Orissa High Court
Odisha Industrial Infrastructure ... vs Bhupal Shankar Tripathy on 23 August, 2016
Author: Vinod Prasad
Bench: Vinod Prasad
ORISSA HIGH COURT: CUTTACK
W.A. No.319 of 2014
In the matter of an application under Clause 10 of the Letter Patent Act,
Patna read with Article 4 of the Orissa High Court Rules, 1948
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Odisha Industrial Infrastructure Development Corporation,
IDCO Tower, Janpath, Bhubaneswar-751007,
represented through its Managing Director and another.
... ... ... Appellants
-versus-
Bhupal Shankar Tripathy ... ... ... Respondent
For Appellants : M/s. J. Pattnaik, Senior Advocate,
Biplab Mohanty, B.S. Rayguru,
A.Pattnaik, S. Pattnaik & R.P. Roy.
For Respondent : Mr. B.S.Tripathy-1.
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Date of Hearing: 13.7.2016 Date of Judgment:23.08.2016
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P R E S E N T:
THE HONOURABLE MR. JUSTICE VINOD PRASAD
AND
THE HONOURABLE MR. JUSTICE BISWANATH RATH
Biswanath Rath,J. This Writ Appeal under Clause 10 of the Letter Patent Act,
Patna read with Article 4 of the Orissa High Court Rules, 1948 is directed
against the final judgment dated 07.8.2014 passed by the Hon'ble Single
Judge in W.P.(C) No.2514 of 2004.
2. The short fact involved in the writ appeal is that the respondent
was initially appointed as Light Vehicle Driver in IDCO Organisation and
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was posted at its Angul Division. The respondent was lastly posted in
Bolangir Division of IDCO, Bolangir by the order of the Managing Director
under communication No.17882 dated 15.10.2001. While the respondent
was continuing as such, he was served with a set of charges with the
allegations of gross negligence in duty and dis-obedience of orders of the
higher authority, misconduct, showing willful in-subordination to the
superior Controlling Officers, proved misbehavior to superior officers,
colleagues and staff of the Corporation, submission of false vouchers with
an intention to misappropriate Corporation funds, thereby causing
wrongful loss to the Corporation and wrongful gain to himself. Finding the
respondent's explanation unsatisfactory, he was directed to face enquiry.
Basing on the observation and recommendation of the Enquiring Officer,
the Disciplinary Authority concluded the Departmental Proceeding with
the final order of punishment dismissing the respondent from service as
light vehicle Driver in the Corporation with immediate effect. The
respondent being aggrieved by the said order of dismissal, preferred an
Appeal which was also turned down with an order of dismissal. Being
aggrieved by the order of Disciplinary Authority as well as the Appellate
Authority, the respondent preferred a writ petition under Articles 226 and
227 of the Constitution of India in this High Court vide W.P. (C) No.2514
of 2004. While assailing the impugned order, the respondent contended
that the enquiry against him was conducted in a manner contrary to
OIIDC Employees' Conduct, Discipline, Appeal and Service
Regulations,1996 (hereinafter referred to as the "Regulations,1996") and
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without giving the respondent a reasonable opportunity to defend himself
in a meaningful and effective manner. The respondent also alleged that
the Enquiring Officer considered the statements of the departmental
witnesses recorded behind back of the respondent. The Disciplinary
Authority considering the inquiry report arrived at a proposed order of
punishment even before furnishing a copy of the inquiry report to the
respondent. The Disciplinary Authority concluded the matter by observing
a mere formality of supplying the copy of the inquiry report before award
of the major penalty. The respondent alleged that the procedure adopted
by the Disciplinary Authority runs contrary to Regulation,1996. The
respondent also alleged that in spite of his taking several grounds,
including the ground of violation of principle of natural justice in the matter
of infliction of punishment, the Appellate Authority confirmed the order of
the Disciplinary Authority while refusing the prayer of the respondent for a
personal hearing. Not only in total non-consideration of the grounds taken
by the respondent but rejection of the appeal is also through a bald non-
speaking one lined order, as is clearly borne out from Annexure - 9
appended to the writ petition.
3. On their appearance, the present appellants by filing the counter
affidavit, while denying all the allegations raised by the respondent
against the corporation, specifically contended that the order passed by
the appellants are not violative of Regulation 27 of the Regulation, 1996.
The appellants refuting the allegations of the respondent submitted that
the allegation of violation of principle of natural justice in the Enquiry
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proceeding is out and out false. The appellants further alleged that the
respondent had a chequered career during his incumbency in IDCO at
Badmal Division. In a Disciplinary Proceeding against him, he was earlier
imposed with punishment of stoppage of two annual increments with
cumulative effect. There were serious charges involved in the second
Departmental Proceeding concerning the present dispute. The Enquiry
proceeding as well as the subsequent developments were conducted all
in strict consonance with the provision contained in Regulation, 1996 as
claimed by the appellants. Finally the appellants claimed that the
allegation that the witnesses have been examined behind back of the
respondent and that he has not been allowed to cross-examine the
prosecution witnesses, is totally false. It is on the other hand claimed that
the respondent himself signed the statements of witnesses recorded by
the Enquiring Officer which is a clear indication of his not choosing to
cross-examine the prosecution witnesses. It is claimed that the enquiry
was not only conducted in a fair and impartial manner but the Disciplinary
Authority also concluded the proceeding following all requirements of law.
It is in these premises, the appellants claimed for dismissal of the writ
petition.
4. Considering the rival contentions of both parties and taking into
consideration the provisions contained in Regulation, 1996, the Hon'ble
Single Judge came to observe as follows:
" xxxx xxx xxxx
As it appears, admittedly in the
instant case, the enquiry was conducted by
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an Enquiring Officer, who was not the
Disciplinary Authority. Therefore, while
considering the enquiry report, duty was
casted on the Disciplinary Authority to
consider the records of enquiry and record
its finding on each charge.
xxx xxx xxx
The Enquiry proceeding was conducted
in gross violation of the provisions contained
in Clause - (i) of Regulation - 28 of
Regulations, 1996."
Considering the allegation of violation of principle of natural justice,
the Hon'ble Single Judge observed as follows:
" xxx xxx xxx
Therefore, the conclusion is
irresistible that the enquiry was conducted
contrary to the 1996 Regulations due to
non-affording opportunity of hearing to the
petitioner; thereby there was violation of
principles of natural justice by the
Disciplinary Authority, Appellate Authority
and the Enquiring Authority."
5. Relying on a decision of the Hon'ble Apex Court in the case of
Managing Director, ECIL, Hyderabad and others -vrs- B.Karunakar
and Others, reported in AIR 1994 S.C-1074, Hon'ble Single Judge came
to observe as follows:
" xxx xxx xxx
But in the present case, the
Disciplinary Authority supplied the copy of
the Enquiry report while proposing
imposition of major penalty i.e. dismissal
from service. Therefore, the action taken by
the Disciplinary Authority being not in
consonance with law laid down by the
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Hon'ble Apex Court in the case of
Managing Director, ECIL, Hyderabad &
others (Supra) read with Regulations,1996
can not be allowed to prevail."
6. Similarly considering a decision in the case of Union of India &
Others -vrs- R.P. Singh, decided on 22.5.2014 in Civil Appeal No.6717
of 2008, the Hon'ble Single Judge deciding on the question of back
wages directed for de novo enquiry and gave the final direction which
runs as follows:
" Considering the contentions raised by the
learned counsel for the parties and after going
through the records and the law laid down by
the Apex Court, this Court has no hesitation to
quash the order of punishment of dismissal,
vide Annexure-9,the same being in violation of
the 1996 Regulations read with the principles
of natural justice. As consequence thereof, the
petitioner is entitled to reinstatement in service
with consequential service benefits admissible
to him in accordance with law granting liberty
to the authority to proceed with the enquiry de
novo in conformity with the provisions of law by
affording opportunity to the petitioner in
compliance with the principles of natural
justice."
7. In assailing the judgment passed by Hon'ble the Single Judge in
W.P.(C).No.2514 of 2004, the appellants i.e. Establishment raised two
vital grounds. The first ground of attack of the appellants-Establishment is
that the finding of the Hon'ble Single Judge so far it relates to the Enquiry
proceeding vitiates for being contrary to the provisions contained in
Regulations, 1996 and that the proceeding was concluded without giving
opportunity of natural justice to the delinquent is not only wrong but also
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being contrary to the pleadings and materials available on record. The
second limb of argument of the establishment is that the Hon'ble Single
Judge while allowing the writ petition directing for de novo enquiry, ought
not have directed for reinstatement of the delinquent with consequential
service benefits admissible to him in accordance with law.
8. In substantiating his argument, Mr. Abhijit Pattnaik, learned counsel
for the appellants while reiterating all his stands taken before the Hon'ble
Single Judge, further submitted that the findings of the Hon'ble Single
Judge both on account of the Disciplinary proceeding vitiated for its being
contrary to the Regulation, 1996 as well as for violation of principle of
natural justice, are not only perverse but also contrary to the materials
available on record. Mr.Pattnaik also contended that the direction part so
far it relates to reinstatement of the delinquent along with grant of all
service benefits in accordance with law, also remain contrary to a
decision in the case of U.P. State Textile Corporation Ltd.-vrs- P.C.
Chaturvedi and Others, reported in (2005) 8 SCC-211. Mr.Pattnaik
particularly referring to the decision of the Hon'ble Apex Court in
paragraph-18 of the said judgment contended that the direction, so far it
relates to grant of consequential service benefits admissible to him in
accordance with law, can not be sustainable.
9. During course of argument, Mr.Pattnaik, learned counsel appearing
for the appellants has a fair submission to the Court that the enquiry
report along with some other documents were all supplied to the
delinquent-respondent at the stage of second show cause by the
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Disciplinary Authority. It is in these circumstances, it is now relevant to
consider the particular provision of the Regulations, 1996. Regulation -
27(vii) dealing with the provision for consideration of the documentary
evidence and the cross-examination thereof, reads as follows:
"27.(vii): The Enquiring Officer shall in the course of
the enquiry, consider such documentary evidence
as may be relevant or material in regard to the
charges. The employee shall be entitled to cross
examine witnesses examined in support of the
charges and to give evidence in person. The
"Presenting Officer" shall be entitled to cross
examine the employee and the witnesses examined
in his/her defence. The Enquiring Officer may
decline to examine any witness, if he considers that
his/her evidence is not relevant or material: in which
case, the reasons shall be recorded in writing."
Similarly Regulations-28(I) reads as follows:
" The Disciplinary Authority, if it is not itself the
Enquiring Officer, shall consider the record of
the enquiry and record its findings on each
charge."
Reading of the provision contained in Regulations-27(VII) it is
apparent that the duty of the Enquiring Officer is not only to consider such
evidence as may be relevant or material in regard to the charges in
course of enquiry but the employee shall also be entitled to cross-
examine the witnesses examined in support of the charges and to give
evidence in person. In spite of clear allegation of the respondent -
delinquent that he has not been provided with an opportunity to cross-
examine the departmental witnesses after recording of his statement
even though the Department opposed the stand of the delinquent saying
that the delinquent himself chose not to cross-examine the witnesses but
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no materials what-so-ever was produced before the Hon'ble Single Judge
to establish their such contention. This is definitely a deliberate omission
on the part of the department for disclosure of the reality. Under the
circumstances, this Court finds the observation of the Hon'ble Single
Judge with regard to non-compliance of the provision contained in
Regulation-27(vii) is well founded and infallible.
Now coming to the question of compliance of Regulation-28(i) of
Regulations,1996, on perusal of the pleadings of the parties and records
available, this Court further observes that the appellants have miserably
failed in establishing their contention that the Disciplinary Authority had
recorded its finding on each charges in terms of the requirement of
Regulation-28(i) of Regulations,1996 and consequently finds the
observation of the Hon'ble Single Judge in the aforesaid regard remains
unambiguous and does not need any scrutiny.
This Court on further perusal of the decision of the Hon'ble Apex
Court in the case of Managing Director, ECIL, Hyderabad and others -
vrs- B.Karunakar and Others, reported in AIR 1994 S.C-1074 also
finds, the observation of the Hon'ble Single Judge gets full support of the
aforesaid decision rendered by the Hon'ble Apex Court.
Now coming to the question of grant of ultimate relief by the Hon'ble
Single Judge, Mr.Pattnaik, learned counsel appearing for the appellants
contended that even assuming that there is a requirement of de novo
enquiry, the respondent would have been at best entitled to reinstatement
in service and the question of back wages should have been left to be
10
decided by employer. In raising his such contention, Mr.Pattnaik, learned
counsel for the appellants, relying on a decision in the case of U.P. State
Textile Corporation Ltd.-vrs- P.C. Chaturvedi and Others, reported in
(2005) 8 SCC-211, draws the attention of this Court to paragraph-18 of
the aforesaid judgment and contended that the direction "termed
consequential service benefits admissible to him in accordance with law"
is contrary to the decision of the Hon'ble Apex Court and this part of the
impugned judgment should be set aside. There is no denial to the fact
that the respondent was not under suspension during the period of
Disciplinary proceeding and the respondent was a full fledged employee
till the final order of dismissal was passed. Thus while directing for
conducting a de novo enquiry, the Hon'ble Single Judge had no other
option than to restore the position of the respondent as on the date of
order of dismissal existed and the natural fall out would be immediate
reinstatement of service of the delinquent. Coming to the question of
consequential service benefits, this Court, considering the submissions of
Mr.Pattnaik, learned counsel appearing for the appellants, observes that
the direction of the Hon'ble Single Judge for release of consequential
service benefits admissible to the employee in accordance with law
remained unambiguous. The appellant's plea that while granting
reinstatement of the delinquent, no direction should have been given for
release of back wages pending a de novo enquiry, remain wholly
unfounded. The Hon'ble Single Judge in simple term has directed for
release of consequential service benefits admissible to the delinquent in
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accordance with law. Thus, the delinquent would be entitled only to the
entitlements in terms of law and the direction of the Hon'ble single Judge
can not be construed otherwise.
Perused the decision cited at the instance of the respondent in the
case of U.P. State Textile Corporation Ltd.-vrs- P.C. Chaturvedi and
Others, reported in (2005) 8 SCC-211. The aforesaid judgment of the
Hon'ble Apex Court was passed relying on a previous decision of the
Hon'ble Apex Court in the case of Managing Director, ECIL,
Hyderabad and others -vrs- B. Karunakar and Others, reported in AIR
(1993) 4 S.C.C-727. In paragraph-31 of the said judgment, the Hon'ble
Apex Court held as follows:
"Hence, in all cases where the enquiry officer's report is
not furnished to the delinquent employee in the
disciplinary proceedings, the Courts and Tribunal's should
cause the copy of the report to be furnished to the
aggrieved employee if he has not already secured it
before coming to the Court/Tribunal and give the
employee an opportunity to show how his or her case was
prejudiced because of the non-supply of the report. If after
hearing the parties, the Court/Tribunal comes to the
conclusion that the non-supply of the report would have
made no difference to the ultimate findings and the
punishment given, the Court/Tribunal should not interfere
with the order of punishment. The Court/Tribunal should
not mechanically set aside the order of punishment on the
ground that the report was not furnished as is regrettably
being done at present. The courts should avoid resorting
to short cuts. Since it is the Courts/Tribunals which will
apply their judicial mind to the question and give their
reasons for setting aside or not setting aside the order of
punishment, (and not any internal appellate or revisional
authority), there would be neither a breach of the
principles of natural justice nor a denial of the reasonable
opportunity. It is only if the Court/Tribunal finds that the
furnishing of the report would have made a difference to
the result in the case that it should set aside the order of
punishment. Where after following the above procedure,
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the Court/Tribunal sets aside the order of punishment, the
proper relief that should be granted is to direct
reinstatement of the employee with liberty to the
authority/management to proceed with the inquiry, by
placing the employee under suspension and continuing
the inquiry from the stage of furnishing him with the
report. The question whether the employee would be
entitled to the back-wages and other benefits from the
date of his dismissal to the date of his reinstatement if
ultimately ordered, should invariably be left to be decided
by the authority concerned according to law, after the
culmination of the proceedings and depending on the final
outcome. If the employee succeeds in the fresh inquiry
and is directed to be reinstated, the authority should be at
liberty to decide according to law how it will treat the
period from the date of dismissal till the reinstatement and
to what benefits, if any and the extent of the benefits, he
will be entitled. The reinstatement made as a result of the
setting aside of the inquiry for failure to furnish the report,
should be treated as a reinstatement for the purpose of
holding the fresh inquiry from the stage of furnishing the
report and no more, where such fresh inquiry is held. That
will also be the correct position in law."
That being so, direction for payment of full back salary
and consequential benefits cannot be sustained."
Similarly the Hon'ble Apex Court, in an unreported case between
Union of India & Others -vrs- R.P. Singh, decided on 22.5.2014 in
Civil Appeal No.6717 of 2008, while confirming the aforesaid settled
position of law in paragraph-25, has observed as follows:
" The question whether the employee would be
entitle to the back wages and other benefits from
the date of dismissal to the date of reinstatement,
if ultimately ordered, should invariably left to be
decided by the authority concerned. According to
law, after culmination of the proceeding and on the
final outcome."
This Court finds law on the aforesaid legal point already
established. From the tenor of the direction of the Hon'ble Single Judge,
this Court further observes that Hon'ble Single Judge having directed for
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grant of consequential service benefits in accordance with law, the
direction of the Hon'ble Single Judge remained unambiguous,
consequently needs no interference/clarification.
Under the aforesaid reasons and proposition of law reflected
hereinabove, this Court holds that the appellants have failed on all the
counts. Thus, this Court while confirming the decision in the W.P. (C)
No.2514 of 2004, dismisses this Writ Appeal.
Parties are to bear their respective cost.
....................................
BISWANATH RATH,
(JUDGE).
VINOD PRASAD, J.I agree.
.............................. VINOD PRASAD, (JUDGE).
Orissa High Court, Cuttack. The23rd August, 2016/BKB