Orissa High Court
Santosh Kumar Mohanty vs State Of Orissa And Others on 5 February, 2015
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
O.J.C. No. 15530 of 2001
In the matter of an application under Articles 226 of the Constitution of
India.
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Santosh Kumar Mohanty ......... Petitioner
-versus-
State of Orissa and others ......... Opp. Parties
For Petitioner : M/s S.C. Acharya,
A.P. Barik
For Opp.Parties : M/s. Dayananda Mohapatra,
D.K. Sahoo, M. Mohapatra
PRESENT:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 19.01.2015 | Date of judgment: 05.02.2015
Dr. B.R.Sarangi, J.The petitioner, who was working as a driver under the Bhubaneswar Development Authority, has files this application challenging the order of dismissal passed by the disciplinary authority vide Annexure-6 dated 9.8.1989 and confirmation thereof by the appellate authority vide Annexure-8 dated 2.6.2001 alleging that the procedure as envisaged under the Orissa Civil Services (Classification, Control and Appeal) 1962 Rules (hereinafter referred to as „the 1962 2 Rules‟) have not been followed. Thereby seeks for quashing of the same.
2. The short fact of the case in hand is that the petitioner initially joined as driver in the year 1978 under the Bhubaneswar Regional Improvement Trust, which has been converted to BDA where the services of petitioner was transferred and he was continued therein w.e.f. 1.9.1983. The petitioner while continuing in service was placed under suspension on 19.2.1988 vide Annexure-1 pending framing of draft charges against him. The draft charges were framed against the petitioner vide Annexure-2 dated 2.4.1998, namely, (1) disobedience of lawful orders of the authority (2) misconduct and forgery of documents and he was called upon to give show cause reply on the allegations that he was asked to drive the Diesel Jeep bearing Registration No. OSX 6803 by the Planning Member and maintain log book, but he did not maintain the same after 4.1.1988 onwards in spite of repeated orders of the Planning Member. In addition to that he had issued credit requisition slips for diesel and lubricants of M/s Joy Auto Centre by forging the signature of the Planning Member on different dates. The petitioner filed his written explanation on 4.6.1988 vide Annexure-C/2 along with medical certificate denying the charges levelled against him and qualifying his legitimate claim for reinstatement in service with all consequential service benefits. The petitioner was examined by the inquiry officer vide Annexure-D/2 on 4.6.1988 and such examination has been done 3 in absence of Marshalling Officer. The inquiry officer submitted his report on 23.6.1989 vide Annexure-3, wherein he recommended for dismissal of the petitioner basing upon the solitary evidence of the Planning Member. Thereafter, the disciplinary authority called upon the petitioner to file his show cause within a period of seven days vide Annexure-4 dated 27.6.1989, to which the petitioner submitted his show cause reply on 3.7.1989 vide Annexure-5. On consideration of the same, the disciplinary authority imposed the punishment of dismissal from service on the ground of deliberate negligence in duty and forging the signature of the Planning Member for illegal drawal of diesel and lubricants which amounts to forgery of the signature and misappropriation of the amount. Against such dismissal dated 9.8.1989, the petitioner preferred an appeal before the appellate authority on 10.4.1990 vide Annexure-7 but the appellate authority did not dispose of the said appeal. Therefore, the petitioner approached this Court by filing OJC No. 8023 of 1993 which was disposed of by this Court on 16.12.1993 directing the authority to dispose of the appeal within a period of eight weeks. But the same was not disposed of. Therefore, the petitioner again approached this Court by filing OJC No. 5297 of 1994, which was disposed of by this Court on 7.7.1999 directing the authorities to dispose of the appeal within six weeks. But when the said orders of this Court was not complied with, the petitioner filed CRLMC No. 633 of 1999 and on receipt of the contempt notice, the appellate authority disposed of the 4 said appeal vide Annexure-8 dated 2.6.2001 confirming the order of dismissal passed by the disciplinary authority. Hence this application.
3. Mr. S.C. Acharya, learned counsel for the petitioner strenuously urged that the petitioner has not been given reasonable opportunity by providing statement of allegations along with draft charges and also he has not been provided with records of the statement of allegations. More so, the proceeding initiated against the petitioner is vitiated due to non-appointment of Marshaling Officer and no opportunity has been given to the petitioner to cross-examine the Planning Member as prayed for by him. It is further urged that the inquiry officer suggested the punishment, which has been accepted by the disciplinary authority, therefore there is a bar under Rule 15 (10) of the 1962 Rules and the inquiry officer has conducted the inquiry without following due procedure as envisaged under the rules. In addition to that, it is stated that the appellate authority without application of mind has passed the cryptic order confirming the order of punishment imposed by the disciplinary authority. Thereby, Rule 29 of the OCS (CCA) Rules has not been complied with. Hence, he seeks for quashing of imposition of punishment by the disciplinary authority as well as confirmation thereof by the appellate authority. In order to substantiate his contention, he relied upon the judgments in Khem Chand v. Union of India and others, AIR 1958 SC 300, State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan, AIR 1961 SC 1623, Surath Chandra Chakravarty v. The State of West 5 Bengal, AIR 1971 SC 752, State of U.P. v. Shatrughan Lal and another, AIR 1998 SC 3038, Brahma Chandra Gupta v. Union of India, AIR 1984 SC 380, Union of India and another v. Sri Babu Ram Lalla, AIR 1988 SC 344.
4. Mr. Dayananda Mohapatra, learned counsel appearing for the opposite party urged that the petitioner having forged the signature of the Planning Member and having withdrawn the diesel and lubricants in respect of the vehicle, which he was in-charge of and he having admitted his guilt, thereby the charge was proved against him. Therefore no procedure is required to be followed. More so, he is a habitual offender in view of the fact that in 1985 he was also punished for the selfsame allegation and now having committed same mistake and he having admitted his guilt, the punishment has been imposed. Therefore, no illegality and irregularity has been committed by the disciplinary authority by imposing such punishment. In Annexure-7 while preferring appeal, no ground has been made out by the petitioner in his appeal memo and he has categorically stated that due to some mistake on his part, he was charge-sheeted and subsequently dismissed from service on 9.8.1989. It is stated that once the charge is admitted, the appellate authority is justified in confirming the order of dismissal. Since no case is made out with regard to the allegation of violation of any provisions contained in 1962 Rules, the appellate authority need not examine the same. Rather on the basis of the admission made, the impugned order of 6 dismissal from service has been passed vide Annexure-8 confirming the order of dismissal passed by the disciplinary authority. Therefore, no illegality or irregularity has been committed by the appellate authority by passing the said order. In order to substantiate his case, he has relied upon the judgments in Deputy Commissioner, KVS & others v. J. Hussain, AIR 2014 SC 766 and Commissioner of Police v. Narender Singh, AIR 2006 SC 1800.
5. On the basis of the abovementioned facts pleaded, it is the admitted fact that the petitioner is an employee of BDA. The employees of BDA consist of both deputationists and direct recruits. For direct recruits, there are no rules for payment of TA as well as for taking disciplinary action against the delinquents and also there were no conduct rules for them. Therefore, vide resolution No.12/9 dated 27.7.1984, the BDA proposed to adopt the Orissa Govt. Servant‟ Conduct Rules, Orissa TA Rules, and Orissa Civil Services (classification, control and appeal) Rules to the officers and employees of the authority, till such time as separate rules are framed for them. Vide item no. 12/9, it was agreed to in principle and decided that the Orissa Govt. Servants‟ Conduct Rules, Orissa TA Rules and Orissa Civil Services (classification, control and appeal) Rules,1962 (for short „the 1962 Rules‟) should be adopted with appropriate changes in respect of the officers and employees of the authority, till such time as separate rules are framed. Therefore, 1962 Rules are mutatis mutandis 7 applicable to the employees of the BDA by virtue of the resolution so passed on 27.7.1984.
6. Part-V of the 1962 Rules deals with Discipline. Rule-13 of the 1962 rules, under part-V prescribes nature of penalties. Clause- vi to ix of Rule-13 of 1962 Rules are termed as major penalties. Procedure for imposing major penalties has been prescribed under Rule-15. As mentioned in the said rules, charge has to be specific one and it must be communicated in writing to the employee and he is required to submit his reply. For the purpose of preparing his reply, the delinquent officer be supplied with all the records on which the allegations are based. He shall also be permitted to inspect and take extracts from such other official records as he may specify, provided that such permission may be refused if, for reasons to be recorded in writing, in the opinion of the disciplinary authority such records are not relevant for the purpose or it is against interest of the public to allow him access thereto. On receipt of the written statement of defence as if no such statement is received within time specified, the disciplinary authority may it self also enquire into the charges or if it considers necessary may appoint an inquiry officer to make an inquiry into the charges. If for any reason, the disciplinary authority is of the view that the facts of the case do not justify the award of a major penalty, it shall determine after recording reasons thereof, what other penalty or penalties, if any, as specified in Clauses (i) to (v) of Rule 13 should be imposed and shall after consulting the Commission, 8 where such consultation is necessary, pass appropriate order. This being the procedure prescribed in Rule-15, it is stated that without complying the provisions contained in Rule-15, major penalty of dismissal from service has been imposed on the delinquent officer.
7. In Khem Chand (supra) the Constitution Bench of the apex Court considering the language of both clauses (1) and (2) of Article 311 held that it is prohibitory in form and is inconsistent with their being merely permissive; consequently those provisions have to be read as qualifications or provisos to Article 310 (1). Applying the fact of the said case, it is held that the appellant though entitled to have a further opportunity given to him to show cause why the particular punishment should not be inflicted on him was not given that opportunity and that, therefore, there was no getting away from the fact that Article 311 (2) had not been fully complied with and the appellant had not had the benefit of all the constitutional protections and accordingly his dismissal could not be supported.
8. Similarly, in State of Madhya Pradesh (supra), the provision of Article 311 (2) read with Article 226 of the Constitution of India has been taken into consideration by the apex Court in its Constitution Bench, wherein reasonable opportunity to defend at the stage of departmental enquiry requires compliance of principles of natural justice and violation thereof amounts to denial of opportunity to cross-examine the witness who give evidence against him. Copies of documents to which public servant was entitled to, if not supplied, 9 it is held that the punishment imposed is violative of principle of natural justice.
9. In Surath Chandra Chakravarty (supra), while considering Rule-55 of the Civil Services (Classification, Control and Appeal) Rules, the apex Court held that such rule embodies a principle which is one of the basic contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him. The whole object of furnishing the statement of allegations is to give all the necessary particulars and details which would satisfy the requirement of giving a reasonable opportunity to put up defence. Non-compliance of the same, vitiates the proceeding.
10. In State of U.P. (supra), the apex Court held that due to non-supply of copies of statements of witness examined even though asked for and copies of the documents indicated to be relied upon in charge-sheet, it is held that effective opportunity was not afforded to the delinquent. Therefore, the order of setting aside termination, held to be proper.
11. In Brahma Chandra Gupta (supra) while considering the provisions contained under Article 311, the apex Court held that 10 the delinquent was placed under suspension on criminal prosecution. Thereafter dismissed from service after conviction but reinstated in service after acquittal in appeal. It is held that the delinquent is entitled to full amount of salary on reinstatement and withholding of 1/4th salary is bad in law.
12. In Union of India and another (supra) while considering the provisions contained in Article 311, the apex Court held that if the delinquent was terminated from service and ultimately the order of termination was found to be null and void, the employee is entitled to salary as the order would be deemed to be never in existence.
13. Learned counsel for the petitioner relied upon the aforementioned judgments and strenuously urged that since no reasonable opportunity was given to the petitioner, the petitioner is entitled to reinstatement in service and also entitled to get full back wages, if this Court will hold that the termination is bad.
14. Mr. Dayananda Mohapatra, learned counsel for the opposite party strenuously urged that once the guilt is admitted by the delinquent officer, in that case following the procedure envisaged under Rule-15 of the OCS (CCA) Rules will be an empty formality and as such the conduct of the petitioner being a habitual one, in that case, compliance of principles of natural justice may not be required. 11
15. In Deputy Commissioner, KVS & others v. J.
Hussain, AIR 2014 SC 766, the apex Court held that host of factors go into the decision making while exercising such a discretion which include, apart from the nature and gravity of misconduct, past conduct, nature of duties assigned to the delinquent, responsibility of duties assigned to the delinquent, previous penalty, if any, and the discipline required to be maintained in department or establishment where he works, as well as extenuating circumstances, if any exist. Therefore, in exercise of power under judicial review, the apex Court time and again held that the Court can interfere with the punishment imposed when it is found to be totally irrational or is outrageous in defiance of logic. This limited scope of judicial review is permissible and interference is available only when punishment is shockingly disproportionate, suggesting lack of good faith. In paragraph-11 of the said judgment, the apex Court held as follows:-
"............ In all cases dealing with the penalty of removal, dismissal or compulsory retirements, hardship would result. That would not mean that in a given case punishment of removal can be discarded by the Court. That cannot a ground for the Court to interdict with the penalty. This is specifically held by this Court in H.G.E. Trust & Anr. V. State of Karnataka & Ors. (2006) 1 SCC 430 in the following words:
"A person, when dismissed from service, is put to a great hardship but that would not mean that a grave misconduct should go unpunished. Although the doctrine of proportionality may be applicable in such matter, but a punishment of dismissal from service for such a misconduct cannot be said to be unheard of. Maintenance of discipline of an institution is equally important. Keeping the aforesaid principles in view, we may hereinafter notice a few recent decisions of this Court."12
16. While considering the provisions contained under Article 311, the apex Court also laid down the principles with regard to the factors to be taken into consideration by the disciplinary authority while imposing punishment as mentioned supra.
17. Admittedly, the petitioner was punished earlier for the selfsame cause of action and thereafter he has been allowed to continue in service. Subsequently he indulged in the similar activities and has been found guilty, he admitted his guilt though not in the departmental proceeding itself but while preferring appeal. In appeal memo it has been specially mentioned as follows:
"That, Sir, due to some mistake on my part, I was charge sheeted and subsequently dismissed from my services vide your B.D.A. order No.CE-II-27/88/14762 dated 09.08.1989."
18. Considering the law laid down by the apex Court as discussed above and applying the same to the present context, once the delinquent officer admits his guilt, in that context, compliance of the procedure envisaged under Rule-15 of the OCS (CCA) Rules would only be an empty formality. In view of the law laid down by the apex Court in Dy. Commissioner, KVA (supra) while imposing punishment, the gravity of misconduct, past conduct, nature of duties assigned to the delinquent, responsibility of duties assigned to the delinquent, previous penalty have to be taken into consideration and by taking into account the sum total of the above effect, punishment of dismissal from service has been imposed by the competent 13 authority which cannot be construed to be an unreasonable one, rather the same is in compliance of provisions of law.
19. In a judicial review, this Court cannot and should not also reduce the quantum of punishment imposed by the disciplinary authority and confirmed by the appellate authority. The contention raised that the appellate authority while confirming the order of dismissal passed by the disciplinary authority has not passed any reasoned order, the same has no meaning in the present context as the delinquent officer has already admitted his guilt. Though under the provisions of law, the appellate authority has to have passed a reasoned order while disposing of the appeal preferred by the delinquent officer against the order of punishment imposed by the disciplinary authority but in the present context, the same is absolutely a futile one. Rather, the conduct of the petitioner being not above board, the punishment so imposed by the disciplinary authority having been confirmed by the appellate authority, this Court is not inclined to interfere with the same.
20. Accordingly, the writ application stands dismissed. However, no order as to costs.
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Dr.B.R.Sarangi, J.
Orissa High Court, Cuttack The 5th February, 2015/Jagdev