The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAC) No.3186 of 2014 Hrudayananda Barik …. Petitioner Mr. A.K. Mohanty, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. S.K. Samal, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 16.01.2024 Order No 24. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. A.K. Mohanty, learned counsel for the Petitioner and Mr. S.K. Samal learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. The Petitioner has filed the present writ petition inter alia challenging the report submitted by the Enquiry Officer on 02.11.2007 under Annexure-6 and order of punishment passed on 08.04.2008 under Annexure-1 by the Collector, Bargarh - Opp. Party No. 2 as well as order dtd.12.08.2013 so passed by the Opp. Party No. 1 under Annexure-12. Vide the order of punishment so passed under Annexure-1, Petitioner was dismissed from his service with a further condition that such order of dismissal shall ordinarily be a disqualification for future employment. 4. It is case of the Petitioner that Petitioner was proceeded within a proceeding initiated against him on 09.01.2006 vide Annexure-2 with the following charges:- // 2 //
Legal Reasoning
12. We are of the view that the principle laid down in the abovementioned judgments would also apply to the facts of the present case. We have already indicated that the action of the disciplinary authority imposing a comparatively lighter punishment on the co-delinquent Arjun Pathak and at the same time, harsher punishment on the appellant cannot be permitted in law, since they were all involved in the same incident. Consequently, we are inclined to allow the appeal by setting aside the punishment of dismissal from service imposed on the appellant and order that he be reinstated in service forthwith. The appellant is, therefore, to be reinstated from the date on which Arjun Pathak was reinstated and be given all consequential benefits as were given to Arjun Pathak. Ordered accordingly. However, there will be no order as to costs.” 7.2. In the case of Umesh Kumar Pahwa, Hon’ble Apex Court in Paragraph-12 to 17 has held as follows: Page 7 of 12 // 8 // in to looking “12. Even the charges proved the departmental proceedings we find that as such, there is no financial loss caused to the Bank and on the contrary a decision was taken by the appellant to reduce the loan amount from Rs 1,50,000 to Rs 75,000 in the case of Karamjeet Singh — the complainant, which can be said to be the decision in the bank's interest. Moreover, the fact that the appellant had worked for 28 years and during those 28 years there are no allegations against him. In the facts and circumstances of the case, we are of the opinion that the punishment of removal for the charges proved and the misconduct established, is too harsh and disproportionate. However, considering the fact that it can be said to be a case of loss of confidence in the employee by the Bank, we deem it just and proper to substitute the punishment from that of removal from service to that of compulsory retirement. 13. So far as the submission on behalf of the appellant that the appellant has not conducted any misconduct and the finding recorded by the enquiry officer on the charges proved are perverse is concerned, the High Court is justified in holding that in the limited jurisdiction available to the High Court in exercise of powers under Article 226 of the Constitution of India, the High Court is not required to reappreciate the evidence and/or interfere with the findings recorded by the inquiry officer accepted by the disciplinary authority. However, as observed hereinabove the order of removal of service can be said to be disproportionate to the charges and misconduct held to be proved. 14. Now insofar as the dismissal of Writ Petition (S/B) No. 267 of 2013 is concerned, at the outset it is required to be noted that the High Court has not dealt with and considered the same on merits independently. The High Court has dismissed the said writ petition for promotion primarily on the ground that once he is removed from service there is no question of considering his case for promotion. However, it is required to be noted that the appellant claimed the promotion from Scale II to Scale III from the date when his juniors came to be promoted w.e.f. 30-3-2005. 15. From the material available on record, it appears that in the earlier round of litigation being Writ Petition (S/B) No. 65 of 2012, the High Court had directed [Umesh Kumar Pahwa v. Uttarakhand Gramin Bank, 2012 SCC OnLine Utt 2923] the Bank to consider his case for promotion considering his ACR for the Financial Years 1999-2000 to 2003-2004. The said exercise was required to be done by the Bank. Therefore, so far as Writ Petition (S/B) No. 267 of 2013 is concerned, the same is required to be remanded to the High Court to decide the same afresh in accordance with law and on its own merits. 16. In view of the above and for the reasons stated above the impugned judgment and order passed by the High Page 8 of 12 // 9 // Court passed in Writ Petition (S/B) No. 4 of 2013 is hereby modified to the extent substituting the punishment from that of removal from service to that of compulsory retirement. to him by converting 17. The appellant shall be entitled to all the benefits which may be available the punishment from that of removal from service to that of compulsory retirement. So far as the impugned judgment and order of the High Court in Writ Petition (S/B) No. 267 of 2013 is concerned, in view of the above and for the reason stated above and as the High Court has not decided the said writ petition on merits, we set aside the impugned judgment and order as well as the order dated 8-1-2020 [Umesh Kumar Pahwa v. Uttarakhand Gramin Bank, 2020 SCC OnLine Utt 1334] dismissing the said Writ Petition (S/B) No. 267 of 2013 and remand the matter to the High Court to decide the same afresh in accordance with law and on its own merits.” 7.3. In the case of Man Singh, Hon’ble Apex Court in Paragraph-20 to 22 has held as follows: “20. We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair-minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equals have to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of “fair play” and reasonableness. 21. We have, therefore, examined the case of the appellant in the light of the established doctrine of equality and fair play. The principle is the same, namely, that there should be no discrimination between the appellant and HC Vijay Pal as regards the criteria of punishment of similar nature in departmental proceedings. The appellant and HC Vijay Pal were both similarly situated, in fact, HC Vijay Pal was the real culprit who, besides departmental proceedings, was an accused in the excise case filed against him by the excise staff of Andhra Pradesh for violating the excise prohibition orders operating in the State. The appellate authority exonerated HC Vijay Pal mainly on the ground of his acquittal by the criminal court in the excise case and after exoneration, he has been promoted to the higher post, whereas the appeal and the revision filed by the appellant against the order of punishment Page 9 of 12 // 10 // have been rejected on technical ground that he has not exercised proper and effective control over HC Vijay Pal at the time of commission of the excise offence by him in the State of Andhra Pradesh. The order of the disciplinary authority would reveal that for the last about three decades the appellant has served in the Police Department of Haryana in different capacities with unblemished record of service. 22. In the backdrop of the abovementioned facts and circumstances of the case, we are of the view that the order of the disciplinary authority imposing punishment upon the appellant for exhibiting slackness in the discharge of duties during his visit to Hyderabad when HC Vijay Pal was found involved in excise offence, as also the orders of the appellate and revisional authorities confirming the said order are unfair, arbitrary, unreasonable, unjustified and also against the doctrine of equality. The High Court has failed to appreciate and consider the precise legal questions raised by the appellant before it and dismissed the second appeal by an unreasoned judgment. The judgment of the High Court, therefore, confirming the judgments and decrees of the first appellate court and that of the trial court is not sustainable. The appellant deserves to be treated equally in the matter of departmental punishment initiated against him for the acts of omissions and commissions vis-à-vis HC Vijay Pal, the driver of the vehicle.” 7.4. In the case of Raj Pal Singh, Hon’ble Apex Court in Paragraph-6 has held as follows: “6. It is undoubtedly open for the disciplinary authority to deal with the delinquency and once charges are established to award appropriate punishment. But when the charges are same and identical in relation to one and the same incident, then to deal with the delinquents differently in the award of punishment, would be discriminatory. In this view of the matter, we see no infirmity with the impugned order requiring our interference under Article 136 of the Constitution.” 7.5. Making all such submissions, learned counsel for the Petitioner contended that since on similar ground other two delinquent employees have not been punished with the Tahasildar being exonerated from the charges, the order of dismissal passed against the Petitioner vide order at Annexure- 1, so confirmed vide order under Annexure-12 is not only disproportionate but also hit by Art-14 of the Constitution of India. It is accordingly contended that the order of punishment Page 10 of 12 // 11 // passed under Annexure-1 and so confirmed under Annexure-12, are liable for interference of this Court. 8. Mr. S.K. Samal, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit so filed by the Opp. Party No. 2. While supporting the impugned order of punishment, learned AGA fairly contended basing on the instruction provided by the Collector on 06.01.2024 that Tahasildar, Padampur, who was also proceeded with similar charges, was exonerated by the Department and the proceeding initiated against the Head Clerk on self same charges has not yet been disposed of due to pendency of Vigilance P.S. Case No. 29 dtd.06.06.2007. Learned AGA also fairly contended that as against all the three delinquent employees certificate cases have been initiated for recovery of Rs. 7,19,863/- each and all the three certificate cases are pending adjudication before the Certificate Officer under the OPDR Act. 9. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that for the self charges, Petitioner along with the Tahasildar, Padampur and Ex-Head Clerk, Padampur Tahasil were proceeded with. Since with self same charges Tahasildar, Padampur has been exonerated from the charges as found from the instruction provided by the Collector vide his letter dtd.06.01.2024 and the proceeding against the Head Clerk has not yet been finalized, placing reliance on the decisions as cited supra, this Court is of the view that the order of dismissal passed against the Petitioner on the face of exoneration of the Tahasildar and non-finalization of the proceeding against the Ex-Head Clerk is not just and proper and it is hit by Art-14 of Page 11 of 12 // 12 // the Constitution of India. Since Petitioner and the other two employees are facing certificate cases for recovery of 1/3rd of the misappropriate amount i.e. 7,19,863/- each, this Court is of the view that no order of dismissal could have been passed dismissing the Petitioner from his services. 9.1. Therefore, while maintaining parity, this Court is inclined to interfere with the order of dismissal so passed against the petitioner vide order dated 08.04.2008 under Annexure-1 and confirmed vide order dt.12.08.2013 under Annexure-12. While interfering with the order of dismissal, so confirmed vide order dated 12.08.2013 under Annexure-12, this Court is inclined to modify the order of punishment to a punishment of compulsory retirement. By taking the date of dismissal as the date of compulsory retirement, O.P. Nos.1 and 2 are directed to extend all benefits as due and admissible in favour of the petitioner within a period of 3(three) months from the date of receipt of this order.
Arguments
“Sri. Hrundayananda Barik, Ex-Junior Clerk, Tahasil Office, Padampur now under suspension is hereby informed that it is proposed to take action against him under Rule-15 of the Orissa Civil Services (Classification, Control and Appeal) Rule, 1962 for commission of gross financial irregularities during his incumbency as Nazir at Tahasil Office, Padampur. The substance of the imputation of gross misconduct in respect of which the inquiry is proposed to be held is set out in the enclosed statement of article of charges at Annexure-I. A statement of imputation in support of misconduct of each article of charges is enclosed at Annexure-II and a list of document by which and a list of witnesses by whom the article of charges are proposed to be sustained is enclosed at Annexure-III. (2) He is direct to submit his written statement of defence within 30 days from the date of receipt of this memorandum and also state if he desires to be heard in person. (3) He is permitted to peruse the relevant records from the office of Tahasildar, Padampur and take relevant extracts thereof on any working day after fixing up of prior appointment with Tahasildar, Padampur to prepare his written statement of defence. (4) If he fails to submit his written statement of defence within the stipulated period of 30 days from the date of receipt of this memorandum, it will be presumed that he has no explanation to offer and action will be taken as deemed proper ex-parte. (5) The receipt of the memorandum should be acknowledged by him. Charge No. 6 It is ascertained that Sri. Barik, Ex-Nazir has kept huge amount of govt. money in the office iron chest instead of keeping the same in double lock which amounts to failure in maintenance of absolute integrity leading to malafide intention. Page 2 of 12 // 3 // Charge No. 7 That the Tahasildar, Padampur vide his Order No. 4217 Dt. 19.08.05 has charged the seat of Sri, Barik, Ex-Nazir and directed Sri. Barik to hand over the charge of Nizarat Section to Sri Satyabrata Sahu, J.C. But Sri. Barik has not handed over complete charges of Nizarat Section through he has been relieved from the Tahasil Office. Thus this amounts to disobedience of order of the authority with evil intention.” 4.1. It is contended that Petitioner after receipt of the charges submitted his written statement of defence under Annexure-4 and participated in the enquiry so conducted by the Enquiry Officer. However, the Enquiry Officer without proper appreciation of the stand taken by the Petitioner in the enquiry submitted the reported on 02.11.2007 under Annexure-6 with the following finding:- “Considering the charge wise discussion made in the preceding paragraph the delinquent is liable for the following charges for violation of rules 3 of Orissa Govt. Servant Conduct Rules, 1959. 1. Gross negligence in Govt. duty and carelessness. 2. Misappropriation of Govt. money to the tune of Rs. 21,59,589/-. 3. Manipulation and tempering of Govt. records and registers in a forged manner. 4. Mis conduct. 5. Disobedience of orders of higher authorities. 6. Dereliction of Govt. duties.” 4.2. It is contended that on receipt of the enquiry report, Petitioner was issued with the 1st show-cause on 01.02.2008 under Annexure-5 and Petitioner also submitted his reply to the 1st show-cause under Annexure-7. In the reply so submitted to the enquiry report, Petitioner though pointed out several irregularities with regard to conduct of the enquiry, but the said fact was not taken into consideration by the Opp. Party No. 2 Page 3 of 12 // 4 // and Opp. Party No. 2 instead issued the 2nd show-cause on 15.03.2008 under Annexure-8 proposing therein to dismiss the Petitioner from his services, which shall ordinarily be a disqualification for future employment. Petitioner on receipt of the 2nd show-cause though submitted his reply under Annexure- 9 inter alia reiterating the stand taken in his reply to the 1st show-cause, but Opp. Party No. 2 without proper appreciation of the stand taken by the Petitioner in his reply under Annexure- 9 confirmed the order of punishment so proposed in the 2nd show-cause while disposing the proceeding vide order dtd.08.04.2008 under Annexure-1. Petitioner vide the said order was dismissed from his service with the further condition that it shall be a disqualification for future employment. 4.3. Petitioner being aggrieved by the order of punishment passed under Annexure-1, preferred an appeal before Opp. Party No. 1 vide Annexure-11. But the appellate authority without proper appreciation of the grounds taken in the memorandum of appeal, rejected the same vide order dtd.12.08.2013 under Annexure-12 while confirming the order of punishment so passed under Annexure-1. 4.4. Learned counsel for the Petitioner contended that for the alleged charges for which the Petitioner was proceeded with in the proceeding under Annexure-2, two other officers were also proceeded with in two separate disciplinary proceeding with similar charges. One of the proceeding while was initiated against the Ex-Head Clerk, Office of the Tahasildar, Padampur the other proceeding was initiated against the concerned Tahasildar. But both of them though were not imposed with any punishment, petitioner was removed from his service vide order issued under Annexure-1 and so confirmed under Annexure-12. Page 4 of 12 // 5 // 5. In the counter so filed by the Opp. Parties, when a stand was taken that Petitioner has been rightly dismissed from his service taking into account his involvement in the alleged misappropriation as well as misconduct, a rejoinder was filed by the Petitioner inter alia with the ground that in the proceeding initiated against the Ex-Head Clerk & Tahasildar, no order of punishment was passed and all three were proceeded in three different certificate cases for realization of an amount of Rs. 7,19,863/- each under the OPDR Act. It is accordingly contended that since petitioner is similarly situated and faced the proceeding with similar charges, the order of removal passed against him only is not only illegal but also not just and proper on the ground of parity. 6. Considering the stand taken in the rejoinder affidavit, this Court when directed learned State Counsel to provide the order of punishment if any passed against the other two employees, who were also proceeded with, learned Addl. Govt. Advocate produced the instruction so provided by the Opp. Party No. 2 vide his letter dtd.06.01.2024. From the instruction so provided, it was found that the proceeding initiated against the Ex-Head Clerk has not yet been disposed of on the ground that a vigilance proceeding with similar charge is pending and in the proceeding initiated against the Tahasildar, he has been exonerated from the charges. 7. Basing on the instruction so provided, learned counsel for the Petitioner contended that since with self same charges, Tahasildar, Padampur, Ex-Head Clerk, Office of the Tahasildar, Padampur and Petitioner were proceeded with, the order of dismissal passed against the Petitioner while exonerating the Tahasildar and not finalizing the proceeding initiated against the Page 5 of 12 // 6 // Ex-Head Clerk is in the higher side and not sustainable on the ground of parity. Since with similar charges Tahasildar, Padampur as well as the Ex-Head Clerk were proceeded with and Tahasildar has been exonerated from the charges with the other proceeding not yet finalized against the Head-Clerk, the order of dismissal passed against the Petitioner vide order under Annexure-1 so confirmed vide order under Annexure-12 are not sustainable in the eye of law. In support of his aforesaid submission, learned counsel for the Petitioner relied on the following decisions of the Hon’ble Apex Court: i. 2013(3) SCC 73 (Rajendra Yadav Vs. State of M.P. & Ors.) ii. (2022) 4 SCC 385 (Umesh Kumar Pahwa Vs. The Board of Directors, Uttarakhand Gramin Bank & Ors.) iii. 2008 (12) SCC 331 (Man Singh Vs. State of Haryana & Ors.) iv. (2010) 5 SCC 783 (State of Uttar Pradesh & Ors. Vs. Raj Pal Singh) 7.1. In the case of Rajendra Yadav, Hon’ble Apex Court in Paragraph-9 to 12 has held as follows: “9. The doctrine of equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among to be maintained when co-delinquents has also punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The disciplinary authority cannot impose lesser punishment which punishment stringent for punishment for lesser offences. is disproportionate serious offences and i.e. Page 6 of 12 // 7 // for 10. The principle stated above is seen applied in a few judgments of this Court. The earliest one is DG of Police v. G. Dasayan [(1998) 2 SCC 407 : 1998 SCC (L&S) 557] wherein one Dasayan, a police constable, along with two other constables and one Head Constable were charged the same acts of misconduct. The disciplinary authority exonerated two other constables, but imposed the punishment of dismissal from service on Dasayan and that of compulsory retirement on the Head Constable. This Court, in order to meet the ends of justice, substituted the order of compulsory retirement in place of the order of dismissal from service on Dasayan, applying the principle of parity in punishment among co- delinquents. This Court held that it may, otherwise, violate Article 14 of the Constitution of India. Harshadbhai Shah case [(2006) 6 SCC 548 : 2006 SCC (L&S) 1486] the workman was dismissed from service for proved misconduct. However, few other workmen, against whom there were identical allegations, were allowed to avail of the benefit of voluntary retirement scheme. In such circumstances, the workman also be treated on the same footing and be given the benefit of voluntary retirement from service from the month on which the others were given the benefit. this Court directed 11. In Shaileshkumar that
Decision
10. The writ petition is disposed of accordingly. (Biraja Prasanna Satapathy) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Jan-2024 11:27:59 Page 12 of 12