The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAPC) No.223 of 2018 Pratap Chandra Behera ..... State of Odisha & Ors. -versus- ..... CORAM: Petitioner Mr. G.R. Sethi, Advocate Opposite Parties Mr. S. Rath, ASC THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 10.07.2024 Order No.02 1. This matter is taken up through hybrid mode.
Legal Reasoning
2. On the oral prayer made by the learned counsel for the Petitioner, he is permitted to correct the prayer portion of the brief in Court. 3. Heard Mr. G.R. Sethi, learned counsel appearing for the Petitioner and Mr. S. Rath, learned Addl. Standing Counsel appearing for the Opp. Parties. 4. Petitioner has filed the present writ petition inter alia challenging the order of punishment passed by Opp. Party No. 4 on 18.06.2005 under Annexure-5 so confirmed by the appellate authority vide order dtd.26.11.2005 under Annexure-6 further confirmed by the revisional authority vide order dtd.20.12.2006 under Annexure-7 and rejection of the memorial so made to the Govt. vide order dtd.21.09.2007 under Annexure-9. 5. It is contended that Petitioner while working as a Constable in the establishment of Opp. Party No. 4, a proceeding was initiated against him vide proceeding No. 10 dtd.24.11.2003 inter alia with the following charges:- Page 1 of 7. “On 26.10.2003 he was found absent from duty without any leave, permission or authority. Later on the same day i.e.26.10.2003 he was involved in Managalpur P.S. Case No. 87 dt.27.10.2003 u/s 341/323/506 IPC. He is therefore, directed to show cause by 25.12.2003 as to why he shall not be dealt with in the event of the charges being held proved against him. Any representation that he wishes to make in this regard will be duly considered by the authority competent to pass final order before passing such orders.” 5.1. It is contended that though Petitioner initially did not file his explanation to the charges, but participated in the enquiry and submitted his written statement of defence on 01.03.2005 before the Enquiry Officer. The Enquiry Officer after conducting the enquiry while submitting the report vide Annexure-2 series, gave the following finding:- “After closer of the prosecution, the charged Constable was asked to submit his defence. Accordingly the charged Constable was asked to submit his defence on 1.3.05 which is in the record (Ext.11). In his defence the Constable has pleaded himself not guilty of the charge and has explained that his absence was purely a duty of a son towards his parents in a critical situation. After careful consideration, on the statement of the witnesses and the documents available in the record, it is proved that on 26.10.03 charged C/483 P. Ch. Behera while was detailed to perform Law and Order duty had absconded from the duty without any authority and was involved in a Criminal Case. Though he has not been charge sheeted due to want of evidence, his presence in the place of occurrence on 26.10.03 has been proved which strengthen the unauthorise absence of the Constable on duty.” 5.2 Learned counsel for the Petitioner contended that the proceeding was initiated against the Petitioner with regard to the allegation that on 26.10.2003 Petitioner was found absent from his duty without Page 2 of 7. taking any leave or permission from the concerned authority and he was involved in Mangalpur P.S. Case No. 87 dtd.27.10.2003. 5.3. Learned counsel for the Petitioner contended that the aforesaid criminal proceeding was initiated because of family dispute and the proceeding was dropped basing on the final form submitted by the learned SDJM, Jajpur vide his order dtd.04.05.2005. Order dtd.04.05.2005 so produced by the learned counsel for the Petitioner in Court be kept in record. 5.4. It is contended that since the proceeding was initiated because of his implication in Mangalpur P.S. Case No. 87 dtd.27.10.2003 and the said proceeding was dropped taking into account the final form submitted in that regard vide order dtd.04.05.2005 on the face of such order, when Petitioner was issued with the 2nd show-cause proposing therein to impose the punishment of dismissal, Petitioner challenging the same approached the Tribunal in O.A. No. 980(C) of 2005. The Tribunal vide order dtd.17.06.2005 under Annexure-3 while disposing the matter allowed the Petitioner to file reply to the 2nd show-cause and with a direction on Opp. Party No. 4 to take a decision keeping in view the gravity of offence alleged and nature of the punishment proposed. 5.5. It is contended that in terms of the order passed by the Tribunal, Petitioner though submitted his reply by Registered Post on 21.06.2005 vide Annexure-4, but prior to that the proceeding was disposed of by Opp. Party No. 4 vide impugned order of dismissal dtd.24.06.2005 under Annexure-5 with the plea that Petitioner since has failed to submit his explanation, punishment of dismissal as proposed was imposed on the Petitioner. Page 3 of 7. 5.6. Learned counsel for the Petitioner contended that since Petitioner was proceeded with in a proceeding because of his implication in a criminal case, which is nothing but a family dispute which was duly compromised with acceptance of the final report by the learned SDJM vide order dtd.04.05.2005, taking into account the other charge so framed, order of dismissal so passed by Opp. Party No. 4 vide order under Annexure-5 is not in conformity with the order passed by the Tribunal under Annexure-3. Opp. Party No. 4 even though was aware about the pendency of O.A. No. 980(C) of 2005 with passing of the order on 17.06.2005, but proceeded with the matter and imposed the punishment vide order dt.24.06.2005 with the plea that Petitioner since never filed his reply to the 2nd show-cause, punishment as proposed in the 2nd show-cause was imposed on the Petitioner. 5.7. It is also contended that against the order of punishment so passed under Annexure-5, Petitioner though moved the appellate authority as well as revisional authority, but both the authorities without proper appreciation of the grounds so taken, confirmed the order of punishment vide order under Annexure-6 & 7. It is contended that Petitioner lastly submitted a memorial before the Govt., but the said memorial was also rejected vide order dtd.21.09.2007 under Annexure-9. 5.8. Learned counsel for the Petitioner contended that by the time Petitioner was dismissed from his service, he had already served the Department for around 8 years and because of the nature of punishment imposed, Petitioner is going without employment since 24.06.2005 and was also deprived to get the benefit of pension and other pensionary benefits. It is also contended that since the criminal Page 4 of 7. case basing on which the proceeding was initiated was already disposed of vide order dtd.04.05.2005, the order of punishment so passed under Annexure-5 and confirmed vide order under Annexure- 6, 7 & 9 are not sustainable in the eye of law. 6. Mr. S. Rath, learned Addl. Standing Counsel on the other hand while supporting the impugned order made his submission basing on the stand taken in the counter affidavit so filed by Opp. Party No. 4. Basing on the stand so taken, it is contended that Petitioner while was on law and order duty on 26.10.2003, he left the same without proper intimation and involved himself in Managalpur P.S. Case No. 87 dtd.26.10.2003. Since Petitioner without any prior permission did not remain present in law and order duty and involved himself in a criminal case, Opp. Party No. 4 being the disciplinary authority passed the order of punishment of dismissal from service vide order under Annexure-5. 6.1. It is also contended that the appellate authority and revisional authority taking into account the conduct of the Petitioner in absconding from duty on 26.10.2003 without any permission, confirmed the order of punishment vide order under Annexure-6 & 7. Even the memorial filed before the Govt. was also rejected vide Annexure-9. It is accordingly contended that taking into account the conduct of the Petitioner in absconding from duty on 26.10.2003 and in not filing the reply to the 2nd show-cause, the order of punishment has been rightly passed, which requires no interference. 7. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that the proceeding in question was initiated against the Petitioner vide Proceeding No. 10 dtd.24.11.2003 with the allegation that Petitioner Page 5 of 7. absconded from duty on 26.10.2003 and got himself involved in Managalpur P.S. Case No. 87 dtd.26.10.2003. As found from the record the said criminal case was dropped with due acceptance of the final form by learned SDJM, Jajpur vide his order dtd.04.05.2005. 7.1. It is also found from the record that Petitioner on 26.10.2003 went to his residence on the call of his father because of some family dispute. Even though because of such family dispute, the criminal proceeding was initiated in Mangalpur P.S. Case No. 87 dt.26.10.2003, but the said dispute was amicably resolved with the proceeding being dropped vide order dtd.04.05.2005. Therefore, taking into account the fact that the criminal proceeding was dropped vide order dtd.04.05.2005 and the allegation made against the Petitioner in the memorandum, this Court is of the view that punishment of dismissal is not proportionate to the alleged misconduct of the Petitioner. Not only that even though challenging the 2nd show-cause Petitioner approached the Tribunal by filing O.A. No. 980(C) of 2005 and an order was passed on 17.06.2005 permitting the Petitioner to file his reply to the 2nd show-cause, Opp. Party No. 4 in spite of being aware about such pendency of the matter, could not have imposed the order of dismissal vide order under Annexure-5. Taking into account the nature of charges framed against the Petitioner and closure of the criminal proceeding, this Court is of the view that the order of punishment of dismissal could not have been passed against the Petitioner. 7.2. In view of such analysis, this Court is inclined to quash the order of punishment so passed by Opp. Party No. 4 vide order dtd.18.06.2005 under Annexure-5 so confirmed by the appellate authority vide order dtd.26.11.2005 under Annexure-6, by the Page 6 of 7. revisional authority vide order dtd.20.12.2006 under Annexure-7 and the rejection of the memorial by the Govt. vide order dtd.21.09.2007 under Annexure-9. While quashing all those orders, this Court directs Opp. Party No. 4 to reinstate the Petitioner in his service within a period of three (3) weeks from the date of receipt of this order. The period of service for which the Petitioner remained out of employment be regularized in accordance with law, but on notional basis.
Decision
8. The writ petition is accordingly disposed of. Sneha (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Jul-2024 10:54:24 Page 7 of 7.