Managobinda Samantaray vs Union Of India And Others on 11 January, 2018

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Orissa High Court

Managobinda Samantaray vs Union Of India And Others on 11 January, 2018

Author: D. Dash

Bench: I. Mahanty, D. Dash

HIGH COURT OF ORISSA: CUTTACK.

Writ Appeal No. 469 of 2014
And
Writ Appeal No. 143 of 2015.

(In the matter of an appeal under clause 10 of the Letter Patent of High
Court read with High Court of Orissa Order as amended on 03.05.2000
and an appeal challenging the order dated 07.11.2014 passed in W.P.(C)
No. 5515 of 2012 passed by the Single Judge of this Court.)

(A) Writ Appeal No. 469 of 2014

Managobinda Samantaray ...... Appellant

Versus

Union of India & others ...... Respondents

For Appellant : M/s. Shashi Bhusan Jena,
K.B.Mohanty, S.Behera,
A.Mishra, S.Soren,
Advocates.

For Respondents : Mr. A.P.Bose,
Addl. Solicitor General.

(B) Writ Appeal No. 143 of 2015

Union of India & others ...... Appellants

Versus

Managobinda Samantaray ...... Respondent

For Appellants : Mr. A.P.Bose,
Addl. Solicitor General.
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For Respondent : M/s. Shashi Bhusan Jena,
K.B.Mohanty, S.Behera,
A.Mishra, S.Soren,
Advocates.

P R E S E N T:

THE HONOURABLE SHRI JUSTICE I. MAHANTY
AND
THE HONOURABLE SHRI JUSTICE D.DASH
--------------------------------------------------------------------------------------
Date of hearing : 08.12.2017 : Date of judgment: 11.01.2018
---------------------------------------------------------------------------------------

D.DASH, J Both the intra court appeals under item No. (A) and (B) arising

from the judgment dated 07.11.2014 passed by the Hon'ble Single Judge

of this Court in W.P.(C) No.5512 of 2102, having been heard together, are

disposed of by this common order.

For the sake of convenience and in order to avoid confusion

and bring in clarity, the parties hereinafter have been referred to as they

have been described in the appeal under item no.(A).

2. The facts necessary for the purpose of these appeals are

stated hereunder:-

(a) The appellant of the appeal under item no. (A) who is the

petitioner in W.P.(C) No.5512 of 2012 being a constable in the Central

Industrial Security Force ( for short, CISF) faced a disciplinary proceeding

in course of his posting in the unit of National Thermal Power Corporation
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at Kaniha in the district of Angul, Odisha. .The Enquiring Officer having

found the charges to have been established, the Disciplinary Authority,

Commandant, CISF Unit NALCO, Angul imposed penalty provided under

the head of major punishments as of reduction of pay by two stages, i.e.,

from Rs.3425/- to Rs.3275/- in the time scale of pay for a period of three

years with immediate effect and that the petitioner will not earn

increments of pay during the period of reduction and on expiry of this

period, the reduction will have the effect of postponing his future

increments of pay. It had also been directed that the period of suspension

commencing from 04.01.2000 till the receipt of the order be treated as

non-duty for all purposes and the petitioner will not be entitled to any

more pay and allowances except subsistence allowances.

Being aggrieved by the aforesaid order passed by the

Disciplinary Authority, this appellant filed an appeal before the Appellate

Authority. The Appellate Authority while entertaining the appeal

simultaneously issued a notice to the appellant showing cause as to why

the punishment as has been imposed by the Disciplinary Authority would

not be enhanced and the appellant would not be visited with the

punishment of dismissal from service on the ground that punishment

imposed is disproportionate to the gravity of the charges established

against the appellant. The notice to show cause having been received, the
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appellant questioned the same by filing a revision before the Inspector

General, (Eastern Zone) HQrs., C.I.S.F., Unit, New Patliputra Colony,

Patna, Bihar. The same was however not accepted by the Unit Officer on

the ground as not maintainable. The appellant then filed an application

before the Appellate Authority to grant time to file the show cause. The

application however stood rejected and finally on 23.01.2001, the

Appellate Authority passed the order of dismissal of service.

(b) The appellant being aggrieved by the said order of the

Appellate Authority knocked the door of this Court by filing a writ

application i.e. O.J.C. No. 556 of 2001. The said writ application came

before the Division Bench of this Court and disposed of on 17.10.2001.

The relevant part of the order passed therein may at this stage

be placed for proper appreciation. It runs as under:-

"xx xx xx
Keeping the rival submissions in view this Court
perused the records of this case as well as of the
disciplinary authority and the appellate authority which
are produced by Mr. Das, learned Central Govt. Counsel
pursuant to the order dated 08.07.2011. As it appears,
after receipt of the show cause notice for enhancement
the petitioner filed a petition before the appellate
authority seeking extension of time to file show cause
reply on the ground that he could not obtain papers from
his lawyers since they were on strike. But, evidently no
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order was passed by the appellate authority on the said
petition. On perusal of the records of appeal it further
appears that on 09.01.2001 an endorsement has been
made in the order sheet to the effect that a draft order
has been prepared and placed before the appellate
authority (opposite party no.3) for kind perusal and
approval. The appellate authority on 15.01.2001 has
approved the said draft order. From the aforesaid, it can
be safely inferred that the order of enhancement of
penalty was drafted by the subordinate staff and the
appellate authority has only approved the same without
applying his mind.
In view of the above, this Court quashes the
order of the appellate authority and remits the matter
back to the appellate authority to hear it afresh. The
entire exercise shall be completed within six months. This
Court directs the petitioner to file his show cause reply to
Annexure-5 within six weeks from today."

The appellant thereafter filed the show cause and the

Appellate Authority after hearing again reiterated the earlier order of

punishment by way of dismissal of the appellant from service.

application i.e. W.P.(C) No. 5515 of 2012. The Hon'ble Single Judge after

hearing has disposed of the said writ application on 07.11.2014.
6

The Hon'ble Single Judge while declining to interfere with the

order of punishment of dismissal of service has however directed that the

appellant be treated to have been continuing in service from 23.01.2001

till the subsequent order of dismissal of service passed by the Appellate

Authority on 18.02.2012 and next taking note of the fact that the

appellant has not worked during that period directed that the appellant be

paid with 50% of back wages for the period.

(d) The appellant has filed the appeal under item no.(A) wherein

he questions the judgment of the Hon'ble Single Judge passed in the

above writ application.

The respondent has also filed the appeal under item no.(B)

questioning the direction of the Hon'ble Single Judge for treating the

appellant as continuing in service from 23.01.2001 to 18.02.2012 and

payment of 50% of the back wages for the said period to him.

3. We have heard Mr. S.B.Jena, the learned counsel for the

appellant and Mr. A.P.Bose, the learned Additional Solicitor General for

the respondent. We have also gone through the impugned judgment and

perused other connected records.

4. Learned counsel for the appellant submitted that the

Appellate Authority has passed the order of punishment of dismissal of

service without taking into consideration all the materials available on
7

record and simply being swayed away by the fact that the appellant had

assaulted the Assistant Sub-Inspector at the relevant time when he had

gone to the place where the appellant was there to discharge his duty

without considering the surrounding circumstances which have emerged

out of evidence and other attending factors. According to him, the Hon'ble

Single Judge has failed to take note of such non-application of mind by

the Appellate Authority while enhancing the punishment to the maximum.

He also submitted that when the Disciplinary Authority has

exercised his discretion in imposing one of the major penalties prescribed

under Rule 34 of the Central Industrial Security Force Rules, 2001 the

Appellate Authority ought not to have interfered with the same just

because in his view, the said quantum of punishment is on a lesser side in

consideration to the proven charges without assigning any such

compelling reason in providing better justification that it is shockingly

disproportionate and thus inadequate. Therefore, he urged that the order

of the Appellate Authority enhancing the punishment is vulnerable which

aspect has been lost sight of the Hon'ble Single Judge. He thus contends

that the Hon'ble Single Judge ought not to have interfered with the

impugned order of punishment as had imposed by the Disciplinary

Authority.
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Learned Additional Solicitor General in so far as the

punishment is concerned submitted that the enhancement of punishment,

in the proven charges is adequate and the Appellate Authority being

within its rights did commit no error in imposing the same. He therefore

contended that the said order has rightly been confirmed. He also

contended that the later part of the direction of the Hon'ble Single Judge

does not have the sanction of law and the dismissal of service has to take

effect from the date of passing of the order of imposition of punishment by

the Disciplinary Authority as the order of Disciplinary Authority stood

merged with the order of the Appellate Authority and also the order of

Disciplinary Authority passed after remand would be deemed to have take

the effect from the date of original order had been so quashed.

5. The appellant having been found guilty of the charges was

visited with the penalty as stated in the aforesaid para.

When he filed appeal questioning the findings of the

Disciplinary Authority who was the Enquiring Officer as well as the

punishment imposed upon him, the Appellate Authority issued the notice

of enhancement of penalty and on receipt of show cause while finally

disposing the appeal holding the findings on the charges to have been

rightly rendered, has passed the order of penalty by way of dismissal from

service, the maximum one.
9

The present writ applications, stand confined to the said

enhanced penalty.

6. The settled position of law is that when the Disciplinary

Authority has imposed the penalty viewing the establishment of the

charges and taking all other factors emanating from evidence into

consideration, the enhancement is called for only when the punishment is

shockingly disproportionate and if the discretion in selecting the

punishment so imposed has been exercised arbitrarily.

The enhancement is permissible only when one or the other of

the following conditions was satisfied, namely, the order was contrary to

law, or relevant factors were not considered, or irrelevant factors were

considered; or the decision was one which no reasonable person could

have taken. These principles were consistently followed to judge the

validity of administrative action. It is equally well known that in 1984,

Lord Diplock in Council of Civil Service Unions v. Minister for Civil Service,

1985 AC 374 (called CCSU Case) summarized the principles of judicial

review of administrative action as based upon one or the other of the

following viz. illegality, procedural irregularity and irrationality. He,

however, opined that "proportionality" was a "future possibility".

7. The Disciplinary Authority being the fact finding authority has

to consider the evidence with a view to maintain discipline. It is invested
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with the discretion to impose appropriate punishment keeping in view the

magnitude or gravity of the misconduct. The Appellate Authority in seisin

of appeal, cannot normally substitute the penalty imposed by the

Disciplinary Authority and substitute some other penalty as its own view.

If the punishment imposed by the Disciplinary Authority is highly

disproportionate and as such shocks the conscience of the Appellate

Authority, it would appropriately mould the punishment, in exceptional

cases, impose appropriate punishment with cogent reasons in support

thereof and that to being so satisfied on not only in view of the

establishment of charges being so confirmed but also on overall

consideration of evidence. The rule is very clear that such enhancement is

not merely by way of substitution of another view. .

8. At this juncture, we may profitably quote the relevant rules for

proper appreciation in addressing the rival contentions.

Rule 36 (22) of C.I.S.F. Rules - Power of Disciplinary Authority

in the matter of penalty.

"xx xx xx
(22)(i) If the disciplinary authority having
regard to its findings on all or any of the articles of charge
is of the opinion that any of the minor penalties specified
in rule 34 should be imposed on the enrolled member, it
shall notwithstanding anything contained in rule 37 make
an order imposing such penalty;
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(ii) If the disciplinary authority having regard
to its findings on all or any of the articles of charge and on
the basis of evidence adduced during the course of inquiry,
is of the opinion that any of the major penalties specified
in rule 34 should be imposed on the enrolled member, it
shall make an order imposing such penalties and it shall
not be necessary to give the enrolled member any
opportunity of making representation on the penalty
proposed to be imposed.
xx xx xx
Rule 52 of C.I.S.F.Rules :- Power of Appellate
Authority in the matter of enhancement of penalty.
xx xx xx
(2). In the case of an appeal against the order
imposing any of the penalties specified in rule 34, or
enhancing any penalty imposed under the said rules, the
appellate authority shall consider -
(a) Whether the procedure laid down in these rules
has been complied with and if not, whether such non-
compliance has resulted in the violation of any provisions
of the Constitution of India or in the failure of justice;
(b) Whether the findings of the disciplinary
authority are warranted on the basis of the evidence on
the record; and
(c) Whether the penalty or the enhanced penalty
imposed is excessive, or adequate, or inadequate and pass
orders;
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(i) Confirming, enhancing, reducing or setting
aside the penalty ; or
(ii) remitting the case to the authority which
imposed or enhanced the penalty, or to any
other authority with such direction as it may
deem fit in the circumstances of the case.
(iii) No order imposing enhanced penalty shall be
made in any other case unless the appellant
has been given a reasonable opportunity as far
as may be in accordance with the provisions of
rule 37, of making a representation against
such enhanced penalty.
Provided that -

(i) If such enhanced penalty which the appellate authority
proposes to impose is one of the penalties specified in
clauses (i) to (v) of rule 34 and an inquiry under rule 36
has not already been held in the case, the appellate
authority shall, subject to the provisions of rule 39, itself
hold such an inquiry or direct that such inquiry be held
in accordance with rule 36 and thereafter on a
consideration of the proceedings of such inquiry make
such orders as it may deem fit ; and
(ii) If the enhanced penalty which the appellate authority
proposes to impose is one of the penalties specified in
clause (i) to (v) of rule 34 and an inquiry under rule 36
has already been held in the case, the appellate
authority shall make such orders as it may deem fit."
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9. In the case at hand, the Appellate Authority has not recorded

any reason as to how and why it found the punishment to be highly

disproportionate and as such shocked its conscience. Even there is no

discussion on this aspect and the evidence, if so available has not been

touched upon which is mandated under the law.

10. It needs no emphasis that when Appellate Authority feels that

the punishment is highly disproportionate, it must record reasons for

coming to such a conclusion and that has to be keeping in view the nature

of the charge proved as well as the evidence collected in course of the

enquiry and all such other circumstances concerning the delinquent.

Mere expression that the punishment is shockingly disproportionate

would not meet the requirement of law. Even in respect of administrative

orders Lord Denning, M.R. in Breen v. Amalgamated Engg. Union; (1971) 1

All ER 1148 had observed (All ER p. 1154h):- "The giving of reasons is one

of the fundamentals of good administration." In Alexander Machinery

(Dudley) Ltd. v. Crabtree; 1974 ICR 120 (NIRC) it was observed: "Failure to

give reasons amounts to denial of justice. Reasons are live links between

the mind of the decision-taker to the controversy in question and the

decision or conclusion arrived at." Reasons substitute subjectivity by

objectivity. The emphasis on recording reasons is that if the decision

reveals the "inscrutable face of the sphinx", it can, by its silence; render it
14

virtually impossible for the courts to exercise the power of judicial review

in adjudging the validity of the decision. Right to reason is an

indispensable part of a sound judicial system. Another rationale is that

the affected party can know why the decision has gone against him. One of

the salutary requirements of natural justice is spelling out reasons for the

order made, in other words, a speaking-out. The "inscrutable face of a

sphinx" is ordinarily incongruous with a judicial or quasi-judicial

performance.

In the present case though the Disciplinary Authority had

taken all those required aspects into consideration while imposing the

original order of punishment, the Appellate Authority has enhanced the

same, simply by purportedly viewing the nature of proven charge.

The Appellate Authority's order of enhancement of sentence to

that of the maximum i.e. dismissal of service being tested in the

touchstone of all the aforesaid read with the relevant rule, in our

considered opinion, does not stand to judicial scrutiny. The Hon'ble Single

Judge as it appears has lost sight of all the above important facets and

has merely gone to concur with the view of the Appellate Authority.

For the above discussion and reason, we are of the view that

the order of the Appellate Authority enhancing the penalty imposed by the

Disciplinary Authority is therefore not sustainable in the eye of law.
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11. In the result, we allow the Writ Appeal No. 469 of 2014 and

set aside the order on the score of confirmation of the order of the

Appellate Authority in enhancing the penalty and restore the penalty as

had been imposed by the Disciplinary Authority. The Writ Appeal No. 143

of 2015 filed by the Union of India and others stands disposed of by the

aforesaid direction.

.........................
D. DASH, J.

I. MAHANTY, J.

I agree.

.............................. I. MAHANTY, J.

High Court of Orissa, Cuttack Dated the 11th day of January, 2018/Routray 16

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