The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) (OAC) No.1261 of 2016 In the matter of an application under Section 19 of the Administrative Tribunal’s Act, 1985. ……………… Arun Kumar Khanda …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner : M/s.B.K. Routray, R.P. Mohapatra, A. Routray, S. Patnaik, L.Bhai & R.K. Bhoi. For Opp. Parties : M/s. S. Rath, Addl. Standing Counsel PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY Date of Hearing: 13.10.2023 and Date of Judgment:29.11.2023 ---------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. The present Writ Petition has been filed inter alia with the following prayer:- “(i) This Hon’ble Tribunal may be graciously pleased to admit this Original Application, call for the necessary Records and issue Notice to the Respondent to show cause as to why the prayer in this Original Application shall not be allowed; And Hon’ble Tribunal be further pleased to allow the Original Application of the Applicant on hearing of the Parties; And this Hon’ble Tribunal be kind and gracious enough to quash / set-aside the major & minor punishments i.e. stoppage of two increments with cumulative effect and censure vide Annexure-8; // 2 // And the Applicant may be allowed to get all Service, Financial and Consequential benefits with interest at the rate of 18% for delayed payment; And the Applicant may be granted equitable cost and compensation for sustaining mental agony and anguish by the unlawful and illegitimate action of the Respondent ; that And this Hon’ble Tribunal may be kind and gracious enough the Departmental/Disciplinary Proceeding to hold illegal and not No.39/OAS/2012 vide Annexure-01 is maintainable and the Charge sheet framed therein baseless, vague and liable to be quashed, as such the said D.P. and C.S. be quashed / set-aside; is And any other Order/Orders, direction / Directors and /Or Relief/ Reliefs may be passed / granted, as deemed fit and proper”. 2. Learned counsel for the Petitioner contended that Petitioner while continuing in the cadre of OAS-I (JB), he was posted as Tahasildar in Bhograi Tahasil. Petitioner continued in the said Tahasil for the period from 05.09.2011 to 31.05.2012. Subsequently, Petitioner was transferred and posted as Tahasildar in Kodinga Tahasil in the district of Nabarganpur. While continuing as Tahasildar in Kodinga Tahasil, a proceeding was initiated against him under Rule-15 of the OCS (CC&A) Rules, 1962 vide Memorandum dtd.07.12.2012. In the said proceeding, the following charges were framed against the Petitioner :-
Legal Reasoning
“ARTICLE OF CHARGES You Sri Arun Kumar Khanda, Ex-Tahasildar, Bhograi during your incumbency as such failed to safe guard the interest of from Government encroachers. the Government to protect land the State have been encouraged That, due to your negligence in duty the people from outside the of government land and stood a mute spectator to massive construction on such land. to encroach Page 2 of 14 // 3 // By the aforesaid acts, you have failed to maintain absolute integrity and devotion to duty in contravention of Orissa Government Servants’ Conduct Rules, 1959. Thus, the following article of charges are leveled against your. 01. 02. 03. Negligence in duty. Not maintaining absolute Integrity. Gross Misconduct”. 2.1. It is contended that the proceeding in question was initiated on the ground that the Petitioner while continuing as Tahasilar, Bhograi, a private Company though encroached Government land measuring an area of Ac.1.39 dec. and basing on the report of the Revenue Inspector, Encroachment Proceeding was initiated against the said Company vide Encroachment Case No.588/2011. The said case was disposed of on 23.11.2011 by assessing the company liable to pay penalty of Rs.42,000/-. After disposal of the proceeding on 23.12.2011 though Form-J was issued to the R.I. for realization of the dues and notice was issued to the encroacher to vacate the encroached land, but the said notice was never issued and served on the encroacher. Accordingly the Government land could not be made encroach free. 2.2. It is also contended that thereafter without taking any further step in the Encroachment case, in Lease Case No.7/2010, the present Petitioner recommended for grant of lease of encroached land in favour of the company, against Page 3 of 14 // 4 // whom Encroachment Case No.588 of 2011 was initiated. The proceeding in question was initiated for such alleged act of the Petitioner. 2.3. It is contended that on receipt of the charges vide Memorandum issued under Annexure-1, Petitioner submitted his written statement of defence on 26.02.2013 under Annexure-2. Thereafter the Enquiry Officer proceeded with the enquiry and submitted the enquiry report on 24.10.2013 inter alia with the finding that the Petitioner be exonerated from the charges with a warning to be cautious in future to safeguard the interest of the Government. On receipt of the enquiry report, Petitioner when was issued with the 1st show cause as provided under Rule-15 of the OCS (CC&A) Rules, 1962 on 01.11.2013 under Annexure-3, Petitioner submitted his reply to the same on 19.11.2013 under Annexure-4 with a prayer to exonerate him from the charges completely. However, the Disciplinary Authority –Opposite Party No.1 by differing with the finding of the Enquiry Officer as provided under Rule-15 issued the 2nd show cause on 04.07.2014 under Annexure-5 by proposing to impose the punishment of stoppage of two increments with cumulative effect and censure for the negligence of the Petitioner. Opposite Party No.1 along with the 2nd show cause also provided the Page 4 of 14 // 5 // disagreement note citing the reasons for disagreeing with the finding of the Enquiry Officer. 2.4. It is contended that the Petitioner though submitted his reply to the 2nd show cause on 22.08.2014 under Annexure-7, but without proper appreciation of the grounds taken by the Petitioner in his written statement of defence and his reply to the 1st and 2nd show cause, Opposite Party No.1 vide order issued on 29.11.2014 under Annexure-8 while disposing the proceeding imposed the punishment of stoppage of two increments with cumulative effect and censure on the Petitioner for his negligence. 2.5. It is contended that against such order of punishment passed by Opposite Party No.1 on 29.11.2014 under Annexure-8, though the Petitioner preferred an appeal against the said order, but the appellate authority when rejected the appeal, Petitioner filed a review, seeking review of the order. 2.6. It is contended that while considering the review, though Hon’ble Minister, Revenue and Disaster Management gave his opinion to seek the approval of the Hon’ble Chief Minister, but expressed his view that a lenient view be taken against the Petitioner. However, on the face of such view expressed by the Hon’ble Minister and Page 5 of 14 // 6 // without taking prior approval of the Hon’ble Chief Minister the review petition was also dismissed vide order dtd.11.01.2016 under Annexure-13. 2.7. It is contended by the learned counsel for the Petitioner that on the face of the finding of the Enquiry Officer, where the Enquiry Officer suggested to exonerate the Petitioner from the charges, there was no occasion on the part of Opposite Party No.1 as the disciplinary authority to issue the 2nd show cause by differing with the finding of the enquiry officer. The reason assigned by the Disciplinary Authority while differing with the view of the Enquiry Officer is also not based on fact and cannot be suitable in the eye of the law. 2.8. It is also contended that the Petitioner during his incumbency as Tahasildar, Bhograi, when was informed about the encroachment of the Government land by the Company in question, Petitioner immediately initiated Encroachment Case No.588/2011. In the said Encroachment Case, Petitioner imposed penalty of Rs.42,000/- on the company and issued Form-J for realization of the penalty, Petitioner also issued the notice under Section-7(1) of the OPLE Act to vacate the encroached land. The allegation that the Petitioner gave his recommendation for grant of lease in favour of the Page 6 of 14 // 7 // Company, who is admittedly the encroacher, but the said Lease Case No.7/2010 was initiated much prior to the joining of the Petitioner in Bhograi Tahasil. Petitioner also recommended for grant of lease in faovur of the Company basing on the request made by the Sub-Collector, Balasore. 2.9. It is accordingly contended that since the Petitioner during his incumbency as Tahasildar, Bhograi took diligent and appropriate steps against the encroacher, no proceeding could have been initiated against the Petitioner with the charges as indicated in Annexure-1 and consequential order of punishment imposed against him on the face of the finding of the Enquiry Officer. 2.10. It is accordingly contended that the prayer as made in the writ petition needs to be allowed by this Court with an appropriate direction. 3. This Court while taking up the matter, learned Addl. Standing Counsel when made his submission basing on the stand taken in the counter affidavit, taking into account the stand of the Petitioner that on the face of the recommendation made by the Hon’ble Minister, the Review Petition filed by the Petitioner was rejected, this Court passed the following order on 03.01.2023. “1. This matter is taken up through Hybrid Arrangement (Virtual / Physical) Mode. Page 7 of 14 // 8 // Heard Mr. D.K. Routray, learned counsel for the learned Addl. 2. Petitioner and Mr. M.K. Balabantaray, Government Advocate appearing for the Opp.Parties. 3. Office is directed to delete the name of Mr. R.B. Mohapatra and associates from the case record as well as from the cause list. 4. During course of hearing, it is found from Annexure-12 that against the order of punishment passed by the Authority, the Petitioner when moved an appeal before the the Hon’ble Minister on 28.12.2015 Hob’ble Minister, requested the matter to be placed before the Hon’ble Chief Minister and to take his approval by taking a liberal view. But order at Annexure-13 which was passed subsequent to such recommendation of the Hon’ble Minister does not indicate anything as to whether the concerned file was placed before the Hon’ble Chief Minister as requested by Hon’ble Minister. Mr. Balabantaray, learned AGA prays for some time to 5. obtain instruction on the same. 6. As requested, list this matter on 20.01.2023. A free copy of the order be provided to Mr. M.K. 7. Balabantaray, learned AGA for compliance”. In terms of the order passed on 03.01.2023, an affidavit was filed before this Court on 17.04.2023. In the said affidavit, it was indicated that even though Hon’ble Minister recommended to place the file before the Hon’ble Chief Minister for approval with on observation to take a liberal view, vide Annexure-12, but Hon’ble Chief Minister after due perusal of the matter rejected the appeal vide order dtd.11.01.2016. 3.1. On the face of such affidavit filed by the Opposite Parties, learned counsel for the Petitioner contended that in the counter affidavit though a stand has been taken that for the self-same allegation two of the predecessors of the Page 8 of 14 // 9 // present petitioner were also proceeded with and imposed with order of punishment, but no such document in that regard has been filed. This Court taking into account the submissions of the learned counsel for the Petitioner passed the following order on 24.07.2023:- “1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. B.K. Routray, learned counsel for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Govt. Advocate for the State. 3. It is contended that in the proceeding initiated against the petitioner on 07.12.2012 under Annexure1, the Enquiry Officer after conducting the enquiry submitted the Enquiry Report on 24.06.2013 under Annexure-3 by recommending to exonerate the petitioner from the charges. It is contended that while issuing the second show cause on 04.07.2014 under Annexure-5, proposing to impose the punishment of stoppage of 2 (two) increments with cumulative effect, though the Disciplinary Authority disagreed with the finding of the Enquiry but disagreement note a stand has been taken that for selfsame charges. 2 (two) predecessor of the present petitioner were also proceed with and were punished in the said proceeding. Though a counter affidavit has been filed by the Opposite Parties, but nothing has been indicated about the name of those 2 (two) predecessors and the order of punishment passed against them in the proceeding so initiated. Officer, the in said the proceedings 4. Learned Addl. Govt. Advocate is directed to produce the details of those 2 predecessors along with the order of punishment passed against them which has been indicated by the Government, while issuing on 2nd show cause on 04.07.2014 under Annexure-5. Such materials be produced by the learned Addl. Govt. Advocate on the next date. initiated against 5. As requested, list this matter in the week commencing 28th August, 2023”. 3.2 Pursuant to the order passed by this Court on 24.07.2023, instruction was provided by the learned ASC so provided by the Department vide letter dtd.22.09.2023. Copy of the said instruction be kept in record. From the Page 9 of 14 // 10 // said instruction, it is found that for the self-same allegation two of the predecessors of the Petitioner were also proceeded with and they have been imposed with the punishment vide order dtd.04.04.2016 and 08.09.2014 respectively. 4. Basing on the stand taken in the counter affidavit and further affidavit filed on 17.04.2023 as well as the instruction provided vide letter dtd.22.09.2023, learned ASC contended that for the alleged action on the part of the Petitioner in not taking appropriate steps to evict the encroacher after initiation of encroachment case in Encroachment Case No.588/2011, Petitioner recommended for grant of lease in favour of the Encroacher in Lease Case No.7/2010. Considering such action of the Petitioner, the proceeding in question was initiated against him under Annexure-1. 4.1. Even though the Enquiry Officer found the Petitioner guilty of the charges, but when he recommended to exonerate the Petitioner from the charges, Opposite Party No.1 being the disciplinary authority and as provided under Rule-15 of the Rules while differing with the said finding, issued the 2nd show cause by proposing to impose the punishment in question on 04.07.2014 under Annexure-5. Page 10 of 14 // 11 // Opposite Party No.1 also enclosed the disagreement note while issuing the 2nd show cause. 4.2 It is also contended that Opposite Party No.1 rightly differed with the finding of the Enquiry Officer taking into account the fact that the encroached land is of Kisam Gochhar and objectionable in nature. Because of the inaction of the petitioner, the land could not be made encroach free. 4.3. It is also contended that since there is no surplus Gochhar land in the village in question and on the face of such fact there was no occasion on the part of the Petitioner to recommend for settlement of the encroached land in favour of the Company in question in Lease Case No. 7/2010. 4.4. It is accordingly contended that in view of such conduct of the Petitioner, Opposite Party No.1 while differing with the finding of the enquiry officer issued the 2nd show cause and after due consideration of the materials, imposed the order of punishment vide order dtd.29.11.2014. 4.5. It is also contended that the appellate authority as well as the reviewing authority after due consideration of the stand taken by the Petitioner confirmed the punishment Page 11 of 14 // 12 // imposed by Opposite Party No.2 vide order dtd.29.11.2014 under Annexure-8. 4.6. It is also contended that in the proceeding in question, all the relevant provisions as provided under Rule-15 of the Rules was scrupulously followed and by following the same, the order of punishment was passed against the Petitioner. 4.7. It is therefore contended that there is no illegality or irregularity with regard to the initiation of the proceeding against the Petitioner with the order of punishment imposed against him vide order dtd.29.11.2014 and rejection of his appeal vide order dtd.04.12.2015 and rejection of the review petition vide order dtd.11.01.2016 under Annexure-13. 5. I have heard Mr. B.K. Routray, learned counsel for the Petitioner and Mr. S. Rath, learned Addl. Standing Counsel for the State-Opposite Parties. On the consent of the learned counsel appearing for the Parties and with due exchange of the pleadings, the matter was heard at the
Decision
stage of admission and disposed of by the present order. 6. Having heard learned counsel for the Parties and after going through the materials available on record, it is found that the Petitioner joined as Tahasildar in Bhograi Tahasil Page 12 of 14 // 13 // and he remained as such for the period from 05.09.2011 to 31.05.2012. From the record, it is also found that during his incumbency, Encroachment Proceeding No.588/2011 was initiated against the Company namely Basil International Limited for alleged encroachment of Government land measuring an area of Ac.1.39 dec. In the said encroachment proceeding and vide order dtd.23.12.2021 penalty of Rs.42,000/- was imposed against the Company with issuance of Form-J for realization of the penalty. The penalty was also realized from the encroacher on 17.03.2012. But as found from the record even though notice was issued to the encroacher on 23.12.2011 for vacating the encroached land, but the land was never vacated and instead the present petitioner recommended to lease out the land in favour of the encroacher in Lease Case No.7/2010. The contention raised by the Petitioner that on the face of the finding of the Enquiry Officer, Opposite Party No.1 had no occasion to differ with his views while issuing the 2nd show cause is not entertainable. 6.1. It is found that the Enquiry Officer though in one hand found the Petitioner guilty of the charges, but recommended to exonerate him from the charges. 6.2. It is also found that while issuing the 2nd show cause on 04.07.2014, Opposite Party No.1 in his disagreement Page 13 of 14 // 14 // note clearly indicated about the illegal action of the Petitioner in not taking appropriate steps to vacate the encroached land and instead recommending his case to lease out the land in question in favour of the Company. 6.3. It is also found that for the self-same allegation, proceedings were initiated against two of the predecessors of the Petitioner namely Harish Chandra Jena and Brundaban Pati. Both the officers in the said proceeding were imposed with the punishment vide order dtd.04.04.2016 and 08.09.2016 respectively. On the face of the materials available on record and the punishment imposed against two of the predecessors of the Petitioner, this Court finds no illegality or irregularity with the action of the Opposite Party No.1 in differing to the finding of the Enquiry Officer while issuing the 2nd show cause and imposing the order of punishment vide order dtd.29.11.2014 under Annexure-8. The appellate authority the reviewing authority has also rightly rejected the appeal and review. 6.5. Therefore, this Court finds no merit in the Writ Petition and dismiss the same. Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 18-Dec-2023 15:17:30 (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 29th of November, 2023/Subrat Page 14 of 14