Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK WPC (OAC) No.2603 of 2015 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 read with Section 19 of the Administrative Tribunals Act, 1985 *** Sri Udhab Charan Pradhan Aged about 45 years Son of Keshab Chandra Pradhan At/P.O./P.S.: Khuntagaon, District: Sundargarh (working as Constable, Plant Site Police Station Rourkela District: Sundargarh) … Petitioner. -VERSUS- 1. Director General & Inspector General of Police At/P.O.: Buxibazar, District: Cuttack. 2. Inspector General of Police Western Range, Rourkela District: Sundargarh 3. Superintendent of Police, Rourkela District: Sundargarh … Opposite parties. Counsel appeared for the parties: For the Petitioner : M/s. A.K. Apat, G.R. Sethi, J.K. Digal, Ms. Babita Kumari Pattnaik, S. Nanda, Advocates WPC (OAC) No.2603 of 2015 Page 1 of 62 For the Opposite Parties : Mr. Rabi Narayan Mishra, Additional Government Advocate P R E S E N T: THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 15.03.2024 :: Date of Judgment : 19.03.2024 J UDGMENT MURAHARI SRI RAMAN, J.— THE CHALLENGE: Assailing the Order dated 14.03.2012 of the Superintendent of Police, Rourkela in District Prog. No.25 of 2010 against C/1142 (petitioner) awarding “one black mark” coupled with treating the period of suspension during 07.07.2010 to 26.11.2010 (141 days) “as such” (Annexure-5), as affirmed in appeal vide Order dated 10.12.2013 passed by the Inspector General of Police, Western Range, Rourkela (Annexure-7), being unsuccessfully challenged the said orders in revision before the Director General and Inspector General of Police, Odisha, Cuttack, which came to be disposed of vide Order dated 23.01.2015 (Annexure-9), the petitioner approached the Odisha Administrative Tribunal, Cuttack Bench, Cuttack by way of filing Original Application registered as O.A. No.2603 (C) of 2015 under Section 19 WPC (OAC) No.2603 of 2015 Page 2 of 62 of the Administrative Tribunals Act, 1985, and sought for the following relief(s): “In view of the facts stated in paragraph 6, the applicant prays for the following relief(s): (i) To quash the memorandum of charged under Annexure-1; (ii) To quash the punishment Order dated 14.03.2012 under Annexure-5; (iii) To quash the Appellate Authority’s Order dated 10.12.2013 under Annexure-7; (iv) To quash the Revision Authority’s Order dated 23.01.2015 under Annexure-9; (v) And pass such other order/orders, as may be deemed fit and proper for the interest of justice.” 1.1. After abolition of the Odisha Administrative Tribunal by virtue of Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) Notification F. No. A-11014/10/2015-AT [G.S.R.552(E).], dated 2nd August, 2019), the said case having been transferred to this Court, O.A. No. 2603 (C) of 2015 has been re-registered as WPC (OAC) No. 2603 of 2015. THE FACTS: 2. Being duly selected the petitioner, appointed as Constable on 04.03.1991, was posted in the district of Sundargarh and he has been discharging his duty WPC (OAC) No.2603 of 2015 Page 3 of 62 assigned to the satisfaction of the authorities concerned. He has unblemished career althrough. 2.1. A departmental proceeding being Rourkela District Proceeding No.25 of 2010 was initiated against the petitioner on the charge of gross misconduct and dereliction of duty on the allegation that “on 07.07.2010 at 11.00 to 11.30 PM while joint checking by SDPO, Bonai and IIC, Bonai PS he was found absent without any leave or permission, though he was well informed to remain alert in view of bundh call by CPI (Maoists)” and he was directed to file his show cause within a period of 15 days from the date of the service of the notice. 2.2. In response thereto, the petitioner in his reply inter alia apprised that as he suddenly fell sick with malaria fever, he went to see physician and after getting medicines he went back to resume duty. He returned to police station by 11.00 PM. Nonetheless, it is alleged that without considering the show cause reply in its right earnest, the enquiry officer was appointed to conduct enquiry into the charges. 2.3. Upon submission of the enquiry report dated 06.09.2011, the petitioner was directed to submit his written statement of defence, which he furnished by stating inter alia that due to sudden illness, he had to go for half-an-hour for taking physician’s advice with WPC (OAC) No.2603 of 2015 Page 4 of 62 knowledge and permission of Striking Force Havildar (S.F. Havildar). 2.4. The Superintendent of Police agreed with the substance of the Enquiry Report and found the petitioner guilty of charges and directed for issue of show cause notice calling for explanation as to why proposed punishment, viz., “one black mark and to treat the suspension period with effect from 07.07.2010 PM to 26.11.2010 AM, i.e., 141 days is treated as such” would not be imposed. Accordingly, the petitioner prayed to exonerate him from the charges. 2.5. Vide D.O. No.736, dated 14.03.2012, the Superintendent
Legal Reasoning
of Police, Rourkela affirming the observations contained in the Enquiry Report, found the reply to second show cause notice “not satisfactory” and awarded the petitioner with “one black mark” and treated the suspension period with effect from 07.07.2010 PM to 26.11.2010 AM, i.e., 141 days “as such”. 2.6. Aggrieved thereby, the petitioner preferred an Appeal before the Deputy Inspector General-opposite party No.2 on 16.05.2012 contending inter alia that due opportunity has not been afforded during the course of enquiry, yet he was imposed with punishment(s). It is alleged that the punishment(s) has been imposed without taking into account the evidence adduced by the petitioner during the course of enquiry. WPC (OAC) No.2603 of 2015 Page 5 of 62 2.7. By Order dated 10.12.2013, the opposite party No.2 rejected the Appeal. The Appellate Authority ascribed that no permission was sought for nor was leave asked for which led to consider that there was gross misconduct and dereliction of duty as the petitioner was informed to remain alert due to bundh call by CPI (Maoists). The Appellate Authority concluded that “no procedural flaw in conduct of the enquiry” was perceived and reasonable opportunity was afforded to the petitioner-Constable to defend his case. 2.8. Still aggrieved, the petitioner preferred a Revision before the Director General and Inspector General of Police on 16.01.2014, which came to be rejected vide Order dated 23.05.2015. 2.9. Being unsuccessful, the Original Application was filed before the Odisha Administrative Tribunal invoking provisions of Section 19 of the Administrative Tribunals Act, 1985, which was subsequently converted to writ petition before this Court after abolition of the said Tribunal. THE REPLIES OF THE OPPOSITE PARTIES: 3. Responding notice issued by the learned Odisha Administrative Tribunal, the opposite parties filed reply justifying punishment as awarded to the petitioner. WPC (OAC) No.2603 of 2015 Page 6 of 62 3.1. Rourkela District Prog. No.25 of 2010 was initiated against the petitioner based on enquiry report containing gross misconduct and dereliction of duty as the petitioner was found absent from duty during joint checking by SDPO, Bonai and IIC, Bonai P.S. on 07.07.2010. The petitioner was appointed as Armed Police Reserve Constable (APR Constable), who along with others was to remain at Reserve Office, Rourkela (R.O.). As per command certificate issued by the Reserve Inspector, the petitioner was directed to report before Bonai P.S. as part of S.F. (Striking Force). The APR Constable is commanded to proceed to the P.S., whenever Law and Order situation arise. 3.2. The petitioner, an APR Constable, was commanded to proceed to Bonai S.F. on 04.03.2010 in view of bundh call given by CPI (Maoist). He was well informed to remain alert at Bonai S.F. (Striking Force), but found absent without any intimation. As his preliminary explanation was found not satisfactory, a departmental proceeding was initiated against him. The Enquiring Officer submitted his finding after affording opportunity to defend himself (petitioner). The Superintendent of Police, Rourkela found him guilty of the charge and awarded with one black mark and directed to treat period of suspension as such vide Order No.736, dated 14.03.2012. WPC (OAC) No.2603 of 2015 Page 7 of 62 3.3. It is revealed from statement of Havildar, namely Dusmanta Behera (Annexure-C/3), who was In-charge of Bonai S.F. (Striking Force) recorded during the course of Rourkela District Proceeding No. 25 of 2010, the present petitioner was absent on 07.07.2010. Similarly, the statements of Sudarsan Sethi (Annexure-C/4) and Hadibandhu Swain (Annexure-C/5) were recorded in the said District Proceeding No. 25 of 2010. 3.4. The petitioner had remained absent from his duty at Bonai S.F. during checking by SDPO, Bonai and IIC, Bonai P.S. on 07.07.2010 between 11.00 PM to 11.30 PM though he was well informed to remain alert at Bonai S.F. as bundh call was given by CPI (Maoists). 3.5. It is asserted by the opposite parties that the plea of the petitioner that he had been to see the physician for advice which was duly intimated to Havildar Dusmanta Behera, In-charge of Striking Force (S.F.) Guard, Bonai, was denied by said In-charge Havildar in his statement recorded during the course of disciplinary proceeding vide Annexures-C/3, C/4 and C/5 to the counter. 3.6. Thus, the defence submitted by the petitioner, being found unsatisfactory, the Enquiry Officer submitted his findings holding the petitioner guilty of the charge. Hence he was asked to submit his explanation to the second show cause against the proposed punishment of WPC (OAC) No.2603 of 2015 Page 8 of 62 one black mark and the suspension period to be treated as such. 3.7. It is pleaded by the opposite parties that there is justification in awarding such punishment by the Superintendent of Police, which was affirmed not only by the Appellate Authority but also the Revisional Authority. 3.8. It is contended by the opposite parties that having afforded due opportunity to the petitioner at each stage of the proceeding including the appellate forum and the revisional forum, the petitioner is not entitled for grant of any leniency and, therefore, the orders impugned do not warrant interference.
Decision
HEARING OF THE WRIT PETITION: 4. This matter was on board on 15.03.2024 under the heading “Admission”. Though vide Orders dated 04.07.2022, 27.01.2023, 23.03.2023, 19.04.2023, 12.07.2023, 21.09.2023 and 07.02.2024, this Court granted liberty to the counsel for the petitioner to file rejoinder affidavit, as yet same remained non-compliant. Since pleadings are completed and have been exchanged amongst the parties, and the learned counsel for the petitioner declined to file any rejoinder affidavit, on consent for disposal, the matter has been finally heard. Heard Ms. Babita Kumar Pattnaik, learned Advocate for WPC (OAC) No.2603 of 2015 Page 9 of 62 the petitioner and Sri Rabi Narayan Mishra, learned Additional Government Advocate for the opposite parties. SUBMISSIONS AND ARGUMENTS OF RESPECTIVE PARTIES: 5. Ms. Babita Kumari Pattnaik, learned Advocate for the petitioner submitted that the writ petition is liable to be allowed on the ground that no adequate opportunity has been afforded before imposing punishment of “one black mark” and treating the period of suspension “as such”. She strenuously went on to urge that the Odisha Police Manual does not contemplate “suspension” period to be treated “as such”. Therefore, the award clubbing imposition of punishment of “one black mark” and treatment of suspension period “as such” is without authority of law. 5.1. Ms. Babita Kumari Pattnaik, learned Advocate with all humility submitted that the explanation of the petitioner that he had to see the physician for his advice on account of sudden sickness for which he was absent for half-an-hour or so has not been given proper consideration. The opposite parties-Authorities should not have relied heavily on the Enquiry Report which was submitted with bias. They ought to have placed weight on the statement of the petitioner to the effect that he had intimated the fact of absence for medical exigency to the S.F. Havildar. Having not settled the factual aspect in proper perspective by the Disciplinary Authority, it WPC (OAC) No.2603 of 2015 Page 10 of 62 was not warranted for the Appellate Authority or the Revisional Authority to sustain the findings recorded in the Enquiry Report. 5.2. In such view of the matter, she prayed for setting aside the Order dated 14.03.2012 passed by the Superintendent of Police, Rourkela, which was confirmed in the Order dated 10.12.2013 of the Inspector General of Police, Western Range, Rourkela (Appellate Authority) and the Order dated 23.01.2015 passed by the Director General and Inspector General of Police, Odisha (Revisional Authority). 5.3. Amplifying her argument, Ms. Babita Kumari Pattnaik, learned Advocate placed reliance on the decision rendered by this Court in Bani Bhusan Dash Vrs. State of Odisha & Others, 2021 (II) OLR 1022, and submitted that the punishment of treatment of suspension “as such” besides “one black mark” is unwholesome and is, thus, liable to be deleted. 6. Sri Rabi Narayan Mishra, learned Additional Government Advocate for the opposite parties would submit that on the facts and in the circumstances upon enquiry being conducted, it was found that the petitioner having not intimated the Striking Force Havildar remained absent from duty which is nothing but misconduct and dereliction of duty. The petitioner being in disciplinary force has been awarded appropriate WPC (OAC) No.2603 of 2015 Page 11 of 62 punishment by the Disciplinary Authority which got confirmed by the Appellate Authority. Such concurrent finding of fact further got affirmed in revision filed at the behest of the petitioner before the Director General and Inspector General of Police, Odisha, Cuttack. Therefore, interfering with quantum of punishment based on concurrent finding is not warranted in exercise of power under Article 226/227 of the Constitution of India. 6.1. The statements of witnesses transpire that the plea of the petitioner that he went to attend medical exigency after intimating the S.F. Havildar is not true and no evidence is laid in this regard to disbelieve their versions. Referring to Annexure-C/3, i.e., Statement of Havildar Sri Dushmant Behera, who denied in cross- examination that the assertion of the petitioner is false to the effect that he had intimated him about his sickness at around 10.15 PM. 6.2. Under such premise, Sri Rabi Narayan Mishra, learned Additional Government Advocate vehemently contended that the punishments awarded by the Disciplinary Authority by accepting the contents of the Enquiry Report being in consonance with categories of penalties envisaged under Rule 13 of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962 (“OCS (CCA) Rules” for brevity) read with Rule 824 of the Odisha Police Manual Rules, it is improper for this Court WPC (OAC) No.2603 of 2015 Page 12 of 62 to exercise jurisdiction under Article 226/227 of the Constitution of India. CONSIDERATION OF RIVAL CONTENTIONS: 7. Before delving into the merit of the matter, it is appropriate to reproduce the nature of penalties envisaged under Part-V: “Discipline” of the OCS (CCA) Rules: “13. Nature of penalties.— The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely: (i) (ii) fine; censure; (iii) withholding of increments (without cumulative effect) (iii-A) withholding of promotion; (iv) recovery from pay of the whole, or part of any pecuniary loss caused to Government, or to a company, association or body of individuals, whether incorporated or not, which is wholly or substantially by Government, or to a local authority set up by an Act of Parliament or of the Legislature of a State, by negligence or breach of orders. controlled owned or (v) suspension; WPC (OAC) No.2603 of 2015 Page 13 of 62 (vi) reduction to a lower service, grade or post or to a lower time-scale or to a lower stage in a time scale; (vi-A) withholding of increments (without cumulative effect) (vii) compulsory retirement; (viii) removal from service which shall not be a disqualification for future employment; (ix) dismissal from service which shall ordinarily be a disqualification for future employment : Provided that the penalty of (sic. or) fine shall (be) imposed only on Group-D Government servants. Explanation.— The following shall not amount to a penalty within the meaning of this rule.— (a) Withholding of increments of a Government servant for failure to pass a departmental examination in accordance with the rules or orders governing the service or post or the terms of his appointment. (b) Stoppage of a Government servant at the efficiency bar in the time scale on the ground of his unfitness to cross the bar. (c) Non-promotion, whether in a substantive or officiating capacity, of a Government servant, after consideration of his case, to a service, grade or post for promotion to which he is eligible. WPC (OAC) No.2603 of 2015 Page 14 of 62 (d) Reversion to a lower service, grade or post of a Government servant officiating in a higher service grade or post on the ground that he is considered, after trial, to be unsuitable for such higher service, grade or post, or on administrative grounds unconnected with his conduct. (e) Reversion to his permanent service, grade or post of a Government servant appointed on probation to another service, grade or post during or at the end of the period of probation in accordance with terms of his appointment or the rules and orders governing probation. the (f) Replacement of the services of a Government servant whose services have been borrowed from the Central or State Government or an authority under the control or a State Government at the disposal of the authority which had lent his services. (g) Compulsory retirement of a Government servant in a accordance with the provision relating to his superannuation or retirement. (h) Termination of the services: (i) of a Government servant appointed on probation during or at the end of the period of probation in accordance with the terms of his appointment or the rules and orders governing probation; or (ii) of a temporary Government servant in accordance with terms of his appointment; or the WPC (OAC) No.2603 of 2015 Page 15 of 62 (iii) of a Government servant employed under an agreement in accordance with the terms of such agreement.” 7.1. Rule 3 of said OCS (CCA) Rules prescribes as follows: “3. Application.— (1) These Rules apply to all Government servants except— (a) persons in casual employment; (b) persons subject to discharge from service on less than one month’s notice; (c) persons for whose appointment and other matters covered by rules special provision is made by or under any law for the time being in force, in regard to the matters covered by such law; and these (d) members of the All-India Services. (2) Notwithstanding anything contained in Sub-rule (1) these rules shall apply to every Government servant temporarily transferred to a service or post coming within exception (c) in sub-rule (1) to whom, but for such transfer, these rules would apply. (3) Notwithstanding anything contained in sub-rule (1) the Governor may, by order exclude from the operation of all or any of these rules in case of any Government servant or class of Government servants. (4) If any doubt arises— WPC (OAC) No.2603 of 2015 Page 16 of 62 (a) whether these rules or any of them apply to any person; or (b) whether any person to whom these rules apply belongs to a particular service, the matter shall be referred to Governor whose decision thereon shall be final.” 7.2. Chapter-XXV of the Odisha Police Manual Rules deals with “PUNISHMENTS”, which lays down the following categories of punishments: “DEPARTMENTAL PUNISHMENTS [Rules marked with an asterisk (*) have been sanctioned under Section 7, Act V of 1861) *824. Description of departmental punishments.— following punishments may be inflicted The departmentally on a police officer below the rank of Deputy Superintendent— (a) Dismissal, (b) Removal, (b-1) Compulsory retirement, and (c) Reduction in rank, (d) Reduction in time-scale. (e) Withholding of the next increment for a specific corresponding offence, with postponement of subsequent increments, or without (f) Black mark or marks. WPC (OAC) No.2603 of 2015 Page 17 of 62 (g) Removal from any office of distinction or specific emolument, (h) Censure. (i) Warning. (j) Confinements to quarters for a period not exceeding 15 days, (k) punishment drill, and (l) Extra guard or other duty; Provided that the punishments mentioned in Clauses (i) to (m) shall not be imposed on any officer of or above the rank of Sub-Inspector nor the punishment mentioned in (l) on any Assistant Sub-Inspector, Constable of Ordinary Reserve and Havildar of Armed Reserve. Punishments mentioned in Clauses (a) to (h) are classed as major and the rest are minor. All major punishments and censure shall be entered in the service book other minor punishments may be so entered if the officer awarding the punishment so directs. Note 1.— Superintendents may use the orderly Room Register in P.M. Form No. 114 when dealing with cases of misconduct and breaches of discipline in which the punishments mentioned in Clauses (k) to (l) are imposed. Note 2.— Forfeiture of pay for overstaying have (Service Code Rule 144) and deductions from pay on account of Page 18 of 62 WPC (OAC) No.2603 of 2015 loss or damage to Government property shall not be treated as punishment.” 7.3. Rule 834 of the Odisha Police Manual Rules with regard to “BLACK MARKS” prescribes as follows: “834. Imposition of black marks.— (a) Black marks may be awarded alone or in addition to other punishments enumerated in Rule 824 except dismissal or removal, to all officers of and below the rank of Inspector. No more than one black mark shall be awarded or any one offence except when moral turpitude can reasonably be inferred. (b) Three black marks shall ordinarily entail reduction or forfeiture or withholding of an increment, the period of which shall be specified in the order and, after the period is over the officer will be restored to his former position. Such reduction or forfeiture or withholding of increment shall not carry any black mark value. (c) It shall be left to the discretion of the officer awarding the third black mark to waive the penalty noted in Clause (b). In exercising this option, he shall consider: (i) (ii) the officers for which the previous black marks were awarded; the length of time that has elapsed since they were awarded, (iii) any good service the defaulter may have to his credit.” WPC (OAC) No.2603 of 2015 Page 19 of 62 7.4. Having regard to Rules 840, 841, 842 and 843 of the Odisha Police Manual Rules are relevant for the present purpose: “840. Suspension.— (a) The Director General and Inspector General, Special Inspector General, Deputy Inspector General, Superintendent of Police or any Officer in the rank of Superintendent of Police may place under suspension any police officer sub-ordinate to him and working under him, of or below the rank of Inspector where a disciplinary proceeding against him is contemplated or is pending or where a case against him in response to any criminal offence is under investigation or trial. If an officer in the rank of Superintendent of Police suspends a police officer of the rank of Inspector, he shall report it to the Deputy Inspector General. Suspension is authorised only in cases in which the continuance on duty of an Officer pending enquiry is prejudicial to public interest. When however, an officer is believed to have been guilty of giving false evidence in Court he should not be suspended on the account until the Court has pronounced judgment finding him guilty since his suspension might have the appearance of an attempt to prejudice the case. into his conduct (b) An officer who is committed to prison for debt or on a criminal charge shall be considered as under suspension from the date of arrest, (Service Code, Rules 93 and 93-A). 841. Payments in cases of Dismissal, Removal, or Suspension.— WPC (OAC) No.2603 of 2015 Page 20 of 62 (a) The rules regulating the pay and allowances of a Government servant dismissed or removed from office or suspended pending enquiry into alleged misconduct, will be found in Rules 89 to 93-A of the Service Code. (b) The payments to be received by a Government servant while under suspension shall be fixed by the suspending authority in accordance with the Rule 90 (b) of the Orissa Service Code, Vol. I. (c) (1) When a Government servant who has been is dismissed, reinstated, the authority competent to order the reinstatement shall consider and make a specific order: suspended removed or (i) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty, and (ii) whether or not the said period shall be treated as a period, on duty. (2) Where such competent authority holds that the Government servant has been fully exonerated or in the case of suspension, that it was wholly unjustified, the Government servant shall be given the full pay to which he would have been entitled had he not been dismissed, removed or suspended as the case may be together with any allowances of which he was in receipt prior to his dismissal, removal or suspension. (3) In other cases, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe. WPC (OAC) No.2603 of 2015 Page 21 of 62 Provided that the payment of allowances under Clause (2) or Clause (3) shall be subject to all other conditions under which such allowances are admissible. (4) (5) In a case falling under Clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. In case falling under Clause (3) the period of absence from duty shall not be treated as a period spent on duty unless such competent authority specifically directs that it shall be so treated for any specified purpose (Service Code Rule 91). (d) No extra cost may ordinarily be imposed on the State by any of the payments mentioned above without the permission of the State Government provided that such permission shall not be necessary in cases where extra cost does not exceed Rs. 500 and the period during which the Government servant has been absent through dismissal or suspension does not exceed six months (Service Code Rule 92). from duty 842. Suspended police officer subject to discipline.— Under Section 8 of Act V of 1861, as amended by Section 3, Act VIII of 1895, a police officer does not by reason of being suspended from office, cease to be a police officer. During the term of such suspension the powers, functions and privileges vested in him as a police officer are in abeyance, but he continues subject to the same responsibilities, discipline and penalties, and to the same authorities as if he had not been suspended. WPC (OAC) No.2603 of 2015 Page 22 of 62 843. Absence without leave.— Wilful overstayal of leave, absence from duty without leave or absence from the Station, except on duty or permission, shall be treated misconduct and proceedings shall invariably be drawn up and departmental punishment inflicted in addition to the forfeiture of pay provided for by Rule 803. Police officers who absent themselves without leave are liable also to prosecution under Section 29 of the Act V of 1861, as amended by Section 9 of Act VIII of 1895. Prosecutions, however, should only be instituted in exceptional circumstances. As a rule when an officer does not return within one week of the expiry of his leave, enquiries shall be made from the Superintendent of his native district and should there be good ground for his absence, he shall be punished department. (G.O. No.26544-P, dated the 30th July, 1973)” 7.5. It is noteworthy to have regard to Rule 91 of the Odisha Service Code, which reads as follows: “91. Authority competent to order the reinstatement shall consider and make a specific order: (1) When a Government servant who has been dismissed, removed, or compulsorily is reinstated or would have been suspended reinstated but for his retirement on superannuation while under suspension the authority competent to order the reinstatement shall consider and make a specific order: retired (a) regarding the pay and allowances to be paid to the Government servant for the period of his the period of absence from duly or for WPC (OAC) No.2603 of 2015 Page 23 of 62 the date of his suspension ending with retirement on superannuation, as the case may be, and (b) whether or not the said period shall be treated as a period spend on duty. (2) Where such competent authority holds that the Government servant has been fully exonerated or in it was wholly the case of suspension, unjustified, the Government servant shall be given the full pay to which he would have been entitled had he not been dismissed, removed, compulsorily retired or suspended, as the case may be, together with any allowances of which he was in receipt to his dismissal, removal or suspension. that (3) (a) the case of dismissal, removal and In compulsory retirement when a Government servant who is not completely exonerated of the charges, is reinstated in service, it shall be open to the competent authority to decide not to allow any pay or allowances to him. (b) In the case of suspension when a Government servant, not having been exonerated of the charges fully, is reinstated in service, he may be allowed subsistence allowance only for the period of suspension as admissible under Rule 90. (4) (5) In a case falling under Clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. In a case falling under Clause (3) the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority WPC (OAC) No.2603 of 2015 Page 24 of 62 specifically directs that it shall be so treated for any specified purpose: Provided that if the Government servant so desires, such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant.” 8. Having the aforesaid categories of punishments, the facts as emanated from the pleadings lead to demonstrate that the petitioner having not taken permission of nor availed leave from the competent authority remained absent on 07.07.2010, i.e., the date on which the CPI (Maoists) have called bundh for which purpose the petitioner was instructed to be alert. Such fact of non-availability of the petitioner at the deputed place has been enquired into by the Enquiry Authority and the fact submitted by way of Report was accepted by the Disciplinary Authority, who after having afforded opportunity to explain by way of second show cause notice awarded punishments, viz., “one black mark” and directed to treat the period of suspension between 07.07.2010 to 26.11.2010 “as such”. 8.1. Noteworthy here to notice that the Statement of Havildar Sri Dushmant Behera, In-charge of Striking Force, recorded on 28.08.2011 in connection with Rourkela Police District Proceeding No.25 of 2010, copy of which has been acknowledged by the petitioner to have been received, clearly indicates that six APR Constables WPC (OAC) No.2603 of 2015 Page 25 of 62 including the petitioner were found absent on 07.07.2010 at the time of joint checking by SDPO, Bonai and IIC, Bonai Police Station. It is also revealed from the said Statement that in cross-examination, Sri Dushmant Behera has denied the fact of the petitioner having taken permission for leave or intimated about remaining absent on 07.07.2010. To prove his stand and counter such assertion of S.F. Havildar, the petitioner has also not adduced any evidence to show that he had been to see the physician. 8.2. Such being the factual matrix, when the Rules contained in the Odisha Police Manual are read harmoniously with those of the categories of penalties enlisted in Rule 13 of the OCS (CCA) Rules, it is unequivocal that apart from “black mark”, “suspension” is also enumerated as one of the penalties/punishments. 8.3. On careful reading of Rule 12 in Part-IV of the OCS (CCA) Rules, which deals with “SUSPENSION”, it transpires from sub-rule (6) thereof as under: “The Disciplinary Authority, while passing the final over (sic. order) of punishment or of release in the Disciplinary Proceedings against the Government servant, shall give directions about the treatment of the period of suspension, which is passed not as a measure of substantive punishment but as suspension pending inquiry, and indicate whether the suspension would be a punishment or not.” WPC (OAC) No.2603 of 2015 Page 26 of 62 8.4. Rule 2(c) of the OCA (CCS) Rules defines the term “Disciplinary Authority” which spells out that “in relation to the imposition of a penalty on a Government servant means the Authority competent under these rules to impose on him that penalty”. While Rule 2(d) ibid. defines the term “Government” to mean “the Government or Odisha”, clause (f) thereof defines “Government servant” to mean “a person who is a member of a service or who holds a civil post under the State and includes any such person on foreign service or whose service are temporarily placed at the disposal of Union Government or any other State Government or a local or other local authority and also any person in the service of the Union Government or any other State Government or a local or other authority whose services are temporarily placed at the disposal of the State Government”. 8.5. Rule 841 of the Odisha Police Manual Rules read juxtaposed with the provisions of the OCS (CCA) Rules and the Odisha Service Code, it can be construed that the Disciplinary Authority, while considering reinstatement of Government servant, who was suspended, shall consider and make specific order with respect to the treatment of period of suspension. Therefore, it is explicit that the Disciplinary Authority is required to “give directions about the treatment of the period of suspension”. The Disciplinary Authority- Superintendent of Police, Rourkela, while passing final WPC (OAC) No.2603 of 2015 Page 27 of 62 order in Rourkela District Prog. No.25 of 2010 vide D.O. No.736, dated 14.03.2012 (Annexure-5), has directed as follows: “Perused the findings of the EO and relevant documents on record. The delinquent C/1142 U.Pradhan of APR was charged with gross misconduct and dereliction of duty in that while he was at Bonai S.F. On 07.07.2010 from 11 PM to 11.30 PM while joint checking conducted by SDPO, Bonai and IIC, Bonai P.S. he was found absent at Bonai S.F. without any leave or permission though he was well informed to remain alert in view of Bandh called by CPI (Maoist). He was asked to show cause within 15 days for submitting his explanation as to why disciplinary action shall not be taken against him. He had submitted his explanation which was not satisfactory. Hence this proceeding was initiated against him. The proceeding was entrusted to Sri B.K. Pradhan, OPS, DSP (P), Rourkela to conduct the enquiry expeditiously and submit findings early. During course of enquiry the E.O. was examined as many as V PW’s and exhibited III documents in support of the charges. The delinquent was offered all reasonable opportunities to cross examine PW’s. After prosecution was over the charged Constable was asked to submit list of DW’s and written defence, if any. He declined to produce the list of DW’s and submitted his written defence pleading him not guilty of the charges leveled against him. The E.O. has submitted findings holding the charge C/1142 U.Pradhan, guilty of the charges made out against him for his gross misconduct and dereliction of duty as he was absent from duty without any leave or permission. WPC (OAC) No.2603 of 2015 Page 28 of 62 After perusing the Proceeding file and analyzing the evidence on record and due application of judicious mind, I found that the Proceeding had been conducted in free and fair manner following the principles of natural justice. I agreed with the findings of the E.O. and hold him guilty of the charges and proposed to award him with One Black Mark and to treat the suspension period with effect from 07.07 10 Pm to 26.11 10 AM, i.e., 141 days as such. The Charged C/1142 U.Pradhan was directed to submit his 2nd show cause explanation by 28.01.2012 as to why the proposed punishment shall not be awarded to him. He submitted his 2nd show cause explanation, perused the 2nd show cause explanation and found not satisfactory. Hence he is awarded with One Black Mark and the suspension period with effect from 07.07 10 PM to 26.11 10 AM, i.e., 141 days is treated as such. Including this black mark he has earned total One Black Mark in his service career.” 8.6. In appeal at the behest of the petitioner, the Inspector General of Police, Western Range, Rourkela, finding no procedural irregularity in the conduct of Rourkela District Proceeding No.25 of 2010, and compliance of principles of natural justice by affording the charged Constable reasonable opportunity to defend his case, confirmed the findings of the Disciplinary Authority vide Order dated 10.12.2013. 8.7. The petitioner having carried the matter further in revision before the Director General and Inspector WPC (OAC) No.2603 of 2015 Page 29 of 62 General of Police, Odisha, Cuttack, the same came to be rejected on 23.01.2015 with the following observation: “*** Record reveals that the charged C/1142 U. Pradhan was found absent during joint checking conducted by SDPO, Bonai and IIC, Bonai P.S. on 07.07.2010 between 11 PM to 11.30 PM. The charge has been well proved by the PWs. The quantum of punishment imposed by the Disciplinary Authority is also proportionate to the level of delinquency of the charged Constable. There is no ground to interfere with the Order of punishment passed by S.P., Rourkela, which has been upheld by the Inspector General of Police, Western Range, Rourkela. The revision petition, being devoid of merit, is rejected.” 9. With the concurrent findings on record, when the decision of this Court rendered in Bani Bhusan Dash (supra), cited by the learned counsel for the petitioner is taken into consideration, it is perceived that ratio of said Judgment being applied to different set of facts and not related to police personnel, the same has no application to the present fact-situation. 9.1. It has been succinctly stated in Union of India Vrs. Arulmozhi Iniarasu, AIR 2011 SC 2731 = (2011) 7 SCC 397 as follows: the “Before examining the question, first formulated above, it would be instructive to note, as a preface, the well-settled principle of law in the matter of applying precedents that the Court should not place limb of WPC (OAC) No.2603 of 2015 Page 30 of 62 reliance on decisions without discussing as to how the fact situation of the case before it fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid’s theorems nor as provisions of Statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Disposal of cases by blindly placing reliance on a decision is not proper because one additional or different fact may make a world of difference between conclusions in two cases. (Ref.: Bharat Petroleum Corpn. Ltd. Vrs. NR (2004) 8 SCC 579; Sarva Shramik Vairamani, Sanghatana (KV), Mumbai Vrs. State of Maharashtra, (2008) 1 SCC 494; and Bhuwalka Steel Industries Limited Vrs. Bombay Iron & Steel Labour Board, (2010) 2 SCC 273.)” 9.2. With the aforesaid dicta, if the facts of the present case are analysed it is not in dispute that there was no permission for leave nor was there any evidence adduced by the petitioner available on record to indicate intimation to the superior authority. The uncontroverted fact available on record shows that the APR Constables were instructed to remain alert on account of bundh call given by the CPI (Maoists). The petitioner without bringing on record iota of evidence to suggest that the petitioner had to attend to medical exigency at the relevant point to time unsuccessfully defended his case. This Court is of the firm opinion that the concurrent findings recorded by the authorities cannot be interfered with in exercise of power under Article 226/227 of the Constitution of India. WPC (OAC) No.2603 of 2015 Page 31 of 62 9.3. In the said reported case, this Court at paragraph 10 observed that “The Authority cannot initiate a proposal from its side in assumption of leave application from the delinquent or employee concerned to treat the period as leave due and admissible affecting the delinquent by way of consuming accrued leave in favour of the employee concerned without any fault on his part”. Observing thus, this Court following Samir Kumar Mitra Vrs. State of Odisha, W.P.(C) No.20827 of 2016, disposed of on 25.08.2016, held that “in absence of any provision under OCS (CCA) Rules, 1962, the decision of the authorities to treat the period of suspension as leave due is not permissible”. 9.4. Nonetheless, in the present set of facts and having glance at Rule 12(6) of the OCS (CCA) Rules, which is framed in exercise of power conferred by proviso to Article 309 of the Constitution of India, it is unequivocal that the Disciplinary Authority, while passing final order of punishment “shall give directions about the treatment of the period of suspension”. 9.5. This Court is conscious of interpretation of the word “shall” used in statute. It may be apt to refer to few cases on the point. In C. Bright Vrs. District Collector, (2020) 7 SCR 997, it has been reiterated that, a well-settled rule of interpretation of the statutes is that the use of the word “shall” in a statute, does not necessarily mean that WPC (OAC) No.2603 of 2015 Page 32 of 62 in every case it is mandatory that unless the words of the statute are literally followed, the proceeding or the outcome of the proceeding, would be invalid. It is not always correct to say that if the word “may” has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceeding invalid and that when a statute uses the word “shall”, prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. The principle of literal construction of the statute alone in all circumstances without examining the context and scheme of the statute may not serve the purpose of the statute. In S. Siba Rao Vrs. Nabin Mahakur, 2011 (I) ILR-CUT 946 (Ori) = 2011 (Supp.-II) OLR 910 (Ori) this Court has observed referring to State of U.P. Vrs. Babu Ram, AIR 1961 SC 751 that the use of word “shall” raises presumption that particular provision is imperative. The word “shall” is ordinarily mandatory but it is sometimes not so interpreted if the context or intention otherwise demands. See, Sainik Motor Vrs. State of Rajasthan, AIR 1961 SC 1480. When the statute uses word “shall” prima facie, it is mandatory, but the Court may ascertain the real intention of the Legislature by carefully attending to the whole scope of the statute. Refer, Govindlal Chagganlal Patel Vrs. Agriculture Produce Market Committee, AIR 1976 SC 263. WPC (OAC) No.2603 of 2015 Page 33 of 62 9.6. It is trite that when a discretion is vested in an Authority to exercise a particular power, the same is required to be exercised with due diligence, and in reasonable, prudent and rational manner. The Disciplinary Authority, before passing final order on quantum of penalty/punishment issued second show cause notice, and upon consideration of evidence on record and explanation proffered by the petitioner, passed the final order. Therefore, it is perceived by this Court that on rational application mind and adhering to the procedure, by a speaking order the punishment has been inflicted which got confirmed not only in the Appeal but also in the Revision preferred at the behest of the petitioner. 9.7. The Disciplinary Authority has taken into consideration the evidence led and material forming part of the Enquiry Report to return a finding that the charges levelled against the petitioner stand proved. It is not in dispute that the Superintendent of Police, Rourkela is the Disciplinary Authority and he is competent to impose penalty. When the nature of penalties enumerated in the OCS (CCA) Rules contained one of the penalties as “suspension”, and Rule 12(6) of the OCS (CCA) Rules read with Rule 841 of the Odisha Police Manual Rules confers power on the Disciplinary Authority to give directions about the treatment of the period of suspension, the competent authority having decided to direct for treating the period of suspension WPC (OAC) No.2603 of 2015 Page 34 of 62 from 07.07.2010 to 26.11.2010 “as such”, this Court finds no infirmity or illegality in imposing such penalty bearing in mind the nature of delinquency, viz. “misconduct” and “dereliction of duty”. Scope of judicial review in exercise of power under Article 226/227 of the Constitution of India: 10. This Court, in the aforesaid emerging factual matrix, need not go into the details of evidence to upset the settled factual position as that is not required while sitting in this jurisdiction under Article 226/227 of the Constitution of India. 10.1. Thus, in exercise of power under Articles 226 and 227 of the Constitution of India, this Court is not required to re-examine the evidence to find out as to whether the conclusion arrived at by the Disciplinary Authority or by the Appellate Authority is right or wrong. It is only required to examine as to whether the correct procedure has been followed and the principles of natural justice have been applied. 10.2. The guidelines as propounded in Union of India Vrs. P. Gunasekaran, AIR 2015 SC 545, are culled out hereunder: “The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether: WPC (OAC) No.2603 of 2015 Page 35 of 62 a. the enquiry is held by a competent authority; b. c. d. e. f. g. h. the enquiry is held according to the procedure prescribed in that behalf; there is violation of the principles of natural justice in conducting the proceedings; the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; the authorities have allowed themselves to be influenced extraneous irrelevant considerations; by or the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; the disciplinary authority had erroneously failed to admit the admissible and material evidence; the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence. Under Article 226/227 of the Constitution of India, the High Court shall not: (i). re-appreciate the evidence; (ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii). go into the adequacy of the evidence; (iv). go into the reliability of the evidence; WPC (OAC) No.2603 of 2015 Page 36 of 62 (v). interfere, if there be some legal evidence on which findings can be based. (vi). correct the error of fact however grave it may appear to be; (vii). go into the proportionality of punishment unless it shocks its conscience.” 10.3. In the case of State of Andhra Pradesh Vrs. S. Sree Rama Rao, AIR 1963 SC 1723, the Hon’ble Supreme Court made the following observations: “The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent Officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The the High Court may undoubtedly departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or; where the interfere where WPC (OAC) No.2603 of 2015 Page 37 of 62 conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution.” 10.4. Having noticed aforesaid observation in S. Sree Rama Rao (supra), in Ram Lal Bhaskar Vrs. State Bank of India, (2011) 12 SCR 1036, it has been enunciated as follows: “Thus, in a proceeding under Article 226 of the Constitution, the High Court does not sit as an Appellate Authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not re-appreciate the evidence and come to a different and independent finding on the evidence. This position of law has been reiterated in several decisions by this Court which we need not refer to, and yet by the impugned judgment the High Court has re-appreciated the evidence and arrived at the conclusion that the findings recorded by the enquiry officer are not substantiated by any material on record and the allegations levelled against the respondent No.1 do not constitute any misconduct and that the respondent No.1 was not guilty of any misconduct.” 10.5. Pertinent here to have regard to the following observations made in State of Karnataka Vrs. N. Gangaraj, (2020) 1 SCR 616: WPC (OAC) No.2603 of 2015 Page 38 of 62 “8. In State of Andhra Pradesh Vrs. S. Sree Rama Rao, AIR 1963 SC 1723, a three Judge Bench of this Court has held that the High Court is not a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant. It is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. The Court held as under: ‘7. it of *** The High Court is not constituted in a proceeding under Article 226 the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence….’ 9. In B.C. Chaturvedi Vrs. Union of India, (1995) 6 SCC 749, again, a three Judge Bench of this Court has held that power of judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair WPC (OAC) No.2603 of 2015 Page 39 of 62 treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the court. The Court/Tribunal in its power of judicial review does not act as an appellate authority the evidence and to arrive at its own independent findings on the evidence. It was held as under: re-appreciate to ‘12. Judicial review justice are is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither rules of the Evidence Act nor of proof of fact or evidence as defined disciplinary apply proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate technical therein, to WPC (OAC) No.2603 of 2015 Page 40 of 62 authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case. to 13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the Appellate Authority has co-extensive power re- appreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India Vrs. H.C. Goel, (1964) 4 SCR 781, this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.’ 10. In High Court of Judicature at Bombay through its Registrar Vrs. Shashikant S. Patil, (2000) 1 SCC WPC (OAC) No.2603 of 2015 Page 41 of 62 if 416, this Court held that interference with the decision of departmental authorities is permitted such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry while exercising jurisdiction under Article 226 of the Constitution. It was held as under: of order against ‘16. The Division Bench of the High Court seems to have approached the case as though it was an the appeal the administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority the Disciplinary Committee of the High Court) is the sole judge of the facts, if the enquiry has been legal properly position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of conducted. The settled this case (in WPC (OAC) No.2603 of 2015 Page 42 of 62 is not a matter for that evidence canvassing before the High Court in a writ petition filed under Article 226 of the Constitution.’ 11. In State Bank of Bikaner and Jaipur Vrs. Nemi Chand Nalwaya, (2011) 4 SCC 584, this Court held that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be ground for interfering with the findings in departmental enquiries. The Court held as under: ‘7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the for evidence will not be grounds interfering with in findings departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. the WPC (OAC) No.2603 of 2015 Page 43 of 62 Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (vide B.C. Chaturvedi Vrs. Union of India, (1995) 6 SCC 749, Union of India Vrs. G. Gunayuthan, (1997) 7 SCC 463, and Bank of India Vrs. Degala Suryanarayana, (1999) 5 SCC 762, High Court of Judicature at Bombay Vrs. Shashi Kant S Patil, (2001) 1 SCC 416).’ *** 12. The fact that from required invalid nor affect the criminal court subsequently acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceedings the validity of the finding of guilt or consequential punishment. The standard of proof required in criminal proceedings being different the in departmental standard of proof enquiries, the same charges and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving benefit of doubt in the criminal proceedings. This is more so when the departmental proceedings are more proximate to the incident, in point of time, when compared to the criminal proceedings. The findings by the criminal court will have no effect on previously concluded domestic enquiry. An employee who allows the findings in the enquiry and the punishment by the disciplinary authority to attain finality by non-challenge, cannot after several years, challenge the decision on the WPC (OAC) No.2603 of 2015 Page 44 of 62 ground that subsequently, the criminal court has acquitted him. *** 14. On for learned counsel the other hand the respondent relies upon the judgment reported as Allahabad Bank Vrs. Krishna Narayan Tewari, 2017 2 SCC 308, wherein this Court held that if the disciplinary authority records a finding that is not supported by any evidence whatsoever or a finding which is unreasonably arrived at, the Writ Court could interfere with the finding of the disciplinary proceedings. We do not find that even on touchstone of that test, the Tribunal or the High Court could interfere with the findings disciplinary authority. It is not the case of no evidence or that the findings are perverse. The finding that the respondent is guilty of misconduct has been interfered with only on the ground that there are discrepancies in the evidence of the Department. The discrepancies in the evidence will not make it a case of no evidence. The Inquiry Officer has appreciated the evidence and returned a finding that the respondent is guilty of misconduct. recorded by the 15. The disciplinary authority agreed with the findings of the enquiry officer and had passed an order of punishment. An appeal before the State Government was also dismissed. Once the evidence has been accepted by the departmental authority, in judicial review, the exercise of power of Tribunal or the High Court could not interfere facts recorded by with reappreciating evidence as if the Courts are the Appellate Authority. We may notice that the said judgment has not noticed larger bench judgments in Page 45 of 62 findings of the WPC (OAC) No.2603 of 2015 S. Sree Rama Rao and B.C. Chaturvedi as mentioned above. Therefore, the orders passed by the Tribunal and the High Court suffer from patent illegality and thus cannot be sustained in law. Accordingly, appeal is allowed and orders passed by the Tribunal and the High Court are set aside and the order of punishment imposed is restored.” 10.6. The Hon’ble Supreme Court in the case of State of Haryana Vrs. Rattan Singh, (1977) 2 SCC 491 while dealing with standard of proof and evidence applicable in the domestic inquiry, held as under: “4. careful tribunals must be It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are for a prudent mind are logically probative permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It that departmental authorities and is true administrative in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of is objectivity, exclusion of a judicial approach extraneous materials considerations and or observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. *** The simple point is, was there some evidence or WPC (OAC) No.2603 of 2015 Page 46 of 62 was there no evidence not in the sense of the technical rules governing regular court proceedings but in a fair common-sense way as men of understanding and wordly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a ending is certainty available for the court to look into because it amounts to an error of law apparent on the record. ***” 10.7. The Supreme Court in the case of M.V. Bijlani Vrs. Union of India, (2006) 5 SCC 88 laid down as under: review “25. It is true that the jurisdiction of the court in judicial limited. Disciplinary is proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi- judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.” WPC (OAC) No.2603 of 2015 Page 47 of 62 10.8. Following observation in General Manager (Operations), State Bank of India Vrs. R. Periyasamy, (2015) 3 SCC 101 may be relevant: “11. It is interesting to note that the learned Single Judge went to the extent of observing that the concept of preponderance of probabilities is alien to domestic enquiries. On the contrary, it is well known that the standard of proof that must be employed in domestic enquiries is in fact that of the preponderance of probabilities. In Union of India Vs. Sardar Bahadur, (1972) 4 SCC 618 this Court held that a disciplinary proceeding is not a criminal trial and thus, the standard of proof required is that of preponderance of probabilities and not proof beyond reasonable doubt. This view was upheld by this Court in State Bank of India Vrs. Ramesh Dinkar Punde, (2006) 7 SCC 212. More recently, in State Bank of India Vs. Narendra Kumar Pandey, (2013) 2 SCC 740, this Court observed that a disciplinary authority is expected to prove the charges the levelled against a bank-officer on preponderance of probabilities and not on proof beyond reasonable doubt.” 10.9. In Union of India Vrs. Ex. Constable Ram Karan, (2022) 1 SCC 373, the Hon’ble Supreme Court made the following pertinent observations : “23. The well-ingrained principle of law is that it is the disciplinary authority, or the appellate authority in appeal, which is to decide the nature of punishment to be given to the delinquent employee. Keeping in view the seriousness of the misconduct committed by such an employee, it is not open for the courts to WPC (OAC) No.2603 of 2015 Page 48 of 62 assume and usurp the function of the disciplinary authority. 24. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the court, normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the courts would frown upon. Even in such a case, after setting aside the left to the penalty order, disciplinary/appellate authority to take a call and it is not for the court to substitute its the quantum of decision by prescribing punishment. However, it is only in rare and exceptional cases where the court might to shorten the litigation may think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority that too after assigning cogent reasons.” is to be it 10.10. In the case of Union of India Vrs. Subrata Nath, (2022) 18 SCR 605 the Hon’ble Supreme Court of India laid down the circumstance under which there is scope for exercise of power under Article 226/227 of the Constitution of India: “22. To sum up the legal position, being fact finding authorities, both the Disciplinary Authority and the Appellate Authority are vested with the exclusive power to examine the evidence forming part of the WPC (OAC) No.2603 of 2015 Page 49 of 62 inquiry report. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct. However, in exercise of powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily reappreciate the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it the High would Court/Tribunal or is found to be flawed for other reasons, as enumerated in P. Gunasekaran (supra). the delinquent If employee is such that shocks the conscience of the High Court or the Tribunal, then the Disciplinary/ Appellate Authority may be called upon to re- consider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide impose appropriate punishment by itself, on offering cogent reasons therefor.” the punishment imposed on conscience shock the of to 10.11. As the authorities have settled the facts by analysing the evidence on record with due adherence to the principles of natural justice qua the petitioner, this Court desists to interfere with the Order dated 14.03.2012 of the Disciplinary Authority (Annexure-5) as affirmed in Order in Appeal dated 10.12.2013 (Annexure-7), and revision against such appellate order got confirmed vide Order dated 23.01.2015 (Annexure- 9). Consequently, it is needless to say that this Court WPC (OAC) No.2603 of 2015 Page 50 of 62 has no scope to show indulgence in charge vide Annexure-1 as sought to be quashed by the petitioner. CONCLUSION: 11. Whereas the Disciplinary Authority has accepted the findings recorded in the Enquiry Report and imposed penalty/punishment based on testimony of the witnesses more particularly the S.F. Havildar having denied that the petitioner had intimated him before leaving, there is little scope to interfere with finding of fact. In furtherance thereto, the appeal and the revision carried against such imposition of penalty, after consideration of the second show cause reply of the petitioner by the Disciplinary Authority, stood dismissed. Thus, this Court is not inclined to interfere with the concurrent finding of fact. 11.1. Though the petitioner was instructed to be alert on 07.07.2010 on account of bundh call by CPI (Maoists), he left the station without any intimation. The plea of the petitioner that he intimated S.F. Havildar has been stoutly denied by said Havildar in his statement recorded vide Annexure-C/3 to the counter filed by the opposite parties. Such fact remained uncontroverted by the petitioner. Therefore, the finding of fact of the Disciplinary Authority being affirmed by the Appellate Authority as also the Revisional Authority, the penalty/ punishment cannot be said to be without evidence on WPC (OAC) No.2603 of 2015 Page 51 of 62 record. The petitioner having not demonstrated perversity of factual adjudication by the authorities concerned, the writ petition is liable to be dismissed. 11.2. The legal issue that the Disciplinary Authority was not competent to award punishment of treating period of suspension “as such” in addition to “black mark”, as sought to be agitated by Ms. Babita Kumari Pattnaik, learned Advocate for the petitioner, is liable to be repelled for the reason that: (a) Neither such plea was raised before the Disciplinary Authority nor before the Appellate Authority or the Revisional Authority. (b) Be that as it may, the provisions of the OCS (CCA) Rules read in harmony with the Odisha Police Manual Rules it is manifest that the Disciplinary Authority was required to pass orders with regard to effect of suspension while passing final orders. (c) In the case at hand, the Disciplinary Authority having taken into consideration the Statements of witnesses recorded, especially the Statement of Striking Force Havildar (Annexure-C/3 enclosed to the counter filed by the opposite parties), it could not be stated that the finding of fact is based on no evidence. Given the legal position as enunciated, this Court does feel it inept to show indulgence in WPC (OAC) No.2603 of 2015 Page 52 of 62 the concurrent finding of fact, as the petitioner has failed to show any perversity in coming to such conclusion by the authorities concerned on the basis of material available on record. (d) Bereft of the above, it may be stated that the relevant rules as referred to herein above clearly envisaged order to be passed with respect to treatment of period of suspension. Therefore, the argument of the counsel for the petitioner that in addition to “black mark”, the period of suspension could not be treated “as such” cannot hold water. 12. The suspension period, i.e., from 07.07.2010 to 26.11.2010 being directed to be treated “as such”, the petitioner was considered as not on duty during that period. 12.1. In Rajkot Municipal Corporation Vrs. Manjulben Jayantilal Nakum, (1997) 9 SCC 552, it has been observed that ‘duty’ is “an obligation recognized by law to avoid conduct fraught with unreasonable risk of damage to others”. 12.2. In V.V. Narayana Chetty Vrs. Narrappareddigari Venkata Reddi, AIR 1963 AP 452, the Court ascribed the meaning of the “duty” based on dictionary as “Action or an act, that is due in the way of moral or legal obligation; that which one ought or is bound to do; an obligation”. Thus, WPC (OAC) No.2603 of 2015 Page 53 of 62 as expression “duty” denotes, one cannot refuse to perform the act, but is bound to do it. Therefore, ‘duty’ is an act that is due to be performed by virtue of moral or legal obligation; that which one ought or is bound to do the official function. 12.3. The Armed Police Reserve Constables in Striking Force are expected to adhere to strict code of conduct and follow orders promptly, especially in situations where public safety and security are at risk. Failure to comply with instructions during critical times can jeopardize operations, compromise the safety of the public, and undermine the credibility of the police force. Therefore, such behaviour is likely to be viewed seriously within a disciplined organization like the police, where adherence to protocols and discipline are paramount. It is essential for law enforcement agencies to maintain high standards of discipline and professionalism to effectively carry out their duties and responsibilities. Any act of insubordination or negligence that hinders the operational effectiveness of the police force can have serious repercussions, both in terms of public trust and organizational integrity. As such, instances of misconduct, such as being absent during a critical alert period, may warrant disciplinary action to uphold the standards of the organization and ensure accountability among its members. WPC (OAC) No.2603 of 2015 Page 54 of 62 12.4. In a disciplined organization like the police, remaining absent when asked to remain alert due to bundh call given by CPI (Maoists) has seemly been considered misconduct and dereliction of duty by the Disciplinary Authority. The petitioner, in the instant case, cannot be treated leniently due to the serious implications it can have on operational efficiency and public safety. Upholding discipline and adherence to protocols are essential aspects of maintaining the credibility and effectiveness of law enforcement agencies. 12.5. It is fairly well settled [see, State of Rajasthan Vrs. B.K. Meena, (1996) 6 SCC 417] that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him; whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different. 12.6. In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of “proof beyond doubt” has no application. Preponderance of WPC (OAC) No.2603 of 2015 Page 55 of 62 probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct. 12.7. While exercising jurisdiction under Article 226 of the Constitution this Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an Appellate Authority. As observed in R.S. Saini Vrs. State of Punjab, (1999) 8 SCC 90, the scope of interference is rather limited and has to be exercised within the circumscribed limits. It was noted as follows: “16. Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of non-application of mind, we will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the Court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings. to substantiate finding and the WPC (OAC) No.2603 of 2015 Page 56 of 62 17. A narration of the charges and the reasons of the inquiring authority for accepting the charges, as seen from the records, shows that the inquiring has based its conclusions on materials available on record after considering the defence put forth by the appellant and these decisions, in our opinion, have been taken in a reasonable manner and objectively. The conclusion arrived at by the inquiring authority cannot be termed as either being perverse or not based on any material nor is it a case where there has been any non-application of mind on the part of the inquiring authority. Likewise the High Court has looked into the material based on which the enquiry officer has come to the conclusion, within the limited scope available to it under Article 226 of the Constitution and we do not find any fault with the findings of the High Court in this regard.” 12.8. As noted above, the plea of the petitioner that he had intimated Striking Force Havildar to proceed to attend medical exigency was denied in the cross-objection of the Havildar and no further material has been placed on record to contradict such statement of said Havildar. The authorities-opposite parties have found that there was lapse on the part of the petitioner. The petitioner, a Constable, was instructed to remain alert on 07.07.2010, but he had shown dereliction in discharging his duty entrusted to him. The nature of his work demands vigilance with the inbuilt requirement to act carefully. Any carelessness invites action. WPC (OAC) No.2603 of 2015 Page 57 of 62 12.9. In the wake of aforesaid, this Court considers it apposite to restrict itself from exercising extraordinary jurisdiction under Article 226/227 of the Constitution of India by showing indulgence in the matter where not only the Orders of the Disciplinary Authority got confirmed in the Appellate Authority, but also the revision preferred by the petitioner suffered rejection. 13. In the instant case, it is the concurrent finding of the opposite parties-authorities that there was failure to fulfil assigned responsibilities, leading to breach of trust having impact on service delivery and violation of rules to hold that the petitioner was found guilty of “misconduct” and “dereliction of duty”. Thus, understood, these key elements being essential for ensuring accountability and upholding ethical standards in public service, there appears no flaw in imposing appropriate penalty/punishment. 13.1. In State of Maharashtra Vrs. Digambar, (1955) 4 SCC 683, while dealing with exercise of power of the High Court under Article 226 of the Constitution, the Court observed that power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person’s entitlement for relief from a High Court under Article 226 of the Constitution, be it against the State or WPC (OAC) No.2603 of 2015 Page 58 of 62 anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct. 13.2. Where the employee who is unauthorisedly absent from duty and fails to offer any satisfactory explanation, the employer is competent to take recourse to disciplinary action in regard to the unauthorized absence. Such disciplinary proceedings may lead to imposition of punishment ranging from a major penalty like dismissal or removal from service to a minor penalty like withholding of increments without cumulative effect. The extent of penalty will depend upon the nature of service, the position held by the employee, the period of absence and the cause/explanation for the absence. See, State of Punjab Vrs. Dr. P.L. Singla, (2008) 8 SCC 469. 13.3. In Chennai Metropotan Water Supply and Sewerage Board Vrs. T.T. Murali Babu, (2014) 1 SCR 987, the Hon’ble Supreme Court discussed the “doctrine of proportionality” with the following observations: “27. Presently, we shall proceed to scrutinize whether the High Court is justified in applying the doctrine of proportionality. Doctrine of proportionality in the context of imposition of punishment in service law Page 59 of 62 WPC (OAC) No.2603 of 2015 gets attracted when the court on the analysis of material brought on record comes to the conclusion that the punishment imposed by the Disciplinary Authority or the appellate authority shocks the conscience of the court. In this regard a passage from Indian Oil Corporation Ltd. and another Vrs. Ashok Kumar Arora, (1997) 3 SCC 72 is worth reproducing: ‘At the outset, it needs to be mentioned that the High Court in such cases of departmental enquiries and the findings recorded therein does not exercise the powers of appellate court/authority. The jurisdiction of the High Court in such cases is very limited for instance where it is found that the domestic enquiry is vitiated because of non-observance of principles of natural justice, denial of reasonable opportunity; findings are based on no evidence, and/or the punishment is totally disproportionate to the proved misconduct of an employee.’ the Court analysed In Union of India and another Vrs. G. Ganayutham, the (1997) 7 SCC 463, conception of proportionality in administrative law in England and India and thereafter addressed itself in disciplinary with regard to the punishment matters and opined that unless the court/tribunal opines in its secondary role that the administrator was, on the material before him, irrational according to Associated Provincial Picture Houses Ltd. Vrs. Wednesbury Corpn., (1948) 1 KB 233 = (1947) 2 All ER 680 and Council of Civil Service Unions Vrs. Minister for Civil Service, 1985 AC 374 = (1984) 3 All ER 935 norms, the punishment cannot be quashed. 28. 29. In Chairman-cum-Managing Director, Coal India Limited and another Vrs. Mukul Kumar Chaudhuri Page 60 of 62 WPC (OAC) No.2603 of 2015 and others, (2009) 15 SCC 620, the Court, after analyzing that the doctrine of proportionality at length, ruled thus: ‘19. The doctrine of proportionality is, thus, well- recognised concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision-maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. imposed such punishment 20. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have like reasonable circumstances? Obviously, a employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude imposing irrelevant matters before punishment.’ ***” in 13.4. Judged on the anvil of the aforesaid premises, it would not be correct approach for this Court to interfere with the penalty/punishment imposed on the petitioner for proved charge of “misconduct” and “dereliction of duty”. WPC (OAC) No.2603 of 2015 Page 61 of 62 14. For the reasons ascribed supra and in the light of discussions made in the foregoing paragraphs and bearing in mind the limited scope of judicial review, it would be right in upholding the orders of punishment/ penalties as inflicted by the Disciplinary Authority, which has been affirmed in the Appeal as also the revision. This Court finds no reason to differ from the conclusions of the opposite parties. 15. The writ petition, sans merit, is liable to be dismissed. 16. In the result, this writ petition stands dismissed, but in the circumstances, there shall be no order as to costs. (MURAHARI SRI RAMAN) JUDGE Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 19-Mar-2024 18:27:36 High Court of Orissa, Cuttack The 19th March, 2024//MRS/Laxmikanta/Suchitra WPC (OAC) No.2603 of 2015 Page 62 of 62