Orissa High Court
Girish Mohanty vs Union Of India Represented Through Its ... on 3 March, 2015
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
OJC No. 2607 of 2001
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
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Girish Mohanty ......... Petitioner
-versus-
Union of India ......... Opp. Parties
Represented through its Secretary
in Home Department, New Delhi
and others.
For Petitioner : M/s. K.K.Swain,
P.N.Mohanty, S.C.Dash,
B. Jena.
For Opp.Parties : Mr. S.K. Patra
(Central Govt. Counsel)
PRESENT:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 13.02.2015| Date of judgment : 03.03.2015
Dr. B.R.Sarangi, J.The petitioner, who is working as a Constable under the Central Industrial Security Force (hereinafter referred to as „the C.I.S.F.‟) has filed this application seeking to quash the order of punishment imposed by the disciplinary authority vide Annexure-3 dated 27.06.1996 by reducing the 2 scale of pay to two stages from Rs.885/- to Rs.855/- in the time scale of pay for the period of one year with effect from 04.07.1996 and also directed that he will not earn increment of pay during the period of reduction and that on expiry of the said period, the reduction will not have effect of postponing his future increment of pay and consequential order dated 03.11.1999 passed by the appellate authority in appeal vide Annexure-9 confirming the order passed by the disciplinary authority.
2. The factual matrix of the case in hand is that pursuant to a recruitment test held by the CISF, the petitioner was selected for the post of Constable and accordingly he was issued with an appointment order on 13.05.1994, pursuant to which, he reported for duty before the Commandant, CISF Unit, Eastern Coal Field Ltd., Seetalpur in the district of Burdwan (West Bengal) on 28.5.1994. The petitioner took leave for 25 days for the purpose of repairing his house, which was duly sanctioned by the authority. Due to his sister‟s marriage, the said period of leave was extended for another period of ten days by virtue of the communication through registered letter to the Commandant. While he was on leave, he was implicated in a criminal case and arrested by local police on 20.06.1995 and was taken to custody. Since the leave period expired and the petitioner over-stayed the leave 3 period as he was taken to custody, he could not join in his post, as a result he sent a registered letter to the Commandant on 13.7.1995 requesting him to extend the leave period. Thereafter, he joined in the post on 28.11.1995 and the same was accepted. Thereafter, he was allowed to work in his post as before. The petitioner made a request to the authorities to regularize his leave period, but without considering the same, he was sent for basic training at Vilai for a period of three months by virtue of the order dated 6.12.1995. On completion of his training, he joined in his post at Seetalpur on 26.2.1996 and discharged his duty peacefully. While continuing as such, the Commandant issued a charge- sheet calling upon him to explain as to why he over-stayed his leave period. On receipt of the same, the petitioner submitted his explanation and on consideration of the said explanation, punishment was inflicted by reducing the scale of pay to two stages from Rs.885/- to Rs.855/- in the time scale of pay for the period of one year with effect from 04.07.1996 vide Annexure-3. It was further clarified that the petitioner will not earn increment of pay during the period of reduction and that on expiry of the said period, the reduction will not affect postponing his future increment of pay. It is stated that the inquiry which has been caused is not in conformity with the provisions of law and there is non-compliance of principles of 4 natural justice. It is stated that against the said order of imposition of penalty, the petitioner preferred an appeal, but the appellate authority rejected the appeal vide order dated 03.09.1999 in Annexure-9 confirming the order passed by the disciplinary authority vide Annexure-3. Hence, this application.
3. Mr. K.K. Swain, learned counsel for the petitioner strenuously urged that the charges were issued against the petitioner on 31.12.1998 alleging misconduct for suppressing the criminal proceeding dated 20.06.1995 under section 302/201/34 IPC registered against him in Motanga Police Station in the district of Dhenkanal, to which the petitioner filed written statement of defence on 8.1.1999 denying such allegation levelled against him and explaining the situation under which he could not intimate the aforesaid facts basing upon which an inquiry was conducted by the inquiry officer under Rule-34 of CISF Rules, 1969. It is stated that such inquiry has been conducted in a perverse manner without complying with the principles of natural justice and without giving opportunity of being heard to the petitioner. More so, the petitioner has not been given any opportunity to examine or cross examine the witnesses, who deposed against him and no materials and documents which were utilized against him were given to him. Therefore, the inquiry is completely vitiated. It is further stated that the inquiry having been 5 conducted in a mechanical manner without application of mind and on the basis of such inquiry report since the punishment has been imposed, the same is also passed without non- application of mind. It is stated that even if such point has been raised before the appellate authority, the appellate authority without considering the same in proper perspective has confirmed the order passed by the disciplinary authority. Therefore, he seeks for interference of this Court. In order to substantiate his contention, he relied upon the judgments in Jagdish Singh v. Punjab Engineering College and others, (2009) 2 SCC (L&S) 569, Chairman-cum-Managing Director, Coal India Ltd. & Anr. v. Mukul Kumar Choudhuri & Ors., AIR 2010 SC 75, P.Areya Reddy v. Presiding Officer, Labour Court, Bhubaneswar and another, 2011 (Supp.-1) OLR 238, Chandrama Bhusan Sarangi v. Union of India and others, 2011 (I) ILR-CUT 398, Padnav Gouda v. Orissa Forest Corporation and others, 2015 (I) OLR 54.
4. Mr. Sudhir Kumar Patra, learned Central Government Counsel raised preliminary objection with regard to maintainability of the writ application before this Court and stated that this Court has lacked territorial jurisdiction to hear the matter. In addition to the same, it is urged that there is availability of alternative remedy under the relevant service 6 rules against the order passed by the appellate authority. Therefore, due to availability of alternative remedy, this writ application cannot be sustained before this Court. It is stated that on merit also the imposition of penalty having been done in conformity with the provisions of law and the appellate authority having confirmed the same, the writ petition is devoid of any merit and accordingly he seeks for dismissal of the writ application. It is further urged that the petitioner misguided the disciplinary authority by taking three different reasons on different occasion to cover up his 159 days OSL period by suppressing his involvement in the criminal case registered against him. Therefore, the action taken by the authorities is well within its competence and the same is in conformity with provisions of law. Therefore, this Court should not interfere with the same. In order to substantiate his contention, he relied upon the judgment in Oil and Natural Gas Commission v. Utpal Kumar Basu and others, (1994) 4 SCC 711, Gopal Krishna Behera v. Union of India and others, 2014 (II) OLR 540.
5. In view of the aforesaid facts and circumstances of the case, it is to be decided:-
1) Whether this Court has got jurisdiction to interfere with the order passed by the disciplinary authority as well as the appellate authority.
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2) Whether in view of the availability of alternative remedy, this Court exercise the jurisdiction under Article 226 of the Constitution of India or not.
3) Whether the petitioner is entitled to
any relief claimed by him in the writ
application.
6. With regard to the lack of territorial jurisdiction of this Court to interfere with the order of punishment imposed by the competent authority, Mr. Patra, learned Central Government Counsel relied upon the judgment in Oil and Natural Gas Commission (supra) and stated that mere service of the appellate order on the petitioner cannot form part of cause of action. Therefore, this Court has no jurisdiction to interfere with the matter.
7. In order to have the territorial jurisdiction, it is to be seen whether any part of cause of action has arisen within the State of Orissa. The cause of action has been defined to mean every fact, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. The service of appellate order on the petitioner at his permanent residence in the state of Orissa will give rise to cause of action within the territory of the State. Therefore the service of the said order was an integral part of cause of action.
8. On perusal of Annexure-9, the appellate order dated 3.11.1999, it appears that the said order has been 8 served on the petitioner at his native address i.e. Village- Odapada, Post-Hindol Road, PS-Motanga, Dist-Dhenkanal (Orissa). Therefore, the communication of the order affecting the service of an individual is necessary and order takes effect against the individual employee after its communication. The appellate order being communicated in the present native address of the petitioner, it forms part of cause of action.
9. Right to invoke Article 226 of the Constitution of India to enforce Fundamental rights and other legal rights against the State or authority or its agency is a constitutional right. Such right should not be made illusory or unenforceable upon narrow construction of the concept of cause of action. In the present case, the petitioner was a member of the CISF, an All India Organisation. CISF has admittedly its network of offices and establishments in different parts of India including the State of Orissa. The petitioner is an employee removed from service and in usual course, he had come back to the place of his permanent residence in Orissa to take shelter after he had been removed from service. It is not possible for him, a jobless employee, to come to the State where he was last posted to avail of his right under Article 226 of the Constitution of India. CISF with its net-work of offices and establishments is not likely to suffer any irreparable prejudice in meeting legal challenge of the petitioner in this Court.
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10. In Chandrama Bhusan Sarangi (supra), this Court also held that High Court can exercise power to issue writ, direction or order for enforcement of any of fundamental rights conferred by Part-III of Constitution or for any other purpose, if cause of action wholly or in part has arisen within the territorial jurisdiction of High Court. The expression „cause of action‟ means bundle of facts which petitioner must prove, if traversed, to entitle him to a judgment in his favour by Court. Therefore, question of territorial jurisdiction must be decided on facts pleaded in petition. Since the appellate order was served on the petitioner at his native address, part of cause of the action arises for writ petition within the jurisdiction of this Court.
11. Considering all these aspects including the interest of justice, this Court is of the view that a part of the cause of action has arisen within the territorial jurisdiction of this Court enabling it to entertain this writ application.
12. Mr. K.K. Swain, learned counsel for the petitioner relies upon the judgment in Jagdish Singh (supra), wherein the apex Court considering the jurisdiction of the Court in a judicial review so far as disciplinary matter is concerned held that in case of habitual absenteeism, misconduct and willful absence, the petitioner is entitled to get the punishment as envisaged under rules. This Court has no 10 jurisdiction to interfere with the quantum of punishment unless it is held disproportionate shockingly to conscience. The ratio of the said case is not applicable to the present context. Similarly in P. Areya Reddy (supra), similar view has also been taken by the apex Court.
13. In Chairman-cum-Managing Director, Coal India Ltd. and another (supra), the delinquent admitted the charge in the departmental proceeding. The inquiry officer arrived at a conclusion about the proof of charges, the apex Court held that in absence of any procedural illegality or irregularity in conduct of departmental enquiry, it has to be held that the charges against the delinquent stood proved and warranted no interference. The ratio of the said case is not applicable to the present context. Therefore, the same is distinguishable.
14. Now coming to the question of awarding punishment on the delinquent officer on the basis of the alleged facts it is well within the complete domain of the disciplinary authority. Whether on the basis of facts alleged the punishment imposed by the disciplinary authority is proportionate or not or it is required to be reduced that can be considered at the discretion of the disciplinary authority. Therefore, what is appropriate quantum of punishment to be awarded to a delinquent is a matter that primarily rests at the 11 discretion of the disciplinary authority. An authority sitting in appeal over any such order of punishment is by all means entitled to examine the issue regarding the quantum of punishment inasmuch as it is entitled to examine whether the charges have been satisfactorily proved. But when any such order is challenged before a service Tribunal or the High Court the exercise of discretion by the competent authority in determining and awarding punishment is generally respected except where the same is found to be so outrageously disproportionate to the charge of misconduct and the Court considers it to be arbitrary and wholly unreasonable. The superior Courts and the Tribunal invoke the doctrine of proportionality which has been gradually accepted as one of the facets of judicial review. Where punishment is excessive or disproportionate to the offence so as to shock the conscience of the Court and is unacceptable even then Courts should be slow and generally reluctant to interfere with the quantum of punishment. The law on the subject is well settled by a series of decision rendered by the superior Court. This view has also been taken in Ranjit Thakur v. Union of India, (1987) 4 SCC 611 : AIR 1987 SC 2386, Dev Singh v. Punjab Tourism Development Corporation Limited, (2003) 8 SCC 9 : AIR 2003 3712, Union of India v. Ganayutham, (1997) 7 SCC 463 : AIR 1997 SC 3387, Ex-Naik Sardar Singh v. Union of 12 India, (1991) 3 SCC 213 :AIR 1992 SC 417, Om Kumar v. Union of India, (2001) 2 SCC 386 : AIR 2000 SC 3689.
15. The context in which the above mentioned case has been dealt with is not applicable to the present case. Now come to the question of applicability of alternative remedy. As per the provisions contained under Rule 54 of the CISF Rules, revision forum has been prescribed under the statute against the order passed by the appellate authority. In Gopal Krishna Behera (supra), this Court in paragraphs-8 and 9 held as follows:-
"8. In view of the above provision, it appears that that there is availability of alternative remedy under the law and alternative remedy may be statutory, non-statutory or constitutional where a right is created by a statute. The statute itself may provide a remedy for violation of such rights. Where a statute creates a right or liability and also prescribes a remedy or procedure for enforcement of that right or liability, resort must be had to that remedy before invoking the extraordinary and prerogative writ jurisdiction of the High Court under Article 226. Hence, where statutory remedy is available, petition under Article 226 is not generally entertained since Article 226 is not intended to circumvent statutory procedures. This provision of law has been settled by the apex Court in Danda Rajeshwari v. Bodavula Hanumayamma, AIR 1997 SC 1541 and Shivgonda Anna Patil v. State of Maharashtra, AIR 1999 SC 2281.
9. In view of the aforesaid law laid down by the apex Court mentioned supra where the party had a statutory remedy available under the relevant statute, he cannot bypass the said remedy and file a writ petition under Article 226. It was held that if such a procedure is allowed, it may enable the litigant to defeat the provisions of the statute. The normal rule is that a writ petition should not be entertained when statutory remedy is available 13 under the concerned legislation unless exceptional cases are made out in view of the ratio decided by the apex Court in Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke, (1976) 1 SCC 496, Rajasthan SRTC v. Krishna Kant, AIR 1995 SC 1715, Scooters India v. Vijai E.V.Eldred, (1998) 6 SCC 549, Chndrakant Tukaram Nikam v.
Municipal Corpn. of Ahmedabad, (2002) 2 SCC 542, Seth Chand Ratan v. Pandit Durga Prasad, AIR 2003 SC 2736 U.P. State Bridge Corpn. Ltd. v. U.P.Rajya Setu Nigam S.Karmachari Sangh, (2004) 4 SCC 268, U.P. State Spinning Co. Ltd. v.
R.S.Pandey and another, 101(2006) CLT 160(SC) and Uttaranchal Forest Development Corporation v. Jabar Singh, (2007) 2 SCC 112."
16. Therefore, in view of the availability of alternative remedy, this Court is not inclined to interfere with writ application. However, liberty is granted to the petitioner to move the revisional authority in accordance with law.
17. With the aforesaid liberty, the writ application is disposed of. No order to costs.
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Dr.B.R.Sarangi, J.
Orissa High Court, Cuttack The 3rd March,2015/Jagdev