The High Court · 2024
Case Details
Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Dec-2024 11:06:51 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) Nos. 41362 of 2021 (An application under Articles 226 & 227 of the Constitution of India) Dhananjaya Dutta .…… Petitioner -Versus- State of Odisha & Ors. ……. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. S.K.Das, Advocate For Opposite Parties : Ms. B.L.Tripathy, ASC CORAM : JUSTICE B.P. ROUTRAY JUDGMENT 21st November 2024 B.P. Routray,J. 1.
Legal Reasoning
Heard Mr. S.K.Das, learned counsel for the Petitioner, and Ms.B.L.Tripathy, learned ASC for State-Opposite Parties. 2. The Petitioner who is serving as Havildar under Cuttack Urban Police Department within the Commissionerate of Police, Cuttack-Bhubaneswar was charged for criminal misconduct under Annexure-2 on 18th July 2018. The disciplinary proceeding was initiated against him in terms of Rule 824 to 828 of the Odisha Police Manual Rules. An Enquiry Officer namely, Narottam Samal, Inspector of Police was appointed who upon taking evidences and examination of witnesses submitted his enquiry report on 31st October W.P.(C) No.41362 of 2021 Page 1 of 8 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Dec-2024 11:06:51 2019 at Annexure-4. The relevant finding of the Enquiry Officer is reproduced below:- “Under the above fact and circumstances discussed above and back drop, I feel the charged Havildar should have taken utmost care to his bag containing the Govt. issued ammunitions. But due to his laxity the bag was exchanged and such untoward incident happen so I conclude the charged Havildar may be held partially neglected guilty.” 3. Then the Petitioner was issued with the show-cause notice along with the copy of enquiry report as per Annexure-5 and the Petitioner submitted his show-cause reply on 11th December 2019 under Annexure-6. 4. Thereafter, the disciplinary authority without passing any order and without the knowledge of the Petitioner appointed another Enquiry Officer namely, Jatindra Kumar Panda, Assistant Commissioner of Police to give his finding on the facts and evidences collected during the enquiry. Second Enquiry Officer submitted his enquiry report on 28th May 2020 under Annexure-7 with his findings as follows:- “Taking into account the evidence of both prosecution and defense along with the documents exhibited during the enquiry of the proceeding, I am of the findings that the charges brought against the charged Hav./322 Dhananjay Dutta are well proved beyond all reasonable doubts.” 5. Then again a show-cause notice was issued to the Petitioner on 5th June 2020 under Annexure-8 and he submitted W.P.(C) No.41362 of 2021 Page 2 of 8 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Dec-2024 11:06:51 his reply on 24th June 2020 under Annexure-9. Then second show-cause notice was issued to the Petitioner under Annexure- 10 and finally, order of punishment was passed on 3rd October 2020 under Annexure-12 directing for dismissal of the Petitioner from Government service with immediate effect. 6. The Petitioner preferred appeal against the same and the Appellate Authority dismissed the appeal by order dated 4th February 2021 and communicated the same to him under Annexure-14. The revision preferred by the Petitioner was also dismissed as per order dated 26th November 2021. Such orders of dismissal from service, confirmed in appeal and revision are subject matter of challenge in the present writ petition. 7. Mr.Das, learned counsel for the Petitioner submits that the action of disciplinary authority in appointing second Enquiry Officer, without assigning any reasons for disagreement to the findings of the first Enquiry Officer, is contrary to law and on such ground the impugned orders need to be revisited. 8. The State has filed its counter narrating the allegations made against the Petitioner for proceeding against him in the disciplinary action. But nothing is mentioned with regard to dissatisfaction on the first enquiry report and the reasons of disagreement for appointing the second Enquiry Officer. 9. Ms.Tripathy, learned Additional Standing Counsel submits that since the disciplinary authority was not satisfied with the enquiry report of the first Enquiry Officer under Annexure-4, he upon his W.P.(C) No.41362 of 2021 Page 3 of 8 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Dec-2024 11:06:51 discretion as vested under the rule, directed for report from the second Enquiry Officer, and in such action no illegality can be alleged without any malice on the part of the disciplinary authority. 10. It is important to reproduce relevant Rules for disciplinary proceeding, as prescribed in Odisha Police Manual Rules. As per Rule 828, the procedure for disciplinary action has been prescribed in Appendix-49. Clause-10 and 11 of said Appendix-49, which are relevant for the present purpose, are reproduced below:- “10.At the conclusion of the enquiry, the enquiring authority shall prepare a report of the enquiry, recording reasoned findings on each charge separately taking into account the evidence on both sides and shall submit the record of proceedings with his findings to the authority competent to pass final orders (when he is not competent to do so). The disciplinary authority shall, if it is not the enquiring authority, consider the records of proceedings and record its findings on each charge. If it is found that the enquiry has not been properly conducted, the punishing authority may order for a fresh enquiry on the point or points suggested. Orders passed by the disciplinary authority shall be communicated to the charged officer with a full copy of his findings and when the disciplinary authority is other than the enquiring authority, the findings of the enquiring authority in addition shall also be supplied to the charged officer. 11. 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 the enquiring W.P.(C) No.41362 of 2021 Page 4 of 8 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Dec-2024 11:06:51 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 enquiring unless they have already been supplied to him.” 11. It is clear from the above stated procedure that when the disciplinary authority found that the enquiry was not properly conducted, record its findings with brief reasons for disagreement and make order for fresh enquiry on such suggested points with communication to the delinquent officer of the statements and reasons. 12. It is a well-known principle that before going for second enquiry, the reasons of disagreement of the disciplinary authority should be recorded in writing with communication to the delinquent officer. It is also the settled principles that an Enquiry Officer should not be changed or no second Enquiry Officer should be appointed without a substantial reason. In Lala Narendra Kishoro v. State of Bihar, 2000 SCC Online SC 91, it is held as follows:- 5. In our view, it is not permissible to appoint a second inquiry officer merely because the authorities are not satisfied with the first enquiry. According to the guidelines applicable to the department, the disciplinary authority, after perusal of the enquiry report may either agree with the report or proceed with the determination of the punishment or may disagree with the report of the inquiry officer and in the later event, he has to record the reason for differing with the inquiry officer. The disciplinary authority should consider the entire inquiry report, check whether the inquiry was W.P.(C) No.41362 of 2021 Page 5 of 8 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Dec-2024 11:06:51 held properly i.e. whether there was anything which may lead to violation of any statutory rules or constitutional provisions. If any such defect is noticed by him, he may remit the case to the inquiry officer for further or fresh inquiry. In Jayantibhai Raojibhai Patel v. Municipal Council, Narkhed & Ors, (2019) 17 SCC 184, it is observed that; 9. The view of the High Court that a fresh appointment of an inquiry officer could not have been made without recording reasons why the disciplinary authority disagreed with the enquiry report is correct. This is borne out by the decision of this Court in CSHA University v. B.D. Goyal, (2010) 15 SCC 776, where a three-Judge Bench of this Court observed: “7. It is no doubt true that the punishing authority or any higher authority could have disagreed with the finding of the enquiring officer, but in such a case the authority concerned is duty-bound to record reasons in writing and not on ipse dixit can alter the finding of an enquiring officer. The order of the Vice- Chancellor, which was produced before us does not satisfy the requirements of law in the matter of differing with the findings of an enquiring officer.” 13. In the instant case as stated above, it is seen that the disciplinary authority after completion of enquiry by the first Enquiry Officer has appointed the second Enquiry Officer without recording any reason of disagreement for the same. It is not that a further enquiry was directed by another Enquiry Officer but as stated in the order under Annexure-8, the second Enquiry Officer was appointed for reassessing the facts and evidences brought on record only for the reason that it does suite the disciplinary authority. Reassessment of the facts and evidences brought in course of enquiry by the first W.P.(C) No.41362 of 2021 Page 6 of 8 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Dec-2024 11:06:51 Enquiry Officer is impermissible by appointing second Enquiry Officer only to give a separate finding. When the disciplinary authority disagreed with the enquiry report of the Enquiry Officer, the right procedure open for him was to record the reasons of his disagreement either for conducting further enquiry on specific suggested points or to proceed himself in accordance with law with reasons to be recorded. Therefore, as it is seen, the procedure adopted by the authorities in punishing the Petitioner for dismissal from service is found comletely illegal and unsustainable in the eye of law. For such violation of the procedure in conducting the disciplinary proceeding against the delinquent, the entire order of punishment is liable to be set aside. 14. It is further seen that the first Enquiry Officer in his report under Annexure-4 has given the finding that the Petitioner was partly guilty of the charges, whereas the second Enquiry Officer in his report under Annexure-7 held the Petitioner absolute guilty of the charges. Therefore, the intention of the disciplinary authority is seen clear that they wanted to punish the Petitioner with dismissal from service and they had a pre-occupied mind. It is different of course that, whether the nature of charges are commensurating the punishment of dismissal from service and this Court refrains from giving its opinion on the same. The Appellate Authority as well as the Revisional Authority have failed to appreciate such failure on the part of the disciplinary authority and the lacuna cropped up for maintaining a fair proceeding in maintaining disciplinary action. Accordingly, the punishment imposed by the disciplinary authority under Annexure-12 and confirmation of the same by the Appellate as well as Revisional W.P.(C) No.41362 of 2021 Page 7 of 8 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Dec-2024 11:06:51 Authorities under Annexures-14 and 16 are set aside. The Opposite Parties are directed to reinstate the Petitioner in service with such order with regard to his period of absence from duty, within a period of four weeks from the date of receipt of certified copy of this order. 15.
Decision
Accordingly, the writ petition is disposed of as allowed. Judge (B.P. Routray) Sangram,Sr.Steno W.P.(C) No.41362 of 2021 Page 8 of 8