Orissa High Court
Hrudananda Sahu vs State Of Odisha And Others .... Opposite ... on 27 February, 2023
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.32791 of 2022
Hrudananda Sahu .... Petitioner
Mr. A.K. Chhatoi, Advocate
-versus-
State of Odisha and others .... Opposite Party
Mr. P.C. Das, A.S.C.
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
Order No. 27.02.2023
03. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard learned counsel for the petitioner as well as learned counsel for the State. Perused the writ petition as well as documents annexed thereto.
3. The present writ petition has been filed by the petitioner with the following prayers:
"In view of the above facts and circumstances stated above, it is ardently prayed that this Hon'ble Court be graciously pleased to quash the impugned order of punishment i.e. compulsory retirement dtd.28.07.2022 passed by the appellate authority (Opp.Party No.2) under annexure-15 as well as the order of dismissal passed by the disciplinary authority (Opp.Party No.3) under Annexure-7 respectively.
And further be pleased to direct the Opp.Parties to reinstate the petitioner in the service with all consequential service and financial benefits // 2 // And issue any other appropriate writ/writs, order/orders, direction/directions as deem fit and proper in the fitness of the case."
4. It is submitted by learned counsel for the petitioner that while the petitioner was working as Revenue Supervisor in the Tahasil Office, Keonjhar i.e. under Opposite Party No.4, he entangled with Balasore Vigilance P.S. Case No.22 of 2021 for the offence under Section 7 of the Prevention of Corruption (Amendment) Act 2018 for the allegation of making illegal demand and gratification. Although the said case is pending before the criminal court, no charge-sheet has been filed. Basing upon the involvement of the petitioner in the aforesaid criminal case, a departmental proceeding was initiated against the petitioner and the petitioner was placed under suspension on 09.11.2021 for arrest and detention in judicial custody.
5. It is further submitted by learned counsel for the petitioner that in the disciplinary proceeding under Annexure-6 bearing D.P. No.1 of 2022, the petitioner was given thirty days time to file show-cause reply. However, the petitioner could not file the same within the stipulated period of time and he has filed the same on 24.01.2022. He further submits that without supplying any document to the petitioner and without providing an opportunity to file show-cause before the expiry of time to show-cause, the petitioner was dismissed from // 3 // service on 08.02.2022 under Annexure-7.
6. Being aggrieved by the dismissal order, the petitioner approached this Court by filing a writ petition bearing W.P.(C) No.4547 of 2022 and the said writ petition was disposed of by granting liberty to the petitioner to file an appeal in appropriate forum. The order which was challenged is an appealable one. Thereafter, the petitioner approached before the appellate authority by filing an appeal under Annexure-14. It may not be mentioned that the Revenue Divisional Commissioner, Northern Division, Odisha, Sambalpur is the appellate authority. The appellate authority upon careful consideration of the appeal memo submitted by the petitioner and further taking into consideration para-wise comments of the department disposed of the appeal vide order dated 28.07.2022 under Annexure-15. On perusal of the order passed by the appellate authority-Opposite Party No.2, it appears that the appellate authority has expressed its displeasure with regard to non-observance of the procedure in the matter and further observes that the petitioner was not given opportunity to submit his written statement. However, the impugned order of dismissal dated 24.11.1987 passed by Disciplinary Authority-cum-Collector, Keonjhar was modified and the petitioner was awarded punishment of compulsory retirement from service // 4 // w.e.f. 08.02.2022 instead of dismissal from service.
7. On perusal of the order passed by the appellate authority, the following findings are as follows:-
"On going through the appeal petition of Sri Hrudananda Sahu, the Para-Wise comments of the ADM, Keonjhar and other required information/documents, it is revealed that the appellant while working as a Revenue Supervisor in Tahasil Office, Keonjhar, a vigilance case by S.P. Vigilance, Balasore Division by P.S. Case No.22, dt.08.11.2021 U/S/7 of Prevention of Corruption Amendment Act- 2018 was registered against the appellant for demanding & accepting illegal gratification of Rs.20,000/- from the complainant Sri Harikar Sahu for submission of field enquiry report to the Tahasildar, Keonjhar. Then he was placed under suspension w.e.f. 09.11.2021 for his arrest and detention in the judicial custody for the period exceeding 48 hours. Thus, basis on draft charges submitted by S/P. Vigilance, Balasore Division, a Departmental Proceeding No-01/2022 U/r 15 of OCS (CCA) Rules, 1962 has been initiated and was served on appellant vide District Office Memo No-152/BBE Dt.17.01.2022 for violation of Rule-3 of OGS Conduct Rules, 1959 against the appellant Sri Sahu.
From the above narrated facts it is revealed that, in the midst of the whole process, the Disciplinary Authority-cum-Collector, Keonjhar dismissed the // 5 // appellant Sri Sahu from Govt. Service on dt.08.02.2022 without giving him opportunity for submission of his defense statement within 30 days from the receipt of the Memorandum of charge sheet and also to state whether he desires to be heard in person.
It is clearly mentioned in the office order of dismissal of Sri Sahu, that in accordance with Govt. in G.A. & P.G. Deptt. Circular No.30495 dt.24.11.1987 read with Clause-(a) of Rule-71 of the Orissa Service Code the appellant Sri Sahu is dismissed from Govt. Service. In this context, it is to submit here that, the Circular No.30495 dtd. 24.11.1987 is superseded vide Letter No.27037/Gen, Dt.24.09.2019 regarding premature retirement of Govt. Servant.
Further, the major punishment of dismissal from Govt. Service cannot be imposed on an employee without giving the appellant reasonable opportunity of being heard. Sri Sahu has been dismissed from Govt. Service within 21 days, from the date of receiving the Memorandum of charges. Thus, it is cleared that, the Disciplinary Authority-cum-Collector, Keonjkhar has dismissed Sri Sahu without following proper procedures and rules laid down by Govt.
The Govt. of Odisha is also giving Compulsory retirement to corrupt Officers under "MO SARKAR"
initiatives. Hence the dismissal order from Govt. Service of Sri Sahu is not well judged.
Further, as per the judgment of Hon'ble Supreme // 6 // Court in State of U.P. and Others-Vrs-Vijay Kumar Jain, Appeal (Civil) 2083 of 2002. If the conduct of a Government employee becomes unbecoming to the public interest or obstructs the efficiency in public services, the Government have an absolute right to compulsorily retire such an employee in public interest.
Hence, I am convinced that the dismissal order passed by the Disciplinary Authority-cum-Collector, Keonjhar as per the Govt. in G.A. & P.G. Deptt. Circular No.30495/Dt.24.11.1987 is not appropriate as the said circular is superseded by G.A.&P.G. Deptt. Letter No.27037/Gen, Dtd. 24.09.2019."
8. On further perusal of the order passed by the appellate authority-Opposite Party No.2, this Court is of the considered view that the appellate authority once came to a conclusion that proper procedure has not been followed while conducting the disciplinary proceeding, the Opposite Party No.2 should have set aside the order passed by the disciplinary authority and remanded back the matter to the disciplinary authority for de novo disciplinary proceeding for filing the final written statement of the delinquent Officer. However, for the reasons placed before the appellate authority, the appellate authority in its wisdom to convert the punishment from dismisal to compulsory retirement by referring to some scheme of Government of Orissa "Mo Sarkar" initiative whereunder compulsory retirement // 7 // has been given to corrupt officers. Such conclusions are not taken by the appellate authority, which is punishable in law. Moreover, once an appellate authority exercising its appellate jurisdiction a proper procedure has not been convinced as has been directed in OCS (CC&A) Rules, 1962 than the entire appeal order against the petitioner should have been quashed and the matter should have been remanded to the Opposite Party by following procedure as has been provided under the OCS (CC&A) Rules, 1962.
9. Learned Additional Standing Counsel for the State-Opposite Parties submits that the petitioner was involved in a vigilance case, therefore, he was arrested and sent to judicial custody. Thereafter, he was immediately placed under suspension and the proceeding was initiated against him. As such, the Opposite Parties have not committed any illegality and dismissed the petitioner from service. It was also contended that such type of cases protected under Article 311 in the Constitution of India is not applicable to such delinquent employees. Therefore, the order of dismissal passed by the disciplinary authority, which was subsequently modified by the appellate authority in accordance with law and the same should not be interfered with at this juncture for the public interest.
10. Having heard learned counsels for the respective parties, and // 8 // upon careful consideration of the documents filed along with the writ petition, this Court is of the considered view that once the appellate authority found that the proper procedure has not been followed and come to the conclusion to observe without giving the petitioner an opportunity to submit his defence statement,. The disciplinary authority has passed the order of punishment, which was incumbent upon the Opposite Party No.2 to immediately set aside the impugned punishment order and the matter should have been remanded then for consideration afresh by providing opportunity of hearing to the petitioner.
11. In such view of the matter, this Court is of the considered view that the order dated 28.07.2022 under Annexure-15 passed by the appellate authority as well as the order dated 08.02.2022 under Annexure-7 passed by the disciplinary authority are hereby set aside and the matter remitted back to the Opposite Party No.3 and the Opposite Party No.3 shall do well to proceed afresh by giving an opportunity to the petitioner to file his show-cause reply. Further, it is directed that the Opposite Party No.3 shall proceed strictly in accordance with OCS (CC&A) Rules, 1962 and the procedure to dispose of the matter as expeditiously as possible preferably within a period of three months from the date of production of certified copy // 9 // of this order. The petitioner is further directed to file his show-cause reply within a period of four weeks from today before the disciplinary authority.
12. With the aforesaid observation/direction, the writ petition is disposed of.
Urgent certified copy of this order be granted on proper application.
( A.K. Mohapatra ) Judge Jagabandhu