The High Court
Case Details
-IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C ) No.38537 of 2023 Vyjainto Kumar Ray .... Petitioner Dr. J.K. Lenka, Adv.. State of Odisha & Others -versus- ..... Opp. Parties Mr. A. Tripathy, AGA Mr. L. Samantaray, Adv. (for O.P. No.2) Mr. T. Pattanaik, Adv. (for O.P. No.3) THE HON’BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY CORAM:
Decision
ORDER 02.12.2024 Order No.12 1. This matter is taken up through Hybrid Mode. 2. Heard learned counsels appearing for the parties. 3. The present Writ Petition has been filed inter alia challenging the order of punishment passed by Opp. Party No.1 vide order dt.12.01.2023 under Annexure- 14. Vide the said order, Petitioner has been imposed with the following punishment: 1. He is censured. 2. Two increments shall be stopped with cumulative effect. 3. The period of suspension is treated as such. 4. It is contended that a proceeding was initiated against the Petitioner vide Memorandum dt.04.12.2014 under Annexure-6 with the following charges: ARTICLE OF CHARGES Whereas.it appears that Sri Vyjainto Kumar Ray, Vice Principal, BOSE, Cuttack [under suspension] was assigned the duty of flying squad by the Vice Chairman, SCTE&VT, Odisha, Bhubaneswar for observing 2014 summer semester (1st & 2nd sitting) at Krupajal examination Engineering School, Bhubaneswar on 26.04.2014. During the conduct of 1st sitting of examination, he detected 38 nos. malpractice cases but he did not handover the list of the malpractice cases to the Centre Superintendent and the examination papers were not packed till 5.30 P.M although the 1^^ sitting of examination was over at 11.00 A.M which clearly indicates his malafide intension and violation of examination rules. 4.1. It is contended that the charges so framed against the Petitioner was required to be proved with examination of three (3) witnesses which includes Principal, Krupajal Engineering School, Bhubaneswar. It is also contended that the charges were so framed basing on the complaint made by the Principal, Krupajal Engineering School, Bhubaneswar against the Petitioner. 4.2. It is contended that even though Principal Krupajal Engineering School, Bhubaneswar was the prime witness through whom the charges against the Petitioner is required to be proved, but the said witness was never examined and the said fact was also indicated by the Inquiry Officer while submitting the report on 29.06.2017 under Annexure-8. But Opp. Party No.1 on the face of such finding of the Inquiry Officer proceeded with the matter with issuance of the 1st and 2nd Show-cause. 4.3. It is contended that the Inquiry Officer after concluding the inquiry submitted the report with the following finding. Considering the written statement of persons attended the enquiry and Ihe written brief ’of defence submitted by Sri V.K.Ray now working as Sr. Lect. Mech. Govt. Polytechnic, Nabarangpur, I am of the opinion that; There was some dialogue between. Sri Amit Kumar, the then Principal, KES and Sri V.K.Ray Sr. Lect. as regards booking of malpractice cases/dropping of malpractice cases’. It is also stated that Sri Amit Kumar, the then Principal KES reported that Sri Ray demanded 70,000 for dropping of malpractice cases and Sri Ray also complained that Sri Amit Kumar offered cash for dropping of malpractice cases. Such allegation of Sri Kumar against Sri Ray and counter allegation of Sri Ray against Sri Kumar could, not be substantiated during enquiry since Sri Amit Kumar, the then Principal. KES, the prime complainant could not be examined due to non-appearance. In view of the above it is suggested that the matter may be forwarded to prescribed Agency of State Govt. for detailed investigation. 4.4. It is contended that since allegation made against the Petitioner was not proved nor Principal, Krupajal Engineering School basing on whose complaint the charge was framed against the Petitioner was ever examined, on the face of such finding of the Inquiry Officer, Petitioner could not have been imposed with the punishment vide the impugned order dt.12.01.2023 under Annexure-14. 4.5. It is also contended that the disagreement note given by Opp. Party No.1 while issuing the 2nd Show- cause vide Office order dt.18.11.2021 under Annexure- 12 is also not acceptable as the very conduct of the proceeding by the Inquiry Officer is vitiated due to non- examination of the material witness who happens to be the Principal, Krupajal Engineering School, Bhubaneswar. It is accordingly contended that on the face of such finding of the Inquiry Officer even though Opp. Party No.1 gave a disagreement note, but the same cannot be treated as disagreement note in the eye of law. 4.6. It is also contended that the Petitioner even though submitted a detailed reply to the 2nd show- cause vide Annexure-13, but without proper appreciation of the same, while disposing the proceeding, the punishment in question was imposed vide order dt.12.01.2023 under Annexure-14. It is accordingly contended that the impugned order of punishment is not sustainable in the eye of law. 5. Mr. A. Tripathy, learned Addl. Govt. Advocate on the other hand contended that in the proceeding initiated against the Petitioner vide Memorandum dt.04.12.2014 under Annexure-6, Petitioner was given due opportunity of hearing all through and the proceeding was conducted strictly in terms of the provisions conducted under Rule 15 of the OCS (CCA) Rules, 1962, 5.1. Since it is not the case of the Petitioner that the proceeding has not been conducted as per the provisions contained under 15 of the OCS (CCA) Rules, 1962 nor it is the case of Petitioner that he has not been given due opportunity of hearing, the order of punishment so passed is not liable for interference. 6. Mr. L.K. Samantaray, learned counsel appearing on behalf of Opp. Party No.2 on the other hand contended that against the impugned order of punishment, Petitioner has got an alternative remedy of appeal before the Hon’ble Governor under Rule 22 (2) of the OCS (CCA) Rules, 1962. Since there is alternative remedy available and Petitioner has approached this Court, the Writ Petition is not maintainable. It is also contended that the impugned order of punishment has been rightly passed against the Petitioner. 7. Having heard learned counsel appearing for the parties and considering the submission made, this Court finds that the proceeding in question was initiated against the Petitioner vide Memorandum dt.04.12.2024 under Annexure-6 with the charges as indicated hereinabove. 7.1. As found from the Memorandum, the charges against the Petitioner was required to be proved with examination of three(3) nos. of witnesses which includes Principal, Krupajal Engineering School, Bhubaneswar. From the enquiry report so submitted by the Inquiry Officer under Annexure-8, it is found that basing on the complaint made by the Principal, Krupajal Engineering School, Bhubaneswar, the charge against the Petitioner was framed vide the impugned memorandum. It is also found from the Inquiry Report that Principal, Krupajal Engineering School, Bhubaneswar could not be examined due to his non- appearance. 7.2. Since the charges against the Petitioner was framed basing on the complaint made by the Principal, Krupajal Engineering School,, Bhubaneswar and the said witness was not examined by the Inquiry Officer, as per the considered view of this Court, the very conduct of the inquiry is vitiated and basing on the said inquiry report, no order of punishment could have been imposed by Opp. Party No.1. Therefore, this Court is inclined to quash the impugned order of punishment passed against the Petitioner vide order dt.12.01.2023 under Annexure-14. While quashing the same, this Court remits the matter to Opp. Party 1 to start the proceeding from the stage of inquiry and conclude the same in accordance with law in which this Court expresses no opinion. However, since the proceeding is of the year 2014, endeavour be made to dispose of the same as expeditiously as possible. The Writ Petition is accordingly disposed of. sangita (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 20-Dec-2024 20:14:24