Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK W.P.(C) No. 22925 of 2018 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------------- AFR Prasanna Kumar Biswal ..… Petitioner -Versus- State of Odisha and others ….. Opp. Parties For Petitioner : M/s. Rabinarayan Nayak, N. Sen, K. Moharana & G.N. Rout, Advocates. For Opp. Parties : Mr. S.N. Nayak, Addl. Standing Counsel P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND HONOURABLE MR. JUSTICE G. SATAPATHY Date of hearing : 27.03.2024 : Date of judgment : 03.04.2024 DR. B.R. SARANGI, J. The petitioner, who has been imposed with penalty of withholding three increments with cumulative effect and treating the period of suspension as // 2 // such by following departmental proceeding under Rule 15 of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962 (for short “OCS (CC&A) Rules, 1962”), vide order dated 13.08.2013 under Annexure-10, has filed this writ petition seeking to quash the said order as well as its confirming order dated 05.05.2018 passed by the Odisha Administrative Tribunal, Bhubaneswar in O.A. No. 2821 of 2013 under Annexure-11. 2. The factual matrix of the case, in a nutshell, is that the petitioner was working as Forest Ranger in the Manamunda Range of Boudh Forest Division during the year 1992. During his incumbency in the said Range, he committed some irregularities, for which a departmental proceeding was drawn up against him by the Principal Chief Conservator of Forest, Odisha-opposite party no.2, vide office order dated 09.01.1995, by framing 21 charges. The Divisional Forest Officer, Phulbani Forest Division- opposite party no.3 was appointed as Enquiring Officer to conduct the inquiry into the departmental proceedings // 3 // drawn up against the petitioner, vide office order dated 27.07.1995 of the opposite party no.2. The A.C.F. Boudh Division was nominated as Presenting Officer in the said departmental proceeding. Thereafter, the petitioner was placed under suspension on 15.04.1995 pending drawl of departmental proceeding and was reinstated in service on 28.04.1995. As such, the petitioner was supplied with the documents relied upon by the authority in the memo of charge. Thereafter, the petitioner prepared a response and submitted a show cause on 10.02.1996. 2.1. The proceeding was initiated in the year 1995 with 21 charges. Opposite party no.3, being the Enquiring Officer, conducted the inquiry in accordance with the provisions as laid down under OCS (CC&A) Rules, 1962. The opposite party no.3, vide memo dated 30.10.1995, furnished the name of prosecution witness to be examined. The enquiry was started fixing date to
Legal Reasoning
09.04.1997 giving notices to Sri D. Behera, ACF through the DFO, Keonjhar Division, vide memo dated // 4 // 22.03.1997, Sri Prasanna Kumar Biswal, Forest Ranger, the petitioner through the DFO, Puri Division, vide memo dated 22.03.1997, Sri B.K. Bhanj, Forester, Sri R.K. Samal, Forest Guard, Sri Bibekananda Mohanty, Forest Guard through the DFO, Boudh Division, vide memo dated 22.03.1997, and to the Asst. Conservator of Forests, Boudh Division, Presenting Officer, vide memo dated 22.03.1997. The statements of the petitioner and PWs were recorded during the course of inquiry. The Enquiring Officer-opposite party no.3, after conclusion of the inquiry, prepared the inquiry report regarding finalization of each of the charges and submitted the same before opposite party no.2 on 26.09.2005. The findings of the Enquiring Officer were communicated to the petitioner on 02.05.2006. 2.2. After receiving the enquiry report, the petitioner submitted a representation to opposite party no.2 mentioning therein that he was not provided with the documents. Thereafter, he submitted another // 5 // representation on 30.07.2007 to discard the enquiry report and to drop the proceeding. Since the petitioner became Group-B Officer, opposite party no.1 issued a show cause notice on 18.06.2010 in which it was proposed to finalize the departmental proceeding by imposing the penalties of stoppage of three increments with cumulative effect and to treat the period of suspension as such. After receiving the notice, the petitioner submitted a detailed representation on 03.08.2010 and 06.03.2012. Thereafter, opposite party no.1, vide order dated 13.08.2013, imposed the proposed penalty. Challenging the aforesaid order, the petitioner approached the tribunal by filing O.A. No. 2821 of 2013 and the tribunal, after due adjudication, came to a hold that the allegation made that there was inordinate delay in disposal of the departmental proceeding, is due to the delinquent petitioner, who took various adjournments and such delay alone will not be sufficient to allow the Original Application. By observing so, the tribunal held that the proceeding to have been conducted as per rules // 6 // giving adequate opportunities to the petitioner. As such, the Enquiring Officer has given cogent findings holding the petitioner guilty of some of the charges and an appropriate penalty has been passed. By holding so, the tribunal did not feel inclined to entertain the findings and the punishment imposed by the authority and ultimately dismissed the Original Application. Hence, this writ petition. 3. Mr. Rabinarayan Nayak, learned counsel appearing for the petitioner contended that the punishment of withholding three increments with cumulative effect, as imposed by the authority, cannot be sustained in the eye of law. It is contended that the proceeding was initiated against the petitioner in the year 1995 and by way of amendment to the OCS (CC&A) Rules, 1962 the punishment of stoppage of increment was introduced in the year 1998. Therefore, on the date of initiation of the proceeding since there was no provision for imposition of penalty of stoppage of increment, the // 7 // order so passed by the authority cannot be sustained in the eye of law and the same should be quashed. It is further contended that there has been inordinate delay in disposal of the proceeding initiated against the petitioner. As such, the proceeding was initiated against the petitioner in the year 1995, but the same was completed in the year 2013, but the tribunal failed to appreciate the contention raised by learned counsel for the petitioner to the above context. Therefore, the orders impugned passed by the authority in imposing penalty and consequential confirmation made thereof by the tribunal cannot be sustained in the eye of law and are liable to be quashed. To substantiate his contention, learned counsel appearing for the petitioner has relied upon the judgment of the apex Court in the case of Y.V. Rangaiah and others v. J. Sreenivasa Rao and others, AIR 1983 SC 852 : (1983) 3 SCC 284. 4. Mr. S. Nayak, learned Addl. Standing Counsel appearing for the State-Opposite Parties contended that // 8 // since 21 charges were framed against the petitioner and by following due procedure and in compliance of principles of natural justice the Enquiring Officer found the petitioner guilty of certain charges and accordingly imposed the penalty, as referred to above, the tribunal is well justified in not interfering with the same. Therefore, the order so passed by the tribunal is well justified, which does not warrant interference of this Court at this stage. To substantiate his contention, learned Addl. Standing Counsel appearing for the State-Opposite Parties has placed reliance on the decision of the apex Court in the case of Union of India v. P. Gunasekharan (SLP (C) No. 23631 of 2008), reported in AIR 2015 (SC) 545. 5. This Court heard Mr. Rabinarayan Nayak, learned counsel appearing for the petitioner and Mr. S. Nayak, learned Addl. Standing Counsel appearing for the State-Opposite Parties through hybrid mode and perused the record. Pleadings having been exchanged between the // 9 // parties, with the consent of learned counsel for the parties
Decision
this writ petition is being disposed of finally at the stage of admission. 6. The contention, which has been raised by learned counsel for the petitioner, is that there was delay in finalization of the inquiry and, therefore, the punishment imposed thereon cannot be sustained in the eye of law, but, as per the materials available on record, it is made clear that delay in enquiry was caused mostly due to the non-attendance and adjournment request of the petitioner and also due to non-attendance of the petitioner, PWs and P.O. in one day at a time. 7. A detailed counter affidavit has been filed by opposite party no.3 incorporating all the documents, wherein it has been stated that during the course of inquiry three D.F.Os. were transferred from the Division resulting delay in conducting the inquiry. The Enquiring Officer conducted the inquiry in accordance with the provision as laid down in the OCS (CCA) Rules, 1962. // 10 // Ample opportunity was provided to the petitioner to defend his case and the principle of natural justice was meticulously followed. The opposite party no.3, vide his memo no.5326 dated 30.10.1995, furnished the name of prosecution witnesses to be examined. The inquiry was started fixing date to 09.04.1997 giving notices to Sri D. Behera, ACF through the DFO, Keonjhar Division, vide memo no. 1516 dated 22.03.1997, Sri Prasanna Ku. Biswal, Forest Ranger (petitioner herein) through the DFO, Puri Division, vide memo no. 1528 dated 22.03.1997, Sri B.K. Bhanja, Forester, Sri R.K. Samal, Forest Guard, Sri Bibekananda Mohanty, Forest Guard through the DFO, Boudh Division, vide memo no.1530 dated 22.03.1997 and to the Assistant Conservator of Forests, Boudh Division, Presenting Officer, vide memo no.1532 dated 22.03.1997. 8. The petitioner and prosecution witness Sri B.K Bhanja, Forester attended the inquiry on 09.04.1997. The Presenting Officer and other PWs were absent on that // 11 // date, for which next date was fixed to 23.05.1997 and notices were issued, vide memo no.2443 dated 07.05.1997, to the petitioner, memo no.2445 dated 07.05.1997 to the Assistant Conservator of Forest, Boudh (Presenting Officer), Sri B.K. Bhanja, Forester, Sri P.K. Sasmal, Forest Guard and Sri Dhabaleswar Singh, Forest Guard vide memo no.2447 dated 07.05.1997, Sri Bibekananda Mohanty, Forest Guard and Sri D. Behera, ACF, Keonjhar, vide memo no.2447 dated 07.05.1997 and memo no.2449 dated 07.05.1997, but the inquiry was not conducted due to non-attendance of the Presenting Officer as well as the PWs. Subsequently, the date was fixed to 02.11.1998 and notices were issued to the petitioner, vide memo no.5226 dated 24.10.1998, Sri D. Behera, ACF, Keonjhar, vide memo no.5228 dated 24.10.1998, Sri B.K. Bhanja, Forester, Sri P.K. Sasmal, Forest Guard, Sri Dhabaleswar Singh, Forest Guard and Sri Bibekananda Mohanty, Forest Guard, vide memo no.5230 dated 24.10.1998, and the ACF, Boudh (Presenting Officer), vide memo no.5232 dated 24.10.1998. On 02.11.1998, the // 12 // inquiry was not conducted due to non-attendance of the petitioner and the next date of enquiry was posted to 11.01.1999. Accordingly, notices were issued to Sri Duryodhan Behera, ACF, Keonjhar, vide memo no.6353 dated 09.12.1998, to the petitioner, vide memo no.6355 dated 09.12.1998, Sri B.K. Bhanja, Forester, Sri P.K. Sasmal, Forest Guard, Sri Dhabaleswar Singh, Forest Guard and Sri Bibekananda Mohanty, Forest Guard, vide memo no.6357 dated 09.12.1998, and the A.C.F. Boudh (Presenting Officer), vide memo no.6359 dated 09.12.1998. On 11.01.1999, the inquiry was posted to another date on the request of the petitioner. Thereafter, notices were sent to the petitioner as well as other Govt. Officials, vide memo no.2170 dated 17.03.1999, fixing the date to 28.03.1999 for inquiry and on the said date inquiry was not conducted due to non-attendance of the petitioner as well as the PWs. Again, on 24.05.1999, notices were sent fixing the date to 22.06.1999 for inquiry to the petitioner as well as other Govt. officials, vide memo no.3609 dated 24.05.1999. On 22.06.1999, iquiry was not // 13 // conducted due to non-attendance of the petitioner as well as other PWs and the enquiry was finally posted to 05.08.1999 and notices were issued to the ACF, Boudh (Presenting Officer), vide memo no.4571 dated 25.06.1999, to the petitioner, vide memo no.4573 dated 25.06.1999, Sri B.K. Samal, Forest Guard, Sri Dhabaleswar Singh, Forest Guard and Sri Bibekananda Mohanty, Forest Guard, vide memo no.4575, dated 25.06.1999, Sri B.K. Bhanja, Forester, vide memo no.4577 dated 25.06.1999, and Sri D. Behera, ACF, Keonjhar, vide memo no.4579 dated 25.06.1999. On 05.08.1999, the petitioner and one PW-Sri B.N. Mohanty were present and others were absent and their statements were recorded and the inquiry was posted to 29.06.2000 and notices were issued to Sri B.K. Bhanja, Forester, vide memo no.3901 dated 27.05.2000, Sri D. Behera, ACF, Keonjhar, vide memo no.3903 dated 27.05.2000, the ACF, Boudh Division (Presenting Officer), vide memo no.3905 dated 27.05.2000, Sri B.K. Samal, Forest Guard, Sri Dhabaleswar Singh, Forest Guard, vide memo no.3907 // 14 // dated 27.05.2000, and the petitioner, vide memo no.3909 dated 27.05.2000. On 29.06.2000, Sri B.K. Bhanja, Forester and the petitioner attended the enquiry and others were absent and statement of Sri B.K. Bhanja, Forester was recorded and the inquiry was posted to 16.03.2004. On 16.03.2004, the Presenting Officer, Sri A.K. Swain, ACF, Boudh was present with all connected records and presented the same. The petitioner did not attend the inquiry. Therefore, the inquiry was finally posted to 22.03.2004. Further, notices were sent to Sri D. Behera, ACF, Keonjhar, vide memo no.1057 dated 03.03.2004, Sri Arun Ku. Swain (Presenting Officer)-cum- ACF, Boudh, Sri Rabindra Ku. Samal, Forest Guard, Sri Dhabaleswar Singh, Forest Guard and the petitioner, vide memo no.1227 dated 17.03.2004 to attend the inquiry on 22.03.2004. On 22.03.2004, the petitioner appeared for hearing and submitted his statement and prayed for one month time, for which final hearing was fixed to 05.05.2004. Accordingly, notice was sent to the petitioner, vide memo no.1766 dated 23.04.2004, to attend the // 15 // inquiry on 05.05.2004. On that date (05.05.2004), the petitioner was present and his statement was recorded and the inquiry was posted to 20.05.2004 and notice, vide memo no.1967 dated 12.05.2004, was sent to the petitioner to attend the inquiry. Hence, the allegation made by the petitioner that after more than a decade the opposite party no.3 had to cover the matter all of a sudden and petitioner was asked to attend the inquiry is not at all a fact and baseless. The statement of the petitioner and PWs were recorded during the course of inquiry. 9. From the above sequence of events, it is made clear that the delay cannot be attributable to the Enquiring Officer, rather for some reason or other, the petitioner, PWs and P.O. sought adjournment. But that cannot vitiate the inquiry proceeding so as to cause interference of this Court at this stage. The same has been considered by the tribunal while passing the order impugned. Therefore, the contention raised by learned // 16 // counsel for the petitioner that there was delay in the inquiry and, therefore, the proceeding initiated against the petitioner should be quashed, cannot be sustained and, as such, the same cannot be acceded to. Further more, the statements of the petitioner and PWs were recorded during the course of inquiry and, as such, the petitioner had never asked for any document for his reference during the course of inquiry. Thereby, the contention raised, that the petitioner was not supplied with the documents, is also bereft of records. As such, on the basis of materials available on record, it is evident that by affording due opportunity of hearing in compliance of principles of natural justice, the petitioner was given ample scope to defend his case. Thereby, the contention raised by learned counsel for the petitioner, that the inquiry and the ultimate punishment are in violation of statutory provisions, cannot be sustained in the eye of law. Further, the allegation has been made that the inquiry was conducted in one day, but the materials available on record do not speak about the same. // 17 // Therefore, such allegations are not correct. As it appears, several dates were fixed, statements of the delinquent and prosecution witnesses were recorded and documents were taken on record and the Enquiring Officer submitted report as per Rule 15 (7) of the OCS (CC&A) Rules, 1962, in which statement of witnesses are also attached. Thereby, the inquiry, which has been conducted by the Enquiring Officer, is in accordance with Rule 15 of the OCS (CC&A) Rules, 1962. As such, no irregularity has been committed by the Enquiring Officer while conducting the inquiry so as to require interference of this Court. 10. As it appears from the judgment passed by the tribunal, the departmental proceeding file was called for and on scrutiny of the same, the tribunal found that as many as forty annexures were attached to the charge framed, though there is nothing on record to show whether those documents were supplied to the petitioner before issuance of show cause notice. But it is seen that regularly notices were sent to the petitioner to attend the // 18 // departmental inquiry by the DFO, Phulbani, i.e., opposite party no.3. As such, on a large number of occasions, the petitioner also participated in the inquiry. The statements of the petitioner as well as witnesses were recorded on various dates and the petitioner was allowed to cross- examine those witnesses and several documents were exhibited. As such, the signature of the petitioner is also available on the deposition of various witnesses. The petitioner also submitted a written note of defence on 20.05.2004 denying the charges levelled against him and prayed to exonerate him from all the charges. Therefore, on the basis of documents available on record, the Enquiring Officer framed following charges:- 1. Charge No.1: Submission of false and fabricated M.Rs with an ulterior motive. 2. Charge No.2: Improper maintenance of Govt. records particularly the records involved with Govt. accounts. 3. Charge No.3: Taking acquaintance of mulias without payment of misleading his superiors to obtain fund for his personal gain. 4. 4. Charge No.4 : Gross negligence in duty 5. Charge No.5: Disobedience of orders of the superiors // 19 // 6. Charge No.6: Committing serious finance irregularities and indiscipline. 7. Charge No.8: Unauthorized expenditure of Government Money 8. Charge No.9: Ignorance of Departmental Rules, Codal Provisions and Accounts Procedure 9. Charge No.18 : Late and non attendance in the R.Os and non-submission of Agenda items.” On the basis of aforementioned findings, charge nos.7, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20 and 21 were held not to have been proved against the petitioner. The findings of the Enquiring Officer were accepted by the Government, i.e., Disciplinary authority and after observing due formalities the penalty was imposed. Thereby, no irregularity has been committed by the authority in imposing penalty on the petitioner. 11. In Union of India v. P. Gunasekharan, AIR 2015 (SC) 545, the apex Court has laid down the guidelines where the Court can interfere with the orders passed by the disciplinary authority. The guidelines read thus:- “ The court can only see whether:- // 20 // 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 influenced by considerations; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable 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. (vi) correct the error of fact however grave it may appear to be; // 21 // (vii) go into the proportionality of punishment unless it shocks its conscience.” 12. Relying upon the aforesaid guidelines rendered by the apex Court and applying the same to the present case, it is made clear that the Court cannot sit as an appellate authority over the findings arrived at by the Enquiring Officer and the disciplinary authority. As such, nothing has been placed on record to interfere with the quantum of punishment imposed by the authority. Thereby, this Court is not inclined to interfere with the quantum of punishment imposed by the disciplinary authority, which has been confirmed by the tribunal. 13. Mr. Rabinarayan Nayak, learned counsel appearing for the petitioner in course of hearing raised a point, which has been recorded in the order dated 08.05.2023 to the following effect:- “Mr. R.N. Nayak, learned counsel for the petitioner contended that proceeding was initiated against the petitioner in the year 1995. But by virtue of the amendment made in Rule-13 of the OCS (CC &A) Rules with regard to imposition of penalty of withholding of increments with cumulative effect, which // 22 // has been published in the official gazette no.1609 dated 08.12.1998, the authority could not have imposed penalty of stoppage of three increments with cumulative effect, as by the time initiation of proceeding was made in the year 1995, punishment has not been incorporated in the Rules. However, he seeks time to satisfy the Court by citing some judgments to that effect by the next date. On his request, list this matter after two weeks.” 14. The petitioner, in support of the above stand, has relied upon the judgment of the apex Court in the case of Y.V. Rangaiah (supra). But on perusal of the said judgment it appears that the same does not whisper anything with regard to the proposition advanced by learned counsel appearing for the petitioner. Rather, the said judgment deals with the proposition that vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. In that case, the apex Court held that they have not slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules. // 23 // 15. In the instant case, even though the proceeding was started in the year 1995, by that time clause (vi-A) had not been incorporated in Rule-13 of the OCS (CC&A) Rules, 1962, as one of the natures of penalties, and, as such, the same came into force, by way of substitution, on 08.12.1998. There is, thus, no dispute before this Court that by the time the Enquiring Officer concluded the proceeding, the amendment had come into force, where withholding of increments (with cumulative effect) had been incorporated. Therefore, the Enquiring Officer imposed penalty of withholding of increment with cumulative effect, which has been accepted by the disciplinary authority and confirmed by the tribunal by the orders impugned, along with the period of suspension to be treated as such. 16. In JowLL'S Dictionary of English Las, Vol. 2, (2nd Edn. by JOHN BURKA), it has been held that punishment is the penalty for transgressing the law. // 24 // In New Shorter Oxford English Dictionary, Vol. 2, 3rd Edn., reprint 1993, it has been held that ‘punishment', infliction of a penalty in retribution for an offence; penalty imposed to ensure application and enforcement of a law. In GLANVILLE WILLIAMS Criminal Law, 575 (2nd ed. 1961), it has been held that punishment in all its forms is a loss of rights or advantages consequent on a breach of law. When it loses this quality it degenerates into an arbitrary act of violence that can produce nothing but bad social effects. In Standard Chartered Bank v. Enforcement of Directorate, (2006) 4 SCC 278, the apex Court has referred the aforesaid meaning of punishment otherwise also a sanction, such as a fine, penalty, confinement, or loss of property, right, or privilege-assessed against a person who has violated the law. In Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup, AIR 1957 SC 82, the apex Court held that the // 25 // word “punishment” may be defined as penalty for the transgression of law. Any action of the employer to the detriment of the employee would not come within the ambit of the expression punishment so long as no offence was found to have been committed by the employee. It has also been held that suspension would not be a punishment by itself. When it is felt that the continuance on duty of a public servant pending inquiry would be prejudicial to public interest, he can be placed under suspension. Such an order cannot be said to be by ay of punishment. As such, the term “penalty” and “punishment” are frequently used as synonymous of each other. 17. In view of the facts and law, as discussed above, the penalty imposed on the petitioner, being in conformity with the provisions of law, this Court is not inclined to interfere with the same. Consequentially, the order dated 13.08.2013 under Annexure-10 passed by the authority imposing penalty and also the order dated // 26 // 05.05.2018 passed by the Odisha Administrative Tribunal, Bhubaneswar in O.A. No. 2821 of 2013 under Annexure-11 confirming the same do not call any interference by this Court. 18. In the result, therefore, 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. JUDGE …………….………….. DR. B.R. SARANGI, G. SATAPATHY, J. I agree. JUDGE …………….………….. G. SATAPATHY, Orissa High Court, Cuttack The 3rd April, 2024, Ashok Signature Not Verified Digitally Signed Signed by: ARUN KUMAR MISHRA Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa Date: 04-Apr-2024 17:22:59