The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C.(OAC) No. 3261 of 2017 In the matter of an application under Section 19 of the Administrative Tribunal’s Act, 1985. ……………… Markat Keshari Ray …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties For Petitioner :
Legal Reasoning
Mr. J.K. Rath, Sr. Advocate along with Mr. A.K. Saa, Advocate For Opp. Parties : Mr. S.K. Samal, Addl. Govt. Advocate PRESENT: THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------------- Date of Hearing: 09.07.2024 & Date of Judgment: 09.07.2024 --------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through hybrid mode. 2. Heard Mr. J.K. Rath, learned Sr. Counsel appearing for the Petitioner along with Mr. A.K. Saa and Mr. S.K. Samal, learned Addl. Govt. Advocate appearing for the Opp. Parties. // 2 // 3. Petitioner has filed the present writ petition inter alia challenging the order of punishment passed against him vide office order dtd.07.10.2017 under Annexure-11. Vide the said order Opp. Party No. 1 imposed the following punishments against the Petitioner:- “1. An amount of Rs. 59,762/- received by the D.O. towards HRA to be recovered from his salary in 15 installments under Rule 15 of OCS (CC & A) Rules, 1962. 2. Two annual increments to be withheld with cumulative effect.” 4. Learned Sr. Counsel appearing for the Petitioner contended that Petitioner while continuing as District Education Officer, Balasore, a proceeding was initiated under Rule 15 of OCS (CCA) Rules, 1962 vide Memorandum dtd.28.08.2012 under Annexure-1 with the following charges:- “1. Grave Misconduct. 2. Dereliction in duty. 3. Violation of codal provision of Law, Govt. circulars and guidelines. 4. Disobedience of orders of the higher authority.” 4.1. Learned Sr. Counsel appearing for the Petitioner contended that on receipt of the memorandum, Petitioner gave his reply/written statement of defence under Annexure-2. Petitioner also participated in the enquiry and the enquiry was conducted by the Commissioner for Departmental Enquiries, G.A. Department, Govt. of Odisha. 4.2. It is the case of the Petitioner that in the memorandum so issued under Annexure-1, though only four charges were framed and the Petitioner accordingly gave is reply, but the Enquiry Officer who happens to be the Commissioner for Departmental Enquiries conducted the Page 2 of 9 // 3 // enquiry in respect of various other charges, which were not the charges framed against the Petitioner vide Annexure-1. In support of the same, learned Sr. Counsel brought to the notice of this Court the enquiry report available at Annexure-5. It is contended that since the Enquiry Officer conducted the enquiry in respect of various other charges, which were not the charges framed against the Petitioner vide Annexure-1, Petitioner basing on the findings of the Enquiry Officer, could not have been imposed with the punishment in question. 4.3. It is further contended that no charge was ever framed with regard to misappropriation of any amount and accordingly no order directing for recovery of any amount would have been passed. Not only that no such punishment directing for recovery of any amount is provided under Rule 13 of the OCS (CCA) Rules, 1962. It is accordingly contended that the impugned order is not sustainable in the eye of law and requires interference of this Court. In support of such submission, learned Sr. Counsel relied on various decisions of the Hon’ble Apex Court in the case of State of Andhra Pradesh & Ors. Vs. S. Sree Rama Rao reported in 1963 SCC OnLine SC 6, B.C. Chaturvedi Vs. Union of India & Ors. reported in (1995) 6 SCC 749, High Court of Judicature At Bombay through its Registrar Vs. Shashikant S. Patil & Anr. reported in (2000) 1 SCC 416, M.V. Bijlani Vs. Union of India & Ors. reported in (2006) 5 SCC 88 and State Bank of India & Anr. Vs. K.S. Vishwanath reported in (2022) 15 SCC 190 as well as a decision of the Hon’ble High Court of Jammu & Kashmir And Ladakh At Jammu in the case of Laxman Dass Vs. Union of India & Ors. reported in 2022 LiveLaw (JKL) 242. 4.4. Hon’ble Apex Court in the case of S. Sree Rama Rao in Para 7 has held as follows:- Page 3 of 9 // 4 // “7. There is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied, and if that rule be not applied, the High Court in a petition I … under Article 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant : it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which the evidence may reasonably support delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution.” the conclusion that 4.5. Hon’ble Apex Court in the case of B.C. Chaturvedi in Para 12 has held as follows:- “12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is Page 4 of 9 // 5 // conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.” 4.6. Hon’ble Apex Court in the case of High Court of Judicature At Bombay in Para 16 has held as follows:- “16. The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the Page 5 of 9 // 6 // authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution.” 4.7 Hon’ble Apex Court in the case of M.V. Bijlani in Para 25 has held as follows:- “25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.” 4.8 Hon’ble Apex Court in the case of K.S. Vishwanath in Para 18 has held as follows:- “18. Recently in N. Gangaraj [State of Karnataka v. N. Gangaraj, (2020) 3 SCC 423 : (2020) 1 SCC (L&S) 547] after considering other decisions of this Court on judicial review and the power of the High Court in a departmental enquiry and interference with the findings recorded in the departmental enquiry, it is observed and held that the High Court is not a court of appeal over the decision of the authorities holding a departmental enquiry against a public Page 6 of 9 // 7 // servant. It is further observed and held that the High Court is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. It is further observed that if there is some evidence, that the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition under Article 226 of the Constitution of India to review/reappreciate the evidence and to arrive at an independent finding on the evidence. 4.9. Similarly, Hon’ble High Court of Jammu & Kashmir And Ladakh in the case of Laxman Dass in Para 13 has held as follows:- “13. However, having regard to the fact that the allegation, which is said to have been proved against the petitioner in the enquiry was not part of the charges framed against him, the entire impugned order is vitiated in law. The Enquiry Officer could not have returned a finding on the allegation which was not part of the charge-sheet framed against the petitioner, nor the Disciplinary Authority could have imposed any punishment on the basis of such finding of fact returned by the Enquiry Officer which was totally foreign to and unrelated with the charges framed against the petitioner. The mandate of enquiry officer holding disciplinary enquiry is to conduct enquiry into the charges framed against the delinquent and restrict his finding to the charges framed. He cannot return his findings beyond the terms of his reference i.e., beyond the charges to be investigated or enquired into. Any such findings, if returned, would be in violation of principles of natural justice (Audi Alteram Partem). It is trite that nobody can be condemned unheard. Delinquent must know the charges he is going to meet in the disciplinary enquiry and may, accordingly, put up his defense. Finding of fact which are foreign to the charge and even if deducible from evidence recorded during enquiry, cannot be used against the delinquent. Indisputably, there was no charge against the petitioner that he was negligent in keeping his service rifle in safe custody or that, by his negligence and remissness, the Page 7 of 9 // 8 // petitioner allowed his gunto be used by someone for killing Inspector M.C.R.C.Reddy. Needless to point out that the criminal trial which the petitioner faced for committing the murder of M.C.R.C.Reddy ultimately ended in acquittal of the petitioner. This is evident from the judgment of acquittal recorded by the Principal Sessions Judge, Jammu on16.10.2002.” 5. Mr. S.K. Samal, learned Addl. Govt. Advocate on the other hand though made his submission supporting the impugned order, but fairly contended that the Enquiry Officer has exceeded his limit by enquiring into various other charges, which were not part of the memorandum. However, it is contended that since the proceeding has been conducted in accordance with the Rules and Petitioner has been afforded with opportunity of hearing all through, no interference with the order of punishment is called for. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that the proceeding against the Petitioner was initiated vide Memorandum under Annexure-1 with four (4) nos. of charges. But as found from the enquiry report so available at Annexure-5, the Enquiry Officer has enquired into various other charges, which were not part of the Memorandum. Not only that no charge was there with regard to misappropriation of any amount nor any such punishment to recover any amount is prescribed under Rule 13 of the Rules. In view of such material irregularities, which are apparent on the face of the record and placing reliance on the decisions as cited supra, more particularly the decision in the case of M.V. Bijlani of the Hon’ble Apex Court and the decision in the case of Laxman Dass of Jamu & Kashmir And Ladakh High Court, this Court is inclined to quash the order of punishment so passed against the Petitioner vide order dtd.07.10.2017 Page 8 of 9 // 9 // under Annexure-11. While quashing the same, this Court allows the writ petition. (BIRAJA PRASANNA SATAPATHY) Judge Orissa High Court, Cuttack Dated the 9th of July, 2024/Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Jul-2024 19:22:17 Page 9 of 9