The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC (OAC) No.1319 of 2018 Satya Narayan Rath …. Petitioner Mr. S.N. Biswal, Adv. -versus- A. State of Odisha & Others … Opp. Parties Mr. M.K. Balabantaray, Addl. Govt. Advocate CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No
Decision
ORDER 07.05.2024 4. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel for the parties. 3. Petitioner has filed the present Writ Petition inter alia challenging the order of punishment passed vide order dt.27.04.2017 under Annexure-14, so confirmed by Opp. Party No.1 vide order dt.28.04.2018 under Annexure-16. 4. Learned counsel for the Petitioner contended that in the proceeding initiated against the Petitioner vide Annexure-4, even though Inquiry Officer held the Petitioner not guilty of the charges while submitting the report under Annexure-9, but Opp. Party No.2 being the Disciplinary Authority issued the 2nd show- cause by proposing the punishment vide order dt.05.12.2016 under Annexure-13. Even though Petitioner submitted his reply to the same, but without proper appreciation, Opp. Party No.2 while disposing the proceeding, imposed the following punishment vide the impugned order dt.27.04.2017 under Annexure-14. “The explanation to the second show cause notice found submitted by charged officer the is the taking Hence, unsatisfactory. facts and circumstances into account, I impose upon Inspector Satya Narayan Rath, the proposed punishment of “Two Black Marks” for his gross misconduct and dereliction in duty . His suspension period from 09.03.2013 to 19.07.2013 is treated as such. Cuttack UPD Proceeding No.8/13 is disposed of accordingly. Consequent upon imposition of this punishment he has a total of 4 (four) BLACK MARKS including earlier punishment of Two Black Marks.” 4.1. It is contended that against such an order of punishment, Petitioner though preferred an appeal under Annexure-15, but the Appellate Authority-Opp. Party No.1 without assigning any reason confirmed the order of punishment while rejecting the appeal vide impugned order dt.28.04.2018 under Annexure-16. 4.2. It is contended that since the Inquiry Officer while submitting the report did not find anything against the Petitioner, Opp. Party No.2 being the Disciplinary Authority without deferring with the said view, could not have imposed the punishment vide order under Annexure-14. 4.3. It is also contended that no such order to treat the period of suspension as such as a punishment, is prescribed under PMR-824. It is contended that since no such punishment is prescribed under PMR-824, the punishment to treat the period of suspension as such could not have been imposed along with the punishment of two (2) black mark. 4.4. In support of the aforesaid submission that no such punishment to treat the period of suspension as such is prescribed under PMR-824, learned counsel for the Petitioner relied on the decision of this Court passed on 09.04.2024 in W.P.C(OAC) No.761 of 2018. The view expressed by this Court in para 6 of the said order is reproduced hereunder. “6. Having heard learned counsel for the Parties, considering the materials available on record and the nature of charges framed against the Petitioner, this Court finds that proceeding against the Petitioner Page 2 of 6 was conducted in accordance with law and no plea has been raised with regard to non-compliance of any statutory provision while conducting the proceeding and so also the enquiry. Therefore, this Court is not inclined to interfere with the order of punishment so far as it relates to imposition of one black mark. But since no such order of punishment is to treat the period of suspension as such prescribed under PMR-824, placing reliance on the said provisions and the decision as cited supra, this Court is of the view that no such order of punishment to treat the period of suspension could have been passed while imposing punishment of one black mark. Therefore, this Court is inclined to quash the order of punishment so far as it relates to treating the period of suspension as such. While interfering with the same, this Court is inclined to quash the order to treat the period of suspension as such and quash the same accordingly. 5. Mr. M.K. Balabantaray, learned Additional Govt. Advocate made his submission basing on the stand taken in the counter affidavit. It is contended that on the face of enquiry report submitted under Annexure-9, Opp. Party No.2 being the Disciplinary Authority while issuing the 2nd show-cause on 07.01.2017 under Annexure-12 clearly disagreed with the finding of the Inquiry Officer and the said fact is reflected in Annexure-12 itself. It is accordingly contended that since disagreement note was given by the Disciplinary Authority, it cannot be held that Disciplinary Authority is not competent to issue the 2nd show-cause proposing the punishment therein. It is also contended that Disciplinary Authority by following due procedure of law and by giving due opportunity of hearing to the Petitioner all through, imposed the order of punishment vide order under Annexure-14. The appellate authority after due consideration of the grounds taken in the appeal, also rejected the same while confirming the order of punishment vide order under Annexure-16. 5.1. Stand of Opp. Party No.3 in Paragraph 15 of the counter reads as follows: Page 3 of 6 “Xxxx the disciplinary authority have gone through the records and remarked about the lapses on the part of the Petitioner and his disagreement on the findings of the E.O. As the explanation submitted by the Petitioner towards 1st show-cause and 2nd show-cause notices were unsatisfactory, the Petitioner has been awarded with “Two Black Marks” levelled considering the gravity of the charges against him. The suspension period from 09.03.2013 A.M to 19.07.2013 P.M is treated as such. The said suspension period has been decided as per Rule-12 (6) of Orissa Civil Services (C.C.A) Rules, 1962 As regards the contemplation of awarding of punishment as double jeopardy it is submitted that section 834 (a) of Odisha Police Manual speaks about the imposition of black marks which clearly states that “Black Marks” may be awarded alone or in addition to other punishments enumerated in rule 824 except dismissal or removal, to all officers of and below the rank of Inspector. NO more than one black mark shall be awarded or any one offence except when, moral turpitude can reasonably be inferred”. In the present case the disciplinary authority have awarded punishment of ‘Two Black Marks’ & treated the suspension period as such, which is inclusive after going through the records and considering the gravity of the charges levelled against the petitioner that arises over the homicidal death of a person and surely it is graver than the moral turpitude aspect.” 5.2. It is contended that since there is no procedural irregularities with regard to conduct of the proceeding and principle of natural justice was followed all through, the order of punishment requires no interference of this Court. 6. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that in the proceeding initiated against the Petitioner under Annexure-4, the Inquiry Officer though held the Petitioner not guilty of the charges while submitting the Inquiry Report under Annexure-9, but as found from the record, Opp. Party No.2 being the Disciplinary authority while issuing the 2nd Show- cause on 03.12.2016 under Annexure-12, disagreed with the finding of the Inquiry Officer. The disagreement note indicated in the impugned 2nd show cause reads as follows : Page 4 of 6 in custody. “I did not agree with the findings of the Enquiring Officer as it is proved that the suspect Krutibas Mohapatra was detained at Energy P.S without No showing him arrested or kept Command Certificate was issued to the staff of P.S. to conduct raid for recovery of stolen property. No corresponding entry made in the Station Diary on 1.3.2013. There is sufficient evidence in the statement of the P.Ws that the Charged Officer who was the I.O and IIC Energy P.S had not taken any precaution while the suspect Krutibas Mohapatra was detailed at P.S. for which he could manage to slip away and consume poison (Pesticide) and again returned to P.S. Being the IIC he was fully responsible for maintenance of records of the P.S like Station Diary and Command Certificate. 6.1. It is also found that the Disciplinary Authority by following due procedure so prescribed, conducted the proceeding and imposed the order of punishment vide order dt.27.04.2012 under Annexure-14. But as found from the record, while imposing punishment of two(2) black mark, the period of suspension was treated as such. The order of punishment though was assailed before the appellate authority, but the appellate authority confirmed the same while rejecting the appeal vide order dt.28.04.2018 under Annexure-16. 6.2. Since no such punishment to treat the period of suspension as such is prescribed under PMR-824, this Court placing reliance on the decision as cited supra is inclined to quash that part of the order. But this Court finds no illegality or irregularity with regard to imposition of punishment of two (2) black marks which has been rightly passed by the Disciplinary Authority vide order under Annexure-14, so confirmed vide order under Annexure-16. 6.3. Therefore, while disposing the Writ Petition, this Court only interferes with the order of punishment, so far as it relates to treating the period of suspension as such. While quashing that part of the order, this Court directs Opp. Party No.2 to treat the said period as leave due and Page 5 of 6 admissible and pass a fresh order in that regard within a period of two (2) months from the date of receipt of this order. Consequential follow-up action be taken after such regularization of the period in question. The Writ Petition is accordingly disposed of. (Biraja Prasanna Satapathy) Judge sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authenticatin of order Location: high court of orissa, cuttack Date: 09-May-2024 18:21:30 Page 6 of 6