The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) No. 1345 of 2017 Suresh Chandra Behera ..... State of Odisha & Ors. -versus- ..... CORAM: Petitioner Mr. S. Behera, Advocate Opposite Parties Mr. A. Tripathy, AGA THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 21.11.2024 Order No. 07 1. This matter is taken up through hybrid mode.
Legal Reasoning
2. Heard Mr. S. Behera, learned counsel appearing for the Petitioner and Mr. A. Tripathy, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. Petitioner has filed the present writ petition inter alia challenging order of punishment passed against him vide order dtd.22.07.2010 by Opp. Party No. 3, further confirmed by the appellate authority- Opp. Party No. 2 vide order dtd.05.12.2013 under Annexure-9 and by the Govt.-Opp. Party No. 1 vide order dtd.18.03.2017 under Annexure-12. 4. It is the case of the Petitioner that a proceeding was initiated against him vide Charge memo dtd.01.08.2009 under Annexure-4. It is contended that on receipt of the memorandum dtd.01.08.2009 Petitioner submitted his explanation on 18.08.2009 under Annexure-5. After submission of the explanation and with due appointment of the enquiry officer, Enquiry Officer conducted the Page 1 of 6. enquiry and submitted a report vide letter dtd.20.04.2010 so available under Annexure-A/3 to the counter affidavit. 4.1. It is contended that the Enquiry Officer after conducting the enquiry gave his finding with the following recommendations:- “On perusal of the documents furnished by the delinquent and observation made there upon as well as confessing the guilty committed by the delinquent without any malafied intention, from humanitarian point of view and it is suggested to impose the following punishments as reflected below. the case may be viewed leniently 1) He may be censured for not repeating the same in future. 2) Once increment may be stopped without affecting his future increments.” 4.2. It is contended that since proceeding in question was initiated against the Petitioner under Rule 15 of the OCS (CCA) Rules, 1962 as provided under the said Rule, after submission of the enquiry report on 20.04.2010 vide Annexure-A/3 to the counter affidavit, Petitioner should have been issued with the 1st show-cause along with a copy of the enquiry report and thereby enabling him to make his representation against the said report. But Opp. Party No. 3 who happens to be the disciplinary authority never provided a copy of the enquiry report while issuing the 1st show-cause in terms of the provisions contained under Rule 15(10)(i)(a) of the Rules. On the other hand without following the aforesaid provision, Petitioner was straight away issued with the 2nd show-cause vide letter dtd.12.05.2010 under Annexure-6 by Opp. Party No. 3 proposing the punishments to be imposed as against the Petitioner. 4.3. It is also contended that while proposing the punishment with issuance of the 2nd show-cause on 12.05.2010 under Annexure-6, Opp. Party No. 3 never gave his disagreement note to the Page 2 of 6. recommendation made by the Enquiry Officer so available under Annexure-A/3 to the counter affidavit. It is accordingly contended that the 2nd show-cause issued on 12.05.2010 under Annexure-6 proposing the punishment is also illegal, as no disagreement note was given by the disciplinary authority/Opp. Party No. 3. 4.4. It is contended that Petitioner after receipt of the 2nd show- cause though submitted his reply, but without proper appreciation of the same, Opp. Party No. 3 while disposing the proceeding vide order dtd.22.07.2010 under Annexure-7 imposed the following punishments:- “1) Three Increments are stopped with cumulative effect. 2) He shall not be considered for promotion for next three years. 3) He is censured. 4) The period of suspension is treated as such.” 4.5. It is contended that challenging the order of punishment Petitioner preferred an appeal vide Annexure-8 and the appellate authority without proper appreciation of the grounds taken in the memo of appeal rejected the appeal vide order dtd.05.12.2013 under Annexure-9. Petitioner thereafter moved Opp. Party No. 1 by filing a memorandum under Annexure-10 and the said memorandum was also rejected by Opp. Party No. 1 vide order dtd.18.03.2017 under Annexure-12. 4.6. Learned counsel for the Petitioner contended that since statutory provisions contained under Rule 15(10)(i)(a) was never followed with issuance of the 1st show-cause along with copy of the enquiry report, order of punishment passed under Annexure-7 further confirmed vide order at Annexure-9 & 12 are not sustainable in the eye of law and requires interference of this Court. Page 3 of 6. It is also contended that in the meantime Petitioner has retired from his service on attaining the age of superannuation on 30.06.2020. 5. Mr. A. Tripathy, learned Addl. Govt. Advocate on the other hand while supporting the impugned order of punishment made his submission basing on the stand taken in the counter affidavit. It is contended that on receipt of the enquiry report Petitioner when was issued with the show-cause proposing the punishment vide letter dtd.12.05.2010 under Annexure-6, Petitioner without any objection submitted his reply to the same. On consideration of the said reply Opp. Party No. 3 being the disciplinary authority disposed of the proceeding vide order dtd.24.07.2010. Appeal preferred by the Petitioner against such order of punishment was also rejected vide order dtd.05.12.2013 under Annexure-9. 5.1. It is contended that after such rejection of the appeal, Petitioner never took any further step and instead he approached the Tribunal by filing O.A. No. 2020(C) of 2016 challenging the order passed by the appellate authority on 05.12.2013. But the Tribunal vide order dtd.29.09.2016 directed Opp. Party No. 1 to take a decision on the Petitioner’s claim and in consideration of the same Opp. Party No. 1 while upholding the order of punishment rejected the memorandum vide order dtd.18.03.2017 under Annexure-12. 5.2. It is contended that since Petitioner after dismissal of the appeal vide order dtd.05.12.2013 never took any further step till he approached the Tribunal in O.A. No. 2020(C) of 2016, for such negligence on the part of the Petitioner, Petitioner is not entitled to get any relief as prayed for. It is accordingly contended that no interference is called for with regard to the order of punishment Page 4 of 6. passed against the Petitioner so confirmed by the appellate authority as well as by the Govt.-Opp. Party No. 1. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that the proceeding was initiated against the Petitioner vide memorandum dtd.01.08.2009 under Annexure-4. After submission of the reply by the Petitioner under Annexure-5 and appointment of the enquiry officer, the Enquiry Officer submitted the report vide letter dtd.20.04.2010 under Annexure-A/3 to the counter affidavit. 6.1. As found from order dtd.24.07.2010 so enclosed vide Annexure-B/3 to the counter affidavit, after submission of the enquiry report, Petitioner was never issued with the 1st show-cause along with copy of the enquiry report. As found from the said order Opp. Party No. 3 after receipt of the enquiry report submitted the show-cause on 12.05.2010 by proposing the punishment to be imposed, which is in the nature of a 2nd show-cause. Not only that while proposing such punishment which is not recommended by the enquiry officer, no disagreement note was also given by Opp. Party No. 3 as provided under Rule 15(10)(i)(b) of the Rules. 6.2. In view of such illegalities apparent on the face of the original order of punishment passed by the disciplinary authority on 24.07.2010 under Annexure-7 / Annexure-B/3 to the counter affidavit, this Court is of the view that statutory provisions contained under Rule 15(10)(i)(a) has not been followed in the case in hand. In view of the same, this Court is inclined to quash the order of punishment passed against the Petitioner vide order dtd.24.07.2010 under Annexure-7, further confirmed by the appellate authority-Opp. Party No. 2 vide order dtd.05.12.2013 Page 5 of 6. under Annexure-9 and by the Govt.-Opp. Party No. 1 vide order dtd.18.03.2017 under Annexure-12. While quashing all those orders, this Court remits the matter to Opp. Party No. 3 to start the proceeding afresh from the stage of submission of the enquiry report along with the 1st show-cause. 6.3. Since the proceeding is of the year 2009 and Petitioner has retired since 30.06.2020, this Court directs Opp. Party No. 3 to dispose of the proceeding in accordance with law from the stage of submission of the enquiry report along with the 1st show-cause. This Court directs Opp. Party No. 3 to conclude the proceeding as expeditiously as possible preferably within a period of six (6) months from the date of receipt of this order. Petitioner is also directed to co-operate for disposal of the proceeding. 7. The writ petition is disposed of with the aforesaid observation and direction. Sneha (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Nov-2024 17:55:56 Page 6 of 6.