Orissa High Court
Bhabani Charan Biswal vs State Of Odisha & Others .... Opposite ... on 2 January, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC(OAC) Nos.1708 & 1709 of 2012
In the matter of an application under Section 19 of the
Administrative Tribunal Act, 1985.
..................
WPC(OAC) No.1708 of 2012
Bhabani Charan Biswal .... Petitioner
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s.P. K. Mishra, S.Mishra,
S.Pattnaik & M. Pati.
For Opp. Parties : Addl. Standing Counsel
Mr.H.K. Panigrahi.
WPC(OAC) No.1709 of 2012
Sukesh Kumar Panda .... Petitioner
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s.S.N. Biswal, G.R. Sethi &
J.K. Digal.
For Opp. Parties : Addl. Standing Counsel
Mr.H.K. Panigrahi.
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing:02.08.2023 and Date of Judgment:29.08.2023
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Biraja Prasanna Satapathy, J.
1. Since issue involved in both the cases is identical and the challenge made in the writ petitions are also similar, both the matters are heard analogously and disposed of vide the present common order.
2. Both the Writ Petitions have been filed challenging the Office Order dated 01.05.2012 so issued by the Government-Opposite Party No.1 under Annexure-16 & 18, whereby fresh Enquiry Officer was appointed to enquire into the charges framed against the Petitioners vide Memorandum dated 21.04.2008 and 15.03.2008 respectively.
3. The factual backdrop giving rise to filing of the present case is that on initiation of such proceeding against the Petitioners, not only they filed their respective written statement of defence, but also participated in the enquiry so conducted by the Enquiry Officer on being duly appointed by Opposite Party No.1. The Enquiry Officer after conducting the enquiry submitted his enquiry report on 16.11.2010. While the Enquiry Officer in his report opined to exonerate the Petitioner in WPC(OAC) No.1708 of 2012 Page 2 of 20 // 3 // from the charges, the self-same Enquiry Officer in respect of the Petitioner in WPC(OAC) No.1709 of 2012 held him guilty as against Charge No.1 of the Memorandum and proposed to impose punishment of withholding of increment. While recommending such punishment against the Petitioner in WPC(OAC) No.1709 of 2012, the Enquiry Officer also opined not to impose any major penalty and to exonerate him from the charges.
3.1. It is contended that after receipt of the enquiry report both the Petitioners were issued with the 1st show cause in terms of the provision contained under Rule-15 of the OCS (CCA) Rules, 1961 on 01.10.2011. On receipt of the enquiry report along with the 1st show cause, both the Petitioners were also submitted their respective replies on 25.10.2011.
3.2. It is also contended that since on initiation of the proceeding against the Petitioners, both were placed under suspension and the order of suspension was never revoked, the Petitioners approached the Tribunal in O.A No.2995(C) of 2010 and 2441(C) of 2010 respectively. The Tribunal when directed the Opposite Party No.1 to take a decision in terms of the provisions contained under Rule-12(5) of the Page 3 of 20 // 4 // OCS (CC&A) Rules, 1962. Opposite Party No.1 vide order dated 25.05.2011 while refusing to revoke the order of suspension enhanced the subsistence allowance from 50% to 75% as provided under Rule-90(1)(a)(i) of the Orissa Service Code.
3.3. It is contended that while the matter stood thus, and without conducting the proceeding basing on the enquiry report so submitted by the Enquiry Officer, when Opposite Party No.1 passed the impugned order on 01.05.2012 by appointing another Enquiry Officer to conduct fresh enquiry and to submit the report without assigning any reason, challenging such order of Opposite Party No.1, both the writ petitions were filed.
The Tribunal while issuing notice of the matter vide order dated 06.06.2012 passed an interim order restraining Opposite Party No.1 from taking further action against the Petitioners, pursuant to the order impugned.
3.4. It is contended by the learned counsel appearing for the Petitioners in both the cases that since after due conduct of the enquiry, the Enquiry Officer submitted the report against both the Petitioners on 16.11.2010 and the Petitioners were issued with the 1st show cause on Page 4 of 20 // 5 // 01.10.2011, the reply on which was also made on 25.10.2011, there was no occasion to direct for fresh enquiry by appointing another Enquiry Officer to enquire into the charges.
3.5. Mr. Mishra, learned counsel for the Petitioner in WPC(OAC) No.1708 of 2012 while relying on the decisions rendered by this Court in 2010(Suppl.I) OLR-302, 2009 (Suppl.II) OLR-968, 2006 (Supp.I) OLR-644, and 2006(II) OLR-172.
Learned counsel for the Petitioners in WPC(OAC) No.1709 of 2012 relied on the decisions of the Hon'ble Apex Court reported in (1999) 7 SCC-739, AIR 2001 SC-2398, AIR 2003 SC-1100, (2014) 10 SCC-589, in addition to the decisions relied on by the learned counsel in WPC(OAC) No.1708 of 2012.
3.6. Hon'ble Apex Court in Para-31 of the decision in (1999) 7 SCC-739 has held as follows:-
"31. In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges levelled against him but also at the stage at which those findings are considered by the Disciplinary Authority and the latter, namely, the Disciplinary Authority forms a tenative opinion that it does not agree with the findings recorded by the Enquiry Officer. If the findings recorded by the Enquiry Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary Page 5 of 20 // 6 // to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the Disciplinary Authority has proposed to disagree with the findings of the Enquiry Officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the Disciplinary Authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or Service Rule including Rules made under Article 309 of the Constitution."
3.7. Hon'ble Apex Court in Para-2 of the decision in AIR 2001 SC-2398 has held as follows:-
"2.. Mr. Sundravardan, the learned senior counsel appearing for the State Bank of India contended before us that in the case in hand, in fact, there has been no disagreement with the findings of the enquiring officer by the disciplinary authority, and on the other hand, the disciplinary authority on the accepted findings of the enquiring officer has recorded his conclusion differently on the basis of the relevant provisions of the rules, and therefore the question of giving an opportunity to the delinquent at that stage does not arise. To appreciate this contention, we have been taken through the findings of the enquiring officer and charges 1 (a) and 1(d) as well as the reasonings and ultimate conclusion of the disciplinary authority on those two charges. On examining the same, we are not persuaded to accept the submission of the learned counsel and in our view, the disciplinary authority has disagreed with the conclusion and findings arrived at by the enquiring officer. The next question therefore is, as has been formulated earlier, whether the disciplinary authority was required to record its tentative reasons for disagreement and give to the delinquent officer an opportunity to represent before it recorded its ultimate findings. This question is concluded by a 3-Judge Bench decision of this Court in the case of Punjab National Bank v. Kunj Behari Misra, . The Bench in the aforesaid case relied Page 6 of 20 // 7 // upon the earlier decision in the Institute of Chartered Accountant case as well as the Ram Kishan case and came to hold that the view expressed in S. S. Koshal (1994 AIR SCW 2901) and M. C. Saxena cases do not lay down the correct law. Mr. Sundravardan, however, brought to our notice yet another 3-Judge Bench decision in the case of Union Bank of India v. Vishwa Mohan. , and contended that a different view has been taken in the aforesaid cases. But on examining the aforesaid decision in Union Bank of India case, we find that the question which arose for consideration in the Punjab National Bank case was not really there before the Court and the Court was examining the question as to what would be the effect, if copy of the enquiry report is not furnished to the delinquent employee. The Court obviously relied upon the Constitution Bench decision of this Court in Managing Director, ECIL v. B. Karunakar, . In the absence of any contrary decision of a 3- Judge Bench decision on the question in issue, we are bound by the earlier Judgment of this Court in Punjab National Bank case, necessarily, therefore we do not find any merit in this appeal, which stands dismissed."
3.8. Hon'ble Apex Court in Para-4 to 7 of the decision in AIR 2003 SC-1100 has held as follows:-
"4.When asked, learned senior counsel for the appellants submitted that Regulation 7(2) of the Punjab National Bank Officer Employee' (Discipline and Appeal) Regulations, 1977 referred to in the Punjab National Bank case is para-materia to the Rule 50(3)(ii) of State Bank of India (Supervising Staff) Service Rules governing the facts of the present case with which we are concerned. The contentions advanced by the learned senior counsel for the appellant before us are almost similar to the contentions advanced in the case of Punjab National Bank aforementioned. In the case of Punjab National Bank also similar contentions wore urged that the Punjab National Bank officer Employees' (Discipline and Appeal) Regulations, 1977 did not require that an opportunity of being heard be given to the delinquent officers when the disciplinary authority disagreed with the finding of the enquiring authority; once the enquiring authority had given hearing to them and if the decision was before Ramzan Khan's case, the disciplinary authority was not required to give the copy of the enquiry report to the delinquent officer. In that view, it was not necessary to give a hearing to the case where disciplinary authority differs from the enquiry report. A Bench of learned three Judges in the said case has specifically noticed in paragraph II as to the controversy that was required to be resolved in that case. The controversy in that case also related to the case where the disciplinary authority disagreed with the findings of the enquiring authority and Regulation 7(2) does not expressly state that when the disciplinary authority disagrees with the finding of Page 7 of 20 // 8 // the enquiring authority an opportunity is to be given. After referring to various decisions including the decisions relied on behalf of the Bank, this Court has clearly held that where the disciplinary authority disagrees with the report of the enquiring authority in regard to certain charges, providing of an opportunity is necessary to satisfy the principle of natural justice. Paragraph 19 of the said judgment reads thus:
"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 principle 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."
5. In paragraph 20 thereof, this Court agreeing with the case of Institute of Chartered Accountants of India v. L.K. Ratna, [1986] 4 SCC 537 and Ram Kishan v. Union of India, [1995] 6 SCC 157, specifically stated that the view taken in State Bank of India v. S.S. Koshal, [1994] Supp. 2 SCC 468 and State of Rajasthan v. M.C. Saxena, [1998] 3 SCC 385, did not lay down the correct law. In our view, the controversy that is to be resolved in the present case arose for consideration in the said Punjab National Bank case directly. The said judgement in all force applies to the facts of the present case. The distinction sought to be made on behalf of the appellants taking support from the Constitution Bench judgment of this Court in Mohapatra 's case (supra) does not help them for two reasons: firstly, that was not a case where the controversy that has arisen in this case dealing with specific regulation was directly dealt with. As already stated above, in the case of Punjab National Bank a three Judge Bench of this Court has directly considered the effect of said Regulation, particularly and directly in regard to providing of an opportunity to be read into the Regulation. Secondly, on the facts of the case before the Constitution Bench, this Court found that the direction given by the High Court to reconsider as to the punishment imposed in that case was not correct. The argument that in the case arising prior to Ramzan Khan's case not giving an opportunity by the Page 8 of 20 // 9 // disciplinary authority, would not vitiate the order of dismissal, also does not support the case of the appellants in the light of the fact that in the case of Punjab National Bank also the proceedings related to the period prior to Ramzan Khan case.
6. It was also contended on behalf of the appellants that the High Court committed an error in setting aside the order of dismissal when it was not shown that any prejudice was caused to the respondent by not giving an opportunity to him by the disciplinary authority. In this regard the learned counsel cited a decision of this Court in Union Bank of India v. Vishwa Mohan, [1998] 4 SCC 310. As already noticed above, before the High Court both the parties concentrated only on one point, namely, the effect of not providing an opportunity by the disciplinary authority when the disciplinary authority disagreed with some findings of the enquiry officer. It was also not shown by the appellants before the High Court that no prejudice was caused to the respondent in the absence of providing any opportunity by the disciplinary authority. The aforementioned case of Vishwa Mohan is of no help to the appellants. The learned counsel invited our attention to para 9 of the said judgment. As is evident from the said paragraph this Court having regard to the facts of that case, taking note of the various acts of serious misconduct, found that no prejudice was caused to the delinquent officer. In para 19 of the judgment in Punjab National Bank case, extracted above, when it in clearly stated that the principles of natural justice have to be read into Regulation 7(2) (Rule 50(3)(ii) of State Bank of India (Supervising Staff) Service Rules, is identical in terms applicable to the present case) and the delinquent officer will have to be given an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the Enquiry Officer, we find it difficult to accept the contention advanced on behalf of the appellants that unless it is shown that some prejudice was caused to the respondent, the order of dismissal could not be set aside by the High Court.
7. Therefore, we are in respectful agreement with the decision of this Court in Punjab National Bank's case, being directly on the point. Moreover, in this case the High Court has given liberty to the appellants to proceed the case in accordance with law. Under these circumstances and in view of liberty given, as stated above, we do not find any good reason to upset the impugned order. Consequently, the same is affirmed and the appeal is dismissed with no order as to costs".
3.9. Hon'ble Apex Court in Para-24 to 26 of the decision in (2014) 10 SCC-589 has held as follows:-
Page 9 of 20// 10 // "24. Be that as it may, the question is whether the disciplinary authority could have resorted to such a practice of abandoning the Enquiry already undertaken and resort to appointment of a fresh Enquiring Authority (multi- member).
The issue is not really whether the Enquiring Authority should be a single member or a multi member body, but whether a second inquiry such as the one under challenge is permissible. A Constitution Bench of this Court in K.R. Deb v. The Collector of Central Excise, Shillong, (1971) 2 SCC 102, examined the question in the context of Rule 15(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957. It was a case where an enquiry was ordered against a sub-Inspector, Central Excise (the appellant before this Court). The inquiry officer held that the charge was not proved. Thereafter the disciplinary authority appointed another inquiry officer "to conduct a supplementary open inquiry". Such supplementary inquiry was conducted and a report that there was "no conclusive proof" to "establish the charge" was made. Not satisfied, the disciplinary authority thought it fit that "another inquiry officer should be appointed to inquire afresh into the charge".
25. The Court in K.R. Deb held that: (SCC p.105, paras12-
13) "12. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9.
13. In our view the rules do not contemplate an action such as was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant." (Emphasis supplied) and allowed the appeal of K.R. Deb.
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26. It can be seen from the above that the normal rule is that there can be only one Enquiry. This Court has also recognized the possibility of a further Enquiry in certain circumstances enumerated therein. The decision however makes it clear that the fact that the Report submitted by the Page 10 of 20 // 11 // Enquiring Authority is not acceptable to the disciplinary authority, is not a ground for completely setting aside the enquiry report and ordering a second Enquiry".
4. This Court in Para-7 of the decision in 2010(Suppl.I) OLR-302 has held as follows:-
"7. So, when there is material irregularity, the proceeding can be remitted back to the same Inquiring Officer with a direction to record further evidence and give findings on each charge. There is nothing in the counter affidavit to indicate that the report of the Inquiring Officer in any manner suffers from fundamental procedural error. It is well settled that de novo inquiry cannot be made on if the report does not appeal to the Disciplinary Authority. The Disciplinary Authority while giving direction for a de novo inquiry should satisfy itself that there is fundamental procedural error".
4.1. Similarly, in Para-12, 14 & 20 of the decision in 2009 (Suppl.II) OLR-968, this Court has held as follows:-
"12. The question which falls for determination is whether the Disciplinary Authority, while disagreeing with the findings of the Enquiring Officer and not accepting the enquiry report in a disciplinary proceeding, can order for re- enquiry, without assigning any reasons and opportunity of hearing to the delinquent officer, under the provisions of C.C.A. Rules.
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14. On a perusal of the order of the Disciplinary Authority dated 15.01.2017, as quoted above, it is seen that no reason for disagreement with the findings of the Enquiring Officer has been recorded by the Disciplinary Authority, while directing re-enquiry into the charges. Further, no opportunity of hearing has been afforded to the petitioner (delinquent officer) by the Disciplinary Authority, while recording its disagreement with the conclusion of the Enquiring Officer.
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20. In the instant case, the Disciplinary Authority after a lapse of about five years, has decided to disagree with the findings of the enquiry Officer and has remitted the matter again to the Enquiry Officer for re-enquiry which implies that the enquiry report and proceedings have been set aside. The Tribunal has found that there is no material irregularity per se in the enquiry report and has held that there is nothing in the CCA Rules which empowers the Disciplinary Authority to Page 11 of 20 // 12 // direct re-enquiry. We are of the considered view that the Disciplinary Authority in the circumstances, when there is no procedural irregularity in the enquiry proceeding and in absence of any provision in the CCA Rules, cannot direct for re-enquiry. In the instant case, the Disciplinary Authority has not recorded any procedural irregularity committed by the Enquiring Officer in the conduct of the enquiry. Once the evidence was adduced and documents were filed in the enquiry proceedings, in support of the pleadings of the parties, the Disciplinary Authority has no jurisdiction to direct for de-novo enquiry. It was open for the Disciplinary Authority ether to agree or disagree with the findings recorded in the enquiry report and it was incumbent upon the Disciplinary Authority to give opportunity of haring to the petitioner (delinquent officer), if the said authority desired to differ with the favorable finding recorded by the Enquiring Officer. Directing for conduct of re-enquiry would amount to recording of fresh evidence and ignoring the earlier evidence, which would not be proper and justified, as by this way the Disciplinary Authority cannot be provided with a chance to fill up the lacunae in the garb of recording fresh evidence".
4.2. This Court in Para-17 to 24 of the decision in 2006 (Supp.I) OLR-644 has held as follows:-
"17. We have perused the inquiry report and found that there is no whisper therein regarding recording of any evidence. It appears that the Inquiring Officer / C.D.I has only considered the contents of charge sheet and its reply. The explanation submitted by the petitioner supported by some documents was accepted by him and he submitted his report accordingly. Therefore, the punishing authority has no other option than either to accept the Inquiry report or to reject the same and pass an order of de novo enquiry. It could not have formed its opinion beyond the record of inquiry proceeding. Therefore, in our opinion, in the instant case the first vital question involved is whether it was proper on the part of the punishing authority to disagree with the findings of the Inquiring Officer without giving any reason and whether the petitioner could be held guilty in the absence of any material evidence in the inquiry proceeding. We have already quoted the relevant part of the orders passed by the punishing authority and the recommendation made by the Public Service Commission.
18. No doubt, a Commission of Inquiry was set up by the State Government, but the punishment was not based solely and directly on the basis of the report of the Commission of Inquiry. It was based on the departmental proceeding conducted by the Inquiry Officer/ C.D.I. When the State Government received the inquiry report in the Disciplinary proceeding, they had decided to accept the same. But when the P.S.C sent a different recommendation, the Government Page 12 of 20 // 13 // changed its view, and decided to impose major penalty, i.e., reduction in rank and treatment of period of suspension as such. However, no reason was given by the State Government for doing so. Merely taking a decision to accept the advice of the Commission regarding imposition of major punishment upon the petitioner could not have relieved the State Government from its responsibility of giving reasons for doing so, i.e., for disagreement with the finding of the Inquiring Officer. Besides the above, there is specific provisions in Rule 15(10)(i)(a)(b) of OCS (CCA) Rules, 1962. According to the said Rule, it is mandatory on the part of the Punishing Authority to give reason in case of disagreement with the inquiry report. The said provision is quoted hereinafter.
"15.(10)(i)(a)(b) if the inquiry officer is not the disciplinary authority, the disciplinary authority shall furnish to the delinquent Government servant a copy of the report of the Inquiring Officer and given him notice by registered post or otherwise calling upon him to submit within period of fifteen days such representation as he may wish to make against findings of the Inquiring Authority.
(b) On receipt of the representation referred to in Sub-
clause (a) the disciplinary authority having regard to the findings on the charges is of the opinion that nay of the penalties specified in Clauses (vi) to (ix) of Rule 13 should be imposed, he shall furnish to the delinquent Government servant a statement of its finding along with brief reasons for disagreement, if any, with the findings of the inquiring officer and give him a notice by Registered Post or otherwise stating the penalty proposed to be imposed on him and calling upon him to submit within a specified time such representations as he may wish to make against the proposed penalty;
Provided that in every case in which it is necessary to consult the Commission under the provision of the Constitution of India and the Orissa Public Service Commission (Limitation of Functions) Regulation, 1989 the record of Inquiry together with a copy of the notice given under Sub-Clause(a) and the representation if any, received within the specified time in response to such notice shall be forwarded by the disciplinary authority to the Commission for its advise".
19. In the instant case, although the Inquiring Officer/C.D.I. did not find the petitioner guilty and specifically held that the charges framed against the petitioner were not provided, but the punishing authority has taken a view contrary to the findings of the Inquiring Officer that the charges leveled against the petitioner were provided. Therefore, it cannot be said that the punishing authority did not disagree with the inquiry report. It was the own suggestion of the Inquiring Officer, which was beyond the findings that the petitioner did not take extra care and, on the basis, Page 13 of 20 // 14 // recommended the punishment of censure, which was a minor punishment. On the basis of such recommendation, inference could not have been drawn that the conclusion of the Inquiring Officer was that the charges were provided against delinquent officer and as such the same was not in fact a disagreement with the finding of the Inquiring Officer by the punishing authority in imposing major punishment by the impugned order.
20. In the case of Joginath D. Badge v. State of Maharashtra and another reported in (1997) 7 Supreme Court Cases 739 the Apex Court held that:-
"it was open to the disciplinary authority either to agree with the findings recorded by the enquiring authority or disagree with those findings. If it does not agree with the findings of the enquiring authority, it may record its own findings. Where the enquiring authority has found the delinquent officer guilty of the charges framed against him and the disciplinary authority agrees with those findings, there would rise no difficulty. So also if the enquiring authority disagrees and records a finding that the charges were not established, there would arise no difficulty. Difficulties have arisen in all those cases in which the enquiring authority has recorded a positive findings that the charges were not established and the delinquent officer was recommended to be exonerated, but the disciplinary authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officers was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent office at that stage. Such an opportunity may either be provided specifically by the rules made under Article 309 of the Constitution or the disciplinary authority may of its own, provide such an opportunity. Where the rules are in this regard silent and the disciplinary authority also does not give an opportunity of hearing to the delinquent officer and records findings different from those of the enquiring authority that the charges were established, "an opportunity of hearing" may have to be read into the rule by which the procedure for dealing with the enquiring authority's report is provided principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be "not guilty" by the enquiring authority, is found "guilty without being afforded a opportunity of hearing on the basis of the same evidence and material on which a finding of "not guilty" has already been record".
21. In the case of State of Rajasthan v. M.C. Saxena reported in A.I.R. 1998 S.C.1150, the Apex Court has laid down that if the Disciplinary Authority gives reasons for Page 14 of 20 // 15 // disagreeing with the findings of the Inquiring Officer then the Court cannot interfere with those findings unless it comes to the conclusion that no reasonable man can come to the said finding.
22. If in the above-mentioned circumstances, the punishing authority has not given any reason for his disagreement with the finding recorded by the Inquiring Officer, it cannot be said that the petitioner has been afforded an adequate opportunity of hearing, as he was not in a position to explain his case in his representation. Therefore it can be said without any hesitation the adequate opportunity of hearing was not afforded to the petitioner to defend his case and the impugned punishment order has been passed in violated of principles of natural justice.
23. In view of the above mentioned facts and circumstances, we are of the firm view that the impugned order of punishment reducing the petitioner in rank from the post of Excise Superintendent to those post of Deputy Superintendent of Excise is not sustainable in the eye of law and the Tribunal has committed manifest error of law in dismissing the O.A
24. Therefore the writ petition is allowed in part and the impugned order of punishment as well as the impugned order passed by the Tribunal in O.A NO.973(C) of 2005 confirming the punishment of reduction in rank are quashed. However, it will be open for the punishing authority to reconsider the matter in the light of the observation made in the body of this judgment, in accordance with law".
4.3. This Court in Para-4 & 6 of the case in 2006(II) OLR-
172 has held as follows:-
"4. We have gone through the impugned judgment of the Tribunal, judgment passed in the earlier O.A., inquiry report and the rules governing the field. Sub-rule-10(ii) of Rule-15, non-compliance of which is alleged by the petitioner, reads as under:
" The orders passed by the disciplinary authority shall be communicated to the Government servant, who shall also be supplied with a copy of the report of inquiring authority and where the disciplinary authority is not the inquiring authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the inquiring authority as well as a copy of the advice of the Commission, where the Commission had been consulted, and brief statement of reasons for non- acceptance of the advice of the Commission, if the disciplinary authority has not accepted such advice".Page 15 of 20
// 16 // On perusal of the aforesaid provision, it would be manifest that the Disciplinary Authority shall communicate the delinquent officer a copy of the report of the inquiring authority, the statement of findings together with the reasons for disagreement, if any, with the findings of the inquiry authority. But in the instant case, after the Tribunal's judgment in the earlier O.A., the petitioner submitted his interim comments on 28.07.1997. He was asked to furnish his final comments, if any, vide letter dated 01.11.1997 and he submitted his final comments on 24.12.1997. Thereafter, the punishment order was passed on 19.01.1999 withholding three consecutive increments with cumulative effect. It is worthwhile to mention that in the letter dated 01.11.1997, by which the petitioner was asked to submit his final comments; no reason was ascribed with regard to disagreement from the findings of the Inquiry Officer. Only he was asked to furnish his final comments".
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6. Admittedly, in the case at hand, the Disciplinary Authority disagreed with the findings of the inquiry authority. But at no point of time, the Petitioner was made to know about the reasons for such disagreement. He was also never asked to submit his reply to the proposed disagreement by the disciplinary authority. In other words, the disciplinary authority has taken a final decision that the charges leveled against the petitioner have been proved. The petitioner was only asked to show cause against the punishment, not against the proposed disagreement. The Tribunal has lost sight of the aforesaid fact. Since the disciplinary authority did not give any opportunity of hearing to the petitioner before taking final decision in the matter relating to the disagreement, there has been violation of principle of natural justice. In our considered opinion, the ratio decided in Bagde (supra) is squarely applicable to the present case".
4.4. Making all such submission and relying on the aforesaid decisions, learned counsels appearing for the Petitioners contended that the impugned order passed by Opposite Party No.1 in appointing fresh enquiry officer to enquire into the charges is not sustainable in the eye of law and requires interference of this Court.
4.5. It is also contended that during pendency of the matter before this Court and during subsistence of the Page 16 of 20 // 17 // interim order so passed by the Tribunal, both the Petitioners have retired from their services on attaining the age of superannuation and they will be seriously prejudiced, if the order impugned is not interfered with by this Court.
5. Mr. H.K. Panigrahi, learned Addl. Standing Counsel on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that taking into account the charges framed against the Petitioner with regard to allegation of sexual harassment, Opposite Party No.1 when was not satisfied with the finding of the enquiry report so submitted by the Enquiry Officer on 16.11.2010, the order impugned was passed by appointing a fresh Enquiry Officer to inquire into the charge afresh and to submit the report within a stipulated time.
5.1. It is contended that the Disciplinary Authority, Opposite Party No.1 is competent to go for fresh enquiry with appointment of fresh Enquiry Officer if not satisfied with the finding of the report so submitted by the earlier Enquiry Officer. Such an order was passed by Opposite Party No.1 to go for fresh enquiry with due approval of the Government.
Page 17 of 20// 18 // 5.2. It is also contended that during pendency of the matter, both the Petitioners were reinstated in their services pending such re-enquiry and finalization of the proceeding vide order dated 23.10.2013.
5.3. It is accordingly contended that in view of the interim order passed by the Tribunal, no fresh enquiry could be conducted and taking advantage of such interim order, both the Petitioners have retired from their services on attainting the age of superannuation in the meantime. If this Court will permit the Opposite Parties to conduct the enquiry so directed vide order dated 01.05.2012, under Annexure-16 & 18, then the proceeding will be finalized within the time to be fixed by this Court.
6. I have heard Mr.P.K. Mishra, learned counsel along with Mr. S.N. Biswal, learned counsel for the Petitioners and Mr.H.K. Panigrahi, learned Addl. Standing Counsel for the State-Opposite Parties. On their consent, these matters were taken up for final disposal at the stage of admission.
7. Having heard learned counsel for the Parties and after going through the materials available on record, it is found that after initiation of the proceeding against both the Petitioners vide Memorandum dtd.21.04.2008, the Page 18 of 20 // 19 // Petitioners not only submitted their written statement of defence, but also participated in the enquiry. The Enquiry Officer as found from the record after conducting a thorough enquiry by taking evidence of the witnesses submitted the report on 16.11.2010 under Annexure-10 &
12. In the said report, while Enquiry Officer opined to exonerate the Petitioner in WPC(OAC) No.1708 of 2012 from the charges, opined to impose punishment of stoppage of increment only against the Petitioner in WPC(OAC) No.1709 of 2012 and not to impose any major penalty.
7.1. It is also found from the record that after receipt of the enquiry report, Opposite Party No.1 issued the 1st show cause as provided under Rule-15 of the OCS(CC&A), Rules, 1962. On receipt of such show cause along with the enquiry report both the Petitioners submitted their replies on 25.10.2011. Thereafter, without assigning cogent reason and only on the ground that the Disciplinary Authority is not satisfied with the finding of the Enquiry Officer passed the impugned order on 01.05.2012 under Annexure-16 & 18 by appointing a fresh Enquiry Officer to enquire into the charges.
Page 19 of 20// 20 // 7.2. This Court taking into account the fact that during subsistence of the interim order both the Petitioners were not only reinstated in their services but also allowed to retire on attainting the age of superannuation, placing reliance on the decisions of the Hon'ble Apex Court as cited (supra), this Court is inclined to quash the order dated 01.05.2012 so available under Annexures-16 & 18 in both the cases. While quashing the order dated 01.05.2012, this Court directs Opposite Party No.1 to conclude the proceeding basing on the enquiry report submitted by the earlier enquiry officer on 16.11.2010 under Annexure-10 and 12 in accordance with law within a period of six months from the date of receipt of this order, if there is no other legal impediment.
8. With the aforesaid observations and directions, both the Writ Petitions stands disposed of.
(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 29th of August, 2023/Subrat (Sr. Steno) Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Jan-2024 16:02:34 Page 20 of 20