Afr Sailendu Kumar Panda vs State Of Odisha & Others
2022 Latest Caselaw 1828 Ori

                   ORISSA HIGH COURT: CUTTACK

                     WPC (OAC) No. 2088 of 2015

       (An application under Article 226 and 227 of the
       Constitution of India)
                              ---------------

AFR    Sailendu Kumar Panda                       .....     Petitioner


                                       -Versus-

       State of Odisha & others                   .....   Opp. Parties


       Advocate(s) appeared in this case :-
       ________________________________________________________
          For Petitioner    :    M/s. B. Mohanty,
                                 B.S. Rayaguru, S. Patnaik,
                                 A. Patnaik and S Mohapatra,
                                 Advocates

          For Opp. Parties :     Mr. H.K. Panigrahi,
                                 Addl. Standing Counsel.
       _______________________________________________________

            CORAM
               JUSTICE SASHIKANTA MISHRA

                               JUDGMENT

15th March, 2022

SASHIKANTA MISHRA, J. The petitioner has filed the I.A.

seeking the following relief:

"I) The order vide office Order No. 2F (Con)- 38/2010 5368/F & E dt.26.03.2015 passed by the Respondent No.1 under Annexure-12 shall be quashed.

II) The action of the respondents shall be declared as illegal."

2. The brief facts of the case are that the

petitioner entered into service as Forest Ranger on

06.02.1986 in Karanjia Division. He was posted as Range

Officer at Hadagarh Range of Keonjhar Wildlife Division

w.e.f. 08.06.2005. While working as such, a departmental

Proceeding was drawn against him by the office of the

Principal, CCF Wildlife, Keonjhar on the allegation that

he had given false deposition in C.S. No.16/2007 in the

Court of Civil Judge (Junior Division), Anandpur. A

Memorandum was issued on 13.01.2011 proposing to

hold an enquiry against the petitioner under Rule 15 of

OCS (CCA) Rules, 1962 containing the substance of

imputation of misconduct and article of charges and he

was asked to submit his written statement of defence

within 30 days. The petitioner, vide letters dated

05.02.2011, 15.02.2011 and 01.03.2011, addressed to

the opposite party no.1 and letters dated 04.03.2011,

18.04.2011 and 15.07.2011 addressed to opposite party

no.3, requested for supply of documents. The petitioner

also met the Additional Secretary to Government, Forest

and Environment Department, Odisha Bhubaneswar in

the Grievance Cell on 21.01.2012 objecting to holding of

enquiry without supplying the relevant documents.

However ignoring the objection of the petitioner, the

Divisional Forest Officer, Cuttack Forest Division was

appointed as Enquiring Officer, who submitted his

enquiry report on 07.12.2013 holding the petitioner

guilty of the charges and proposed the punishment of

stoppage of two annual increments with cumulative effect

and censure. It is stated that the petitioner had been

submitting several representations to the Enquiring

Officer for supply of documents and objected to recording

of his statement from the very first date of the enquiry.

The Enquiring Officer, vide letter dated 21.02.2012 also

asked the Marshalling Officer to supply the documents.

On 01.02.2013, the DFO, Anandapur intimated the

Enquiring Officer that the available information had

already been supplied to the applicant, but the same

according to the petitioner was not correct, as informed

by him to the Enquiring Officer on 06.02.2013. The

petitioner subsequently submitted that in the absence of

the relevant documents he was unable to submit his

written statement of defence but ignoring such request

the Enquiring Officer proceeded with the enquiry and

concluded it. On 30.07.2014, the opposite party no.1

issued a second show cause notice to the petitioner

directing him to submit his representation on the penalty

proposed by the disciplinary authority. The disciplinary

authority having disagreed with the punishment

proposed by the Enquiring Officer proposed to inflict

major punishment of withholding of three increments

with cumulative effect and withholding promotion for

next three years.

It is further stated by the petitioner that the

relevant documents include the correct and not final

digitized map prepared by Geo Infotech, Bhubaneswar

but the same was not supplied to the petitioner, for

which he was unable to submit his written statement of

defence, which is serious violation of the principles of

natural justice. It is also stated that the disciplinary

authority, though disagreed with the punishment

proposed to be inflicted by the Enquiring Officer, has not

cited reasons for the same as required by law. On such

facts, the petitioner has prayed for quashing of the order

dated 26.03.2015 imposing the penalty on him.

3. A counter has been filed by the opposite

party no.1 admitting the matters of record but disputing

the averments relating to non-supply of documents to the

petitioner. It is stated that all the documents have been

supplied to the petitioner but he did not submit his

written statement. The imposition of major punishment is

sought to be justified on the ground that mistakes

committed by the petitioner are grievous in nature and

due to his fallible misconduct and as the punishment

proposed to be inflicted by the Enquiring Officer was too

lenient. It is stated that the petitioner gave a different

statement than the written statement filed in the Civil

Suit, for which the judgment in the case was passed

against the Government by holding that mining operation

is not within the area of Hadagarh Sanctuary. Further,

petitioner submitted some maps prepared by him, which

are not approved maps, nor obtained prior permission of

the authority before submitting the same in the Civil

Court.

4. The petitioner has filed a rejoinder to the

counter mainly stating that though certain documents

had been supplied to him, yet the same were not

complete and particularly, the digitized map of Hadagarh

Sanctuary prepared by Geo Infotech, Bhubaneswar

conforming to the notification of the sanctuary, which

was the subject matter of the civil suit, was not supplied

and instead a copy of the Sanctuary Outline Map on Topo

sheet showing the same boundary of sanctuary as per

proclamation made by DFO was supplied, wherein the

de-reservation of forest area was not depicted. It is

further stated that the information upon which the article

of charges is proved, are not grave but the petitioner has

been slapped with a major penalty. It is finally submitted

that neither the Enquiring Officer nor the disciplinary

authority have taken into consideration the fact that the

petitioner was unable to defend himself properly in the

enquiry for want of relevant documents.

5. Heard Mr. T.K. Patnaik, learned counsel for

the petitioner and Mr. H.K. Panigrahi, learned Addl.

Standing Counsel.

6. It is forcefully argued by Mr. Patnaik that the

enquiry in question was held is complete violation of the

principles of natural justice as the relevant documents,

basing on which the charges were framed, were never

supplied to the petitioner. Since the crux of the dispute

relates to alleged giving of false deposition by the

petitioner before the Civil Court as also submission of the

wrong map of the Hadagarh sanctuary it was incumbent

upon the Enquiring Officer to ensure that the concerned

maps and other documents defining the area of the

sanctuary ought to have been supplied to the petitioner.

In the absence of such documents, the petitioner was not

able to defend himself. It is contended by Mr. Patnaik

that even the Enquiring Officer himself wrote to the

Marshaling Officer to submit the documents, but even

though the documents specifically sought for by the

petitioner were not supplied to him, the enquiry was held

and the petitioner was found guilty. Since the principles

of natural justice as enshrined under Rule-15 of the OCS

(CCA) Rules, 1962 have been given a complete go bye, the

entire proceeding, according to Mr. Patnaik, is rendered a

nullity in the eye of law. In this context, Mr. Patnaik has

relied upon a decision of this Court in the case of

Narottam Pati vs. North Eastern Supply Company,

reported in 2017 (Supp.I) OLR-479. Mr. Patnaik also

argued that even otherwise the impugned order inflicting

major penalty on the petitioner is bad in law as no reason

has been ascribed by the disciplinary authority despite

disagreeing with the punishment proposed by the

Enquiring Officer.

7. Per contra, Mr. H.K. Panigrahi, learned Addl.

Standing Counsel for the State has contended that all the

relevant documents have been supplied to the petitioner,

which would be evident from a bare reading of the

enquiry report itself. The petitioner, according to Mr.

Panigrahi, could have submitted his written statement on

the basis of the documents so supplied, but instead of

doing so, he chose to submit repeated representations,

evidently to scuttle the enquiry proceeding. Mr. Panigrahi

further argues that the enquiry was held with due

deference to the principles of natural justice giving full

opportunity to the petitioner to defend himself. As

regards the impugned order, it is submitted by Mr.

Panigrahi that the disciplinary authority has clearly

mentioned in the impugned order the reasons why he

chose to differ from the penalty proposed by the

Enquiring Officer and therefore, the ground raised by the

petitioner is not tenable.

8. Before delving into the merits of the rival

contentions as noted above, it would be relevant to refer

to Rule-15 of the OCS(CCA) Rules, sub-Rule(3) of which

reads as under:

"15. Procedure for imposing penalties -

xx xx xx (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."

From a bare reading of the above provision, it

is clear that all records on which the allegations are

based, which are required by the Government servant for

the purpose of preparing his defence shall be supplied to

him. Further, if the records sought for are considered not

relevant for the purpose or it is against interest of the

public to allow him to access thereto, permission may be

refused for reasons to be recorded in writing.

9. Coming to the facts of the case, it is seen

that the petitioner, after issuance of the memorandum

containing the imputation of misconduct and article of

charges, repeatedly requested the concerned authorities

to submit the relevant documents, the list of which has

been enclosed to one of his representations dated

05.02.2011 (Annexure-2). It further transpires that some

documents as listed in his representation were supplied

to the petitioner but vide letter dated 21.01.2012

enclosed as Annexure-3, the petitioner stated that certain

wrong documents had been sent, which he returned with

request to supply him the correct documents as per serial

nos.6, 33, 41, 43 and 45 of his representation dated

05.02.2011. The petitioner further claims that the map

vide serial no. 33 of the said representation was not given

but was clubbed with serial no. 41. In so far as the map

is concerned, which appears to be vital to the case of the

petitioner, is a not final map said to have been prepared

by M/s. Geo Infotech, Bhubaneswar apparently at the

instance of the Government, but the same was not

supplied. The Enquiring Officer vide letter under

Annexure-8 also requested the D.F.O., Keonjhar (Wild

Life) Division to supply the required documents to the

petitioner to enable him to submit the written statement.

10. From the above narration it appears that the

petitioner wanted several documents for preparation of

his written statement, out of which some were supplied

leaving out the rest. Such contention of the petitioner has

not been controverted in any manner by the opposite

parties. If according to the concerned authorities, the

documents sought for by the petitioner were not relevant

or against interest of the public to allow him access

thereto, such fact ought to have been duly communicated

to him and even stated so in the counter affidavit filed by

the opposite party no.1. The assertions made in the writ

petition relating to non-supply of documents have simply

been denied and even the letter written by the Enquiring

Officer to the Marshalling Officer has been denied in a

manner to suggest that no such letter was ever written.

That apart, it is simply stated that all the documents

were supplied even though the petitioner had specifically

listed as many as 56 documents in his representation

enclosed as Annexure-2 to the writ petition. The counter

affidavit does not contain any positive assertion that all

the 56 documents had been supplied to the petitioner. It

is stated at the cost of repetition that if some out of the

56 documents were supplied and others were not, then

the reasons for non-supply of the same has also not been

stated. As regards the map at serial no. 33, nothing is

forthcoming from the side of the opposite parties as to if

the same was supplied or if not, the reason for its non-

supply. This Court therefore, finds that the petitioner,

being deprived of the relevant documents was unable to

submit his written statement of defence, which is a

violation of the principle of natural justice underlying the

specific provision under sub-rule(3) of Rule-15 of the OCS

(CCA) Rules for which the enquiry proceeding is liable to

be held as vitiated.

11. As has already been discussed hereinbefore,

the Enquiring Officer, after rendering a finding of guilt

against the petitioner proposed imposition of the

punishment of stoppage of two annual increments with

cumulative effect and censure. The disciplinary authority

however, did not accept the recommendation of the

Enquiring Officer and imposed higher penalties, namely

withholding of three increments with cumulative effect

and withholding promotion for next three years. In this

context, Rule-15(10)(i)(b) are relevant and is quoted

hereinbelow.

"(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 Enquiring 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 Odisha 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."

( Emphasis supplied)

Admittedly, the penalty of withholding of three

increments with cumulative effect is a major penalty. It

was therefore, incumbent upon the disciplinary authority

to cite specific reasons for disagreeing with the

recommendations of the Enquiring Officer with regard to

the punishment to be inflicted. In the instant case, it is

simply stated by the disciplinary authority that

considering the serious matter of misconduct, the

competent authority disagreed with the penalty suggested

by the I.O. as it is too lenient.

12. It goes without saying that the penalty

imposed on a Government servant must be

commensurate to the charges proved against him and

therefore, it is the bounden duty of the disciplinary

authority to examine such aspect and indicate

specifically as to why it is deemed proper to differ from

penalty proposed by the Enquiring Officer. Simply by

stating that the misconduct is serious or that the penalty

suggested is too lenient cannot satisfy the requirement of

the Rule quoted hereinbefore. Even otherwise, it is the

settled principle of law that recording of reasons by the

concerned authority would enable the Court to examine

as to what had weighed upon its mind while passing the

order in question and so decide whether the same is

correct or not.

The obligation to record reasons operates as

a deterrent against possible arbitrary action by the

executive authority invested with judicial power. The

above view was taken by the apex Court in the case of

Travancore Rayons Ltd. vs. The Union of India,

reported in AIR 1974 SC 862.

Further, in S.N. Mukherjee vs. Union of

India reported in (1990)4 SCC 549, the apex Court held

that the requirement to record reasons can be regarded

as one of the principles of natural justice, which governs

exercise of power by administrative authorities.

Both the cases as above have also been

relied upon by this Court in the case of Narottam Pati

(supra) relied upon by the petitioner involving somewhat

similar facts as the present case.

13. For the forgoing reasons therefore, this Court

is persuaded to hold that the disciplinary proceeding

initiated against the petitioner, culminating in a finding

of guilt having been conducted in gross violation of the

principles of natural justice, as enshrined under Rule

15(3) of the OCS(CCA) Rules, 1962 stands vitiated.

Further, the impugned order imposing penalty by the

disciplinary authority being devoid of reasons is also

rendered unsustainable in the eye of law. Consequently,

the impugned order under Annexure-12 is hereby

quashed.

14. The writ petition is thus, allowed.

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

Sashikanta Mishra, Judge

Orissa High Court, Cuttack The 15th March, 2021/ A.K. Rana