Afr Suvendu Kumar Routray vs State Of Odisha & Others
2022 Latest Caselaw 2409 Ori

                   ORISSA HIGH COURT: CUTTACK

                     WPC (OAC) No.4070 OF 2013

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

AFR    Suvendu Kumar Routray             ......        Petitioner


                                     -Versus-

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


       Advocate(s) appeared in this case :-
       _________________________________________________________
       For Petitioner       :    Mr. J.K. Mishra (2), Advocate

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

            CORAM
               JUSTICE SASHIKANTA MISHRA

                                  JUDGMENT

4th May, 2022

SASHIKANTA MISHRA, J. In the present writ application, the

petitioner seeks to challenge the order of punishment

passed by the Disciplinary Authority (opposite party no.2)

and the order passed by the Appellate Authority (opposite

party no.1) in rejecting his appeal filed against the order of

punishment.

2. Bereft of unnecessary details, the facts of the

case are that while the petitioner was working as a Junior

Clerk in Tangi Sub-Treasury, a proceeding was initiated

against him on 28.12.1990 on several charges of

misconduct. The petitioner submitted his reply denying

the charges but the disciplinary authority decided to

conduct an enquiry. Accordingly, an enquiry was

conducted, which according to the petitioner was held

without adhering to the principles of natural justice. The

enquiry officer submitted his report on 24.03.1992 holding

the petitioner guilty of the charges. Basing on the said

report, the petitioner was visited with the punishment of

withholding of the increments without cumulative effect by

the disciplinary authority vide order dated 31.08.2010,

which is enclosed as Annexure-5 to the writ petition. The

petitioner preferred an appeal before opposite party no.1

raising several grounds including the ground of non-

compliance of the principles of natural justice. The

opposite party no.1 however, rejected his appeal by order

dated 15.11.2012, which is enclosed as Annexue-7 to the

writ petition. Challenging the order of the disciplinary

authority as well as the rejection of the appeal preferred by

the petitioner, he approached the erstwhile Odisha

Administrative Tribunal in O.A. No. 4070(C) of 2013,

which has since been transferred to this Court and

registered as the present writ application.

3. A detailed counter affidavit, rejoinder and counter to

the rejoinder have been filed by the parties. However, in

view of the order proposed to be passed by this Court, it is

felt unnecessary to go into the same.

4. It appears from the materials on record and the

submissions made by learned counsel for the parties, the

petitioner had previously approached the erstwhile Odisha

Administrative Tribunal in O.A. No.377 of 1995

challenging the order of punishment originally imposed by

the disciplinary authority. Learned Tribunal vide order

dated 08.08.2006 set aside the order of punishment and

directed the disciplinary authority (opposite party no.2) to

proceed with the enquiry and continue the same from the

stage of furnishing report of the enquiry officer to the

petitioner by issuing notice to him to submit

representation as he may wish to make against the

findings of the enquiring authority and to finalize the

proceedings as early as possible following the procedure to

be adopted on receipt of the said representation. Pursuant

to such order passed by the learned tribunal a show cause

notice was issued to the petitioner along with a copy of the

enquiry report purportedly as required under Rule

15(10)(i)(a) of OCS (CCA) Rules, 1962. The petitioner duly

submitted his representation against the findings of the

enquiry officer on 24.05.2007. However, by the order

passed under Annexure-5, the disciplinary authority

considered the representation of the petitioner as not

convincing and satisfactory. Accordingly, show cause

notice was issued to the petitioner proposing the

punishment of withholding of three increments without

cumulative effect. The petitioner also submitted his show

cause reply on 09.03.2010, which according to the

disciplinary authority, was not satisfactory and

accordingly, the proposed punishment was imposed and

the proceeding was finalized. The petitioner, as already

stated, submitted an appeal to the opposite party no.1

raising several grounds, both factual and legal. By order

dated 15.11.2012, which is enclosed as Annexure-7, the

appellate authority was of the opinion that the penalty

imposed by the disciplinary authority is proportionate to

the misconduct and accordingly held that the appeal

petition being devoid of merit was therefore rejected.

5. Mr. J.K. Mishra, learned counsel appearing for the

petitioner has argued that law requires the appellate

authority to give proper and adequate reasons for its

findings but in the instant case the appellate authority

had rejected the appeal in a mechanical manner without

in the least considering the specific grounds raised by the

petitioner against the findings of the enquiry officer.

6. Mr. H.K. Panigrahi on the other hand, contends that

when the appellate authority was of the opinion that the

grounds raised by the petitioner are not convincing, he

was not obliged to record his reasons in respect of each of

the grounds so raised by the petitioner and therefore,

according to him the impugned order does not warrant

any interference by this Court.

7. In this context it would be apposite to refer to the

provisions of the OCS(CCA) Rule, 1962, Rule 13 of which

lists the penalties that may be imposed on a Govt. servant.

Withholding of increments without cumulative effect is one

of the penalties that may be imposed as per Rule-13. Rule-

22 provides that a member of the Odisha Civil Services

Group-C or Group-D may appeal against an order

imposing upon him any of the penalties specified in Rule-

13 to the authority specified in his behalf. In the instant

case it is not disputed that the Principal Secretary to Govt.

in Finance Department is the appellate authority in so far

as the petitioner is concerned. While Rules-24 to 28

provide for the various aspects of preferring of such

appeal, Rule-29 relates to the consideration of appeals by

the appellate authority. It would be profitable to quote

Rule-29 at this stage.

"29. Consideration of Appeals - (1) In the case of an appeal against an order imposing any of the penalties specified in Rule 13 the

appellate authority shall consider -

(a) whether the procedure prescribed in these rules has been complied with an, if not whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice.

(b) whether the findings are justified; and

(c) whether the penalty imposed is excessive, adequate or inadequate;

and, after consultation with the Commission if such consultation is necessary in the case, pass orders-

(i) Setting aside, reducing confirming or enhancing the penalty' or

(ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case;

Provided that -

(i) the appellate authority shall not impose any enhanced penalty which neither such authority or the authority which made the order appealed against is competent in the case to impose;

(ii) no order imposing an enhanced penalty shall be passed unless the appellant is given an opportunity or making any representation which be may wish to make against such enhanced penalty; and

(iii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in Clauses (vi) to (ix) or Rule 13 and an inquiry under Rule 15 has not already been held in the case the appellate authority shall, subject to the provisions of Rule 18, itself hold such inquiry or direct that such inquiry be held and, thereafter on consideration of the proceedings of such inquiry and after giving the appellant an opportunity of making any representation which he may wish to

make against such penalty, pass such orders as it may deem fit.

(2) In the case of an appeal against any order specified in Rule 23 the appellate authority shall consider all the circumstances of the case and pass such orders as it deems just and equitable."

As bare perusal of Rule -29 as quoted above

makes it clear that a specific duty has been cast upon the

appellate authority to consider whether the procedure has

been complied with and if not, if the same has resulted in

violation of any provisions of the constitution or failure of

justice and whether the findings are justified on the

evidence on record and finally whether the penalty

imposed is justified.

8. Law is well settled that the appellate authority

being a quasi-judicial authority has to act fairly with due

application of mind and as such, he must peruse the

entire evidence taken during the enquiry, the enquiry

report, the charges along with explanation of the

delinquent government servant so as to come to a

reasonable conclusion. In other words, the appellate

authority must apply his mind and pass an objective order

without being influenced by the findings of the enquiry

officer or of the disciplinary authority. Further, being the

appellate authority, law mandates that it must pass a

reasoned and speaking order.

9. Coming to the facts of the case, this Court finds

that the appeal petition was disposed of by the appellate

authority simply by holding that the penalty imposed by

the disciplinary authority is proportionate to the

misconduct. Evidently, all the grounds raised by the

petitioner in his appeal petition relating to lack of

opportunity to cross-examine the witnesses, alleged

manipulation of documents, utilization of documents by

the enquiry officer behind his back etc. have not at all

been taken into consideration. It goes without saying that

when the statute requires a thing to be done in a

particular manner, it has to be done in such manner or

not at all. Since Rule-29 casts a positive obligation on the

appellate authority to consider and dispose of the appeal

filed by the delinquent in a particular manner, it has to be

done in that manner. Since the statute confers power on

the disciplinary authority to impose punishment on a

delinquent government servant, the provision under Rule

29 is obviously intended to act as a safeguard against any

arbitrary, unreasonable or illegal exercise of power by the

disciplinary authority. After perusing the impugned order

under Annexure-7 this Court is constrained to observe

that the same is cryptic, non-speaking and entirely

contrary to the statutory intent and therefore, deserves to

be interfered with.

10. For the foregoing reasons therefore, this Court is

of the view that the appellate authority should consider

the appeal petition afresh and pass a reasoned order in

accordance with law after granting opportunity of hearing

to the petitioner, if he so desires.

11. The writ petition is therefore disposed by setting

aside the order under Anneuxre-7 and by remitting the

matter to opposite party no.1 to consider the appeal

petition filed by the petitioner afresh strictly in terms of

the provisions contained in Rule-29 of the OCS(CCA)

Rules, 1962 and if the petitioner so desires, he may also

be heard in person. The above exercise shall be completed

within a period of two months from the date of

communication of this order or on production of certified

copy thereof by the petitioner and the decision of the

appellate authority shall be communicated to the

petitioner within fifteen days thereafter.

12. The writ petition is disposed of accordingly.

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

Sashikanta Mishra, Judge

Orissa High Court, Cuttack The 4th May, 2022/ A.K. Rana