Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK AFR W.P.(C) NO. 18077 OF 2023 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------------- Union of India and others ..… Petitioners -Versus- Janakar Patra ….. Opp. Party For petitioners : Mr. M.K. Pati, Central Government Counsel For opp. party : M/s. Abhiram Swain, N.C. Moharana & A. Swain, Advocates P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE G. SATAPATHY DECIDED ON : 08.05.2024 DR. B.R. SARANGI, J. The Union of India and its functionaries of Railways have filed this writ petition seeking to quash the order dated 31.03.2023 passed in O.A. No. 65 of 2020 under Annexure-11, by which the Central Administrative Tribunal, Cuttack Bench, Cuttack, while quashing the order dated 05.04.2016 Page 1 of 13 compulsorily retiring opposite party from service, has directed the petitioners to grant all consequential service and financial benefits to the opposite party. 2. The factual matrix of the case, in a nutshell, is that the opposite party, while working as Sr. Clerk in the office of Dy. Chief Electrical Engineer, Carriage Repair Workshop, Mancheswar, remained unauthorised absent from duty on many occasions without any prior intimation/ sanction from the controlling officer. In spite of counselling by his supervisors/officers, he could not amend himself and deliberately disobeyed the instruction of his supervisors/officers. For these irregularities, he was counselled to be sincere on his duty and get the leave sanctioned prior to availing it. But he deliberately disobeyed the instructions/ advice of his supervisors and officers. Since he remained unauthorised absent from duty for the period from 09.07.2012 to 19.7.2012, the then controlling officer, i.e., WPO/MCS, vide letter dated 19.07.2012, advised him to resume duty immediately, but, instead of joining duty, he threatened the then WPO/MCS in his chamber Page 2 of 13 compelling him for post facto sanction of leave. For his indiscipline attitude and lack of devotion to duty, he was imposed with a punishment of withholding of next increment for a period of 01 (one) year w.e.f. 01.07.2013 with non-cumulative effect, vide punishment notice dated 17.10.2012, in violation of Rule 3.1(ii) of Railway Service Conduct Rules, 1966. Before completion of the above punishment, another punishment of stoppage of increment for a period of two (02) years w.e.f. 01.07.2014 with non-cumulative effect was imposed on the opposite party, vide punishment notice dated 11.2.2013, for his lack of devotion to duty, which was un-becoming on the part of a railway servant, in violation of Rules 3.1 (ii) and 9(iii) of Railway Service Conduct Rules, 1966. 2.1. In compliance to the order dated 01.05.2013 of this Court passed in CONTC No. 1887/2012 (arising out of W.P.(C) No.8793/2004), the opposite party, vide order dated 28.05.2013, was released from Personnel Department to Electrical Department and joined in Electrical Department with effect from 29.05.2013 by submitting his joining report. Thereafter, the Dy. Page 3 of 13 CEE/MCS issued section transfer order of the opposite party, along with other three staff, vide order dated 03.07.2013, within the same establishment, i.e., in Electrical Department in terms of Dy.CEE/MSC’s release letter for further posting. But the opposite party refused to accept the above order of change of section and indulged in habitual practice of remaining unauthorized absent from duty without any prior permission from the competent authority. The opposite party abused the staff for not allowing him to work in personnel branch, for which a major penalty charge sheet was issued under Rule-9 of the Railway Servants Discipline and Appeal Rules, 1968, vide charge memorandum dated 09.08.2014, with the following article of charges:-
Legal Reasoning
approached this Court in the present writ petition. 3. Mr. M.K. Pati, learned Central Government Counsel appearing for the petitioners vehemently contended before this Court that the Tribunal has committed gross error apparent on the face of the record by setting aside the order of punishment of compulsory retirement issued in favour of the opposite party. As such the order of punishment, having been passed by following due procedure and complying with the principles of natural justice, the Tribunal has committed error apparent on the face of record in quashing the same. Therefore, the order impugned so passed by the Tribunal cannot be sustained in the eye of law and the same is liable to be set aside. 4. Mr. A. Swain, learned counsel appearing for the opposite party contended that the opposite party was Page 8 of 13 not served with a notice, nor was he given opportunity of hearing, and consequentially the principles of natural justice were not complied with while punishment of compulsory retirement was imposed. Therefore, the order of punishment was liable to be quashed and, as such, the Tribunal, considering the fact that there was violation of principles of natural justice, quashed the order of punishment of compulsory retirement. In the meantime, since the opposite party has retired from service, now the question of any de-novo inquiry for the same does not arise. Therefore, the order impugned passed by the Tribunal is well justified and the same does not call for any interference by this Court at this stage. 5. This Court heard Mr. M.K. Pati, learned Central Government Counsel appearing for the petitioners and Mr. A. Swain, learned counsel appearing for the opposite party in hybrid mode and perused the records. Pleadings have been exchanged between the parties and with the consent of learned counsel for the Page 9 of 13 parties, the writ petition is being disposed of finally at the stage of admission. 6. The specific case of the opposite party is that the order of compulsory retirement dated 05.04.2016 was not served on him and the same came to his knowledge when a counter affidavit was filed on 28.01.2020 before the Tribunal in O.A. No. 746 of 2019. As is evident from the case records, on 09.08.2014, charge sheet was issued for major penalty proceedings on the allegation that the opposite party wilfully abused Shri P.C. Swain, Ch. O.S. on 31.07.2014 at 16.30 hrs on duty period and used very filthy and un-parliamentary language. He also abused Shri P.K.V. Ramana, Sr. Clerk on 04.08.2014 at 10.30 hrs in un-parliamentary language. On receipt of charge sheet, he submitted his reply, on 26.12.2014, denying the charges levelled against him. The matter was inquired into and the I.O. submitted his report holding him guilty of the charges levelled against him. The report of the I.O. was not supplied to the opposite party before imposition of punishment. But the stand of the petitioners is that they Page 10 of 13 had sent the same by speed post, which remained undelivered and, therefore, the same was posted in the notice board on 22.02.2016. Though, he was available in office, there was no reason not to serve him the report of the I.O. Since the copy of the inquiry report was not served on the opposite party and, as such, the order of punishment of compulsory retirement dated 05.04.2016 was also not served on him, and the same came to his knowledge from the counter affidavit filed before the Tribunal on 28.01.2020 in O.A. No. 746 of 2019, there was gross non-compliance of principles of natural justice. As such, the imposition of punishment of compulsory retirement was passed in a mechanical manner without application of mind. Thereby, the Tribunal is well justified in passing the order impugned, by quashing the order of punishment of compulsory retirement issued in favour of the opposite party. In the normal course, had the opposite party been continuing in service, the matter would have been remanded back to the authority concerned for de-novo inquiry, but, in the meantime, since the opposite party has already retired Page 11 of 13 from service, the Tribunal thought it proper not to remand the same, while quashing the order of punishment of compulsory retirement dated 05.04.2016, and accordingly directed for release of all consequential service and financial benefits in favour of opposite party. In the considered opinion of this Court, the Tribunal has rightly done so. 7. Mr. M.K. Pati, learned counsel appearing for the petitioners contended before this Court that there were certain documents, which had not been placed on record at the time of hearing before the Tribunal, but he wants to rely upon the same before this Court by filing the same along with the written notes of argument. It is made clear that those documents had neither been formed part of the record of the Tribunal, nor in the record of this Court, save and except filed along with the written notes of argument. Therefore, this Court is not inclined to take into consideration those documents as it is a certiorari proceeding. Page 12 of 13 8. In view of the above, this Court is of the considered view that the order dated 31.03.2023 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 260/00065 of 2020 does not require any interference by this Court. 9.
Arguments
“ARTICLE-I: That the said Sri Janakar Patra, Sr. Clerk under Dy. CEE/MCS of CRW/MCS has willfully abused to Sri P.C.Swain, Ch.OS(Rectt) in Personnel Branch office of CRW/MCS on 31.07.2014 at 16.30 hrs. on duty period as detailed in the statement of imputation. ARTICLE-II: That the said Sri Janakar Patra, Sr. Clerk under DY. CEE of CRW/MCS has abused to Sri P. C. Swain, Ch. OS (Rectt) of Personnel Branch in his chamber on 31.07.2014 at 16.30 hrs. with filthy and unparliamentarily language as well as Sri Janakar Patra has also threatened to Sri P.K.V. Pamana, Sr. Clerk hrs with unparliamentarily language.” 04.08.2014 10.30 on at Page 4 of 13 2.2. Pursuant to such memorandum of charge, inquiry was conducted and the opposite party was found guilty of the offences in the inquiry conducted by the Inquiry Officer for violation of Rule 3.1 (ii) & (iii) of Railway Service Conduct Rules, 1966 and the opposite party, vide order dated 05.04.2016, was imposed with the punishment of compulsory retirement from Railway Service by the disciplinary authority. The opposite party, on 10.09.2016, filed a representation to the appellate authority, i.e., Chief Workshop Manger. CRW/ Mancheswar to set aside the order of punishment dated 05.04.2016, but the appellate authority confirmed the order of the disciplinary authority. Therefore, the petitioner approached the Tribunal by filing O.A. No. 260/00065 of 2020. 2.3. According to the petitioners, the issues raised by the opposite party in the aforementioned Original Application had already been dealt with and rejected by the Tribunal in O.A. No. 445 of 2013, confirmed by this Court in W.P.(C) No. 3394 of 2018 and also in W.P.(C) No. 5210 of 2019 followed by Revision Petition No. 202 of Page 5 of 13 2018 and thereafter in O.A. No. 746 of 2019. While dismissing O.A. No. 746 of 2019 vide order dated 13.03.2020, the Tribunal observed as follows:- “Having regard to the checkered career and genesis of the matter as mentioned above, we are of the considered view that the points which the applicant in the present OA have now urged, have already been set at rest in the previous round of litigation in OA No.260/00445/2013 and as quoted above, the main relief sought by the applicant therein for direction to be issued to respondent- railways to antedate his promotion at par with Private Respondent No.5 to 8 was held to be not tenable in law. This view of the Tribunal has also been upheld by the Hon'ble Court in WP(C) No.3394 of 2018. As it reveals, vide Paragraph-8(i), the applicant has again reiterated the same prayer in the present O.A. We have examined the relief(s) sought for by the applicant in the present OA vis-a- vis the order of this Tribunal in O.A. No.260/00445 of 2013. The prayer for quashing of the impugned orders vide Paragraphs-8(vi) and (vii) of the present OA cannot be entertained in the year 2019, the cause of action for challenging the same being hopelessly time barred. On a through scrutiny and examination of the materials on record, we are of the considered view that the OA as laid by the applicant is a frivolous one and hence, not justiciable, apart from same being hit by the constructive res judi cata. Accordingly, the same is dismissed at the very threshold. No costs." 2.4. After dismissal of the aforesaid O.A., the opposite party filed M.A. No.262/2020 (RA No.13/2020) for review of the order dated 13.03.2020 passed in O.A. No.746 of 2019. Apart from the above, the opposite party had also filed M.A. No.84/2020. But all such cases were Page 6 of 13 dismissed vide order dated 01.07.2020. The order of compulsory retirement was served in the Tribunal itself during pendency of O.A. No 445/2013, which fact has been reflected in the order dated 02.11.2017 of the Tribunal. The order of compulsory retirement of the opposite party, which was passed by the disciplinary authority, vide punishment notice dated 05.04.2016, was sent to the home address of the opposite party, on 06.04.2016, through speed post, as mentioned in the service records, but it was returned undelivered to the office with remarks of the postal authority dated 07.04.2016 that “refused and returned”. Therefore, according to the petitioners, the opposite party was well aware about the imposition of punishment of compulsory retirement. The inquiry report was also sent to the opposite party, vide office letter dated 07.09.2015, to his home address, as mentioned in his service records, but the said letter was returned by the postal authority on 18.09.2015. Aggrieved by the imposition of penalty dated 05.04.2016, the petitioner approached the Tribunal by filing O.A. No. 260/00065 of 2020. The Tribunal, vide Page 7 of 13 order dated 31.03.2023, quashed the punishment of compulsory retirement and directed the present petitioners to grant all consequential service and financial benefits. Therefore, the petitioners have
Decision
Thus, the writ petition merits no consideration and the same is hereby dismissed. But, however, in the facts and circumstances of the case, there shall be no order as to costs. (DR. B.R. SARANGI) JUDGE G. SATAPATHY, J. I agree. (G. SATAPATHY) JUDGE Orissa High Court, Cuttack The 08th May, 2024, Arun Signature Not Verified Digitally Signed Signed by: ARUN KUMAR MISHRA Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-May-2024 16:49:38 Page 13 of 13