The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) (OAC) No.2812 of 2014 Prasanta Kumar Behera …. Petitioner Mr. S. Mallik, Advocate State of Odisha & Others -versus- …. Opposite Parties Mr. S. K. Samal, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No. 11. 1. This matter
Decision
ORDER 04.01.2024 taken up is through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the Parties. 3. Petitioner has filed the present Writ Petition inter alia challenging the order of punishment passed against him by Opposite Party No.4 vide order dtd.17.11.2011 under Annexure-14 so confirmed by the appellate authority vide order dtd.01.08.2012 under Annexure-16 and by the Revisional Authority vide order dtd.29.03.2014 under Annexure-18. 4. It is the case of the Petitioner that Petitioner while continuing as a Guard in the Raj Bhawan, a proceeding was initiated against him by Opposite Party No.3 under Annexure-4 inter alia with the following charge:- “CHARGE LNK/45 Prasant Kumar Behera (Under suspension) of ‘C’ Coy OSAP 7th Bn., Bhubaneswar under Police Commissionerate, Bhubaneswar-Cuttack is charged with gross misconduct and dereliction of duty in that;- // 2 // While he was on deputation to Rajbhawan, Orissa, Bhubaneswar for Rajbhawan security duty and he was detailed to perform sentry duty at post No.1 of Rajbhawan Guard on 18.08.2010 from 10 PM to 12 Mid night, he was found unauthorisedly absent from his duty post as well as from Rajbhawan Guard Room (Rajbhawan Guard Barrack) on dtd.18.08.2010 in between 10 PM to 12 Midnight, which was detected at 11.00 PM on 18.08.2010 during checking of the guard by the Special Round Officer, Sri P.K. Jena, A.C.P. (Armed), OSAP 7th Bn., Bhubaneswar, which speaks of his gross misconduct and dereliction of duty. He reported his joining at Rajbhawan Guard at 5.15 AM on dtd.19.08.2010. is He to show-cause by 22.09.2010 as to why he should not be dealt with suitably in the event of the charge held to be provided against him. therefore, directed Any representation that he wishes to make in this regard shall be considered by the authority competent to pass final order before passing such orders”. 4.1. It is contended that on receipt of the charge memo under Annexure-4, Petitioner while filing his reply clearly indicated that though he was assigned to do the duty in the Raj Bhawan on 18.08.2010 from 10 P.M. to 12 Mid night, because of suffering from sudden illness, he took permission from Guard Commander and in consideration of his illness, one Sri Aswini Kumar Das was allowed to do the duty from 10 P.M. to 12 P.M. on 18.08.2010. The discharge of duty by Sri Aswini Kumar Das from 10 P.M. to 12 A.M. on 18.08.2010 is also apparent in the information provided to the Petitioner under Annexure-1. 4.2. It is contended that since because of his illness, Petitioner could not do his duty from 10 P.M. to 12 Mid night on 18.08.2010 and he was allowed to take leave with one Aswini Kumar Das being allowed to discharge Page 2 of 5 // 3 // the duty on the said date from 10 P.M. to 12 Midnight the charge framed against the Petitioner is not sustainable. 4.3. It is contended that even though such a plea was taken by the Petitioner in his reply under Annexure-5, but the Original Authority-Opposite Party No.4 without proper appreciation of the grounds so taken imposed the order of punishment vide order dtd.17.11.2011 under Annexure-14 by imposing the punishment of one black mark and to treat the period of suspension as such. 4.4. It is contended that against such order of punishment, though Petitioner preferred an appeal before Opposite Party No.3 and a revision before Opposite Party No.2, but both the appellate authority and the revisional authority without proper appreciation of the grounds taken in the appeal as well as revision confirmed the order of punishment so passed against the Petitioner vide order under Annexure-16 and 18 respectively. 4.5. It is contended that since the charge framed against the Petitioner is not at all sustainable, the order of punishment so passed against him under Annexure-14 and confirmed vide order under Annexures-16 and 18 are not sustainable in the eye of law and requires interference of this Court. 5. Mr. S.K. Samal, learned Addl. Government Advocate for the State on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opposite Parties. Relying on the stand taken in the Page 3 of 5 // 4 // counter affidavit, it is contended that even though Petitioner was allowed to take leave and in his place one Sri Aswini Kumar Das was allowed to do the duty from 10 P.M to 12 Midnight on 18.08.2010, but since the Guard Commander did not indicate the same in the Guard Diary, it is to be presumed that Petitioner intentionally and deliberately did not discharge his duty. It is accordingly contended that Petitioner has been rightly imposed with the punishment and the same has also been confirmed by the appellate as well as revisional authority. 6. Having heard learned counsel for the Parties and after going through the materials available on record, this Court finds that the Petitioner was proceeded in proceeding No.6 dtd.06.09.2010 under Annexure-4 inter alia with the charge that he did not discharge his duty from 10 PM to 12 Midnight on 18.08.2010. 6.1. It is found from Annexure-1 that on 18.08.2010 one Aswini Kumar Das discharged the duty from 10 P.M. to 12 Midnight. Not only that as indicated in the counter though it is admitted that the Petitioner was allowed to take leave and in his place Sri Aswini Kumar Das discharged the duty, but the same since was not entered in Guard diary, the Petitioner was proceeded with and imposed with the order of punishment. 6.2. This Court is of the view that for the laches of the Guard Commander in not entering the leave of the Petitioner, in the Guard Diary, Petitioner cannot be found Page 4 of 5 // 5 // with any fault. Since admittedly at the relevant time and date in place of the Petitioner one Aswini Kumar Das discharged the duty, no charge can be made against the Petitioner. 7. In view of such position, this Court is inclined to quash the order of punishment so passed by Opposite Party No.4 on 17.11.2011 under Annexure-14 and confirmed by the appellate authority vide order 01.08.2012 under Annexure-16 and the revisional authority vide order dtd.29.03.2014 under Annexure-18. While quashing the order under Annexures-14, 16 and 18, this Court allow the Writ Petition. 8. Accordingly, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Jan-2024 13:03:08 Page 5 of 5