Orissa High Court
Kashinath Mishra vs State Of Odisha & Others .... Opp. ... on 2 May, 2023
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC(OAC) NO.4279 of 2012
Kashinath Mishra .... Petitioner
Mr. R.N. Parija, Adv.
-versus-
State of Odisha & Others .... Opp. Parties
Mr. M.K. Balabantaray,
Addl. Govt. Advocate
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
02.05.2023 Order No
5. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
2. Heard Mr. R.N. Parija, learned counsel appearing on behalf of Mr. D. Nanda, learned counsel appearing for the Petitioner and Mr. M.K. Balabantaray, learned Additional Government Advocate.
3. The present Writ Petition has been filed challenging the order of punishment passed against the Petitioner vide order dt.07.11.2012 under Anexure-5 series.
3.1. It is the case of the Petitioner that the Petitioner after his retirement from service, a proceeding was initiated against him vide memorandum dt.08.06.2006 under Annexure-1. In the said proceeding, the following charges were framed against the Petitioner.
Article of charges against Sri Kashinath Mishra, Ex- Executive Engineer (Retired) // 2 // During his incumbency as Executive Engineer, Puri Irrigation Division, Puri he has committed the following irregularities as revealed from the report of the Enquiry Committee constituted vide E.I.C., W.R. order No.1306 dated 06.02.2004 and Vigilance report.
The Enquiry Committee observed that -
1. Out of the food grains received during the year 2003-04 some have been issued to the Agencies as advance without concluding agreements.
2. Also for some agreements executed during the year 2001-02 and 2002-03, grains have been issued partly besides Cash during 2003-04 out of grains received during 2003-04 and some liabilities have been carried over to the future. Execution of a good number of small works limiting the amount to the tune of Rs.50,000/- each with fraction payments and carrying over liability to the subsequent year is blatant violation of codal provisions and Departmental norsm
3. Huge liabilities have been shown in works taken up under different sections.
Apart from this, the present Executive Engineer has reported regarding discrepancy in issuing of cheques, cheques of Rs.1,73,000/- were issued in excess during October, 2003 while jhe was working as Executive Engineer, Puri Irrigation Divison.
From the above it is construed tht he has failed to discharge his duties as a responsible Government servant. Thus he is charged for:-
1. Negligence in duty.
2. Gross mis-conduct,
3. Abusing official position by violation of codal provisions
4. Showing undue favour to the Agencies with an ulterior motive
5. Mis-appropriate of Government money and putting Govt. to sustain loss.
As further revealed from the memorandum, the charges against the Petitioner are required to be proved though four numbers of official witnesses as indicated under Annexure-
IV to the Memorandum
Page 2 of 10
// 3 //
Sl. No. Description.
1. Chief Engineer, Project Planning &
Formulation, Bhubaneswar
2. Sri R.K. Patra, Director, Canals, as member of the enquiry Committee.
3. Sri Dibakar Patra, Executive Engineer, as member of the enquiry Committee
4. Executive Engineer, Puri Irrigation Divison, Puri 3.2. Learned counsel appearing for the Petitioner contended that even though the very basis of initiation of the proceeding is the enquiry report dt.06.02.2004 and the vigilance report dtd. 6.2.2004 but along with the memorandum, the Petitioner was never provided with the said report and accordingly the Petitioner was prejudiced from the very beginning. It is also contended that even though the charge against the Petitioner are being proved through four official witnesses as indicated in Annexure IV but the enquiry Officer without examining any of the witnesses accepted the report and find the Petitioner guilty of the charges while submitting the report on 06.10.2009.
3.3. Learned counsel for the Petitioner contended that on receipt of the copy of the enquiry report while submitting his reply to the 1st show cause issued on 13.01.2011 under Annexure-3 as well as to the 2nd Page 3 of 10 // 4 // show cause vide Annexure-4, though the Petitioner pointed out all the irregularities committed by the Enquiry Officer with regard to conduct of enquiry, but Opp. party No.1 never took into consideration the said aspect and disposed of the proceeding with quashing of the impugned order of punishment on 07.11.2012 under Annexure-5.
3.4. Learned counsel for the Petitioner contended that since the enquiry report which is the very basis of the proceeding was never proved by the witnesses and by giving opportunity of hearing to the Petitioner to cross- examine those witnesses, the very basis of the enquiry is vitiated. In support of his aforesaid submission, Mr. Parija, learned counsel appearing for the Petitioner relied on a decision of the Hon'ble Apex Court in the case of Roop Singh Negi Vs. Punjab National Bank and others, reported in 2009(1) Supreme 438 Hon'ble Apex Court in para 10,12, & 15 of the said judgment has held as follows:
10. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved.
The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the Enquiry Officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. Appellant being an employee of the bank, the said Page 4 of 10 // 5 // confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the Enquiry Officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.
12. In Moni Shankar v. Union of India and Anr. [(2008) 3 SCC 484], this Court held:
17. The departmental proceeding is a quasi judicial one.
Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The Court exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely - preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality."
15. Yet again in M.V. Bijlani vs. Union of India & ors. (2006) 5 SCC 88, this Court held:
"....Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
3.5. Mr. Parija, learned counsel also relied on another decision of the Hon'ble Apex Court in the case of State of Madhya Pradesh Vs. Chintaman Sadashiva Waishampayan., reported in 1961 AIR (SC ) 1623.
Page 5 of 10// 6 // Hon'ble Apex Court in paragraph 10 of the said judgment has held as follows.
10.Mr Khaskalam has strenuously contended before us that in not supplying the copies of the documents asked for by the respondent the enquiry officer was merely exercising his discretion, and as such it was not open to the High Court to consider the propriety or the validity of his decision. In support of this argument he has referred us to the decision of the Patna High Court in Dr Tribhuwan Nath v. State of Bihar AIR 1960 Pat 116. In that case the public officer wanted to have a copy of the report made by the anti-corruption department as a result of a confidential enquiry made by it against the said officer; and the enquiry officer had rejected his prayer. When it was urged before the High Court that the failure to supply the copy of the said report constituted a serious infirmity in the enquiry and amounted thereby to a denial of a reasonable opportunity to the public officer, the High Court repelled the argument, and held that the officer was not entitled to a copy of the report unless that report formed part of the evidence before the Enquiry Commissioner and was relied upon by him. <When, however, the report was not at all exhibited in the case, nor was it referred to, nor relied upon by the Commissioner=, said the High Court, <there was no meaning in contesting it, and consequently absence of opportunity to meet its contents involved no violation of constitutional provisions=. In our opinion, this decision cannot assist the appellant's case because, as we have already pointed out, the documents which the respondent wanted in the present case were relevant and would have been of invaluable assistance to him in making his defence and cross-examining the witnesses who gave evidence against him. It cannot be denied that when an order of dismissal passed against a public servant is challenged by him by a petition filed in the High Court under Article 226 it is for the High Court to consider whether the constitutional requirements of Article 311(2) have been satisfied or not. In such a case it would be idle to contend that the infirmities on which the public officer relies flow from the exercise of discretion vested in the enquiry officer. The enquiry officer may have acted bona fide but that does not mean that the discretionary orders passed by him are final and conclusive. Whenever it is urged before the High Court that as a result of such orders the public officer has been deprived of a reasonable opportunity it would be open to the High Court to examine the matter and decide whether the requirements of Article 311(2) have been satisfied or not. In such matters it is difficult and inexpedient to lay down any general rules; whether or not the officer in question has had a reasonable opportunity must always depend on the facts in each case. The only general statement that can be safely made in this connection is that the departmental enquiries should observe rules of natural justice, and that if they are fairly and properly conducted the decisions reached by the enquiry officers on the merits are not open to be challenged on the ground that the procedure followed was not exactly in accordance with that which is observed in courts of law. As Page 6 of 10 // 7 // Venkatarama Aiyar, J. has observed in Union Of India v. T.R Varma 1958 SCR 499 at p. 507 <stating it broadly and without intending it to be exhaustive it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them=. It is hardly necessary to emphasise that the right to cross-examine the witnesses who give evidence against him is a very valuable right, and if it appears that effective exercise of this right has been prevented by the enquiry officer by not giving to the officer relevant documents to which he is entitled, that inevitably would be that the enquiry had not been held in accordance with rules of natural justice. That is the view taken by the High Court, and in the present appeal which has been brought to this Court under Article 136 we see no justification for interfering with it. In this connection it would be relevant to refer to the decision of this Court in Khem Chand v. Union of India 1958 SCR 1080 at p. 1096 where this Court has emphasised the importance of giving an opportunity to the public officer defend himself by cross-examining the witnesses produced against him.= 3.6. Placing reliance of the aforesaid two decisions, Mr. Parija contended that since the enquiry against Petitioner was not conducted in accordance with law and by giving due opportunity of hearing to the Petitioner, the order of punishment so passed basing on the enquiry report is not sustainable in the eye of law.
4. Mr. M.K. Balabantaray, learned A.G.A on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that after receipt of the charges not only the Petitioner at the stage of enquiry by filing his written statement of defence but also he participated in the enquiry and at no point of time, the Petitioner has made such objection, as has been raised in the Writ Petition. It is also contended that by following due process of law the Page 7 of 10 // 8 // proceeding was finalized with imprisonment of punishment vide order at Annexure-15.
4.1. Mr. M.K. Balabantaray, learned A.G.A further contended that since one of the witnesses so indicated in the proceeding as the presenting officer in the enquiry, he proved the enquiry report and accordingly the enquiry Officer after proving the same found the petitioner guilty of the charges while submitting the enquiry report. It is accordingly contended that since all the provisions has been scrupulously followed by the Opp. Parties, the order of punishment has been rightly passed and it requires no interference.
5. Having heard learned counsel for the parties and after going through the materials available on record, it is found that the proceeding against the Petitioner was initiated under Rule 7 of the OCS Pension Rules, 1998 on 08.06.2006. As found from the said proceeding, the Petitioner was charged basing on the enquiry report so submitted on 06.02.2004 as well as the vigilance report. It is not the case of the Opp. Parties that along with the charge memo, the petitioner was provided with a copy of the said report.
5.1. It is also found from the proceeding that though the charges have been proved by four official witnesses as indicated in Annexure-IV, but in the enquiry, none of the witnesses has been examined by giving opportunity to the Petitioner to cross-examine. Even though one of the witnesses as presenting Officer has proved the report, but that has also been drawn in Page 8 of 10 // 9 // absence of the Petitioner and without giving opportunity to the Petitioner to disprove the same.
5.2. Since from the record it is found that principle of natural justice has not been followed and the enquiry has not been conducted in accordance with law, this Court is inclined to interfere with the impugned order of punishment, so passed under Annexure-5. While interfering with the same, this Court is inclined to quash the order dt.07.11.2012 under Annexure-5. However, taking into account the nature of charges framed against the Petitioner, this Court is inclined to remit the matter to the stage of enquiry. It is observed that Opp. party No.1 shall appoint a fresh Enquiry Officer to proceed with the enquiry and the enquiry Officer will start the enquiry afresh by accepting the written statement of defence so filed by the Petitioner. The Opp. party No.1 is also directed to provide a copy of the enquiry report which is the very basis of the proceeding to the Petitioner.
5.3. Since the proceeding is of the year 2006 and the Petitioner is a retired employee, this Court directs Opp. party No.1 to conclude the proceeding within a period of six (6) months from the date of receipt of this order, if there is no other legal impediment.
6. The Petitioner is directed to cooperate with the disposal of the proceeding and he will not seek any further adjournment, save and except on any exceptional circumstances.
Page 9 of 10// 10 // With the aforesaid observation and direction, the Writ Petition is disposed of.
(Biraja Prasanna Satapathy) Judge Sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Designation: Personal Assistant Reason: authentication of order Location: High Court of Orissa, Cuttack Date: 06-May-2023 16:41:41 Page 10 of 10