Central Administrative Tribunal - Cuttack
Pramod Kumar Adhikari vs A.G on 18 January, 2021
O.A. No. 38/2015 1 CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH OA No. 38 of 2015 Present: Hon'ble Mr. Swarup Kumar Mishra, Member (J) Hon'ble Mr. Tarun Shridhar, Member (A)
1. Sri Pramod Kumar Adhikari aged about 47 years, Son of Sri Rankanath Adhikari, At/PO. Achyutapur, Via- Singipur, Dist. Khurda, working as Assistant Audit Officer, Office of the Accountant General and Social Sector Audit, AG Square, Bhubaneswar, Odisha, Dist. Khurda.
.......Applicant.
VERSUS
1. Union of India, represented through the Comptroller and Auditor General of India, 9 DeenDayalUpadhayay Marg, New Delhi - 110124.
2. The Deputy Controller & Auditor General, Office of the Comptroller and Auditor General of India, 9 DeenDayalUpadhayay Marg, New Delhi - 110124.
3. The Accountant General (G&SSA), AG Square, Bhubaneswar, Dist. Khurda, Odisha, PIN - 751001.
4. Sri Amar Patnaik, Accountant General (G&SSA), Odisha, AG Square, Bhubaneswar, Dist. Khurda, Odisha, PIN - 751001.
O.A. No. 38/20152
5. Sri Santanu K Das, OSJS (Retd.), Ex-District & Sessions Judge and Inquiring Authority, Office of the Accountant General, G&SSA, Odisha, Bhubaneswar.
6. Sri. G.J. Das, Welfare Officer (Retd), cum Inquiring Officer, Office of the Accountant General, G&SSA, Odisha, Bhubaneswar.
......Respondents.
For the applicant : Mr. S.K. Ojha, Advocate.
Mr. S. K. Nayak, Advocate.
For the respondents: Mr. S. K. Patra, Advocate.
Mr. P. K. Acharya, Avocate.
Heard & reserved on :18.12.2020 Order on :18.01.2021
O R D E R
Per Mr. Swarup Kumar Mishra, Member (J)
The applicant by filing this OA, has prayed for the following reliefs under section 19 of the Administrative Tribunals Act, 1985:-
(i) To quash order no. Admn.
(G&SSA)/Vig/D.P.1/2013-14/DP-5/2014-15/234, dated 16.01.2015 - issued by the Accountant General (G&SSA) Odisha, AG Square, Bhubaneswar, Dist. Khurda, (Respondent Nos. 3 & 4) under Annexure-A/18; AND
(ii) Consequently be pleased to declare Memorandum No. Admn (G&SSA)/Vig/D.P.-1/2013-2014/1692 dated 29.08.2013 (Annexure A/3) & Memorandum No. Vig (G&SSA)/D.P.-05/2014-2015/87 dated 17.06.2014 O.A. No. 38/2015 3 (Annexure A/4) as illegal, arbitrary non est in the eye of law;
(iii) To quash the order dtd. 13.10.2015 (Annexure A/22) holding the same as illegal and arbitrary.
(iv) To direct the respondents to pay the applicant all his service and financial benefits retrospectively;
(v) To pass any other order/orders as deemed fit and proper;
(vi) To allow this OA with costs.
2. The brief facts of the case is that the OA was allowed by this Tribunal vide order dated 02.02.2017 with the following observation:
"16. The facts, Rules and law discussed above would amply, clearly, pellucidly, undoubtedly, unhesitatingly indicate, display, demonstrate and establish that the exercise of the power of Disciplinary Authority thereby issuing the charge sheet under Rule 14 of the CCS (CC&A) Rules, 165 and appointing the IOs, POs, dealing with the representations in this regard, by the Accountant General, Odisha is holy unjustified, illegal, unwarranted, uncalled for being de hors the rules and law as the Accountant General of Odisha, in no circumstances can be held to be the appointing authority so as to exercise the power of Disciplinary Authority in so far as the applicant is concerned. Hence, the Memorandum of charges as also the impugned order of punishment of compulsory retirement is held to be per se illegal and void ab initio; XXXXXXXXXX
18. For the discussion made above, we quash the Memorandum No. Admn (G&SSA)/Vig/D.P.-1/2013-2014/1692 dated 29.08.2013 (Annexure- A/3) & Memorandum No. Vig (G&SSA).D.P.-05/2014-2015/87 dated 17.06.2014 (Annexure A/4) and the consequential order no. Amn. (G&SSA)/Vig/D.P.-1/2013-14/DP-5/2014-15/234 dated 16.01.2015 (Annexure A/18) and the order No. 27/Staff(Disc.II)/22-2015 dated 13.10.2015 (Annexure A/22) and hold that the applicant is entitled to all service and financial benefits, minus the benefits, if any, he has got consequent upon the imposition of the punishment of compulsory retirement. The Respondents are directed to reinstate the applicant forthwith upon production of a certified copy of this order and in so far as calculation and payments of the financial benefits are concerned, the same shall be calculated and paid to the applicant within a period of sixty days from the date of receipt of a certified copy of this order.O.A. No. 38/2015 4
19. In the result, this OA stands allowed to the extent stated above. There shall be no order as to costs."
3. The respondents had challenged the order dated 02.02.2017 in Hon'ble High Court vide W.P (C) No. 2725 of 2017. Hon'ble High Court vide order dated 05.03.2020 remitted back the matter to this Tribunal with the observation below:
"Considering the facts and submissions of the case the only question now is to be considered whether the Tribunal is well-justified to hold that the Principal Accountant General or the Accountant General is the competent authority to take action against the opp. Party no. 1. In the judgment passed by this Court in W.P. (C) No. 9050 of 2016, it has been held that the Principal Accountant General is the competent authority to take action and the order impugned cannot be sustained in the eye of law.
This Court is of the considered view that since the order passed by the Tribunal in O.A. No. 260/00305 of 2014 has already been set aside by this Court in W.P (C) No. 9050 of 2016, this writ petition stands disposed of directing that the Tribunal should disposed of the O.A. No. 260/00038 of 2015 in the light of the judgment passed by this Court in W.P. (C) No.. 9050/2016. Thus the matter is remitted back to the Central Administrative Tribunal, Cuttack Bench, Cuttack for fresh adjudication, as expeditiously as possible, after giving opportunity of hearing to the parties concerned, on the ground of jurisdiction as well as on merits.
Needles to say that the Tribunal while considering the original application afresh has to take consideration the prescription under Article 311 (2) (b) of the Constitution of India.
With the above observation, the writ petition stands disposed of."
4. The case of the applicants as averred in brief in the OA is that the Respondent No. 3 & 4 issued charge sheet tot the applicant vide Memorandum dated 29.08.2013 (Annexure A/3) & 17.06.2014 (Annexure A/4) under Rule 14 of CCS (CC&A) Rules. The applicant submitted that Respondent No. 3 & 4 i.e. Accountant General is not his appointing authority since he was appointed by Principal Accountant General hence Respondent No. 3 & 4 cannot O.A. No. 38/2015 5 act as disciplinary authority and the memorandum of charge had neither been issued by the appointing authority nor the same had the approval of the appointing authority i.e. PAG. The applicant then submitted his defence denying the allegation as well as questioning the competence, jurisdiction and authority of Respondent No. 3 & 4. The applicant submitted that however without taking his points in to consideration Respondent No. 3/4 appointed IO and PO vide orders at Annexure A5.
5. The applicant further submitted that Respondent No. 5 was appointed as IO to enquire into the charge memorandum dated 29.08.2013 and the IO issued notice dated 19.09.2013 to the applicant to be present on 26.09.2013 for de novo inquiry, hence the applicant submitted petition to Respondent No. 3/4 for change of IO which was rejected on 26.03.2014. The IO held sitting of inquiry on 20.05.2014 and the applicant and the presenting officer were present where the applicant requested the IO not to proceed with the inquiry as he did not expect justice from him but the IO. It is submitted by the applicant that the IO became furious and recorded certain remarks stated to had been given by the applicant on 13.05.2014 but in actually sitting of the enquiry in so far as charge sheet dated 29.08.2013 was never been held on 13.05.2014 (Annexure A/6 as could be evident O.A. No. 38/2015 6 from the remark of the presenting officer in the order dated 20.05.2014 (Annexure A/7). Thereafter the applicant preferred appeal for change of IO to CAG on 19.08.2014 (Annexure A/8) which was pending and he submitted copy of the appeal to the IO with a request not to proceed with the inquiry but the IO called the applicant to appear before him on 08.09.2014 and rejected the applicant's request not to proceed with the enquiry vide order dated 08.09.2014 (Annexure A/9) and posted the enquiry to 29.09.2014. The applicant appeared on 29.09.2014 where vide order at Annexure A/10 the inquiry was shifter to 13.10.2014 and which was again adjourned to 17.11.2014 vide order at Annexure A/11, then to 28.11.2014 vide order at Annexure A/12, and to 11.12.2014 vide order at Annexure A/13. The applicant submitted that since he was suffering from chest pain and he attended the medical for check up for which he intimated to authority vide his letter dated 11.12.2014 (Annexure A/14) that he could not attend the inquiry on 11.12.2014. The proceeding was adjourned to 08.01.2015 vide order dated 11.12.2014 (Annexure A/15). The applicant vide his application dated 08.01.2015 (Annexure A/16) intimated the IO to adjourn the enquiry as he was on field inquiry.
6. The applicant submitted that as far as inquiry into charge sheet dated 17.06.2014 the Respondent No. 3/4 O.A. No. 38/2015 7 appointed Respondent No. 6 as IO and after several sitting of the inquiry on the last date the inquiry was adjourned to 23.05.2014 vide order at Annexure A/17. It is submitted by the applicant that while the matter stood thus during the midst of inquiry, Respondent No. 3/4 issued order dated 16.01.2015 (Annexure A/18) imposing punishment of compulsory retirement as provided in Rule
- 11 (vi) on the applicant under Rule - 19 (ii) of the CCS (CCA) Rules 1965, read with clause (b) of second proviso to Art. 311(1) of the Constitution of India. The applicant then submitted a representation dated 07.02.2015 (Annexure A/21) to Respondent No. 1 and when no action was taken the applicant approached this Tribunal which in its order dated 08.05.2015 directed the respondent no. 2 to consider the representation of the applicant. It is submitted by the applicant that even after such order from the Tribunal, Respondent NO. 2 took another five months to take a decision on the issue and vide office order dated 13.10.2015 (Annexure A/22) rejected the prayer of the applicant. It is submitted by the applicant that respondent no. 3 had acted with malafide exercise of power since a case u/s 354, 506 and 294 was lodged against Respondent No. 3/4 by his maid and the respondent no. 3/4 had tried to settle the matter by influencing the police the same was done at the behest of the applicant and some other employees of the O.A. No. 38/2015 8 department and since the applicant did not became a prey to such request it led to major penalty charge sheet and issuance of order at Annexure A/18. The applicant has submitted copy of statement recorded under Sec. 161 of CrPC as adduced by Respondent No. 3/4 before the police as Annexure A/19. The applicant submitted that a complaint was made by Respondent No. 6 dated 19.09.2014 (Annexure A/20) with regard to locking his house but the said complaint does not disclose that the same was done by the applicant but being biased Respondent No. 3/4 presumed that the same was done by the applicant and hence imposition of punishment.
7. The respondents in their counter inter alia averred that the applicant was charge sheeted in three departmental proceedings initiated under Rule 14 of CCS (CCA) Rules for series of misconduct and misbehaviour committed by him. In one disciplinary proceeding vide charge sheet dated 27.07.2012 he was charged for unauthorizedly leaving duty point of audit at Panchayat Samity Office, Talcher before scheduled closing date of the officially approved audit tour programe. Another disciplinary proceeding was initiated on the basis of direction from CAG office to take action on the complaints made by the inhabitants of Achyutpur village against the applicant that he was misusing his official position to influence the state govt. officers posted in his village locality and was O.A. No. 38/2015 9 extracting personal benefit under the threat of generating adverse audit remarks from this audit office. The preliminary enquiry into the allegations was conducted by the Respondents department which envisaged prima facies there is truth in the allegations of the villagers. In a enquiry conducted by Panchayati Raj Department (Govt. of Odisha) on the request of Respondents department the Block Development Officer and Panchayat Extension Officer in their written statements have alleged that the applicant was actually interfering in their official work. It is submitted by the respondents that the applicant in preliminary enquiry being conducted by Deputy Accountant General instead of commenting upon the allegations made against him he questioned the powers of DAG to conduct such preliminary enquiry. For such act of insubordination charge sheet was issued on 29.08.2013 to the applicant on his misconduct and misbehaviour displayed in Achyutpur village. In another disciplinary proceedings against the applicant was initiated on 17.06.2014 for demonstrating protest inside the office building and inducing others to do so in contravention of rules and orders in this regard and also displaying grossly unbearable insubordination to the DAG-cum-Head of Office.
O.A. No. 38/201510
8. It is submitted by the respondents that inquiry proceedings into charge under charge sheet dated 27.07.2012 was initiated on 29.08.2012 but the applicant deliberately hindered the progress of inquiry by making repeated bias allegations against all the Inquiry Officers. The applicant submitted representation dated 27.09.2012 alleging bias against the IO Sri Keshab Ch. Behera who was changed in order to remove doubts on fair inquiry but still the applicant submitted representation dated 28.06.2013 (Annexure R/2) and 12.07.2013 (Annexure R/3) alleging bias against the changed IO Sri C. Veeraraghavan and requesting for appointment of IO from outside the office. The inquiry was stayed and representation of the applicant was referred to CAG office, New Delhi for appropriate disposal. It is submitted that the IO Sri C. Veeraraghavan stepped down from the inquiry suo motu and in his place Respondent No. 5 an outsider was appointed as IO on 16.09.2013 considering the request of the applicant to appoint suitable person from outside the office. For the same reason too Respondent No. 5 was appointed as IO in the other inquiry proceeding against the applicant arising from memorandum dated 29.08.2013. The applicant again submitted a representation dated 25.09.2013 (Annexure R/4) to the Disciplinary Authority alleging bias against Respondent No.5 on the ground that O.A. No. 38/2015 11 his consent was not obtained before appointing IO from outside and that the new IO was intended to conduct de novo inquiry. His representation was rejected by the DA. The applicant submitted further representation dated 15.10.2013 (Annexure R/5) for seeking review of bias allegation which were rejected on review by the appellate authority i.e Respondent No. 3 vide two reasoned orders dated 26.03.2014 & 02.04.2014 (Annexure R/5) and the inquiries in the said two proceedings were resumed on 13.05.2014. The respondents submitted that although three officers were appointed one after another as the IO, the applicant attributed bias to each one of them as a weapon to trap the two inquiry proceedings at preliminary hearing stage.
9. It is further submitted by the respondents that the applicant started intimidating the IO Respondent No. 5 and the hearing of the inquiry into charges under memorandum dated 27.07.2012 was last conducted on 13.05.2014 where the applicant requested to stay the inquiry on the basis of the order passed by this Tribunal staying inquiry against another charged officer. The said request was turned down by the IO and next date was fixed for 23.05.2014 however the applicant approached the Tribunal which in its interim order dated 16.05.2014 stayed the departmental inquiry into charges under memorandum dated 27.07.2012. In another inquiry O.A. No. 38/2015 12 proceeding arising from memorandum dated 29.08.2013 it was divulged by IO in daily order sheet dated 20.05.2014 that the applicant had passed derogatory remarks against him during the last sitting of inquiry on 13.05.2014 and the applicant brought on record of inquiry an extraneous matter which was sub judice in Hon'ble High Court of Orissa and sought clarification from IO whether he was conducting the trial during his tenure as District Judge and started abusing the Respondent No. 5/IO in improper language touching his integrity. The applicant while verifying the master copy of order sheet dated 20.05.2014 (Annexure R/6) displayed audacity to strike through the recording made by IO highlighting the obnoxious comment made by the applicant on 13.05.2014 and the content of IO's recording was in fact intimidating and humiliating and was sufficient to discourage the IO in conducting inquiry. The applicant then submitted bias representation against IO dated 16.06.2014 to Respondent No. 3 which was rejected vide order dated 17.07.2014. Respondent No. 3 also received one confidential letter from the IO/Respondent No. 5 dated 15.07.2014 (Annexure R/7) elaborating the misbehaviour he encountered from the applicant during inquiry and further he expressed intention to withdraw from the inquiries against the applicant. But however he continued to conduct inquiry O.A. No. 38/2015 13 under department request letter dated 24.07.2014 (Annexure R/8). It is submitted by the respondents that when the IO issued notice to conduct inquiry on 19.08.2014, the applicant submitted representation at Annexure A/8 to Respondent No.2/Appellate Authority alleging bias against the IO and requested to stay the inquiry till its disposal but since earlier bias representation was rejected by the appellate authority the inquiry was not stayed. Since the applicant remained absent in the inquiry on the last two consecutive dates without giving prior intimation to the IO, Respondent No.5/IO produced the daily order sheet dated 08.01.2015 (Annexure R/9) stating that it is not possible on his part to inquire into the charges against the applicant. The respondents further submitted that in another inquiry against the applicant as per charge sheet dated 17.06.2014, Respondent No. 5 was appointed as inquiry officer but on the very first date of hearing the residential house of Respondent No. 6 was locked from outside and Respondent No. 6 made a written complaint dated 19.09.2014 (Annexure R/10) regarding the mishap and met the disciplinary authority to express his intention to abandon the inquiry.
10. The respondent submitted that the applicant was hesitant to contest the charges on merits and he was abusing the provision of bias and displaying intimidating O.A. No. 38/2015 14 behaviour to the IO as a result the inquiries were trapped in preliminary hearing for prolonged period. In such circumstances conducting inquiry into the charges against the applicant was not possible and thus, Respondent No. 3/Disciplinary Authority decided to dispense with the inquiries in term of Rule - 19 (ii) of CCS (CCA) Rules 1965 read with clause (b) of second proviso to Article 311 (2) of the Constitution of India and passed order dated 16.01.2015 imposing statutory penalty of compulsory retirement on the applicant. The applicant had filed OA in this Tribunal and representation to Appellate Authority and as per direction of Tribunal the appellate authority i.e. Respondent No. 2 rejected the appeal vide order dated 13.10.2015.
11. The applicant in his rejoinder to the counter filed by the respondents more or less reiterated the points raised by him in the OA. But in an additional affidavit the applicant has enclosed objection affidavit with enclosures (Annexure A/23) filed by the applicant in WP (C) No. 2725/2014 in Hon'ble High Court. The applicant submitted that not only applicant but also other officials were charge sheeted (Annexure A/24 & A/25) for observing silent protest on 03.08.2012 and that proceedings against them were dropped but also it was observed that Respondent No. 4 had violated the express provisions of law initiating proceedings under the O.A. No. 38/2015 15 CCS(CCA) Rules. It was further submitted that it was observed by the appellate authority vide order dated 24.06.2016 (Annexure A/26) that since Respondent No. 4 is personally concerned with the matter as he is the complainant in the criminal case, instead of acting as Disciplinary Authority he should have asked for ad-hoc disciplinary authority and hence the principle should be adopted against the present applicant since Respondent no. 4 had made police complaint and initiated one after another proceeding against the applicant.
12. Learned counsel for the applicant relied on some citations including the following:
a) Hon'ble High Court of Orissa in OJC No. 527/1977 in BabajiCharan Rout vs. State of Orissa and Ors.
b) Hon'ble Apex Court in Jaswant Singh vrs State of Punjab & others AIR 1991 SC 385.
c) Hon'ble Apex Court in Civil Appeal No. 2839/2011 in Risal Singh vrs. State of Haryana &ors.
d) Hon'ble Apex Court in VedMitter Gill vrs. UT Administration, Chandigarh &ors. AIR 2015 SC 1796.
e) SC Mehta vrs Union of India, 1983 (3) LSR 714 (Delhi)
f) Hon'ble Apex Court in Cable Corporation of India vrs Additional Commissioner of Labour and others (2008) 2 SCC (L&S) 581.O.A. No. 38/2015 16
g) Hon'ble Apex Court in D.B. Gohil v Unio of India &Ors (2011) 1 SCC (L&S) 213.
h) Hon'ble Apex Court in Union of India &AnrvrsKunisetty Satyanarayana (2007) 2 SCC (L&S) 304.
i) AIR 1964 SC 506 in The State of Mysore vrs K. Manche Gowda.
j) AIR 1976 SC 1964 in State of Andhra Pradesh vrs S. N. Nizamuddin Ali Khan.
13. Learned counsel for the respondents relied on some citations including the following:
a) CAT, Allahabad Bench in OA No. 1516/2012 in Hari Shanker Tiwari vrs Union of India &ors.
b) Hon'ble Madras High Court in S. Murgadoss vs. The State of Tamil Nadu WP No. 10328 of 2014
c) 2013 (Supp-II) OLR - 1098 (Orissa State Handloom weavers cooperative society ltd vrsBhagaban Rout).
d) Hon'ble Apex Court in Union of India vs Tulsiram AIR 1985 SC 1416 and Satyavir Vs Union of India AIR 1986 SC 555.
e) 2017 4 SCC 507 (CISF & Others vrs Abrar Ali).
f) 1992 SC (RN GOSAIN A V/s. Yashpal Dhir).
g) Hon'ble High Court in WP (C) No. 9050 of 2016.
14. We have carefully gone through the pleadings, written note of submission and citations of learned counsels for both the sides. The citations relied on by O.A. No. 38/2015 17 learned counsel for the applicant are not applicable to facts and circumstances of this case.
15. Hon'ble High Court of Orissa while remitting back the matter had directed the Tribunal to dispose of this OA in light of judgment passed by the Hon'ble High Court in WP (C) No. 9050 of 2016 and to take in to consideration the prescription under Article 311 (2) (b) of the Constitution of India. The operative part of Hon'ble High Court order is given below:
" 22. In view of these documents, this Court has come to conclusion that the status of office depends upon its incumbency who has been directed to work as H.O.D. he may be in the rank of Principal Accountant General or A.G. We, also gathered from these documents that at the time when the private opposite party has got his promotion, the H.O.D. during the relevant time was Principal Accountant General (Civil Audit) but at the time when the memorandum of charge was issued the office was being headed by the officer in the rank of A.G. (Civil Audit) and as such he in the capacity of H.O.D. has become the appointing authority of all such officers who have been promoted on earlier occasion by the order of the Principal Accountant General (Civil Audit) as because after the decision of the competent authority, the post of Principal Accountant General was no more in existence who were in the capacity of H.O.D. rather it has become A.G. (Civil Audit) to function in the capacity of H.O.D. office of the A.G., Odisha.
23. We have gathered from the order passed by the Tribunal by going through the order of promotion granted in favour of the private opposite party by the Principal Accountant General (Civil Audit) but the Tribunal fails to appreciate the fact that in the meanwhile i.e. in between the order granting promotion and the date of issuance of memorandum of charge, the nomenclature of he office has changed and i.e. in pursuance of the notification dated 20.04.201 which speaks about the H.O.D. in the rank of Principal Accountant General or A.G. or Officer in the equivalent rank.
24. The Tribunal while disposing of the original application ought to have taken into consideration the subsequent development as has been discussed hereinabove before coming to the conclusion regarding jurisdiction of the A.G. (Civil Audit).
We, on the basis of discussion made above, are of the view that the Tribunal ought to have taken into consideration the functioning of the officer in capacity of H.O.D. and not in the capacity of the Principal Accountant General or A.G. O.A. No. 38/2015 18
25. In that view of the matter, we are not in agreement with the finding given by the Tribunal and as such the order passed by the Tribunal is not sustainable in the eye of law, in the result the same is set aside.
In consequence thereof, the competent authority is directed to conclude the departmental proceeding within a period of three months from the date of receipt of this order.
It goes without saying that while proceeding with the disciplinary enquiry, the authority will provide reasonable opportunity of being heard to the delinquent employee.
It is made clear that the competent authority will not be prejudiced in any way while passing the final order.
With this observation and direction, the writ petition is disposed of."
Taking into consideration the order passed by Hon'ble High Court above and in the directions given in W.P. (C) No. 2725/17, we are of the view that there is no ambiguity, illegality or irregularity in issuance of charge memorandum and Respondent No. 3 acting as disciplinary authority.
16. Hon'ble High Court of Orissa in WP (C) No. 18133 of 2010 in the case of Orissa State Handloom Weavers Cooperative Society Ltd vrs Bhagaban Rout had held:
"8. The apex court in Tulsiram Patel's case has held as follows:
"It is not necessary that a situation which makes the holding of an inquiry not reasonably practicable should exist before the disciplinary inquiry is initiated against a government servant. Such a situation can also come into existence subsequently during the course of an inquiry, for instance, after the service of a charge sheet upon the government servant or after he has filed his written statement thereto or even after evidence has been led in part. In such case also the disciplinary authority would be entitled to apply clause (b) of the second proviso because the word "inquiry" in that clause includes part on an inquiry. It would also not be reasonable practicable to afford to the government servant an opportunity of hearing or further hearing, as the case may be, when the commencement of the inquiry or pending it the government servant absconds and cannot be served or will not participate in the inquiry. In such cases, the matter must proceed exparte and on the materials before the disciplinary authority. Therefore, even where a part of an inquiry has been held and the rest is dispensed with under clause (b) or a provision in O.A. No. 38/2015 19 the service rules analogous thereto, the exclusionary words of the second proviso operate in their full vigour and the government servant cannot complain that the has been dismissed, removed or reduced in rank in violation of the safeguard provided by Article 311 (2).
It was next submitted that though clause (b) of the second proviso excludes an inquiry into the charges made against a government servant, it does not exclude an inquiry preceding it, namely, an inquiry into whether the disciplinary inquiry should be dispensed with or not, and that in such a preliminary inquiry the government servant should be given an opportunity of hearing by issuing to him a notice to show cause why the inquiry should not be dispensed with so as to enable him to satisfy the disciplinary authority that it would be reasonably practicable to hold the inquiry. This argument is illogical and is contradiction in terms. If an inquiry into the charges against a government servant is not reasonable practicable, it stands to reason that an inquiry into the question whether the disciplinary inquiry should be dispensed with or not is equally not reasonably practicable.
Where a government servant is dismissed, removed or reduced in rank by applying clause (b) or an analogous provision of the service rules and he approached either the High Court under Article 226 or this Court under Article 32, the Court will interfere on grounds well established in law for the exercise of power of judicial review in matters where administrative discretion is exercised. It will consider whether clause (b) or an analogous provision in the service rules was properly applied or not. The finality given by clause (3) of Article 311 to the disciplinary authority's decision that it was not reasonably practicable to hold the inquiry is not binding upon the Court. The Court will also examine the charge of mala fides, if any, made in the writ petition. In examining the relevancy of the reasons, the Court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonable practicable to hold the inquiry. If the Court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by clause (b) and would take the case out of purview of that clause and the impugned order of penalty would stand invalidated. In considering the relevancy of the reasons given by the disciplinary authority the Court will not, however, sit in judgment over them like a Court of first appeal. In order to decide whether the reasons are germane to clause (b), the Court must put itself in the place of the disciplinary authority and consider what in then prevailing situation a reasonable man acting in a reasonable way would have done. The matter will have to be judged in the light of the then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a court- room, removed in time from the situation in question. Where two views are possible, the court will decline to interfere.
9. The apex Court in Satyavir Sing's case (supra) has held as follows:
The next point was that it was not alleged by the authorities that anyone was physically injured in the agitation. This is another argument which is difficult to understand. As held in Tulisram patel's case (AIR 1985 SC 1416) it will not be reasonably practicable to hold an inquiry where an atmosphere of violence or of general indiscipline and insubordination O.A. No. 38/2015 20 prevails. It is, therefore, not necessary that the disciplinary authority should wait until incidents take place in which physical injury is caused to others before dispensing with the inquiry.
10 In view of the above position of law, since the disciplinary inquiry has been completed after following the prescribed procedure, the opposite party, being a wrong doer, is not entitled to get any benefit for his overt act.
11. XXXXXXXXXX The writ petition is allowed"
17. It would be relevant to see if the Disciplinary Authority's findings for imposing punishment of Compulsory Retirement on the applicant using the provisions of Clause (b) of second proviso to Article 311 is justified or not. The relevant portion of the order dated 16.01.2015 is extracted below:
"WHEREAS the undersigned, in view of the aforesaid situation and condition created by the C.O. during the courses of inquiries and such situation persisting even now, is now fully satisfied that it is not reasonably practicable or possible on the part of the Inquiring Authorities to continue to conduct the respective inquiries against the CO in the manner prescribed under Rule- 14 of the CCS (CCA) Rules, 1965. The CO is not only intimidating and humiliating the Inquiry Authorities, but also obstructing the progress of departmental inquiries by abusing the provisions of bias instead of contesting the charges on merit. The perversion displayed by the charged officer, Shri Adhikari has not only hindered the progress of above departmental inquiries but has also inflicted harassment to different inquiry authorities, besides, resulting in loss of precious government time and resources. The intention of the CO, Shri Adhikarim is to intimidate both the sitting Inquiring Authorities, Shri Santanu Kumar Das, retired District & Sessions Judge and Shri G. Jagganath Das, retired welfare officer, so as to compel them to abandon the inquiries being conducted by them, on their own. I am of the considered opinion that no other respectable serving or retired Government servant would be willing to be appointed as Inquiring Authorities in the above proceedings for fear of exposing themselves to such verbal humiliation, intimidation, hostility, harassment and insult at the hand of charged officer, Shri Pramod Kumar Adhikari. Thus the ongoing departmental inquires against Shri Adhikari, which are still in the preliminary hearing stage despite long lapse of time, are not possible to be continued for reaching their finality;
WHEREAS by threatening and influencing officers of the State Government units/bodies, which are being audited by the Accountant General (General and Social Sector Audit) Odisha on behalf of the O.A. No. 38/2015 21 Comptroller & Auditor General of India, he has not only compromised the image of the office but has also severally dented the institutional integrity and reputation of the august constitutional authority of the Comptroller & Auditor General of India. This may result in State Government Offices loosing trust and confidence on the independent, transparent and unbiased functioning of this organization, which is entrusted with the constitutional responsibility of providing assurance to the legislature and the common citizens about the functioning of the executives, without fear and favour. This apprehension of the State Government Officers needs to be allayed by taking prompt and stringent remedial action. Further, he has continuously disobeyed and insulted his superior officers in gross display of insubordination and in taking part in protest demonstration in office despite official instruction to the contrary. This continuing despicable behaviour displayed by Shri Adhikari, as imputed and explained in details in the memorandums/charge sheets, are therefore grave enough to be ignored and treated leniently. Thus, the charges render his continuance in government service untenable as his conduct has continued to be unbecoming of a responsible government servant;
AND WHEREAS, in view of the culpable perversity displayed by the Charged Officer, Shri P. K. Adhikari during the course of both the inquiries, over and above the charges levelled against him in these departmental disciplinary proceedings and since no inquiry can be continued any further, I consider it appropriate and just to impose major penalty on Shri Pramod Kumar Adhikari by applying the special procedure as stipulated in Rule 19 (ii) of Central Civil Services (Classification, Control & Appeal) Rules, 1965 read with clause (b) of second proviso to Art-311 (2) of the Constitution of India, as it is not reasonable practicable to continue the above inquiries in the manner provided in Rule-14 of the said Rules, 1965.
NOW THEREFORE, in exercise of powers conferred by Rule-19 (ii) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 read with clause (b) of second proviso to Art-311 (2) of the Constitution of India, the undersigned imposes upon the said Shri Pramod Kumar Adhikary, Assistant Audit Officer of this office the penalty of "Compulsory Retirement" as provided in Rule-11(vii) of the aforesaid rules from the date of issue of this order.
This order shall take immediate effect."
18. Even if for the sake of argument the submission of learned counsel for the applicant to the effect that there was no written communication by inquiring officer in other disciplinary proceeding started against the applicant regarding any difficulty in proceeding with the inquiry is accepted, still then the materials on record clearly reveal the conduct of the applicant with the sole purpose of stalling the disciplinary proceeding in question and taking all dilatory tactics for delaying O.A. No. 38/2015 22 the same. This Tribunal is satisfied that cumulative effect of the conduct of the applicant as revealed from the grounds mentioned in the impugned order by the disciplinary authority and the materials on record were sufficient enough for the disciplinary authority not tp proceed any further with the disciplinary proceeding against the applicant and revoking the power under Article 311 (2) (b) of the Constitution of India and to pass the order of punishment. This is not a case in which there was absolutely no reason at all assigned by the disciplinary authority for passing the impugned order in question. This Tribunal need not go deeper into the grounds as mentioned in the impugned order of the disciplinary authority for the purpose of dispensing with further inquiry in this case as the Tribunal is satisfied that the reasons given on the face of it are sufficient enough to justify passing of the order in question. The factors which weighed in the mind of disciplinary authority and the ground reality of the situations has to be considered in a practical manner to the subjective satisfaction of the disciplinary authority. After carefully going into materials on record this Tribunal is of the opinion that it cannot be said that no person of ordinary prudence could have passed the order. The order in question also clearly shows that the disciplinary authority has applied his mind in proper perspective by taking into consideration the entire circumstances and ground realities in question. Therefore there is no scope or justification to interfere with the impugned order in question.
19. Hon'ble Apex Court in B.C. Chaturvedi vs Union of India 1995 6 SCC 749 had held:
A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, O.A. No. 38/2015 23 being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. It the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases. impose appropriate punishment with cogent reasons in support thereof.
20. Taking into consideration the allegation as made against the applicant his conduct for substantial period as taken into consideration by the disciplinary authority, this Tribunal is also satisfied that the punishment as imposed against the delinquent employee is neither disproportionate nor shocks the conscience of the Tribunal. On the other hand the punishment as imposed on the delinquent applicant is commensurate with the gravity of the misconduct of the applicant. Hence, there is no scope, necessity or justification to interfere with the said order.
21. Accordingly, the OA is dismissed being devoid of merit but in the circumstances without order to cost.
(TARUN SHRIDHAR) (SWARUP KUMAR MISHRA) MEMBER (A) MEMBER (J) (csk)