The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) (OAC) No.332 of 2013 Swarnalata Bal …. Petitioner Mr. M.K. Mohanty, Adv. -versus- State of Odisha & Others …. Opposite Parties Mr. S. Jena, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 19.12.2023 Order No 12. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the Parties. 3. Rejoinder affidavit filed in Court be kept in record. 4. Petitioner has filed the present writ petition inter alia challenging the order dtd.02.11.2012 passed by the Government-Opposite Party No.1 under Annexure-13. Vide the said order, Petitioner was removed from her service w.e.f. 10.04.1996 in terms of the provisions contained under Rule-72(2) of the Orissa Service Code (in short Code). 5. It is the case of the Petitioner that the Petitioner while continuing as a C.D.P.O, a proceeding was initiated against him by the Government-Opposite Party No.1, vide Memorandum dtd.07.06.2003 under Annexure-5. // 2 //
Legal Reasoning
5.1. It is the first contention of the learned counsel for the Petitioner that even though the proceeding was initiated on 7.6.2003, but the same was only served on the Petitioner vide letter dtd.12.09.2006 with the following charges:- “Annexure-I
Legal Reasoning
Smt. Swarnalata Bala, CDPO, Gudbhela (Absconded) during her incumbency as CDPO, Gudbhela have committed the following irregularities. 1. That she applied for C.L. for three days i.e. 10.4.96 to 12.4.96 and to avail Govt. holidays i.e. from 13.4.96 to 14.4.96 to proceed to Cuttack to bring her family members with bag & baggage. Accordingly the Sub-Collector, Bolangir allowed her leave upto 14.4.96 with a direction to join on 15.4.96 positiely. But she remained unauthorized absent till 25.3.2002 for which the Govt. work suffered a lot and the various children and women development programme of the project could not be property implemented and supervised as such she neglected her legitimate duty as Govt. Servant. 2. That, as per provision, a Govt. servant while going on leave should furnish the leave address on the body of the leave application so that the officer going on leave can be recalled in case of exigency and emergency. But she neither furnished her leave address on the body of the leave application nor submitted her leave address in subsequent period for which Sub-Collector, Bolangir could not make any correspondence with her. This speaks of her mala fide intention of suppressing the facts before the authority and misconduct. 3. That the Sub-Collector, Bolangir ordered her to take over the charges of CDPO, Gudbhela B.D.O., Gudbhela who was in charge of its prior to her joining as CDPO. But instead remained unauthorizedly absent on that day. This shows her disobedience of order of higher authority. charges taking over she of 4. That, after she left the headquarter on dtd.9.4.96, she requested telegraphically the Sub-Collector, Bolangir to extend her leave from 15.4.96 to 15.5.96 on the ground of medical treatment of self at Cuttack. Subsequently she extended her leave telegraphically up to 10.4.99 on medical ground. After a long unauthorized absence of more than five years, while submitting her joining report before the Sub-Collector, Bolangir on dtd.26.03.2002, she Page 2 of 13 // 3 // has submitted a certificate of fitness from a doctor of Capital Hospital, Bhubaneswar though in her telegram dt.15.4.96 she has specifically mentioned that she is undergoing medical treatment at Cuttack. It is seen from the above stated fitness certificate that there is no indication of any disease she was suffering from the period 10.4.96 to 25.3.2002. From the above deficiencies, it became clear that she is deceiving the authority about the actual facts and she was not at all under medical treatment during her unauthorized leave period. Thus she has suppressed the real fact which shows her gross misconduct. 5. That, Rule-72(2) of the Orissa Service Code provides that if a Govt. servant does not resume duty after remaining leave for a continuous period of five years, the Government servant be deemed to have resigned and accordingly ceases to be a Government employee. She has remained on unauthorized leave from dtd.10.4.96 to 25.3.2002 which is more than five years and thus she ceases to be a Govt. servant as per rule 72(2) of the Orissa Service Code:- “Annexure-II Statement of Imputations of misconduct in support of the articles of charges framed against Swarnalata Bala, CDPO (absconded). Article-I. That Smt. Bala applied for C.L. for three days i.e. 10.4.96 to 12.4.96 and to avail Govt. holidays i.e. from 13.4.96 to 14.4.96 which was allowed by Sub- Collector, Bolangir with a direction to join on 15.4.96 positively. But she remained unauthorized absence till 25.3.2002 which shows her negligence in duty. Article-II That Smt. Bala neither furnished her leave address on the body of the leave application nor intimated for which correspondence could not be made with her which shows her malafide intension of suppressing the facts before the authority and misconduct. the subsequent period in if Article-III That Smt. Bala did not take over the charge and remained absent on 8.4.96 though she was ordered vide Sub-Collector, Bolangir, Memo No.1696 dtd.8.4.96 to take over the charge of CDPO, Gudbhela from B.D.O., Gudbhela which shows her disobedience of order of higher authority. Article-IV That, Smt. Bala while submitting her joining report after a long unauthorized absence of more than five years submitted a certificate of fitness from a Page 3 of 13 // 4 // doctor of Capital Hospital, Bhubaneswar though she has specifically mentioned that she is undergoing medical treatment at Cuttack. There is also no indication of any disease mentioned in the medical certificate she was suffering from which is a clear indication of suppressing the fact and shows her gross misconduct. Article-V That Rule 72(2) of the Orissa Service Code prohibits a Govt. servant to resume duty after remaining leave for a continuous period of five years. As per the said rules, the Govt. servant be deemed to have resigned and accordingly ceases to be a Govt. if he/she does not resume duty after employee for a continuous has remained leave remaining unauthorized leave from duty dtd.10.4.96 to 25.3.2001 and thus she ceases to be a Government servant as per Rule-72(2) of Orissa Service Code”. 5.2. It is contended that Petitioner after being served with the Memorandum vide Annxure-5, submitted his written statement of defence on 18.10.2006 under Annexure-6. In the written statement of defence so filed, it is the Principal stand of the Petitioner that Petitioner though was allowed to take leave up to 14.04.1996 w.e.f. 10.04.1996, but Petitioner extended her leave till 14.04.1999. Taking such a plea, it was contended that since Petitioner extended her leave up to 14.04.1999, by the time the proceeding was initiated against the Petitioner on 07.06.2003, the period of five years, which was a precondition to take action in terms of the provisions contained under Rule-72(2) of the Code was not available to initiate the proceeding in question. 5.3. It is contended that on the face of such stand taken by the Petitioner in his written statement of defence, the enquiry officer proceeded with the enquiry Page 4 of 13 // 5 // and submitted the report on 06.05.2010 under Annexure-7 with the following findings:- “The provision of Statutory rules and acts which is referred to in the Proceeding cannot be ignored. As per OSC, Rules-72 (2) clearly indicates that a Govt. servant who remains absent on duty for a continuous period of five years shall be removed from service after following the procedure laid down in the OCS (CCA) Rules, 1962. Perused the OCS, Rules 72(2) which is subsequently indicates that “unless Govt. in view of the exceptional circumstances of the case otherwise determine, he removed from service after following the procedure laid down in the Orissa Civil Services (Classifications, Control and Appeal) Rules 1962.” On discussion above Govt. may like to consider the case of Smt. Bal as per rules as a exceptional case and consider inflict punishment for disobediences, misconduct and deceiving the Higher Authorities”. in Govt. service and to reinstate her 5.4. It is contended that on receipt of the enquiry report, Petitioner was issued with the 1st show cause on 14.07.2010 under Annexure-8. Petitioner though gave her reply to the 1st show cause on 02.08.2010 under Annexure-9, but the disciplinary authority not being satisfied with the stand taken in the reply to the 1st show cause, issued the 2nd show cause on 20.09.2011 under Annexure-11, proposing therein to remove the Petitioner from her service as provided under Rule- 72(2) of the Code. 5.5. It is contended that as provided under Rule- 15(10)(i)(b) of the OCS (CC&A) Rules, 1962 (in short Rules) though it is mandatory on the part of the disciplinary authority to give a disagreement note, if the disciplinary authority disagrees with the finding of the enquiry officer, but while issuing the 2nd show cause under Annexure-11, the disciplinary authority never gave his disagreement note to the finding of the Page 5 of 13 // 6 // enquiry officer. It is accordingly contended that the 2nd show cause so issued is a nullity in the eye of law and basing on the same the order of punishment could not have been imposed vide the impugned order dtd.02.11.2012 under Annexure-13. 5.6. It is also contended that after issuing the 2nd show cause on 20.09.2011, Petitioner was allowed personal hearing which she also attended on 30.04.2011. But without proper appreciation of the stand taken by the Petitioner in her reply to the 2nd show cause and the fact that the Petitioner up to 14.04.1999 submitted the leave application extending her leave and thereby the provisions contained under Rule-72(2) of the Code could not have been attracted, was not taken into consideration by the disciplinary authority while imposing the order of punishment of removal from service. In support of his submission, learned counsel for the Petitioner relied on the decision of the Hon’ble Apex Court in the case of Punjab National Bank and Others vs. Kunj Behari Misra reported in (1998) 7 SCC-84. Hon’ble Apex Court in Para-19 of the said judgment has held as follows:- “19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to Page 6 of 13 // 7 // take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer”. 5.7. Learned counsel for the Petitioner also relied on another decision of the Hon’ble Apex Court in the case of Lav Nigam vs. Chairman & Md. ITI Ltd. & Another reported in (2006) 9 SCC-440 . Hon’ble Apex Court in Para-10 of the said judgment has held as follows:- “10. The conclusion of the High Court was contrary to the consistent view taken by this Court that in case the disciplinary authority differs with the view taken by the inquiry officer, he is bound to give a notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant that the disciplinary authority would at all arrive at a final finding of guilt. Thereafter, the employee would again have to be served with a notice relating to the punishment proposed”. 5.8. Placing reliance on the judgment so cited (supra), learned counsel for the Petitioner contended that after issuance of the 2nd show cause under Annexure-11 and by allowing the Petitioner a personal hearing, disciplinary authority should have issued a fresh show cause by indicating the punishment to be imposed on the Petitioner. Since that was also not followed and after issuance of the 2nd show cause and by allowing the Petitioner of a personal hearing, the order of punishment was passed under Annexure-13, it is not sustainable in the eye of law and it requires interference of this Court. 6. Mr. S. Jena, learned Addl. Government Advocate for the State on the other hand made his submissions basing on the stand taken in the counter affidavit. It is Page 7 of 13 // 8 // the case of the Opposite Party that the Petitioner while continuing as a C.D.P.O, she remained on leave w.e.f. 10.04.1996, Petitioner was allowed leave up to 14.04.1996. But thereafter Petitioner though made some communications up to 16.05.1997 with a prayer to extend the leave but after 16.05.1997 no such application was made by the Petitioner for extension of her leave. 6.1. In view of such position and taking into account the fact that no further intimation was made by the Petitioner seeking extension of her leave beyond 16.05.1997, taking recourse to the provisions contained under Rule-72(2) of the Code, the proceeding was initiated against her on 07.06.2003 vide Annexure-5. Since the Petitioner was not in service and her whereabouts was not known, the Memorandum dtd.07.06.2003 could not be served on her in spite of due diligence and the same was only communicated to her on 12.09.2006 under Annexure- 5. 6.2. It is contended that since by the time the proceeding was initiated against the Petitioner on 07.06.2003, Petitioner had already remaind on unauthorized leave for more than 5 years, in view of the provisions contained under Rule-72(2) of the Code, the proceeding was initiated against her with the charges framed therein. 6.3. It is also contended that the enquiry officer after conducting the enquiry also came to a finding that the Page 8 of 13 // 9 // Petitioner attract the provisions of Rule-72(2) of the Code. However, while holding so the enquiry officer opined punishment, for disobedience, misconduct and deceiving the higher authority and to consider the case of the Petitioner as an exceptional case. However, after receipt of the reply to the 1st show cause, the disciplinary authority since was not satisfied with the finding of the enquiry officer as well as the reply so submitted by the Petitioner, the 2nd show cause was issued on 20.09.2011 under Annexure-11, proposing therein to remove the petitioner from her services in terms of the provisions contained under Rule-72 of the Code. 6.4. Learned Addl. Government Advocate for the State contended that while issuing the 2nd show cause on 20.09.2011 under Annexure-11, the disciplinary authority did not agree with the finding of the enquiry officer and also after giving personal hearing to the Petitioner came to a conclusion that there is no exceptional circumstances to condone the leave for more than 5 years. The view of the disciplinary authority so reflected in the 2nd show cause is quoted hereunder:- “Now, therefore, Government after careful consideration of her explanation, findings of the Inquiry Officer, reply to the first show notice and facts stated during personal hearing did not find any exceptional circumstances to accept the prayer of Smt. Bal and for which Govt. dis-agree with the findings of the Inquiry Officer as stated above and have decided to removed her from Govt. Service as per Rule 72(2) of Orissa Service Code”. Page 9 of 13 // 10 // 6.5. It is contended that since the disciplinary authority did not agree with the finding of the enquiry officer in terms of the provisions contained under Rule- 15(10)(i)(b) of the Rules, while issuing the 2nd show cause, the disciplinary authority proposed to impose the punishment of removal from service. Thereafter, after due consideration of the reply to the 2nd show cause, the order of punishment was passed on 02.11.2012 under Annexure-13, wherein the Petitioner was removed from her services w.e.f 10.04.1996. 6.6. It is contended that since the proceeding so initiated against the Petitioner, was conducted strictly by following the provisions contained under Rule-15 of the Rules and the Petitioner at every stage of the proceeding was given an opportunity of hearing, there is no illegality or irregularity with regard to the order of punishment so imposed against the Petitioner and it requires no interference. 7. To the submissions made by the learned Addl. Government Advocate, learned counsel for the Petitioner made further submissions basing on the stand taken in the rejoinder affidavit. Basing on the stand taken in the rejoinder, it is contended that since the Petitioner extended her leave from time to time till 14.04.1999, the proceeding could not have been initiated taking recourse to the provisions contained under Rule-72(2) of the Code as by the said time, Petitioner had not remained on unauthorized leave for a period beyond 5 years. Page 10 of 13 // 11 // 7.1. It is accordingly contended that since the very initiation of the proceeding taking recourse to Rule- 72(2) of the Code is not permissible, the order of punishment passed against the Petitioner under Annexure-13 is also not sustainable in the eye of law. 8. Having heard learned counsel for the Parties and after going through the materials available on record, it is not disputed the Petitioner while continuing as a C.D.P.O, she remained on leave w.e.f. 10.04.1996. Though the Petitioner was allowed to remain on leave up to 14.04.1996 but thereafter as reflected in the charge memo, Petitioner had made some telegrams on different dates up to 16.05.1997 seeking extension of her leave. There is no document available in the record regarding extension of the leave by the Petitioner beyond 16.05.1997. Even though the Petitioner in her written statement of defence as well as in the rejoinder has taken a stand that Petitioner continued to remain on leave due with intimation till 14.04.1999 but no such document is available showing such extension of leave. In absence of any such document, this Court is not inclined to accept the plea of the Petitioner that she continued to remain on leave till 14.04.1999 with due intimation. Since it is found that the Petitioner after 16.5.1997, never extended her leave by submitting any applications, this Court is of the view that the proceeding was rightly insisted against her in terms of the provisions contained under Rule-72 (2) of the Code. Page 11 of 13 // 12 // 8.1. It is also found from the record that the Enquiry Officer while submitting the report also came to a finding that the Petitioner has remained on unauthorized leave for more than five years and thereby attracting the provisions of Rule-72(2) of the Code. The enquiry officer though gave an opinion to treat the case as one of exceptional circumstances, but as found from the 2nd show cause issued under Annexure-11, the disciplinary authority by disagreeing with the finding of the enquiry officer came to a conclusion that there is no such exceptional circumstances to condone the period of unauthorized leave, which is of more than 5 years. 9.2. This Court finds no substance with the argument of Mr. Mohanty that no disagreement note was given by the disciplinary authority while issuing the 2nd show- cause under Annexure-11. This Court taking into account the entirety of the facts is of the opinion that the proceeding was rightly initiated against the Petitioner in terms of the provisions contained under Rule-72(2) of the Code and the disciplinary authority rightly imposed the punishment of removal from service vide order dtd.02.11.2012 under Annexure-13. The decisions relied on by the learned counsel for the Petitioner (as cited supra) as per the considered view of this Court is not applicable to the facts of the present case. 10. In view of the aforesaid findings, this Court finds no illegality or irregularity with the impugned order of Page 12 of 13 // 13 // punishment so passed on 02.11.2012 under
Decision
Annexure-13 and dismiss the writ petition. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 22-Dec-2023 16:50:57 Page 13 of 13