Orissa High Court
Sri Dillip Kumar Roy vs Hon'Ble Chief Justice And Others on 27 June, 2001
Author: P.K. Mohanty
Bench: P.K. Mohanty
JUDGMENT P.K. Mohanty, J.
1. The petitioner assails the order of his removal from service (Annexure - 18) and the order of the Appellate Authority rejecting his appeal (Annexure-22) as illegal and unconstitutional. The further prayer of the petitioner is for quashing the disciplinary proceeding (Annesure-2) and for a declaration that the initiation and continuance of Departmental Proceeding No. 5 of 1989 as illegal and unconstitutional and for a consequential relief, directing the opp. parties to deem the petitioner as continuing in service, with consequential service benefits.
2. The petitioner's case in brief is that while working as a Court officer in the establishment: of this Court, he was placed under suspension by order dated 17-9-1989, a copy of which is Annexure-1. The charges against him were communicated by the Registrar (Judl.) on 21-12-1939 under Annexure-2. The petitioner made an application to the Disciplinary Authority for supply of the required documents by letter dated 26-12-1989 (Annexure-3). The Special Officer (Admn.) by letter dated 20-6-1990 (Annexure-4) supplied certain documents, but some of the vital documents were not supplied on the ground of its nonavailability. The petitioner, in his application dated 21-9-1990 (Annexure-5), asked for certain documents as they were vitally required and relevant for the purpose filing the show cause. But without giving any reply, the Enquiring Officer was1 appointed, the enquiry continued and the disciplinary proceeding ended by inflicting punishment of removal from service. The petitioner preferred an appeal before Hon'ble the Chief Justice but that was Dismissed. Being aggrieved, the petitioner filed a writ petition bearing O. J. C. No. 6087 of 1992, which was allowed by the Court quashing the order of punishment and the order of Appellate Authority upholding the order of the Disciplinary Authority. But in view of the gravity of the charges, the High Court remanded the Disciplinary proceeding to the stage of enquiry and the matter was to be enquired into afresh after supplying the documents mentioned in Item Nos. 4, 5, 7, 8, 11 and 12 under Annexure 6 to the petition within three weeks from the date of receipt of the order. The petitioner was also directed to be continued under suspension in view of Rule 12(4) of the Orissa Civil Services (Classification, Control and Appeal) Rules.
3. The petitioner alleges that in spi'te of the order of the Court to supply the documents as aforesaid, the: Registrar (Judicial) by his letter dated 1-10-1993, a copy of which is Annex-ure-28, sent incomplete copies of the documents at Sl. Nos. 7,8,11 and 12 only and did not supply the documents at Sl. Nos. 4 and 5 of Annexure-6 to the aforesaid writ application, on the ground that those two documents were not available in the office. The petitioner submitted a representation dated 5-10-1993 indicating therein that the documents as per the direction in the judgment have not been supplied, but no action was taken by the authorities. Non-supply of documents or supply of the incomplete documents, according to the petitioner, has seriously prejudiced his case and he was prevented thereby from filing a proper reply to the notice of show cause. The petitioner however submitted his explanation as in Annexure-7 without waiting for reply. It is the further allegation that during the course of enquiry also the petitioner applied for issuing summons to some relevant and material witnesses and engagement of a counsel, but it was rejeceted illegally. It is further alleged that the petitioner again submitted a representation on 4-11-1994 for review of the order rejecting his earlier application, but the enquiry was concluded finding the petitioner guilty and ultimately the disciplinary authority inflicted the punishment of removal from service under Rule 8(g) of the Orissa High Court (Conditions of Service of Staff) Rules, 1963, a copy of which is Annexure-8. An appeal was preferred under the Rules to the Hon'ble Chief Justice but that was rejected by order dated 9-10-1996 and communicated to the petitioner vide Annexute-22 to the writ application. Hence the present writ application challenging the orders.
4. The Registrar (Judicial) of the Court (opp. party No. 2) has filed a comprehensive counter affidavit controverting and denying the allegations of non-supply of the documents in terms of the order of the earlier writ application. It is his specific stand that all the available documents in terms of the direction were supplied to the petitioner under letter No. 17507 dated 1-10-1993. It is stated that copies of documents at serial Nos. 7,8, 11 and 12 of Annexure-6 to the earlier writ application were supplied, but due to non-availability and non-existence, the documents at serial Nos. 4 and 5 thereof, could not be supplied. With regard to the allegation of part or incomplete documents supplied to the petitioner it has been stated that the documents at-serial No. 7 contained only 13 sheets but inadvertently due to typographical mistake, it was written in the official record as 14 sheets, which is taken advantage of by the petitioner. But since the documents contained only 13 sheets, mention of 14 sheets in the forwarding report does not make the documents incomplete. So far as the documents at serial 8 is concerned, it is stated that the entire and complete documents were supplied, but the petitioner's grievance that the order of the competent authority was not supplied, is a myth, since no such order of the competent authority did exist on the representation of the petitioner at serial 8. The representation of the petitioner was received by the Assistant Registrar and he in turn endorsed it to the Superintendent and the endorsement was made on the body of the representation and no further order or endorsement being made on his representation, the question of supplying the same did not arise. Similarly, it is stated that the documents at serial 11 relates to Standing Order/Duty Chart of the Court Officer for different periods and accordingly, all standing orders bearing No. 2 of 1975, 3 of 1977 and 4 of 1977 along with the order dated 5-9-1989 prescribing the duty of the Court Officer had been supplied and nothing was withheld. Inasmuch as, the petitioner having not specified any particular duty chart, which has not been supplied, the bald allegation of non-supply is with the purpose of making out a case only. In regard to the last item of documents at serial 12, the purported voucher of one Bipin Kumar Mallik, Mulia, it is stated that no such voucher was available nor that was an issue or relied upon by the Department for establishing any of the charges of the petitioner and therefore, the question of prejudice does not arise. The voucher relied upon by the Disciplinary Authority was supplied to the petitioner, as would be apparent from his admission. This opposite party has taken a stand that the alleged documents at serial Nos. 4 and 5 are non-existing documents to the knowledge of the petitioner and therefore there was no question of supply or non-supply of the same, It is alleged that the petitioner fully well knew that no such document had ever existed, but want of non-existing documents obviously purports for making out a case and for dragging the proceeding. It is stated that in any event, non-supply of non-existing and non-available documents would in no way prejudice the petitioner and the demand for supply of some documents other than those directed by the Court is a deliberate attempt to prolong the proceeding only.
5. The main thrust of argument of Dr. M. R. Panda, learned counsel for the petitioner is that thedisciplinary proceeding against the petitioner having been concluded in gross violation of the principle of natural justice and in violation of the order of the Court in not supplying the necessary documents, the findings recorded by the Enquiring Officer, the decision of the Disciplinary Authority in imposing the major penalty of removal from service and the rejection of his appeal by the Appellate Authority are all vitiated in law and liable to be quashed. It is further submitted that the denial of assistance of a legal practitioner on the ground that the charge is simple and at fag end cannot be sustained is illegal, since the petitioner felt need of assistance of a legal practitioner as the charges are series and a large number of documents and the statements are to be studied, inasmuch as, the petitioner being suspended from 1989, he bad no means to engage a counsel for the entire proceeding, but that cannot be a ground to reject the prayer for engagement of a counsel and as such, the rejection percolated to the root of the validity of the proceeding. Learned counsel further submitted that the statutory rules having been framed with regard to the summoning of witnesses, the documents produced and relied upon by the department were to be reviewed through examination of concerned officers as witnesses, because the officers were all of the rank of Registrar, Deputy Registrar and Asst. Registrar, and the prayer cannot he refused, inasmuch as the significance and relevance of examination of such witnesses cannot be ignored. The refusal of issuing summons to the witnesses on behalf of the petitioner is on irrelevant and extraneous consideration, which vitiates the proceeding and as such should be quashed. 6, Sri Bijan Ray, learned Senior Counsel appearing for the opposite parties however submitted that all the documents in terms of the direction of the Court in the earlier writ application available with the opposite party and in existence have been supplied to the petitioner, but on some plea or other, the petitioner had been harping on the point of non-supply of documents, which are non-existent to the knowledge of the petitioner as indicated in the counter affidavit. It is submitted that copies of the complete documents at serial Nos. 7, 8, 11 and 12 have been supplied to the petitioner, but so far as the order of the competent authority on the representation of the petitioner at serial Nos. 4 and 5 of the documents sought for being non-existent, the main representation with the endorsement of the Asst. Registrar has been supplied and therefore, it cannot be contended that the documents were not supplied to the petitioner and it caused prejudice to him in submitting his reply to the show cause, Sri Ray, learned Senior Advocate submitted that the Court while exercising power under Article 226 of the Constitution would not interfere in the decision of the disciplinary authority, on the ground of non-supply of any document or non-production of any document pursuant to the direction inasmuch as the order of punishment should not be interfered with unless definite prejudice it caused to and shown by the petitioner. Sri Ray, however, submitted that the petitioner having participated in the proceeding and effectively taken part and cross-examined the witnesses elaborately, the prayer for engagement of a counsel after the department had already closed the evidence could not be allowed inasmuch as it was a clever ruse to drag on the proceeding to make out a case for reopening the proceeding, inasmuch as, the petitioner's application for summoning the official witnesses like Registrar, Deputy Registrar and Special Officer has rightly been rejected by the Enquiring Officer, he having found that summoning of such witnesses was not necessary for proving the case of the petitioner, but however, the Enquiring Officer having allowed the petitioner to examine three witnesses and the petitioner having not produced or examined any, it is not open to him to claim prejudice or assail the order refusing to summon some witnesses.
7. In view of the pleadings and the submissions made at the Bar, the main question that arises for consideration is as to whether the documents in terms of the direction of the Court in the earlier writ application were supplied to the petitioner and as to whether, because of non-supply of any document, the petitioner was prejudiced and could not file effective defence in the enquiry, which vitiates the proceedings. Opp. party No. 2 in his counter affidavit has made specific averment that the allegation of non-supply of documents is false, inasmuch as, all the available documents have been supplied under letter No.17507 dated 1-10-1993. The documents in question are at 4,5,7,8, 11 and 12 of Annexure-6. Let us now consider the documents sought for by the petitioner and what was supplied to him. In letter dated 5-10-1993, a copy of which is Annexure-6, on receipt of the documents vide letter No.17507 dated 1-10-1993, the petitioner wrote to the. Registrar (Judicial) of this Court that on perusal and scrutiny of the copies of the documents supplied to him under the aforementioned letter, it appears to be incomplete. The petitioner gave a schedule mentioning the documents sought for, the documents actually supplied and his remarks thereon which may be quoted hereunder :
Sl. No. of written requisition.
Specification of the documents has to supply according to the direction of the Hon'hle Court dt. 31-8-1993.
The copies of documents actually supplied on 2-10-93.
Remarks 1 2 3 4 7 Charge-list from 21-8.89 and onwards on files and Service Books etc made available to Sri P. Swain Superintendent, containing 14 sheets.
videSl, No, 1 of the charge,list dt. 25-9-89 prepared at the time of making over charge.
13 (thirteen) sheets Supplied.
8. Orders of competent Authority on my note dated 15-9-89, on supply of screens to the residential quarter of Hon'ble Mr. Justice J. Das.
The copy of requi-supplied, Private of sition of Secretary for supply of six window screens along with note sheet submitted by the Superintendent, Store & Purchase section was supplied with the charge sheet. These documents are only again supplied but the copy of the order of competent Authority passed on my note dtd. 15-9-89 not supplied.
Order Competent Authority not supplied
11. Duty chart of the Court Officer from 1972 to March, 1986 and 1986 to 1989.
The copies of the Standing Orders No.2/75, 3/77, 4/77 have been supplied which reflect of or two items of works assigned to the Court Officer. The copy of office Order No. 7740 dt. 5-9-89 has been supplied now for the second time.
Practically not supplied The complete duty chart of the year 1972 to March, 1986 and the duty chart prevalent for 1986 onwards not supplied
12. The relative voucher ranging from 20-10-87 to 22-10-87 mentioned in the photo copy of my personal diary supplied to me with the articles of charges regarding absence or otherwise of SriBipin Kumar Mallick.
The voucher copy of Sri Naba Kishore,. Beheta has been supplied.
Sri Bipin Kumar Mallick' actually not supplied.
7. The petitioner submitted his show cause on 18-10-1993. a copy of which is Annexure-7 to the writ application. In the said show cause, however, the petitioner at para-5 thereof reiterated that except item No. 7 of his requisition, which was incomplete, no other documents have been supplied nor he has been permitted to inspect the documents in Item No. 9 and that has caused prejudice to his case and it vitiates the proceeding. The Enquiring Officer, in his report dated 17-11-1994, a copy of which is Annexure-15 at Para-59 thereof has dealt with the non-supply of the documents as alleged by the petitioner and found that the disciplinary authority had supplied the documents mentioned at Sl. Nos. 7, 8, 11 and 12. but so far as the documents in SI. Nos. 4 and 5 are concerned, it was'non-existent, But however, at tbe time of hearing, the delinquent officer again filed petition on 5-9-1994 enclosing xerox copy of his representation dated 16 8-1989 with a request to direct the Marshalling Officer to supply the documents. The relevant file was called for and produced before the Enquiring Officer. On verification of that file, the Enquiring Officer found that the representation of the delinquent officer was received by the Asst. Registrar of the Court on 17-9-1989 on which date, the delinquent officer was placed under suspension and as such, no order has been passed by the office or by the Disciplinary Authority on the representation dated 16-9-1989 of the delinquent officer. The petitioner prayed before the Enquiring Officer to supply him the order passed by the Registrar (Judl.) on his note dated 16-9-1989, the document as at serial 5 of the list. The Enquiring Officer found on perusal of the records that in fact no order has been passed on the representation since the delinquent officer was placed under suspension on the very same day. On scrutiny of papers, it appears that the document sought for at serial No. 7, i. e. the charge-list from 21-8-89 onwards on files and service book etc. made over to Sri P. Swain, Superintendent, containing charge-list dated. 25-9-89 prepared at the time of handing over charge was supplied to the petitioner, but according to the petitioner, instead of 14 sheets as indicated in the forwarding letter, he received 13 sheets. The explanation of the opp party is that even though the entire documents containing., 13 sheets only were supplied, in the forwarding letter, the number of sheets was mentioned by mistake and due to typographical error as 14 and in that view of the matter, the petitioner cannot contend that incomplete papers were supplied. Thus, the allegation that he was supplied incomplete document at serial 7 has to be rejected. With regard to serial No. 8 of the document, the petitioner- sought for order of competent authority on his note dated 15-9-1989 on supply of screens to the residential quarters of Hon'ble Mr. Justice). Das. The petitioner acknowledged in his letter under Annexure-6 that the documents were received, but the order of the competent authority passed on his note dated 15-9-1989 was not supplied, as would be evident from records and as indicated in the Enquiry Report. The representation was received by the Assistant Registrar on 17-9-1989, on which date, the petitioner was placed under suspension and no order has been passed by the office or by the competent authority. In that view of the matter, the representation of the petitioner being to supply the documents, which contain no order of the competent authority, the question of supplying the copy of the representation with some order, which were never passed and are non-existent, did not arise. The said document has b,een exhibited as Ext. C in the Departmental proceeding. SI. No. 11 of the documents sought for, was the duty chart of the Court Officer from 1972 to 1986 and 1986 to 1989. The petitioner, as revealed from his letter dated 5-10-93 (Annexure-6), admitted to have received copies of the Standing Orders No. 2 of 1975, 3 of 1977, 4 of 1977 and Ordet No. 7740 dated 5-9-1989, but he has complained that the complete duty char thas not been supplied. The petitioner does not indicate as to which relevant duty chart according to him was not supplied, inasmuch as, if the duty chart as were available including the order No. 7740 dated 5-9-1989, the last one prior to the petitioner's suspension was made available to him, the complaint regarding non-receipt of the complete document was not available to be made nor it is tenable, since .what was the duty chart of the Court Officer from 1972 to 1986 and 1986 to 1989 were supplied to him. The last item of document is item No, 12. The petitioner called for the relevant voucher from 20-10-1987 to 22-10-1987 mentioned in the photo copy of his personal diary supplied to him with the articles of, charges regarding absence or otherwise of Sri Bipin Kumar Mallick. The specific stand of the Disciplinary Authority is that no voucher of Bipin KumarMallickwas available pn record, but all relevant vouchers were supplied Admittedly, the voucher copy of Sri Naba Kishore Behera was supplied and the charge is with regard to Sri Behera. The Disciplinary Authority also did not rely on any voucher of said Bipin Kumar Mallick but on other vouchers as were available and therefore the allegation of the petitioner that he was not supplied with the said voucher in respect of Bipin Kumar Mallick, which is nonexistent is of no consequence. Even otherwise also, since according to the opp. parties,' there was no Mulia in the name of Bipin Bihari Mallick working, the question of supplying a voucher regarding payment made to him, does not arise. In view of the discussions made, it is patently clear that even though "the petitioner was supplied with all relevant and existing documents, and/or orders in terms of the order of this Court in earlier writ application, he has been making complaints that the documents have not been supplied to him. Factually therefore, the contention of the petitioner that because of the non-supply of the documents, he was prejudiced and could not file an effective reply to the show cause does not stand to reason and are frivolous. The petitioner also has not made out a case as to how he was prejudiced by non-supply of the alleged (assumed orders) documents.
8. At this stage the gist of charges as against the petitioner may be relevant to note. The petitioner was charged for :
(i) Intentional disregard of Acting Chief Justice's order dated 17-8-1989;
(ii) Submission of false report to Justice J, Das, (iii) During 1986-87 prepared false Mulia vouchers in the names of Naba Kisbore Behera, Gobinda Samal and Narayan Samal and thereby he was illegally benefited therefrom,
(iv) Carried on money lending business without permission from the appropriate authority,
(v) Acquiring valuable assets without permission and without submitting the declaration of the property of his own.
All the aforesaid charges were found proved by the Enquiring Officer on consideration of and on detail analysis of the material placed.
9. The learned counsel for the petitioner argued that the opp. parties have taken pre-varjcating stand at some points of time that all the documents have been supplied and at some point of time that the documents were not available and non-existent. In view of the discussions made earlier in details, and revealed from the perusal of the records of the disciplinary proceeding that the purported documents (orders) said to have been passed on the representation/note of the petitioner at serial Nos. 4 and 5 are with regard to assumed orders passed by the authorities and not any particular document or orders, as it is. The original records reveal that on the representation of the petitioner dated 16-9-1989 on which the petitioner alleges that some orders were passed, in fact, no orders have been passed as alleged and therefore the document i.e. the representation of the petitioner having been produced before the Disciplinary Authority which did not contain assumed orders, question of non-supply of such non-existent orders would not amount to non-supply of a document as alleged. It is also relevant to note that the day the representation was made over to the Assistant Registrar, he had made the endorsement on the representation itself referring it to the Superintendent of the Section and on the very day, the petitioner was put under suspension by a different order. Similarly, so far as Mulia voucher in the name of one Bipin Bihari Mallick is concerned, it is to be noted that the petitioner was admittedly alleged of preparing false voucher in the names of one Naba Kishore Behera, Narayan Samal and Gobinda Samal, whose vouchers along with vouchers in respect of other such Mulias were undisputedly supplied to him. In addition, Sri Naba Kishore Behera and Narayan Samal, who were working as Mulias were also examined as departmental witnesses No. 6 and 8 respectively. The Enquiring Officer had not relied on the voucher of any person named Bipin Bihari Mallick and it is the case of the opp. parties that no voucher in respect of Bipin Bihari Mallick was available on records since he was not working as a Mulia.
10. Law is well settled that the theory of reasonable opportunity and principle of natural justice is for the purpose of upholding the rule of law and to assist the individual to vindicate his just rights. Whether, in fact prejudice has been caused to the employee or not on account of denial to him of the purported documents has to be considered on the facts and circumstances of each case. In a case, after furnishing the documents, if no different consequence would have followed, then it would not be in the interest of justice to unsettle the decision and allow/ permit the employee to resume duties, rather it would amount to reward dishonest and the guilty and thus stretching the concept of justice to illogical and exasperating limits. In this context, Sri Ray, learned senior counsel for the opp. parties has referred to the decision of the Apex Court in State Bank of Patiala and others v. S.K. Sharma, A.I R. 1996 Supreme Coutt 1669. A reference may also be made to the decision in State of of Uttar Pradesh v. Harendra Arora and another, 2001 A. I. R. S.C.W. 2029, wherein the Apex Court was considering the effect of non-supply of the enquiry report to the delinquent employee, though obligatory on employer under Rule 55-A of the relevant Rule; The Apex Court considering several of its earlier decisions have held chat even though provision of Rule 55-A of the Rules for furnishing copy of enquiry report is procedural one and of a mandatory character, a delinquent has to show that he has been prejudiced by its non-observance. An order passed in a disciplinary proceeding cannot ipso facto be quashed merely because a copy of enquiry report has not been furnished to the delinquent officer, but he, the delinquent officer, is obliged to show that by non-furnishing of such a report he has been prejudiced, would apply even to cases where there is requirement of furnishing copy of enquiry report under the statutory provisions and/or service rules. The Apex Court in the case under reference on facts found that the respondent's stand being not that in absence of an enquiry report he could not submit an effective show cause before the order of dismissal was passed, no interference was called for. In the present case, it has been factually found by the Enquiring Officer, to which view we subscribe that the petitioner was supplied with the documents called for and as were directed to be supplied in the earlier writ petition which were sufficient to file his defence, the claim that he was either prejudiced or that the enquiry was vitiated is thoroughly frivolous and misconceived, inasmuch as the authority in no stretch of imagination can be compelled to produce any assumed order, which is non-existent and/or were never passed. It is contended that rejection of the petitioner's prayer dated 28-10-1994 and 4-11-1994 to summon the witnesses as per the list given therein has resulted in violation of the Rules of natural justice and the petitioner is seriously prejudiced. It appears that the application dated 28-10-1994 of the petitioner was for summoning (1) Sri P, K. Panigrahi, former Registrar (Admn.), (2) Sri P. C. Patro, former Registrar (Judl.), who was the Disciplinary Authority, (3) Sri S. F, Ahmed, former Deputy Registrar (Judl. & Estt.). (4) Sri M. P. Mishra, former Deputy Registrar (Judl. & Estt.), (5) Sri B. K. Mishra, former Deputy Registrar (Admn. & Prot.), (6) Sri Debraj Rout, (7) Sri S. P. Sarangi, (8) Sri H. Satpathy, (9) Smt. Basanti Dcvi, former Assistant Registrars, (10) Sri MR. Mohanty, former Deputy Registrar (Judl. & Estt.), (11) Sti P. C. Mohanty former Asst. Registrar (Estt.), (12) Sri S. K. Mohanty, former Asst. Registrar (Estt.), (13J Sri Ajaya Kumar Mohanty, Asst. Court Officer, (14) Sri R. Parija, Cashier of the Court, (15) Sri S, C. Bala, Inspector of Vigilance and (16.) Sri J. M. Pattnaik, Marshalling Officer in this departmental proceeding along with three other independent witnesses, was rejected by an elaborate order dated 31-10-1994 giving reasons thereof.
11. So far as the witness at serial 1, Sri Panigrahi is concerned, the petitioner wanted to examine him to prove the action taken by him to frame charges and the Enquiring Officer rightly held that the charges have been framed and supplied to him and therefore the question of proving it does not arise. Similarly, examination of Sri Patro at serial-2 was requested, in order to prove the genuineness of order dated 6-10-93 in connection with supply of documents to the delinquent officer pursuant to the direction of this Court which was a matter of record and as such, examination of Registrar (Judicial) was unnecessary. Examination of witnesses at serial Nos. 3 to 11 was sought for inorder to prove the procedure in passing the Mulia vouchers under dispute. Witnesses were already examined by the Department to prove the procedure and basis of passing the vouchers and therefore, the Enquiring Officer held that if the petitioner was of the opinion that any other procedure or practice was followed under any guidelines, it was for him to produce the same, but by that, examination of these witnesses were not necessary. The official witnesses were examined and also cross-examined by the petitioner and therefore rejection of summoning these witnesses cannot be faulted. Witness No. 12, Sri M. R. Mohanty, Dy. Registrar (J. & E.) was required to be summoned for the purpose of throwing light on the procedure for passing of the vouchers which was denied on the ground that the statement of witnesses recorded by him were already supplied and he has availed of the opportunity to cross-examine them. The petitioner wanted to examine Sri J. M. Patnaik, the Marshalling Officer of the proceeding to prove the documents exhibited in the Departmental Proceeding, Sri Patnaik having been appointed long after initiation of the Departmental Proceeding had no personal knowledge in the matter and therefore it was found not relevant for the purpose. Witness No. 12 Sri P. C. Mohanty, Asst. Registrar (Judl.) was wanted to be summoned to prove the nature of action to call for the property statement from the staff and follow up action pursuant to the Government Noti6cation during his tenure as Assistant Registrar. Witness No. 13, the Senior Asst. of the Registry was required to be summoned for proving that documents as per direction of the Court was not supplied and the Asst. Court Officer for proving the number of Farasbis, Night-watchman, Sweepers and watchmen working during the month of September, 1989. Witnesses to prove rhese matters having been examined by the department and cross-examined by the petitioner extensively, summoning these witnesses were found unnecessary as it was thought, to be only for the purpose of a roving and fishing enquiry. The Inspector of Vigilance, Sri S. C. Bala was sought to be summoned to prove some of the articles seized from the residence of the delinquent officer but one Sti M. R. Patnaik, Inspector of Vigilance, who had made seizure for his residence was already examined and proved the seizure and therefore evidence of Sri Bala was rightly rejected. However, the enquiry officer had allowed the petitioner to examine all the three non-official witnesses and produce them for examination to the next date but the petitioner did not choose to produce and examine them on the date fixed. It may also be noted that the petitioner has not chosen to examine himself as a witness. In such view of the matter, the rejection of the petitioner's application for summoning the witnesses, who were not material to the issue cannot be faulted nor it can be said that due to such refusal, the petitioner is prejudiced in any way. It has not been whispered either in the petition or during hearing as to how the evidence of the aforesaid witnesses would have advanced the case of petitioner's innocence or how their non-examination prejudiced his case. In such view of the matter, we find no merit in the contention of the petitioner that he has been prejudicial because of rejection of his prayer for summoning these witnesses. The long list of officers submitted by the petitioner would rather go to show that he had tried to have a fishing and roving enquiry and in case any one of them was. not made available to take advantage of the same. The petitioner has to make out a case as to how non-summoning of these witnesses has caused prejudice to him and in absence of any prejudice caused, the question of non-compliance with the principle of natural justice would not be attracted. The learned counsel has referred to the decision reported in A. I. R. 1965 Calcutta 557 (5. P. Goswami alias Sakti Pada Goswami v. General Manager South Eastern Railway and another) in support of his contention. The aforesaid decision is of no avail to the petitioner, inasmuch as, there is no dispute about the proposition that at the instance of a delinquent officer, relevant witnesses can be summoned, but law is well settled that the Court or the Enquiring Officer in a given case has to decide as to whether the witnesses cited by the delinquent were relevant and necessary for just decision in the matter. If the persons were not material witnesses and such a prayer is made with an ulterior purpose, the application can well be rejected. In any view of the matter, since the Enquiring Officer had given an opportunity to the petitioner to produce three independent witnesses sought to be examined, but the petitioner did not choose to nor produced such witnesses in support of his case, the question of prejudice would not arise. The petitioner has not shown as to how, non-summoning of these witnesses has prejudiced his case. It is a relevant principle that in a departmental proceeding, the strict rule of evidence is not applicable inasmuch as the writ court does not sit in appeal over the decision of the disciplinary authority or the enquiring officer's finding.
12. The next submission of the learned counsel is with regard to the refusal of the Enquiring Officer to engage a counsel on behalf of the petitioner during the enquiry. According to the petitioner, a large number of 24 witnesses were sought to be examined, inasmuch as more than 200 documents were to be explained. In addition, presentation of the case, examination and cross-examination of the witnesses by the legal practitioners of one's own choice would go to a large extent to meet the need of a common man like the petitioner, who is a Matriculate and cannot stand before the Enquiring Officer or Marshalling Officer. It appears from the record that by letter dated 28-10-1994, the petitioner along with his application to summon certain witnesses had made a request to the Enquiring Officer to permit him to engage an Advocate of his choice to examine the aforesaid witnesses since he did not have much experience. By that date, the witnesses on behalf of the department were all examined and effectively cross-examined by the petitioner. It appears from the representation that the petitioner wanted to engage an Advocate of his choice to examine the witnesses indicated in the said letter on his behalf. The petition for examining the witnesses was rejected as indicated earlier and only three non-official witnesses were permitted to be examined. That also the petitioner did not produce. In such view of the matter, since the case had already entered defence, all the witnesses on behalf of the Department were examined, the petitioner did not examine any witnesses at the fag end of the enquiry, engagement of an Advocate can only be after thought for the purpose of dragging on the enquiry. The learned counsel has referred to the decision of the Apex Court in the Board of Trustees of the Port of Bombay v. Dillip Kumar Raghavendranath Nadkarni and others, A. I. R. 1983 Supreme Court 109 in support of his contention. In that case, the Apex Court held that where in an enquiry before a domestic Tribunal, the delinquent officer is pitted against a legally trained mind, if he seeks permission to appear through a legal practitioner, the refusal to grant this permission would amount to denial of a reasonable request to defend himself and the essential principle of natural justice would be violated. The fact of that case was quite different. The delinquent officer therein at the beginning of the enquiry made a request for being represented by an Advocate but the Chairman of the Port Ttust while rejecting the request of the delinquent officer, simultaneously appointed the legal adviser and junior assistant legal adviser to their employment as presenting-cum-prosecuting officer. In such circumstances, the Apex Court drew inference that since according to the Chairman, the issue that would arise in the proceeding was so complex, involving intricate legal propositions that the Enquiring Officer would need the assistance of a legal person as Presenting-cum-Prosecuting Officer, the rejection of the prayer of the delinquent officer to present his case though a legal person would not be a fair attitude or fair play. The fact of that case was completely different and the decision is distinguishable. In the case at hand, in the first round of litigation, when the enquiry was made and the major punishment of removal was passed, the petitioner did not seek for assistance of a legal practitioner. He challenged the order of the disciplinary authority before this Court in the earlier writ application and the order of punishment and the order of the appellate authority affirming the punishment were quashed on the ground that the petitioner was not supplied with the relevant and necessary documents sought for by him. The Court further directed supply of some documents to the petitioner, whereafter the petitioner was to file his show cause and the case was religated to the stage of show cause, in view of the nature and gravity of the allegations against the petitioner. Thereafter, the documents were supplied, even though the petitioner made a grievance that complete documents were not supplied, he filed his show cause, participated in the proceeding. The petitioner has effectively and elaborately cross-examined all the witnesses produced by the Department. He had filed some representations and in the process, all the prosecution witnesses were examined and cross-examined and the documents were produced and marked exhibits. He made an application for summoning some witnesses after closure of prosecution evidence and at this stage made a prayer for engaging a lawyer on the plea that in view of the large unmber of witnesses and the documents adduced, he needs the assistance of a legal practitioner and as sucb should be permitted to be represented by a lawer. If the petitioner was in fact feeling diffident and was apprehensive that he is pitted against law knowing persons and therefore should be defended by a lawyer, he could have made such a prayer at the beginning or by the time when several witnesses were being examined and documents were produced by the Departmental Authorities. The petitioner, effectively cross-examined such witnesses himself but did not require any assistance then, but after closure of departmental evidence woke up and wanted assistance of an advocate on the ground that the witnesses are large and documents were voluminous. It is not understood as to how at that stage, the permission for engagement of a lawyer would have improved the matters. Such a prayer was made may be for the purpose of protracting the litigation. The Enquiring Officer considered the application and in view of the fact that prosecution evidence was closed, all the documents and witnesses were produced on behalf of the prosecution and the delinquent officer had participated and effectively cross-examined the witnesses, he refused the prayer at the fag end of the enquiry and as such, we see no reason to take a different view and hold that denial of his prayer, has caused him any prejudice. It may also be noted that even though the petitioner was permitted to produce his witnesses, he did not choose to examine them. In such view of the matter, we are of the considered opinion that refusal of the Enquiring Officer for engagement of a legal practitioner cannot be faulted. The decision referred to was rendered in a completely different situation, inasmuch as, the petitioner had been working as a Court Officer in the Registry of the High Court for quite a good length of time and dealing with the Class-IV establishment including their disciplinary matters.
13. Learned counsel for the petitioner then made an attempt to reiterate his earlier submission that all documents having not been supplied, the findings on each of the charges levelled against the petitioner is vitiated in law inasmuch as the Enquiring Officer has not properly appreciated the evidence of some of the witnesses examined by the Department. The scope of interference by the High Court in finding as well as in punishment imposed in a departmental proceeding is limited. If there would be some evidence in support of the finding against any of the charges, the Court exercising the power under Article 226 of the Constitution, cannot reassess the evidence and interfere with the punishment. Sri Bijan Ray, learned counsel for the opp. parties placed reliance on the decisions in State of Andhra Pradesh and others v. S. Sree Ram Rao ; A, I. R. 1963 S.C. 1723, State of Orissa and others v. Bidyabhusan Mohapatra ; A.I.R. 1963 S.C. 779, State of Andhra Pradesh and others v. Chitra Penkata Rao; A.I.R. .1975 S.C. 2151, Smt. Sarada & Ors. v. Manikkoth Kombra Rajendran ; J. T. 1996 (6) S. C. 1 and in Managing Director, ECIL, Hyderabad etc. etc. v. B. Karunakar etc. etc.; A. I. R. 1994 S.C, 1074 in support of his contention that the High Court in its writ jurisdiction can only interfere in the finding and the decision of the departmental authorities in a departmental proceeding if the departmental authorities proceeded in a manner inconsistent with the Rules of Natural Justice or in violation of statutory Rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case or by allowing themselves to be influenced by irrelevant consideration or where the conclusion on the very face of it is so arbitrary and capricious that no reasonable person could have arrived at that conclusion or on similar other grounds. In the case of State of Orissa and others v. Bidyabhusan Mohapatra ; A.I.R. 1963 S.C. 779 (supra) the Apex Court held that where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the Officer is guilty it is not the function of the High Court exercising its jurisdiction under Article 226 of the Constitution to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court. The learned counsel for the petitioner however, submitted that in view of the fact that the petitioner was not supplied with the required documents, the proceeding itself is challenged and it is not prop5rly constituted proceeding and, therefore, the High Court should interfere with the order of punishment. In view of the Gnding that all the available documents sought for and directed by the High Court in the earlier writ applications filed by the petitioner was supplied to the petitioner, the contention of the learned counsel is of no avail. In A.I.R. 1975 S. C. 2151 (supra) the Apex Court has observed as follows :
''.....The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice ate not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence....."
Yet in the decision reported in 1993 J.T. (6)-l (supra) and A.I.R. 1994 S. C. 1974 (supra), the Apes Court took the view that the enquiry report is a relevant material, which weighs with the disciplinary authority in the matter of inflicting punishment. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights, Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the documents has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a pervesion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits, it amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice.
14. In the case at hand, even though it has been urged by the learned counsel for the petitioner that he has not been supplied with the copy of the preliminary enquiry report, on facts it has been found by the disciplinary authorities and not disputed that the preliminary enquiry report was supplied to him inasmuch as the High Court in the earlier judgment, on consideration of the entire materials on record, directed for supply of the documents as at serial Nos. 4, 5, 7, 8, 11 and 12 and those documents were supplied to the petitioner. In such view of the matter, it is not open to the petitioner to contend that he has been prejudiced for non-supply of the copy of the documents or the orders contemplated by the petitioner to have been passed. The learned counsel for the petitioner had further referred to the decision in Chandrama Tewari v. Union of India ; A. I. R. 1983 S. C. 117 to contend that when the proceeding is vitiated for non-compliance of the principles of natural justice and statutory provision, it is liable to be quashed in its'entirity. Thissubmision is made by the petitioner on the plea that the documents as per the direction of the Division Bench in the earlier writ application was not supplied to him, but on facts it has been found that all available documents in terms of the direction and on which the charges are based and relied upon by the Department have been supplied to him and, therefore, this decision is of no assistance. The learned counsel then relied upon Rule 15(1) of the Orissa Civil Services (C. C, A.) Rules, 1962 and submitted that in view of the provision and the direction of the Court, all other documents having not been supplied, the petitioner is prejudiced, but such a contention is not available to be made in view of the specific direction of the Court in the earlier writ petition at the consent of the petitioner, that documents as at seiial Nos. 4, 5, 7, 8, 11 and 12 of Annexure-6 should be supplied to the petitioner, whereupon he would file his reply show cause. The petitioner has not shown any prejudice due to non-supply of the alleged documents other than 4, 5, 7, 8, 11 and 12 documents as observed in the earlier paragraphs of this judgment and, therefore, the broader principle laid down in the cases cited has no application to the facts of the present case.
15. In so far as the factual findings are concerned, as we have already observed, this Court would not in the present writ application go to the question of re-appreciating the materials to come to its independent finding. The Enquiring Officer has recorded finding on each charge on elaborate discussion of the materials placed before it, which has also been confirmed by the Disciplinary authority, the Registrar after considering the materials and independently came to a finding that the charges, which are grave in nature have been proved through the evidence of the witness and the documents produced. Further, the Appellate Authority, Hon'ble the Chief Justice on consideration has rejected the appeal. Neither of the orders suffers from any infirmity or illegality so as to warrant any interference under Article 226 of the Constitution of India.
16. In any view of the matter, we do not find any ground or reason to interfere with the order of the Disciplinary Authority or the order of the Appellate Authority rejecting the petitioner's appeal and, therefore, the writ application is dismissed, but in the circumstances there shall be no order as to cost.
P.C. Naik, J.
17. I agree.
18. Writ application dismissed.