The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OA) No.992 of 2018 Sibaram Bhattamishra …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 25.01.2023 Order No 04. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. K.N. Das, learned counsel for the Petitioner and Mr. D.K. Mohanty, learned Addl. Standing Counsel appearing for the Opp. Parties. 3. The present writ petition has been filed challenging the order of punishment passed by the Superintendent of Police, Berhampur on 17.06.2013 under Annexure-8 and confirmation of the same by the Appellate Authority vide order dtd.09.01.2014 under Annexure-10. 4. It is the case of the Petitioner that the Petitioner while performing his duty in the residential office of the RDC Southern Division on // 2 // 22.05.2011, he was due to perform his duty from 10 p.m. to 12 p.m. But the R.I. of Police R.O., Berhampur reported to the S.P., Berhampur under Annexure-1 that at about 11.40 p.m. of the said date, he did not found the present Petitioner performing his duty. Basing on such report submitted by the R.I. of Police, the proceeding was initiated against the Petitioner with the following charges under Annexure-3:- “C/69 S.R.B.Mishra of APR, RO, Berhampur is charged with gross dereliction in duty, intentional misconduct, indiscipline with negligence of duty in that while he was on deputation to R.D.C. Residence guard duty, vide CCN 269787 Date 10.01.2011, during checking by R.1. Niroda Kumar Pala on 22.05.2011 at 11.40 p.m., he was found absent from R.D.C. Residence Guard duty unauthorized. This amounts to gross and intentional dereliction of duty, Misconduct and indiscipline. He is therefore directed to show Cause by 98.06.2011 as to why necessary departmental action shall not be taken against him in the event of the above mentioned charges being held to be proved against him. Page 2 of 8 // 3 // Any representation that he wishes to make in this regard in writing will be duty considered by the authority competent to pass final order before passing such orders.” 5. On receipt of the charge the Petitioner though submitted his explanation under Annexure-4, but the Disciplinary Authority not being satisfied proceeded with the enquiry. The Enquiry Officer after conducting the enquiry submitted his report vide Annexure-6. 6. Learned counsel for the Petitioner contended that the Petitioner could not perform his duty during the relevant period i.e. 10 p.m. to 12 p.m. on 22.05.2011 as he suffered from some medical problem and was taken to the City Hospital, Berhampur for treatment. During course of enquiry the Petitioner examined the concerned Doctor as D.W. 3 and D.W. 3 in his statement stated as follows:- “D.W. 3 Dr. Prasanta Kumar Patra. Sr. Surgery specialist of City hospital, Berhampur was examined on 13.01.2013. In his examination he stated that he treated the charged constable on 22.05.2011 at about 10 P.M. at O.P.D. of City hospital, Berhampur. The charged constable complained of pain in abdomen, burning sensation in micturition and fever. He prescribed injection and the charged constable was first injected and rested for a while in the O.P.D.. After about 2 to 3 Page 3 of 8 // 4 // hours when the temperature and pain was subsided, the charged constable purchased medicine and left the O.P.D.” 7. It is contended that on the face of such statement given by the D.W. 3 the Enquiry Officer without taking into account that statement of D.W. 3, submitted the enquiry report by holding the Petitioner guilty of the charges. It is further contended that after receipt of the enquiry report the Petitioner was never issued with the 1st show-cause along with a copy of the enquiry report and straight away the Disciplinary Authority issued the 2nd show-cause under Annexure-7 by holding the Petitioner guilty of charges and by proposing to award punishment of one black mark and to treat the period of suspension from 23.05.2011 to 04.06.2011 as such. 8. On receipt of the 2nd show-cause though the Petitioner submitted his reply, but the Disciplinary Authority without considering the same in its proper perspective passed the order of punishment on 17.06.2013 under Annexure-8 by awarding one black mark and by treating the suspension period from 23.05.2011 to 04.06.2011 as such. 9. It is further contended that against the order of punishment passed under Annexure-8 though the Petitioner preferred an appeal Page 4 of 8 // 5 // and Revision before the Appellate and Revisional Authority, but the said authorities also without proper appreciation of the grounds taken in the appeal as well as revision and the non-compliance of the provision contained under Rule 15 of the OCS (CCA) Rules, 1962, confirmed the order of punishment by dismissing the appeal vide order dtd.09.01.2014 under Annexure-10 and the Revision vide order at Annexure-12. Accordingly, it is contended that since the Disciplinary Authority never followed the provisions contained under Rule 15 of the OCS (CCA) Rules 1962 by issuing the 1st show-cause with a copy of the enquiry report and straight away issued the 2nd show-cause by proposing the punishment, the same amounts to non-compliance of the principle of natural justice and on that ground only the order of punishment is not sustainable in the eye of law. 10. Mr. D.K. Mohanty, learned ASC made his submission basing on the stand taken in the counter affidavit. It is contended that on receipt of the enquiry report when the Disciplinary Authority found that the Petitioner has been afforded required opportunity of hearing at every stage of the proceeding, he was issued with the 2nd show- cause under Annexure-7 by proposing the punishment. Thereafter, on consideration of the reply to the 2nd show-cause, the order of punishment was rightly passed under Annexure-8. It is also Page 5 of 8 // 6 // contended that the Appellate Authority as well as the Revisional Authority while confirming the order of punishment also take into account the grounds taken by the Petitioner. Accordingly, it is contended that no illegality or irregularity is there with the order punishment passed under Annexure-8 and upholding of the same under Annexure-10 and 12. 11. I have heard Mr. K.N. Das, learned counsel for the Petitioner and Mr. D.K. Mohanty, learned Addl. Standing Counsel appearing for the Opp. Parties. On the consent of both the Parties the matter
Decision
was finally heard at the stage of admission and disposed of vide the present order. 12. Having heard learned counsel for the Parties and after going through the materials available on record, this Court finds that the Petitioner was proceeded within the proceeding vide Annexure-3, with the charge that on 22.05.2011 at 11.40 p.m. he was found absent from his duty though he was required to perform his duty from 10 p.m. to 12 p.m. After receipt of the charge the Petitioner in his reply clearly submitted that because of some medical urgency he was taken to the City Hospital, Berhampur for treatment at about 9.30 p.m. and after being treated by the concerned doctor, he came back to his duty at about 2.10 a.m. in the night of 22/23.05.2011. Page 6 of 8 // 7 // The said stand of the Petitioner is also fortified by the statement given by the concerned doctor before the Enquiry Officer as D.W. 3. 13. D.W. 3 in his statement has clearly admitted that the Petitioner was treated by him at about 10 p.m. in the City Hospital, Berhampur and after about 2 to 3 hours he was discharged from the hospital. This Court finds that the said statement of D.W. 3 has not been taken into consideration either by the Enquiry Officer or by the Disciplinary Authority while imposing the order of punishment. It is also found that after receipt of the enquiry report the Petitioner was never issued with the 1st show-cause which is mandatory as per the provision contained under Rule 15 of the OCS (CCA) Rules, 1962. 14. In view of non-compliance of the aforesaid provision coupled with the fact that the Disciplinary Authority never take into consideration the statement of the concerned doctor in its proper perspective, this Court is of the opinion that the order of punishment passed against the Petitioner by the Superintendent of Police, Berhampur under Annexure-8 and confirmed by the Appellate Authority and Revisional Authority under Annexure-10 and 12 are not legally sustainable. Therefore, this Court is inclined Page 7 of 8 // 8 // to quash the order of punishment passed under Annexure-8 and confirmed under Annexure-10 as well as Annexure-12. While quashing the same, this Court directs the Opp. Parties more particularly O.P. No. 3 to regularise the services of the Petitioner for the period from 23.05.2011 to 04.06.2011 by treating it as duty and pay him the financial benefit as due and admissible. The said exercise be completed within a period of one month from the date of receipt of this order. 15. The writ petition is disposed of with the aforesaid observation and direction. (Biraja Prasanna Satapathy) Judge Sneha Page 8 of 8