Orissa High Court
Jaya Prakash Mohanty vs State Of Odisha Represented By Its ... on 30 June, 2017
Author: B.K.Nayak
Bench: B.K.Nayak
HIGH COURT OF ORISSA,CUTTACK
W.P. (C) No.23837 of 2013
In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950.
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Jaya Prakash Mohanty ......... Petitioner
Versus
State of Odisha represented by its
Secretary, Home Department and other ......... Opposite Parties
For Petitioner : M/s.L.Kanungo, S.Das, S.N.Das,
S.K.Mishra and L.N.Rayatsingh
For Opp. Parties : Bibhu Prasad Tripathy
Additional Government Advocate
.........
PRESENT :
THE HON'BLE MR. JUSTICE B.K.NAYAK
AND
THE HON'LE DR. JUSTICE D.P.CHOUDHURY
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Date of hearing:20.03.2017 Date of judgment:30.06.2017
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Dr. D.P.Choudhury, J. Challenge has been made to the order dated
12.1.2007(Annexure-9) of compulsory retirement passed by the Disciplinary Authority and order dated 17.4.2013 (Annexure-10) passed by the Appeal Committee confirming the order of the Disciplinary Authority.
2. FACTS The factual matrix leading to the writ petition is that the petitioner was appointed as a driver in the judgeship of Kandhamal, Phulbani and during the relevant period, he was attached to the Office of Chief Judicial Magistrate, Boudh for plying the office Jeep bearing -2- registration No.OLR 2594. During his incumbency as a driver, he was departmentally proceeded vide D.P. No.14/2005 and the charges against him were as follows:
"OFFICE OF THE DISTRICT JUDGE KANDHAMAL-BOUDH, PHULBANI DISCIPLINARY PROCEEDING No.14/2005
1.Name, Rank and Grade of the Officer proceeded against: Shri Jaya Prakash Mohanty Driver C.J.M. Court Boudh Now on deputation to the Court of JMFC Kantamal
2.Rank : Class-III
3.Whether Permanent or Temporary : Temporary
4.Scale of Pay : Rs.3,200/- to Rs.4,900/-
DETAIL OF CHARGES You Sri Jaya Prakash Mohanty Driver, C.J.M., Court Boudh now on deputation to the Court of J.M.F.C., Kantamal, is charged as follows:
CHARGE NO.1 That, it appears that during your incumbency as Driver C.J.M. Court Boudh, you were not reported regarding depositing of Road Tax from March'02 to March'04 of the Office Jeep bearing ORL- 2594 to your immediate authority of the Registrar, Civil Courts, Phulbani as the R.C.Book of the said vehicle was with you. Further the Regional Transport Authority, Phulbani has charged Tax Rs.1240/- + penalty of Rs.2480/- in Total Rs.3220/- for payment. Due to your latches the office has already paid Rs.2480/- excess as penalty to the R.T.A. Phulbani.
Your above action amounts to gross negligence in duty, carelessness, disobedience of order and dereliction in duty and thereby you have violated the Rule-3 of the Orissa Govt. Servants Conduct Rules, 1959, punishable as contemplated under Rule 15 of the Orissa Civil Services (CCA) Rules-1992.
CHARGE NO.2 That, it appears from the available records that you have not handed over the R.C.Book of the Office Jeep bearing Regd. No.ORL-2594 to the bidder. On being asked, you have stated that the R.C.Book of the said vehicle has been completely damaged by white ants as it was kept inside the garage. Due to your negligence, the R.C.Book of the said vehicle has been damaged.
Your above action amounts to gross negligence in duty, carelessness, misconduct and dereliction in duty and thereby you have violated the Rule-3 of the Orissa Government Servants -3- Conduct Rule, 1959 punishable as contemplated under Rule 15 of the Orissa Civil Services (CCA) Rules, 1962. CHARGE NO.3 That, the Chief Judicial Magistrate, Boudh has intimated vide his office Letter No.1920 dated 22.09.2005 that you were driving his personal vehicle to bring him from his residence to the Court and back from 20.1.2005 to 16.8.2005 at his own request, without prior permission of the District Judge.
Your above action amounts to carelessness, dereliction in duty and misconduct and thereby you have violated the Rule 3 of the Orissa Govt. Servants Conduct Rules, 1959 punishable as contemplated under Rule-15 of the Orissa Civil Services (CCA) Rules, 1962 Charge No.4 That the Judicial Magistrate, First Class, Kantamala has intimated in his letter no.1249 dated 29.09.2005 that you have remained absent unauthorizedly from 1.9.2005 to 29.9.2005 in the office without prior permission of the authority, for which many difficulties are being experienced in attending the day to day office work.
Your above action amounts to misconduct, unauthorized wilful absence, carelessness and dereliction in duty and thereby you have violated the Rule 3 of the Orissa Govt. Servants Conduct Rules, 1959 punishable as contemplated under Rule-15 of the Orissa Civil Services (CCA) Rules, 1962.
You are hereby called upon to submit your Written Statement of defence, if any, within 15 days from the date of receipt of the communication, if no written statement of defence is received within the period fixed, it would be presumed that, you have no defence to make.
You may also state in writing if you desire to be heard in person.
Sd/-District Judge, Kandhamal-Boudh,Phulbani"
3. The opposite party no.3, being the Disciplinary Authority, appointed opposite party no.4 as Enquiring Officer. The petitioner submitted his written statement stating that the charges made against him are baseless and he has no fault because it was the duty of the Registrar, Civil Court to pay the road tax of the Jeep and his predecessor was responsible for non-payment of the road tax of the said Jeep. It is also mentioned in the written statement submitted by the petitioner that there was no Almirah or table given to him to keep the registration certificate (RC Book) of the Jeep and the same has been kept in the -4- Garage of the Jeep for which the white ants damaged the R.C.Book of the Jeep. He further submitted in writing that on being directed by the C.J.M., Boudh, he was driving his private vehicle when the office Jeep became out of order. Moreover, he remained absent with the permission of the authority as he was required to depose before the District Judge and remained absent further due to illness of his family members. So, he prayed to exonerate him from the charges.
4. The Enquiring Officer, opposite party no.4 submitted his report after examining all the witnesses from both sides to the effect that the prosecution has proved all the charges except Charge No.3 and accordingly, sent the report to the Disciplinary Authority, opposite party no.3, who issued notice to show cause but the petitioner did not attend the opposite party no.3 and opposite party no.3 passed order retiring the petitioner compulsorily from service because of his gross misconduct, insubordination and negligence in duty. The petitioner preferred appeal before the Appeal Committee of this Court and the Appeal Committee were pleased to reject the Appeal Memo of the petitioner and confirmed the order of compulsory retirement passed by the opposite party no.3. Against such order of compulsory retirement, the present writ petition is filed on various grounds.
5. SUBMISSIONS Mr.Kanungo, learned counsel for the petitioner submitted that the Enquiring Officer and the Disciplinary Authority have committed gross error by not considering the plea taken by the petitioner in the -5- written statement although the predecessor of the petitioner Sri Manoj Kumar Behera was also proceeded departmentally vide D.P.No.15/2005 for non-payment of the road tax of the said Jeep and payment of penalty imposed on delayed payment of road tax of the said Jeep, but in that proceeding, said Manoj Kumar Behera was let off by issuing warning. He further submitted that since for the same nature of allegation, his colleague Manoj Kumar Behera was only issued a warning, he is being discriminated by awarding punishment of compulsory retirement. In support of his contention, he relied upon the decision reported in Rajendra Yadav -V- State of M.P. & others; 2013 (II) OLR (SC) 48 wherein Their Lordships have observed that doctrine of equality applies to all who are equally placed, even among person who are found guilty. So, learned counsel for the petitioner submitted that for the self-same allegation, when Manoj Kumar Behera, the colleague of the petitioner was awarded with only censure, petitioner could have been awarded similar punishment by applying the doctrine of equality without being discriminated.
6. Mr.Kanungo, learned counsel for the petitioner submitted that there is no proper assessment of the evidence adduced by the petitioner because in the Enquiry Report, there was no discussion about any material leading to wrong conclusion. Since the Registrar, Civil Courts is the Judge-in-Charge of the vehicles of the judgeship, the necessary documents are all to be kept with the Registrar, but in this case, the responsibility is fixed on the petitioner with ulterior motive. -6- The payment of road tax of the Jeep in delay was not the fault of the petitioner but it is the fault of the Nazir as he has got the duty to pay the road tax. He further submitted that since the petitioner was under
the control of the then Chief Judicial Magistrte, he has no option than to drive the personal vehicle under his instruction. However, that charge has been dropped being not proved.
7. So far Charge No.4 is concerned, the petitioner has left the headquarters with the permission of the authority concerned and extended leave by applying through post and the same having being duly received by the Office, the charge of unauthorized absence or negligence in duty was disproved. According to him, the Disciplinary Authority, without being biased by the report of the Enquiring Officer, should have considered the case of the petitioner on going through the material placed before him but the opposite party no.3 passed harsh order of punishment disproportionate to the charges levelled against the petitioner. Learned counsel for the petitioner submitted that the punishment apart from being discriminatory is also disproportionate to the charge made against the petitioner. The Appeal Committee has also lost sight of the fact that the punishment awarded is disproportionate to the charges proved against the petitioner for which said order is also vulnerable.
8. Mr.B.P.Tripathy, learned Additional Government Advocate, by referring to the counter affidavit filed by the opposite parties, submitted that there is no illegality in the impugned order passed by the -7- Disciplinary Authority as well as by the Appeal Committee because the petitioner is charged with gross negligence and dereliction in duty besides the charge of gross misconduct. According to him, due to negligence of the petitioner, the opposite party no.4 had to pay the penalty of Rs.2480/- to the Regional Transport Authority, Phulbani with road tax in respect of the Jeep bearing registration No.ORL-2594. Not only this but also due to the sole negligence of the petitioner, the entire R.C.Book of the said jeep has been damaged by white ants although it was his duty to keep the document of the vehicle in safe custody.
9. Learned Additional Government Advocate further submitted that the petitioner was plying the personal vehicle of the Chief Judicial Magistrate without any permission from the authority for the period when the said Jeep became out of order. He again contended that the petitioner was granted C.L. and permission from 01.09.2005 to 05.09.2005 to give evidence before the District Judge, Phulbani, but thereafter he did not resume his duty on 06.09.2005 and as such remained absent from his duty unauthorizedly till 03.10.2005 by sending telegrams only on two occasions, i.e. on 12.09.2005 and 20.09.2005 in a casual manner, which would go to show that the petitioner has no regard for discipline and as such he disobeyed the order of the authority. He further stated that said Manoj Kumar Behera has been also punished by the Disciplinary Authority as the order has been passed by cautioning him. So, it cannot be said that Sri Behera was let off without any punishment and moreover, the petitioner is -8- facing four charges whereas Sri Behera was facing only charge of negligence for non-payment of the road tax of the vehicle for certain period from 1999 to 2002. Hence, the plea of the petitioner that he was discriminated when Shri Behera was let off with minor punishment is incorrect. As such, Mr.Tripathy, learned Additional Government Advocate submitted that the petitioner has no case and the writ petition should be dismissed.
10. POINT FOR DETERMINATION The main point for determination is; (1) Whether the order of compulsory retirement passed by the Disciplinary Authority is illegal and improper?
11. DISCUSSIONS On perusal of the details of Charges (Annexure-1) and the Enquiry Report (Annexure-B/3), it appears that Charge No.3 has not been proved. It is trite in law that reevaluation of evidence adduced before the Enquiring Officer is impermissible, but if there is manifest error in the procedure while conducting the enquiry, the Court will not hesitate to interfere. In the instant case, the Charge No.1 relates to non-payment of road tax of the Jeep bearing Registration No.ORL-2594 for the period from March 2002 to March, 2004 because of non- reporting about such payment of tax to the Registrar, Civil Court by the petitioner. Due to such non-payment, later the Regional Transport Authority, Phulbani charged tax of Rs.1240/- along with penalty amount of Rs.2480/- and in total Rs.3720/- was paid by the opposite party no.4. -9- It is not out of place to mention here that one Manoj Kumar Behera, the predecessor of the petitioner, was driving the said office Jeep. It is also revealed from the counter affidavit of the opposite parties that from March, 1999 to February, 2002, road tax for the said Jeep had not been paid for which said Manoj Kumar Behera was also proceeded vide D.P. No.15/2005. It is also revealed from the counter affidavit that from the year 1999 till 2004, the road tax along with penalty was paid by the office of the District Judge. When Manoj Kumar Behera was the predecessor of the petitioner and proceeded for the self-same reasons, it cannot be said that the petitioner was solely responsible for non- payment of the road tax. Apart from this, the judicial notice can be taken from the concerned rules or procedure that the payment of road tax for the vehicle is not only the duty of the driver but also of the Nazir, who is under the direct control of the Registrar, Civil Court and the Registrar, Civil Courts is the Judge-in-Charge of all the vehicles under the relevant rules. No doubt, the petitioner, being the driver of the vehicle has got onerous duty for payment of the road tax so that the vehicle can run on the road. But, it was not his only duty to report about the non-payment of road tax whereas the other officers have equally got responsibility to ensure the payment of road tax of the vehice on time.
12. The petitioner was found guilty of negligence as the RC Book of said vehicle has been damaged by white ants while the same being kept in the garage of the Chief Judicial Magistrate. In this regard, the plea of the petitioner that the opposite party no.4, being the Drawing
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and Disbursement Officer (D.D.O), has got the responsibility to be in custody of the RC Book of the vehicle is not only evasive but also against the relevant provisions of law. The driver is always required to possess the RC Book of the vehicle so that the vehicle, on checking, can be found with all required documents as per the M.V.Act and Rules made thereunder.
13. So far Charge No.4 is concerned, it is admitted by the opposite parties that the petitioner had left Headquarters with permission to depose and remained absent subsequently. It is equally admitted by the opposite parties in the counter affidavit that the petitioner has made telegram time to time extending his leave. When it is admitted fact that the petitioner has left Headquarters with permission and has also sent telegrams from time to time, we are of the considered view that the petitioner has made all efforts asking for leave from 05.09.2005 onwards and finally, he joined his duty on 04.10.2005. So, the period of absence right from 01.09.2005 till 03.10.2005 cannot be said to be without any prior information to the authority nor the same can be termed as unauthorized absence. There is no plea of the opposite parties that the petitioner was issued with any notice to resume his duty, but he failed to attend. Thus, we are of the opinion that Charge No. 4 cannot be said to have been successfully proved against him.
14. Now the Charge Nos.1 and 2 levelled against the petitioner only remained on paper being proved against him although allegations pertaining to Charge No.1 against his predecessor Sri Behera being
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proved, he has been issued with the order of caution. Nothing is found from the counter that the petitioner was earlier punished under any disciplinary proceeding. Thus the case of the petitioner is similar to the case of Sri Behera so far as Charge No.1 is concerned, but the punishment are not equally awarded.
15. It is reported in the case of Rajendra Yadav -V- State of M.P. & others (Supra) where Their Lordships, at paragraphs-12 and 13, have observed as follows:
"12. The Doctrine of Equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The Disciplinary Authority cannot impose punishment which is disproportionate, i.e., lesser punishment for serious offences and stringent punishment for lesser offences.
13. The principle stated above is seen applied in few judgments of this Court. The earliest one is Director General of Police and Others v. G. Dasayan (1998) 2 SCC 407, wherein one Dasayan, a Police Constable, along with two other constables and one Head Constable were charged for the same acts of misconduct. The Disciplinary Authority exonerated two other constables, but imposed the punishment of dismissal from service on Dasayan and that of compulsory retirement on Head Constable. This Court, in order to meet the ends of justice, substituted the order of compulsory retirement in place of the order of dismissal from service on Dasayan, applying the principle of parity in punishment among co-delinquents. This Court held that it may, otherwise, violate Article 14 of the Constitution of India. In Anand Regional Coop. Oil Seedsgrowers' Union Limited -V- Shailesh Kumar Harshadbhai Shah (2006) 6 SCC 548, the workman was dismissed from service for proved misconduct. However, few other workmen, against whom there were identical allegations, were allowed to avail of the benefit of voluntary retirement scheme. In such circumstances, this Court
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directed that the workman also be treated on the same footing and be given the benefit of voluntary retirement from service from the month on which the others were given the benefit."
With due regard to the above decision, it appears that the doctrine of equality must apply to all those who are equally placed; even who are found guilty for similar charges. The equality of treatment would also be maintained while imposing punishment and there cannot be discrimination as the same would violate Article 14 of the Constitution of India. Applying the said principle in the instant case, it appears that when Manoj Kumar Behera in D.P. No.15/2005 was let off with caution as revealed from the counter of the opposite parties, the order of punishment of compulsory retirement passed against the petitioner is discriminatory being violative of Article 14 of the Constitution of India. On the other hand, the doctrine of equality must be applied in the present case.
16. Apart from this, we are of the considered opinion that neither the Disciplinary Authority nor the Appeal Committee could examine proportionality of the punishment to the charges levelled against the petitioner. When there are only charges of non-reporting about non-payment of road tax and damage to the RC Book of the vehicle proved, award of punishment like compulsory retirement, in our considered opinion, is disproportionate to the charges proved against him in terms of the discussions made above. Hence, the order of passing compulsory retirement against the petitioner is illegal and improper. The point for discussion is answered accordingly.
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17. CONCLUSION From the foregoing discussions, it is made clear that the punishment awarded to the petitioner is not in consonance with the principles of law vis-a-vis the charges proved against him for which the same cannot be sustained in law. We, therefore, are of the view that the said order of compulsory retirement passed by the Disciplinary Authority vide Annexure-9 and the order passed by the Appeal Committee vide Annexure-10 are liable to be quashed and the Court do so. On the other hand, considering the gravity of Charge Nos.1 and 2 proved against the petitioner, he may be awarded with the punishment of stoppage of four annual increments without cumulative effect. Accordingly, it is directed that the petitioner be reinstated in service and the consequential service benefits including the financial benefits be extended to him. It is made clear that the petitioner would be extended the financial benefits notionally and the entire exercise must be completed within a month from the date of this order.
The Writ Petition is disposed of accordingly.
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Dr.D.P.Choudhury,J.
B.K.Nayak,J I agree.
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B.K.Nayak,J.
Orissa High Court,Cuttack
Dated the 30th Day of June,2017/B.Nayak