The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) (OAC) No.2226 of 2017 Sunil Kalo …. Petitioner Mr. P.K. Satapathy, Advocate State of Odisha and Others -versus- …. Opposite Parties Mr. S. Jena, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 09.11.2023 Order No. 03. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical) Mode.
Legal Reasoning
2. Heard learned counsel for the parties. 3. Petitioner has filed the present writ petition inter alia with the following prayer:- “i) The applicant therefore prays that this Hon’ble Tribunal may be graciously pleased to set aside the order of punishment dated 08.12.2014 and the order dated 22.04.2017 passed by the Appellate authority under Annexure-1 and 3 respectively and further direct the Opp. Parties to restore the service of the applicant and allow the applicant in joining in his duties ii) And pass such other order(s)/direction(s) as may be deemed fit and proper in the facts and circumstances of the case”. 4. It is contended that the Petitioner while continuing as a constable in 2nd IRB Bhamini, Rayagada, a proceeding was initiated against him with // 2 // service of charges on 20.09.2023 under Annexure-4. In the said proceeding the following charge was made against the Petitioner:- “CHARGE C/533 Sunil Kalo of 2nd I.R. Bn., Bhamini, Rayagada is charged with gross misconduct and willful unauthorized absence from duty for violation of the provision of PMR-843, PCO-109 & 34 PC Act. That, he was posted to “B” Company vide B.O. No- 664(233) dt.13.09.2011. That, with reference to Memo No.678/AET-Trg. Dtd.16.09.2013 of Advisor & Head I/C, SOG Trg. & Resource center Chandaka Bhubaneswar, and Letter No.3480/SAP dtd.19.09.2013, C/533 Sunil Kalo of 2nd IRBn. Bhamini, Rayagada was found absconded from AET training center Chandaka, BBSr from 14.09.2013 PM to till date without any intimation to the authority. In spite of repeated warning / instruction / boosting the said Constable was feigning illness and refusing to take part in any physical activity deliberately from the beginning of the Course in plea of self-declared sickness. However he has been checked and declared fit by the MO unit Hospital, Chandaka, BBSR before commencing the Course. He has given writing indicating different medical problems and expressed his inability to undergo the trg. He was given adequate rest/care/motivation to complete the course by the Advisor & Head I/C, SOG Trg. & Resource centre Chandaka Bhubaneswar, C/533 Sunil Kalo of 2nd IRBn. Bhamini, Rayagada is placed under suspension w.e.f. 14.09.2013PM. vide this unit BO-765 dtd.17.09.2013. He is directed to show cause by 20.10.2013 why, suitable disciplinary action as deemed proper will not be initiated against him in the event of charges being held to be proved against him. Any representation that he wishes to make in this regard will be duly considered by the authority competent to pass final order before passing such orders”. Page 2 of 7 // 3 // 4.1. It is contended that in the said proceeding the Enquiry Officer without conducting proper enquiry found the Petitioner guilty of the charges while submitting the enquiry report under Annexure-5. Basing on the report submitted by the Enquiry Officer under Annexure-5 and without following the principle of natural justice, Petitioner was discharged from his service vide order dtd.08.12.2014 of the Opposite Party No.4. 4.2. It is contended that against such order of discharge passed under Annexure-1, Petitioner preferred an appeal before Opposite Party No.2 vide Annexure-2. But the appellate authority without proper appreciation of the grounds taken in the appeal rejected the same by confirming the order of discharge vide
Decision
order dtd.22.04.2017 under Annexure-3. 4.3. Learned counsel for the Petitioner contended that the Petitioner while continuing as a Constable under Opposite Party No.2, the proceeding in question was initiated with the charge that Petitioner absconded from his Training Center from 14.09.2013 and Petitioner was directed to file his show cause by 20.10.2013 with issuance of the charge memo on 19.09.2013 under Annexure-4. 4.4. It is contended that prior to such initiation of the Page 3 of 7 // 4 // proceeding on 19.09.2013, Petitioner had already moved the competent authority of the Training Center on 16.09.2013 indicating therein the circumstances for which he remained absent from the training w.e.f. 16.09.2023. 4.5. It is accordingly contended that without proper appreciation of the plea taken by the Petitioner in his application under Annexure-6 and without providing due opportunity of hearing, the order of punishment was passed by Opposite Party No.4 by discharging the Petitioner from his services vide order under Annexure-1, which has been confirmed by the appellate authority vide order under Annexure-3. 4.6. It is also contended that since no order of discharge is prescribed under the Police Manual, such order of punishment could not have been imposed against the Petitioner. 5. Mr. S. Jena, learned Addl. Government Advocate for the State on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that the Petitioner was appointed as a Constable in 2nd IRB Battalion, Cuttack on 04.06.2008. Subsequent thereto the Petitioner completed the basic course of training successfully which was conducted for the period from 04.10.2008 to 10.08.2009. While continuing as such, Petitioner Page 4 of 7 // 5 // vide order dtd.29.08.2013 under Annexure-A along with 49 others similarly situated constables were directed to undergo AET course of training at SOG Training & Research Center, Chandaka, which commenced from 05.09.2013. But present Petitioner was found absconding from the training center with effect from 14.09.2013 without any leave or permission. Thereafter, on being intimated about the said fact by the advisor and Head-in-charge SOG Training Center, Chandaka vide letter dtd.16.09.2013 under Annexure-B and further letter issued on 19.09.2013 under Annexure-3, Petitioner in spite of several warning / instruction when did not came back to attend the training, the proceeding was initiated against him on 19.09.2013 with service of charge on 20.09.2013 under Annexure-4. In the said proceeding, Petitioner though was served with the charges, but he neither submitted his written statement of defence / reply nor participated in the enquiry. After receipt of the Enquiry Report, Petitioner though was issued with the 2nd show cause, but Petitioner never submitted his reply to the show- cause. In view of such conduct of the Petitioner, Petitioner was imposed with the punishment of discharge from service w.e.f. 30.11.2014 vide order dtd.04.12.2014 of Opposite Party No.4 under Annexure-1. Page 5 of 7 // 6 // 5.1. It is contended that the Petitioner thereafter when preferred an appeal, the appellate authority after due consideration of the materials, passed a reasoned and speaking order while rejecting the appeal vide order dtd. 22.04.2017 under Annexure-3. 5.2. Learned Addl. Government Advocate for the State also contended that the Petitioner at no point of time indicated about his difficulty for remaining absent from the training center and Annexure-6 was never submitted before any other authority as contended. 5.3. It is accordingly contended that in view of the conduct of the Petitioner in not taking part in the proceeding, no illegality or irregularity is there with the impugned order of discharge passed against the Petitioner under Annexure-1, so confirmed by the appellate authority under Annexure-3. 6. Having heard learned counsel for the Parties and after going through the materials available on record, it is found that the proceeding in question was initiated vide Proceeding No.2/2014 against the Petitioner with service of charges under Annexure-4. From the charge framed, it is found that the Petitioner was found absconding from the Training Center at Chandaka w.e.f. 14.09.2013. 6.1. It is found that after initiation of the proceeding on 19.09.2013, Petitioner never participated in the Page 6 of 7 // 7 // proceeding by filing his reply to the charges nor participated in the enquiry. Petitioner also did not submit his reply to the 1st and 2nd show cause issued after submission of the enquiry report. Since the Petitioner at no point of time availed the opportunity by filing his reply to the charges and participated in the enquiry nor submitted his reply to the 1st and 2nd show cause, this Court finds no illegality or irregularity with the impugned order passed by Opposite Party No.4 under Annexure-1 and so confirmed by appellate authority-Opposite Party No.2 under Annexure-3. The stand taken by the Petitioner that he has intimated about his illness vide Annexure-6 is also not acceptable as no such proof is enclosed to the writ petition showing service of the same. 7. Therefore, in view of such conduct of the Petitioner, this Court finds no illegality or irregularity with the order of punishment passed under Annexure-1 and confirmed vide order under Annexure-3. This Court accordingly is not inclined to interfere with the impugned order of punishment, so passed under Annexure-1 and confirmed under Annexure-3 and dismiss the writ petition. Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 17-Nov-2023 14:31:39 Subrat (Biraja Prasanna Satapathy) Judge Page 7 of 7