The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.19661 of 2022 Bhisma Patra …. Petitioner Mr. G.R. Sethi, Advocate State of Odisha & Ors. -versus- …. Opp. Parties Mr. P.K. Panda, ASC CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 25.08.2025 Order No. 06. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the Parties. 3. Petitioner has filed the present Writ Petition inter alia challenging the order of punishment passed by the disciplinary authority-Opposite Party No.4 vide order
Legal Reasoning
dtd.20.07.2019 under Annexure-6, further confirmed by the appellate authority-Opposite Party No.3 vide order dtd.23.04.2021 under Annexure-9. Vide order dtd.20.07.2019, Petitioner was dismissed from service w.e.f. 20.07.2019 and such an order was passed in the proceeding initiated against the Petitioner vide Memorandum dtd.27.12.2017 under Annexure-1. // 2 // 4. Learned counsel appearing for the Petitioner contended that the proceeding was initiated inter alia with the following charges:- “CHARGE C/1215 Bhisma Patra of Headquarters is charged with gross misconduct, unauthorized absence, dereliction in duty and disobedience of order in that:- The charged constable remained authorized absent from duty w.e.f.14.09.17 evening roll call as reported by R I of Police (General), Mayurbhanj. He was recalled vide this office message no.1720/RO dated 18.09.17 directing him to join in duty immediately. But the charged constable did not respond to recall order. After remaining 76 days unauthorized absent from duty he reported duty on 30.11.17. The conduct exhibited by a to gross member of disciplined misconduct which warrants departmental action as per PMR-843. force amounts The charged constable is directed to show cause within 15 days of receipt of this charge as to why he shall not be suitably dealt with in the event of the charge being held to be proved against him. Any representation that he may wish to make in this regard in writing will be duly considered by the Competent Authority to pass final orders beforę passing such orders”. 4.1. It is contended that the proceeding was initiated with regard to the charge that Petitioner remained absent for a period of 76 days i.e. from 18.09.2017 to 30.11.2017. 4.2. It is contended that Petitioner on receipt of the charges not only filed his written statement of defence, but also participated in the enquiry. Not only that the Enquiry Officer while submitting the report under Page 2 of 10 // 3 // Annexure-2, also opined that a lenient view be taken against the Petitioner though Petitioner was found guilty of the charges. 4.3. Basing on such enquiry report, Petitioner was issued with the 1st and 2nd show cause. But while issuing the 2nd show cause vide letter dtd.01.07.2019 under Annexure-4, the disciplinary authority-Opposite Party No.4 proposed to impose the punishment of dismissal from service, taking in to account the unauthorized absence for different period starting from 17.09.2008 to 13.09.2017 amounting to 1536 days. 4.3. It is contended that since the proceeding was initiated only with the charge that Petitioner remained unauthorized absent for the period from 14.09.2017 to 30.11.2017 for 76 days, the entire period of absence of the Petitioner for different spell, starting from 17.09.2008 to 13.09.2017 could not have been taken as a ground, while proposing the punishment of dismissal of the Petitioner from his services, vide the 2nd show cause issued under Annexure-4.
Legal Reasoning
4.4. It is contended that unauthorized absent of 1536 days, swayed away the mind of the disciplinary authority –Opposite Party No.4 while proposing the punishment of dismissal from service. 4.5. It is contended that Petitioner though submitted a reply to the 2nd show-cause, but without proper Page 3 of 10 // 4 // appreciation the same and the charge framed, the disciplinary authority-Opposite Party No.4 dismissed the Petitioner from his services, vide the impugned order dtd.20.07.2019 under Annexure-6. 4.6. It is contended that Petitioner though preferred an appeal against such an order, but the appellate authority-Opposite Party No.3 without proper appreciation of the grounds taken in the appeal, rejected the same vide the impugned order dtd.23.04.2021 under Annexure-9. 4.7. It is contended that since in the proceeding the charge was only with regard to the absence of the Petitioner for the period from 18.09.2017 to 30.11.2017 i.e. for a period of 76 days, action of the disciplinary authority-Opposite Party No.4 in taking the entire absence of the Petitioner for the period from 17.09.2008 to 13.09.2017 for 1536 days on different spell could not have been taken as a ground, while proposing dismissal of the Petitioner from his services vide the 2nd show cause and subsequently imposed vide the impugned order of punishment, passed on 20.07.2019 under Annexure-6. 4.8. It is contended that since no such charge was ever framed with regard to absence of the Petitioner for a period of 1536 days during the period 17.09.2008 to 13.09.2017, the said fact could not have been taken as Page 4 of 10 // 5 // a ground, while proposing dismissal of service of the Petitioner from his services, and imposition of such punishment against the Petitioner. 4.9. It is accordingly contended that punishment of dismissal imposed, taking into account the nature of charges framed against the Petitioner vide Memorandum dtd.27.12.2017 under Annexure-1, is not sustainable in the eye of law. 4.10. It is accordingly contended that the order of punishment passed by the Disciplinary Authority- Opposite Party No.4 under Annexure-6, confirmed by the appellate authority - Opposite Party No.3 vide order dtd.23.04.2021 under Annexure-9, are not sustainable in the eye of law and requires interference of this Court. 5. Mr. P.K. Panda, learned Addl. Standing Counsel for the State on the other hand made his submissions basing on the stand taken in the counter affidavit. It is contended that even though the proceeding was initiated with regard to unauthorized absence for the period from 18.09.2017 to 30.11.2017 under Annexure-1, but since the disciplinary authority- Opposite Party No.4 found that Petitioner from 17.09.2008 to 13.09.2017 has remained unauthorized absent on different spells covering 1536 days, the said unauthorized absent was taken into consideration by Page 5 of 10 // 6 // Opposite Party No.4 in addition to the charges framed under Annexure-1. It is also contended that charges framed in the proceeding was duly proved by the enquiry officer in his report under Annexure-2. 5.1. It is contended that taking into account the past conduct of the Petitioner in remaining unauthorized absent for 1536 days on different spells, the same was rightly taken as a ground, while proposing the punishment of dismissal from service vide the 2nd show cause issued on 01.07.2019 under Annexure-4. 5.2. It is also contended that on receipt of the reply to the 2nd show-cause, Opposite Party No.4 on due appreciation of the same, imposed the punishment of dismissal from service vide order dtd.20.07.2019 under Annexure-6. 5.3. It is also contended the appellate authority taking into account the past conduct of the Petitioner and the charges framed under Annexure-1, upheld the order of punishment, while dismissing the appeal vide order dtd.23.04.2021 under Annexure-9. 5.4. It is contended that taking into account the past conduct of the Petitioner in remaining unauthorized absent in different spells starting from 17.09.2008 to 13.09.2017 and the charges framed in the proceeding, order of dismissal has been rightly passed and it requires no interference of this Court. Page 6 of 10 // 7 // 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioner while continuing as a Constable, the proceeding in question was initiated against him on 27.12.2017 under Annexure-1. As found the proceeding was initiated with the charge that Petitioner remained unauthorized absent for the period from 18.09.2017 to 30.11.2017, for 76 days. 6.1. Even though the charge was duly proved, but as found from the enquiry report, the Enquiry Officer opined take a lenient view against the Petitioner. On the face of such view expressed by the Enquiry Officer, while issuing the 2nd show cause under Annexure-4, Opposite Party No.4 proposed the punishment of dismissal from service. It is found that the disciplinary authority-Opposite Party No.4 while proposing the punishment of dismissal from services took into consideration the period of unauthorized absent of the Petitioner from 17.09.2008 to 13.09.2017 for 1536 days. 6.2. It is also found that the disciplinary authority- Opposite Party No.4 while imposing the punishment of dismissal vide the impugned order take into account the unauthorized absent for the period from 17.09.2008 to 13.09.2017. The appellate authority on being moved also confirmed the order of punishment by Page 7 of 10 // 8 // taking note of the unauthorized absent of the Petitioner from 17.09.2008 to 13.09.2017. 6.3. Since the proceeding dtd. 27.12.2017 under Annexure-1 was initiated with the charge that Petitioner has remained unauthorized absent for the period from 18.09.2017 to 30.11.2017, it is the view of this Court the disciplinary authority while disposing the proceeding, could not have taken into consideration the period of unauthorized absence of the Petitioner starting from 17.09.2008 to 13.09.2017. 6.4. Since the proceeding under Annexure-1 was never initiated with the charge that Petitioner has remained unauthorized absent for 1536 days on different spells and the proceeding was only initiated with regard to unauthorized absent of the Petitioner from 18.09.2017 to 30.11.2017, it is the view of this Court that the period of unauthorized absent starting from 17.09.2008 to 13.09.2017 on different spell could not have been taken as a ground, while proposing the punishment of dismissal and imposing the punishment vide order dtd. 20.07.2019 under Annexure-6. 6.5. As found the appellate authority while rejecting the appeal vide order dtd.23.04.2021 under Annexure- 9 also take into consideration such unauthorized absent of the Petitioner from 17.09.2008 to 13.07.2017. Page 8 of 10 // 9 // 6.6. Since no such charge was ever framed with regard to the unauthorized absent of the Petitioner from 17.09.2008 to 13.07.2017 on different spells, and considering the nature of charge framed under Annexure-1, it is the view of this Court on the face of such charge, no order of dismissal could have been passed and such an order of punishment is not in consonance with the charge framed. 6.7. In view of the aforesaid analysis, this Court is inclined to quash the order of punishment passed by Opposite Party No.4 vide order dtd.20.07.2019 under Annexure-6, further confirmed by the appellate authority-Opposite Party No.3 vide order dtd. 23.04.2021 under Annexure-9. While quashing both the orders, this Court remits the matter to Opposite Party No.4 to take a fresh decision with regard to the nature of punishment to be imposed, taking into account the charge framed in the proceeding. 6.8. This Court directs Opposite Party No.4 to commence the proceeding from the stage of issuance of 2nd show cause and dispose of the proceeding in accordance with law taking into account the view expressed by this Court hereinabove, within a period of four (4) months from the date of receipt of this order. Petitioner however is directed to co-operate for disposal of the proceeding. Page 9 of 10 // 10 //
Decision
7. Accordingly, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Sep-2025 18:42:07 Page 10 of 10