The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) (OA) No.1028 of 2017 Kailash Chandra Pradhan …. Petitioner Mr. P. Mohapatra, Advocate State of Odisha & Others -versus- …. Opposite Parties Mr. S.K. Samal, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY
Decision
ORDER 08.05.2024 Order No. 02. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the Parties. 3. Petitioner has filed the present Writ Petition inter alia challenging the order of punishment so imposed against him in a disciplinary proceeding vide order dtd.18.01.2017 under Annexure-12 and confirmation of the same by the appellate authority vide order dtd.17.04.2017 under Annexure-17. 4. Learned counsel for the Petitioner contended that Petitioner while in service, the proceeding was initiated against him vide Memorandum dtd.24.05.2004 with various charges under Annexure-1. // 2 // 4.1. It is contended that in support of the charges so framed, the prosecution relied on various documents reflected under the heading ‘Memo of Evidence’ vide Annexure-1. 4.2. It is contended that the document basing on which the charges were framed and indicated in the ‘Memo of Evidence’ were never supplied to the Petitioner and without providing the documents when enquiry started, Petitioner under compelling circumstances submitted his written statement of defence. 4.3. But in course of enquiry, the document basing on which the charges were framed were not produced, save and except document No.1 so reflected in the ‘Memo of Evidence’ on the plea that other documents are not traceable. 4.4. It is contended that without having the documents being produced before the enquiry officer, the enquiry officer held the Petitioner guilty of the charges and submitted the enquiry report. 4.5. Basing on the enquiry report, Petitioner when was issued with the 1st and 2nd show cause, Petitioner while submitting his reply to the 2nd show cause so issued on 19.08.2016 under Annexure-10 took the following stand. Page 2 of 6 // 3 // Para-C of the reply dtd.16.09.2016 under Annexure-11 reads as follows:- “(c) With regards to finding in enquiry report relating to recovery Rs.2,41,447.00. I would like to submit here again that neither the documents nor the statement of Officials concerned on which the conclusion of recovery was arrived at were supplied to me not produced during the enquiry to face cross examination. Therefore the finding of recovery is based on no evidence and thereby need not to be imposed upon me as a measure of punishment”. 4.6. Learned counsel for the Petitioner contended that since the document basing on which the Petitioner faced the proceeding were not traced out nor produced before the enquiry officer, Petitioner could not have been held guilty of the charges with imposition of the punishment in question vide the impugned order. Even though such a plea was raised in his reply to the 2nd show cause under Annexure-11, but the disciplinary authority without proper appreciation of the same imposed the punishment vide order dtd.18.01.2017 under Annexure-12. 4.7. Challenging the order of punishment, Petitioner though preferred an appeal, but the same was also rejected without proper appreciation of the grounds so taken and without assigning any reason vide order dtd.17.04.2017 under Annexure-17. 4.8. It is accordingly contended that the very conduct of the enquiry as well as the proceeding is vitiated due to Page 3 of 6 // 4 // non-supply and non-production of the document basing on which the charges were framed. The impugned order of punishment is therefore not sustainable in the eye of law as well as the order passed in appeal and requires interference of this Court. 5. Mr. S.K. Samal, learned Addl. Government Advocate for the State while supporting the impugned order made his submission basing on the stand taken in the counter affidavit so filed by Opposite Party Nos.1 and 3. It is contended that Petitioner though alleged not to have been provided with the documents basing on which charges were framed, but in absence of such documents, Petitioner filed his written statement of defence and participated in the enquiry. The proceeding was also conducted in accordance with the rules and Petitioner was given opportunity of hearing all through. 5.1. The appellate authority also after going through the grounds of appeal, rejected the same, while confirming the order of punishment. It is accordingly contended that the impugned order of punishment so passed under Annexure-12 and confirmed vide Annexure-17 requires no interference. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court Page 4 of 6 // 5 // finds that Petitioner was proceeded with the proceeding vide Memorandum dtd.25.08.2004 under Annexure-1 on various charges. In support of the charges prosecution relied on 16 numbers of documents so indicated in the Memo of evidence enclosed to the Memorandum. 6.1. As found from the record, save and except document No.1 all other documents were never produced on the ground that those documents are not traceable and the said fact is also admitted by the enquiry officer while submitting the enquiry report. Since the documents basing on which the chargers were framed were never provided to the Petitioner nor produced before the enquiry officer by the prosecution, as per the considered view of this Court in absence of such documents, the proceeding could not have been disposed of with imposition of the punishment in question. Since the documents basing on which the charges in the proceeding were framed are not traceable, imposition of punishment vide the impugned order as per the considered view of this Court is not sustainable in the eye of law. Not only that the stand taken by the Petitioner in his reply to the 2nd show cause vide Para-C has not been taken into consideration either by the disciplinary authority and by the appellate authority. Page 5 of 6 // 6 // 6.2. Therefore, this Court is inclined to quash order dtd.18.01.2017 so passed by Opposite Party No.1 under Annexures-12 and further order passed in Appeal on 18.04.2017 under Annexure-17. While quashing the same, this Court directs Opposite Party No.1 to release the increment so withheld in terms of the order dtd. 18.01.2017 within a period of three (3) months from the date of receipt of this order. 7. Accordingly, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 09-May-2024 17:27:36 Page 6 of 6