Orissa High Court
Gobinda Sahoo vs Managing Director Ofdc Ltd. And Others. on 8 December, 2017
Author: B.R. Sarangi
Bench: B.R. Sarangi
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) NO. 9214 OF 2008
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Gobinda Sahoo ........... Petitioner
Versus
Managing Director,
OFDC Ltd. and others. ............ Opp. Parties
For petitioner : M/s. B.K. Kar, M.R. Acharya
and K. Dang, Advocates.
For opp. parties : Mr. S. Mukheerjee
[O.P. No.1]
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PRESENT:
THE HONOURABLE DR. JUSTICE B.R. SARANGI
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Date of hearing : 28.11.2017 :: Date of judgment : 08.12.2017
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Dr. B.R. SARANGI, J. The petitioner, while working as Field Assistant
in Orissa Forest Development Corporation Ltd. at Mathila Sub-
Division under Divisional Manager, Jeypore Commercial Division,
pursuant to order dated 07.07.2000, a departmental proceeding
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was initiated against him on the allegation that, while he was
Coupe in-charge of Saptadhara - Lot-II Jodiguda Pudu, Lot-I,
Tulsi MSWC-XVI, Saptadhara Podu, Kharjodi Podu and Salvage
in KV line, the Corporation sustained loss of Rs.1,31,116.00 due
to shortage of 400.0642 cum of timber. The enquiry officer, being
appointed by the disciplinary authority, enquired into the matter
and submitted report on 01.10.2001 in Annexure-5 that no case
was made out against the petitioner and, as such, he was not
liable to bear the loss. But the disciplinary authority, instead of
accepting the report of the enquiry officer, issued notice dated
30.10.2001calling upon the petitioner to show cause as to why punishment of recovery of Rs.1,31,116/- shall not be imposed on him. Pursuant thereto, the petitioner submitted his reply on 15.11.2001 denying his liability and contended that he should be exonerated from all charges levelled against him. The disciplinary authority, without considering the same in proper perspective, vide order dated 27.09.2007 in Annexure-1, held that the petitioner was liable to pay Rs.62,821/-. By so holding, he directed that the amount of Rs.62,821/-, being a pecuniary loss to the Corporation, be recovered from the petitioner in 66 instalments, i.e., at the rate of Rs.960/- for 65 instalments and the last instalment being Rs.421/-, starting from his salary bill 3 with effect from October, 2007. Aggrieved by such order of the disciplinary authority, the petitioner preferred appeal on 16.10.2007 before the appellate authority, who upheld the order of punishment imposed by the disciplinary authority, without assigning any reason, by the impugned order dated 03.10.2008 in Annexure-8, hence this application.
2. Mr. M.R. Acharya, learned counsel for the petitioner contended that the petitioner having been exonerated from all charges levelled against him, pursuant to a fact finding enquiry conducted by the enquiry officer, the disciplinary authority should not have directed for recovery of Rs.62,821/- in place of Rs.1,31,116/-, that too without assigning any reason whatsoever as to why the amount has been reduced. It is further contended that the appellate authority, without appreciating the grounds set out in the appeal memo in proper perspective, has upheld the order passed by the disciplinary authority without assigning any reason, which requires interference by this Court.
3. It is worthwhile to mention here that Mr. S. Mukherjee, learned counsel has entered appearance for opposite party no.1 and also filed counter affidavit on 04.11.2008. When the matter was listed on 14.07.2017, three weeks time was 4 granted on the request made on behalf of Mr. Mukherjee, as he was ill. On the date of hearing (28.11.2017) also, when the matter was called, none appeared on behalf of opposite party no.1. Since it is an old case of the year 2008, after affording due opportunity to the opposite parties to participate in the proceeding, this Court proceeded with the hearing and disposed of the matter finally at the stage of admission, having heard learned counsel for the petitioner and perused the counter affidavit filed by opposite party no.1.
4. In the counter affidavit filed on behalf of opposite party no.1 it has been averred that in view of the order passed by the disciplinary authority, the petitioner has to pay a sum of Rs.62,821/-, as he has caused a pecuniary loss to the corporation. It is not mandatory for the disciplinary authority to accept the recommendation of the enquiry officer. The disciplinary authority can pass an original order only after thorough scrutiny of oral and documentary evidence. Therefore, as per Rules 123 and 124 of Orissa Forest Development Corporation Service Rules, 1986, the disciplinary authority has rightly imposed penalty on the petitioner finding him guilty of causing financial loss to the corporation. After following due 5 procedure, if the punishment has been imposed under Rules 8.14 and 121 (iv) of the O.F.D.C. Service Rules, 1986, which has been upheld by the appellate authority, the same cannot be interfered with in writ jurisdiction of this Court. Therefore, seeks for dismissal of the writ petition.
5. The undisputed fact being that the petitioner was serving as Field Assistant under the Orissa Forest Development Corporation Limited. While he was in charge of Coupe under the control of the Divisional Manager, Jeypore Commercial Division, on the allegation of shortage of timber worth of Rs.1,31,116/-, a departmental proceeding was initiated against him on 07.07.2000, in which the petitioner filed his statement of defence on 08.08.2000. Having not satisfied with the reply given by the petitioner, an enquiry officer was appointed, who submitted his report on 01.10.2001 and recommended as follows:-
"Therefore from the enquiry conducted Records perused and from the statements I confirmed that Sri Govinda Sahu P.A. is not responsible for the loss of 201.5271 Cum timber and for Rs. 1,31,116/- and hence Sri Sahu may be free from the above charges. Further Sri Gobinda Sahu P.A. served in OFDC since 1987 onwards and served OFDC Ltd. to the entire-satisfied works and as a honest and during his tenure he worked efficiently and sincerely and therefore charges no 2 for negligence in duty may be considered and he may be free from this charges also."6
But the disciplinary authority, having not satisfied with the recommendation made by the enquiry officer, issued a show cause notice on 30.10.2001, to which the petitioner submitted his reply on 15.11.2001. Thereafter, vide letter dated 28.08.2007, the petitioner was called upon to participate in the personal hearing, which was conducted on 28.08.2007. Upon hearing the person and after going through the record, the disciplinary authority on 27.09.2007 passed the following order:-
"A sum of Rs. 62,821/- (Rupees sixty two thousand eight hundred twenty one) only, being the pecuniary loss to Corporation be recovered from the delinquent in 66 instalments i.e. Rs. 960/- for 65 installments and the last instalment being Rs. 421/- starting from his salary bill with effect from October, 2007."
Aggrieved by the aforesaid order of the disciplinary authority, the petitioner on 16.10.2007 preferred appeal, which was disposed of on 03.10.2008 by passing the following order:-
"The orders issued by the Divisional Manager, Jeypore (C-KL) Division vide O.O. No. 228 dated 27.09.2007 is up-held"
6. This Court carefully perused the enquiry report submitted by the enquiry officer, as well as the orders passed by the disciplinary authority and the appellate authority. As it appears, the disciplinary authority, while imposing punishment disagreeing with the recommendation made by the enquiry officer, 7 has not assigned any reason whatsoever, least to say any plausible reason. The law is fairly settled that after receiving enquiry report, the disciplinary authority may find it difficult to agree with the finding in the enquiry report. But the rules generally provide that in case of such disagreement he must record his reasons and also record his own findings, if the evidence already on record is sufficient for that purpose, or remit the case to the enquiry authority for further enquiry and report.
7. In Ram Kishan v. Union of India (1995) 6 SCC 157, without referring to S.S. Koshal (supra), the apex Court, not only held that the disciplinary authority assumed the necessity of giving show cause notice, but also went further to hold that the notice must give specific reasons on the basis of which the disciplinary authority disagreed with the findings of the enquiry officer. The relevant part of the judgment is quoted below:-
"The next question is whether the show cause notice is valid in law. It is true, as rightly contended by the counsel for the appellant, that the show cause notice does not indicate the reasons on the basis of which the disciplinary authority proposed to disagree with the conclusions reached by the enquiry officer. The purpose of the show-cause notice, in case of disagreement with the findings of the enquiry officer, is to enable the delinquent to show that the disciplinary authority is persuaded not to disagree with the conclusion reached by the enquiry officer for the reasons given in the enquiry report or he may offer additional reasons in support of the finding by the enquiry officer. In that 8 situation, unless the disciplinary authority gives specific reasons in the show-cause on the basis of which the findings of the enquiry officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the conclusions reached by the enquiry officer. In the absence of any ground or reason in the show cause notice it amounts to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with the conclusions reached by the disciplinary authority cannot cure the defect. But, on the facts in this case, the only charge which was found to have been accepted is that the appellant had used abusive language on the superior authority. Since the disciplinary authority has said that it has agreed partly to that charge, the provisional conclusion reached by the disciplinary authority in that behalf even in the show cause notice, cannot be said to be vague. Therefore, we do not find any justification to hold that the show cause notice is vitiated by an error of law, on the fact in this case."
8. In Ranjit Singh v. Union of India, (2006) 4 SCC 153, the apex Court held that the principle of natural justice are required to be complied with by the disciplinary authority if he intends to differ with the findings of the enquiry officer and in such case the prejudice doctrine would not be applicable.
9. As has been already indicated the disciplinary authority has not assigned any reason at all as to why he differed with the finding arrived at by the enquiry officer. Not only that, no specific reason has also been assigned with regard to reduction of the amount of pecuniary loss caused to the corporation from 9 Rs.1,31,116/- to Rs. 62,821/-. As such, the order passed by the disciplinary authority, having sufferd from vice of no reasons, cannot sustain in the eye of law. Against the said order of the disciplinary authority imposing penalty the petitioner filed an appeal setting out several grounds, but the appellate authority, without assigning any reason, upheld the finding of the disciplinary authority by a cryptic order, as extracted above, and directed for recovery of Rs.61,821/- towards value of timber.
10. In Indian Administrative law, an administrator is obliged to give reasons for a decision which prejudicially affects its citizen. In S.N. Mukhrjee v. Union of India, (1990) 4 SCC 594, a Constitution Bench of the Supreme Court has authoritatively pronounced as follows:
"The decisions of this Court referred to above indicate that with regard to the requirement to record reasons the approach of this Court is more in line with that of the American Courts. An important consideration which has weighed with the Court for holding that an administrative authority exercising quasi-judicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority; (ii) introduce clarity in 10 the decisions; and (iii) minimize chances of arbitrariness in decision-making. In this regard a distinction has been drawn between ordinary courts of law and tribunals and authorities exercising judicial functions on the ground that a Judge is trained to look at things objectively uninfluenced by considerations of policy or expediency whereas an executive officer generally looks at things from the stand point of policy and expediency."
Similar view has also been taken by the apex Court in Forest Officer v. Madhusudan Rao (2008) 3 SCC 469.
11. In view of the above settled position of law, which is squarely applicable to the present context; since the disciplinary authority has not assigned any reason, while differing with the finding of the enquiry officer and imposing penalty for recovery of Rs.62,821/-, and the appellate authority has upheld the same also without assigning any reason; the order dated 27.09.2007 in Annexure-1 passed by the disciplinary authority and the order dated 03.10.2008 in Annexure-8 passed by the appellate authority are liable to be quashed and are accordingly quashed.
12. The writ application is allowed, no order as to cost.
Sd/-
(DR. B.R. SARANGI)
Orissa High Court, Cuttack JUDGE
The 8th December, 2017, GDS/Ajaya
True copy
Sr. Steno
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