The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OA) No.1332 of 2018 In the matter of an application under Section 19 of the Administrative Tribunals’ Act, 1985. ……………… Udayanath Pradhan …. Petitioner -versus- Forest And Environment & Others …. Opposite Parties For Petitioner :M/s. M.K. Mohanty, M.R. Pradhan and M. Mohanty,Advocate For Opp. Parties :Mr. B. Mohanty, Addl. Govt. Advocate PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ------------------------------------------------------------------------------ Date of Hearing: 24.07.2024 and Date of Judgment:16.08.2024 ----------------------------------------------------------- -------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Mode. 1 2. Heard Mr. M.K. Mohanty, learned counsel for the petitioner and Mr. S. Jena, learned Addl. Government Advocate appearing for the State-Opp. Parties. 3. Petitioner has filed the present Writ Petition inter alia challenging the order of punishment passed vide Office Order dt.16.03.2018 of Opp. Party No.1 under Annexure-12, and communicated vide letter dated 28.04.2018 under Annexure-12/1. 4. It is the case of the Petitioner that a proceeding vide Office Memorandum dt.19.03.2014 under Annexure-1 was initiated against the Petitioner by the Opp. Party No.1 as being the Disciplinary authority. It is contended that the said proceeding was initiated basing on the preliminary enquiry report submitted by
Legal Reasoning
In the case of Niranjan Das, this Court in Paragraph-11 has held as follows : 11. The order sheet of the enquiry proceeding, enclosed as Annexure-10 to the rejoinder reveals that the marshalling officer was absent on 08.01.2016, 10.03.2016,26.04.2016,16.05.2016,08.09.2016,24. 11.2016,12.01.2017,24.03.2017,12.05.2017,10.06. 2017 and 12.07.2017. It is further appears that the marshalling officer failed to supply the documents (evidence) to the delinquent officer despite being granted opportunity by the enquiry officer multiple times. Ultimately, the enquiry officer held on 9 from effort’ 10.04.2017 that the marshalling officer could not produce the supporting records. Such being the position, it was incumbent upon the enquiry officer to close the proceedings at that stage. But the enquiry officer surprisingly took it upon himself to produce the documents and obtained the same on his the office of ADM, ‘personal Bhubaneswar and Sub-Collector, Bhubaneswar as mentioned by her in the order dtd.12.07.2017. It was as if the enquiry officer had become the marshalling officer herself and was prosecuting the delinquent officer on hehla of the Government Sub- rule(5) of Rule 15 provides that the disciplinary authority may nominate any person to present the case in support of the charges before the inquiring authority. The enquiry officer obviously cannot become the prosecuting officer on behalf of the Government. As has already been stated herein before, the enquiry officer was both the prosecutor and the Judge. A fundamental principle of natural justice which is required to be adhered to even for quash judicial process is Nemo judex in causa sua, ie., no man shall be a judge of his own cause. In the case of State of UP vs. Saroj Kumar Sinha, reported in (2010) 2 SCC 772, the Apex Court held that the enquiry officer is in the position of an independent adjudicator and not a representative of the Government or the authority concerned. is of paramount The action of the enquiry officer in the instant case has destroyed the very sanctity of the proceeding and therefore, the same cannot be approved. In fact, this is a defect which goes to the very root of the matter as impartiality of the enquiry the officer disciplinary proceeding entails punishment on the delinquent, if found guilty. This Court is constrained to observes as above more so as the documents obtained by the enquiry officer were made part of the case record but were never supplied to the delinquent officer. importance since 10 In the case of Union of India & Others, Hon’ble Apex Court in Paragraph-10,11 & 12 has held as follows : 10. The perusal of the record would clearly reveal that an opportunity was given by the Appellate Authority to the Enquiry Committee to examine the important witnesses. Even on remand, the said three witnesses were not examined. 11. In the absence of the examination of these three vital witnesses, the Appellate Authority found that the charges against the respondent were not fully proved and taking into consideration this aspect, the learned Single Judge allowed the petition and the Division Bench 1 (2003) 9 SCC 286 affirmed the same. 12. Insofar as the judgment of this Court relied on by the learned counsel appearing for the appellants is concerned, the same is not applicable to the facts of the present case. The present case has a specific finding that there is a serious lacuna in the conduct of the departmental proceedings in not examining the vital witnesses.” In the case of Chittaranjan Tripathy, this Court in Paragraph-16 has held as follows : 16. The reliance place on the decisions in State of U.P. and others V. Ramesh Ramesh Ch. Mangalik cas (supra), Vijay Kumar Niga1 (dead) . State of M.P. and others case (supra), S.K. Singh case (supra) by the learned Senior counsel for the opposite parties has no application to the present context. On the other hand, the judgment relied upon by him in Sarva U.P. Gramin Bank case (supra) is applicable to the extent that prejudice was caused to the petitioner due to non-supply of the documents and the materials relied upon by the opposite parties had not been supplied by him even though asked for. The decision in State Bank of Patiala (supra) and Sarva U.P. Gramin Bank case (supra) relied upon by the opposite parties is 11 squarely -applicable to the case of the petitioner and goes against the opposite parties. Therefore, taking the above factors and circumstances into consideration, this Court has no hesitation to come to the conclusion that the opposite parties had denied reasonable opportunity to the Petitioner to defend himself in the inquiry. (ii) Non-examination of material witnesses. So far as the question of non-examination of material witnesses is concerned, the Petitioner in paragraphs 19 and 20 of the writ application has specifically pleaded that neither any girl had been examined in the proceeding nor her identity had ever been disclosed and more particularly, the matter had never been reported to the police for inquiry. If police investigation would have been made, at least the truth of the matter could be unearthed. More so, on the date of occurrence, one D.K. Routray and one D.D Das, Government Auditors were staying n the Guest house were allegedly witnesses to the occurrence, but none of them was produced as witness and as such, it was a case of non evidence or an issue on baseless fact. The inquiry having been conducted in a perfunctory manner without following due procedure of the Petitioner was highly law, prejudiced. IN the inquiry proceeding, the four witnesses examined, namely, Tribikram Mishra, Sunanda Mohanty, Chakradhar Biswal and Purusottam Patra, were no way connected with the so-called incident and none of them was a witness to the alleged occurrence. More so, the persons named as witnesses to the occurrence, were not examined in the inquiry proceeding. Sri Tribikram Mishra, Officer-In-Charge of the Guest House, admittedly, as per the contention of the prosecution was neither present at the spot nor was a witness to the occurrence. More so, he was no way connected with the alleged incident in any manner. Mr. D.K. Routray and Mr. D.D. Das, Government Auditors, who were staying in the Guest House in the relevant date, have not been examined. inevitable conclusion can be drawn that while material witnesses were not examined by the opposite parties, the Petitioner has been visited with a major Therefore, the 12 penalty like dismissal from service without any evidence substantiating the allegation against him. Such contention in raised by paragraphs 19 and 20 of the writ application have not been denied in the counter affidavit filed by the opposite parties. the Petitioner In the case of State of Odisha & Another, this Court in Paragraph-18 has held as follows : 18. We have quoted the judgment of the Calcutta High Court, with which we concur. The principle of law that emerges from that judgment is that though a private citizen is permitted to what is not prohibited in law, a statutory authority can do only what is permissible in law. As such in our considered view, the order directing the preliminary inquiry in the present case, in the from it was undertaken, was not justified in law. IN situations where Rules do not provide for holding initiating disciplinary preliminary enquiry before action, the principle in Champaklal Chimanlal Shah would prevail. But the nature of enquiry in such a situation would be in the nature of information gathering exercise, on the basis of which the authorities would decide whether to proceed in the matter or not. In this case, as we have already observed, the preliminary enquiry resulted in issue of article of charges, the phrasing of which clearly revealed formation of opinion of the authorities in finding of guilt of Respondent No.1.” laid down 5. Mr. Biplab Mohanty, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opp. Party No.1. It is contended that basing on the Inquiry report submitted on 18.11.2013, when it is found that the Petitioner has mis-appropriated a sum 13 of Rs.12,58,313.44 paisa, the proceeding in question was initiated against the Petitioner vide Memorandum dt.19.02.2014 under Annexure-1. Even though the proceeding was so initiated basing on the inquiry report dt.18.11.2013, but Petitioner never filed any application to provide a copy of the said report and in the alternate, he on his own, filed the Written Statement of defence on 27.10.2015 under Annexure- 2. 5.1. Petitioner thereafter also participated in the Inquiry and the Inquiry Officer after conducting the inquiry submitted the inquiry report on 31.12.2016 by holding the Petitioner guilty of the charges and held him liable for refund of the amount in question. Petitioner accordingly was issued with the 1st show- cause on 11.07.2016 under Annexure-4. But after considering the reply submitted by the Petitioner to the 1st show-cause under Annexure-5, Opp. Party No.1 when found that the inquiry has not been conducted properly, vide letter dt.13.12.2016 under Annexure-6, Opp. Party No.1 directed for causing re-inquiry. 14 Accordingly, the Inquiry Officer so appointed after causing re-inquiry, submitted the report on 31.03.2017 under Annexure-7 by holding the Petitioner liable for the alleged mis-appropriation of Rs.12,58,313.44 paisa. 5.2. Petitioner thereafter was provided with the 1st show-cause and on due consideration of his reply to the 1st show cause, Opp. Party No.1 while issuing the 2nd show-cause vide letter dt.18.8.2017 under Annexure-10, proposed to impose the punishment of recovery of Rs.12,58,313.44paisa and withholding 25% of pension for 5 years. Opp. Party No.1 after due consideration of the reply submitted by the Petitioner to the 2nd show-cause under Annexure-11, while disposing the proceeding imposed the punishment of recovery of Rs.12,58,313.44 paisa and withholding of Rs.25% of the pension for 5 years vide Office order dt.16.03.2018 under Annexure-12. 5.3. Learned Addl. Govt. Advocate accordingly contended that since the procedure with regard to conduct of the Inquiry has been scrupulously followed 15 and the Petitioner at every point of time was provided with opportunity of hearing, the impugned order of punishment has been rightly passed and it requires no interference. 5.4. It is also contended that even though the Inquiry Report dt.18.11.2013 was not exhibited by the Inquiry Officer, but the enquiry report dt.31.03.2017 under Annexure-7 was submitted with due examination of Shri P.K. Mandhata as an witness and two other witnesses. Basing on the materials available, inquiry Officer and basing on the statement given by the said officer, the Inquiry Officer found the petitioner guilty of the charges and while holding such, suggested for recovery of the amount in question vide his report dt.31.03.2017. It is accordingly contended that Petitioner has been rightly imposed with punishment vide order dt.16.03.2018, which requires no interference. 6. Learned counsel for the Petitioner made further submission basing on the stand taken in the rejoinder affidavit. 16 It is contended that even though Petitioner completed all the works as assigned to him and there is no question of any mis-appropriation of any amount but the Inquiry Officer without proper appreciation of the stand taken by the Petitioner in his Written statement of defence and the statement recorded by the defence witness wrongly held the Petitioner guilty of the charges while submitting the report on 31.03.2017 under Annexure-7. It is however contended that since the inquiry report basing on which the proceeding was initiated was never exhibited, the order of punishment should not have been imposed on the Petitioner. 7. Considering the stand taken by the Petitioner vis- (cid:224)-vis, learned Addl. Govt. Advocate, this Court vide order dt.11.07.2024 directed for production of the proceeding file in question. Pursuant to the said order while taking up the matter on 24.07.2024, the proceeding file was produced by the learned Addl. Govt. Advocate. 8. Learned Addl. Govt. Advocate placing reliance on the proceeding file contended that in course of re- 17 inquiry, the Inquiry Officer recorded the statement of Shri P.K.Mandhata on 30.01.2017 and the said witness was also cross-examined by the present Petitioner . Not only that, two other P.Ws examined by the prosecution were also cross-examined by the Petitioner. Taking into account the statement so recorded of the P.W.s and the defence witnesses, the Inquiry Officer held the Petitioner guilty of the charges while submitting the re-inquiry report on 31.03.2017 under Annexure-7. It is accordingly contended that since the inquiry report which is the basis for initiation of the proceeding was proved with examination of the witness in question, even though the said report was not exhibited, it will not be a bar to hold the petitioner guilty of the charges with imposition of the punishment in question. 9. Having heard learned counsel for the parties and considering the submission made, this Court finds that Petitioner while in service, the proceeding in question was initiated vide Memorandum dt.19.02.2014 under Annexure-1. As found from the said Memorandum, the 18 charges were framed on different counts, basing on the Inquiry report of the A.C.F dt.18.11.2013 and the said A.C.F happens to be one Shri P.K. Mandhata. As further found from the Memorandum, the charges were required to be proved, with examination of 7 numbers of witnesses which includes Shri P.K. Mandhata. 9.1. Even though without having a copy of the inquiry report dt.18.11.2013, Petitioner submitted his written statement of defence on 27.10.2015 under Annexure- 2 and also participated in the Inquiry, but as found from the proceeding file so produced before this Court, the Inquiry report dt.18.11.2013 was never produced and exhibited, even though Shri P.K. Mandhata was examined as a witness. Since the Inquiry Report dt.18.11.2013 which is the basis for initiation of proceeding was never produced by the prosecution, as per the considered view of this Court, in absence of the said document which is of vital in nature, Petitioner could not have been held guilty of the charges by the Inquiry Officer, while submitting the re-inquiry report on 31.03.2017 under Annexure-7.Accordingly, basing 19 on the said Inquiry report dt.31.03.2017, Petitioner could not have been imposed with the impugned punishment vide
Arguments
one Shri P.K. Mandhata, Additional Conservator of Forests on 18.11.2013. All the charges in the proceeding were also framed basing on the enquiry report dt.18.11.2013. 4.1. It is also contended that all such charges were required to be proved with examination of seven (7) 2 P.Ws, which includes Shri P.K. Mandhata, A.C.F, Nayagarh Division. 4.2. Learned counsel for the Petitioner contended that even though the Proceeding was so initiated basing on the inquiry report dt.18.11.2013, but the said inquiry report was never provided to the Petitioner causing prejudice to him in filing his Written Statement of defence. However, Petitioner filed a Written Statement of defence on 27.10.2015 under Annexure-2, inter alia taking the ground that the charges so framed are not sustainable and not based on record. 4.3. It is contended that vide Office Order dt.04.08.2015, D.F.O, Mahanadi Wildlife Division was appointed as the Inquiry Officer and A.C.F, Office of D.F.O, Nayagarh was appointed as the Marshalling Officer. The Inquiring Officer while submitting the report on 31.05.2016 held the Petitioner liable for recovery of a sum of Rs.12,58,313.44 paisa. Accordingly, the 1st show-cause was issued by Opp. Party No.1 on 11.07.2016 under Annexure-4 along 3 with copy of the inquiry report so submitted on 31.05.2016. 4.4. Petitioner when submitted his reply to the 1st show-cause under Annexure-6 dt.05.08.2016, Opp. Party No.1 directed for de novo Inquiry vide order dt.13.12.2016 under Annexure-6. The Inquiry Officer accordingly submitted a fresh inquiry report on 31.03.2017 under Annexure-7, by holding the Petitioner liable for recovery of a sum of Rs.12,58,313.44 paisa. 4.5. Learned counsel for the Petitioner contended that basing on such re-enquiry report submitted on 31.03.2017, Petitioner was issued with the 1st show- cause vide notice dt.18.05.2017, reply of which was submitted on 26.06.2017. Even though in the said reply, Petitioner took the stand that as per the Memorandum, the Inquiry Report dt.18.11.2013, which is the basis for initiation of the proceeding was never exhibited by the prosecution nor the witnesses indicated in the Memorandum were so examined. It is accordingly contended that since the inquiry report 4 dt.18.11.2013 which is the basis for initiation of the proceeding was never exhibited by the Prosecution nor any of the witnesses indicated in the Memorandum were examined, the impugned order of Punishment so passed on 16.03.2018 under Annexure12 is not sustainable in the eye of law. 4.6. It is contended that without proper appreciation of the reply so submitted by the Petitioner to the 1st show-cause, Opp. Party No.1 issued the 2nd show- cause notice vide letter dt.18.08.2017 under Annexure-10 inter alia proposing the following punishment. 1. Recovery of Rs.12,58,313/- from the D O 2. Withholding of 25% of Pension amount for 5 years. 4.7. Learned counsel for the Petitioner contended that Petitioner though submitted a detailed reply to the 2nd show-cause vide Annexure-11, but without proper appreciation of the same, Petitioner was imposed with the impugned punishment vide Office Order dt.16.03.2018 under Annexure-12. The punishment 5 proposed in the 2nd show-cause was imposed on the Petitioner vide the impugned order dt.16.03.2018. 4.8. Learned counsel for the Petitioner contended that by the time the 1st show-cause was issued on 18.05.2017, Petitioner had already attained the age of superannuation having retired from service w.e.f 30.04.2017. Therefore, as provided under Rule-7 of the OCS(Pension) Rules, 1992, Petitioner should have been imposed with the punishment as prescribed under the said Rule. Not only that, since the inquiry report dt.18.11.2013 which is the basis of initiation of proceeding was never exhibited with examination of the witness in question and since the Inquiry Officer never examined any of the witnesses so indicated under Annexure-IV of the Memorandum dt.19.03.2014, finding of the Inquiry Officer while submitting the inquiry report on 31.03.2017 by holding the Petitioner liable to the extent of Rs.12,58,313.44 Paisa is not sustainable in the eye of law. 4.9. It is also contended that as reflected in the inquiry report dt.31.03.2017 under Annexure-7, none of the 6 witnesses so indicated in the Memorandum were examined nor the Inquiry Report dt.18.11.2013 was exhibited. It is contended that in view of such material irregularity committed by the Inquiry Officer, Petitioner should not have been held liable to refund the amount in question. It is also contended that in the reply to the 1st show-cause and 2nd show-cause, Petitioner though raised all those valid points, but Opp. Party No.1 without proper appreciation of the same, imposed the punishment of recovery of Rs.12,58,313.44 paisa and withholding of 25% of pension for 5 years vide the impugned order dt.16.03.2018 under Annexure-12. 4.10. It is contended that since enquiry report dt.18.11.2013, which is the basis of initiation of the proceeding was never exhibited with due examination of the witness in question nor any of the P.Ws indicated in Memorandum were ever examined by the prosecution by no stretch of imagination, Petitioner could have been held liable to refund the amount by the Inquiry Officer while submitting the report on 31.03.2017 under Annexure-7. Imposition of the 7 impugned punishment vide Order dt.16.03.2018 under Annexure-12 is basing on such enquiry report is not sustainable in the eye of law. 4.11. In support of his aforesaid submission, learned counsel for the Petitioner relied on the following decisions-: Union of India and Others (2022) 7 1. State of Uttar Pradesh and Others Vs. Saroj Kumar Sinha (2010) 2 Supreme Court Cases 772. 2. Niranjan Das Vs. State of Odisha & Others, 2023 (Supp. II) OLR - 582. 3. Vs. Suresh Kumar Singh, SCC 675 Vrs. 4. Chittaranjan Sambalpur University and Another, 2015 (Supp.-I) OLR 950 5. State of Odisha Vs. Satish Kumar Gajbhiye and Others,(2021) 17 SCC 90 and Another Ishwardas Tripathy In the case of State of Uttar Pradesh and Others, Hon’ble Apex Court in Paragraph-28,29 & 30 has held as follows : 28. Enquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to is not supposed 8 whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents. 29. Apart from the above by virtue of Article 311(2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee. 30. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in including imposition dismissal/removal from service. punishment of
Decision
order dt.16.03.2018 under Annexure-12. 9.2. Placing reliance on the decision cited by learned counsel for the Petitioner, though this Court is of the view that in absence of the Inquiry report dt.18.11.2013, Petitioner could not have been imposed with the impugned punishment, but taking into account the nature of charges and the fact that Petitioner never prayed for supply of the enquiry report dt.18.11.2013 prior to filing of the written statement of defence under Annexure-2, this Court while is inclined to quash the impugned order dt.16.03.2018 so issued by Opp. Party No.1 under Annexure-12, but is of the opinion that the Proceeding is required to be undertaken by Opp. Party No.1 from the stage of filing of the written statement of defence by the Petitioner. 9.3. Therefore, while quashing the impugned order dt.16.03.2018 so issued by Opp. Party No.1 under Annexure-12, this Court remits the matter to Opp. 20 Party No.1 to take up the proceeding afresh from the stage of filing of Written Statement of defence. While holding so, this Court directs Opp. Party No.1 to provide the Petitioner copy of the Inquiry report dt.18.11.2013, which is the basis for initiation of the proceeding, within a period of four(4) weeks from the date of receipt of this order. Petitioner will be provided with four (4) weeks time for filing of his Written Statement of defence from the date of supply of the enquiry report. After such submission of the Written Statement of defence, Opp. Party No.1 shall proceed with the matter and conclude the proceeding in all respect within a further period of six (6) months in accordance with law. 9.4. Since the Petitioner has retired on 31.03.2017, this Court directs Opp. Party No.1 to conclude the proceeding within the stipulated period as directed, without fail. However, if after receipt of the enquiry report, Petitioner fails to file his Written Statement of defence within the time stipulated by this Court, it will be open for Opp. Party No.1 to proceed with the matter. 21 With the aforesaid observation and direction, the Writ Petition is disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 16th August,2024/sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 20-Aug-2024 12:20:35 22