The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) No.1884 of 2014 In the matter of an application under Section 19 of the Administrative Tribunal Act, 1985. ……………… Mahindra Kumar Patel …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner : M/s.Dinesh Kumar Panda, D.K.Panda, G.Sahoo & A.Mishra. For Opp. Parties : Standing Counsel Mr. N.K.Praharaj. Mr. S.B.Jena, Adv. for Opposite Party No.2(OPSC). PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------- Date of Hearing: 25.04.2022 and Date of Order: 05.05.2022 -------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Mode.
Legal Reasoning
2. Heard Mr. D.K.Panda, learned counsel for the Petitioner and Mr. Praharaj, learned counsel for the State- Opposite Parties and Mr. S.B.Jena, learned counsel for OPSC. 3. The Petitioner has filed the Present Writ // 2 // Petition challenging the order of punishment passed by the Opposite Party No.1 vide order dated 07.02.2014 under Annexure-9. 4. It is submitted by the learned counsel for the Petitioner that the Petitioner while continuing as an Asst. Engineer, a proceeding was initiated against the Petitioner vide Memorandum dated 09.01.2009 under Annexure-2 purportedly under Rule-17 of the OCS (CCA) Rules, 1962 followed by Rule-15 of the said Rules. It is also proposed to impose penalty on conclusion of the proceeding as provided under Rule-13 of the said Rules. 5. It is submitted by Mr. Panda, learned counsel for the Petitioner that on being provided with the Memorandum dated 09.01.2009 under Annexure-2, the Petitioner submitted his written statement of defence on 13.03.2009 under Annexure-3. 6. It is further submitted that subsequent to the appointment of Enquiry Officer and Marshalling Officer vide order dated 11.12.2009 under Annexure-4, the Enquiry as against the Petitioner proceeded with submission of the enquiry report on 04.12.2010. In the said enquiry report, the Enquiry Officer came to the following findings:- “CONCLUSION That in view of the facts enumerated above I do not find sufficient evidence and reasons to hold the D.Os responsible for the omission and commission brought against them in the above departmental proceeding. The article of the charges leveled against them are not based on any material evidences. The prosecution have no substantial evidence to prove the charges against the D.Os. in view of procedural measurement stipulated. Under the circumstances this inquiry do not substantiate the charges leveled against the D.Os”. Page 2 of 8 // 3 // 7. It is humbly submitted even though the Enquiry Officer in his report dated 04.12.2010 did not find any material as against the Petitioner and held the charges not proved, but the Opposite Party No.1 while issuing the first show cause vide letter dated 6.6.2013 proposed punishment of withholding of one annual increment with cumulative effect. 8. It is submitted that since the Enquiry Officer in his report held the charges as not proved, the Opposite Party No.1 while issuing the first show cause with the proposed punishment should have submitted a disagreeing note for not concurring with the opinion of the Enquiry Officer. 9. It is accordingly submitted that without having any disagreeing note, the first show cause issued on 06.06.2013 is not in consonance with the provision of Rule-15 of the OCS (CCA) Rules, 1962. 10. It is also submitted that the Petitioner in spite of such material irregularity and on receipt of Annexure-7 submitted his representation on 11.07.2013 under Annexure-8. But it is submitted that without issuing the second show cause in terms of the provision of Rule-15,the Opposite Party No.1 passed the impugned order of punishment vide
Decision
order dated 07.02.2014 under Annexure-9. As reflected in the said order, the Petitioner was imposed with punishment of withholding of one annual increment with cumulative effect. 11. It is submitted that not only the Disciplinary Authority-Opposite Party No.1 issued the first show cause Page 3 of 8 // 4 // illegally, but also passed the impugned order of punishment without issuing the second show cause, which is provided under Rule-15 of the OCS (CCA) Rules, 1962. By not issuing the second show cause and by not reflecting his disagreeing note in the first show cause, the Petitioner was not only prejudiced but also that amounts to non- compliance of the principle of natural justice. 12. Mr. Panda, learned counsel for the Petitioner in support of the aforesaid submission relied on the decision of the Hon’ble Apex Court reported in AIR 1998 SC 2713 and AIR 1999 SC 3734. The Hon’ble Apex Court in the aforesaid decision in the case of Punjab National Bank (AIR 1998 SC 2713) held as follows in Para-17:- “These observations are clearly in tune with the observations in Bimal Kumar Pandit's case (AIR 1963 SC 1612) (supra) quoted earlier and would be applicable at the first stage itself. the aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the inquiry officer had given an adverse finding, as per Karunakar's case (1994 AIR SCW 1050) (supra) the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the inquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be over-turned by the disciplinary authority then no opportunity should be granted. The first stage of the inquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the inquiring officer holds the charges to be proved then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the inquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be Page 4 of 8 // 5 // condemned unheard. In departmental proceedings what is of ultimate is the findings of the disciplinary authority”. importance 13. Similarly, the Hon’ble Apex Court in other decision in the case of Yoginath D.Bagde (AIR 1999 SC 3734) held as follows in Para-53 and 54:- 53. It was lastly contended by Mr. Harish N. Salve that this Court cannot reappraise the evidence which has already been scrutinized by the Enquiry Officer as also by the Disciplinary Committee. It is contended that the High Court or this Court cannot, in exercise of its jurisdiction under Article 226 or 32 of the Constitution, act as the Appellate Authority in the domestic enquiry or trial and it is not open to this Court to reappraise the evidence. The proposition as put forward by Mr. Salve is in very broad terms and cannot be accepted. The law is well-settled that if the findings are perverse and are not supported by evidence on record or the findings recorded at the domestic trial are such to which no reasonable person would have reached, it would be open to the High Court as also to this Court to interfere in the matter. In Kuldeep Singh vs. The Commissioner of Police & Ors., (1998) (8) JT SC 603 :