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IN THE HIGH COURT OF ORISSA AT CUTTACK W.A.NO.2720 OF 2024 An appeal arising out W.P.(C) No.18538 of 2021 disposed of on 31.07.2024 -------------- Dharmapada Ghadai ...… Appellant -Versus- Union of India and Others ..…. Respondents Advocate(s) appeared in this case:- _______________________________________________________ For Appellant : M/s. A.K.Pandey, L.Pradhan, D.Pradhan, R.K.Mishra, D.P.Das & S.K.Mandal, Advocates For Respondents: Mr. M.K.Pati, Senior Panel Counsel _______________________________________________________ CORAM: HON’BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD AND HON’BLE MR. JUSTICE M.S. SAHOO J U D G M E N T 19.06.2025 PER DIXIT KRISHNA SHRIPAD,J. An employee of respondent organization, who has suffered removal from service on account of proven misconduct of bribery is invoking intra-Court appellate Page 1 of 18 jurisdiction for laying a challenge to a learned Single Judge’s order dated 31.07.2024 whereby his following two writ petitions have been negatived: (i) In W.P.(C) No.17035 of 2016 he had called in question the punishment order dated 19.12.2014 as affirmed in departmental appeal dismissed on 30.08.2016; (ii) in W.P.(C) No. 18538 of 2021 he had laid a challenge to the management’s order dated 09.04.2021 whereby his representation for reinstatement after acquittal in the criminal appeal was dismissed. 2. (a) FOUNDATIONAL FACTS: The delinquent employee gained entry into service of respondent organization as Accounts Officer with effect from 23.12.2006. He earned promotion as Assistant Manager (Finance) in due course. In a CBI Raid he was found red handed on 28.08.2012 whilst accepting a bribe of Rs.20,000/- from a person, namely, Sugris Singh associated with the tender in question. Appellant happened to be one of the members of the Tender Committee. (b) Appellant was served with a Charge Memo on 26.03.2013 in relation to the misconduct in question. A Page 2 of 18 disciplinary inquiry was held at the hands of a retired official of the organization and he was found guilty. A copy of Inquiry Report dated 14.08.2014 was served on him and he submitted his representation against the same on 27.09.2014. The Disciplinary Authority passed the punishment order of removal from service on 23.12.2014. Appellant’s departmental appeal also came to be disfavoured
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vide order dated 30.08.2016. This he had challenged in W.P.(C) No. 17035 of 2016, which is not the subject-matter of this appeal. (c) Above apart, appellant was prosecuted for the offences punishable inter alia under the provisions of the Prevention of Corruption Act, 1988 in R.C. No. 19A of 2012. The Special CBI Court at Dhanbad vide order dated 21.01.1019 had entered conviction and sentenced him to undergo a simple imprisonment for two years coupled with levy of fine of Rs.50,000/-. However, a learned Single Judge of Jharkhand High Court vide order 29.09.2020 allowed his Criminal Appeal (SJ) No. 138 of 2019 and set aside order of Page 3 of 18 conviction & sentence. Thus, he was acquitted of the criminal charges. (d) Appellant made a representation seeking his reinstatement in service on the basis of acquittal order contending that his was a case of honourable acquittal. The same having been rejected by the Management, W.P.(C) No. 18538 of 2021 came to be filed. As already mentioned above, both the writ petitions were heard together and came to be dismissed by the learned Single Judge of this Court. We repeat that the order in WP(C) No. 18538 of 2021 alone is put in challenge before us. 3. Learned counsel appearing for the delinquent- employee urged the following grounds for the invalidation of impugned order: (a) The entire disciplinary proceedings are vitiated inasmuch as under the extant Conduct Rules, it was not open to the Management to appoint an ex-employee of the organization as the Inquiry Officer and therefore, everything would fall down on the principle of ex nihilo nihil fit meaning nothing comes out from nothing. (b) The Management ought to have examined the
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complainant (Shri Sugriw Singh) as a witness to prove Page 4 of 18 demand & acceptance of bribe and that having not been done, the finding of guilt is vitiated. Similarly, all the persons associated with the trap event ought to have been examined; no explanation is offered for their non- examination. (c) Second show cause notice after the acceptance of the recommendation of Inquiry Officer is a sine qua non for passing the punishment order. No opportunity of hearing was given to the delinquent before passing the major penalty of removal from service. Thus, the decision to remove him from service is unsustainable. (d) In criminal proceedings, although trial ended in the conviction & sentencing of appellant, he came to be acquitted by the Jharkhand High Court honourably and therefore he ought to have been reinstated in service, disregarding the subject removal order. (e) Lastly, the punishment is disproportionate to the gravity of charges even if the finding of guilt is sustained and therefore, the impugned order of termination is liable to be set aside on the doctrine of proportionality. In support of theses contentions, learned counsel representing the appellant banked upon certain rulings. Page 5 of 18 4. After service of notice, Respondent No.1-Union of India has entered appearance through its Senior Panel Counsel, Mr. M.K.Pati. However, no formal notice was served on the employer-organizations since requisites were not complied and that would not come in the way of disposing of this appeal on merits, since these organizations are under the aegis of Central Government. 5. Learned Senior Panel Counsel made the following submission in justification of the impugned orders: (a) that there is absolutely no warrant for the indulgence of this Court in the appeal, since the findings therein operate as res judicata; (b) that the challenge to punishment order in the departmental appeal and subsequently in W.P.(C) No. 17035 of 2016 has been negatived and the same has attained finality, there being no further challenge to the same; (c) that once a finding of guilt is recorded in a properly constituted inquiry, after full opportunity to the delinquent, and punishment is upheld in the departmental appeal and further in writ petition, this Court may not undertake a Page 6 of 18 deeper examination of the matter, even if there are some arguable errors; (d) that the subject Conduct Rules do not prohibit the appointment of an ex-employee as Inquiry Officer. Even otherwise, no prejudice is shown to have been thereby caused; and (e) that there is no need of issuing a second show cause notice to the delinquent who had already submitted his representation to the Inquiry Report. The punishment awarded is not dismissal but only removal from service. 6. Having heard the learned counsel appearing for the parties and having perused the appeal papers, we decline indulgence in the matter for the following reasons:- 6.1. The first submission of learned counsel for the appellant that the entire disciplinary proceeding is vitiated inasmuch as there is no scope in the CIL Conduct, Discipline & Appeal Rules, 1978 (as amended in 2006) to appoint an ex-employee of the organization as the Inquiry Officer, does not impress us even in the least. Reasons for Page 7 of 18 this are not far to seek: Firstly, a Conduct Rule promulgated by the Employer Organization like the one herein is not under any statute as such. It is a product of exercise of employer’s prerogative and more in the nature of contract. Therefore, it cannot be construed as being literally mandatory. Obviously, it mentions “any officials of the company” and this phrase has to be liberally construed to include ex-officials as well. What we are construing is, a bye-law like thing and not a statute of Westminster Abbey. Secondly, the delinquent employee ought to have taken objection at the earliest point of time, which he did not. Having consciously participated in the disciplinary proceedings without raising a little finger, he cannot now turn around to find fault with the same. In a way, he is estopped from taking such a contention appears to be an afterthought. Thirdly, what prejudice has been caused to him by virtue of an ex-employee of the organization holding the inquiry proceedings, remains unsubstantiated. 6.2. The second submission of learned counsel that non- examination of alleged bribe giver i.e the complainant is Page 8 of 18 fatal to the case of Management, is difficult to agree with, for more than one reason: i) It is a CBI trap case wherein the appellant was caught red handed and admittedly the phenolphthalein test proved positive, the sparkling lotion turning pink. Added, he himself admitted the receipt of Rs.20,000/- from the complainant. The norm that admitted facts need not be proved, is as old as mountains. Of course, admission is not a conclusive piece of evidence, is true. However, it is sacrosanct unless a plausible explanation rebutting the same is offered. ii) Appellant had pleaded that this amount was not the bribe but it was taken for some other purpose. What was that other purpose, was never spelt out by him. Employer cannot fathom out what lurked in the mind of his delinquent employee. The so called ‘other purpose’ was ‘especially within the knowledge’ of employee himself and therefore he ought to have put the same across in the disciplinary inquiry on the general principle akin to the one enacted in Section 106 of the Evidence Act, 1872. iii) It is for the management to decide as to who should be examined as its witness, and a delinquent employee cannot dictate terms, in matters like this. In our considered view, the Management cannot be faltered in not calling the complainant as a witness, when there was other abundant evidentiary material on record. It is not that Page 9 of 18 invariably all persons named in the Charge Memo or in the list of witnesses should be examined. It all depends upon a host of factors that essentially lie within the wisdom of parties. iv) Added lastly, what prejudice is caused to the appellant by employer not examining the complainant is not forthcoming. In disciplinary proceedings ordinarily the provisions of the Evidence Act, 1872 are not invokable, although general principles of evidence do apply. In all fairness, opponent could have asked the management to examine the complainant so that he could elicit something in his favour in the cross-examination. That fairness having not been shown, he cannot complained of unfair treatment. 6.3. Appellant’s contention that subsequently on the same set of facts he has been honourably acquitted by the Jharkhand High Court and therefore he ought to have been reinstated in service in the light of Apex Court decision in Ram Lal v. State of Rajasthan,1, cannot be countenanced because: (i) The incident of bribery happened on 28.08.2012; the Charge Memo was served 23.06.2013; appellant filed his reply on 10.04.2013; inquiry proceedings were accomplished vide report dated 14.08.2014; appellant 1 (2024) 1 SCC 175 Page 10 of 18 sent his representation against the report on 27.09.2014. The punishment order of removal was passed on 23.12.2014; departmental appeal against the same was negatived on 30.08.2016. Challenge was laid to the same in WP(C) No. 17035 of 2016 and no interim order of any kind was granted to him. He could have sought for stay of disciplinary proceedings pending disposal of criminal case vide Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.,2. However, that endeavor does not appear to have been undertaken. ii) The case in WP(C) No.17035 of 2016 was heard, along with WP(C) No. 18538 of 2021 (this was filed subsequent to Jharkhand High Court order of acquittal). Both the writ petitions came to be rejected by the learned Single Judge of this Court. However, what is challenged before us is only the order made in WP(C) No.18538 of 2021. In other words, no grievance is made out against the order concerning WP(C) No.17035 of 2016 and thus the lis in that writ petition is laid to rest once for all. The findings recorded therein have attained finality, regardless of they being right or wrong and they bind the parties vide State of Punjab v. Gurdev Singh3. (iii) In the CBI criminal case (RC No.19A of 2012), the appellant was tried for the offence of bribery. The Criminal Court vide order dated 21.01.2019 had convicted