The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OA) No.40 of 2015 Ganesh Padhi …. Petitioner -versus- State of Odisha and Another …. Opp. Parties CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No ORDER 14.03.2023 2. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. Ranjit Mohanty, learned counsel for the Petitioner and Mr. M.K. Balabantaray, learned Additional Government Advocate for the State. 3. The Petitioner has filed this Writ Petition challenging the order of punishment passed by Opposite Party No.1 vide order dated 12.12.2011 under Annexure-8. 4. It is contended that the petitioner while continuing as a Forest Ranger, a proceeding was initiated against him vide Memorandum dated 03.04.2007 under Annexure-2. It is contended that on receipt of Memorandum, the petitioner not only filed his written statement of defence but also participated in the enquiry. Learned counsel for the Petitioner further contended that after conclusion of the enquiry the Enquiry Officer submitted his report under Annexure-4 with the following recommendations:- // 2 // “Recommendation of punishment: 1. He may be warned not to repeat the same in future. 2. The period of leave may be regularized if due. 3. His Two (2) annual increments may be stopped without cumulative effect.” 4.1. Learned counsel for the petitioner contended that even though the Enquiry Officer submitted his Enquiry Report recommending imposition of the punishment which is in the nature of minor penalty, but after providing copy of the report and after submission of the representation by the Petitioner, Opposite Party No.1 issued the second show cause under Annexure-7 by proposing to impose the following punishment: - “You will be reduced two stages below in the Forest Ranger’s Time Scale of Pay.” 4.2. It is contended that since the Enquiry Officer while submitting the report recommended for imposition of minor penalty. Opposite Party No.1 while issuing the 2nd Show Cause could not have proposed the punishment which is a major penalty without giving the disagreement note to the finding of the Enquiry Officer. On receipt of the 2nd Show Cause under Annexure-7, though the petitioner made his representation under Annexure-7/1 indicating therein that no disagreement note has been given by the Opposite Party No.1, but the Opposite Party No.1 passed the impugned order of punishment vide order under Annexure-8, by imposing the following punishment: - “1. He is reduced two stages below in the Forest Ranger’s time scale of pay.” Page 2 of 5 // 3 // 4.3. Learned counsel for the Petitioner accordingly contended that since while issuing 2nd Show Cause, no disagreement note is there as provided under Rule 15(10)(i)(b) of the OCS (CCA) Rules, 1962, the said show cause is a nullity in the eye of law and accordingly the consequential order of punishment is not sustainable in the eye of law. It is also contended that even though in the impugned order, the petitioners scale of pay was reduced by two stages below in the forest Rangers’ time Scale of Pay, but the said order is not in accordance with the provisions contained under Rule 82 of the Orissa Service Code. Making all such submissions, Mr. Mohanty submitted that the impugned order under Annexure-8 is not sustainable in the eye of law and liable to be interfered by this Court. 5. Mr. Balabantaray, learned Additional Government Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that since the disciplinary proceeding was conducted in accordance with the provisions contained under the OCS(CCA) Rules, no illegality or irregularity is there with the order of punishment passed under Annexure-8. It is also contended that providing a disagreement note while issuing the 2nd show cause is not mandatory. The stand taken by the Opposite Parties in para 11 of the counter is reproduced hereunder:- “That as regards to averment made in Para 6.9(B), it is submitted that the enquiring officer is not supposed to give differing notes of disagreement with regard to the findings. Action as deemed proper the precincts of Rule has been taken within Page 3 of 5 // 4 // 15(10)(5)(b) of OCS (CC&A) Rules, 1962. The disciplinary authority has discharged his function within the framework of prescribed principle. Thus the issue of second show cause notice has its basis.” 5.1. It is accordingly contended that since the petitioner is found guilty of the charges by the Enquiry Officer though with recommendation for imposition of minor penalty, but the Opposite Party No.1 taking into consideration the gravity of the charges, issued the 2nd Show Cause and imposed the punishment under Annexure-8. Therefore, no illegality has been committed by the Opposite Party No.1 in passing the order at Annexure-8. 6. Heard learned counsel for the parties. Perused the materials available on record. This Court after going through the same, found that the petitioner while working as Ranger, a proceeding under Annexure-2 was initiated against him on 03.04.2007 with the following charges:- “i. Unauthorized and willful absence from Government duty. ii. Disobedience of orders. iii. Misconduct. iv. Negligence dislocation of Government work.” in duty causing complete After completion of the enquiry in the proceeding, the Enquiry Officer submitted the report under Annexure-4 by recommending imposition of minor penalty. It is found that even though the Opposite Party No.1 did not agree with the recommendation made by Page 4 of 5 // 5 // the Enquiry Officer while issuing the 2nd Show Cause under Annexure-7 but as provided under Rule 15(10)(i)(b) of OCS (CC&A) Rules, 1962, he was supposed to give a disagreement note giving the reason for his disagreement with the findings of the Enquiry Officer. The same as reflected in Annexure-7 as well as the stand taken in Para-11 of the counter, has not been followed in the present case. Not only that the provision contained under rule 82 of the Orissa Service Code has also not been followed and the impugned order has been passed without specifying the period for which the punishment of reduction of the Scale of Pay will remain in operation. 6.1. In view of such material irregularity committed by the Opposite Party No.1, in not following the statutory provisions as contained under Rule15(10)(i)(b) of OCS (CC&A) Rules, this Court is inclined to interfere with the order of punishment, so passed vide order dated 12.12.2011 under Annexure-8. While interfering with the same, this Court is inclined to quash the order at
Decision
Annexure-8 and allow the Writ Petition. The Writ Petition is disposed of accordingly. Basudev (Biraja Prasanna Satapathy) Judge Page 5 of 5