The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Aug-2024 18:30:47 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C(OAC) No.3038 of 2017 Jogesh Chandra Sharma …. Petitioner Mr. J. Biswal, Advocate on behalf of Mr. S.D. Routray, Advocate State of Odisha and Others -versus- …. Opposite Parties Mr. B. Mohanty, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No. ORDER 13.08.2024 06. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2.
Facts
Heard learned counsel for the parties. 3. Petitioner has filed the present Writ Petition inter alia challenging order of punishment passed by O.P. No.3 vide office order dated 18.02.2016 under Annexure-5 so confirmed by the Appellate Authority-O.P. No.2 vide order dated 03.08.2017 under Annexure-7. 4. It is contended that in the proceeding initiated against the petitioner vide memorandum dated 06.05.2014 under Annexure-1, petitioner not only filed his written statement of defence but also participated in the enquiry. It is also contended that Enquiry Officer after // 2 // Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Aug-2024 18:30:47 conducting the Enquiry submitted the Enquiry Report on 07.12.2015with the following finding:-
Legal Reasoning
467. This Court in Para-9 to 15 of the said judgment has held as follows:- Page 3 of 8 Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Aug-2024 18:30:47 // 4 // by Civil “9. Before proceeding further, it is necessary to mention that the services of the petitioner were Services the Orissa governed (Classification, Control and Appeal) Rules, 1962 (hereinafter referred to ’’as’’ CCA Rules’’) which were made in exercise of the powers conferred by the proviso to Article 305 of the Constitution of India by the Governor of Orissa. Clauses 10(i)(b) and 10(ii) of Rule 15 inter alia provide that the Disciplinary Authority would give for disagreement with the report of the enquiry officer . the brief reason The relevant portion of that rule is quoted as under: 10(i)(b) On receipt of the representation referred to in Sub-clause (a) the Disciplinary Authority having regard to the findings on the charges is of the opinion that any of the penalties specified in Clauses (vi) to (ix) of Rule 13 should be imposed, he shall furnish to the delinquent Government servant a statement of its findings along with brief reasons for disagreement, if any, with the findings of the inquiring officer and give him notice by Registered post or otherwise stating the penalty proposed to be imposed on him and calling upon him to submit within a specified time such representation as he may wish to make against the proposed penalty. Provided that in every case in which it is necessary to consult the Commission under the provision of the Constitution of India and the Orissa Public Service Commission (Limitation of Functions) Regulation, 1989 the record of Inquiry together with a copy of the notice given under Sub-clause (a) and the representation if any, received within the specified time in response to such notice shall be forwarded by the Disciplinary Authority to the Commission for its advice." "10(ii) The orders passed by the Disciplinary Authority shall be communicated to the Government servant, who shall also -be supplied with a copy of the report of inquiring authority and where the Disciplinary Authority is not the enquiring authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the inquiring authority, as well as a copy of the advice of the Commission, where, the Commission had been consulted, and brief statement of reasons for non acceptance of the advice of the Commission, if the Disciplinary Authority has not accepted such advice. Page 4 of 8 Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Aug-2024 18:30:47 // 5 // 10. The C.C.A. Rules are the statutory rules and departure from the same would definitely be an illegality . 11. Apart from the statutory provision, is the common law that according to the principle of natural justice an employee should at least know the tentative reasons for disagreement with the report of inflicting the enquiry officer before punishment upon him so that he may be able to make a representation to satisfy the punishing authority by way of his explanation to the tentative reasons which are the punishing authority to its mind . formed by 12. In the case of Yoginath D. Bagde Vs. State of Maharashtra and Another, the Apex Court held that: it was open to the Disciplinary Authority either to agree. with the findings recorded by the enquiring authority or disagree with those findings. If it does not agree with the findings of the enquiring authority, it may record its own findings. Where the enquiring authority has found the delinquent officer guilty of the charges framed against him and the Disciplinary Authority agrees with hose findings, there would arise no difficulty. So also if the enquiring authority has held the charges proved, but the Disciplinary Authority disagrees and records a finding that the charges were not established, there would arise no difficulty. Difficulties have arisen in all those cases in which the enquiring authority has recorded a positive findings that the charges were not established and the delinquent officer was recommended to be exonerated, but the Disciplinary Authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officers was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent office at that stage. Such an opportunity may either be provided specifically by the rules made under Article 309 of the Constitution or the Disciplinary Authority may, of its own, provide such an opportunity. Where the rules are in this regard silent and the Disciplinary Authority also does not give an opportunity , of hearing to the delinquent officer and findings different records the enquiring authority chargers were that established, "an opportunity of hearing" may have to be read into the rule by which the procedure for dealing with the enquiring authority’’s report is provided principally because it would be contrary to the principles of natural justice if a delinquent from the those of Page 5 of 8 Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Aug-2024 18:30:47 // 6 // officer, who has already been held to be "not guilty" by the enquiring authority, is found "guilty without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of "not’’ guilty" has already been recorded. 13. Similar view has been expressed by the apex Court in the cases reported in State of Assam and Another Vs. Bimal Kumar Pandit, ; Punjab National Bank and Others Vs. Sh. Kunj Behari Misra, ; Radhey Shyam Gupta Vs. U.P State Agro Industries Corporation Ltd. and Another, , Dipti Prakash Banerjee Vs. Satvendra Nath Bose National center for Basic Sciences, Calcutta and Others, & Rajinder Kumar Kindra Vs. Delhi Administration through Secretary (Labour) and Others, 14. In view of the above facts and circumstances, impugned we are of the firm view that the punishment, petitioner the imposed disagreeing with the report of the enquiry officer without recording reasons, vitiates the impugned order of punishment being bad in law. upon to make 15. Next question is that once the Tribunal had come to the conclusion that no reason was recorded for the disagreement with the report of the enquiry officer and the petitioner was not given any opportunity representation on such disagreement, the Tribunal should have quashed the impugned punishment order instead of holding that there was apparently some negligence on the part of the applicant in ensuring post operative care to the patient. However, the Tribunal modified the order of punishment to the effect that only the period of suspension shall be treated as such and also quashed the other penalties.” 5. Even though notice of the Writ Petition has been issued since 28.11.2017, but no counter affidavit has been filed by the State as yet. However, basing on the materials available on record, learned State Counsel contended that since the proceeding in question has been concluded in accordance with the provisions contained under Rule-15 of the OCS(CCA) Rules, 1962 and the petitioner was given due opportunity of hearing all Page 6 of 8 // 7 // Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Aug-2024 18:30:47 through, no illegality or irregularity can be found with the impugned order of punishment passed under Annexure- 5. 5.1. It is also contended that the Appellate Authority after due appreciation of the grounds of appeal rejected the same while confirming the order of punishment vide order dated 03.08.2017 under Annexure-7. It is contended that since the provisions contained under the Rules were strictly followed and petitioner was given due opportunity of hearing all through, no interference is called for with regard to the impugned order of punishment passed under Annexure-5 so confirmed vide order under Annexure-7. 6. Having heard learned counsel for the parties and considering the submissions made, this Court finds that the proceeding vide Memorandum dated 06.05.2014 under Annexure-1 was initiated against the petitioner under Rule-15 of the Rules. In the said proceeding the Enquiry Officer submitted the Enquiry Report under Annexure-2 with the suggestion that petitioner be exonerated from all charges and the departmental proceeding may be dropped. In view of such findings of the Enquiry Officer, as per the considered view of this Court, while issuing the 2nd show-cause proposing the punishments in question vide letter dated 12.01.2016 under Annexure-4, O.P. No.3 should have given a disagreement note citing reasons for not agreeing with the Page 7 of 8 // 8 // Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Aug-2024 18:30:47 finding of the Enquiry Officer. But as found from Annexure-4, O.P. No.3 has not given any reason for not agreeing with the finding of the Enquiry Officer. 6.1. In view of such non-compliance of the statutory provisions contained under Rule-15(10)(i)(b) of the Rules and placing reliance on the decision in the case of Raj Kishore Sahu as cited (supra), this Court is inclined to quash the order of punishment so passed against the petitioner vide office order dated 18.02.2016 under Annexure-5, further confirmed by the Appellate Authority vide order dated 03.08.2017 under Annexure-7. While
Arguments
“As Sri Yogesh Chandra Samal, Ex-Head Master had solved all the problems found by me within a few days and returned the collected fee to school girls and had regularly given the cosmetics and worked for betterment of school and hostel. I suggest that he may be exonerated from all charges and departmental proceedings may be dropped. 4.1. It is contended that on receipt of the Enquiry Report, petitioner was issued with the 1st show-cause on 15.12.2015 along with the enquiry report under Annexure-2 and petitioner submitted his representation against the finding of the Enquiry Officer as reflected under Annexure-3. It is contended that without proceeding with the matter basing on the finding of the Enquiry Officer and without issuing a differing note in terms of the provisions contained under Rule-15(10)(i)(b) of the OCS(CCA) Rules, 1962 (In short “Rules”), petitioner was issued with the 2nd show-cause by O.P. No.3 vide letter dated 12.01.2016 under Annexure-4 proposing the following punishments:- “(a) Two stopped. increments with cumulative effect is (b) Warning is issued not to repeat such type of mistake in future.” 4.2. Learned counsel for the Petitioner contended that since while issuing the 2nd show-cause by proposing the punishment vide letter dated 12.01.2016 under Annexure-4, O.P. No.3 as the Disciplinary Authority never gave his disagreement note which is a mandatory Page 2 of 8 // 3 // Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Aug-2024 18:30:47 requirement in terms of the provisions contained under Rule-15(10)(i)(b) of the Rules, not only the said show- cause but also the order of punishment passed vide the impugned order dated 12.01.2016 are not sustainable in the eye of law. However, without proper appreciation of the reply provided by the petitioner to the 2nd show-cause, petitioner was imposed with the punishment vide order dated 18.02.2016 under Annexure-5. Petitioner though preferred an appeal against such order before O.P. No.2 under Annexure-6, but the Appellate Authority without proper appreciation of the grounds of appeal rejected the appeal vide order dated 03.08.2017 under Annexure-7. 4.3. It is contended that since while issuing the 2nd show-cause vide letter dated 12.01.2016 under Annexure-4, O.P. No.3 never gave his disagreement note in terms of the provisions contained under Rule- 15(10)(i)(b) of the Rules, basing on the said show-cause, petitioner could not have been imposed with the punishment in question and the said order of punishment is not sustainable in the eye of law. 4.4. In support of his aforesaid submission learned counsel appearing for the Petitioner relied on the decision of this Court so passed in the case of Raj Kishore Sahu Vs. Government of Orissa and Ors. 2006 (Suppl-I) OLR
Decision
quashing both the orders, the Writ Petition is allowed and disposed of. (Biraja Prasanna Satapathy) Judge Basudev Page 8 of 8