The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 28953 of 2024 Baidya Narayan Swain …. Petitioner Mr. Nirmal Ranjan Routray, Advocate -versus- Union of India and Others …. Opp. Parties Mr. D. R. Bhokta, DSGI CORAM: THE HON’BLE MR. JUSTICE S.K. SAHOO THE HON’BLE MR. JUSTICE CHITTARANJAN DASH Order No. ORDER 27.11.2024 01. 1. This matter is taken up through Hybrid arrangement (video conferencing/physical mode). 2. Heard learned counsel for the Parties. 3. This Writ Petition has been filed by the Petitioner challenging the order dated 08.08.2024 passed by the learned CAT, Cuttack Bench, Cuttack in O.A. No. 483 of 2018 under Annexure-6 with a further direction to refund the recovered two months leave salary in the implementation of the order of punishment dated 01.12.2015. 4. It appears that the Petitioner was working as Executive Director (H & A), Corporate Office and he was served with a Memorandum along with article of charges dated 02.07.2012 and the Petitioner on receipt of such Memorandum, submitted his representation to the Disciplinary Authority denying the charges leveled against him. The Inquiry Officer was appointed and inquiry was conducted and inquiry report dated 24.01.2013 was submitted to the Disciplinary Authority. The Inquiry Officer, in his inquiry report gave a finding that the Petitioner is held guilty of charge No. 1 & 2 and not guilty of charge No.3. The Disciplinary Authority after receiving the inquiry report on 24.01.2013 communicated the copy of the same to the Petitioner for submission of final defence and accordingly the Petitioner submitted his final defence on 01.03.2013 whereafter the order of punishment was passed on 01.12.2015 by the Opposite Party No.4. 5. The main ground that has been taken not only before the learned Central Administrative Tribunal but also before this Court is that no order has been passed by the Disciplinary Authority after receiving written defence on 01.03.2013, rather, the Opposite Party No.4 who is subordinate to the Petitioner has passed the order of punishment dated 01.12.2015. It is further argued that the Opposite Party No.4 who being the subordinate Officer is empowered to only communicate the decision/the speaking order of the Disciplinary Authority, if any, along with his forwarding Page 2 of 8 letter, has passed the order of punishment dated 01.12.2015 and communicated as if he is the Disciplinary Authority.
Legal Reasoning
Learned counsel for the Petitioner further submitted that an appeal was presented before the Opposite Party No.2 against the punishment order passed on 01.12.2015 wherein also the similar pleading has been taken and the appeal was dismissed by a non-speaking and unreasoned order. When the matter was challenged before the learned Tribunal in O.A. No. 260/00483 of 2018, the learned Tribunal has been pleased to hold as follows:- “The stand of the applicant that the order of punishment and the order of the Appellate Authority having been issued by an authority not competent to do so, the same are liable to be quashed does not sound convincing so as to quash the said orders on this ground when on examination it is found that the said orders were passed by the competent authority, which were merely communicated to the applicant. Hence, this point of the ld. Counsel for the applicant is overruled. Next ground of challenge of the applicant is that the punishment of forfeiture of terminal benefits imposed on the applicant does not come within the purview of the Rules. By Page 3 of 8 bringing to the notice of Rule 33(vii) of CDA Rules, the respondents objected to such stand of the applicant. On perusal of the rules, we find that the authorities are well within their right to impose the punishment of forfeiture of terminal benefits as per Rule 33 (vii). Hence, this stand of the applicant is also overruled. Further stand of the applicant is that since there was no pecuniary loss caused to the NALCO, imposition of punishment is bad in law. We do not appreciate and accept this stand of the applicant because no pecuniary loss is hardly of any ground for an employee to challenge the punishment imposed for the proved misconduct in discharging the official duties. Thus, from the analysis discussed above, we do not see any merit in the OA. According to ld. Counsel for the applicant, as per the decision in Tukaram Kanha Joshi (supra), when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non- Page 4 of 8 deliberate delay. Since, no injustice has been done in the decision making process of the matter in view of the discussions made above, even going by the submission of the ld. Counsel for the applicant, the condonation of delay also merits for no favourable consideration. 6. Learned counsel for the Petitioner drew the attention of this Court to the order of punishment which was communicated to the Petitioner and it shows that the General Manager (H & A)-Amiya Pattnaik) has mentioned in the order dated December-1, 2015, the article of charges and in the last paragraphs, it has been mentioned as follows:- “WHEREAs from the facts and circumstances as indicated above, Shri Swain had committed misconduct under Rule-5(1), 5(4), 5(5), 5(9), 5(17) & 5(21) of the NALCO Conduct, Discipline & Appeal Rules. WHEREAs, Shri BN Swain, Ex- ED(H&A), Corporate Office, NALCO vide his written statement of defence dated 12/07/2012 denied all the charges leveled against him. WHEREAS enquiry into the charges framed against Shri BN Swain was conducted Page 5 of 8 by Shri SC Mishra, Retd., DG of Police, Odisha as Inquiry Authority(IA). WHEREAs the Inquiring Authority submitted his report dated 24/01/2013 wherein the charges made in Article of Charges No. 1 & 2 of the charges framed against Shri BN Swain were found to be proved by the Inquiring Authority. WHEREAS the enquiry report was also forwarded to Shri BN Swain, Ex-ED(H&A), Corporate Office, NALCO for his representation, if any. WHEREAS, the representation of Shri BN Swain, Ex-ED(H&A), Corporate Office, NALCO dated 01/03/2013 was perused and the Disciplinary Authority agreed with the findings of the IA and it was established that Shri BN Swain had committed the misconducts as brought out in the Article of Charges. WHEREAS the Disciplinary Authority, i.e. the Chairman-cum-Managing Director, NALCO, after careful consideration of the findings of the Inquiring Authority, facts and circumstances of the case has decided to record Page 6 of 8 displeasure and impose major penalty of forfeiture of terminal benefits of leave salary at his credit as on date of superannuation subject to a maximum of 60 days on Shri BN Swain, Ex-ED(H&A) Corporate Office. NALCO under Rule-26 & 33 of NALCO CDA Rules. While calculating 60 days of leave, the EL will be taken into account first and if there is any short fall, the same will be adjusted from HPL @ 2 days for 1 day of EL. This issues with the approval of the Disciplinary Authority i.e. Chairman-cum- Managing Director. Sd/- (Amiya Patnaik) General Manager (H&A)” 7. We are of the view that the contention of the learned counsel for the Petitioner that the General Manager (H & A) who is the subordinate authority of the Petitioner has passed the order of punishment is not correct inasmuch as the order itself makes very clear that it was the Disciplinary Authority i.e. Chairman-cum- Managing Director, NALCO who after careful consideration of the finding of the Inquiring Authority has Page 7 of 8 passed the order which was communicated by the General Manager (H & A) and the same has been rightly taken into account by the learned Tribunal while passing the impugned order. Accordingly, we find no infirmity and illegality in the order. The Writ Petition being devoid of merits, stands dismissed. Judge (S. K. Sahoo) Judge (Chittaranjan Dash) AKPradhan/Bijay Signature Not Verified Digitally Signed Signed by: BIJAY KETAN SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 29-Nov-2024 16:25:28 Page 8 of 8