Orissa High Court
Pradip Kumar Panda vs Indian Rare Earths Limited And Others on 9 November, 2017
Equivalent citations: AIRONLINE 2018 ORI 393
Author: S.N. Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
O.J.C. No.4279 of 2000
In the matter of an application under Article 226 of the Constitution of India.
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Pradip Kumar Panda ...... Petitioner
- Versus-
Indian Rare Earths Limited and others ...... Opposite Parties
For Petitioner : M/s. Manoj Mishra, P.K. Das, B. Mishra,
D.S. Mohanty, D.K. Pattnaik,
S.K. Pradhan, P.K. Mohanty, S.Senapati,
S. Pattanaik, S. Mishra, A.K. Nayak,
L. Mishra, D. Mishra, B. Mishra &
B.B. Mohanty.
For Opposite Parties : M/s. S.K. Mishra, P.K. Mishra, D.P. Nanda,
U.N. Nayak, J.K. Nanda, P.K. Mohapatra
& M.K. Pati,
Mr. N.K. Mishra, Senior Counsel.
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PRESENT:
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment : 09.11.2017
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S. N. Prasad, J.This writ petition under Article 226 and 227 of the Constitution of India has been filed wherein the order of punishment dated 10/18.09.1999 passed by the opposite party no.2-Head, OSCOM (Orissa Sands Complex)-cum-Disciplinary Authority, Indian Rare Earths Limited, Ganjam under Annexure-5 has been challenged whereby and whereunder two increments has been directed to withhold with cumulative effect in view 2 of the provision contained in Clause-21(d) of Certified Standing Orders of the establishment and the additional amount of Rs.14,150/- will be recovered in 12 equal monthly instalments.
2. The case of the petitioner, in brief, is that he, while working as Tradesman 'F' (Instrument), has availed the facility of All India Leave Travel Concession in the year 1992-93, advance was sanctioned on 23.09.1992, he purchased the ticket on the same date from Bhubaneswar to New Delhi and submitted the same for verification in his department on 24.09.1992. As per the tickets submitted by him for verification, the date of journey was 1.10.1992. He has submitted the final bill for All India Leave Travel Concession on 13.11.1992. He received an amount of Rs.17,380/- from the accounts department through State Bank of India, Matikhalo as per his claim. The petitioner has been subjected to departmental inquiry on the ground that in course of verification of the bills, the proprietor of Hotel Neelkanth, Mount Abu replied and confirmed that the petitioner has stayed in their hotel from 4.10.1992 to 05.10.1992 and had paid Rs.60/- towards room rent in their hotel. It has also been stated therein that the Passenger Register maintained by the hotel containing the details from check into to check out has also been furnished by the Hotel Neelkanth in support of it. It has been alleged that the petitioner had alone visited Mount Abu on All India Leave Travel Concession made a fraudulent claim for six persons by forging/fabricating the said documents. Accordingly, the petitioner was charge-sheeted and in course of inquiry, the charge has found to be proved. 3 The Disciplinary Authority, while accepting the finding of the Inquiry Report, has inflicted the punishment of the withholding of two annual increments with cumulative effect in view of the provision contained in Clause-21(d) of Certified Standing Orders of the establishment along with the order to recover the excess amount which has received by him in 12 equal monthly installments. The petitioner has preferred an appeal before the Appellate Authority which has been rejected.
3. The petitioner, being aggrieved with both the orders, is approached before this Court by way of this instant writ petition on the ground that he has not been given adequate and sufficient opportunity to defend himself, the original money receipt has not been brought before the Inquiry Officer, the receipt which has been given by the hotel to the petitioner has not been corroborated by the Inquiry Officer and he has also not been allowed to cross-examine the Manager of the Hotel. Hence, the order of punishment is not sustainable in the eye of law.
4. While, on the other hand, learned counsel appearing for the opposite parties, has vehemently opposed his submission and while arguing, it has been submitted that the petitioner has been allowed all adequate and sufficient opportunity to defend himself. The documents, which have sought for before the Inquiry Officer, have been supplied. The Inquiry Officer has found the charge proved against him and the finding has been given by him on the corroboration of the documents having been done by the hotel which has been sought for by the Inquiring Officer and in course thereof, it has 4 come to the finding of the Inquiry Officer that the petitioner has only booked a room in the said hotel and the hotel register also contains that the room has been booked for one person only. The Inquiry Officer, on the strength of this document, has proved the charge against the petitioner, which has been accepted by the Disciplinary Authority and accordingly, taking the lenient view even though the intent of forgery is there, the punishment of two annual increments has been withhold with cumulative effect with a direction to recover the excess amount paid to him. The Appellate Authority has concurred with the finding.
He has further submitted that there is concurrent finding given by the competent authority and as such, this Court may not exercise the power under Article 226 of the Constitution of India, for reversing the fact finding which is based upon the evidence, by assuming the power of appeal.
He has further submitted that this writ petition is not maintainable in view of the Second Schedule of the Industrial Disputes Act wherein it has been provided that if any punishment inflicted upon the workman as provided in the Certified Standing Orders, it cannot be certified in writ court rather, the proper course to raise the dispute before the Industrial Disputes Act, 1947. He further submits that at this moment, the petitioner has been promoted to the Executive Cadre and he has no way prejudiced at the stage of service career.
5. Heard the learned counsel for the parties and perused the documents available on record.
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6. It is evident on appreciation of rival submission of the parties that the petitioner, while working as Tradesman 'F' (Instrument), was subjected to departmental proceedings for commission of forgery of document in availing the All India Leave Travel Concession. The Disciplinary Authority has leveled allegation against him that he has availed the benefit showing entire family members, who have taken the benefit under the All India Leave Travel Concession while actually he alone has availed the same, but withdrawn the money by committing fraud. The petitioner has denied the allegation and accordingly, the same has been put for enquiry before the Inquiry Officer. The Inquiry Officer has taken on record this documents inviting the document of money receipt issued by the hotel, the extract of the register, the tickets etc. as also the Inquiry Officer has got confirmed from the concerned hotel and the hotel has corroborated the allegation by confirming the receipt by saying that actually one room was booked on the hotel and only one person come to stay in hotel, as it would be evident from the extract of the register annexed to the writ petition which is part of the record of the departmental proceeding. The Inquiry Officer on the strength of these documents, which has supplied to the petitioner, has found the charge proved against him. The Disciplinary Authority, while accepting the findings, has inflicted the punishment for withholding two annual increments with cumulative effect with a direction to recover the amount withdrawn by him which has been confirmed by the Appellate Authority. 6
7. The petitioner has assailed the said order on the ground of adequate and sufficient opportunity not been given, but in course of scrutinizing the materials available on record, it is evident that whatever has been requisitioned by the petitioner, the same has been supplied by the Supplying Officer and as such, he is no way been prejudiced on this account.
8. Learned counsel for the petitioner has argued that the documents, which have been supplied, have not been corroborated by its originals. This argument is of no help to the petitioner for the reason that it is settled that for proving the documents, the principle which is applicable in the criminal case to strictly follow the Evidence Act is not applicable in departmental proceeding. The requirement there is of primary and secondary evidence and the document is to be corroborated from its original, but in the departmental proceeding, the statutory provision as contained in the Indian Evidence Act is not strictly applicable. It is for the reason that in a criminal case, guilt is to be proved beyond all reasonable doubts whereas in the departmental proceeding, the guilt is to be proved on the basis of preponderance of probabilities.
The argument of the petitioner is that since photocopies of the documents have not corroborated from its originals, is no aid to the petitioner for the reason that the documents which have been supplied by the hotel cannot be doubted and the intention of the Management of the Hotel can also not be questioned because it is not the case of the petitioner 7 that the Management of the Hotel has any grudge against him, rather it has come on record that the Management of Hotel has furnished the copy of the receipt as also the extract of the register showing therein that only one room has been booked by the petitioner.
9. The petitioner contends that he has also produced the original document, i.e., money receipt at the time of submission of bill, but original receipt has not brought on record before the Inquiry Officer which ought to have been corroborated from the document which has been supplied by the hotel. But the allegation is not of giving money to the hotel, rather allegation is not availing the facilities of LTC where one member or the entire family members and as such, the money receipt has got no nexus in order to prove this allegation, rather the necessity to prove this allegation is the extract of the register wherein it has found that the petitioner has booked only one room.
It has been narrated by the Manager of the Hotel that in one room they are not allowing for more than two customers, as such, the Inquiry Officer has come to conclusion by the following the principle of preponderance of probabilities that in one room six persons was not allowed to remain. Hence, the allegation of not going to LTC along with six family members has been found to be proved.
10. The petitioner has taken a ground of delay in initiation of departmental proceeding, since according to him, the LTC which has been availed by him is of the year 1992, but the enquiry has been commenced in 8 the year 1998 and as such, there is a delay of six years. Hence, on this ground alone, the departmental proceeding will be vitiated. But this argument is not sustainable in the eye of law for the reason that the petitioner, if at all was aggrieved with initiation of departmental proceedings on the ground of delay, he ought to have raised this issue by challenging the initiation of departmental proceeding before appropriate authority, but he has not done so. He has submitted in course of argument that he has raised this point before the Inquiry Officer, but the Inquiry Officer has got no jurisdiction to give declaration regarding initiation of departmental proceeding on the ground of delay, rather the Inquiry Officer is appointed only to prove or disprove the charges, merely raising this issue before the Inquiry Officer is not sufficient for the petitioner. Moreover, since the final order has been passed by appreciating the merit of the allegation, hence the same is to be looked into.
11. Learned counsel for the opposite parties has taken additional ground for not maintainable this writ petition before this Court on the ground that the punishment order has been passed by the opposite party no.2-Head, OSCOM (Orissa Sands Complex)-cum-Disciplinary Authority, Indian Rare Earths Limited, Ganjam under Clause-21(d) of the Certified Standing Orders applicable to the petitioner and under the Schedule-I of the Industrial Disputes Act, 1947, if any order is to be passed against any workman under the Certified Standing Orders, the proper remedy is under the Industrial Disputes Act, 1947.
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In this respect, reference needs to be made in the case of The Rajasthan State Road Transport Corporation and another etc. etc. v. Krishna Kant etc. etc., reported in AIR 1995 SC 1715 at paragraph-32.
12. In view of such settled proposition of law, this Court, after appreciating the arguments advanced on behalf of the parties, is not in dispute that writ is not maintainable against the order of punishment, if passed under the Certified Standing Orders, but it would not be appropriate for this Court to relegate the matter before the alternative forum after lapse of 17 years and as such, this Court thought it proper to deal with the issue on its merit and which has been dealt with as above.
It is not in dispute that the jurisdiction of this writ court sitting under Article 226 of the Constitution of India is very limited, so far as it relates to exercise of power of judicial review is concerned. It can only be exercised, if there is any perversity in the finding or if non-application of mind by the authorities.
The jurisdiction of writ court has been dealt with by Hon'ble the Apex Court in the case of Syed Yakoob Vrs. K. S. Radhakrishnan and others, reported in AIR 1964 SC 477 wherein at paragraph-7 their Lordships have been pleased to hold as follows.
"7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in 10 doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised."11
The proposition laid down by the Hon'ble Apex Court in the case of Syed Yakoob (supra) still holds good since the same has been considered by Hon'ble the Apex Court recently in the case of M/s. Pepsico India Holding Pvt. Ltd. Vrs. Krishna Kant Pandey, reported in (2015) 4 SCC 270 wherein their Lordships while discussing the scope of Article 226 of the Constitution of India in the matter of showing interference with the finding of the Tribunal has been pleased to hold after placing reliance upon the judgment rendered in the case of Chandavarkar Sita Ratna Rao Vrs. Ashalata S. Guram, reported in (1986) 4 SCC 447 as follows:
"17. In case of finding of facts, the court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of this Court in Bathutmal Raichand Oswal v. Laxmibai R. Tarta where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J. as the learned Chief Justice then was, observed at page 1301 of the report as follows: (SCC p. 864, para 7) The special civil application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Waryam Singh v.
Amarnath that the ... power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways v. Sukumar Mukherjee to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors.
This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bose v. Commr. of Hills Division and it was 12 pointed out by Sinha, J., as he then was, speaking on behalf of the court in that case:
It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority."
In the judgment rendered by Hon'ble Apex Court in the case of Union of India and Others Vrs. P. Gunasekaran, reported in AIR 2015 SC 545, the Hon'ble Apex Court has been pleased to laid down a guideline in order to make interference with the order of punishment which is being quoted herein below:-
"13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re- appreciating even the evidence before the enquiry officer. The finding on Charge No.1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Art.226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;13
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence. Under Article 226 / 227 of the Constitution of India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
13. This Court, after taking into consideration the parameter fixed by Hon'ble the Supreme Court as above, is of the considered view that the petitioner has failed to make out a case before this Court to exercise the power of judicial review, since his case not coming under any of the parameter fixed by Hon'ble the Supreme Court as reflected hereinabove, rather if this Court will interfered, it amounts to exercise the power of appeal for reversing the fact finding which is based upon the cogent evidence. 14
In view thereof, the petitioner has failed to make out a case to interfere with the order of punishment.
Accordingly, the writ petition fails and it is dismissed.
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S.N. Prasad, J.
Orissa High Court, Cuttack, Dated the 9th November, 2017/D. Aech