Afr Saroj Kumar Sahoo vs State Of Odisha And Others
2021 Latest Caselaw 8829 Ori

                  ORISSA HIGH COURT: CUTTACK


                       WPC(OA) No. 1387 of 2017

         In the matter of an application under Article 226 of the
         Constitution of India.
                                ---------------

AFR Saroj Kumar Sahoo ..... Petitioner

-Versus-

         State of Odisha and others              .....      Opp. Parties


           For Petitioner   :    M/s. S.N. Patnaik,
                                 C.S. Panda, K.C. Panigrahi and
                                 U. Pattnaik, Advocates

           For Opp. Parties :    Mr. N.K. Praharaj,
                                 Standing Counsel


         P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI

Date of hearing and judgment : 25.08.2021

DR. B.R. SARANGI, J. The petitioner, who was then

working as Assistant Horticulture Officer in Gumma

Block in the district of Gajapati and holder of a civil

post, has filed this writ petition seeking to quash the // 2 //

departmental proceeding initiated vide Annexure-1

dated 16.08.2013 and consequential inquiry report of

the Commissioner for Departmental Inquiries (CDI) in

CDI Case No.01 of 2014 under Annexure-3 dated

04.11.2015, as well as the order dated 22.08.2017

under Annexure-8 imposing punishment of compulsory

retirement from service.

2. The factual matrix of the case, in a

nutshell, is that the petitioner following a regular

selection process was appointed directly as Junior

Horticulture Officer and joined as such on 10.10.2011.

While he was so continuing, the post of Junior

Horticulture Officer was up-graded to that of Assistant

Horticulture Officer vide Government Notification dated

15.05.2012. During continuance as Assistant

Horticulture Officer of Gosani Block in the district of

Gajapati, a departmental proceeding was initiated

under Rule 15 of the OCS (CCA) Rules, 1962 against

him, vide memorandum dated 16.08.2013, on the // 3 //

allegations of commission of gross misconduct/gross

negligence and dereliction in government duty,

unauthorized absence from the headquarters and

willful negligence in government duty. A memorandum

of charges containing the list of witnesses and list of

documents relied upon by the prosecution was served

on the petitioner permitting him to peruse the relevant

records in the office of the Director, Horticulture,

Odisha, Bhubaneswar and to take extract thereof, if

necessary, for submission of his written statement of

defence. So far as the allegations with regard to

misconduct is concerned, it has been specifically

mentioned in the memorandum of charges that the

petitioner used to misbehave the office staff and

threaten them misutilizing his official position after

consuming alcoholic drinks. Similarly, in the second

charge relating to disobedience of order of higher

authority, it has been alleged that the petitioner has

failed to implement various schemes in his areas due to // 4 //

his negligence and for his failure to visit the site and

not guiding the field staff properly in the plantation

work. Consequentially, the Project Director, DRDA

expressed her displeasure on the slow progress of work.

Though the place of posting of the petitioner was fixed

at Gosani Block, but he was staying at

Paralakhemundi, for which he was directed by the

Deputy Director, Horticulture to shift his headquarters,

but he disobeyed such instructions causing adverse

effect to the plantation work. In the 3rd charge, it has

been alleged that the petitioner was absent

unauthorizedly from government duty on such spell of

2 to 4 days for which he was called upon to submit

explanation and due to such unauthorized absence the

work progress and problems of two Blocks, of which the

petitioner was in-charge, could not be discussed and

compilation of reports were held up. So far as the last

charge, i.e., 4th charge, is concerned, it has been alleged

that the petitioner failed to submit the complete // 5 //

beneficiary list of all on going schemes from 2012-13

even after repeated instructions and also failed to

submit the up-to-date farm pond application collected

from two Blocks and also failed to submit the registered

private nursery verification report for the month of

January, 2012 and after repeated instructions he did

not visit the place regularly.

2.1 On receipt of memorandum of charges,

the petitioner requested the Deputy Director,

Horticulture, Gajapati, Paralakhemundi for supplying

the documents which are necessary for preparation of

defence. Though such request was made on

25.10.2013, but he was not supplied with the required

documents causing prejudice to him. As such, the

petitioner submitted written statement of defence on

27.11.2013 denying the allegations made against him

in the memorandum of charges and pleaded that the

documents relied upon for framing the charges against

him are baseless and based on personal vendetta. But // 6 //

the opposite party no.1, without considering the same

in proper perspective, decided to go ahead with the

departmental proceeding by appointing Commissioner

of Departmental Inquires (CDI) as inquiring officer, vide

office order dated 06.01.2014. After receiving the file,

the CDI examined as many as 14 witnesses on behalf of

the prosecution, and on 30.10.2015 he completed the

enquiry and prepared the inquiry report on 04.11.2015.

A copy of the inquiry report was supplied to the

petitioner by the Joint Secretary to the Government, as

per notice no.18098 dated 21.11.2015 directing him to

submit representation, if any, on the enquiry report. On

the basis of such inquiry report submitted by the CDI,

petitioner submitted a representation on 08.02.2016

denying the charges levelled against him and raised

various points to substantiate his stand. But on receipt

of such representation, without considering the same in

proper perspective, opposite party no.1, vide notice

dated 19.08.2016, intimated the petitioner about the // 7 //

proposed major penalty of compulsory retirement from

government service to be imposed against him and

called upon him under sub-rule 10(i)(b) of Rule-15 of

OCS (CC&A) Rules, 1962 to represent within a period of

15 days from the date of receipt of the 2nd show cause

notice, as he may wish to make against the tentative

decision of the disciplinary authority for the above

proposed penalty. In response to such notice, though

the petitioner submitted his representation to the 2nd

show cause notice on 27.03.2017, but the disciplinary

authority, without considering the same, imposed

maximum penalty of compulsory retirement against the

petitioner vide order dated 22.08.2017 under

Annexure-8. Aggrieved thereby, the petitioner moved

the Odisha Administrative Tribunal, Bhubaneswar by

filing O.A. No. 1387 of 2017, but on abolition of the

tribunal, the said case has been transferred to this

Court and registered as above.

// 8 //

3. Mr. S.N. Patnaik, learned counsel for

the petitioner pointing out the procedural irregularity

committed by the authority contended that the

memorandum of charges has been issued by the

Principal Secretary to Government but not by the

disciplinary authority and, thereby, initiation of

departmental proceeding, basing upon such

memorandum of charges dated 16.08.2013, cannot

sustain in the eye of law. It is contended that on receipt

of memorandum of charges when the petitioner sought

for supply of documents for submission of written

statement of defence, the same was not supplied to him

in time. Thereby, the action taken by the disciplinary

authority is in gross violation of principles of natural

justice. It is further contended that in absence of

required documents the petitioner filed written

statement of defence, wherein he specifically urged that

due to non-supply of documents sought by him grave

prejudice was caused to him. But without considering // 9 //

the same, the disciplinary authority appointed CDI, as

inquiring officer, who conducted inquiry by examining

14 witnesses and submitted inquiry report in CDI Case

No.01 of 2014 against the petitioner on 04.11.2015. On

receipt of such inquiry report, without considering the

contention raised by the petitioner, a notice was issued

on 21.11.2015 vide Annexure-4 to submit

representation to the inquiry report under Rule-15

(10)(i)(a) of the OCS (CC&A) Rules, 1962 within 15 days.

The petitioner again submitted his representation to

such notice dated 21.11.2015 raising various objections

with regard to the proceeding so initiated against him

on 08.02.2016, but the same was not considered.

Thereafter, again second show cause notice was issued

on 19.08.2016 proposing major penalty of compulsory

retirement, basing upon which the major penalty of

compulsory retirement was imposed on the petitioner

vide order dated 22.08.2017 in Annexure-8. It is further

contended that Rule-15 (3) of OCS (CCA) Rules, 1962 // 10 //

has been grossly violated due to non-supply of copies of

documents relied upon by the prosecution and reflected

in the memo of charges. As such, the memorandum of

charges has been signed and communicated by the

Principal Secretary to Government, who is only

authorized to initiate a minor penalty proceeding and

has no authority to initiate a proceeding under Rule-15

of the OCS (CCA) Rules, 1962. Thereby, the very

initiation of proceeding by issuing memorandum of

charges by the Principal Secretary to the Government is

without jurisdiction.

It is further contended that the inquiry

officer, namely, CDI, who has conducted the inquiry,

has failed to act in a fair and neutral manner, being a

quasi judicial authority, as he did not allow the

petitioner to submit his written statement of defence

and adduce defence witnesses after closure of

examination of prosecution witnesses. On the basis of

corroborative evidence of witnesses, the inquiry report // 11 //

submitted by the CDI, without allowing the petitioner to

get an opportunity to cross-examine some of the

witnesses, because of late intimation of date of inquiry

causing prejudice to his defence, is tinkered with malice

and has no legal sanctity.

It is further contended that when the

disciplinary authority is not the inquiring authority and

the inquiry officer, CDI when submitted his inquiry

report, the disciplinary authority should have applied

its mind and record own findings on each charge. In

absence of the same, it can be safely construed that the

disciplinary authority has not acted in consonance with

the provisions contained under Sub-rule (9-A) of Rule-

15 of the OCS (CCA) Rules, 1962. More so, the notice

vide Annexure-4 dated 21.11.2015 was issued to the

petitioner by the Joint Secretary to Government, who is

not the disciplinary authority in stricto senso.

Thereby, the very initiation of proceeding against the

petitioner is without jurisdiction and violative of // 12 //

principles of natural justice. On all the above grounds,

he seeks for quashing of the punishment imposed on

the petitioner.

To substantiate his contention, reliance

has been placed on the judgments of the apex Court in

the cases of Roop Singh Negi v. Punjab National

Bank, (2009) 2 SCC 570; Union of India v. Prakash

Kumar Tandon, (2009) 2 SCC 541; Chairman,

Disciplinary Authority, Rani Lakshmi Bai

Kshetriya Gramin Bank v. Jagdish Sharan

Varshney, (2009) 4 SCC 240; and judgment of this

Court in the case of Sanjay Kumar Rout v. State of

Odisha, AIR 2018 Orissa 162.

4. Mr. N.K. Praharaj, learned Standing

Counsel for the State, referring to the counter affidavit,

contended that the provisions contained under Rule-15

of the OCS (CCA) Rules, 1962 have been complied with

in letter and spirit. So far as jurisdiction of issuance of

memorandum of charges vide Annexure-1 dated // 13 //

16.08.2013 is concerned, it is contended that opposite

party no.1, with the approval of the Chief Minister,

issued the memorandum of charges, basing on the

allegation petition dated 05.07.2012 submitted to the

Director of Horticulture, Odisha by some of the staff of

the Deputy Director, Horticulture, Gajapati. Therefore,

initiation of the proceeding against the petitioner is well

within the jurisdiction of opposite partyno.1. It is

further contended that the Deputy Director,

Horticulture, Gajapati was also directed, vide letter

dated 16.08.2013, to allow the petitioner to peruse the

records/documents relevant to the charges framed

against him and to take extracts thereof, if any, as he

may specify in writing, in the presence of a responsible

officer so as to enable him to prepare his written

statement of defence. Instead of doing so, the petitioner

sought 30 days more time to submit written statement

of defence, after obtaining the required documents in

relation to charges levelled against him, which was // 14 //

granted to him and ultimately the petitioner submitted

written statement of defence on 27.11.2013 denying all

the charges framed against him and represented to

exonerate him from the charges. But the authority,

having not satisfied with the defence statement

submitted by him, appointed the CDI, as the inquiring

officer, to cause an inquiry as per Rule-15(4) and (5) of

the OCS (CC&A) Rules, 1962 under the approval of the

Government. Thereafter, the Assistant Director,

Horticulture was also nominated to act as Additional

Presenting Officer for assisting the Presenting Officer in

adducing evidence in support of the charges on behalf

of the disciplinary authority. The inquiring officer

summoned the petitioner to attend the enquiry and put

forth his arguments along with supporting papers to

justify his innocence, and on completion of the inquiry,

inquiry report was submitted on 04.11.2015 and, as

such, on the basis of the same, first show cause notice

was issued to the petitioner on 21.11.2015 to submit // 15 //

his representation. On consideration of his

representation, the disciplinary authority proposed to

impose punishment of compulsory retirement from the

government service and also issued 2nd show cause

notice on 19.08.2016, which was served on the

petitioner, intimating the above proposed tentative

imposition of major punishment and he was called

upon to represent against such punishment. In

response to the same, the petitioner submitted his

representation and on consideration of the same with

due concurrence of the OPSC, which was obtained vide

letter dated 13.06.2017, the disciplinary authority

awarded the punishment of compulsory retirement

from service, vide order dated 22.08.2017 under

Annexure-8. Thereby, the action taken by the authority

is well justified and thus the order imposing major

penalty of compulsory retirement from service does not

require interference by this Court. So far as the

contention raised by learned counsel for the petitioner // 16 //

with regard to the procedural irregularity said to be

committed in course of inquiry, it is contended that

since the provisions contained under Rule-15 of the

OCS (CCA) Rules, 1962 have been complied with, the

action taken by the authority is well justified and, as

such, the same does not call for any interference by this

Court.

5. This Court heard Mr. S.N. Patnaik,

learned counsel for the petitioner and Mr. N.K.

Praharaj, learned Standing Counsel appearing for the

State by hybrid mode, and perused the record. Since

pleadings having been exchanged between the parties,

with the consent of learned counsel for the parties, this

writ petition is being disposed of finally at the stage of

admission.

6. Though several grounds have been

taken in the writ petition, but in course of hearing Mr.

S.N. Patnaik, learned counsel for the petitioner confined

his argument to only procedural irregularity committed // 17 //

by the authority in the process of awarding

punishment. In support of such contention, he urged

that Annexure-1, the memorandum of charges, was

issued by the Principal Secretary to Government,

Agriculture Department, but not by the disciplinary

authority. As the petitioner is holder of a civil post, the

government, being the appointing authority, is only

competent to impose penalty prescribed under either of

the clauses enumerated in Rule-13. Apparently, the

memorandum of charges has been issued by the

Department Secretary, but not by the Government, as

the disciplinary authority, nor even by the order of the

Governor. Thereby, the same is without jurisdiction.

Consequentially, the notice issued in Annexure-4 dated

21.11.2015 by the Joint Secretary to Government, in

pursuance of the findings of the inquiring officer, is also

without jurisdiction, as he is not the inquiring officer.

Whereas, the notice of second show cause, vide

Annexure-6 dated 19.08.2016, was issued by the // 18 //

competent authority, viz., Principal Secretary to

Government, by order of the Governor. The contention

raised is that when the inquiring officer submitted

inquiry report to the disciplinary authority, if it is not

the inquiring authority, it would consider the record of

the inquiry and record its findings on each charge.

Therefore, in the instant case, if the CDI submitted

inquiry report, the disciplinary authority should have

considered the record of the inquiry and recorded its

findings on each charge. The same having not been

done, the entire proceeding is vitiated.

7. In order to ascertain as to whether or not

any irregularity has been committed in the process of

inquiry which has given rise to imposition of penalty of

compulsory retirement from service on the petitioner, it

is worthwhile to have a glance over Rule-15 of the OCS

(CCA) Rules, 1962, which envisages the procedure for

imposition of penalty. Therefore, for just and proper // 19 //

adjudication of the case, Rule-15 of the OCS (CCA)

Rules, 1962 is extracted hereunder:-

"15. Procedure for imposing penalties. - (1) Without prejudice to the provisions of the Public Servant (Inquiry) 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.

(2) The disciplinary authority shall frame definite charges on the basis of the allegations on which the inquiry is to be held. Such charges, together with a statement of the allegations on which they are based, shall be communicated in writing to the Government servant and he shall be required to submit, within such time as may be specified by the disciplinary authority, not ordinarily exceeding one month a written statement of his defence and also to state whether he desires to be heard in person.

Explanation - In this Sub-rule and in Sub-rule (3) the expression Disciplinary authority shall include the authority competent under these rules to impose upon the Government servant of the penalties specified in Clauses (i) to (v) of Rule 13.

(3) 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 permission may be refused if, for reasons to be recorded in writing in the opinion of the disciplinary authority such records are not relevant for the purpose or it is against interest of the public to allow him access thereto.

(4) On receipt of the written statement of defence or if no such statement is received within the time specified, the disciplinary authority may itself enquire into such of the charges as are not admitted or, if it considers it necessary so to do, appoint a // 20 //

board of inquiry or an enquiring officer for the purpose.

Provided that if, after considering the written statement of defence, the disciplinary authority is of the view that the facts of the case do not justify the award of a major penalty, it shall determine after recording reasons thereof, what other penalty or penalties, if any, as specified in Clauses (i) to (v) of Rule 13 should be imposed and shall after consulting the Commission, where such consultation is necessary, pass appropriate order.

(5) The disciplinary authority may nominate any person to present the case in support of the charges before the authority inquiring into the charges (hereinafter referred to as the 'inquiring authority'). The Government servant shall have the right to engage a legal practitioner to present his case if the person nominated by the disciplinary authority, as aforesaid, is a legal practitioner. The inquiring authority may also having regard to the circumstances of the case, permit the Government servant to be represented by a legal practitioner.

(6) The inquiring authority shall, in the course of the inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. The Government servant shall be entitled to cross-examine witnesses examined in support of the charges and to give evidence in person. The person presenting the case in support of the charges shall be entitled to cross- examine the Government servant and the witnesses examined in his defence. If the inquiring authority declines to examine any witness on the ground that his evidence is not relevant or material, it shall record its reason in writing.

(7) At the conclusion of the inquiry the inquiring authority shall prepare a report of the inquiry, recording its findings on each of the charges together with reasons thereof. If, in the opinion of such authority, the proceedings of the inquiry establish charges different from those originally framed, it may record its findings on such charges, provided // 21 //

that the findings on such charges shall not be recorded, unless the Government servant has admitted the facts constituting them or has had an opportunity of defending himself against them. The inquiring authority may recommend the punishment to be inflicted when the charges are establishment on the findings.

(8) The record of inquiry shall include-

(i) the charges framed against the Government servant and the statement of allegations furnished to him under Sub-rule (2) :

(ii) his written statement of defence, if any;

(iii) the oral evidence taken in the course of the inquiry;

(iv) the documentary evidence considered in the course of the inquiry;

(v) the orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry;

(vi) a report setting out the findings on each charge and the reasons therefor; and

(vii) the recommendations of the inquiring authority, if any, regarding the punishment to be inflicted.

(9) The disciplinary authority, may, for reasons to be recorded by it in writing, remit the case to inquiring authority for further inquiry and report, and the inquiring authority shall there upon proceed to hold the further inquiry according to the provisions of sub- rule (6) of rule 15 as far as may be.

(9.A) The disciplinary authority shall, if it is not the inquiring authority, consider the record of the inquiry and record its findings on each charge.

(10) (i)(a) If the inquiring officer is not the disciplinary authority, the disciplinary authority shall furnish to the delinquent Government servant a copy of the report of the inquiring officer and give him notice by registered post or otherwise calling upon him to submit within a period of fifteen days such // 22 //

representation as he may wish to make against findings of the Inquiring Authority.

(b) On receipt of the representation referred to in Sub- clause (a) the disciplinary authority having regard to the findings on the charges, is of the opinion that any of the penalties specified in Clauses (vi) to (ix) of Rule 13 should be imposed, he shall furnish to the delinquent Government servant a statement of its findings along with brief reasons for disagreement, if any, with the findings of the inquiring officer and give him a notice by Registered post or otherwise stating the penalty proposed to be imposed on him and calling upon him to submit within a specified time such representation as he may wish to make against the proposed penalty :

Provided that in every case in which it is necessary to consult the Commission under the provision of the Constitution of India and the Orissa Public Service Commission (Limitation of Functions) Regulation, 1989 the record of Inquiry together with a copy of the notice given under Sub-clause (a) and the representation if any, received within the specified time in response to such notice shall be forwarded by the disciplinary authority to the Commission for its advice.

(c) On receipt of the advice from the Commission the disciplinary authority shall consider the representation, if any, made by the Government Servant and the advice given by the Commission and shall pass appropriate orders in the case.

(d) In any case in which it is not necessary to consult the Orissa Public Service Commission, the disciplinary authority shall consider the representation, if any, made by the Government servant in response to the notice under Sub-Clause

(b) and pass appropriate order in the case.

Provided that in every case in which it is necessary to consult the Commission under the provision of the Constitution of India and the Orissa Public Service Commission (Limitation of Functions) Regulation, // 23 //

1989, the record of inquiry together with copies of the notices given under Sub-clauses (a) and (b) and the representations, if any, received in response thereto within the specified time shall be forwarded by the disciplinary authority to the Commission for its advice.

(ii) The orders passed by the disciplinary authority shall be communicated to the Government servant, who shall also be supplied with a copy of the report of inquiring authority and where the disciplinary authority is not the inquiring authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the inquiring authority, as well as a copy of the advice of the Commission, where the Commission had been consulted, and brief statement of reasons for non- acceptance of the advice of the Commission, if the disciplinary authority has not accepted such advice."

8. As provided under Rule-15(2) of the OCS

(CCA) Rules, 1962, the disciplinary authority shall have

to frame definite charges on the basis of the allegations

on which the inquiry is to be held. But on perusal of

the memorandum of charges, it appears that the same

has not been framed by the disciplinary authority,

which is none-else but the Government, as per the

schedule attached to the Rules itself. More so, when the

memorandum of charges was served on the petitioner,

he sought certain documents by way of filing // 24 //

application. Though he was permitted to peruse certain

documents and to take extracts thereof, but the same

were not provided to him for preparing written

statement of defence and, as such, reasons for refusal

to provide the documents, which is ought to have been

recorded in writing, is absent in the present case, which

violates Rule-15(3) of the OCS (CCA) Rules, 1962. Even

though the petitioner raised objection with regard to

competence of the authority framing the memorandum

of charge, no reply was given thereto and, on the other

hand, direction was given for inquiry to be conducted.

On receipt of the written statement of defence, as per

the provisions contained in Rule-15(4) of the OCS (CCA)

Rules, 1962, the disciplinary authority may itself

enquire into such of the charges as are not admitted or,

if it considers it necessary so to do, appoint a board of

inquiry or an enquiring officer for the purpose. In

the present case, CDI was appointed to cause

inquiry and in the process of inquiry, when 14 // 25 //

witnesses were examined to establish the charge

against the petitioner, if petitioner wanted to cross-

examine some of the witnesses, he should have been

allowed to do so, as per the provisions contained under

Rule-15(6) of the OCS (CCA) Rules, 1962, but here the

petitioner has been deprived of such opportunity, in

view of late intimation of the date of enquiry, thereby

causing prejudice to his defence. Furthermore, on

receipt of the inquiry report submitted by the inquiring

officer, the disciplinary authority, as it is not the

inquiring authority, ought to have considered the

record of the inquiry and recorded its findings on each

of the charges, as per the provisions contained under

Sub-rule-(9A) of Rules-15 of the OCS (CCA) Rules,

1962. But neither the materials placed on record nor

the pleadings made would indicate that on receipt of

the inquiry report submitted by the CDI, the

disciplinary authority has considered the record of the

inquiry and recorded its finding on each charge.

// 26 //

Thereby, in absence of recording such findings by the

disciplinary authority on each of the charges, after

receipt of the inquiry report submitted by the CDI,

there is non-compliance of Sub-rule (9A) of Rule-15 of

the OCS (CCA) Rules, 1962 and, as such, there is gross

violation of procedure in imposing penalty under Rule-

15 of the OCS (CCA) Rules, 1962.

9. In Roop Singh Negi, mentioned supra,

the apex Court held that the inquiry conducted by an

inquiring officer is quasi judicial in nature and he has

to act fairly and without any bias. More so, a

departmental proceeding is a quasi judicial proceeding

and the inquiry officer performs a quasi judicial

function and the charges levelled against the delinquent

officer must be found to have been proved. The

inquiring officer has a duty to arrive at a finding upon

taking into consideration the materials brought on

record by the parties. As such, the provisions of the

Indian Evidence Act, 1872 may not be applicable in a // 27 //

departmental proceeding, but the principles of natural

justice are required to be complied with. As the report

of the enquiry officer was based on merely ipse dixit as

also surmises and conjectures, the same could not have

been sustained.

10. In Prakash Kumar Tandon, mentioned

supra, the apex Court held that an enquiry officer is a

quasi-judicial authority and should perform his

functions fairly and reasonably. It was also held that if

disciplinary proceedings have not been conducted

fairly, presumption can be drawn that this caused

prejudice to the charged employee. Thereby, adopting

fairness in the inquiry is one of the facets of the

departmental inquiry.

11.              In   Jagdish         Sharan          Varshney,

mentioned    supra,    the     apex   Court     held    that    in

departmental      enquiry     the   duty   of   the    appellate

authority is to give reasons while affirming order of the

disciplinary authority.

// 28 //

12. Applying the same analogy to the present

case, where the disciplinary authority is not the

inquiring officer. In such eventuality, the disciplinary

authority, after receipt of inquiry report from the CDI,

should have considered the record of the inquiry and

recorded its finding on each charge levelled against the

petitioner. In absence of the same, there is gross

violation of the provisions contained under Sub-rule

(9A) of Rule-15 of the OCS (CCA) Rules, 1962. Thereby,

the very initiation of the proceeding against the

petitioner is vitiated.

13. In Sanjay Kumar Rout, mentioned

supra, the apex Court, referring to its earlier judgment

in the case of Siemens Engineering Mfg. Co. of India

Ltd. v. Union of India, AIR 1976 SC 1785, held that

rule requiring reasons to be recorded by quasi-judicial

authorities in support of the orders passed by them is a

basic principle of natural justice. Therefore, if Sub-rule

(9A) of Rule-15 of the OCS (CCA) Rules, 1962 requires // 29 //

that the disciplinary authority shall, if it is not the

inquiring authority, consider the record of the inquiry

and record its findings on each charge, in absence of

the same, the order imposing major penalty of

compulsory retirement in Annexure-8, cannot sustain

in the eye of law.

14. Considering the factual and legal

aspects, as discussed above, this Court is of the

considered view that the order under Annexure-8 dated

22.08.2017 passed by the disciplinary authority

imposing major penalty of compulsory retirement from

service on the petitioner suffers from the vice of

procedural irregularity and, therefore, cannot sustain

in the eye of law and the same is liable to be quashed

and hereby quashed. Consequentially, the matter is

remitted back to the disciplinary authority to initiate

proceeding de novo in conformity with the provisions

contained under OCS (CCA) Rules, 1962 and treat the

petitioner under Rule-12(4) of the OCS (CCA) Rules, // 30 //

1962 and conclude the proceeding in accordance with

law.

15. In the result, the writ petition is

allowed. However, there shall be no order as to cost.

.............................

DR. B.R. SARANGI, JUDGE

Orissa High Court, Cuttack The 25th August, 2021, Ashok/GDS