The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C.(OA) No. 3068 of 2018 In the matter of an application under Section 19 of the Administrative Tribunal’s Act, 1985. ……………… Bibekananda Mohanty …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties W.P.C.(OA) No. 942 of 2019 Sudhakar Pradhan …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties W.P.C.(OAC) No. 1228 of 2019 Amar Mohapatra …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties For Petitioner : M/s. Sidheswar Mallick (Advocate) For Opp. Parties : Mr. A.P. Das Addl. Standing Counsel (appearing for State-Opp. Party) // 2 // PRESENT: THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------------- Date of Hearing: 10.02.2023 & Date of Judgment: 02.03.2023 --------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. Since the issue involved in the all the three (3) writ petitions is similar and the claim made by the Petitioners is also similar, all the three (3) writ petitions were heard analogously and disposed of vide the present common order. All the three (3) writ petitions have been filed challenging the order of punishment passed by the Govt.-O.P. No. 1 vide its order dtd.03.11.2018. 2. The factual backdrop giving rise to filing of the writ petitions is that vide memorandum dtd.25.04.2016 a joint proceeding was initiated against the Petitioners purportedly under Rule 17 r.w. Rule 15 of the OCS (CCA) Rules, 1962 (in short “Rules”). The proceeding in question was initiated against 5 nos. of delinquent employees which includes the present three (3) Petitioners. The article of charges framed vide Annexure-I to the memorandum dtd.25.04.2016 is reproduced hereunder:- Page 2 of 32 // 3 // “Lack of integrity, decorum of conduct, devotion of duty leading to violation of Rule-3 of Odisha Govt. Servant’s Conduct Rules’ 1959.” 2.1. Vide Annexure-II to the memorandum, the statement of imputations in support of article of charges against all the delinquent employees were framed and communicated. Similarly vide Annexure- III to the memorandum the memo of evidence basing on which the charges are to be proved were indicated. On receipt of the memorandum of charges all the Petitioners filed their respective written statement of defence. Thereafter, vide office order dtd.05.08.2016 Opp. Party No. 1 being the Disciplinary Authority appointed the Enquiry Officer and the Marshalling Officer to conduct the enquiry against all the 5 nos. of delinquent employees. In the said office order it was indicated that the proceeding dtd.25.04.2016 has been initiated under Rule 17 r.w. Rule 15 of the Rules. 2.2. The Petitioners on being noticed by the Enquiry Officer vide letter dtd.19.08.2016 duly participated in the enquiry which was conducted on 17.09.2016. The Enquiry Officer after conducting the enquiry when submitted the enquiry report on 02.05.2017, the Petitioners herein were issued with the 1st show-cause vide letter dtd.06.05.2017. Even though all the Petitioners submitted their respective show-causes to the finding of the Enquiry Officer, but the Page 3 of 32 // 4 // Disciplinary Authority without considering the replies so submitted by the Petitioners issued the 2nd show-cause vide letter dtd.07.09.2017 by proposing the punishments to be imposed against each of the 5 delinquent employees. 2.3. Even though the Petitioners submitted their respective replies against the second show-cause, but the Opp. Party No. 1 passed the impugned order of punishment on 03.11.2018 by imposing the following punishment against the present three (3) Petitioners:-
Legal Reasoning
himself. In the result, we are of the opinion that the impugned order of dismissal rendered by the disciplinary authority is violative of Article 311(2) of the Constitution of India inasmuch as the appellant has been denied reasonable opportunity of defending
Arguments
“A. Sri Amar Mahapatra, Ex-CSO-cum-DM, Khordha i. ii. Two increments withheld with cumulative effect. Recovery of Rs. 1,34,02,705/- in suitable instalments. B. Sri Sudhakar Pradhan, Ex-I/c CSO-cum-DM, Khordha i. One increment withheld with cumulative effect. ii. Recovery of Rs.32,29,344/- in suitable installments. C. Sri Bibekananda Mohanty, Ex-MI, Begunia i. One increment withheld with cumulative effect. ii. Recovery of Rs.32,29,344/- in suitable instalment.” 2.4. Being aggrieved by the order of punishment so passed on 03.11.2018 the present Petitioners have approached this Court in the present three (3) Writ Petitions. 3. Mr. S. Mallick, learned counsel for the Petitioners initially raised a preliminary objection with regard to maintainability of the proceeding inter alia on the ground that since the proceeding in question was initiated under Rule 17 r.w. Rule 15 of the Rules, in absence of the order of the Governor no such proceeding could have been initiated Page 4 of 32 // 5 // against the Petitioners vide memorandum dtd.25.04.2016 under Annexure-4. Rule 17 of the Rules prescribes that where two (2) or more Government servants are concerned in any case, Governor or any other authority competent to impose the penalty of dismissal from service on all such Government servants may make an order directing that disciplinary action against all of them may be taken in a common proceeding. Sub Rule 2 of Rule 17 provides that subject to provision of Sub-rule (4) of Rule 14 any such order shall specify- “(i) the authority which may function as the disciplinary authority for the purpose of such common proceedings; (ii) the penalties specified in Rule 13 which such disciplinary authority shall be competent to impose; and (iii) whether the procedure prescribed in Rule 15 or Rule 16 may be followed in the proceedings.” 3.1. Learned counsel for the Petitioners contended that since the memorandum dt.25.04.2016 was issued by the Opp. Party No. 1 and it does not reflect that it has been initiated by order of the Governor, the initiation of the proceeding is not only bad in the eye of law but also consequential action taken thereof. In support of his aforesaid submission, Mr. Mallick, learned counsel for the Petitioners relied on a decision of the Hon’ble Apex Court in the case of State of Punjab Vs. Davinder Pal Singh Bhullar Page 5 of 32 // 6 // (2011) 14 SCC 770. Hon’ble Apex Court in Para 107 to 111 of the Judgment has held as under:- “107. It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In such a fact situation, the legal maxim sublato fundamento cadit opus meaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case. 108. In Badrinath v. Govt. of TN 86 and State of Kerala v. Puthenkavu N.S.S. Karayogam this Court observed that once the basis of a proceeding is gone, all consequential acts, actions, orders would fall to the ground automatically and this principle is judicial, quasi-judicial and administrative applicable proceedings equally. to 109. Similarly in Mangal Prasad Tamoli v. Narvadeshwar Mishra this Court held that if an order at the initial stage is bad in law, then all further proceedings, consequent thereto, will be non est and have to be necessarily set aside. 110. In C. Albert Morris v. K. Chandrasekaran89 this Court held that a right in law exists only and only when it has a lawful origin. (See also Upen Chandra Gogoi v. State of Assam, Satchidananda Misra v. State of Orissa, SBI v. Rakesh Kumar Tewari and Ritesh Tewari v. State of U.P.) 111. Thus, in view of the above, we are of the considered opinion that the orders impugned being a nullity, cannot be subsequent sustained. proceedings/orders/FIR/investigation stand automatically vitiated and are liable to be declared non est.” consequence, As a 3.2. Bereft of the question of maintainability learned counsel for the Petitioners also contended that even though the very basis of initiation of the proceeding is the special audit report, but the auditor of the report was never examined as a witness to prove the report nor the special audit report was proved in course of the enquiry. It is also Page 6 of 32 // 7 // contended that the Enquiry Officer without examining any witnesses in support of the charges conducted the enquiry on a single date and submitted the report on 02.05.2017 vide Annexure-9. It is contended that in a Departmental Proceeding mere production of the document is not enough and contents of such documentary evidence has to be proved by examining the concerned witnesses. In the instant case neither the auditor of the special audit report was examined nor the audit report was proved though any independent witnesses. 3.3. It is also contended that the Enquiry Officer never examined any witnesses to prove the charges against the Petitioners nor the Petitioners were given an opportunity to examine their witnesses in support of their stand as taken in the written statement of defence as the enquiry was held and concluded on a single day. Not only that since the prosecution never examined any witnesses to prove the charges, the Petitioners were deprived from cross-examining the said witnesses. In support of his aforesaid submission, Mr. Mallick relied on a decision of the Hon’ble Apex Court in the case of Roop Singh Negi Vs. Punjab National Bank (2009) 2 SCC 570 as well as in the case of State of Utter Pradesh Vs. Saroj Kumar Sinha (2010) 2 SCC 772. Page 7 of 32 // 8 // 3.4. Hon’ble Apex Court in the case of Roop Singh Negi in Para 14, 15 and 23 and in the case of State of Uttar Pradesh in Para 26 to 28 has held as follows:- “14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence. 15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left. XXX XXX XXX Page 8 of 32 // 9 // 23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by e them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.” XXX XXX XXX “26. The first inquiry report is vitiated also on the ground that the inquiry officers failed to fix any date for the appearance of the respondent to answer the charges. Rule 7(x) clearly provides as under: "7. (x) Where the charged government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the service of the notice on him or having knowledge of the date, the inquiry officer shall proceed with the inquiry ex parte. In such a case the inquiry officer shall record the statement of witnesses mentioned in the charge- sheet in absence of the charged government servant." Page 9 of 32 // 10 // 27. A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge. 28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed 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 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.” 3.5. It is also contended that even though while initiating the proceeding vide Memorandum dtd.25.04.2016, the charges were to be proved basing on 5 nos. of documents more fully described vide Annexure-III to the memorandum, but the Petitioners at no point of time were provided with those documents. It is contended that it is the Page 10 of 32 // 11 // obligation of the Disciplinary Authority to supply the documents along with the charge memo basing on which the charges were framed. Failure of supply of documents along with the charge memo violates the principle of natural justice and the consequential order of punishment is not sustainable in the eye of law. In support of his aforesaid submission Mr. Mallick relied on the decision of the Hon’ble Apex Court in the case of Kashinath Dikshita Vs. Union of India & Ors. (AIR 1986 SC 2118). Hon’ble Apex Court in Para 2, 12 and 13 of the said Judgment has held as follows:- “2. The scope of the inquiry whether the impugned order of dismissal dated June 11, 1969 is null and void is restricted to two facets. Whether the principles of Natural justice were violated by the Respondents by refusing to supply to the appellant (1) copies of the statements of the witnesses examined at the stage of preliminary Inquiry preceding the commencement of the inquiry and (2) copies of the documents said to have been relied upon by the disciplinary authority in order to establish the charges against the appellant who was holding the post of Superintendent of Police, Bijnor, Uttar Pradesh. Such is the position having regard to the fact that this Court per Bhagwati, J. (as he then was) and Kailasam J. as per order dated October 25, 1977 whilst granting special leave, has so restricted the scope of the appeal in the following terms: - "Special leave granted limited only to the question whether there was any violation of Article 311 of the Page 11 of 32 // 12 // Constitution in regard to the documents and the statement of witnesses referred to in the affidavit of the petitioner dated 12-2-1977." XXX XXX XXX 12. The appellant relied on Tirlok Nath v. Union of India 1967 Serv LR 759 (SC) in support of the proposition that if a public servant facing an inquiry is not supplied copies of documents, it would amount to denial of reasonable opportunity. It has been held in this case: "Had he decided to do so, the documents would have been useful to the appellant for cross- examining the witnesses who deposed against him. Again had the copies of the documents been furnished to the appellant he might, after perusing them, well have exercised his right under the rule and asked for an oral inquiry to be held. Therefore, in our view the failure of the Inquiry Officer to furnish to the appellant with copies of the documents such as the FIR and statements recorded at Shidhipura house and during the investigation must be held to have caused prejudice to the appellant in making his defence at the inquiry." Reliance has also been placed on State of Punjab v. Bhagat Ram (1975) 2 SCR 370: (AIR 1974 SC 2335) and State of Uttar Pradesh v. Mohd. Sharif (dead) through LRS. (1982) 2 Lab LJ 180: (AIR Page 12 of 32 // 13 // 1982 SC 937) in support of the proposition that copies of statements of witnesses must be supplied to the Government servant facing a departmental inquiry it has been emphatically stated in State of Punjab V. Bhagat Ram by this Court as under:- “The State contended that the respondent was not entitled to get copies of statements. The reasoning of the State was that the respondent was given an opportunity to cross-examine the witnesses and during the cross-examination the respondent would have the opportunity of confronting the witnesses with the statements. It is contended that the synopsis was adequate to acquaint the respondent with the gist of the evidence. The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the Government servant is afforded a reasonable opportunity to defend himself against the charges on which inquiry is held. The Government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him. The object of supplying statements is that the Government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the Government servant. Unless the statements are given to the Government servant he will not be able to have an effective and useful cross-examination. Page 13 of 32 // 14 // It is unjust and unfair to deny the Government servant copies of statements of witnesses examined during investigation and produced at the inquiry in support of the charges levelled against the Government servant. A synopsis does not satisfy the requirements of giving the Government servant a reasonable opportunity of showing cause against the action proposed to be taken." 13. In view of the pronouncements of this Court it is impossible to take any other view. As discussed earlier the facts and circumstances of this case also impel us to the conclusion that the appellant has been denied reasonable opportunity to defend
Decision
himself and is on that account null and vold. We accordingly allow the appeal. The judgment of the High court is set aside. The impugned order of dismissal dated 10-11-1967 passed against the appellant is quashed and set aside We further declare that the impugned order of dismissal is a nullity and non-existent in the eye of law and the appellant must be treated as having continued in service till the date of his superannuation on January 31, 1983. Taking into account the facts and circumstances of this case and the time which has elapsed we are of the opinion that the State Government should not be permitted to hold a fresh inquiry against Page 14 of 32 // 15 // the appellant on the charges in question. We therefore direct the State Government not to do so. 3.6. It is also contended that though the Petitioners were given an opportunity to verify the documents which form the basis of the charges, but in view of the decision of the Hon’ble Apex Court in the case of State of Madhya Pradesh Vs. Chintaman Sadashiva Waishapayan (AIR 1961 SC 1623), offering of inspection of a document is not sufficient and failure to supply the documents along with charge memo vitiates the entire proceeding. Hon’ble Apex Court in Para 2 and 11 of the said Judgment has held as follows:- “2. Broadly stated the respondent challenged the validity of the impugned order on three grounds. He urged that the said order was Invalid as it was passed on the basis of an enquiry made by the police officers of the Hyderabad State who were not subordinate to the Inspector General of Police, Madhya Pradesh; according to him it was essential that an enquiry should have been held against him under the Police Act and Regulations of Madhya Pradesh after the show-cause notice was served on him; and since no such enquiry was held the whole proceedings are void and the impugned order is ultra vires. He also urged that the said order was not in accordance with Regulation No. 273 of Police Regulations of Madhya Pradesh, and the contravention of the said Regulation made the order invalid. Lastly it was argued that the enquiry held by the Hyderabad authorities was contrary to all principles of Page 15 of 32 // 16 // natural justice, and at the said enquiry the respondent had not been given a reasonable opportunity to meet the charges framed against him. XXX XXX XXX 11. Mr Khaskalam has strenuously contended before us that in not supplying the copies of the documents asked for by the respondent the enquiry officer was merely exercising his discretion, and as such it was not open to the High Court to consider the propriety or the validity of his decision. In support of this argument he has referred us to the decision of the Patna High Court in Dr Tribhuwan Nath v. State of Bihar, In that case the public officer wanted to have a copy of the report made by the anti-corruption department as a result of a confidential enquiry made by it against the said officer; and the enquiry officer had rejected his prayer. When it was urged before the High Court that the failure to supply the copy of the said report constituted a serious infirmity in the enquiry and amounted thereby to a denial of a reasonable opportunity to the public officer, the High Court repelled the argument, and held that the officer was not entitled to a copy of the report unless that report formed part of the evidence before the Enquiry Commissioner and was relied upon by him. "When, however, the report was not at all exhibited in the case, nor was it referred to, nor relied upon by the Commissioner", said the High Court, "there was no meaning in contesting it, and consequently absence of opportunity to meet its contents involved no violation of Page 16 of 32 // 17 // constitutional provisions". In our opinion, this decision cannot assist the appellant's case because, as we have already pointed out, the documents which the respondent I wanted in the present case were relevant and would have been of Invaluable assistance to him in making his defence and cross- examining the witnesses who gave evidence against him. It cannot be denied that when an order of dismissal passed against a public servant is challenged by him by a petition filed in the High Court under Article 226 it is for the High Court to consider whether the constitutional requirements of Article 311(2) have been satisfied or not. In such a case it would be idle to contend that the infirmities on which the public officer relies flow from the exercise of discretion vested in the enquiry officer. The enquiry officer may have acted bona fide but that does not mean that the discretionary orders passed by him are final and conclusive. Whenever it is urged before the High Court that as a result of such orders the public officer has been deprived of a reasonable opportunity it would be open to the High Court to examine the matter and decide whether the requirements of Article 311(2) have been satisfied or not. In such matters it is difficult and inexpedient to lay down any general rules; whether or not the officer in question has had a reasonable opportunity must always depend on the facts in each case. The only general statement that can be safely made in this connection is that the departmental enquiries should observe rules of natural justice, and that if they are fairly and properly conducted the decisions reached by the enquiry officers on the merits are open to be challenged on the Page 17 of 32 // 18 // ground that the procedure followed was not exactly in accordance with that which is observed in courts of law. As Venkatarama Aiyar, J. has observed in Union of India v. T.R. Varma "stating it broadly and without intending it to be exhaustive it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross- examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them". It is hardly necessary to emphasise that the right to cross-examine the witnesses who give evidence against him is a very valuable right, and if it appears that effective exercise of this right has been prevented by the enquiry officer by not giving to the officer relevant documents to which he is entitled, that inevitably would be that the enquiry had not been held in accordance with rules of natural justice. That is the view taken by the High Court, and in the present appeal which has been brought to this Court under Article 136 we see no justification for interfering with it. In this connection it would be relevant to refer to the decision of this Court in Khem Chand v. Union of Indias where this Court has emphasised the importance of giving an opportunity to the public officer defend himself by cross-examining the witnesses produced against him.” Page 18 of 32 // 19 // 3.7. It is also contended that even though the Enquiry Officer did not find any specific charges proved against the Petitioners, but the Opp. Party No. 1 while issuing the 2nd show-cause though gave his reason for not concurring with the finding of the Enquiry Officer, but it is contended that since the very enquiry was conducted in a casual manner without examining any witnesses either from the prosecution or from the defence and that too conducting the enquiry on a single date vis-a-vis the nature of allegations made, the action of the Opp. Party No. 1 in issuing the 2nd show-cause and upholding the same while imposing the order of punishment is not sustainable in the eye of law. It is also contended that even though the allegation is with regard to illegal action of the concerned miller namely M/s. Kalinga Agriculture Private Limited, but the said miller was also not examined as a witness and the Petitioners accordingly were deprived to cross- examine him in order to prove their innocence. In support of the same Mr. Mallick relied on the decision of the Hon’ble Apex Court reported in the case of G.S. Srivastab Vs. Union of India (2014 (II) ILR-CUT- 618). Hon’ble Apex Court in Para 10 & 11 of the Judgment held as follows:- “10. This Court in Bhubaneswar Chhatria (supra) has also referring to Hardwari Lal (supra) set aside the punishment imposed on the delinquent holding that non- amination of Page 19 of 32 // 20 // complainant whose evidence could have revealed truth or otherwise of charges is also a material factor to be taken into consideration. Had Prabhat Kumar Barik been examined in the proceeding he could have said with regard to payment of so called illegal gratification of Rs. 30/- to the petitioner. Therefore, non- examination of material witness and non-affording of opportunity to the petitioner amounts to none compliance of principle of natural justice. Therefore, the proceeding is vitiated and in consequence thereof the major penalty of removal from service in Annexure-5 and confirmation thereof in appeal Annexure-7 as well as in Revision under Annexure-9 also cannot be sustained. 11. In view of the aforesaid analysis being made and after going through the evidence on record, this Court is of the view that the finding of the Enquiring Officer is based on no evidence and as such there is non-compliance of principle of natural justice. Therefore, this Court sets aside the order of removal from service passed by the disciplinary authority, which has been confirmed by the appellate authority vide Annexure-7 and the Revisional Authority vide Annexure-9.” 3.8. Learned counsel for the petitioner contended that since the charges framed against the Petitioners are not specific with regard to any mis-appropriation and thereby causing loss to the Department the entire charge memo was liable to set aside in view of the decision of the Hon’ble Apex Court in the case of Transport Commissioner, Page 20 of 32 // 21 // Madras-5 Vs. A. Radha Krishna Moorthy (1995) 1 SCC 332. It is also contended that since the charge memo does not specify any specific charges against the delinquent employees, the enquiry into the allegation in respect of which the delinquent has not been charged is not just and proper in view of the decision of the Hon’ble Apex Court in the case of M.V. Bijlani Vs. Union of India reported in (2006) 5 SCC 88. Hon’ble Apex Court in Para 2, 9 and 10 of the Judgment in the case of Transport Commissioner and in Para 25 of the Judgment in the case of M.V. Bijlani has held as follows:- “2. This appeal is preferred against the judgment of the Tamil Nadu Administrative Tribunal allowing the original application filed by the respondent and quashing the memo of charges communicated to the respondent. 9. Insofar as the vagueness of the charges is concerned we find that it deserves acceptance. It is asserted by Shri Vaidyanathan, learned counsel for the respondent that except the memo of charges dated 4-6-1989, no other particulars of charges or supporting particulars were supplied. This assertion could not be denied by the learned counsel for the appellant. A reading of charges would show that they are not specific and clear. They do not point out clearly the precise charge against the respondent, which he was expected to meet. One can understand the charges being accompanied by a statement of particulars or other statement furnishing the particulars of the aforesaid charges but that was not done. The Page 21 of 32 // 22 // charges are general in nature to the effect that the respondent along with eight other officials indulged in misappropriation by falsification of accounts. What part did the respondent play, which account did he falsify or help falsify, which amount did he individually or together with other named persons misappropriate, are not particularized. The charge is a general one. It is significant to notice that respondent has been objecting to the charges on the ground of vagueness from the earliest stage and yet he was not furnished with the particulars. It is brought to our notice that respondent's name was not included in the schedule appended to GOMs 928 dated 25-4-1988 mentioning the names of officials responsible for falsification of accounts and misappropriation and that he is also not made an accused in the criminal proceedings initiated in that behalf. 10. We are, therefore, of the opinion that the judgment of the Tribunal is right insofar as it holds that the charges communicated to the respondent are vague. In the ordinary course we would have directed the disciplinary authority or the authority which framed the charges to particularize the charges and then to proceed with the enquiry but it appears that the respondent has hardly about seven or eight months to go for retirement Having regard to the facts and circumstances of the case, we are of the opinion that the matter should end here.” XXX XXX XXX Page 22 of 32 // 23 // “25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analyzing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.” 3.9. Making all such submissions learned counsel for the Petitioners contended that in view of such material irregularity with regard to initiation as well as conduct of the proceeding vis-à-vis the decision cited supra, the impugned order of punishment passed on 03.11.2018 is not sustainable in the eye of law and liable for interference by this Court. 4. Mr. A.P. Das, learned Addl. Standing Counsel appearing for the Opp. Party No. 1 on the other hand made his submissions basing on the stand taken in the counter affidavit. It is contended that since the Page 23 of 32 // 24 // proceeding was initiated under Rule 17 r.w. Rule 15 of the Rules the proceeding was initiated after due approval of the Hon’ble Minister, Department of Food Supplies and Consumer Welfare. Hence there is no irregularity with regard to initiation of the proceeding. It is also contended that since after initiation of the proceeding the Petitioner duly participated in the same, the grounds taken by the Petitioners that the proceeding is not maintainable in absence of the order of the Governor cannot be raised at this point of time. It is contended that once the Petitioners usurp to the jurisdiction of the Disciplinary Authority, the plea with regard to initiation of the proceeding cannot be taken after disposal of the same in view of the decision of the Hon’ble Apex Court reported in the case of Pannalal Binjraj & Anr. Vs. Union of India & Ors. (AIR 1957 SC 397) as well as the decision in the case of P.D. Dinakaran (1) Vs. Judges Inquiry Committee & Ors. Hon’ble Apex Court in the case of Pannalal Binjraj in Para 42 and in the case of P.D. Dinakaran in Para 77 to 79 has held as follows:- “42. There is moreover another feature which is common to both these groups and it is that none of the petitioners raised any objection to their cases being transferred in the manner stated above and in fact submitted to the jurisdiction of the Income Tax Officers to whom their cases had been transferred. It was only after our decision in Bidi Supply Co. v. Union of India [(1956) SCR 267] Page 24 of 32 // 25 // , was pronounced on March 20, 1956, that these petitioners woke up and asserted their alleged rights, the Amritsar group on April 20, 1956, and the Raichur group on November 5, 1956. If they acquiesced in the jurisdiction of the Income Tax Officers to whom their cases were transferred, they were certainly not entitled to invoke the jurisdiction of this Court under Article 32. It is well settled that such conduct of the petitioners would disentitle them to any relief at the hands of this Court (Vide Halsbury's Laws of England, Vol. II, 3rd Edn., p. 140, para 265; Rex v. Tabrum, Ex parte Dash [(1907) 97 LT 551]; O.A.O.K. Lakshmanan Chettiar v. Commissioner, Corporation of Madras and Chief Judge, Court of Small Causes, Madras [(1927) ILR 50 Mad 130] ). XXX XXX XXX 77. It is not the pleaded case of the petitioner that he had no knowledge about the seminar organised by the Bar Association of India on 28-11-2009 which was attended by eminent advocates including two former Attorneys General and in which Respondent 3 made a speech opposing his elevation to this Court and also drafted a resolution for the said purpose. The proceedings of the seminar received wide publicity in the print and electronic media. Therefore, it can be said that much before the constitution of the Committee, the petitioner had become aware of the fact that Respondent 3, who, as per the petitioner's own version, had appreciated his work on the Bench and had sent a congratulatory message when his name was cleared by the collegium for elevation to this Court, had participated in the seminar and made a speech opposing his elevation and also drafted resolution for the said purpose. The Chairman had appointed Respondent 3 as a member of the Committee keeping in view his long experience as an eminent advocate and expertise in the field of constitutional law. The constitution of the Committee was notified in the Official Gazette Page 25 of 32 // 26 // dated 15-1-2010 and was widely publicised by almost all the newspapers. Therefore, it can reasonably be presumed that the petitioner had become aware about the constitution of the Committee, which included Respondent 3, in the month of January 2010. 78. In his representation dated 12-5-2010, the petitioner claimed that he came to know about the constitution and composition of the Committee through the print and electronic media. Thus, at least on 12-5-2010 he was very much aware that Respondent 3 had been appointed as a member of the Committee. Notwithstanding this, he did not raise any objection apparently because after meeting Respondent 3 on 6-12-2009 at the latter's residence, the petitioner felt satisfied that the said respondent had nothing against him. Therefore, the belated plea taken by the petitioner that by virtue of his active participation in the meeting held by the Bar Association of India, Respondent 3 will be deemed to be biased against him does not merit acceptance. 79. It is also significant to note that Respondent 3 had nothing personal against the petitioner. He had taken part in the seminar as Vice-President of the Association. The concern shown by senior members of the Bar including Respondent 3 in the matter of elevation of the petitioner, who is alleged to have misused his position as a Judge and as Chief Justice of the High Court for material gains was not actuated by ulterior motive. They genuinely felt that the allegations made against the petitioner need investigation. After the seminar, Respondent 3 is not shown to have done anything which may give the slightest impression to any person of reasonable prudence that he was ill-disposed against the petitioner. Rather, as per the petitioner's own statement, he had met Respondent 3 at the latter's residence on 6-12-2009 and was convinced that the latter had nothing against him. This being the position, it is not possible to entertain the petitioner's plea that constitution of the Committee should be declared a nullity on the ground that Respondent 3 is biased against him and the order dated 24-4-2011 be quashed.” 4.1. Mr. A.P. Das, learned ASC further contended that while issuing the memorandum of charges the Petitioners were allowed to peruse Page 26 of 32 // 27 // the relevant records in the office of CSO -Cum- District Magistrate, Khordha-Opp. Party No. 4 and on perusal of the same the Petitioners submitted their respective written statement of defence. The Petitioners never asked for any documents at any point of time. Therefore, the plea taken by the Petitioners that they were prejudiced on the ground of non-supply of the document along with the charge memo cannot be raised after participating in the proceeding and after disposal of the same. 4.2. It is also contended that in course of enquiry none of the Petitioners requested for examination of the any witnesses and accordingly the Enquiry Officer duly conducted the enquiry and submitted the report on 02.05.2017 by holding the Petitioners guilty of the charges. After receipt of the enquiry report, the Opp. Party No. 1 in terms of the provision contained under the Rules, issued the 1st show-cause as well as the 2nd show-cause and thereby giving opportunity of hearing to the Petitioners. It is also contended that while issuing the 2nd show-cause on 07.09.2017 Opp. Party No. 1 gave detailed reasons vide Annexure-A on the point of imposition of the proposed penalties. Therefore, the stand taken by the Petitioners that the Opp. Party No. 1 issued the 2nd show-cause without assigning any reason is not sustainable. Page 27 of 32 // 28 // 4.3. Since all the delinquent officers during their respective tenure are responsible and accountable for the loss in question, the proceeding was initiated under Rule 17 and the order of punishment was passed by following the procedures contained under the Rules. Accordingly, it is contended that the impugned order has been rightly passed as against the Petitioners which requires no interference. 5. I have heard Mr. Sidheswar Mallick, learned counsel for the Petitioners, Mr. A.P. Das, learned Addl. Standing Counsel appearing for the State-Opp. Party. On the consent of both the Parties the matters were finally heard at the stage of admission and disposed of vide the present common order. 6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, since learned counsel for the Petitioners raised a preliminary issue with regard to maintainability of the proceeding in absence of the order by the Hon’ble Governor, the same issue is required to be dealt with by this Court as a preliminary issue. 6.1. With regard to the stand taken by the Petitioners regarding maintainability of the proceeding on the ground that the same was not initiated by taking appropriate order from the Governor, it is the view of this Court that since the Petitioners after receipt of the charges duly participated in the proceeding and usurp to the jurisdiction of the Opp. Page 28 of 32 // 29 // Party No. 1, the Petitioners after closure of the proceeding are not permitted to raise such a stand in view of the decision of the Hon’ble Apex Court as cited supra in the case of Pannalal Binjraj & Anr. Vs. Union of India & Ors. (AIR 1957 SC 397) as well as the decision in the case of P.D. Dinakaran (1) Vs. Judges Inquiry Committee & Ors. The Petitioners are not permitted to take such a stand after due participation in the proceeding and the issue is decided against the Petitioners. 6.2. It is found that the proceeding dtd.25.04.2016 was initiated against the Petitioner with the charges mentioned vide Annexure-I and the statement of imputation vide Annexure-II and the memo of evidence vide Annexure-III. Though the prosecution as revealed from Annexure-III, is required to prove the charges relying on 5 nos. of documents which includes the special audit report, but the Petitioners were never provided with the copy of the same, nor the said audit report was proved by the Enquiry Officer in course of enquiry by giving opportunity of hearing to the Petitioners to disprove the same. 6.3. It is also found that the Enquiry Officer taking into account the serious nature of charges and the amount of loss involved, never examined any witnesses to prove the charges against the Petitioners and the enquiry was conducted on a single day. Not only that the Page 29 of 32 // 30 // prosecution in support of the charges though relied on 5 nos. of documents which includes the special audit report, but the Petitioners were never provided with the same nor the same was proved by the Enquiry Officer by examining the Auditor or any competent witness. 6.4. It is also found that even though the Petitioners were allowed to inspect the documents prior to submission of the written statement of defence, but in view of the decision of the Hon’ble Apex Court in the case of State of Madhya Pradesh as cited supra, offering of inspection of documents is not sufficient and failure to supply documents along with charge memo vitiates the entire proceeding. It is also found from the record that though the charges relate to the irregularities committed by the miller namely M/s. Kalinga Agriculture Pvt. Ltd., but the said miller was not examined as a witness by the Enquiry Officer nor the Petitioners were allowed to cross-examine him. Therefore, as per the view of this Court, the privileged rights of the Petitioners to prove their innocence by cross-examining the miller was curtailed. 6.5. It is also found that in the memorandum of charges no specific charge was framed against the Petitioners with regard to the loss caused by them and all the 5 nos. of delinquent employees were charged with a single charge i.e. lack of integrity, decorum of conduct, Page 30 of 32 // 31 // devotion of duty leading to violation of Rule-3 of Odisha Government Servant’s Conduct Rules, 1959. Since no specific charge was framed against each of the delinquent employees, the enquiry officer should have dealt with it by giving opportunity of hearing to the Petitioners. 6.6. Therefore, taking into account the pleadings available, submissions made and the decisions as cited (supra), it is the view of this Court that the enquiry in the present case was conducted in a casual manner and the Enquiry Officer never proved any documents in support of the charges with due examination of witnesses. Therefore, the order of punishment so imposed basing on such enquiry report is not sustainable in the eye of law. Accordingly, this Court is inclined to quash the order of punishment dt.03.11.2018 so passed against the Petitioners. However, while quashing the same, this Court remits the matter back to the Opp. Party No. 1 to conduct the proceeding afresh from the stage of initiation of the proceeding vide memorandum dtd.23.04.2016. 6.7. It is directed that Petitioners shall be allowed to take copies of the documents basing on which the charges have been framed and the Petitioners will be permitted to file their respective written statement of defence afresh. The Opp. Party No. 1 after receipt of the written statement of defence shall appoint a fresh Enquiry Officer and Page 31 of 32 // 32 // conclude the proceedings by following the provision contained under OCS (CCA) Rules, 1962. Since the proceeding is of the year 2016, Opp. Party No. 1 is directed to conclude the same by the end of this year, if there is no other legal impediment. 7. All the writ petitions are disposed of accordingly with the aforesaid observation and direction. However, there shall be no order as to cost. Orissa High Court, Cuttack Dated the 2nd of March, 2023/Sneha (Biraja Prasanna Satapathy) Judge Page 32 of 32