The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OA) No.1506 of 2016 Lakshaman Kumar Behera ..... Petitioner Mr. P.K. Mishra, Advocate State of Odisha & Ors. -versus- ..... CORAM: Opposite Parties Mr. M.K. Balabantaray, AGA THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 27.06.2024 Order No.03 1. This matter is taken up through hybrid mode.
Legal Reasoning
2. Heard Mr. P.K. Mishra, learned counsel appearing for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. Petitioner has filed the present writ petition inter alia challenging order of punishment passed by the Collector & Disciplinary Authority, Ganjam, Chhatrapur vide his order dtd.07.02.2013 under Annexure-11 so confirmed by the appellate authority vide order dtd.28.03.2014 under Annexure-13. 4. Learned counsel for the Petitioner contended that when the Petitioner was continuing as a Senior Clerk in Kabi Surya Nagar Tahasil vide office order dtd.29.11.2011, he was placed under suspension pending initiation of departmental proceeding. It is contended that thereafter instead of initiating a proceeding with issuance of the memorandum and article of charges along with statement of imputation, a show-cause notice was issued under Rule Page 1 of 5. 15 of OCS (CCA) Rules, 1962 (in short Rules) on the Petitioner in the nature of a disciplinary proceeding on 13.01.2012 vide Annexure-1 series. Subsequently, with similar allegation another show-cause was also issued in the same light vide show-cause dtd.26.04.2012 under Annexure-2 series. 4.1. It is the main contention of the learned counsel appearing for the Petitioner that show-cause notices issued under Annexure-1 on 13.01.2012 as well as 26.04.2012 under Annexure-2 series cannot be treated as a proceeding to have been initiated under Rule 15 of the OCS (CCA) Rules, 1962, as it does not contain the memorandum and the article of charges as well as the statement of imputation etc. Rule 15(2) of the Rules reads as follows:- “(2) The disciplinary authority shall frame definite charges on the basis of the allegations on which the inquiry is to be held. Such charges, together with a statement of the allegations on which they were based, shall communicated in writing to the Government servant and he shall be required to submit within such time as may be specified by the disciplinary authority, not ordinarily exceeding one month a written statement of his defence and also to state whether he desires to be heard in person. Explanation- In this Sub-rule and in Sub-rule (3) the expression Disciplinary authority shall include the authority competent under these rules to impos upon the Government servant of the penalties specified in Clauses (i) to (v) of Rule 13.” 4.2. Be that as it may, Petitioner being a disciplined Govt. Employee, he on receipt of the show-cause so issued under Annexure-1 & 2 submitted his reply vide Annexure-2 series on 16.05.2012. It is contended that in view of the nature of show-cause issued under Annexure-1 series, though the same cannot be treated Page 2 of 5. as a proceeding in the eye of law, but the disciplinary authority-Opp. Party No. 3 appointed the enquiry officer vide office order dtd.19.07.2012 under Annexure-4. On completion of the enquiry report when the enquiry officer submitted the report, Opp. Party No. 3 issued the 1st show-cause notice on 07.08.2012 under Annexure-5 and 2nd show-cause notice on 15.11.2012 vide Annexure-8. 4.3. It is however contended that enquiry officer, who happens to be Opp. Party No. 4 after causing the enquiry submitted the report by suggesting that Petitioner may be cautioned/warned not to repeat such mistake in future and this may be reflected in his service book. 4.4. Learned counsel appearing for the Petitioner contended that since no proceeding in the eye of law was ever initiated against the Petitioner as provided under Rule 15 of the Rules and the show- cause notices issued under Annexure-1 series and 2 series being in the nature of a show-cause, no order of punishment could have been passed in terms of the provisions contained under Rule 15 of the OCS (CCA) Rules, 1962. But Opp. Party No. 3 without proper appreciation of the relevant provisions contained under Rule 15 while issuing the show-cause under Annexure-1 series & 2 series, held it to be a proceeding in the eye of law and accordingly proceeded with the matter with imposition of the punishment vide order dtd.07.02.2013 under Annexure-11. 4.5. Even though Petitioner filed an appeal against such order of punishment, the appellate authority as like the disciplinary authority without proper appreciation confirmed the said order vide order dtd.28.03.2014 under Annexure-13. It is accordingly contended that since no proceeding in the eye of law was ever initiated in terms of Rule 15 of OCS (CCA) Rules, 1962 and only show-causes were Page 3 of 5. issued under Annexure-1 series and 2 series, no order of punishment could have passed basing on the show-cause and by treating it to be a proceeding. It is accordingly contended that the impugned order of punishment passed under Annexure-11 so confirmed by the appellate authority under Annexure-13 are not sustainable in the eye of law. 5. A counter affidavit has been filed by the Opp. Party Nos. 2 & 3. Mr. Balabantaray, learned Addl. Govt. Advocate basing on the stand taken in the counter affidavit made his submission. Though it is not disputed by the Opp. Parties that basing on the show-cause notices issued under Annexure-1 series and 2 series, Petitioner was imposed with the order of punishment vide order under Annexure-11 so confirmed vide order under Annexure-13, but a stand has been taken that the show-cause notices issued under Annexure-1 series and 2 series having been issued under Rule 15 of the OCS (CCA) Rules, 1962, it is to be treated as a disciplinary proceeding in the eye of law. While taking such a stand, Opp. Party Nos. 2 & 3 have justified the order of punishment imposed against the Petitioner. It is also contended that Petitioner on his own while issuing a letter under Annexure-6 also prayed that he may be excused for the mistake he has committed and his promotion may be considered. 6. Having heard learned counsel appearing for the Parties and considering the submission made as well as the materials available on record, this Court finds that Petitioner was placed under suspension vide order dtd.29.11.2011 pending initiation of a proceeding. Instead of initiating a proceeding in accordance with provisions contained under Rule 15 of OCS (CCA) Rules, 1962, show-cause notice was issued under Rule 15 of the said Rules vide Page 4 of 5. Annexure-1 series on 13.01.2012 and with similar allegation on 26.04.2012 under Annexure-2 series. This Court after going through the contents of the show-cause notices issued under Annexure-1 series and 2 series, is of the view that such show-cause notices cannot be treated as a duly initiated proceeding under Rule 15 of the Rules, as the said show-causes nowhere contents the article of charges and the statement of imputation, if any. 6.1. Therefore, in view of such material irregularity, which is apparent on the face of show-cause notices issued under Annexure-1 & 2, this Court is not inclined to accept the contention raised by the learned State Counsel that the show-caused notices issued under Annexure-1 series and 2 series are to be taken as disciplinary proceeding in the eye of law. Since no proceeding in the eye of law was ever initiated against the Petitioner, the order of punishment so passed under Annexure-11 and confirmed vide order under Annexure-13 are not sustainable in the eye of law. 6.2. Therefore, this Court is inclined to quash the orders issued under Annexure-1, 11 & 13. While quashing both the orders, this Court directs Opp. Party No. 3 to extend the benefits as due and admissible within a period of 2 (two) months from the date of receipt of this order.
Decision
7. The writ petition is disposed of accordingly. Signature Not Verified Digitally Signed Sneha Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Jul-2024 10:15:16 (BIRAJA PRASANNA SATAPATHY) Judge Page 5 of 5.