Banamali Nayak vs Principal Secretary To ...
2021 Latest Caselaw 6539 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 W.P.(C) No.14304 of 2019




               Banamali Nayak                      ....            Petitioner
                                                Dr. B. K. Mishra, Advocate
                                         -versus-
               Principal Secretary to Government ....           Opp. Parties
               of Odisha and others
                                                     Mr.M.S. Sahoo, AGA

                        CORAM:
                        THE CHIEF JUSTICE
                        JUSTICE S.K. PANIGRAHI
                                       ORDER

Order No.                             24.06.2021
            Dr. S. Muralidhar, CJ

10. 1. This matter is taken up by video conferencing mode.

2. This writ petition is directed against the judgment dated 25 th April, 2019 passed by the Orissa Administrative Tribunal (OAT), Cuttack Bench, Cuttack in O.A. No.793 (C) of 2017.

3. There is a long history to this litigation. The Petitioner is a Junior Engineer (JE) (Civil) in the office of the Assistant Soil Conservation Officer (ASCO), Nuapada, Orissa functioning in the Agriculture Department, Government of Odisha. On 14 th October, 1993, a disciplinary proceeding was initiated against him for alleged irregularities in the execution of a water harvesting structure. This went on for five long years culminating the Director of Soil Conservation (DSC), i.e. Disciplinary Authority (DA) issuing an order dated 11 th June,

1998 awarding the Petitioner the punishment inter alia of confirming the period of his suspension, recovering from him 25% of the loss of Rs. 9879 allegedly caused to the Department and directing that he should not be allowed to handle cash anymore and that it should be so recorded in his service book.

4. The Petitioner appealed against the said order to the Principal Secretary to the Government, Agriculture Department (Appellate Authority) who by an order dated 25th July 2000 set aside the above punishment imposed by the DA holding it to be suffering from procedural defects since it was realized that the DSC is not competent to draw up disciplinary proceedings against the Petitioner who was a JE (Civil) who belonged to the Agriculture Department. While the case was remanded to the DA to conduct fresh enquiry by initiating proceeding against two other persons who had been proceeded against along with the Petitioner, no similar direction was issued as regards the Petitioner.

5. It appears that another disciplinary proceeding was initiated against the Petitioner by the DSC by an order dated 24th December, 2002 under Rule 15 of the OCS (CCA) Rules, 1962 for alleged acts of misconduct during 1998 while he was working as JE under the ASCO, Chitrakonda. However, after realising that the DSC was not the competent authority to do so and that the Petitioner's appointing authority was the Director of Agricultural and Food Production (DAFP), who alone was competent to initiate disciplinary proceedings against a JE

(Civil), the DSC by an order dated 25th May, 2007 dropped the said proceedings.

6. The DSC then forwarded the case of the Petitioner to the Commissioner-cum-Director, Agriculture and Food Production Department for initiation of departmental proceeding. Challenging that order the Petitioner filed O.A. No.1938(C) of 2007 before the OAT. The said application was disposed of by the OAT by order dated 8th August, 2007 directing the Principal Secretary, Agriculture Department to treat the application as a representation and dispose of it within period of two months.

7. Pursuant thereto the Deputy Secretary in the Agriculture Department wrote a letter dated 9th October, 2007 to the DSC stating that all the disciplinary proceedings initiated against the present Petitioner be dropped and no fresh disciplinary proceeding should be drawn up at the level of the DAFP on the same set of charges for which he has already been exonerated by the earlier order dated 25th July, 2000.

8. Notwithstanding the above, fresh disciplinary proceeding was again initiated by the DAFP by Memo dated 24th August, 2010 with charges concerning his alleged misconduct way back in 1998 while he was serving in the office of the ASCO, Chitrakunda, and in respect of which the proceedings which had been initiated on 24th December 2002 had already been dropped on 25th May, 2007. A second disciplinary proceeding

was initiated on 17th September, 2010 by the DAFP pertaining to the same charges of alleged misconduct of the Petitioner while he was serving in the office of the ASCO, Nuapada, in 1993 and which again had already been dropped on 25 th July, 2000.

9. The Petitioner again made a representation to the Principal Secretary, Agriculture Department on 21st September, 2015 through the Commissioner-cum DAFP. However, without forwarding the said representation to the Principal Secretary, the Commissioner-cum-DAFP passed an order dated 17th December, 2015 directing recovery of Rs.9,879/- from the Petitioner in lumpsum. Challenging the said order, O.A. No.505(C) of 2016 was filed by the Petitioner before the OAT. An order was passed by the OAT in the said O.A. on 2nd March, 2016 directing the Principal Secretary to consider the Petitioner's representation dated 21st September, 2015 within two months.

10. The Petitioner on the basis of the earlier representation dated 21st September, 2015 submitted another representation dated 8th August 2016 to the Principal Secretary asking to be exonerated from all the charges since the subsequent proceedings were for the same charges from which he already stood exonerated by orders dated 25th July, 2000 and 25th May, 2007. The Principal Secretary passed a fresh order dated 25th October, 2016 rejecting the Petitioner's representation. This

was challenged by the Petitioner in the OAT by filing O.A. No.793(C) of 2017.

11. In the impugned order dated 25th April 2019, the OAT noted that the first of the two departmental proceedings was initiated in 1993 and culminated in the exoneration order passed by the Principal Secretary on 25th July, 2000. It was held that there was no remand of those proceedings for a fresh enquiry as far as the Petitioner was concerned. Consequently the OAT rejected the plea of the Department that a fresh disciplinary proceeding could have been initiated against the Petitioner on 17th September, 2010 on the same charges.

12. The OAT further held that as regards the second disciplinary proceeding initiated against the Petitioner on 24th December, 2002, while he was working as JE (Civil) in the office of the ASCO, Chitrakunda the proceedings was dropped by an order dated 25th May, 2007 by the DSC with a view to initiating a fresh proceeding by the Commissioner-cum-DAFP who was the competent authority to do so. Thereafter a fresh proceeding was initiated on 24th August, 2010.

13. In the result, the OAT quashed the proceedings initiated by order dated 17th September, 2010 but sustained the continuance of the proceeding started by order dated 24 th August, 2010. It directed that those proceedings should be completed within four months from the date of the order of the OAT.

14. To the extent that the disciplinary proceeding initiated against him by the order dated 24th August, 2010 of the Commissioner-cum-DAFP was not quashed by the OAT, the present petition has been filed by the Petitioner.

15. In the present petition no interim order was passed on 14 th January 2020 when it was listed before this Court. The Additional Government Advocate (AGA) was directed "to get ready on the question as to whether the proceeding initiated after 12 years of delinquency is hit by principle of arbitrariness and gross delay".

16. At a subsequent hearing on 16th March, 2020, the following questions were framed for consideration:

"1. Whether a proceeding dropped by an incompetent authority on the ground of competency to enquire, bars fresh proceeding by competent authority?

2. Whether dropping of the earlier proceeding by an incompetent authority or the time taken by the incompetent authority in the enquiry shall be counted towards limitation?"

17. For some reasons the matter could not proceed further on 29th April, 2021. Written arguments were asked to be filed by both the parties.

18. It requires to be noticed that on 13th January, 2020 the Petitioner filed an additional affidavit explaining in detail the history of the litigation and pointing out how the proceedings drawn up against him on 24th August, 2010 and 17th

September, 2010 pertained respectively to the earlier proceedings of 1998 and 1993 and that their being reopened after gaps of 12 years and 17 years respectively was bad in law. On their part the Opposite Parties filed a short affidavit dated 28th January, 2020 where in paragraph 7 it was stated that the Enquiry Officer, after completion of the enquiry had submitted a report on 20th December, 2019 and that "steps have been taken to complete the proceedings as per rules."

19. This Court has heard the submissions of Dr. B.K. Mishra, learned counsel for the Petitioner and Mr. M.S. Sahoo, learned AGA.

20. The admitted position is that two sets of disciplinary proceedings were initiated against the Petitioner. One pertained to an alleged misconduct while he was serving as JE (Civil) in the office of the ASCO, Nuapada. This was initiated nearly 28 years ago on 14th October, 1993 and culminated in his complete exoneration by an order dated 25th July, 2000 of the Principal Secretary, Agriculture Department. The attempt to revive it subsequently by the Memorandum dated 17 th September, 2010 issued by the Commissioner-cum-DAFP was put to an end by the OAT by the impugned order. To that extent the rejection of the Petitioner's representation by the order dated 25th October, 2016 of the Principal Secretary, Agriculture Department has been quashed. The Opposite Parties have not challenged that part of the impugned order. Thus it has finally brought to an end 28 years of a Damocles

sword of one of the disciplinary proceedings hanging over the Petitioner's head. So far so good.

21. Now coming to the second disciplinary proceeding which was initiated on 24th December, 2002 for the alleged acts of misconduct of the Petitioner committed in 1998 while he was working as JE (Civil) at Chitrkonda. As noticed earlier this was dropped by the DSC by an order dated 25th May, 2007, no doubt on grounds of the DSC not being competent to draw up such proceedings and with a view to having it initiated by the competent authority. However, nothing happened thereafter till 24th August 2010 which was nearly 12 years after the alleged misconduct and more than three years after the proceedings were dropped by the DSC. The OAT was of the view that the initiation of these proceedings cannot be treated as illegal and therefore cannot be quashed. A direction was issued to the Opposite Party to complete the proceedings within a period of four months from the date of receipt of the order of the OAT.

22. That four month period came to an end on 31st August, 2019. As far as the present petition is concerned, although it was filed on 14th August, 2019, at no stage was any interim order passed by this Court staying the disciplinary proceedings consequent upon the memo dated 24th August, 2010 on the cause of action of 1998. Undoubtedly this was sought to be reopened after gap of 12 years. While delay per se may not be a ground to quash disciplinary proceedings, in the present case the fact of the matter is that the disciplinary proceedings which

commenced in 2002, for events of 1998, have still not seen the light at the end of the long dark tunnel. In other words although the time period granted by the OAT got over by the end of August, 2019, and there was no stay of the disciplinary proceedings by this Court, the Opposite Parties failed to comply with the order of the OAT.

23. This further delay can at best be termed ironical because delay in concluding the proceedings is in fact the central issue involved in the petition before the OAT and in the present petition as well. Although the OAT could have quashed the proceedings on the ground that the matter pertaining to 1998 was indeed a stale one, it still gave the Opposite Parties a final chance to conclude the proceedings within four months. Nearly two years have been passed since and the proceedings are still not concluded. This inordinate delay is contrary to the binding instructions issued from time to time by the Government of India as well as the Government of Odisha on expeditious conclusion of departmental proceedings.

24. The endless misery to which a government servant is subject on account of interminable disciplinary proceedings proves the adage that the process is itself the punishment. It can be soul destroying and can shred a person's morale to tatters.

25. In State of Madhya Pradesh v. Bani Singh AIR 1990 SC 1308 the Supreme Court upheld the order of the Tribunal

quashing disciplinary proceedings where the delay of over 12 years in the initiation of the proceedings was not satisfactorily explained.

26. In the State of Punjab v. Chaman Lal Goyal 1995(2) ATT (SC) 5, the Supreme Court frowned upon the delay of over five years in serving charges in the disciplinary proceedings and observed as under:

"Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, malafides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing."

27. In State of A.P. v. N. Radhakrishan (1998) 4 SCC 154, the Supreme Court was dealing with a case of inordinate delay in the conclusion of departmental proceedings and what might

be the possible legal consequence. Explaining the legal position, the Court observed:

"It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the

delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations."

28. In P.V. Mahadevan v. MD, TN Housing Board (2005) 6 SCC 636 the Supreme Court was dealing with a case of alleged misconduct that took place in 1990, i.e. more than fifteen years earlier. In that context, while not permitting the proceedings to continue, the Supreme Court held:

"Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer."

29. In the present case too, all the deadlines have long been crossed and the disciplinary proceedings, pertaining to alleged acts of misconduct committed in 1998 have still not been concluded. The misery of the Petitioner has been compounded with the first round of proceedings which commenced with a

delay of four years in 2002 concluding in 2007 only to be revived three years later in 2010. Thus, for over 23 years now he has had to endure the mental and emotional torture of interminable proceedings. And this after enduring another set of proceedings that began in 1993 and culminated in the OAT in 2019. Enough is enough, the Petitioner might well say. And this Court would agree. Nearly three decades of his life as a government servant have been spent in defending himself in these proceedings, with no tangible result except agony.

30. In the circumstances, this Court directs that the disciplinary proceedings pending against the Petitioner which commenced with the memo dated 24th August 2010 shall stand closed. The Opposite Parties are restrained from initiating any fresh proceedings against the Petitioner pertaining to incidents of either 1993 or 1998 for which disciplinary proceedings have taken place more than once, unsuccessfully.

31. The impugned order of the OAT to the extent it permitted the proceedings to continue with the hope that it would conclude in four months, has not been complied with by the Opposite Parties. That part of its order can, therefore, not be allowed to continue. It is so ordered.

32. The writ petition is disposed of with the above terms.

33. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may

utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No.4798, dated 15th April, 2021.

(S. Muralidhar) Chief Justice

(S.K. Panigrahi) Judge KC Bisoi