Orissa High Court
Narayan Ch. Swain vs State Of Orissa And Others ......... ... on 14 August, 2018
Author: B.R. Sarangi
Bench: B.R. Sarangi
HIGH COURT OF ORISSA : CUTTACK
O.J.C. NO. 5086 OF 2000
In the matter of an application under Article 226 of the
Constitution of India.
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Narayan Ch. Swain ........ Petitioner
-Versus-
State of Orissa and others ......... Opp. Parties
For petitioner : M/s. S. Palit, L Jena, D. Biswal,
C.R. Lenka, A.K. Mohapatra and
J.K. Dash, Advocates.
For opp. parties : M/s S. Das and S. Rath,
Advocates
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PRESENT:
THE HONOURABLE DR. JUSTICE B.R. SARANGI
--------------------------------------------------------------------------------- Date of hearing : 08.08.2018 :: Date of Judgment :14.08.2018
--------------------------------------------------------------------------------- DR. B.R. SARANGI,J. The petitioner, who was working as a Field Assistant in Orissa Forest Development Corporation Limited, Boudh Division filed this application to quash the order of recovery dated 10.10.1998 in Annexure-23, as well 2 as the order dated 30.11.1999 in Annexure-25 rejecting the appeal.
2. The factual matrix of the case, in hand, is that the petitioner joined as Field Assistant in Forest Development Corporation Limited (hereinafter referred to as "OFDC"), Boudh Division on 30.06.1990 and on the basis of the direction given by the authority, he had to supervise the works at Baghanadi 'A' and 'B' Bamboo Coups and Shikadi Bamboo Depot. The distance between two coups and the said depot was about 15 kms. Therefore on 22.01.1993, the petitioner wrote a letter to the Sub-Divisional Manager of Boudh (Commercial) Division requesting him to take appropriate step, as it was not possible on his part to look after the two coups which were at a distance of 15 kms. Such request was again made by the petitioner on 06.03.1993 and it was claimed that one temporary staff may be allowed to be posted, along with him, so that he can look after the two coups.
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3. On 25.05.1993, the petitioner intimated the Sub- Divisional Manager, Boudh (Commercial) Division regarding the damage caused to the bamboo stock at Baghanadi Bamboo Coupe due to flood in the river. The petitioner received letter dated 26.07.1993 from the Divisional Manager of Boudh (Commercial) Division regarding a huge shortage of bamboo stock at the Depot and he was called upon to give his explanation within ten days. On receipt of said letter dated 26.07.1993 on 28.07.1993, the petitioner sent his detailed explanation rebutting the charges, by communication dated 05.08.1993, with a request to withdraw the allegation/charge so made against him. The Divisional Manager of Boudh (Commercial) Division issued a letter on 06.11.1993 to the petitioner alleging shortage of bamboo stock and asking for explanation. On receiving such letter, the petitioner submitted his explanation on 16.11.1993. On 09.12.1993, the petitioner submitted his physical verification report regarding the stock at Baghanadi 'B' for the year 1992-93. Without considering the same in 4 proper perspective, the order dated 01.12.1993 was passed, which was received by the petitioner on 19.12.1993, whereby the petitioner was relieved from his service in OFDC to join in a private organization, namely, M/s. Straw Products Limited. The petitioner received such order on protest and filed his representation on 19.12.1993 to the Divisional Manager of Boudh (Commercial) Division through the Sub-Divisional Manager of Boudh requesting him to relieve after letting him know the terms and conditions of service in M/s. Straw Products Limited. Without intimating the terms and conditions, the petitioner was directed to join in M/s. Straw Products Limited and consequentially he was relieved from the post on 12.01.1994.
4. Under compelling circumstances, the petitioner joined the private organization immediately. Consequentially, it was not possible on his part to handover the charge of Baghanadi Bamboo Coupe to anybody else, as the payment had not been made to the people working there. Therefore, he requested the Divisional Manager of Boudh (Commercial) 5 Division to take necessary steps for taking over the charge from him. The petitioner received a letter on 16.03.1994 from the Divisional Manager of Boudh (Commercial) Division to show the stock and handover the charge. On receipt of the letter dated 16.03.1994 on 17.03.1994, the petitioner vide letter dated 19.03.1994 requested the Divisional Manager of Boudh (Commercial) Division to grant minimum 15 days time to submit his reply on the allegation of shortage of bamboo in the said Bamboo Coupe, as he was suffering from fever. On 23.03.1994, the Divisional Manager of Boudh (Commercial) Division placed the petitioner under suspension on the allegation of disobedience of office letter no. 1682 dated 17.11.1993 and office order no. 12 dated 18.11.1993 of the Sub-Divisional Manager of Boudh (Commercial) Division by deliberately avoiding to handover the charge, along with some other allegations. But such letters dated 17.11.1993 and 18.11.1993 were neither issued nor received by the petitioner. However, the petitioner submitted his detailed reply on 30.03.1994 to the allegations made vide letter dated 6 16.03.1994. On receipt of such letter dated 30.03.1994, the Divisional Manager of Boudh (Commercial) Division issued letter dated 04.04.1994 contradicting the contentions raised by the petitioner in letter dated 30.03.1994 and also directed the petitioner to handover the charge to one Basanta Kumar Kanhar, Field Assistant.
5. On 12.04.1994, the Divisional Manager of Boudh Commercial Division again directed the petitioner to hand over charge to Sri Kanhar. On 21.05.1994, the petitioner wrote a letter in counter to the allegations made by the authority stating inter alia about non-receipt of any of the two letters bearing no. 1662 dated 17.01.1993 and no. 12 dated 18.12.1993 and contended that he had not disobeyed any of the orders of the higher authorities and sought for reinstatement in service. Without considering the explanation given by the petitioner in proper perspective, the Divisional Manager of Boudh (Commercial) Division issued charge sheet against the petitioner on 02.09.1994 to the following effect:- 7
"1. Shortage of huge bamboo stock causing loss to OFDC Ltd. to the tune of Rs. 3,55,517.00 and misappropriated Corpn. Money by way of making false voucher.
2. Deliberately avoiding to hand over the charge of stock of Baghanadi BC 'A' & BC 'B'.
3. Disobedience of order of the higher authority & showing insubordination to authority which amounts serious misconduct and unbecoming on his part.
4. Non transportation of bamboo stock which shows serious negligence in duty.
5. Tarnished the OFDC image due to non-payment of wages to the labourers by way of misappropriation and created problems for transportation."
6. On receipt of the said charge sheet, the petitioner vide his letter dated 23.09.1994 requested the Divisional Manager of Boudh (Commercial) Division to supply him copies of some papers so as to enable him to show cause against the allegation of misappropriation etc., but no such documents were provided to the petitioner. The petitioner submitted his reply to the show cause on 29.09.1994. On receipt of such reply to the show cause, the Divisional Manager of Boudh (Commercial) Division issued order of reinstatement in favour of the petitioner in his former post of Field Assistant on 06.01.1996. Consequentially, he 8 submitted his joining report on 08.01.1996 and resumed his duty.
7. On the basis of the show cause reply filed, an Enquiry Officer was appointed, who conducted the enquiry. On the basis of the enquiry report, the Divisional Manager (D.R.) OFDC, Ltd. Boudh (Commercial) Division, on 17.10.1998, passed the final order of recovery of Rs.1,33,570/- from the salary of the petitioner towards shortage of I.S.B. 28,361 F.B. and 187 H.B. and further directed that the said amount should be recovered from the salary of the petitioner commencing from October, 1998 in 179 installments, out of which 178 installments @ Rs.750/- per month and the last installment is Rs.70/-. The petitioner was also censured and the period of his suspension was treated as such.
8. Against such order of recovery dated 17.10.1998, the petitioner preferred an appeal stating inter alia that he was not liable to pay any amount and that the order of 9 punishment was passed on the basis of the enquiry report submitted by the Enquiry Officer without supplying copy thereof. But the appellate authority, without application of mind, dismissed the appeal mechanically as devoid of merit and, while confirming the punishment imposed by the disciplinary authority, directed the Divisional Manager of Boudh (Commercial) Division to frame charges against the S.D.M. and D.D.M. and submit the same by 31.11.1999 for necessary action at his end. Hence this writ application.
9. Mr. S. Palit, learned counsel for the petitioner contended that the order dated 17.10.1998 passed by the disciplinary authority in Annexure-23 cannot sustain in the eye of law, as the petitioner, before it was passed, was not supplied with the enquiry report. It is further contended that admittedly in the order of the disciplinary authority, vide memo no. 2893(2) dated 17.10.1998, it was stated that copy in triplicate, along with the enquiry report, was forwarded to the petitioner through the General Manager (A & P) of M/s. J.K. Corporation, Rayagada for information, therefore, there 10 is non-compliance of principle of natural justice due to non- supply of the enquiry report before imposition of punishment for recovery of Rs.1,33,570/- vide Annexure-23. He further contended that even though such a plea was taken before the appellate authority, but the same was not taken into consideration in proper perspective and, without application of mind, the order of punishment imposed by the disciplinary authority was confirmed by the appellate authority, which cannot sustain in the eye of law. Thereby, the order imposing punishment passed by disciplinary authority in Annexure-23 and the order of confirmation made by the appellate authority in Annexure-25 are vitiated, due to non-compliance of principal of natural justice. To substantiate his contention, learned counsel for the petitioner has relied upon the judgments of the apex Court in Union of India v. Mohd. Ramzan Khan, (1991) 1 SCC 588; Managing Director E.C.I.L. v. B. Karunmakar, AIR 1994 SC 1074; and South Bengal State Transport Corporation v. Swapan Kumar Mitra, AIR 2006 SC 3533.
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10. Mr. S. Das, learned counsel appearing for the OFDC justified the order 17.10.1998 in Annexure-23 passed by the disciplinary authority, which has been confirmed by the appellate authority by order dated 30.11.1999 in Annexure-25, and contended that as the OFDC has sustained loss to the tune of Rs.1,33,570/-, it has to be recovered from the petitioner, who is responsible for the same. Therefore, there is no illegality or irregularity in passing the order by the disciplinary authority and confirming the same by the appellate authority and as such, it does not warrant any interference of this Court at this stage.
11. Having heard Mr. S. Palit, learned counsel for the petitioner and Mr. S. Das, learned counsel appearing for the opposite party-Corporation and pleadings between the parties having been exchanged, with the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission.
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12. The facts narrated above are not in dispute. As it appears from the pleadings available on record, only question to be considered is whether the petitioner was supplied with the enquiry report by the disciplinary authority before imposing punishment by order dated 17.10.1998 under Annexure-23 and if not whether non-supply of such enquiry report is fatal to the proceeding initiated against the petitioner.
13. Evidently, on the basis of the show cause submitted by the petitioner enquiry was conducted and the petitioner was given personal hearing on 18.09.1998. Consequentially, the Enquiry Officer found the petitioner guilty of charges no.1, 2 and 3, which were established against him. So far as charges no.4 and 5 are concerned, the petitioner was set free as he was not responsible for the same. Therefore, relying upon the enquiry report, the disciplinary authority passed the following order of punishment:-
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"1. The cost of the shortage of I.S.B. 28,361 F.B. and 187 H.B. comes to Rs. 1,33,570/- is to be recovered from his salary mandatorily commencing from October, 1998 in 179 instalments out of which 178 instalment @ Rs. 750/- P.M. and the last instlment is Rs. 70/-.
2. He is censured.
3. The period of suspension is treated as such. ORISSA FOREST DEVELOPMENT CORPORATION Sd/-Illegibile (H.N. Tripathy) Divisional Manager, Boudh(C) Division"
After imposing punishment, the disciplinary authority communicated the same to the petitioner, vide memo no. 2893(2) dated 17.10.1998, which reads thus:-
"Memo No. 2893(2)/Dt. 17.10.98 Copy in triplicate alongwith the enquiry report forwarded to Sri N.C. Swain, F/A, through the General Manager (A & P) of M/s. J.K.Corp., Rayagada for information and necessary action. He is requested to serve one copy on Sri N.C. Swain, F/A alongwith the enquiry report with his dated acknowledgement on the 2nd copy and return the same to this office for our record. The 3rd copy may be retained in his office for record."
On the basis of the memo mentioned above, for the first time the copy of the enquiry report was supplied to the petitioner for information and necessary action and it was also communicated that on receipt of the enquiry report the petitioner was to give his acknowledgement on the second 14 copy and return the same to the office of the disciplinary authority and the third copy was to be retained in the office for record. From this it is evident that before imposing punishment by the disciplinary authority the copy of the enquiry report was not supplied to the petitioner and as such the same was supplied after finalization of the proceeding against him.
14. As against the order imposing penalty, the petitioner preferred appeal before the appellate authority and categorically pleaded in ground no.1 as follows:-
"That As required under Rule 16 of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962, I was not given the copy of the report of the Enquiring Officer, on whose report, final orders have been passed by the Divisional Manager. After passing the final orders, there is no justification to enclose the copy of the enquiry report and as such asking me for personal hearing on 18.09.1998. Copy of the statement recorded on 18.9.98 has not been given to me."
This itself indicates that the petitioner specifically pleaded in his appeal memo with regard to non-supply of the enquiry report before passing of final order of punishment by the 15 disciplinary authority. The appellate authority has also noted down the same in its order dated 30.09.1999 as follows:-
"1. He was not supplied with a copy of the enquiry report and statement of depositions, before passing the final order by D.M., Boudh(C) Divn."
But the appellate authority in its findings recorded in the said order as follows:-
"FINDINGS XX XX XX
1. The appellant has admitted that he has been supplied with a copy of the enquiry report and statement of depositions by the Disciplinary Authority."
This clearly indicates that there was non-application of mind by the appellate authority.
15. When this Court entertained this writ application, issued notice to the opposite parties, in response to which the opposite parties no.2 to 4 entered appearance and filed their counter affidavit in paragraph 12 whereof it has been pleaded as follows:-
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"That so far as the ground taken by the present petitioner relating to non-supply of enquiry report is concerned this deponent humbly submits that the petitioner as the delinquent submitted his explanation precisely to the ingredients of the charges levelled against the petitioner and the petitioner has also been provided the enquiry report after passing the final order asking the petitioner for personal hearing on 18.09.1998."
(emphasis supplied) On perusal of the above, it is revealed that the petitioner was provided with the enquiry report, after the final order was passed by the disciplinary authority, asking the petitioner for personal hearing. Therefore, after passing the final order if the enquiry report was supplied, the same has no meaning and as such, there is violation of principle of natural justice. It is incumbent upon the authority concerned to supply the enquiry report before passing the final order and after passing the final order if the enquiry report has been supplied, it is only an empty formality and that has been done without complying with the principle of natural justice.
16. In the case of Mohd. Ramzan Khan mentioned supra, the apex Court held that whenever the Enquiry Officer is other than the Disciplinary Authority and the report of the 17 Enquiry Officer held the employee guilty of all or any of the charges with proposal for any punishment or not, the delinquent employee was entitled to a copy of the report to enable him to make a representation to the Disciplinary Authority against it and the non-furnishing of the report amounted to violation of principles of natural justice.
17. In Managing Director, ECIL (supra), the apex Court explained that the question whether the delinquent employee should be heard by the disciplinary authority to prove his innocence of the charges levelled against him when they were held to have been proved by the Enquiry Officer, although he need not be heard on the question of the proposed penalty, was neither raised nor answered by the apex Court in Union of India v. Tulsiram Patel, (1985) 3 SCC 398 : AIR 1985 SC 1416. Therefore, the Constitution Bench of the apex Court held in Managing Director, ECIL (supra) to explain the true basis as to why the employee concerned was entitled to a copy of the enquiry report and to make a representation thereon. The Court emphasized that 18 the right to receive the report and to show cause against the findings in it was independent of the right to show cause against the penalty proposed and although Forty-Second amendment had taken away the later it did not affect the former. Thereby, the apex Court further held that the law laid down in Mohd. Ramzan Khan (supra) should apply to the employees in all establishments whether Government or non-Government, public or private and this will be the case whether there are Rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Thereby, non-supply of enquiry report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employees to prove his innocence and is a breach of principles of natural justice.
Similar view has also been taken by the apex Court in Swapan Kumar Mitra mentioned supra. 19
18. Applying the test and following the principles laid down by the apex Court in the judgments mentioned supra to the present context, there is no iota of doubt that the petitioner was not supplied with any enquiry report before the final order of punishment was passed by the disciplinary authority and as such, there was non-compliance of principles of natural justice. Therefore, the proceedings so initiated cannot sustain in the eye of law. As a result thereof, the final order of punishment passed by the disciplinary authority on 17.10.1998 in Annexure-23, as well as the consequential order dated 30.11.1999 in Annexure-25 passed by the appellate authority confirming the same cannot sustain in the eye of law and are liable to be quashed. Accordingly, the orders so passed in Annexure-23 and Annexure-25 are hereby quashed.
19. As in the meantime the petitioner has been retired from service on attaining the age of superannuation, it is left open to the opposite party-management to proceed in accordance with law from the stage of supply of enquiry 20 report. Needless to mention, this Court had passed an interim order on 05.10.2001 to the effect that there would be no recovery from salary of the petitioner until further orders. In case any amount had been recovered from the petitioner by the authorities from the date of passing of the order by the disciplinary authority in Annexure-23 and confirmed by the appellate authority in Annexure-25, which had been stayed by interim order dated 05.10.2001, the same would be taken into consideration in accordance with law.
20. In the above view of the matter, the writ application stands allowed to the extent indicated above. No order to costs.
Sd/-
(DR. B.R. SARANGI) JUDGE Orissa High Court, Cuttack The 14th August, 2018, GDS/Ajaya True Copy Sr. Steno