The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C(OAC) No.503 of 2017 Arnapurna Dei …. Petitioner Mr.B.D. Satapathy,Adv. -versus- State of Odisha & Another …. Opposite Parties Mr. M.K. Balabantaray, Addl. Govt. Advocate CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 04.04.2023 Order No 03. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. B. D. Satapathy, learned counsel appearing for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Govt. Advocate appearing for the State-Opp. Parties. 3. The present Writ Petition has been filed challenging the order of punishment passed by Opp. Party No.3 on 19th December, 2011 under Annexure-13
Legal Reasoning
and confirmed by the appellate authority-Opp. Party No.2 vide his order dated 07.10.2006 under Annexure- 15. 4. It is the case of the Petitioner that while the Petitioner was continuing as Headmistress In-charge, Keshdurapal Girls High School, a proceeding was initiated against her vide Memorandum dated // 2 // 08.10.1999 under Annexure-8. The Petitioner on receipt of the charges though submitted her reply/written statement of defence on 12.12.1999 under Annexure-9, but thereafter, no enquiry was conducted to enquire into the charges so framed against the petitioner. Thereafter, on 15.02.2011 under Annexure-12, a notice was issued to the Petitioner by Opp. Party No.3 directing her to submit her defence, if any, within one month without fail from the date of issue of the letter or else stringent action will be taken under sub-rule 15 of OCS (CCA) Rules, 1962. After issuance of such notice on 15.02.2011, Opp. Party No.3 disposed of the proceeding with passing of the impugned order of punishment of dismissal from service dismissing the petitioner w.e.f 01.01.1998 vide order dated 19.12.2011 under Annexure-13. The Petitioner challenging such order of dismissal, though preferred an appeal, but the appellate authority rejected the appeal by confirming the order of punishment vide order dated 07.10.2016 under Annexure-15.
Legal Reasoning
5. Mr. B.D. Satapathy, learned counsel appearing for the Petitioner contended that even though the proceeding vide Memorandum dated 08.10.1999 under Annexure-8 was issued to the Petitioner and the Petitioner on receipt of the charges submitted her reply on 12.12.1999 under Annexure-9, but thereafter no enquiry was conducted to prove the charges with appointment of Enquiry Officer and Marshalling Officer. It is also contended that even after receipt of the alleged Page 2 of 9 // 3 // enquiry report, the Petitioner was never issued with the 1st show-case and 2nd show-cause, as provided under Rule 15 of OCS (CCA) Rules, 1962. Even though the enquiry report was submitted by the Enquiry Officer on 05.10.2002 under Annexure C/3, but the Petitioner for the first time after more than 9 years was issued with a show-cause on 15.02.2011 under Annexure-12 by Opp. Party No.3, with a direction to file her written statement of defence within one month, failing which stringent action will be taken against her as provided under sub-rule 15 of the OCS (CCA) Rules, 1962. But the Petitioner was never provided with a copy of the enquiry report even when was issued with Annexure- 12. 5.1. Mr. B.D. Satapathy, learned counsel appearing for the Petitioner contended that Opp. Party No.3 without following the provision contained under Rule 15 of OCS (CCA) Rules, 1962 and without following the principle of natural justice, passed the order of punishment by dismissing the Petitioner from her service w.e.f 01.01.1998 vide the impugned order dated 19.12.2011 under Annexure-13. 5.2. It is the main contention of the learned counsel appearing for the Petitioner that in the proceeding in question, no enquiry was conducted with due appointment of the Enquiry Officer and Marshalling Officer. The Petitioner was also never noticed by the Enquiry Office to appear and take part in the enquiry. The enquiry was conducted ex parte with submission of Page 3 of 9 // 4 // report by the Enquiry Officer on 05.10.2002 under Annexure-C/3. The Petitioner was also never given an opportunity to submit her representation against the finding of the Enquiry Officer with issuance of the 1st show-cause, as provided under Rule 15 of the OCS (CCA) Rules, 1962. It is also contended that the Petitioner since was inflicted with a major punishment of dismissal from service, Opp. Party No.3 as the Disciplinary Authority prior to imposing such order of punishment should have issued the 2nd cause by proposing the punishment to be imposed against the Petitioner. But Opp. Party No.3 without following any of the provisions contained under Rule 15 of the OCS (CCA) Rules, 1962, issued the notice on 15.02.2011 under Annexure-4 which also cannot be treated as the 2nd show-cause. 5.3. It is also contended that without following the provisions, the Petitioner though was dismissed from her service, but the same was also given retrospective effect w.e.f 01.01.1998 which is not permissible in the eye of law. The Petitioner challenging the order of punishment though approached the appellate authority by preferring an appeal, but the appellate authority without proper appreciation of the grounds taken in the memo of appeal and the irregularities committed by the Disciplinary Authority with regard to conduct of the proceeding, rejected the appeal vide order dated 07.10.2016 under Annexure-15. It is accordingly contended that the impugned order passed by Opp. Party No.3 under Annexure-13 and so confirmed by Page 4 of 9 // 5 // Opp. Party No.2 under Annexure-15 are not sustainable in the eye of law. However, it is contended that since the Petitioner in the meantime and during pendency of the matter has retired from service on attaining the age of superannuation, the Petitioner be allowed all consequential service and financial benefits as due and admissible in her favour by regularizing the break period of service. It is also contended that while continuing on medical leave and after being declared fit to resume her duty, the Petitioner when submitted her joining on 28.02.2003 under Annexure-10, Opp. Party No.3 duly forwarded the same to Opp. No.2 vide Annexure-11 for appropriate action. While communicating Annexure-11, Opp. Party No.3 also accepted the continuance of the Petitioner on medical leave w.e.f 01.01.1998. 6. Mr. M.K. Balabantaray, learned Additional Govt. Advocate made his submission basing on the stand taken in the counter affidavit. It is contended that since the Petitioner on the face of her transfer never joined in the school and remained on unauthorized leave, the proceeding was initiated against her under Annexure-8 with the following charges: (a) handling over the charges. Remaining absent from duty un-authorisedly and not (b) Disobedience of order of the higher authorities. Page 5 of 9 // 6 // (c) service roll of employees under her custody. Missing of important records like Service Book, (d) Willful and unauthorised absence from duty. (e) as per the order of the Hon’ble Court.” Refusal to accept one month’s salary drawn 6.1. It is contended that in the proceeding, so initiated under Annexure-8, the Enquiry Officer conducted the enquiry by submitting the report on 05.10.2002 under Annexure-C/3. After receipt of the enquiry report under Annexure-12, the Petitioner was issued with the notice on 15.02.2011 under Annexure- 12, asking her to submit her defence within a period of one month or else stringent action will be taken against the Petitioner under sub-rule 15 of the OCS (CCA) Rules, 1962. It is accordingly contended that since the Petitioner never submitted her reply to the notice under Annexure-12, the order of punishment was passed by Opp. Party No.3 as the Disciplinary Authority. It is also contended that taking into account the gravity of the charges, the Petitioner was dismissed from her service w.e.f 01.01.1998 vide order dated 19.12.2011 under Annexure-13. 6.2. Mr. M.K. Balabantaray, learned A.G.A further contended that the appellate authority after due consideration of the appeal, so filed by the Petitioner was not inclined to interfere with the impugned order of punishment and dismissed the appeal vide office order dated 07.10.2016 under Annexure-15. It is accordingly contended that no illegality or irregularity has been committed by Opp. Party No.3 in imposing the order of Page 6 of 9 // 7 // punishment and by the Opp. Party No.2 in rejecting the appeal. 7. Heard learned counsel for the Parties. Perused the materials available on record. It is found from the record that the Petitioner was proceeded with in the Disciplinary Proceeding initiated vide Memorandum dated 08.10.1999 under Annexure- 8. It is also fund that the Petitioner on receipt of the charges submitted her written statement of defence on 12.12.1999 under Annexure-9. Though in the counter, a stand has been taken that Enquiry was conducted with submission of Enquiry report on 05.10.2002 under Annexure-C/3, but no document has been filed by the Opp. Parties with regard to appointment of the Enquiry Officer and Marshalling Officer by Opp. Party No.3 to conduct the Enquiry with due intimation to the Petitoner. No document has also been filed showing issuance of any notice by the Enquiry Officer to the Petitioner to participate in the enquiry. 7.1. It is also found from the record that after receipt of the enquiry report on 05.10.2002, the Petitioner was never issued with the 1st show-cause as provided under Rule 15 of the OCS (CCA) Rules, 1962, nor the 2nd show-cause was ever issued by Opp. Party No.3 by proposing the punishment to be imposed against the Petitioner. It is found that after about 9 years of the receipt of the enquiry report, the notice was issued to the Petitioner on 15.2.2011 under Annexure-12 asking her to submit her defence within a period of one Page 7 of 9 // 8 // months or else stringent action will be taken under sub-rule 15 of the OCS (CCA) Rules, 1962. 7.2. From the materials available on record, it is quite apparent that the Petitioner prior to being inflicted with the order of punishment of dismissal, that too, from retrospective effect i.e. 01.01.1998 was never issued with any notice to participate in the enquiry nor she was given an opportunity to file her representation against the finding of the Enquiry Officer. It is also found that prior to imposition of the order of punishment which is in the nature of a major penalty as provided under Rule 13 of the OCS (CCA) Rules, 1962, the Petitioner was issued with the 2nd show- cause by the Disciplinary Authority-Opp. Party No.3 proposing therein the punishment to be imposed. 7.3. Therefore, in view of such material irregularity with regard to conduct of the proceeding, it is the view of this court that proceeding so initiated against the Petitioner under Annexure-8 has not been conducted in accordance with Rule 15 of the OCS (CCA) Rules, 1962 nor it has been conducted by following the principle of natural justice. Therefore, the order of punishment so passed against the Petitioner under Annexure-13 and confirmed by the appellate authority under Annexure-15 are not sustainable in the eye of law. This Court accordingly is inclined to quash the order of punishment so passed under Annexure-13 and confirmed vide order under Annexure-15. While quashing the same and taking into account the fact Page 8 of 9 // 9 // that the Petitioner has retired from her service on attaining the age of superannuation, it is to be held that she continued in her service till she attained the age of superannuation. While holding so, this Court directs Opp. Party No.3 to regularize the break period of service as due and admissible, but on notional basis and take effective steps for sanction of pension and other pensionary benefits in favour of the Petitioner. The entire exercise shall be completed by the Opp. Party No.3 within a period of three months from the date of receipt of this order.
Decision
The Writ Petition is accordingly disposed of. sangita (Biraja Prasanna Satapathy) Judge Page 9 of 9