The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC (OAC) No.707 of 2015 Dr. Basudev Mohapatra …. Petitioner -versus- State of Odisha and Others …. Opp. Parties CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No ORDER 14.03.2023 3. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. G.R. Sethi, learned counsel for the Petitioner and Mr. M.K. Balabantaray, learned Additional Government Advocate for the State. 3. The Petitioner has filed this present Writ Petition inter alia challenging the order of punishment passed by the Government-Opposite Party No.1 on 17.05.2013 under Annexure-7 series. 4. Learned counsel for the Petitioner contended that the petitioner while continuing as a specialist in Obstetrics and Gynecology, he was proceeded with in a departmental proceeding vide Memorandum dated 22.09.2007 under Annexure-1. Learned counsel for the // 2 // Petitioner contended that on receipt of the charges, the petitioner duly filed his written statement of defence under Annexure-2 and also participated in the Enquiry conducted by the Enquiry Officer. It is contended that the Enquiry Officer after completion of the Enquiry submitted a report vide Annexure-3 with the following findings:- “However, from the entire experience in my enquiry, I conclude that the delinquent officer is not tactful enough to handle situation in public contact institution for which one censure may be issued to him & he is to be warned to be more careful in his duties and responsibilities as well as to maintain his cordial relation with his sub-ordinate to avoid all such un- wanted incidence in future.” 4.1. It is contended that on receipt of Enquiry report, Opposite Party No.1 issued the 1st show cause on 1.10.2011 and the petitioner also submitted his representation against the Enquiry Report on 07.12.2011 under Annexure-4. Learned counsel for the Petitioner further contended that even though the Enquiry Officer submitted his report under Annexure-3 by suggesting for imposition of minor punishment, but the Disciplinary Authority-Opposite Party No.1 issued the 2nd Show Cause by proposing imposition of major punishment without giving his disagreement note as provided under Rule 15(10)(i)(b) of the OCS (CCA) Rules, 1962. It is accordingly contended that since the Opposite Party No.1 while issuing the 2nd Show Cause, Page 2 of 6 // 3 // never differed with the findings of the Enquiry Officer by giving a disagreement note, not only the 2nd Show Cause issued under Annexure-6 but also the punishment imposed vide the impugned order dated 17.05.2013 under Annexure-7 are not sustainable in the eye of law. It is also contended that the petitioner’s appeal against the order of punishment was also rejected vide order dated 13.01.2014 under Annexure- 9/1. 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 taking into account the nature of charges framed against the petitioner under Annexure-1 and the implication of the petitioner in a criminal case for the offence under Section 354 of IPC in Tangi P.S. Case No.109 dated 08.07.2007, the Disciplinary Authority did not agree with the finding of the Enquiry Officer and while issuing the 2nd Show Cause on 26.11.2012 under Annexure-5, gave the reasons for disagreeing with the finding of the Enquiry Officer. The reasons given by the Disciplinary Authority under Annexure-5 are reproduced hereunder:- “(a) The incident of sexual harassment is clearly coming out from the report of the ADMO (F.W) and nowhere he has reported that the allegation of sexual harassment is false. Page 3 of 6 // 4 // (b) Filing of FIR against the delinquent officer for such heinous offence does not require any permission. (c) The delay in filing the FIR and bringing the incident to the notice of the authorities cannot absolve him of his misbehavior to a woman employee during working hours in a restricted place i.e. labour room The occurrence of the incident is confirmed by (d) the co-employees.” 5.1. Mr. Balabantaray accordingly contended that since the disciplinary authority was not satisfied to the finding of the Enquiry Officer taking into account nature of allegation raised against the petitioner who happens to be a doctor and working in the Obstetrics and Gynecology department, no illegality is there with the regard to issuance of the 2nd show cause under Annexure-5 and the order of punishment imposed vide order dated 17.05.2013 under Annexure-7 and further confirmed by Opposite Party No.1 vide order dated 13.01.2014 under Annexure-9/1. 6. Heard learned counsel for the Parties. Perused the materials available on record. This Court after going through the records finds that the petitioner was proceeded with in the proceeding with the following charges:- “1. Mis-behaviour to a woman employee in her working place. 2. ordinate staff (contractual staff Nurse). Outraged the modesty of a woman sub- Page 4 of 6 // 5 // 3. dt.08.07.07, U/s.354/509 of I.P.C. Involvement in Tangi P.S. Case No.109 4. Gross Misconduct. 5. Institution. Tarnishing the image of Govt. Health 6. Failure to maintain absolute decorum of conduct and devotion to duty being a responsible Govt. employee under Orissa Govt. Servant conduct Rules, 1959. 7. Willful absent from Govt. duty. Thus, the articles of charges are framed against him for violation of Rule 3 & 4 A of Orissa Govt. Servants conduct Rules, 1959.” 6.1. It is also found that even though the Enquiry Officer while submitting the Enquiry Report suggested for imposition of minor punishment but the Opposite Party No.1 while issuing the 2nd Show Cause clearly differed with the finding of the Enquiry Officer by giving his disagreement note. This Court further finds that the Opposite Party No.1 has taken the right view for not agreeing with the finding of the Enquiry Officer. The stand taken by the petitioner that no disagreement note is there while issuing the 2nd Show Cause is not acceptable in view of the grounds taken by the Opposite Party No.1 while issuing the 2nd Show Cause under Annexure-5. Taking into account nature of charges made against the petitioner and the fact that the petitioner is a doctor in profession, this Court finds no illegality or irregularity with the order of punishment Page 5 of 6 // 6 // passed on 17.05.2013 under Annexure-7 and further confirmed vide order under Annexure-9/1. The stand taken by the Petitioner that he has been acquitted in the criminal case has also no bearing in view of the reasons assigned by the Opposite Party No.1 while issuing the 2nd show cause as well as while passing the order of punishment. 6.2. Therefore, this Court is not inclined to allow the prayer as made in the Writ Petition and dismiss the same. (Biraja Prasanna Satapathy) Judge Basudev Page 6 of 6