The High Court · 2023
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). No. 17429 of 2019 (An Application under Articles 226 & 227 of the Constitution of India) --------------- AFR Ratanlal Bhuyan ...… Petitioner -Versus- State of Odisha & Ors .... Opposite Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : M/s. S.K.Dash, For Opp. Party : Mr. S.Pattnaik, S.Das, P.Das, A. Sahoo. Advocates Additional Government Advocate for the State. _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 9th August 2023 SASHIKANTA MISHRA, J. The petitioner, who was working as an Assistant Teacher, had been initially appointed in Kalisahi Primary School under Dasarathpur Block in the district of Jajpur under Rehabilitation Assistance Scheme in place of his father, who died in harness while working in the said school. Page 1 of 10 He was transferred to various places and was finally posted at Binjharpur Primary School as Assistant Teacher. He was placed under suspension by order dated 20.12.2014 of the Block Education Officer, Binjharpur pending drawl of disciplinary proceedings. He received subsistence allowance amounting to 50% of his pay. He was issued with a memorandum containing articles of charges by letter dated 20.06.2017 in Departmental Proceeding No. 803 of 2017. The articles of charges as per the Annexure-2 to the memorandum reads as follows:
Legal Reasoning
Article-1 Mr. Ratanlal Bhuyan being a government Servant should not entered any pecuniary arrangement with another person so as to offered any kind of advantage in any un-authorised, manner. But you have been involved by contributing NEWS to the esteemed daily the SAMAJ, Singhpur. Which is gross violation of Government Servant Conduct Rule 1959. Article-II Mr. Ratanlal Bhuyan was involved by contributing NEWS to the esteemed daily the SAMAJ, Singhpur and obtained an identity card from the Collector & District Election Officer, Jajpur as NEWS reporter for entry into pooling booths and counting hall in the last General Election. Article-III Mr. Ratanlal Bhuyan being a Government Servant to remain absent from working place un-authorisedly and gross violation of Government Servant conduct rule on the ground of gross moral misconduct and negligence in duty. Page 2 of 10 2. An inquiry officer being appointed, the charge was duly inquired into in which the petitioner participated. On completion of said inquiry, the inquiring officer submitted his report on 20.07.2017 with the finding that the charges against the delinquent teacher could not be proved for want of supporting documents or any evidence and that he may be exonerated from the charges with his suspension being treated as on duty. Accordingly, the Block Education Officer by letter dated 31.07.2017 wrote to the District Education Officer, Jajpur requesting for regularisation of the period of suspension of the petitioner i.e. from 20.12.2014 to 19.05.2015. While such letter was pending, the disciplinary authority initiated another proceeding and by order dated 06.11.2017, appointed another inquiring officer to inquire into charges purportedly as per Sub-rule (2) of Rule 14 of OCS (CCA) Rules, 1962 on the same set of charges by observing that the earlier inquiring officer having heard and recorded the whole/part of the evidence has since been transferred/ not available and it is necessary to appoint another officer as inquiring officer to inquire into the charges. The petitioner was also granted opportunity to put-forth his Page 3 of 10 defence. After completion of the second inquiry, the charges were found to have been proved and accordingly the inquiring officer suggested the following punishments: (1) He may be warned not to commit such irregularities in future. (2) One increment may be stopped without cumulative effect. Being aggrieved, the petitioner has approached this Court seeking the following relief: i) ii) iii) iv) v) vi) “It is therefore, most humbly prayed that this Hon’ble Court be graciously pleased to Admit the writ application. Call for the record. Issue Rule Nisi calling upon the opposite parties to show cause as to why the impugned order dated 11.04.2018 under Annexure-12 passed by the District Education Officer, Jajpur shall not be quashed. If the opposite parties do not show cause or show in sufficient cause issue a writ in the nature of certiorari or any other appropriate writ/writs, order/orders, direction/directions quashing dated impugned 11.04.2018 under Annexure-12 passed by the District Education Officer, Jajur.
Decision
order the Issue a writ in the nature of mandamus or any other writ/writs, direction/directions directing the opposite parties to take action in terms of the report submitted by the 1st Inquiry Officer dated 20.07.2017 within a reasonable time to be stipulated by this Hon’ble Court and further direct the opposite parties to regularise the such pass other order/orders, And/or direction/directions as this Hon’ble Court may deems fit and proper for the ends of justice. And for the said act of kindness, the petitioner as in duty bound shall every pray.” 3. A counter affidavit has been filed by the opposite party No.5 (BEO) seeking to rebut the contentions put-forth in the Page 4 of 10 writ application. While the basic facts have not been disputed, the appointment of the second inquiry officer has been justified on the ground that the petitioner was guilty of serious misconduct in service. 4. Heard Mr. P.Das, learned counsel for the petitioner and Mr. S. Pattnaik, learned Additional Government Advocate for the State. 5. Mr. Das assails the impugned order of punishment dated 11.04.2018 by contending that once a validly constituted disciplinary proceeding having ended in exoneration of the petitioner from any guilt, it was not open to the disciplinary authority to conduct de novo inquiry on the same set of charges. Moreover, law does not permit such a course of action to be taken under any circumstances. 6. Mr. S.Pattnaik learned AGA however, contends that the disciplinary authority was not inclined to accept the finding of the first inquiring officer as that was not based on the evidence on record and therefore, to ascertain the truth of the matter the second inquiry was conducted. 7. It would be apposite at this stage to refer to the relevant statutory provisions governing the service conditions of the Page 5 of 10 petitioner. Rule 15 of OCS (CCA) Rules, 1962 is relevant. Sub-rule (9) of Rule 15 reads as follows: “The disciplinary authority, may, for reasons to be recorded by it in writing, remit the case to inquiring authority for further inquiry and report, and the inquiring authority shall there upon proceed to hold the further inquiry according to the provisions of sub-rule (6) of rule 15 as far as may be.” There is no other provision conferring power on the disciplinary authority to conduct de novo inquiry and that too by appointing a new inquiring officer. This Court further observes that it is not the case of the disciplinary authority that the first inquiry was conducted de hors the statutory provisions or that the materials on record were not taken into consideration. On the contrary, the ground taken to justify appointment of the second inquiring officer is that the first inquiring officer had heard and recorded the whole/part of the evidence but had since been transferred/ not available. This observation is entirely contrary to the materials on record inasmuch as the first inquiring officer had concluded the inquiry and submitted his findings to the disciplinary authority. It was therefore, not a case of an incomplete inquiry as has been attempted to be made out by the Page 6 of 10 disciplinary authority in its order dated 11.04.2018. Law is also well settled that de novo inquiry cannot be directed as a matter of course and that such power must be conferred specifically on the disciplinary authority by the statute. In the case of K.R. Deb vs. Collector of Central Excise, Shillong reported in AIR 1971 SC 1447, a Constitution Bench of the Apex Court while interpreting the provision under Rule 15 of the Central Civil Services (Classification Control and Appeal) Rules, 1957 observed as follows: “12. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9. 13. In our view the rules do not contemplate an action such as was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant. 14. Before the Judicial Commissioner the point was put slightly differently and it was urged that the proceedings showed that the Disciplinary Authority had made up its mind to dismiss the appellant. The Judicial Commissioner held that on the facts it could not be said that the Disciplinary Authority was prejudiced against the appellant. But it seems to us that on the material on record a suspicion does arise that the Collector was determined to get some Inquiry Officer to report against the appellant. 15. In the result we hold that no proper inquiry has been conducted in the case and, therefore, there has been a breach of Article 311(2) of the Constitution. The appeal is accordingly allowed and the order, dated June 4, 1962, quashed, and it Page 7 of 10 is declared that the appellant should be treated as still continuing in service. He should be paid his pay and allowances for the period he has been out of office. The appellant will have his costs here and in the Court of the Judicial Commissioner. Fees shall be payable by the appellant to his advocate and be allowed on taxation”. It is not disputed that Rule 15 of the CCS (CCA) Rules is in pari materia with Rule 15 of OCS (CCA) Rule 1962. The above observations made by the Apex court would apply to the facts of the case at hand in full force. 8. In the case of Jayanta Kumar Bakshi vs. Principal Secretary to Government Excise Department and Ors reported in 108 (2009) CLT 584, a Division Bench of this Court held that the disciplinary authority while disagreeing with the findings of the inquiring officer cannot order for re- inquiry that too without affording opportunity of hearing to the delinquent officer. The Division Bench took note of the effect of Sub-rule (9) of Rule 15 as also Rule 10 (i) (a) & 10 (i)(b) of the OCS (CCA) Rules and held as follows: Sub-rule (9) of Rule 15. The disciplinary authority, may , for reasons to be recorded by it in writing, remit the case to inquiring authority for further inquiry and report, and the inquiring authority shall there upon proceed to hold the further inquiry according to the provisions of Sub-rule(6) of rule 15 as far as may be. (10)(i)(a). If the inquiring officer is not the disciplinary authority, the disciplinary authority shall furnish to the delinquent Government servant a copy of the report of the inquiring officer and give him notice by registered post or otherwise calling upon him to submit within a period of Page 8 of 10 fifteen days such representation as he may wish to make against findings of the Inquiring Authority. he shall On receipt of the representation referred to in (10)(i)(b). Sub-clause (a) the disciplinary authority having regard to the findings on the charges, is of the opinion that any of the penalties specified in Clauses (vi) to (ix) of Rule 13 should be delinquent furnish imposed, Government/Servant a statement of its findings along with brief reasons, for disagreement, if any, with the findings of the inquiring officer and give him a notice by Registered post or otherwise stating the penalty proposed to be imposed on him and calling upon him to submit within a specified time such representation as he may wish to make against the proposed penalty. the to As has been discussed earlier the case at hand is not one in which there is a procedural irregularity in the inquiry found by the disciplinary authority so as to direct a de novo inquiry. The principles laid down in Jayanta Kumar Bakshi (Supra) would be fully applicable to the case at hand. 9. Thus, from a conspectus of the analysis of the relevant provisions of law and the facts of the case, this Court has no hesitation in holding that the decision of the disciplinary authority to direct de novo inquiry against the petitioner on the same set of charges cannot be sustained having no force of law and being de hors the statutory provisions and therefore, warrants interference. 10. Resultantly the writ application is allowed. The impugned order dated 11.04.2018(Annexure-12) is hereby Page 9 of 10 quashed. The opposite party No.4 is directed to take all consequential steps pursuant to the report of the first inquiry officer dated 20.07.2017 within two months. ……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 9th August 2023/ Deepak Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 10-Aug-2023 10:59:18 Page 10 of 10