The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC (OAC) NO.2714 of 2017 Bishnu Prasad Jethy ..... Petitioner Mr. B.B. Mohanty, Advocate State of Odisha & Others ..... -versus- Opposite Parties Mr. B. Mohanty, Addl. Govt. Advocate CORAM: THE HON’BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY Order No.4 ORDER 14.08.2024 1. This matter is taken up through hybrid mode. 2. Heard learned counsel for the parties. 3. Petitioner has filed the present Writ Petition inter alia challenging the Office Order dt.16.11.2016 passed by Opp. Party No.1 under
Legal Reasoning
Annexure-10 so confirmed by the self-same authority vide order dt.17.03.2017 under Annexure- 11 and so also the Memorandum of Charges issued on 14.03.2012 under Annexure-1. 4. Learned counsel for the Petitioner contended that in the proceeding initiated against the Petitioner vide Memorandum dt.14.03.2002 under Annexure-1, petitioner not only filed his written statement of defence but also participated in the inquiry. The Inquiring Officer after conducting the . enquiry submitted the report on 14.10.2015under Annexure-5 with the following findings: Findings From the alone discussions made at length on each charge against the delinquent all the above three charges are established beyond any reasonable doubt against the delinquent. Therefore, I hold him guilty of the charges framed against him and liable for departmental action besides the punishment to be awarded by the Judicial Court on the F.I.R filed against the delinquent in the M. Rampur Police Station which is said to be pending at Bhawanipatna. Judicial Court the in Submit the enquiry report to the Director (ST)-cum-Addl. Secretary to Govt. ST/SC Dev. Deptt., Odisha in a closed confidential cover for favour of further action. 4.1. Learned counsel for the Petitioner contended that on receipt of the enquiry report, Petitioner was issued with the 1st show cause vide letter dt.28.11.2015 and petitioner also submitted his representation against the finding of the enquiry report on 17.12.2015. Thereafter, 2ndshow cause notice was issued to the Petitioner vide letter dt.18.02.2016 under Annexure-6 proposing therein to pass an order of dismissal against the Petitioner.Petitioner when submitted his reply to the 2nd show-cause notice under Anenxure-7 on 04.03.2016, Opp. Party No.1 vide letter dt.29.03.2016 under Annexure-8 directed the Inquiry Officer to cause de-novo enquiry or fresh enquiry by remanding the proceeding file. . 4.2. Learned counsel for the Petitioner contended that the Inquiry Officer on being so directed, submitted a report vide letter dt.14.09.2016 under Annexure-9 indicating therein that de-novo enquiry as directed could not be concluded. However, on the face of such report of the Inquiry Officer and without allowing the de novo inquiry to be concluded as directed with submission of report, petitioner was issued with the punishment vide Order dt.16.11.2016 under Annexure-10. 4.3. Learned counsel for the Petitioner contended that since after receipt of the reply to the 2nd show- cause, Opp. Party No.1 vide letter dt.29.03.2016 under Annexure-8 directed the Inquiry Officer to cause de novo enquiry/fresh enquiry and the Inquiry Officer vide letter dt.14.09.2016 under Annexure-9 indicated that the de no enquiry could not be concluded, prior to completion of such de novo enquiry with submission of report therein, impugned order of punishment could not have been passed by Opp. Party No.1vide order dt.16.11.2016 under Anneuxre-10. Petitioner thereafter though raised such an issue while filing an appeal under Rule-21 of the OCS (CCA) Rules,1962 under Annexure-11, but without proper appreciation of the same, the appeal was rejected by the self-same authority-Opp. Party No.1 vide order dt.17.03.2017 under Annexure-12. 4.4. Learned counsel appearing for the Petitioner contended that since in terms of Annexure-8, no . equiry report was submitted with due completion of the de novo enquiry/fresh enquiry and the said fact is apparent on the face of letter issued under Annexure-9, the order of punishment basing on the earlier enquiry report could not have been imposed vide the impugned order dt. 16.11.2016 Annexure- 10 so confirmed vide order under Annexure-12. It is also contended that in the meantime, Petitioner has already attained the age of superannuation having retired from his service. 5. Even though notice of the Writ Petition has been issued since 03.11.2017, but no counter affidavit has been filed as yet. However, basing on the materials available on record, learned Addl. Govt. Advocate contended that on the face of the direction issued by Opp. Party No.1 to cause de novo enquiry vide letter dt.29.03.2016 under Annexure-8 when the Inquiry Officer vide Annexure-9 indicated that the enquiry could not be concluded, Opp. Party No.1 basing on the 2nd show- cause notice issued to the Petitioner under Annexure-6 and the reply submitted by the Petitioner under Anexure-7, passed the impugned order of punishment vide Order dt.16.11.2016 under Annexure-10 by withholding three (3) increments with cumulative effect, instead of passing the proposed punishment of dismissal from service. It is also contended that the appeal preferred by the Petitioner against such order of . punishment was duly considered and rejected vide order dt.17.03.2017 under Anexure-12. 5.1. Learned Addl. Govt. Advocate contended that since while issuing the 2nd show-cause on 18.02.2016 under Annexure-6 Opp. Party No.1 proposed to impose the punishment of dismissal from service and vide the impugned order of punishment, Petitioner has only been imposed with the punishment of withholding of three (3) increments with cumulative effect, no illegality or irregularity can be found with the same. 6. Having heard learned counsel for the parties and considering the submission made, it is found that Petitioner was proceeded with in a proceeding so initiated vide Memorandum dt.14.03.2012 under Annexure-1. 6.1. In the said proceeding, the Inquiry Officer after conducting the enquiry, submitted the inquiry report on 14.10.2015 under Annexure-5. Basing on the said finding of the Inquiry Officer, Petitioner was issued with the 1st show-cause and thereafter the 2nd show-causeon 18.02.2016 under Annexure-6. As found from the record after receipt of the reply to the 2nd show-cause, Opp. Party No.1 on not being satisfied with the inquiry report directed the Inquiry Officer to cause de novo enquiry/fresh enquiry vide letter dt.29.03.2016 under Annexure- 8. The Inquiry Officer vide letter dt.14.09.2016 under Annexure-9 only indicated that the de novo . enquiry could not be concluded. On the face of such intimation made by the Inquiry Officer underAnnexure-9, as per the considered view of this Court, Opp. Party No.1 could not have concluded the proceeding with passing of the impugned order of punishment vide Order dt.16.11.2016 under Annexure-10 6.2. Since in terms of Annexure-8, no fresh report was submitted by the Inquiry Officer, basing on the enquiry report submitted under Annexure-5, Opp. Party No.1 could not have concluded the proceeding. 6.3. In view of such material irregularity which is apparent, this Court is inclined to quash the Office order dt.16.11.2016 under Annexure-10, so confirmed vide
Decision
order dt.17.03.2017 under Annexure-12. While quashing the same, this Court directs Opp. Party 1 to start the proceeding from the stage of de novo enquiry, as directed vide letter dt.29.03.2016 under Annexure-8 through the Inquiry Officer and dispose of the said proceeding in accordance with law, in which this Court expresses no opinion. The Writ Petition is accordingly disposed of. ( BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified sangita Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 20-Aug-2024 12:43:13 .