The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) No.2027 of 2017 ..... Dr. Sahadev Swain Petitioner Mr. S.K. Das, Advocate State of Odisha&Ors. -versus- ..... CORAM: Opposite Parties Mr. A. Tripathy, AGA THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 22.11.2024 Order No.10 1. This matter is taken up through hybrid mode.
Legal Reasoning
Odisha & Ors.). This Court in Para 6 & 6.1 of the said order has held as follows:- the charges, but “6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that the deceased Petitioner was proceeded with in the proceeding initiated under Annexure-1. The Enquiry Officer in its report under Annexure-3 though held the deceased Petitioner not guilty of the Disciplinary Authority by disagreeing with the view of the Enquiry Officer, issued the 1st show-cause under Annexure-4. Even though the Disciplinary Authority while issuing the 2nd show-cause proposed to impose reduction of pension to the extent of 65% for a period of 10 years, but OPSC while giving its opinion under Annexure-8 opined that pension of the deceased Petitioner be reduced to the extent of 30% for a period of 3 years. 6.1. Basing on such opinion of the Commission, Opp. party No. 1 while disposing the proceeding, passed the impugned order under Annexure-8 by withholding 30% pension for a period of 3 years. Page 3 of 6. this Court vide from service, but But it is found that the Officer-in-charge of Burla P.S. was also proceeded with in the proceeding on similar charges. Even though the said Officer was imposed with the punishment of its order dismissal dtd.11.10.2006 in OJC No. 7298 of 2001 quashed the proceeding against the said delinquent employee. Since similarly situated employee proceeded with, has been exonerated by this Court in its order dt.11.10.2006, placing reliance on the order passed by this Court on 16.01.2024 in W.P.C.(OAC) No. 3186 of 2014, this Court is also of the view that the present Petitioner is entitled to get similar benefit. In view of the same, this Court is inclined to quash office order dtd.08.02.2012 so passed by Opp. Party No. 1 under Annexure-8. While quashing the same, this Court directs Opp. Party No. 1 to release the pension as deducted from the Petitioner’s pension in terms of the order dtd.08.02.2012 in favour of the Petitioner Nos. 1(a) to 1(d) within a period of three (3) months from the date of receipt of this order.” 5. Mr. Tripathy, learned Addl. Govt. Advocate on the other hand while supporting the impugned order contended that since the proceeding was initiated jointly and the enquiry officer found guilty of the charges against the present Petitioner and Dr. D.P. Patnaik, Petitioner is not similarly situated as like Dr. A.K. Mohapatra, whose order of punishment has been quashed by this Court in W.P.(C) No. 13338 of 2009. It is also contended that since the proceeding has been conducted in accordance with law and Petitioner has been given due opportunity of hearing all through, no interference is called for with regard to the punishment imposed against the Petitioner so confirmed by the appellate authority vide order under Annexure-17. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that a joint proceeding was initiated against the Petitioner and two (2) other employees vide order dtd.04.01.2006 under Annexure-5. In the said proceeding Commissioner for Departmental Inquiry conducted the Page 4 of 6. enquiry and submitted the report by holding the present Petitioner and other delinquent employees Dr. D.P. Patnaik guilty of the charges with regard to conducting private tuition. But other charge regarding leakage of question paper before the examination was not established. The enquiry officer also found the co-delinquent Dr. A.K. Mohapatra guilty of the charges with regard to lack of supervision in reporting the matter about the private tuition conducted by the present Petitioner and Dr. D.P. Pattnaik. 6.1. As found, the order of punishment passed against Dr. D.P. Patnaik was interfered with by the Tribunal vide order dtd.20.12.2008 under Annexure-18 and while setting aside the said order the matter was remitted for fresh consideration. Since the delinquent employee died prior to passing of any further order, no further order was passed in his case. Not only that this Court while dealing with the punishment imposed on another delinquent employee namely Dr. A.K. Mohapatra came to a conclusion that the enquiry officer has conducted the enquiry beyond the scope of reference and with that finding, quashed the order of punishment passed agaisnt Dr. A.K. Mohapatra vide order dtd.26.02.2010 under Annexure-19. 6.2. In view of the nature of order passed in the case of Dr. A.K. Mohapatra and the decision relied on by the learned counsel for the Petitioner in the case of G.V.S. Prasad & Ors., this Court is also of the view that the order of punishment passed against the Petitioner basing on the self-same enquiry report is not sustainable in the eye of law. Therefore, this Court is inclined to quash the order of punishment passed against the Petitioner vide order dtd.01.11.2008 under Annexure-13, further confirmed vide order dtd.28.01.2017 Page 5 of 6. under Annexure-17. While quashing both the orders, this Court
Arguments
2. Heard Mr. S.K. Das, 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 the order of punishment passed in a disciplinary proceeding initiated against him and two (2) others vide order dtd.01.11.2008 under Annexure-13, further confirmed vide order dtd.28.01.217 under Annexure-17. 4. Learned counsel for the Petitioner contended that pursuant to the order passed by the Govt.-Opp. Party No. 1 on 04.01.2006 under Annexure-5, a joint proceeding was initiated against the Petitioner and two (2) others namely Dr. A.K. Mohapatra and Dr. D.P. Patnaik. 4.1. It is contended that the enquiry officer who happens to be the Commissioner for Departmental Inquiry after conducting the enquiry submitted the report on 29.09.2007 by holding the present Page 1 of 6. Petitioner and other person namely Dr. D.P. Patnaik guilty of the charges with regard to conducting private tuition. No charge was established against the present Petitioner and Dr. D.P. Patnaik with regard to leaking of question paper before the examination is held. The other delinquent employee namely Dr. A.K. Mohapatra was only found negligent with regard to lack of supervision. 4.2. It is contended that basing on the enquiry report so submitted under Annexure-8 all the three (3) delinquent employees were issued with the 1st & 2nd show-cause and vide order dtd.01.11.2008 the present Petitioner was imposed with the following punishment:- “1. Censure 2. To withhold three annual increment with cumulative effect. 3.To treat the period of suspension as such.” 4.3. It is contended that similar order of punishment passed against Dr. D.P. Patnaik was initially assailed before the Tribunal in O.A. No. 1569 of 2008. The Tribunal vide order dtd.20.12.2010 under Annexure-18 remitted the matter to Govt.-Opp. Party No. 1 to consider the punishment so imposed against him. It is contended that after such remand of the matter since the delinquent employee D.P. Pattnaik died, no further order was passed after remand of the same. 4.4. It is also contended that the order of punishment passed against the other employee Dr. A.K. Mohapatra was also assailed before the Tribunal and the Tribunal when did not interfere with the same, the matter was carried to this Court by filing W.P.(C) No. 13338 of 2009. It is contended that this Court after going through the common enquiry report submitted by the Enquiry Officer came to a Page 2 of 6. finding that the enquiry arrived at by the CDI is beyond the scope of reference and beyond the scope of the charges framed. While holding so, this Court not only set aside the order passed by the Tribunal but also the order passed against the co-delienquent employee namely Dr. A.K. Mohapatra. 4.5. Learned counsel for the Petitioner contended that since the proceeding initiated is a joint proceeding and a common enquiry report was submitted under Annexure-8 and this Court while holding the said enquiry report having been submitted beyond the scope of reference and accordingly quashed the order of punishment passed against Dr. A.K. Mohapatra, Petitioner being similarly situated, he is also eligible and entitled to get similar benefit. Not only that learned counsel for the Petitioner also relied on a recent order passed by this Court on 23.02.2024 in W.P.C.(OAC) No. 369 of 2013 (G.V.S. Prasad & Ors. Vs. State of
Decision
allows the Writ Petition. Consequential follow up action be taken to release the withheld increment in favour of the Petitioner. 7. The writ petition accordingly stands disposed of. 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: 25-Nov-2024 11:08:17 Page 6 of 6.