Orissa High Court
Debi Prasad Mohanty vs Chief Executive Officer Cesco And ... on 24 August, 2017
Author: S. N. Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.5595 of 2004
In the matter of application under Articles 226 and 227 of the
Constitution of India.
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Debi Prasad Mohanty ...... Petitioner
- Versus-
Chief Executive Officer, CESCO & others ...... Opposite Parties
For Petitioner :M/s. Kali Prasanna Mishra, J. K.
Khandayatray, S.Das, S. Mohapatra, C.
Mallick.
For Opposite Parties :Mr. Banoj Ku. Patnaik, Prasanjit Sinha,
P.K. Sahoo, R.K. Nayak.
PRESENT:
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment : 24.08.2017
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S. N. Prasad, J.This writ petition has been filed for quashing the order dated 21.05.2004 issued under signature of Superintending Engineer, Electrical Circle No.1, Bhubaneswar whereby and where under the order of punishment of compulsory retirement w.e.f. date of Suspension i.e. w.e.f. 28.01.2003 has been passed on confirmation of departmental proceeding No.4231/2001 dated 3.11.2001 and 14/2008 dated 18.12.2003. 2
2. Case of the petitioner is that while he was working as Clerk-B (U/S) under the opposite parties, a departmental proceeding was initiated in Proceeding No.4231 dated 3.11.2001 making allegation of charge of mis-behaviour to the superior officer by using unparliamentary and derogatory language, insubordination, refusal to accept office order, unauthorized absence from duty and misconduct. Another proceeding was initiated in Proceeding No.4231 dated 3.11.2001 alleging the same nature of allegation. The petitioner has approached this Court at the initial stage of the departmental proceeding, since relevant documents from the authority basis upon which the charges has been framed, has not been supplied to him, which is the mandatory requirement as per the provision 15(2) of O.C.S. (C.C.A.) Rules, 1962.
This Court vide order dated 21.05.2004 has passed an interim order to the effect that departmental proceeding may continue but no final decision will be taken without leave of this Court till the next date.
3. Grievance of the petitioner is that the document relevant for putting proper defence of the charges has not been supplied to her. The authorities have proceeded with the departmental proceeding but without supplying the relevant documents specially the complaint of misbehaving with the consumer of the area and the report submitted in this regard by the then S.D.O. of the area and as such it is the contention of the petitioner 3 that he has seriously been prejudiced in the departmental proceeding since he has not been allowed to defend himself properly.
4. Learned counsel for the petitioner has submitted that the settled proposition of law is that the copy of complaint of the complainant if not allowed to be examined by the delinquent employee, it amounts to violation of principle of natural justice. She argues that the report basis upon which the departmental proceeding has been initiated, copy of the same has not been exhibited by the S.D.O. concerned since in spite of repeated notice issued to him, he has not appeared before the enquiry officer and the enquiry officer after noting it down in the enquiry report has given the finding by proving the charge.
She further submits that the authorities during pendency of the writ petition has passed the final order on 21.05.2004, the petitioner came to know about the final order only in course of pendency of the writ petition, when the authorities have brought the order of punishment dated 21.05.2004 by way of counter affidavit, thereafter the application for making amendment in the prayer portion has been filed challenging the order of punishment dated 21.5.2004 which has been allowed by this Court vide order dated 6.5.2016 passed in misc. case No.14529 of 2015. She relies upon the provision of Rule 15 of the O.C.S. (Control and Appeal) Rule and the judgment rendered by Hon'ble Apex Court to substantiate her argument that in case of non-supply of memorandum of charge the entire 4 proceeding will be vitiated. She further relies upon the judgment that even if the complainant would not be allowed to examine in the departmental proceeding, the departmental proceeding will vitiate.
She further submits that even the order of compulsory retirement is not sustainable in the eye of law, since it has been passed with retrospective effect i.e. w.e.f. 28.01.2003 i.e. from the date of suspension and she submits that it is settled that there cannot be any order of punishment making it operative with retrospective effect which further suggests that the authorities have acted with malice and ulterior motive.
5. Learned counsel for the opposite party has vehemently objected the submission made by the petitioner by submitting that there is no infirmity in the decision taken by the authority since the petitioner was allowed adequate opportunity to defend himself. He has been supplied all relevant documents as relevant for the purpose of providing adequate opportunity to him.
He has further submitted on the strength of averments made in the counter affidavit that all adequate opportunity has been provided as such the petitioner cannot claim that he has not been provided with adequate opportunity to defend himself.
5
He has objected regarding maintainability of the writ petition by submitting that under the statute there is provision of appeal and as such during course of the availability of alternative remedy, this Court sitting under Article 226 of the Constitution of India may not interfere with the order of punishment.
6. Learned counsel for the petitioner in response to the maintainability of the writ petition on the ground of availability of alternative remedy of appeal, has submitted that there is no dispute that in case of availability of alternative remedy, the writ court should not interfere with the finding of the disciplinary authority but simultaneously it is settled that if there is violation of principle of natural justice or the decision taken by the authority is without jurisdiction or it is contrary to the statutory provision, availability of alternative remedy will not be a bar to adjudicate the writ petition by the High Court sitting under Article 226 of the Constitution of India.
She further submits that even otherwise the jurisdiction conferred to the High Court sitting under Article 226 of the Constitution of India does not bar to entertain it rather it is the self-imposed restriction upon the High Court not to entertain the writ petition in case of availability of statutory remedy of appeal but when there is miscarriage of justice it is up to the High Court to entertain or not to entertain. 6
Heard learned counsel for the parties and perused the documents available on record.
7. This Court has thought it proper to decide the issue on maintainability before entering into merit of the rival submission of the parties.
8. Learned counsel for the opposite party has raised preliminary objection regarding maintainability of the writ petition by submitting that there is provision of statutory appeal, as such this writ petition may not be maintainable. It is not in dispute that in case of availability of statutory remedy of appeal, the High Court sitting under Article 226 of the Constitution of India should refrain itself in interfering with the decision of the disciplinary authority but simultaneously there is exception that if in case of violation of principle of natural justice or miscarriage of justice or the order is contrary to the statutory provision or the order is with malice and malafide, if proved the High Court sitting under Article 226 can interfere instead of relegating the matter before the appellate authority. Reference in this regard may be made to the judgment rendered by the Hon'ble Supreme Court in the case of Whirlpool Corporation vrs. Registrar of Trade Marks, Mumbai and others reported in (1998) 8 SCC
1. 7 In view of settled proposition, when the case of the facts in hand has been assessed, it is the considered view of this Court that it is a case where the principle of natural justice has grossly been violated by not allowing the petitioner to go through the complaint, by not allowing him to examine the complainant and the report has not been proved by the persons who have reported against the petitioner.
9. In that view of the matter and accepting the principle to entertain the writ petition in case of exception instead of relegating the matter before the appellate authority, it would be proper to interfere with the order of punishment.
The other reason is that the order of punishment is of the year 2004 and the matter is pending since then and 13 years has already gone and as such at a belated stage, relegating the matter before the appellate authority will further led to miscarriage of justice, hence this Court finds that it is a fit case where the extraordinary jurisdiction conferred to it, can be exercised.
10. The fact which is not in dispute that the petitioner who was working as Clerk under the opposite party was assigned with the duty to make assessment of the meter in respect of consumers in the area. The consumers have made complaint against him regarding misbehavior in course of discharging official duty, on receipt of the complaint made by the 8 consumer, the S.D.O. of the area has been asked to submit a report in this regard and accordingly the enquiry has been conducted by him, a report was submitted, basis upon which the authorities have decided to initiate a departmental proceeding No.4231 dated 3.11.2001 alleging therein following charges;
"Charge No.1:- (Mis-behaviour to consumers) The AMC, Temple Sub-Division in his letter to the Superintending Engineer, Grievance Cell, CESCO has intimated that, Mr. Mohanty's behavior in office affects the consumer delaing. The allegation of Sri Dayanidhi Satpathy, Under Secretary (Retd.), Finance Department, Govt.
of Orissa has been received by SE Grievance Cell. CESCO on the basis of which Sri Mohanty was put under suspensioin (Copy enclosed). The statement of Sri Satpathy was read and its truthfulness was verified.
Besides, on enquiry it was established beyond doubt that consumers were harassed by the delinquent employee and even were exploited.
Charge No.2 (Dis-obedience of Instruction of Superior Officers) SDO (Elect.), Temple Sub-Division vide his letter No.1517/Dtd.
07.06.2002 addressed to Sri Mohanty has mentioned that, Mr. Mohanty is reluctant to obey the orders of Superior Officers. Also Sri Mohanty had repeatedly questioned the authority of the S.D.O. in allocation of seats to different staff. This acts of Sri Mohanty shows dis-obedience of orders of superior officers and gross in-disciplince. In another confidential letter No.1/dtd. 24.01.2003 to SE, Grievance Cell, the SDO (El.), Temple Sub-
Division has also mentioned about his mis-behaviour to Sri M.S. Subudhi, Ex-9
SDO No.-III, Bhubaneswar and has disobedience in accepting the transfer order to NED, Nayagarh which was intentionally avoided by him as he remained absent unauthorisedly for which he had been called for explanation by SEEC No.-I, Bhubaneswar vide his letter No.4271/Dtd.
02.11.2002. On the basis of the above, it can be undoubtedly concluded that, professional mis-conduct has been committed by the delignequent employee as habitually he was stubborn and dis-obedient to the instruction of Superior Officers.
Charge no.-3 : Use of derogatory language towards Superior Officers and Consumers.
The above charge is also convincingly established as the delinquent employee was habitually using derogatory language towards Superior Officers and consumers.
Charge No.-4 Dereliction in duty and indiscipline attitude From the contents of the correspondence and interrogation of the controlling officers of the Sub-Division, it is proved beyond doubt that, the delinquent employee has indiscipline attitude leading to constant repeated dereliction in duty.
Charge No.-5 Misconduct Letter No.1517/dated 07.06.2002 and Conf. No.1/Dtd.
24.01.2008 of SDO (El.), Temple Sub-Division mentioned the act of misconduct by Sri Mohanty. All the correspondence and enquiry on spot revealed that, the charge of Mis-conduct is undoubtedly proved and hence established."10
The petitioner has been proceeded under the provision of O.C.S. (C.C.A.) Rules, 1962 which is applicable so far as the disciplinary rule of the establishment where the petitioner was working.
11. The grievance of the petitioner at the time of initiation of proceeding No.4231 dated 3.11.2001, is that the relevant documents basis upon which the charge has been framed, has not been supplied to him. This Court has perused the memorandum of charge under Annexure-2 of the writ petition that there is no enclosure in the list of documents basis upon which the charge has been framed against him. The petitioner immediately approached this Court by filing writ petition for supply of relevant documents, accordingly, this Court has passed the order dated 21.05.2004 while issuing notice to the opposite parties, passed an interim order directing the authorities to proceed with the departmental proceeding but not to take final decision without leave of this Court till next date.
The enquiry proceeding has proceeded but the relevant documents has not been supplied. In the meanwhile, another departmental proceeding has also been initiated on 18.02.2003 vide Proceeding No.14 under Annexure-3, from its perusal it is evident that disciplinary proceeding contains the same charge which was the subject matter of earlier charge dated 3.11.2001 but again without supported by relevant 11 documents, basis upon which the memorandum of charge has been supplied to the petitioner.
The petitioner has raised mainly on three grounds;
(i) The copy of the complaint has not been brought on record.
(ii) The complainant has not been brought for his cross-examination by the petitioner.
(iii) The S.D.O has not turned up to prove the charge basis upon which the departmental proceeding has been initiated against the petitioner.
12. It is evident from the record that the petitioner has made due requisition for supply of the copy of the complaint and the other relevant documents but the disciplinary authority has denied the same by saying that the copy of the complaint cannot be provided since the complaint has been obtained by the complainant on the condition to keep it confidential and further the documents has been denied by giving a reason that since the Department is of Commercial Sector, as such they have preferred not to disclose the documents and witnesses for the alleged unethical action as mentioned in Clause-f of letter dated 23.12.2003.
13. It is evident from the said communication dated 10.03.2004 under Annexure-10 that the disciplinary authority has not disputed the fact that the relevant document for the purpose to provide opportunity to defend the petitioner has not been provided on the pretext that the 12 documents having said to be confidential and the documents being under the Commercial Sector has been decided not to provide to the petitioner.
14. In the case of the petitioner, the provision of O.C.S. (C.C.A.) Rules, 1962 is applicable wherein major and minor punishment has been reflected under the provision of Rule-13 and while Rule 15 provides procedure for imposing penalty, one of the procedures is under sub-rule 3 of Rule 15 i.e., the enquiry is to be commenced without prejudice to the provisions of the Public Servants (Inquiries) Act, 1950 no order imposing on a Government servant any of the penalties specified in Clauses (vi) to (ix) of Rule 13 shall be passed except after an inquiry held as far as may be in the manner hereinafter provided. Sub-rule (3) of the said provision provides that the Government servant shall, for the purpose of preparing his defence, be supplied with all the records on which the allegations are based. He shall also be permitted to inspect and take extracts from such other official records as he may specify, provided that such records are not relevant for the purpose or it is against of the public to allow him access thereto.
15. It is evident from this provision that the documents, basis upon which the charge is to be framed, has mandatorily to be supplied to the delinquent employee, however in case of non-supply a specific reason is to be given.
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In the facts of this case the reason has been given i.e. to maintain confidentiality and since the establishment is a Commercial Sector but according to the considered view of this Court, these two reasons cannot be said to be justified for non-supply of relevant documents to the petitioner. It is cardinal principle of law that, if a man is to be punished, he has right to defend himself properly. It is also cardinal principle that if any complaint has been made, the concerned employee has right to cross-examine that complainant, otherwise it will be is said to be the violation of principle of natural justice. Reference may be made to the judgment rendered by the Hon'ble Supreme Court in the case of Hardwari Lal vrs. State of U.P. and others reported in (1999) 8 SCC 582 at para-3, 4 and 5, which are being reproduced herein below:-
"3. Before us the sole ground urged is as to the non- observance of the principles of natural justice in not examining the complainant, Shri Virender Singh, and the witness, Jagdish Ram. The Tribunal as well as the High Court have brushed aside the grievance made by the appellant that the non-examination of those two persons has prejudiced his case. Examination of these two witnesses would have revealed as to whether the complaint made by Virender Singh was correct or not and to establish that he was the best person to speak to its veracity. So also, Jagdish Ram, who had accompanied the appellant to the hospital for medical examination, would have been an important witness to prove the state or the condition of the appellant. We do not think the Tribunal and the High Court were justified in thinking that non-examination of these two persons could not be material. In these circumstances, we are of the view that the High Court and the Tribunal erred in not attaching importance to this contention of the appellant.
4. However, Shri Goel, the learned Additional Advocate General, State of Uttar Pradesh has submitted that there was other material which was sufficient to come to the conclusion one way or the other and he has taken us 14 through the same. But while appreciating the evidence on record the impact of the testimony of the complainant cannot be visualized. Similarly, the evidence of Jagdish Ram would also bear upon the state of inebriation, if any, of the appellant.
5. In the circumstances, we are satisfied that there was no proper enquiry held by the authorities and on this short ground we quash the order of dismissal passed against the appellant be setting aside the order made by the High Court affirming the order of the Tribunal and direct that the appellant be reinstated in service. Considering the fact of a long lapse of time before the date of dismissal and reinstatement, and no blame can be put only on the door of the respondents, we think it appropriate to award 50 per cent of the back wages being payable to the appellant. We thus allow the appeal filed by the appellant. However, there shall be no order as to costs."
It is also cardinal principle that if the principle of natural justice has not been followed, the proceeding will be said to be bad in the eye of law from its inception. This Court has gathered from the memorandum of charge that the memorandum of charge is without any list of documents while the provision (3) of Rule 15 says that the documents is to be supplied along with the memorandum of charge, further enquiry is to be commenced for imposing major punishment in the light of the provision of Public Servants (Inquiries) Act, 1950. This provision provides that a man cannot be punished without providing adequate opportunity to defend himself.
16. Learned counsel for the opposite party has submitted that the petitioner has been provided with all due opportunity but he has not rebuted the finding of the enquiry officer, wherein the complainant has not 15 been allowed to be cross-examined by the petitioner, copy of the complainant has not been brought on record as also the S.D.O. who has prepared the report, basis upon which the departmental proceeding has been initiated has not come forward to prove the said report, in view of such admitted position as would be evident from the finding of the Enquiry Officer, the statement made by the authority in the counter affidavit has got no relevance for the reason that the finding of the Enquiry Officer which has been written in black and white cannot be improved by way of additional affidavit, reference in this regard may be made to the judgment rendered by the Hon'ble Supreme Court in the case of Mohinder Singh Gill & another vrs. The Chief Election Commissioner, New Delhi and others reported in AIR 1978 SC 851 at para-8 which is being reproduced herein below:-
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, be the time it comes to court on account of a challenge, get validated by additional grounds later brought out.
Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."16
17. This Court has discussed the submission of the learned counsel for the petitioner that the relevant documents has not been supplied to him, the earlier view of the Hon'ble Supreme Court with respect to the effect of non-supply of the documents and as per the judgment rendered by the Hon'ble Supreme Court in the case of Union of India and others vrs. Mohd. Ramzan Khan reported in AIR 1991 SCC 471 that due to non-supply of the relevant documents the departmental proceeding is to be vitiated but the view has been challenged by the Hon'ble Supreme Court in its judgment rendered in the case of M.D. Eastern Coal India Ltd., Hyderabad vrs. B. Karunakar reported in (1993) 4 SCC 277, wherein the proposition has been laid down that in case of non-supply of the relevant documents, the departmental proceeding will not vitiate, rather the delinquent employee is so prejudice caused due to non-supply of the relevant documents.
In the light of the view of the Hon'ble Supreme Court rendered in the case of M.D., ECIL (supra), this Court has examined the effect of non-supply of the relevant documents and found that the petitioner has not been supplied the relevant documents, i.e. the documents basis upon which the memorandum of charge has been framed on the ground of maintaining confidentiality, when no documents has been supplied, there is no issue of prejudice rather it will be said that the petitioner has been denied with the due opportunity to defend himself.
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In the judgment rendered in the case of Government of Andhra Pradesh and others vrs. A. Venkata Raidu reported in (2007) 1 SCC 338, wherein their lordships has been pleased to hold at para-9, which is being quoted herein below:-
"9. xxx xxx It is a settled principle of natural justice that if any material is sought to be used in an enquiry, then copies of that material should be supplied to the party against whom such enquiry is held, In Charge 1, what is mentioned is that the respondent violated the orders issued by the Government. However, no details of these orders have been mentioned in Charge 1. It is well settled that a charge-sheet should not be vague but should be specific. The authority should have mentioned the date of the GO which is said to have been violated by the respondent, the number of that GO, etc. but that was not done. Copies of the said GOs or directions of the Government wee not even placed before the enquiry officer. Hence, Charge 1 was not specific and hence no finding of guilt can be fixed on the basis of that charge. Moreover, as the High Court has found, the respondent only renewed the deposit already made by his predecessors, Hence, we are of the opinion that the respondent cannot be found guilty for the offence charged."
In the case of State of Uttar Pradesh and others vrs. Saroj Kumar Sinha reported in (2010) 2 SCC 772, wherein it has been laid down at para-29 and 30 that "it is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is 18 treated fairly in proceedings which may culminate in imposition of punishment including dismissal /removal from service."
18. It is evident from the settled proposition as laid down by the Hon'ble Supreme Court as referred hereinabove and also the provision of Rule 15 of the O.C.S. (C.C.A.) Rules, 1962 that the documents basis upon which the memorandum of charge is being permitted is mandatory to be supplied to the delinquent employee but in the instant case, it has not been supplied on the excuse that it pertains to confidentiality.
19. This Court is conscious of the settled proposition that jurisdiction of the High Court in interfering with the order of the disciplinary authority in exercise of power of judicial review is very limited but it can well be exercised if the finding is perverse or the proceeding has been initiated without providing due opportunity of being heard to the delinquent employee. For ready reference the proposition laid down by the Hon'ble Supreme Court in the case of Union of India and another vrs. K.G. Soni reported in (2006) 6 SCC 794, it has been held at para-14, which is being quoted herein below:-
"14. The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the case of Associated Provincial Picture Houses Ltd. Vrs. Wednesbury Corporation reported in (1948) 1 KB 19 223, the Court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator.
The scope of judicial review is limited to the deficiency in the decision-making process and not the decision.
In another judgment in the case of B.C. Chaturvedi vrs.
Union of India and others reported in (1995) 6 SCC 749, it has been held at para-12, which is being quoted herein below:-
"12. Xxx xxx The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
20. This Court after taking into consideration the reason given hereinabove and for the reason stated, is of the considered view that the office order dated 21.05.2004 is not sustainable in the eye of law.
Accordingly, the same is quashed.
20In the result the petitioner is entitled to get all consequential benefit.
Accordingly, the writ petition is allowed.
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S. N. Prasad., J.
Orissa High Court, Cuttack, Dated the 24th August, 2017/RRJena