Orissa High Court
Debendranath Behera vs Government Of India And Others ....... ... on 19 April, 2023
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 13766 of 2016
An application under Articles 226 & 227 of Constitution of
India.
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Debendranath Behera ...... Petitioner
- Versus -
Government of India and others ....... Opp. Parties
Advocate(s) appeared in this case:-
_______________________________________________________
For Petitioner : Mr. S.K. Das, S.K. Mishra &
P.K. Behera, Advocates.
For Opp. Parties : Mr. S.P. Mishra, Sr. Advocate
with M/s. S. Mishra, S.K.
Samantray, E.Agarwal, A.
Mohanta & L.K. Mohapatra,
[ O.P. No.2]
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
19th April, 2023 SASHIKANTA MISHRA, J.
The petitioner has filed this writ petition with the following prayer:
"Under the aforesaid facts and circumstances of the case it is, therefore, prayed that your lordship may kindly be graciously pleased to admit the writ petition, issue rule NISI calling upon the opp.Parties as to why the order dated 06.07.2016 passed by the Appellate Authority under Annexure-12 shall not be quashed if the opp.Parties fails to show cause or show Page 1 of 14 insufficient cause then the rule NISI be made absolute and further the Hon'ble Court be pleased to quash the order of discharging dtd:
30.12.2014 under Annexure-6 and the order of the Registrar dtd: 10.02.2017 under Annexure- 15 and the 50th meeting of the Board of Governors pertaining to the petitioner dtd: 29.09.2016 under Annexure-16.
And further the Hon'ble Court be pleased to direct to reinstate of the petitioner in former post forth with all consequential service and financial benefit including back wages.
And further be pleased to allow the petitioner to join and discharge his duties"
2. Petitioner's case is that pursuant to an advertisement issued by the National Institute of Technology (NIT), Rourkela for the post of Engineer (Electrical) on regular basis, he applied for the same and was selected for appointment vide letter dated 22.10.2011 issued by the Registrar (opposite party No.3). Accordingly, he joined in the post on 09.01.2012. As per the terms of the appointment, he was on probation for a period of one year. His service was however, not confirmed despite expiry of the period of probation. While the matter stood thus, basing on a complaint, the Director (opposite party No.2), vide order dated 12.08.2014 appointed a Technical Committee to account for efficiency of three machines. The Director also constituted another committee comprising six members to investigate the arrangement Page 2 of 14 for operation of diesel genset and to detect the possible irregularity in the findings therein. The petitioner was supplied with questionnaires and asked to answer the same, which he did. The committee was of the view that the data recorded in the log book had been grossly fabricated and manipulated with the sole objective of getting some financial benefit in a dishonest way and thus, held the petitioner and five other employees directly or indirectly involved in such activities. The Committee submitted a fact finding report on 12.12.2014 suggesting several remedial measures to regularize the process and prevent any possible recurrence of the situation. The Committee also recommended to fix responsibility on the petitioner. It was specifically held that the involvement of others in the dishonest transaction cannot be ruled out completely. The report of the fact finding Committee was placed before the Board of Governors in its 44th meeting held on 23.12.2014, wherein it was decided to discharge the petitioner from the service of the Institution with immediate effect for his dishonesty and lack of integrity. Accordingly, by order dated 30.12.2014 (copy enclosed as Page 3 of 14 Annexure-6 to the writ petition), the petitioner was discharged from services of the Institute with immediate effect for his dishonesty and lack of integrity. The petitioner preferred an appeal before the Director (opposite party No.2) on 14.01.2015 but realizing that he is not the appellate authority, he preferred appeal on 21.01.2015, 27.02.2015, 28.02.2015 and 03.05.2015 before the Chairman. In the meantime, the decision taken in the 44th Board meeting was approved by the Board in its 45th meeting, after the issuance of the order of discharge. The petitioner challenged the decision of the Board of Governors of the 44th and 45th meeting before this Court in W.P.(C) No. 9367 of 2015 as also the order of discharge under Annexure-6. This Court, by order dated 13.05.2015 disposed of the writ application directing the Chairman to dispose of the appeal filed by the petitioner in-conformity with the provisions of law within a period of three months from the date of communication of the order. Pursuant to such order, the Chairman of the Board of Governors, by order dated 06.07.2016 allowed the appeal and directed the NIT to reinstate the petitioner immediately. The Page 4 of 14 petitioner thereafter wanted to join in his duty on 22.07.2016 but the Director did not allow him to do so. In the meantime by letter dated 27.07.2016, the under Secretary to Government of India in Ministry of Human Resources stated that the appeal of the petitioner should be placed before the Board in its forthcoming meeting for further deliberation and decision. Pursuant to such clarification issued by the Government of India, the Board of Governors in its 50th meeting held on 30.12.2014, rejected the appeal of the petitioner, which was communicated to the petitioner by opposite party No.3 in his letter dated 10.02.2017 (copy enclosed as Annexure-
15)
3. The case of the NIT (opposite party Nos. 2 to 5) is that the petitioner was involved in serious financial irregularities to the tune of Rs.10 lakhs through dishonest transactions, which was clearly proved in the fact finding enquiry conducted by the six member Committee.
Therefore, the Board of Governors in its 44th meeting held on 23.12.2014, considering the probationary status of the petitioner and evidence of dishonesty and lack of integrity Page 5 of 14 decided to relieve him from the services of the institute from 30.12.2014. Undoubtedly, the Chairman had allowed the appeal filed by the petitioner but he had no power to do so as it is only the Board, which has power to consider the appeal. The Board also accorded opportunity of personal hearing to the petitioner, which he availed but in its 50th meeting the Board took into consideration all relevant documents along with the statement of the petitioner recorded during personal hearing and held that his discharge from service was justified and found no merit in the appeal.
4. Heard Mr. Samir Kumar Das, learned counsel for the petitioner and Mr. S.P. Mishra, learned Senior Counsel with Mr. S. Mishra, learned counsel for NIT.
5. Mr. Das has argued at the outset that as per the Rules, the petitioner's probation period could not have been extended for more than a year and that if no order confirming, discharging or reverting the officer is issued within eight months after expiry of double the normal period of prescribed probation, an employee is deemed to have successfully completed the probation period. In such Page 6 of 14 view of the matter, the petitioner could not have been removed from service without following the procedure laid down in the relevant service rules. It is further contended by Mr. Das that the petitioner has been visited with a stigmatic termination order without following the principles of natural justice. The report of the fact finding enquiry could not have been formed the basis for taking such drastic action against the petitioner. Moreover, the appeal of the petitioner was rightly allowed by the Chairman but the Board of Governors revoked the same without any justified reason.
6. Per contra Mr. S.P. Mishra, learned Senior counsel contended that there is no question of any automatic confirmation of service, inasmuch as in the absence of any specific order being passed by the concerned authority to confirm the services of the petitioner it implies that his services were not found satisfactory enough for confirmation. On merits, it is contended that the fact finding enquiry was conducted by six members consisting of three technical and three non- technical members. The petitioner was given chance of Page 7 of 14 submitting of his reply to the questions posed by the Committee, which he did, but the same were not accepted.
The Committee found clear proof of manipulation/fabrication of documents at the instance of the petitioner for financial gain. As a result, there was huge financial irregularity to the tune of Rs.10 lakhs.
7. From the rival contentions noted above it is evident that the following questions fall for consideration before this Court;
(i) Whether the petitioner was a probationer at the relevant time.
(ii) Whether the impugned order of
disengagement of the petitioner from his
services vide Annexure-6 is legal and/or
justified.
8. In course of arguments, Mr. S.K. Das referred to an office memorandum dated 11.03.2019 issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, Government of India, which purports to be a master circular of probation/confirmation in central services. Statute-23(3) Page 8 of 14 of the First Statutes of NIT provides that for the purposes of appointment, the Rules Applicable to the Central Government employees shall apply. Coming to the office memorandum dated 11.03.2019, Paragraph-27 under the heading 'confirmation' thereof reads as follows;
"27. The date from which confirmation should be given effect is the date following the date of satisfactory completion of the prescribed period of probation or the extended period of probation, as the case may be. The decision to confirm the probationer or to extend the period of probation as the case may be should be communicated to the probationer normally within 6 to 8 weeks. Probation should not be extended for more than a year and, in no circumstance, an employee should be kept on probation for more than double the normal prescribed period of probation. The officer will be deemed to have successfully completed the probation period if no order confirming, discharging or reverting the officer is issued within eight weeks after expiry of double the normal period of prescribed probation."
9. Thus, ordinarily probation should not be extended for more than a year and in any case, not more than double the normal period of probation. In the instant case, the period of probation being one year, the petitioner's service should have been either confirmed or not confirmed w.e.f. 08.01.2013 or 08.01.2014 at best. Admittedly, no order relating to confirmation or discharge of the petitioner was issued by the authorities within eight weeks after 08.01.2014. In fact no such order was issued Page 9 of 14 even till the date of his disengagement. Thus, there is no alternative than to apply the deeming provision as per paragraph-27 of the Office Memorandum referred to hereinabove. In other words, the petitioner is deemed to have been confirmed in his service w.e.f. 8/9.01.2014.
10. This answers the first question framed for determination.
11. Coming to the second issue, the petitioner being deemed to be a confirmed employee can obviously be proceeded and/or discharged from service only in accordance with the relevant rules. In this regard, reference may be had to the provisions of the First Statute, particularly to Statute-24, which lays down the general terms and conditions of service of permanent employees. Clause-(v) of Statute-24 provides that the employees of the Institute shall be governed by the Central Civil Services (Conduct) Rules, 1964. However, Statute-26 provides for Suspension, Penalties, Disciplinary proceedings. Clause-5 of Statute-26 lays down the penalties that may be imposed on any employee. Clause-6 reads as under;
Page 10 of 14
"(6) No Order imposing on any member of the staff any of the penalties specified (v) to (viii) above shall be passed by any authority subordinate to that by which he was appointed and except after an enquiry has been held and the member of the staff has been given reasonable opportunity of showing cause against the action proposed to be taken in this regard."
12. Thus, from reading of the provisions quoted above, it is evident that a confirmed/permanent employee can only be visited with penalties of removal or dismissal from service only after an enquiry has been held and he has been given reasonable opportunity of showing cause against the action proposed to be taken in such regard. As regards the enquiry, the procedure required to be followed is as laid in the Central Civil Services (Classification, Control and Appeal) Rules, 1965, (in short CCS(CCA) Rules, 1965). Part-VI deals with procedure for imposing penalties. Rule-14 therein lays down the procedure for imposing major penalties. Undoubtedly, disengagement from service is a major penalty and corrected under Sub- clause (vi) of Clause-6 of the Statutes. There is no dispute that no procedure whatsoever as laid in CCS(CCA) Rules, 1965 was followed. On the contrary, the fact finding report of the committee was accepted by the Board and acted upon. The question is, whether such action could be Page 11 of 14 countenanced in law. The answer would obviously be in the negative. Evidently, the petitioner was disengaged from service as a measure of punishment inasmuch as the order of disengagement refers to his purported dishonesty and lack of integrity. It is therefore, a major penalty. Therefore, the principles of natural justice as embodied under Rule-14 of CCS(CCA) Rules, 1965 cannot be given a go-bye.
Reading of the minutes of 50th meeting of Board of Governors held on 28.12.2015 (Annexure-16) reveals that the Board, inter alia held as follows:
"In the meantime serious financial irregularity in the operation of diesel generators being supervised by Mr. Behera was detected. An enquiry committee was setup by the Director on 14.10.2014 to investigate the matter. The committee submitted its report on 12.12.2014. The committee, prima facie, estimated financial irregularity to the tune of Rs.10.0 lakhs and opined Mr. Behera to be primarily responsible for the dishonest transactions.
The issue of financial irregularity and report of the committee was discussed at length in the 44th meeting held on 23.12.2014. After taking into consideration the probationary status of Mr. Behera and evidences of dishonesty and lack of integrity on his part, the Board decided to discharge him from service of the institute. Accordingly, Mr. Behera was discharged from service of the institute w.e.f. 30.12.2014."
As regards his appeal, it was held as follows; Page 12 of 14
"It may be observed that available documents, viz.(i) order of PIC (Electrical) assigning duty of operation and maintenance of the diesel generators to Mr. Behera and (ii) more than 50 requisitions of diesel procurement signed by Mr. Behera negate his claim of not being guilty on the ground of non-involvement in the process of diesel procurement."
13. Thus, there can be no manner of doubt that the order of discharge from service of the petitioner was initiated as a measure of punishment for his alleged misconduct i.e., dishonest transaction. Such being the case, a full-fledged disciplinary proceeding ought to have been conducted with strict adherence to the procedure laid down under Rule-14 of the CCS(CCA) Rules, 1965.
14. This answers the second question framed for determination.
15. From a conspectus of the analysis of facts, contentions raised and law involved, this Court is of the considered view that the petitioner cannot be considered a probationer at the relevant time. Further, no enquiry as required under the first Statute having been conducted prior to his disengagement from service, the same becomes unsustainable in the eye of law.
Page 13 of 14
16. For the foregoing reasons therefore, the writ petition is allowed. The impugned orders under Annexure- 6 as well as the decision of the Board of Governors under Annexure-16 are hereby quashed. The opposite party authorities are directed to reinstate the petitioner in service with immediate effect but without any back wages since the petitioner has not rendered any service to the Institute in the interregnum. However, he shall be entitled to service benefits notionally.
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Sashikanta Mishra, Judge Orissa High Court, Cuttack.
The 19th April, 2023/ A.K. Rana, P.A Page 14 of 14