The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.18912 of 2020 Udayanath Majhi …. Petitioner Mr.L.K. Mohanty, Advocate State of Odisha & Others -versus- …. Opposite Parties Mr. R.N. Mishra, AGA along with Mr. B.P. Tripathy, Adv. for O.P.2 CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No. 09. 1. This matter ORDER 29.08.2023 taken up is through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. L.K. Mohanty, learned counsel for the Petitioner, Mr. R.N. Mishra, learned Addl. Government Advocate for the State and Mr. B.P. Tripathy, learned Counsel appearing for Opposite Party No.2. 3. The Petitioner has filed the present Writ Petition challenging the order of punishment so passed by the Government-Opposite Party No.1 vide Office Order dated 02.07.2020 under Annexure-19. 4. It is contented that the Petitioner while continuing under the Opposite Parties, a proceeding was initiated against him vide Memorandum dated 27.05.1999. In the said proceeding, when the order of punishment was passed without providing any documents in terms of the provisions contained under Rule-15(3) of the OCS // 2 // (CC&A) Rules, 1962 the matter was challenged before the Tribunal in O.A No.147(C)/2005. The Tribunal vide its order dated 01.12.2015 was pleased to quash the order of punishment and remits the matter to the Opposite Party No.1 to provide the documents and to conclude the proceeding within a period of three months from the date of receipt of the order, otherwise the proceeding should be treated to have been dropped. 4.1. It is contended that Opposite Party No.1 challenging the order passed by the Tribunal on 01.12.2015 under Annexure-12, approached this Court in W.P.(C) No.6063 of 2017. This Court vide order dated 17.07.2017 under Annexure-13 while upholding the direction of the Tribunal only modified the same to the extent that the proceeding will be concluded within a period of four months from the date of receipt of the order. This Court set aside the direction of the Tribunal so far as it relates to dropping of the proceeding if not concluded within the time stipulated. 4.2. Learned counsel for the Petitioner contended that after disposal of the matter by this Court, the Petitioner though was allowed to take part in the proceeding with appointment of the enquiry officer vide order dated 11.10.2017 under Annexure-14, but at no point of time Petitioner was provided with the documents as directed by the Tribunal in its order under Annexure-12 and so confirmed by this Court in its order under Annexure-13. Page 2 of 7 // 3 // 4.3. It is contended that since at no point of time after disposal of the matter by this Court, the Petitioner was provided with the documents in order to enable him to put forth his stand before the disciplinary authority, he was seriously prejudiced with regard to conduct of the proceeding. 4.4. It is further contended that on receipt of the enquiry report on remand, the Petitioner when was issued with the 1st show cause vide notice dated 21.04.2018 under Annexure-15, Petitioner while submitting his reply to the same under Annexure-16 took a specific stand that the documents in terms of the order passed by the Tribunal was never provided and accordingly the proceeding cannot be proceeded against him. But without considering the said stand as taken in Annexure-16, 2nd show cause was issued to the Petitioner on 20.07.2018 under Annexure-17. The Petitioner once again while submitting his reply on 17.12.2018 took similar stand that documents were never provided as directed by the Tribunal and accordingly the proceeding cannot be concluded prior to providing the documents. However, without considering the said stand, the impugned order of punishment was passed on 02.07.2020 under Annexure-19 by imposing the following punishments:- “i. Withholding of five increment with cumulative effect. ii. Period of suspension to be treated as such”. Page 3 of 7 // 4 // 4.5. It is the main contention of the learned counsel for the Petitioner that while setting aside the earlier order of punishment, the Tribunal vide its order under Annexure-12 directed the Opposite Parties to provide the documents and to proceed with the enquiry and conclude the same within a period of three months, failing which the proceeding will be treated as dropped. The said order of the Tribunal though was challenged by the Opposite Party before this Court in W.P.(C) No.6063 of 2017, but this Court while upholding the direction only directed that the proceeding will be concluded within a period of four months and that deeming clause was set aside by this Court. 4.6. On the face of such order passed by this Court under Annexure-13, the Petitioner was never provided with the documents, even though such a stand was taken by the Petitioner in his reply to the 1st and 2nd show cause. 4.7. It is accordingly contended that since the direction issued by the Tribunal so confirmed by this Court was never implemented by providing the documents, the order of punishment passed under Annexure-19 is not sustainable in the eye of law and requires interference of this Court. 5. Mr. R.N. Mishra, learned Addl. Government Advocate for the State made his submission basing on the stand taken in the counter affidavit so filed by sole Page 4 of 7 // 5 // Opposite Party No.1. It is contended that without having the documents, the Petitioner submitted his written statement of defence on receipt of the memorandum. Not only that when enquiry was directed to be conducted by the Commissioner of Departmental Enquiry, Petitioner submitted his written statements of defence under Annexure-5. Therefore, it presupposes that Petitioner does not require the documents for filing of the written statement of defence. Accordingly, it is contended that the Petitioner was no way prejudiced due to non-supply of the documents as directed by the Tribunal and the impugned order has been rightly passed. 6. Having heard learned counsel for the Parties and after going through the materials available on record, this Court finds that in the proceeding so initiated against the Petitioner on 27.05.1999, when the earlier order of punishment was passed on 19.01.2004 under Annexure-10, the same was challenged before the Tribunal in O.A. No.147(C) of 2005. The Tribunal while quashing the order on the ground of non-supply of the documents passed the following order:- the “11. Thus as the disciplinary authority has not conducted enquiry following due procedure as envisaged under the O.C.S(C.C.&A) Rules, 1962, impugned order of punishment passed vide annexure-11 is liable to be quashed and accordingly, the same is quashed. However in view of the settled position of law that while setting aside the order of punishment or enquiry, Tribunal should remit the matter for fresh enquiry from the stage from which enquiry was vitiated and accordingly the matter is remitted to the disciplinary authority to proceed with the enquiry afresh after supplying of the documents in accordance with the provision under Rule-15(3) of the O.C.S.(C.C.&A) Rules, 1962 and Page 5 of 7 // 6 // giving the applicant an opportunity to defend himself conducting due enquiry on the additional charge. It may be noted that the first charge was framed as long back as on 1999 and as there has been in ordinate delay in conclusion of the proceeding we direct that the proceeding be concluded as expeditiously as possible but within a period of three months from the date of receipt of copy of this order, giving due opportunity to the applicant and in the event the proceeding will not be concluded within the stipulated period the same shall be deemed to have been quashed and the applicant will be entitled to all consequential service and financial benefit. The applicant is, however, directed to cooperate the disciplinary authority for conclusion of the enquiry in time, failing which the disciplinary authority is at liberty to proceed ex-parte as per Rule”. 6.1. It is found that the order passed by the Tribunal though was challenged before this Court in W.P.(C) No.6063 of 2017, but this Court disposed of the writ petition inter alia with the following order:-
Decision
“14. In the result the part of the order whereby and where under the departmental proceeding has been said to be vitiated in case of its non-conclusion is hereby set aside with a direction upon the competent authority to conclude the departmental proceeding at an early date, preferably within a period of four months from the date of receipt of copy of the order by providing due opportunity to the Petitioner”. 6.2. Since it is found that in terms of the order passed by the Tribunal, which has been confirmed by this Court, the Petitioner was never provided with the documents, Opposite Party No.1 as the Disciplinary Authority should not have passed the impugned order of punishment. The stand taken by Opposite Party that prior to receipt of the documents, the Petitioner had earlier submitted his written statement of defence as found from Annexure-5 is not acceptable, as the order of punishment so passed basing on such written statement of defence was quashed by the Tribunal in its order dated 01.12.2015. The Tribunal while Page 6 of 7 // 7 // quashing the earlier order of punishment clearly directed the Opposite Party to provide the documents. 6.3. Since it is not the case of the Opposite Party that the documents were ever provided to the Petitioner, this Court because of such admitted latches is inclined to quash the order of punishment so passed under Annexure-19. While quashing the same, this Court allows the Writ Petition and dispose of the same. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: .. Location: HIGH COURT OF ORISSA, CUTTACK Date: 31-Aug-2023 18:00:17 Page 7 of 7