The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) No.3168 of 2007 In the matter of an application under Section 19 of the Administrative Tribunal Act, 1985. ……………… Nabin Kishore Sahu …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioners : M/s.M.K. Mohanty, M.R. Pradhan & K.C. Tripathy. For Opp. Parties : Addl. Standing Counsel Mr.D.K.Mohanty. PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------- Date of Hearing:19.04.2023 and Date of Judgment:08.05.2023 -------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This Writ Petition has been filed by the Petitioner seeking quashing of the disciplinary proceeding so initiated under Annexure-1 as well as the order of punishment passed on 14.11.2007 under Annexure-10. 2. The facts giving rise to the filing of the present Writ Petition is that the Petitioner joined as an Assistant Civil Supply Officer-cum-ADM in Rourkela Municipality on 04.01.1995 and while continuing as such he was transferred and posted as Assistant Civil Supply Officer- // 2 // cum-DM at Sundargarh on 29.02.1996. As per the letter issued by the Civil Supply Officer-cum- DM, Odisha State Civil Supply Corporation, Sundargarh, the sale proceeds of the Mobile Van Unit of Panposh Sub-Division was to be deposited in the Revenue Account of the Asst. Civil Supply Officer, Rourkela by the Unit Head-cum-Asst. Civil Supply Officer, Panposh Sub-Division. 3. In the special audit held on 29.07.2000 when it is found that the accountant who was due to make the deposits has not deposited the same and has misappropriated a sum of Rs.5,51,866.35/- and during incumbency of the Petitioner in Rourkela Municipality, the misappropriation comes to Rs.40,937.35/-, a proceeding was initiated against the Petitioner on 12.12.2000 under Annexure-1. The sum and substance of the charges so framed against the Petitioner was with regard to mis-appropriation of an amount of Rs.40,937.35/- during the incumbency of the Petitioner as Asst. Civil Supply Officer-cum-Asst. District Manager, Orissa State Civil Supply Corporation Limited Rourkela for the period from 04.01.1995 to 31.08.1995. On the ground of such misappropriation of the amount, the Petitioner was charged with negligence and dereliction of duty in the proceeding in question. Page 2 of 11 // 3 // 3.1. On receipt of the charges, the Petitioner not only submitted his written statement of defence under Annexure-2 on 30.07.2011 indicating therein that the Petitioner has no role with regard to the non-deposit of the amount by the Accountant during the period the Petitioner was working in Rourkela Municipality. In spite of such reply given by the Petitioner, the disciplinary authority when directed for enquiry of the matter with due appointment of the Enquiry Officer and Marshalling Officer, the Petitioner also participated in the enquiry. Though the Enquiry Officer held the Petitioner guilty of the charges, but while submitting the report under Annexure-3, he clearly opined that the misappropriated amount may be recovered from the legal heirs of the Accountant and all the officer involved in this misappropriation be punished equally. 3.2. On the face of such finding of the Enquiry Officer, the Petitioner though submitted his reply to the 1st show cause under Annexure-5, but the disciplinary authority without following the provision contained under Rule-15(10)(i)(a)(b) of the OCS (CC&A) Rules, 1962 (hereinafter called as the ‘Rules’) issued the 2nd show cause on 20.07.2007 under Annexure-6 by proposing to impose penalty of withholding of one increment without cumulative effect and to recover an amount of Rs.40,937/- from the Petitioner. The Page 3 of 11 // 4 // Petitioner though submitted his reply to the said 2nd show cause under Annexure-9, but the disciplinary authority without proper appreciation of the stand taken by the Petitioner in the reply to the 2nd show cause under Annexure-9, imposed the order of punishment vie order dated 14.11.2007 under Annexure-10 and hence the present writ petition.
Legal Reasoning
4. Mr. M. Mohanty, learned counsel for the Petitioner contended that the Petitioner continued as Asst. Civil Supply Officer-cum- Asst. District Manager Odisha State Civil Supply Corporation Ltd., Rourkela, for the period from 04.01.1995 till 31.05.1995. Basing on the special audit conducted when it was found that the Accountant dealing with the Mobile Van Account of Panposh Sub-Division has misappropriated a sum of Rs.5,51,866.35/- and during the continuance of the Petitioner at Rourkela, the said misappropriation amount comes to Rs.40,937.35/-, the proceeding under Annexure-1 was initiated against the Petitioner under Rule-17 of the Rules. 4.1. The sum and substance of the charges so framed against the Petitioner is with regard to the misappropriation caused by the Accountant of the Mobile Van Unit during the incumbency of the Petitioner at Rourkela for the period from 04.01.1995 to 31.05.1995. Page 4 of 11 // 5 // 4.2. It is contended that the Petitioner though submitted a detailed reply to the charges vide Annexure-2, but the enquiry officer on not being satisfied with the reply proceeded with the enquiry by appointing the Enquiry Officer and Marshalling Officer. Even though the Enquiry Officer conducted the enquiry without following the relevant provision of Rule-15 of the Rules, but while submitting the enquiry report, he wrongly held the Petitioner guilty of the charges and gave his finding as follows:-
Decision
“In view of the above findings the charges are established for lack of Effective supervision and negligence in duty. Based on the findings of the enquiry the following facts are emerged. 1. All the charges are established. 2. 3. The Delinquent should never be given field assignment any more specifically financial matters. The misappropriate amount may be recovered from the legal heirs of Sri Tripathy out of his deposits. 4. All the officers involved in this scam be punished equally. findings are merely suggested before the The above Disciplinary Authority. I would request the Disciplinary Authority to impose suitable penalty so that, the delinquent Officer would mend his irresponsible behavior and act as a faithful and sincere Govt. Servant”. 4.3. It is contended that on receipt of the Enquiry report under Annexure-3, the Petitioner when was issued with the 1st show cause to submit his representation against the findings under Annexure-4, the Petitioner gave his reply to the 1st show cause under Annexure-5. It is contended that even though an Enquiry Officer in his report under Page 5 of 11 // 6 // Annexure-3 did not held the Petitioner liable for any recovery and clearly held that the misappropriated amount be recovered from the legal heirs of the Accountant of the Mobile Van unit Shri Umakanta Tripathy but the disciplinary authority without following the statutory provision as contained under Rule-15(10)(i)(a)(b) of the Rules issued the 2nd show cause on 20.07.2007 under Annexure-6 by proposing to impose the punishment of withholding of one increment without cumulative effect and to recover a sum of Rs.40,937/- from the present petitioner. 4.4. Learned counsel for the Petitioner contended that as provided under Rule-15(10)(i)(a)(b), if the disciplinary authority does not agree with the finding of the Enquiry Officer, then while issuing the 2nd show cause he has to give a disagreement note citing the reasons for not agreeing with the finding of the Enquiry Officer. 4.5. It is contended that while issuing the 2nd show cause on 20.07.2007 under Annexure-6, no such disagreement note was either enclosed to the show cause nor anything was indicated about the disagreement in the body of the 2nd show cause. Since the 2nd show cause issued under Annexure-6 does not contain any disagreement note, which is a mandatory provision as provided under the Rules, the said show cause is a nullity in the eye of law. Page 6 of 11 // 7 // In support of his aforesaid submission, Mr. Mohanty, learned counsel for the Petitioner relied on the decision of the Hon’ble Apex Court in the case of Yoginath D. Badge vs. State of Maharashtra & Another reported in (1999) 7 SCC-739. Hon’ble Apex Court in Para-29 of the said judgment has held as follows:- “29. We have already extracted Rule 9(2) of the Maharashtra Civil Services (Discipline & Appeal) Rules, 1979 which enables the Disciplinary Authority to disagree with the findings of the Inquiring Authority on any article of charge. The only requirement is that it shall record its reasoning for such disagreement. The Rule does not specifically provide that before recording its own findings, the Disciplinary Authority will give an opportunity of hearing to a delinquent officer. But the requirement of "hearing" in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before Disciplinary Authority finally disagrees with the findings of the Inquiring Authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the Inquiring Authority do not suffer from any error and that there was no occasion to take a different view. The Disciplinary Authority, at the same time, has to communicate to the delinquent officer the "TENTATIVE" reasons for disagreeing with the findings of the Inquiring Authority so that the delinquent officer may further indicate that the reasons on the basis of which the Disciplinary Authority proposes to disagree with the findings recorded by the Inquiring Authority are not germane and the finding of "not guilty" already recorded by the Inquiring Authority was not liable to be interfered with”. 4.6. It is accordingly contended that since the statutory provision contained under Rule-15(10)(i)(a)(b) of the Rules has not been followed by the Opposite Party No.1, while issuing the 2nd show cause, the order of punishment so passed against the Petitioner under Annexure-10 is not sustainable in the eye of law. Page 7 of 11 // 8 // 5. Mr. D.K. Mohanty, learned Addl. Standing Counsel on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that the Petitioner joined as Asst. Civil Supply Officer, Rourkela Municipality on 04.01.1995 and he continued as such till 29.02.1996. One Shri U. K. Tripathy has to deposit the sale proceeds of the Mobile Van Unit in the Revenue Account of Asst. Civil Supply Officer-cum-Addl. District Manager, Rourkela in terms of the order passed by the District Manager of the Corporation vide his letter dated 24.05.1988. Since Mr. Tripathy misappropriated the sale proceeds to the tune of Rs.40.937.35/- during the continuance of the Petitioner at Rourkela the proceeding under Annexure-1 was issued initiated against him. 5.1. It is contended that after following all the paraphernalia, the Enquiry Officer while submitting the enquiry report under Annexure-3 held the Petitioner guilty of the charges and recommended not to give any field assignment with regard to financial matter to the Petitioner. The Enquiry Officer also held that the Officer involved in the misappropriation to be punished equally. On receipt of the Enquiry Officer, the Petitioner was provided with the 1st show cause and 2nd show cause under Annexures-4 & 6 and on receipt of the reply to the show cause, Opposite Page 8 of 11 // 9 // Party No.1 rightly passed the order of punishment on 14.11.2007 under Annexure-10. 5.2. It is contended that the punishment so imposed i.e., stoppage of one increment without cumulative effect is in the nature of a minor penalty under Rule-13 of the Rules and since because of the inaction of the Petitioner, the Accountant misappropriated a sum of Rs.40,937/- during the tenure of the Petitioner, the amount was directed to be recovered from the Petitioner. It is accordingly contended that no illegality or irregularity has been committed by the Opposite Party No.1, while passing the order of punishment under Annexure-10. 6. I have heard Mr.M.K. Mohanty, learned counsel for the Petitioner and Mr.D.K. Mohanty, learned Addl. Standing Counsel for the State-Opposite Parties. On their consent, the matter was taken up for final disposal at the stage of admission with due exchange of pleadings. 7. Having heard learned counsel for the Parties and after going through the materials available on record, it is found that the proceeding against the Petitioner was initiated under Annexure-1 on 12.12.2020 basing on the special audit report so framed with regard to the misappropriation amount in the Mobile Van Account of Panposh Sub- Page 9 of 11 // 10 // Division by one Mr. U.K. Tripathy, the then Accountant working under Panposh Sub-Division. As out of the total mis-appropriation amount, the misappropriation during the tenure of the Petitioner was assessed at Rs.40,937/-, the proceeding was accordingly initiated under Annexure-1. But it is found that the Enquiry Officer after conducting the enquiry though held the Petitioner guilty of the charges but opined that the misappropriated amount be recovered from the legal heirs of Shri U.K. Tripathy out of his deposit. On the face of such finding of the enquiry officer, Opposite Party No.1 while issuing the 2nd show cause on 20.07.2007 under Annexure-6 should have given a disagreement note for not agreeing with the finding of the enquiry officer. Since it is found that the Opposite Party No.1 while issuing the 2nd show cause under Annexure-6 never gave his disagreement note in terms of the provision contained under Rule-15(10)(i)(a)(b) of the Rules, for recovery of the amount from the Petitioner, the 2nd show cause so issued under Annexure-6 with the proposed punishment is not sustainable in the eye of law. 7.1. The Petitioner though gave a detailed reply to the 2nd show cause, but the Opposite Party No.1 passed the order of punishment by directing for recovery of Rs.40,937/- from the Petitioner and stoppage of one increment without Page 10 of 11 // 11 // cumulative effect. Taking into account the non-compliance of the provision contained under Rule-15(10)(i)(a)(b) of the Rules and the finding of the Enquiry Officer, this Court is inclined to interfere with the impugned order of punishment under Annexure-10, so far as it relates to recovery of Rs.40,937/- from the Petitioner. This Court is not inclined to entertain with the order of punishment so far as it relates to stoppage of one increment without cumulative effect. While so interfering, this Court is inclined to quash the order of punishment so far as it relates to recovery of Rs.40,937/- from the Petitioner. While quashing the same, this Court allows the Writ Petition in part. 8. With the aforesaid observations and directions, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 8th of May, 2023/Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Designation: Senior Stenographer Reason: ... Location: HIGH COURT OF ORISSA, CUTTACK Date: 18-May-2023 17:37:02 Page 11 of 11