Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK AFR W.P.(C) NO. 19295 OF 2019 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------------- Gouranga Charan Mallick ..… Petitioner State of Odisha and others ….. Opp. Parties -Versus- For petitioner : M/s Jitendra Kumar Digal, G.R. Sethi, B. Pattnaik and S. Nanda, Advocates For opp. parties : Mr. B. Mohanty, Addl. Government Advocate P R E S E N T: THE HONOURABLE DR. JUSTICE DR. B.R.SARANGI AND THE HONOURABLE MR JUSTICE G. SATAPATHY Date of Hearing and Judgment :: 19.03.2024 DR. B.R. SARANGI, J. The petitioner, by means of this writ petition, seeks to challenge the order dated 31.07.2018 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in dismissing O.A. No.1655(C) of 2014. Page 1 of 9 2. The factual matrix of the case, in brief, is that the petitioner, while working as Havildar, faced with a departmental proceeding, vide Bhadrak District Proceeding No.12 dated 24.11.2009. The petitioner submitted his preliminary explanation/show cause denying the charges levelled against him. Thereafter, the enquiry was conducted, during which eight witnesses were examined on behalf of the department and one defence witness was examined by the charged officer. During the course of enquiry, all the departmental witnesses stated that the petitioner is no way involved with the alleged charges and considering such statement of the witnesses, the enquiry officer recorded his findings holding the petitioner not guilty of the charges. The disciplinary authority did not accept such report of the enquiry officer and came to the conclusion that the petitioner is guilty of the charges levelled against him and, accordingly, direction was given to the petitioner to submit his view within 15 days from the date of receipt of the copy. Thereafter, the petitioner submitted his representation inter alia praying to exonerate him and Page 2 of 9 stating therein that the charges could not be proved and the witnesses did not make any statement against the petitioner. But the disciplinary authority, without considering his submission, issued a second show cause notice indicating as to why the petitioner shall not be awarded with punishment of one black mark, which is a major penalty, and the period of suspension to be treated as such. In response to such notice, the petitioner submitted his reply by stating that since the charges could not be proved in view of the statement of the petitioner and the findings recorded by the enquiry officer, issuance of second show cause notice is violative of principle of natural justice and, therefore, the proposed punishment may not be inflicted. 2.1. Without considering the reply of the petitioner in proper perspective, vide order dated 13.8.2011, the petitioner was awarded with punishment of one black mark and the period of suspension from 18.9.2009 to 25.11.2009 was treated as such. Against such order of punishment, the petitioner preferred an appeal before opposite party no.2, but the same was rejected vide order Page 3 of 9 dated 07.07.2012. Aggrieved by such order of rejection, the petitioner filed a revision petition before opposite party no.1, who in turn disposed of the same vide order
Legal Reasoning
dated 31.03.2014, confirming the order of punishment and the order of appellate authority. The petitioner challenged such orders before the Tribunal on the ground that the order of punishment imposed by opposite party no.3 is based on no evidence and only on the basis of surmises and conjectures such order of punishment has been recorded and hence the same is liable to be set aside. He also prayed for setting aside of the appellate order as well as the revisional order. The Tribunal vide order dated 31.07.2018 dismissed the Original Application. Hence, this writ petition. 3.
Legal Reasoning
Ms. B. Pattnaik, learned counsel appearing for the petitioner vehemently contended before this Court that since the case of no evidence has been made out, this Court has jurisdiction to interfere with the same and also to interfere with the quantum of punishment imposed on the delinquent officer and further seeks to quash the order passed by the Tribunal. Page 4 of 9 4. Mr. B. Mohanty, learned Addl. Government Advocate for the State-opposite parties contended that since punishment of one black mark and the period of suspension to be treated as such has been imposed by the disciplinary authority by following due procedure and the same has been confirmed by the appellate authority as well as the revisional authority, the order imposing punishment on the petitioner is well justified and does not require interference by this Court at this stage. 5. This Court heard Ms. B. Pattnaik, learned counsel appearing for the petitioner and Mr. B. Mohanty, learned Addl. Government Advocate appearing for the State-opposite parties in hybrid mode and perused the records. Pleadings have been exchanged between the parties and with the consent of learned counsel for the
Decision
parties, the writ petition is being disposed of finally at the stage of admission. 6. As per the law decided by the apex Court in the case of Union of India and others v. P. Gunasekaram, AIR 2015 (SC) 545, guidelines have been provided to Page 5 of 9 interfere with the orders passed by the disciplinary authority, which reads as follows:- “a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf; c. there is violation of the principles of natural justice in conducting the proceedings; d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. the authorities have allowed themselves to be extraneous irrelevant or by influenced considerations; f. the conclusion, on the very face of it, is so wholly that no reasonable arbitrary and capricious person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence. Under Article 226/227 of the Constitution of India, the High Court shall not: (i) re-appreciate the evidence; (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. Page 6 of 9 (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience.” 7. Therefore, the present case has to be adjudged on the basis of the principle laid down by the apex Court, as mentioned above. The contention of Ms. B. Pattnaik, learned counsel for the petitioner is that since the finding of fact is based on no evidence, this Court can interfere and extend the benefit, as has been prayed in the writ petition. But fact remains, as per the provisions contended in Appendix 49 of P.M.R. Vol. l and II, departmental proceeding was initiated against the petitioner. As such, the provisions contained in OCS (CCA) Rules, 1962 have no application to case of the petitioner. Needless to say, under P.M.R. Vol. l and II, rules have been framed in accordance with the provisions contained in Police Act. On perusal of the rules, it is made clear that the disciplinary authority can differ from the findings of the enquiry officer on the basis of the evidence on record. The Tribunal, on perusal of the departmental proceeding file, particularly the statements of the then Page 7 of 9 IIC, SDPO and constable/451, Lambodhar Jena, has categorically recorded that the decision taken by the disciplinary authority cannot be faulted with. It is also not the case of the petitioner that the disciplinary authority did not give opportunity of hearing to the petitioner before differing from the findings of the enquiry officer. It is the settled position of law that the Courts and Tribunals have a limited role with regard to adequacy or inadequacy of evidence in reaching a conclusion. Furthermore, neither the Tribunal nor this Court can interfere with the findings of the disciplinary/appellate authority by reassessing the evidence, in view of the law laid down by the apex Court in P. Gunasekaram (supra). Only argument advanced by learned counsel for the petitioner is that since finding of fact is based on no evidence, this Court can interfere, but fact remains in State of Haryana and another v Rattan Singh, 1977 (2) SCC 491, it has been held as follows. “4. ...... in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It Page 8 of 9 careful tribunals must be that departmental authorities and is true administrative in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of is objectivity, exclusion of a judicial approach extraneous materials considerations and or observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding even though of a domestic tribunal, cannot be held good......” 8. In view of the law laid down by the apex Court and applying the same to the facts of the present case, this Court is not inclined to interfere with the findings arrived at by the Tribunal. Therefore, this Court does not find any merit in the writ petition, which is accordingly dismissed. However, there shall be no order as to costs. G. SATAPATHY, J. I agree. (DR. B.R. SARANGI) JUDGE (G. SATAPATHY) JUDGE Signature Not Verified Digitally Signed Signed by: ARUN KUMAR MISHRA Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Oirssa, Cuttack Date: 22-Mar-2024 15:49:03 Orissa High Court, Cuttack The 19th March, 2024, Arun Page 9 of 9