (iv). (v). The disciplinary authority, O.P.No.3, called upon the petitioner by letter under dated 25.3.2008 to submit his reply on the inquiry report and the proposed penalty of recovery of the loss caused to the corporation The petitioner submitted his reply to the second show- cause notice on 22.4.2008. After giving a chance of personal hearing on 20.5.2008, and considering the entire record of enquiry, the Disciplinary Authority imposed the minor penalty of recovery of Rs.70.819/- vide order dated 18.7.2008 directing that the amount be recovered from the dues payable as per the V.R. Scheme, since the petitioner had already taken voluntary retirement since 20.03.2007. (vi). The Appellate Authority-cum-General Manager, Sambalpur (C) Zone considered the appeal, but rejected the same, on the ground of delay since he was not satisfied that the petitioner had sufficient cause for not preferring the appeal in time. II. 3. SUBMISSIONS ON BEHALF OF THE PETITIONER: Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions: Page 4 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 (i) The petitioner, during his tenure, on several occasions, reported to the higher authorities regarding the shortage of the Firewood in the depot while waiting the firewood and the sale of firewood on retail basis. The petitioner submitted intimation on 20.08.2005, 22.09.2005, 16.10.2005, 21.10.2005 and on several dates explaining the shortages in weight during retail sale and making small pieces showing the various grounds. (ii) The petitioner fully cooperated with the Inquiring Officer but faced lot of difficulties for non-cooperation of the Inquiry Officer and Marshalling Officer and they failed to submit all the copies of documents relied upon.From the beginning, the petitioner was intimating the authorities about the shortage in weight due to loading, unloading, processing, retail sale in small quantity and exposure to sun, rain and air under the open sky and due to staging on the earth directly.However, the authorities failed to appreciate the objections filed by petitioner and also did not drop the proceeding. Conversely, they held the petitioner guilty which is illegal and he is suffering for the cause which cannot be attributed to him. (iii) During the departmental proceeding, the petitioner, on several occasions, applied for copies and clear copies of documents for his use but the enquiry officer and the charged authorities failed to comply with the principle of natural justice by not supplying the documents required by the petitioner. This is a clear violation of Article-14 and 16 Page 5 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 of the Constitution of India while inflicting the punishment to the petitioner which is liable to be set aside. (iv) The Disciplinary Authority failed to appreciate the facts and by order No.103 dated 15.07.2008 passed the order for recovery of Rs.70,819/- from the petitioner who has already retired from service under V.R.S. scheme from his service benefits and payable dues of the petitioner. (v) The petitioner is a poor man and without retiral financial dues, he was living in the distress condition in an interior place like Rairakhol where his last posting before retirement was made. The petitioner was suffering from malaria and partial paralysis and was bed-ridden and filed his appeal against the final Order No.103 dt. 15.07.2008. The appeal dated 28.12.2009 of the petitioner who is living in the distress condition was rejected by the General Manager of OFDC Sambalpur by Order No.45 dated 08.06.2010. The authority failed to consider the documents which were filed in the said proceedings. (vi) The Appellate Authority failed to apply his mind on merits of the appeal and failed to exercise jurisdiction in the appeal. The Appellate Authority failed to appreciate the reasons of delay given by the petitioner which caused great injustice and is liable to be vacated and cannot be sustained in the interest of justice III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES: 4. Per contra, learned counsel for the Opposite Parties earnestly made the following submissions in support of his contentions:: Page 6 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 (i). Against the aforesaid order of penalty dated 15.7.2008, received by the petitioner on 19.7.2008, an appeal lies before the General Manager, Sambalpur (C) Zone, as per Rule-130 of the Orissa Forest Corporation Service Rules. The period of limitation for filing such an appeal is 30 days as per Rule-132 of the service rules, which is quoted below: "No appeal under these rules shall be entertained unless it is submitted within 30 days from the date on which the appellant receives a copy of the order appealed against. Provided that the appellate authority may entertain the appeal after the said period if it is satisfied that the appellant had sufficient cause for not submitting the appeal in time.” (ii). The petitioner preferred an appeal at a belated stage on 28.12.2009 i.e. after a delay of one year and five months, taking the ground of illness i.e. Malaria and Paralysis, in Para-7 of the memorandum of appeal, without submitting any supporting medical certificate in support of his alleged illness (iii). The petitioner could not convince the Appellate Authority of the reason of delay in filing of the appeal at a belated stage. The reason of delay as stated in his show-cause reply, without any supporting documentary evidence, was not acceptable. So, the rejection of appeal was justified and appropriate, in view of clear provision under the Rules. (iv). The petitioner himself admitted about shortage of firewood but tried to escape from the responsibility of shortage by narrating different causes which were not accepted by Disciplinary Authority. (vii). The petitioner while working in Rairakhol (C- KL) Division has submitted application for voluntary retirement under Model VR Page 7 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 Scheme which was finally accepted by the Managing Director, OFDC Ltd. and communicated vide Head Office Memo No 6905 dated 19.03.07. In compliance to the said order, the Divisional Manager, Rairakhol (C-KL) Division relieved the petitioner from Corporation service vide Order No 57 dated 20.03.2007. (viii). The petitioner himself has taken over charge of Vedabyas depot on 31.03.2005 from Sri Anadi Roul, Field Asst. and, thereafter, received fire wood for the purpose of selling to public. After five months, he submitted an intimation about shortage occurred in the depot due to retail sell only with a view to escape from the liability of causing shortage in the depot which was already detected. (ix). The Vedavyasa Trust Board has noauthority to file the representation dated 20.10.2005 supportingshortage of fire wood which had occurred during the tenure of thepetitioner. It is crystal clear that the petitioner himself has managedto get such petition filed, for escaping from the shortage of fire wooddetected during his tenure. (x). While the petitioner was in charge of Vedavyasa Depot, physical verification of stock was done by the SDM, Orissa Saw Mill, Rourkela on 16.10.05 in the presence of four nos. of Field Assts. and one Watcher along with the petitioner. On physical verification the actual physical stock in depot was found to be only Qntls.43.66 as against the book balance of Qntl 532.07 indicating a shortage of Qntl 488.41. (xi). In fact, for the above shortage, a preliminary explanation was called for vide letter No.1848 dated 17.10.05 of Divisional Manager, Rourkela (C- Page 8 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 KL) Division.Since the explanation was not convincing, the Departmental proceeding was drawn up against the petitioner. (xii). The Inquiring Officer has given appropriate opportunity to the petitioner to defend charges during the inquiry. Even the delinquent has appeared and participated in the inquiry and also admitted the quantity of shortage of fire wood. (xiii). The petitioner tried to take a plea that the shortage occurred due to receipt of firewood of soft wood species. But from the depot stock register, which was maintained by the petitioner himself, it was found that the physical stock which was available at the time of verification made on 16.10.2005 contained 50 nos. of billets from which it is proved that bigger size billets were in the stock. Further, during the physical verification no deteriorated small billets were available. Moreover, the period of the tenure of the petitioner at the depot was only about nine months. So, the Inquiring Officer finally found him to be guilty of charge No. 1, 2 & 3 and suggested for awarding minor punishment of recovery of Rs. 70,819/- as the petitioner had retired on V.R.S. (xiv). The Inquiring Officer after giving proper opportunity to the petitioner to defend himself finally concluded the Departmental proceeding and submitted the detailed enquiry report holding the petitioner guilty of charges of negligence in duty, loss of Corporation money due to shortage of fire wood and misappropriation of Corporation money. The Inquiring Officer submitted the inquiry report suggesting for imposition of minor punishment of recovery of Rs.70,819/- from VRS Page 9 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 benefits payable to the petitioner. The Disciplinary Authority being satisfied with the inquiry report issued 2nd show cause notice in favourof petitioner along with a copy of inquiry report for giving him further chance of defence. The petitioner submitted a show cause reply on 22.04.08 requesting the Disciplinary Authority to give him a chance of personal hearing to put forth his grievance. The Disciplinary Authority has also asked the petitioner to appear on 20.05.08 in person for hearing. The petitioner has also appeared before the Disciplinary Authority on the schedule date and requested to exonerate him from charges without any convincing reasons. (vi) The Disciplinary Authority following due procedure under disciplinary proceeding Rules finally passed the final order which is just and proper in the eye of law. IV. EXAMINATION OF THE LEGAL MATRIX: 5. Heard the learned counsels for the parties and perused the materials placed on record. 6. 7. First of all, it is trite in law that the power of judicial review exercised by a Court or a Tribunal against the orders of a departmental enquiry committee is only limited to ensuring that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. In case of State of Orissa v. BidyabhushanMohapatra,1the Constitutional Bench of the Supreme Court noted that, considering the seriousness of the proven misconduct, the disciplinary authority 1AIR 1963 SC 779 Page 10 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 19:48:02 possessed the authority and jurisdiction to impose the corresponding penalty. This penalty was not subject to review by the High Court under Article 226. The relevant excerpts are produced hereinbelow:
Decision
In light of the foregoing, this Writ Petition is dismissed and disposed of in terms of the aforesaid observations. (Dr. S.K. Panigrahi) Judge Orissa High Court, Cuttack, Dated the 6th September, 2024/ Page 16 of 16