Orissa High Court
Sarangadhar Panigrahi vs State Of Odisha & Ors. .... Opposite ... on 16 July, 2024
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 19-Jul-2024 16:36:16
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.317 of 2020
and
W.P.(C) No.6339 of 2020
(In the matters of applications under Articles 226 and 227 of the
Constitution of India, 1950).
Sarangadhar Panigrahi .... Petitioner(s)
(in both the Writ Petitions)
-versus-
State of Odisha & Ors. .... Opposite Party (s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner(s) : Mr. Sadasiva Patra, Adv.
For Opposite Party (s) : Mr. D. Mund, AGA
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-16.04.2024
DATE OF JUDGMENT: -16.07.20247
Dr. S.K. Panigrahi, J.
1. In both the Writ Petitions, the Petitioner challenges Departmental Proceeding No.5 dated 29.03.2012 (hereinafter "Charge No. 1")/ along with the subsequent Orders dated 01.12.2017, 29.03.2018, and 16.01.2020. Additionally, the petitioner contests Departmental Proceeding No.9/2013 (hereinafter "Charge No. 2")/ including the Base Page 1 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 Report, the Inquiry Report dated 23.09.2018, and the Order dated 29.06.2019.
2. The Petitioner asserts that these proceedings and orders are fundamentally flawed, unlawful, arbitrary, and biased, violating the Principles of Natural Justice and relevant articles of the Constitution of India.
I. FACTUAL MATRIX OF THE CASE:
3. The case pertains to two charges issued against the petitioner who then served as the Inspector-in-Charge at Titilagarh Police Station. The brief details about the charges and the subsequent proceedings are as follows:
Charge No. 1
(i) Charge No. 1 pertains to a charge sheet issued against the petitioner by Order No. 33 dated 29.03.2012. The charge sheet alleges that on 22.03.2011, the petitioner failed to arrest the accused, Trigat Kharsel, in a dowry harassment case (Titilagarh P.S. Case No. 102 dated 22.06.2011), allowing him to escape from the police station on the night of 22/23.06.2011. Additionally, it alleges that the petitioner took no action against Constable Manoj Hota, who allegedly misbehaved with the victim of the aforesaid case. The petitioner was instructed to show cause by 07.04.2012, explaining why he should not face appropriate disciplinary action if the charges were proven.Page 2 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16
(ii) On 01.06.2012, the O.P. No. 3 passed an order indicating that the petitioner did not file preliminary explanation. Hence, it was presumed that he has no explanation to offer.
(iii) On 18.05.2015, the O.P. No.4 submitted his report with finding that the charges against the petitioner could not be proved substantially beyond any reasonable doubt and the inquiry officer held the petitioner not guilty of charges level against him.
(iv) However, the O.P.No.3 vide its Order dated 31.07.2017 disagreed with the findings of Inquiry Officer and thus, called upon the petitioner to submit explanation/representation if any, on the findings of the inquiry officer and the opinion of the disciplinary authority. On 01.09.2017, the petitioner, submitted representations indicating the 'facts with prayer for acceptance of findings of Inquiry Officer'. But, the O.P. No.3 vide Order dated 01.12.2017 issued second show cause to explain as to why the petitioner should not be awarded punishment of one black mark for his gross dereliction of duty.
(v) On 26.12.2017, the petitioner submitted his explanation and indicated that the criminal case on the basis of which the present proceeding was drawn has ended with acquittal and therefore there is no basis in holding him guilty. Further, on 19.01.2018, the petitioner submitted another representation reiterating the above facts with addition that the case instituted against Constable Sri Hota was returned as false. In the said representation the petitioner prayed to consider his case and to exonerate him from the charges. But, the O.P. No.3 vide order dated 29.03.2018 imposed punishment of one black mark against the petitioner Page 3 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 for his gross misconduct and dereliction of duty. The said order was communicated vide Letter dated 10.04.2018 by the Additional Superintendent of Police, Jharsuguda.
Charge No.2
(vi) Now, in Charge No. 2, another charge sheet was issued against him, referenced by Order No. 1E-06-2013/24269/Exe dated 31.05.2013, based on the Base Report detailed in Letter No. 1806/SDPO dated 06.09.2012. The charge sheet alleges that, during the investigation of Titilagarh P.S Case No. 104 of 2011, the petitioner failed to arrest the accused, Duryodhana Behera and did not even take visible steps for apprehending him, nor did inform the SDJM, Titilagarh or this High Court about Duryodhana Behera's involvement in the rape case.
(vii) Additionally, the petitioner did not take any steps to seize the accused's clothing or arrange medical examinations for both the accused and the victim, actions which constitute gross misconduct and negligence of duty. Consequently, Duryodhana Behera was able to secure bail easily.
(viii) In the aforementioned Charge Memo, the petitioner was additionally charged with failing to submit an explanation in response to the show cause notice, which constitutes disobedience of an order. The petitioner was thereby directed to show cause by 10.05.2013 as to why appropriate departmental action should not be initiated against him.
(ix) On 26.06.2013, the petitioner filed an application before the O.P.No.2 through proper channel with prayer to supply copy of the document such as the Base Report of Sri D.K. Purohit and allow 30 days time after supply of the documents for submission of Explanation. Since, the same Page 4 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 was not supplied, in absence of the said document, the petitioner submitted his Explanation on 12.07.2013.
(x) On 03.09.2013, the O.P. No.2 passed an Order indicating that the explanation filled by the Petitioner was found unsatisfactory and hence, inquiry should commence immediately. On 06.04.2012, the petitioner submitted an application before the O.P. No.4 with a prayer to provide the relevant documents as indicated therein with 15 days time for submitting representation. When no documents were provided, the petitioner on 30.04.2012 filed another representation before the O.P. No.3 reiterating his prayer as indicated above. But, without providing the copy of the documents; a VHF message No. 1157 was given to petitioner indicating that he is not entitled for 'any document as prayed for and the petitioner was directed to submit preliminary explanation by 20.05.2012 positively failing which it will be presumed that he had no explanation to offer and action as deemed proper would be taken.
(xi) On 13.09.2013, the petitioner submitted another Representation before the O.P. No.2 with prayer to supply the copy of the base report of Sri D.K. Purohit, OPS, SDPO. Vide Letter dated 19.11.2012, the IG of Police (Personnel), Odisha, Cuttack intimated the Commandant, BTI, Burla- cum-OSAP 2nd Battalion, Jharsuguda that the Base Report (Inquiry Report) against the petitioner vide no.1401 dated 18.09.2013 of Mr. D. K. Purohit was sent to supply to the Charged Inspector.
(xii) On 23.03.2017, the petitioner again submitted a representation before the O.P.No.2 which was forwarded by the SP, Jharsuguda vide Letter dated 03.04.2017 with a prayer to supply a copy of the Base report of Sri Page 5 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 Purohit vide its letter dated 06.09.2012 and 12.09.2012. Thereafter, vide Letter dated 19.03.2017, a copy of only the Base report dated 12.09.2012 was supplied to the petitioner but the Base report dated 06.09.2012 was not supplied to the petitioner.
(xiii) On 09.09.2018, the petitioner submitted his written defence indicating detail facts with prayer to accept his written statement of defence and the charges framed against him be dropped and he may be exonerated from the charges. The written defence was not accepted and the inquiry was completed with the finding that the petitioner was guilty of the charges levelled against him vide his order dated 23.09.2018.
(xiv) The petitioner was communicated the copy of the order passed by DG & IG of Police, Odisha vide Memo dated 29.10.2018 vide Letter dtd.05.11.2018. In the said order, the O.P. No.2 agreed with the findings of the Inquiry Officer and the petitioner was called upon to submit his explanation on the findings of the Inquiry Officer within 15 days from the date of receipt of the order.
(xv) Ultimately, on 29.06.2019, the O.P.No.2 passed an order imposing the punishment of two "Black marks" against the petitioner which was communicated to the petitioner vide Letter dated 15.07.2019 by the SP, Jharsuguda.
(xvi) After receipt of the aforesaid order, the petitioner filed a detailed representation with a prayer to reconsider the matter and recall the order of the penalty in the light of the judgment dated 05.08.2019 in Sessions Case No.89/94 of 2013 and set-aside/recall the order of Penalty Page 6 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 dated 29.06.2019 passed in DP No.9 of 2013 against him, which is pending. Hence, this Writ Petition.
II. SUBMISSIONS ON BEHALF OF THE PETITIONER:
4. Learned Counsel for the Petitioner earnestly made the following submissions in support of his contentions against the penalty imposed in Charge No.1:
(i) On 01.06.2012, the O.P. No.3 passed an order indicating that the petitioner did not file preliminary explanation. Hence, it was presumed that he has no explanation to offer. However, it may be noted here that the said order was received by the petitioner on 27.06.2012. Prior to 27.06.2012, the petitioner had already submitted explanation on 15.06.2012 before the O.P. No.3 indicating the facts with prayer to consider his explanation and to exonerate him from the charges. It is pertinent to highlight here that prior to submission of the preliminary explanation/representation proceeding was started.
(ii) Thereafter, the proceeding was held and vide order dated 10.12.2013 the O.P.No.4 directed the petitioner to file the written defence by 05.01.2014. On 02.01.2014, the petitioner submitted his defence statement. On 18.05.2015, the O.P. No.4 submitted his report with the finding that the charges against the petitioner could not be proved substantially beyond any reasonable doubt and the enquiry officer held the petitioner not guilty of charges level against him.
(iii) The O.P.No.3, vide its Order dated 31.07.2017, disagreed with the findings of Inquiry Officer and thus, called upon the petitioner to Page 7 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 submit explanation / representation if any, on the findings of the inquiry officer and the opinion of the disciplinary authority. On 01.09.2017, the petitioner submitted representations indicating the facts with prayer for acceptance of findings of Inquiry Officer. But, without considering the representation, the O.P. No.3 vide order dated 01.12.2017 issued second show cause to explain as to why the petitioner should not be awarded punishment of one black mark for his gross dereliction of duty. The petitioner on 26.12.2017 submitted the representation indicating the detail facts. Particularly, the petitioner indicated that he had never stated in his representation dated 01.09.2017 that Criminal case on the basis of which the present proceeding was drawn has ended with acquittal and therefore there is no basis in holding him guilty.
(iv) Further, on 19.01.2018 the petitioner submitted another representation reiterating the above facts with addition but the case instituted against constable Sri Hota was returned as false. In the said representation the petitioner prayed to consider his case and to exonerate him from the charges. But, the O.P. No.3 vide order dated 29.03.2018 imposed punishment of one black mark against the petitioner for his gross misconduct and dereliction of duty.
(v) Aggrieved by the order of punishment dated 29.03.2018, the petitioner filed Appeal before the O.P.No.2 on 06.05.2018 indicating the detail facts with prayer to set-aside the order of punishment dtd.29.03.2018. Vide Order dated 16.01.2020, the O.P. No.2 intimated O.P. No.3 with copy to Page 8 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 the petitioner that the Appeal filed by the petitioner was rejected being devoid of any merit for consideration
(vi) The disciplinary proceeding initiated against the petitioner is vitiated due to non-compliance of statutory provision. Firstly, the proceeding was initiated without base report that means without FIR, charge sheet has been filed. Conceding for a moment but not admitting that even if the enquiry report of Mr. G.N Joshi would be treated as base report then also the same is illegal in violation of principle of Natural Justice as no explanation was called for from the petitioner. Secondly, if the test note of Mr. A. Kumar was treated as base report, the charges/ allegations against the petitioner that he did not take any action against the constable Mr. Hota and not arresting the accused was illegal, baseless as Mr. A Kumar in his Test Note (Base Report) concluded that the case against constable Manoj Hota was false and in the said report, nowhere was it mentioned that non-arrest of accused Trigat Kharsel was amounting to misconduct or negligible on the part of the petitioner. Thirdly, it is submitted that though the petitioner had prayed for providing the document in his representations dated 06.04.2012 and 30.04.2012, those documents were not provided to the petitioner and vide VHF message dated 14.05.2012 it was intimated that the petitioner was not entitled for documents. Thus, non-supply of documents is a product of violation of principle of Natural Justice in as much as the Charge Officer like the petitioner was required to supply all documents as he wished in view of the settled principle of Law. Fourthly, the VHF message dated 14.05.2012 in which the petitioner was directed to submit Page 9 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 explanations by 20.05.2012 were received by the petitioner on 21.05.2012. But, prior to submission of explanation, the Order dated 01.06.2012 was passed which reeks of malafide against the petitioner. The test note of Mr. A Kumar was relied and marked as Exhibit-4 but author of the base report Mr. A Kumar was not called upon during course of inquiry as prosecution witness to prove the document which is required under Law.
(vii) Further, the petitioner also highlighted that in absence of prima-facie evidence he did not arrest the accused immediately. Further, the petitioner highlighted about his involvement in other cases including Court Evidence and after collecting the evidence against the accused Kharsel, he arrested him on 04.07.2011 and forwarded to the Court. So far the second charge is concerned it is submitted that since the allegation made by the victim was out and out false, there is no occasion to take any action against the constable Mr. Hota. It is pertinent to note here that the Test Note attached with Charge Memo would show that in the said Test Note it was categorically mentioned that the case is false against Manoj Kumar Hota, constable.
5. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions against the penalty imposed in Charge No.2:
(i) The initial charges framed in the charge sheet under Annexure-1 Series against the petitioner is per-se illegal as there was no mistake on the Page 10 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 part of the petitioner. The charge sheet was issued without Base report which means without FIR the charge sheet was prepared.
(ii) The allegations against the petitioner is concerned the FIR lodged by Lily Nag did not reveal committing offence of rape against the Duryodhan Behera for which the petitioner committed no error in not including Section 376 of IPC in the P.S Case No.104/2011. In her statement, the victim explicitly asserted that she voluntarily absconded with Duryodhan due to their romantic relationship.
(iii) The victim also never disclosed before the medical officer about committing of rape by Duryodhan. Thus, the allegation against the petitioner that she had not included Section-376 in above mentioned case is untenable in the eyes of law.
(iv) The petitioner obtained the intimation through RTI dated 16.02.2015 which would show that no such person in the name of Sri Duryodhan Behera, S/o. Manabodha Behera was admitted as an In-door patient in Sub-Divisional Hospital, Titilagarh in between 25.06.2011 to 30.06.2011.
(v) It may be noted here that Section-376 IPC was included in the P.S Case No.104/2011 much after the transfer of petitioner. The Petitioner was transferred and relieved on 16.09.2011. Further, during the relevant time the petitioner as I.O. was busy in Bank Robbery case vide P.S case No.106/2013 which occurred on 21.07.2011 at mid night and the report was received about 1.30 a.m., under Section 394/34 IPC. Thus, petitioner as I.O. remained busy on 28.06.2011 for that case. After returning on 29.06.2011, the petitioner sent the victim for medical examination. Further, the petitioner remained busy in the Court of the Page 11 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 Sessions Judge, Padmapur to give his deposition on 27.06.2011 as mandated by the Learned Court, which would be evident from his case records.
(vi) This High Court vide order dated 29.07.2011 as an interim measure directed that the Petitioners except Duryodhan Behera shall not be arrested till the next hearing. Pursuant to order passed in BLAPL No.14689/2011, the accused persons including Duryodhan were to surrender before the SDIM, Titilagarh on 30.08.2011 and the case was taken on that date on the strength of Advance petition on which date the Bail was allowed to the accused persons. In the said order dated 29.06.2011, Section-376 was not there in FIR No.104 of 2011 as the said Section was included later on. Hence, the allegation was vague without any substance.
(vii) The petitioner did not submit explanations on time for, during the relevant time, the petitioner was busy in Bank Rubbery Case and he remained before the Sessions Court to give his evidence. Further, it is submitted that the petitioner was suffering from cancer and after detection of such ailment, the petitioner remained with mental agony for which he could not file the explanations in time. Further, it is submitted that there were no advice from the side of the superiors to include Section-376 IPC in P.S Case No.104/2011 or to follow up action.
(viii) So far the Base report is concerned, it is submitted that three Base reports were submitted by Mr. D.K. Purohit on different dates which would be evident from the case records available in the Writ petition. It is extremely important to note here that the Base reports were Page 12 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 submitted by Sri D.K. Purohit without any authority. From the date of joining i.e. on 27.07.2012 till the date of Draft charge, Mr. Purohit had never enquired the matter neither on 12.09.2012 nor prior to that date. As per the record Mr. Purohit inquired the petition of Mr. Lily Nag on 16.09.2013 i.e. after one year of his Inquiry Report. It is extremely important to note here that Mr. Dilip Purohit (P.W.III) was never endorsed to inquire the matter. But, Mr. S. K. Pattnaik was directed to enquire the matter vide Letters dated 15.04.2013 and 16.09.2013. It is extremely important to note here that as per the Base report dated 12.09.2012/ Мг. Purohit had mentioned that he was directed to submit Base Report i.e. Inquiry Report in P.S case No.104 & 105 of 2011 as per Letter No.358/CON dated 04.09.2012. A perusal of above Letter dated 04.09.2012 would show that by the said Letter Mr. Purohit was directed to submit detail report in Titilagarh P.S case No.37 of 2011. Thus, it is crystal clear that the inquiry was not conducted against the petitioner in a fair manner rather the proceeding was initiated with an ulterior motive.
(ix) The petitioner was allowed 8 days time for filing submissions vide order dated 01.09.2018 which was received by petitioner on 4.9.2018 and the petitioner submitted his written defence on 09.09.2018 i.e. within 8 days from 01.09.2018 before submission of finding of the Inquiry Officer. But, the Inquiry Officer did not accept the written defence and concluded the proceeding on 23.09.2018 which amounts to violation of principles of natural justice. Law is well settled that sufficient opportunity should have been given to prove his innocence. Page 13 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 But, in the present case, the written defence of the Petitioner was discarded in a technical manner which shows bias and arbitrary exercise of power. Moreover, the findings of the Inquiry officers are based on no evidence.
(x) The petitioner in his Representations has highlighted all the discrepancies and non-acceptance of his written defence before the O.P. No.2. But, without considering the necessary facts, the punishment was imposed on the basis of the extraneous materials without proper application of mind. It is submitted that law is well settled that the Authority has to pass a reasoned order while considering the application filed by the employee concerned but in the present case the grounds taken by the petitioner was not considered by the O.P.no.2. It is further submitted that while imposing punishment the service carriers of the Petitioner was not taken into consideration to the fact that the petitioner was awarded 200 different rewards with best Officer In-Charge of Bargarh district, 2005 for his unblemished service and the latches on the part of the petitioner was not there while dealing with the case intentionally or deliberately.
(xi) The case against the Duryodhan i.e. Sessions Trial No.89/94 of 2013 was concluded by the Court of Assistant Sessions Judge, Titilagarh vide Judgment dated 05.08.2019 and Duryodhan Behera and others were found guilty of offence but the prosecution failed to prove charge of Section-376 IPC against Duryodhan and the prosecution proved about the guilty of the offence under Section 147/323/149 of IPC only. Thus, from the said judgment, it is clear that the petitioner had committed no Page 14 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 illegality in not including Section-376 IPC while registering the case on 26.06.2011 and investigating.
(xii) In view of the facts and circumstances, entire Disciplinary Proceeding against the petitioner, Base Report, inquiry Report and Order of Punishment are bad, illegal, arbitrary and in violation of principles of natural justice.
(xiii) The DIG of Police, NR, Sambalpur vide its Letter dated 02.11.2015 intimated to the IG of Police (Personnel), Odisha that the proceeding inquiry was conducted on 26.10.2015. Examination of Sri D.K Purohit could not be done as the document i.e. his Base report vide Letter No.1806/SDPO dated 06.09.2012 could not be produced. Further, it was requested to clarify whether there is any discrepancy in the above cited letter to be exhibited. If so, a copy of the correct Base report may be supplied for necessary action. After receipt of the said Letter, the AIG of Police (Personnel) intimated that the Base Report vide Letter No.1401 dated 13.09.2013 has been sent to DIG of Police, NR vide Memo dated 19.11.2013. Further, another copy of said Letter was sent for further action. In response to Letter dated 24.02.2016, Sri Prateek Kumar Mohanty vide his Letter dated 21.03.2016 intimated the AIG of Police (Personnel) that the Base Report dated 13.09.2013 has been initiated after framing of charge. The DIG of Police, NR vide its Letter dated 26.03.2016 intimated to the AIG of Police (Personnel) that the Exhibit No.4 in the Memo of evidence was wrongly mentioned as Base report of Sri D.K. Purohit vide its Letter dated 06.09.2012 instead of base report dated 12.09.2012. However, Base Report of the SDPO Page 15 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 submitted vide Letter No.1401 dated 13.09.2013 is not available in that Office. Hence, a copy of the correct Base report dated 12.09.2012 was sent for necessary action. Thereafter, vide Letter dated 07.06.2016, the revised Memo of Evidence indicating the Base report dated 12.09.2012 was sent to the Inquiry officer.
(xiv) On 23.03.2017, the petitioner again submitted a representation before the O.P.No.2 which was forwarded by the SP, Jharsuguda vide Letter dated 03.04.2017 with a prayer to supply a copy of the Base report of Sri Purohit vide its letter dated 06.09.2012 and 12.09.2012. Thereafter, vide Letter dated 19.03.2017 copy of the Base report dated 12.09.2012 was supplied to the petitioner but the Base report dated 06.09.2012 was not supplied to the petitioner. It may be noted here that the said Base report dated 12.09.2012 was given without memo or any dispatch number.
III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES :
6. Learned counsel for the Opposite Party No.4 earnestly made the following submissions in support of his contentions against Charge No.1:
(i) The petitioner while working as IIC Titilagarh PS vide Memo No. 33/RO/Prog dated 29.02.12 and S.P. HQ Cuttack, letter No. 14150/Exe dated 21.03.12, a department proceeding was drawn up against him on the allegation for not arresting the accused Trigat Kharsel in Titilagarh PS case No. 102/ dated 22.6.11 and let him off from PS even though there was prima facie evidence against him. Instead of arresting the accused on 22/23.6.2011, the petitioner had arrested the accused Trigat Page 16 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 Kharsel on 04.07.11 which shows clear irregularities made by the petitioner. The petitioner is held responsible for not taking any action against the errant constable Manoj Hota who misbehaved with the victim who came to the Police Station to lodge FIR.
(ii) On 06.04.12, the petitioner submitted an application before S.P. Bolangir with a prayer to provide the relevant documents and extension of time for submission of his representation. Then, on 30.4.12, the petitioner also made the same prayer to D.G & I.G of Police, Odisha, Cuttack through S.P. Bolangir. On 14.5.2012, on the prayer of petitioner, S.P., Bolangir sent a VHF message to the Inspector. S.D. Panigarhi (T) S.P. Bargarh that the D.G of Police passed an order on his prayer dated that all the documents cited and exhibit in the memo of evidence has already been supplied to the delinquent officer.
(iii) The DG & IG of police, Odisha, Cuttack disagreed with findings of enquiry officer vide order dated 31.7.17. On perusal of statements of PWs recorded by the Inquiring Officer, it is amply clear that charges levelled against the charged officer are proved. Insistence of the I.O. on charges being proved beyond reasonable doubt is not justified.
Preponderance of probability rather than proof beyond reasonable doubt is the norm while weighing evidence in departmental proceedings. Thus, the petitioner was called upon to submit explanation/ representation, if any, on the findings of the Inquiry Officer and the opinion of disciplinary authority within 15 days from the date of receipt of the order for further action. Page 17 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16
(iv) The proceeding against the petitioner was not without any base report.
It is a fact that in his test note Shri A. Kumar, IPS, S.P. Bolangir concluded the case against the Constable, Manoj Hota was false but he opined that the IIC i.e. petitioner is held responsible for not arresting the accused and allowing the accused to go away in case No. 102/1-1- and recommended for suitable departmental action. The petitioner also held responsible for not taking any action against the erring constable, Manoj Hota who was reported under the influence of alcohol many time and behaving unruly with the general public.
7. Learned counsel for the Opposite Party No.3 earnestly made the following submissions in support of his contentions against Charge No.2:
(i) The charges in Bolangir District Proceeding No. 09/2013 have been proved by the witnesses during their deposition before the Inquiring Officer. The explanation submitted by the Petitioner was also found un-
satisfactory being devoid of merit. Hence the charged officer was imposed the punishment of two "Black Marks" for his gross misconduct, dereliction of duty and disobedience of order.
(ii) On 26.6.2013, the petitioner had filed an application before the OP No. 2 with a prayer to supply copy of documents cited at Point 4 under the heading documents, such as "Base Report" of Sri D.K.Purohit, OPS, SDPO Titilagarh vide his letter No. 1806/SDPO dated 06.09.2012. On scrutiny of records no such application dated 26.6.2013 of the petitioner was found. Besides, the letter No. 1806/SDPO dated 06.09.2012 is not Page 18 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 relevant to the pending proceeding. A revised Memo of evidence dated 31.05.2016 has been issued, basing on which the proceeding has been conducted. As per the revised Memo of Evidence, the report dated 12.09.2012 of Sri D.K. Purohit, OPS, SDPO, Titilagarh has been exhibited as base report. Hence, the report of Sri Purohit dated 12.09.2012 has been supplied to the petitioner
(iii) The representation of the petitioner was duly considered and the OP No. 2 communicated the order dated 11.03.2019 after carefully going through the representation dated 14.11.2018 submitted by the petitioner and found his explanation unsatisfactory. As such the orders of O.P. No. 2 dated 11.03.2019 was communicated to the petitioner vide Letter No.116/E dated 02.04.2019 directing to explain within 15 days from the date of receipt of orders as to why he shall not be awarded punishment of two "Black Marks" for his gross misconduct, dereliction of duty and disobedience of order. The procedure prescribed in Appendix 49 of the Police Manual was duly followed.
(iv) The petitioner was called upon to submit his explanation / representation on the findings of the Inquiring Officer which was found un-satisfactory. As such taking the totality of the facts and circumstances into account and after application of mind the O.P. No. 2 imposed the punishment of two "Black Marks" on Inspector Sarangadhar Panigrahi (Petitioner) for his gross misconduct, dereliction of duty and disobedience of order. The representation dated 23.09.2019 of petitioner submitted to the D.G.P Odisha, Cuttack and the representation of the petitioner has been disposed of and he has been Page 19 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 directed to prefer an appeal to State Government against the orders passed by D.G.P, Odisha, Cuttack as per provision of Rule 851(b) of PMR.
(v) It is a fact that on receipt of written report from the complainant, the petitioner neither registered the case under Section 147/148/294/354/ 376/506/149 IPC against the accused nor intimated the same to the Office of the Advocate General, to be placed before this High Court or the learned Public Prosecutor in the Court of the SDJM, Titilagarh regarding development in the case to a case under Section 376, as required till the release of accused Duryadhan Behera on 30.08.2011.
(vi) After the complaint was lodged, the petitioner did not send the victim, Lilly Nag, to SDH, Titilagarh for her medical examination on time; even though she was present on 26.06.2011 to 28.06.2011. The petitioner sent Lilly Nag for her medical examination after abnormal delay on 29.06.2011 with intention to wash out the medical evidence of the victim.
(vii) The accused Duryadhan Behera was taking treatment at SDH, Titilagarh, but as the IIC of the PS/ Investigating Officer (IO) of the case, the petitioner did not take any step for immediate arrest of the accused Duryadhan Behera and allowed him flee from SDH, Titilagarh. Though, the accused Duryodhan Behera was not an indoor patient, he was getting his treatment and was very much present at SDH, Titilagarh. Being the IIC of the PS, he had knowledge regarding the serious case, its counter case and in spite of that, he did not take steps for immediate arrest of the accused.
Page 20 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16
(viii) Section 376 IPC was not included in PS Case No. 104/2011 only after the transfer of the petitioner. As IO of the case, the petitioner was competent enough to include Section 376 IPC during course of investigation. The petitioner for reasons best known neither included the Section 376 IPC during registration of the case nor during course of investigation, with ulterior motive to help the accused Duryodhan Behera.
(ix) The petitioner did not taken any tangible steps for the seizure of apparel of the accused Duryodhan Behera in Titilagarh PS Case No. 104/2011 nor sent the accused for his medical examination with a plea that, the accused absconded soon after registration of the case, which is not true. It is a fact that, the accused got treatment at SDH, Titilagarh, he was present at SDH, Titilagarh and the petitioner did not take steps for his arrest nor seizure of his wearing apparels. Rather, the accused was allowed to go scot free.
(x) The Titilagarh PS Case No. 106/2013 dated 21.07.2011 is a bank robbery case but it is registered as a road accident Case under Section 279/304(A) IPC and investigated by ASI J. Sahu of Titilagarh PS. Hence, the engagement of petitioner in investigation of PS Case no 106/2013, as claimed by the petitioner, is not correct.
(xi) The petitioner was asked to provide an explanation vide Supdt. of Police, Bolangir Letter No. 444/DCRB(SR) dated 21.01.2012 for his negligence in investigation of Titilagarh PS Case No. 104/2011, but he did not submit his explanation in time. Several reminders vide WT (Wireless Transmission) Message No. 477/DCRB (SR) dated 24.1.2012, Page 21 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 No. 1400/DCRB(SR) dated 13.3.2012 and No. 4863/DCRB (SR) dated 23.07.2012 by the Superintendent of Police, Bolangir were sent to him and acknowledged by him for submission of his explanation, but he did not pay any heed during this long period from 21.1.2012 to 23.07.2012 to submit explanation.
(xii) After the completion of initial stage of the proceeding inquiry, the petitioner was directed to submit the list of Defence Witnesses (DWs), it was further clarified that in case the petitioner does not wish to examine any DWs he should submit the written defence by 14.08.2018 vide Memo No. 256/Con Dt. 11.07.2018. The petitioner made a request vide DR No. 839/PS dated 13.08.2018 to allow him one month time for submission of written defence. Considering his prayer S.P., Bolangir allowed him 15 days time for submission of written defence and directed to submit the same by 29.08.2018. The petitioner failed to submit his written defence by the due date and again submitted a prayer vide his DR No. 896/PS Dt 25.08.2018 to allow him 15 days time for submission of written defence. Further S.P., Bolangir allowed him 8 days time Memo No. 286/con dated 01.09.2018 to submit the written defence. Total 57 days were allowed to the petitioner for submission of his written defence but he did not pay any heed to submit the written defence within the stipulated time. Lastly, he submitted his written defence on 09.09.2018 after a lapse of 57 days beyond time limit. In spite of these S.P., Bolangir -cum-Enquiring Officer perused the statement of all PWs, written defence submitted by the charged officer/petitioner and after careful scrutiny of the records and due application of mind, he Page 22 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 held the charged officer Sri Sarangadhar Panigrahi, EX- IIC, Titilagarh PS (Petitioner) guilty of the charges levelled against him. IV. EXAMINATION OF THE LEGAL MATRIX:
8. It is trite in law that Power of judicial review exercised by a Court or a Tribunal against the orders of a departmental enquiry committee is only limited to ensuring 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.
9. In case of State of Orissa v. Bidyabhushan Mohapatra,1 the Constitutional Bench of the Supreme Court noted that, considering the seriousness of the proven misconduct, the disciplinary authority possessed the authority and jurisdiction to impose the corresponding penalty. This penalty was not subject to review by the High Court under Article 226. The relevant excerpts are produced hereinbelow:
"If the conditions of the constitutional protection have been complied with, is not justiciable. Therefore if the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the enquiry officer or the Tribunal Prima facie make out a case of misdemeanour, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice."
1
AIR 1963 SC 779 Page 23 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16
10. In B.C. Chaturvedi vs. Union of India,2 the Supreme Court also held that 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. The relevant excerpt is produced hereinbelow:
"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 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 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 re- appreciate 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 2 (1995) 6 SCC 749 Page 24 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 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."
11. When an inquiry is conducted on the charges of misconduct by an employee of the state, the Court or Tribunal would be concerned only to the extent of determining whether the inquiry was held by a competent officer or whether the rules of natural justice and statutory rules were complied with.
12. In Om Kumar & Others vs. Union of India,3 the Supreme Court had also after considering the Wednesbury Principles and the "Doctrine of Proportionality" held that the question of quantum of punishment in disciplinary matters is primarily for the disciplinary authority, and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or the other of the well-known principles known as "Wednesbury Principles" namely whether the order was contrary to law, or whether relevant factors were not considered, or whether irrelevant factors were considered or whether the decision was one which no reasonable person could have taken. The Apex Court held as following:
3
(2001) 2 SCC 386 Page 25 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 "In this context, we shall only refer to these cases. In Ranjit Thakur v. Union of India, [1987] 4 SCC 611, this Court referred to 'proportionality' in the quantum of punishment but the Court observed that the punishment was 'shockingly' disproportionate to the misconduct proved. In B.C. Chaturvedi v. Union of India, [1995] 6 SCC 749, this Court stated that the court will not interfere unless the punishment awards was one which shocked the conscience of the Court. Even then, the Court would remit the matter back to the authority and would not normally substitute one punishment for the other.
However, in rare situations, the Court could award an alternative penalty. It was also so stated in Ganayutham. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as 'arbitrary' under Article 14, the Court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing Court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and such extreme or rare cases can the Court substitute its own view as to the quantum of punishment."
(Emphasis supplied) Page 26 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16
13. Finally, in Deputy General Manager(Appellate Authority) and Others v.
Ajai Kumar Srivastava,4 the observation of the Supreme Court must be remembered:
"25. When the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the court is to examine and determine:
(i) whether the enquiry was held by the competent authority;
(ii) whether rules of natural justice are complied with;
(iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion."
14. Now, with the above principles in mind, I shall consider the arguments of the counsel for the petitioners, one by one, against the arguments of the counsel for the Opp. Parties.
V. COURT'S REASONING AND ANALYSIS
15. I have heard the representations of the counsels appearing for the respective parties at length.
16. This court shall now consider and scrutinize the contentions of the respective parties against Charge No.1.
Charge No.1
17. I have noted the fact that the Inquiry Officer ("O.P. No.4") submitted his report with finding that the charges against the petitioner could not be proved substantially beyond any reasonable doubt and the inquiry officer held the petitioner not guilty of charges level against him. The Departmental Authority ("O.P. No. 3") however disagreed with the same.
4(2021) 2 SCC 612 Page 27 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16
18. Now, it is well settled that where the Inquiry Officer is not the disciplinary authority, on receiving the report of inquiry, the disciplinary authority may or may not agree with the findings recorded by the former. It is reaffirmed by the Supreme Court in Deputy General Manager (supra) where it was held that in case of disagreement, the disciplinary authority has to record the reasons for disagreement and after affording an opportunity of hearing to the delinquent may record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry.
19. It is also true that strict rules of evidence are not applicable to departmental enquiry proceedings. However, the only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee. It is true that mere conjecture or surmises cannot sustain the finding of guilt even in the departmental enquiry proceedings. This becomes important if the Inquiry Officer's report is favorable to the delinquent employee and the Disciplinary Authority intends to disagree, the reasons for such disagreement must be explicitly communicated to the delinquent employee. The Supreme Court of India in Punjab National Bank v. Kunj Behari Misra,5 held as follows:
5
(1998) 7 SCC 84 Page 28 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 "19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."
(Emphasis Supplied)
20. In Alexander Machinery (Dudley) Ltd. v. Crabtree,6 a bench presided by Sir John Donaldson held that reasons replace subjectivity with objectivity, allowing courts to perform appellate reviews and judicial oversight and that the right to reasons is essential for a fair judicial system, ensuring decisions are transparent and understandable to the affected parties. It observed the following:
"Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx"/ it can/ by its 6 1974 LCR 120 Page 29 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words/ a speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance."
21. The order dated 01.12.2017, passed by O.P. No.3 clearly captures the essence and warning of the above mentioned dictums of the legal courts. The relevant paragraphs of the order are produced hereinbelow:
"After conducting the proceeding enquiry, the Enquiring Officer submitted his findings holding the charged officer "not guilty' of the charges as the charges against him could not be proved substantially beyond any reasonable doubt.
On perusal of statements of PWs recorded by the Enquiring Officer, it is amply clear that charges levelled against the charged officer are proved. Insistence of the E.O. on charges being proved beyond reasonable doubt is not justified. Preponderance of probability rather than proof beyond reasonable doubt is the norm while weighing evidence in departmental proceedings.
In the light of the above, the Disciplinary Authority did not agree with the findings of the Enquiring Officer. Hence, the charged officer was called upon to submit his explanation/representation if any on the findings of the Enquiring Officer and the opinion of the Disciplinary Authority."Page 30 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16
22. The aforementioned order lacks sufficient reasoning, despite the diverse grounds presented by the parties, including allegations of procedural irregularities and substantive policy violations. The Inquiry Officer provided multiple justifications, such as Supreme Court directives and new policy considerations, which O.P. No. 3 should have meticulously examined. O.P. No. 3 was required to render a clear finding based on an exhaustive analysis of the pertinent documents. A well-reasoned order was imperative when the accused was eventually exonerated and the complaint against Constable Hota was found to be false.
23. The Departmental Authority is not permitted to impose punishment on the petitioner based solely on its subjective satisfaction of the evidence and reasons provided. Merely mentioning that that the evidence and witnesses have been considered does not make it a reasoned order.
24. If the non-reasoned order is not enough to set-aside the punishment against the petitioner; the petitioner was clearly not supplied with the essential documents relied on by the departmental authority. Besides the confusion regarding the base reports, the petitioner was not provided with other documents on the ground that he is simply not entitled to the documents. Article 311 of the Constitution requires that reasonable opportunity of defence must be afforded to a government servant before he is awarded any punishment. It further contemplates that disciplinary enquiry must be held in accordance with the Rules in a just and fair manner. The procedure at the enquiry must be consistent with the principles of natural justice. Principles of natural justice require that the copy of the document if any relied upon against the party Page 31 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 charged should be given to him and he should be afforded opportunity to cross-examine the witnesses and to produce his own witnesses in his defence. If findings are recorded against the government servant placing reliance on a document which may not have been disclosed to him or the copy whereof may not have been supplied to him during the enquiry when demanded would contravene principles of natural justice rendering the enquiry, and the consequential order of punishment illegal and void. These principles are well settled by a catena of decisions of this Court. This court need not refer to them.
25. In light of the above, this court is unable, under any circumstance, to uphold the punishment order dated 29.03.2018, or the appeal order dated 16.01.2020, as both are fundamentally flawed due to their lack of reasoning. The absence of reasoning in both orders constitutes a violation of due process and the principles of natural justice.
26. This court shall now move onto Charge No.2 while considering and scrutinize the contentions of the respective parties. Charge No.2
27. The main contention of the petitioner in this case is that he was not provided with the entire set of base report(s) considered for the disciplinary inquiry. On the other hand, the Opp. Party No. 3 has clarified that, as per the revised Memo of Evidence, the report dated 12.09.2012 of Sri D.K. Purohit, OPS, SDPO, Titilagarh has been exhibited as base report and the same has only been relied to draw charges against the petitioner. While the petitioner has cast doubt on the contention of the Opp. Party, he has not been able to elucidate how a Page 32 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 different base report would not have changed the fate of the departmental proceeding and saved him from any potential prejudice arising from such proceedings.
28. In Powanammal vs. State of T.N.,7 the Supreme Court held that mere non-supply of the documents which may not have resulted any prejudice caused to the employee the order passed by the disciplinary authority cannot be put to question. The relevant paragraphs are produced hereinunder:
"9........this Court has maintained a distinction between a document which has been relied upon by the detaining authority in the grounds of detention and a document which finds a mere reference in the grounds of detention. Whereas the non-supply of a copy of the document relied upon in the grounds of detention has been held to be fatal to continued detention, the detenu need not show that any prejudice is caused to him. This is because the non-supply of such a document would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making an effective representation against the order. But it would not be so where the document merely finds a reference in the order of detention or among the grounds thereof. In such a case, the detenu's complaint of non supply of document has to be supported by prejudice caused to him in making an effective representation."
29. In the case of Chandrama Tewari v. Union of India,8 it was held by the Delhi High Court that :
"However, it is not necessary that each and every document must be supplied to the delinquent government servant facing the charges, instead only material and relevant 7 (1999) 2 SCC 413 8 1987 Supp SCC 518 Page 33 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 documents are necessary to be supplied to him. If a document even though mentioned in the memo of charges is not relevant to the charges or if it is not referred to or relied upon by the enquiry officer or the punishing authority in holding the charges proved against the government servant, no exception can be taken to the validity of the proceedings or the order. If the document is not used against the party charged the ground of violation of principles of natural justice cannot successfully be raised. The violation of principles of natural justice arises only when a document, copy of which may not have been supplied to the party charged when demanded is used in recording finding of guilt against him. On a careful consideration of the authorities cited on behalf of the appellant we find that the obligation to supply copies of a document is confined only to material and relevant documents and the enquiry would be vitiated only if the non-supply of material and relevant documents when demanded may have caused prejudice to the delinquent officer."
30. The failure to provide documents not relied upon in enquiry does not result in any prejudice to the accused party. Prejudice is only caused when documents that the enquiry officer relies upon to form his conclusions are not supplied, as this would contravene the principles of natural justice. However, the accused party must demonstrate that the non-provision of such documents has prejudiced their case. It is a well- established legal principle that the doctrine of natural justice is not comprised fixed rules and cannot be confined to a rigid formula. The application of these principles is contingent upon the specific facts and circumstances of each case. To substantiate a claim of violation of Page 34 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 natural justice principles, one must prove that the failure to observe these principles has caused prejudice to them.
31. In State of Punjab and Another v. Hari Singh,9 the Supreme Court has observed:-
"13......There is nothing to indicate that the respondent suffered any prejudice on that account. It is therefore impossible to hold that the departmental enquiry was vitiated due to non-production of documents asked for by the respondent and on that basis no punishment could be imposed against him. (See Syndicate Bank v. Venkatesh Gururao Kurati [(2006) 3 SCC 150 : 2006 SCC (L&S) 487] and U.P. State Textile Corpn. Ltd. v. P.C. Chaturvedi [(2005) 8 SCC 211 : 2005 SCC (L&S) 1108] .)"
32. Now, coming to other contention of the petitioner, it has been argued that the disciplinary authority did not consider the defence statement submitted by the petitioner and other evidence.
33. Here in the present case, the presenting officer brought documentary evidence in support of the charges, which were admitted by the petitioner albeit with reasons attached to them. However, it is well settled that in a domestic inquiry strict and sophisticated rules of evidence under the Indian Evidence Act are not applicable. The evidence which has probative value of reasonable nexus and credibility, can be placed reliance in support of the allegations.
34. The Supreme Court in the case of State of Haryana and another v. Rattan Singh,10 while dealing with standard of proof and evidence applicable in the domestic inquiry, held as under :- 9
(2008) 11 SCC 85 Page 35 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 "4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. Ail materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding,even though of a domestic tribunal, cannot be held good. However, the courts below mis-directed themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passengers from American jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence not in the sense of the technical rules governing regular court proceedings but in a fair common-sense way as men of understanding and wordly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a ending is certainty available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the 10 (1977) 2 SCC 491 Page 36 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 evidence of Chamanlal, Inspector of the flying squad, is some evidence which has relevance to the charge leveled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground."
35. The present case against Charge No.2 is simple; the petitioner did not take an active role in the arrest of the accused Duryodhan Behera and erred in the timely medical examination of the victim. The disciplinary authority took note of the following and brought charges against the petitioner. The petitioner was given ample opportunity to defend himself; however, the petitioner also erred in not submitting timely written statements against the charges. After taking consideration of the orders passed by the disciplinary authorities and the Appellate body, it is clear from the records that the departmental enquiry has been conducted properly and the principles of natural justice have been strictly followed. There is no denial of reasonable opportunity.
36. This Court cannot help but notice that the majority of the arguments of the petitioner pertain to the merits of the case and not the proceeding itself. Ergo, this court must refuse to interfere in the proceeding for judicial review. A Constitutional Court can only evaluate the decision- making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The role of this Court is to oversee that the procedures followed were just, impartial, and in accordance with the principles of natural justice, rather than to second-guess the substantive outcomes reached by the disciplinary authority. Thus, our focus remains firmly on whether the Page 37 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 petitioner was afforded due process and whether the legal standards for a fair hearing were maintained, rather than delving into the factual determinations or the merits of the case.
VI. CONCLUSION
37. Based on the aforementioned analysis of both factual and legal aspects, this Court concludes that procedural impropriety has been observed in relation to Charge No.1, as discussed above. However, regarding Charge No.2, there has been no procedural irregularity or breach of the Principles of Natural Justice in the conduct of the inquiry against the petitioner. In light of the facts and circumstances of the present case, this Court partially allows the petition.
38. Pertaining to Charge No.1, there cannot be a better case than the present one for this Court's to interfere and to hold that non-reasoned order of the departmental proceedings pursuant to the impugned charge memoranda cannot be countenanced in law or on facts. In such circumstances, the punishment order(s) are liable to be quashed. Accordingly, the Departmental Proceeding No.5 dated 29.03.2012 ("Charge No.1")/ along with the subsequent Orders dated 01.12.2017/ 29.03.2018 and 16.01.2020 are set-aside. Moreover, this proceeding has dragged on for over 13 years, and restarting it would be neither wise for the organization nor fair to the petitioner, who has endured the distress of this blemish for a decade, according to the Court's opinion.
39. On the other hand, however, pertaining to Charge No.2, this Court finds no grounds or reasons to interfere in Departmental Proceeding Page 38 of 39 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2024 16:36:16 No.9/2013 ("Charge No.2")/ including the Base Report/ the Inquiry Report dated 23.09.2018, and the Order dated 29.06.2019 for the reasons mentioned in the discussion in the above section.
40. In conclusion, the petition under W.P.(C) No.6339 of 2020 is allowed while the one under W.P.(C) No.317 of 2020 is rejected.
41. Interim order, if any, passed earlier in any of the Writ Petitions stands vacated.
(Dr. S.K. Panigrahi) Judge Orissa High Court, Cuttack, Dated the 16th July, 2024/ Page 39 of 39