Afr vs State Of Orissa And Others
2022 Latest Caselaw 5433 Ori

                    ORISSA HIGH COURT: CUTTACK


                           W.P.(C) No. 8759 OF 2018

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

AFR Baisnaba Charan Nayak ..... Petitioner

-Versus-

          State of Orissa and others                .....          Opp. Parties


            For Petitioner     :   Mr. Mohit Agarwal,
                                   Advocate

            For Opp. Parties :     Mr. A.K. Mishra,
                                   Addl. Govt. Advocate


          P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI AND HONOURABLE MR. JUSTICE G. SATAPATHY

Date of hearing and judgment: 12.10.2022

DR. B.R. SARANGI, J. The Petitioner, who is a retired

Government Servant, has filed this writ petition

questioning the legality and propriety of the order dated

06.04.2018 passed in O.A. No. 1434 (C) of 2007, by which // 2 //

the Odisha Administrative Tribunal, Cuttack Bench,

Cuttack, having found no infirmity in the penalty order

and appellate order, has dismissed the Original

Application being devoid of merit.

2. The factual matrix of the case, in a nutshell, is

that while the petitioner was working as Assistant

Agriculture Officer (Pulse) in the office of the Deputy

Director Agriculture, Puri Range, a disciplinary proceeding

was initiated against him, vide order no.1362 dated

05.02.1997, under Rule-16 of the Orissa Civil Services

(C.A.&A) Rules, 1962 (hereinafter referred to as "the

Rules, 1962") by opposite party no.2 for alleged violation

of Rule-3 of Orissa Government Servant Conduct Rules,

1959. The petitioner was served with the memo of charges

and the list of witnesses sought to be relied upon. From

the imputation of charges, it transpired that during his

previous posting as Junior Agriculture Officer (JAO) at

Mahanga in Cuttack district, one Arakhita Behera, Ex-

A.O. under suspension of Mahanga Input Sale Centre had

misappropriated huge leftover stocks of seeds amounting // 3 //

to Rs.2,73,210.20 during the year 1989-90, 1993-94 and

1994-95 as found in the P.L. stock book. The petitioner

was charged for having failed to discharge his duty as

primary supervising officer, resulting thereby occasions

for Arakhit Behera to misappropriate the aforesaid

amount. Consequentially, the petitioner was called upon

to show cause against the charge of gross dereliction and

negligence in duty, causing loss of Rs.2,73,210.20 from

the P.L. account.

2.1 In response to the charge memo, the petitioner

submitted explanation on 15.10.1997 by denying the

allegations. In the explanation, the petitioner specifically

asserted that he took over the charge of JAO, Mahanga

during the month of October, 1992 and continued there

till 18.09.1995. He was not at all responsible for

verification of the stock register as well as the disposal of

stocks of the Input Sale Centre since the Deputy Director

of Agriculture, Cuttack Range was the authority to

conduct the periods meetings of the staff of the Input Sale

Centres and the verification of accounts as well as deposit // 4 //

of the sale proceeds. The petitioner also furnished the

dates on which Sri Behera had attended the meetings at

the office of Deputy Director, Agriculture, Cuttack Range.

The petitioner further indicated in the explanation that

the left over stocks at the Input Sale Centre were being

verified by an officer deputed by D.D.A., Cuttack from

time to time, which was evident from the physical

verification reports submitted to the higher authorities for

disposal of leftover non-viable stocks. Therefore, the

petitioner prayed for exonerating him from the charges.

2.2 But, after lapse of more than one year, the

petitioner was served with an additional charge by

opposite party no.2 on 25.11.1998 under Rule-16 of

Rules, 1962. From the imputation of charge, the

petitioner came to know that Arakhita Behera, Ex. A.O.

was charge sheeted vide order no.6489 dated 21.12.1996

and had faced an inquiry conducted by the District

Agriculture Officer, Cuttack as the Inquiry Officer. In the

aforesaid inquiry, the Inquiry Officer found that during

the year 1993-94, Q124.50 kg. of groundnut seeds were // 5 //

supplied to Mahanga Sale Centre. From out of the

aforesaid quantity, Q15.70 kg was sold and Q2.16 kg was

shown as shortage and the balance stock of Q106.64 kg

was allegedly received by the petitioner for diversion to

V.A.Ws circle for sale. But there was no acknowledgement

from the VAWs as regards receipt of the seeds and by way

of the additional charge, the petitioner was called upon to

show cause that the aforesaid balance stock of Q106.04

kg of groundnut seeds have been diverted to the VAWs

circle for sale and that the petitioner has not

misappropriated the seeds worth Rs.1,99,843.40. More

so, such additional charge framed against the petitioner

was based on an inquiry conducted by the District

Agriculture Officer to the charges levelled against Arakhita

Behera, Ex-A.O. for alleged misappropriation of

Rs.2,73,210.20. Consequent upon initiation of proceeding

against Arakhita Behera, the petitioner was also called

upon to show cause as to why he shall not be held

responsible for loss caused to the Govt. on account of

such misappropriation committed by Sri Behera.

// 6 //

2.3 In response to the notice of additional show

cause, the petitioner wrote to opposite party no.2, vide

letter dated 21.01.1999, to allow him to peruse the

relevant records for the purpose of preparing his defence

by way of written statement and by that time he was

deployed as Asst. Project Director (Scheme) under

D.R.D.A. in the district of Sonepur. Since the additional

charge was with regard to misappropriation of stock of

Q106.04 kg of groundnut worth Rs.1,99,843.40 of

Mahanga Input Sale Centre during the period 1993-94

and the six records, as mentioned by the petitioner in his

letter dated 21.01.1999, were essentially required by him

as opposite party no.2 had based his charges on those

documents. Thereafter, the petitioner on 13.03.2006

received the order of punishment for recovery of an

amount of Rs.1,99,843.40 from his salary in 23

installments and stoppage of two annual increments by

holding the petitioner liable towards the charges levelled

in the memo of additional charges. The disciplinary

authority had not also supplied the copies of the inquiry // 7 //

report alleged to have been submitted since 13.09.2001

on the basis of which the punishment order was passed.

Being aggrieved by such order of punishment imposed by

the disciplinary authority, the petitioner preferred appeal

before opposite party no.1 on 24.04.2006. But, without

any application of mind and without giving any reason,

the appellate authority rejected the appeal preferred by

the petitioner by confirming the order of punishment, vide

order dated 24.03.2007. Aggrieved by the order passed by

the appellate authority, though the petitioner approached

the tribunal by filing O.A. No. 1434 (C) of 2007, but, vide

order dated 06.04.2018, the tribunal dismissed the

Original Application filed by the petitioner. Hence, this

writ petition.

3. Mr. Mohit Agarwal, learned counsel for the

petitioner vehemently contended that the proceeding was

initiated against the petitioner under Rule-16 of Rules

1962, which provides the procedure for imposition of

minor penalty, but not under Rule-15 of Rules 1962,

which provides the procedure for imposition of major // 8 //

penalty. But, without understanding the cardinal

principles of Rules 15 and 16 of the Rules, 1962, even

though the proceeding was initiated under Rule-16, the

disciplinary authority appointed the District Agriculture

Officer, Jagatsinghpur as the Inquiry Officer, who

submitted the inquiry report on 13.09.2001, on the basis

of which punishment was imposed against the petitioner

by the disciplinary authority. As such, copy of the inquiry

report was not supplied to the petitioner and, thereby,

there is gross violation of principles of natural justice. It is

further contended that the disciplinary authority

committed a gross error of law by abdicating its powers in

favour of the Inquiry Officer in contravention to Rule-16 of

the Rules, 1962. As such, Rule-16 requires that the

disciplinary authority to take an independent reasoned

decision after considering the allegations levelled against a

Government servant and the representation made thereto

by the Government servant. But the order of punishment

passed by the disciplinary authority on 13.03.2006 runs

contrary to Rule-16 of the Rules, 1962 and thus the same // 9 //

cannot be sustained in the eye of law. It is further

contended that Rule-16(2)(iv) of Rules, 1962 mandates the

disciplinary authority to take a reasoned decision after

considering the defence raised by the Government servant.

As such, the disciplinary authority has not passed a

reasoned order as to how the allegations levelled against

the petitioner were made out and on the other hand the

disciplinary authority in a stereo type manner simply

reiterated the recommendations of the Inquiry Officer and

imposed the penalty. It is further contended that the

appellate authority also without any application of mind

confirmed the order of punishment passed by the

disciplinary authority. Ultimately, the tribunal, before

which both the orders were challenged, without

appreciating the materials on record in proper perspective,

dismissed the Original Application filed by the petitioner,

which cannot sustain in the eye of law.

To substantiate his contention, learned counsel

for the petitioner has relied upon the judgments of the

apex Court in the cases of Zuari Cement Ltd. v.

// 10 //

Regional Director, E.S.I.C., Hyderabad, AIR 2015 SC

2764; H.P. State Electricity Board Ltd. v. Mahesh

Dahiya, AIR 2016 SC 5341; Managing Director, ECIL,

Hyderabad v. B. Karunakar, AIR 1994 SC 1074; and

Allahabad Bank v. Krishna Narayan Tewari, AIR 2017

SC 330.

4. Mr. A.K. Mishra, learned Addl. Government

Advocate appearing for the State-opposite parties, while

refuting the submissions made by learned counsel for the

petitioner, contended that the petitioner has not

approached this Court with clean hands. As the petitioner

had committed gross dereliction and negligence in duties,

there was occasion for one Arakhita Behera, Agriculture

Overseer to misappropriate stock of seeds of Input Sale

Centre of Mahanga amounting to Rs.2,72,210.20 from the

P.L. account. A memo of charge was served on the

petitioner calling upon him to give reply. As the reply of

the petitioner, on consideration, was not appreciated by

the disciplinary authority, he was called upon for a

personal hearing on 20.12.1997, 15.01.1998 and // 11 //

07.02.1998, but the petitioner was found absent for the

personal hearing. Thus, there is compliance of principle of

natural justice and, as such, imposition of penalty is

justified. It is further contended that the petitioner was

absent on 16.12.2000, the date which was fixed for

enquiry to the charges by the DAO, Jagatsinghpur. But he

appeared in the enquiry on 09.02.2001, the records were

produced as per memo of evidence by the Presenting

Officers in presence of the petitioner and on the date of

enquiry the petitioner furnished his written statement

requesting to fix another date, i.e., 12.03.2001 for enquiry

in order to produce the record of receipt obtained from the

VAWs for diversion purpose. But, on 12.03.2001, the

petitioner neither attended the enquiry nor produced any

document showing to have diverted the groundnut seeds

to the VAW circles. Consequentially, the inquiry was

concluded and the Inquiring Officer submitted inquiry

report holding that the delinquent officer, being the

immediate supervising officer, has neglected his duties

causing loss to P.L. account amounting to Rs.73,366.80 // 12 //

and further he is directly responsible for misappropriation

of Rs.1,99,843.40, which was the cost of Q106.64 Kg of

groundnut seeds. Thereby, the petitioner was given

reasonable opportunity for perusal of record and extract

thereof, but he failed to collect the records available at

different quarters. Thereby, he was charged under Rule-16

of the Rules, 1962 for imposition of minor penalties, which

does not require furnishing a copy of the enquiry report on

him. Thus, it is contended that the order passed by the

disciplinary authority having been confirmed by the

appellate authority, above noted Original Application was

filed and the tribunal with due application of mind

dismissed the same by the order impugned, which does

not require any interference by this Court.

5. This Court heard Mr. Mohit Agarwal, learned

counsel for the petitioner; and Mr. A.K. Mishra, learned

Addl. Government Advocate appearing for the State-

opposite parties by virtual mode, and perused the records.

Pleadings having been exchanged between the parties,

with the consent of learned counsel for the parties this // 13 //

Writ Petition is being disposed of finally at the stage of

admission.

6. The factual matrix, as delineated above, reveals

that the petitioner is a retired Government employee.

While he was in Government service, a proceeding was

initiated against him under Rule-16 of the Rules, 1962

framed in exercise of powers conferred under Article 309

of the Constitution of India, on the allegation of dereliction

in duty and misappropriation of Government money. For

just and proper adjudication of the case, Rule-16 of Rules,

1962 is extracted hereunder:-

"16.Procedure for imposing minor penalties---- (1) No order imposing any of the penalties specified in clauses (i) to (v)of Rule 13 shall be passed except after-

(a) the Government servant is informed in writing of the proposal to take action against him and of the allegation on which it is proposed to be taken and given an opportunity to make any representation he may wish to make;

(b) such representation, if any is taken into consideration by the disciplinary authority; and

(c) the Commission is consulted in cases where such consultation is necessary. (2) The record of proceedings in such cases shall include-

// 14 //

(i) a copy of the intimation to the Government servant of the proposal to take action against him;

(ii) a copy of the statement of allegations communicated to him;

(iii) his representation, if any;

(iv) the advice of the Commission, if any; and

(v) the orders on the case together with the reasons therefor."

Rule-13 of Rules, 1962, which deals with nature of

penalties, is extracted hereunder:-

"13. Nature of penalties- The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely-

          (i)     fine;
          (ii)    censure;
          (iii) withholding of increments;
          (iii -A)      withholding of promotion;

(iv) recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders;

(v) suspension;

(vi) reduction to a lower service, grade or post or to a lower time -scale or to a lower stage in a time scale;

(vii) compulsory retirement.

(viii) removal from service which shall not be a disqualification for future employment;

(ix) dismissal form service which shall be ordinarily be a disqualification for future employment.

Provided that the penalty of fine shall be imposed only on Class-iv Government Servant.

Explanation:- The following shall not amount to a penalty within the meaning of this rule-

// 15 //

(a) Withholding of increments of Government servant for failure to pass a departmental examination in accordance with the rules of order governing the service or post or the terms of his appointment.

(b) Stoppage of a Government servant at the efficiency bar in the time scale on the ground of hi unfitness to cross the bar.

(c) Non-promoting, whether in a substantive or officiating capacity, of a Government servant, after consideration of his case, to a service, grade or post for promotion to which he is eligible.

(d) Reversion to a lower service, grade or post of a Government servant officiating in higher service, grade or post on the ground that he is considered, after trail, to be unsuitable for such higher service, grade or post or on administrative grounds unconnected with his conduct.

(e) Reversion to his permanent service, grade or post of a Government servant appointed on probation to another service, grade or post during or at the end of the period of the probation in accordance with the terms of his appointment or the rules and orders governing probation.

(f) Replacement of the services of a Government servant whose services have been borrowed from the Central or State Government or an authority under the control of the Central or State Government at the disposal of the authority which had lent his services.

(g) Compulsory retirement of a Government servant in accordance with the provisions relating to his superannuation or retirement.

(h) Termination of the services-

(i) of a Government servant appointed on probation during or at the end of the period of probation in accordance with the terms of his // 16 //

appointment or the rules and orders governing probation; or

(ii) of a temporary Government servant in accordance with the terms of his appointment; or

(iii) of a Government servant employed under an agreement in accordance with the terms of such agreement."

7. In view of the provisions contained in Rule-16,

as quoted above, no order imposing any of the penalties

specified in clauses (i) to (v) of Rule-13 shall be passed

except after compliance of clause-(a) to (c) of Rule-16.

Thereby, a detailed procedure has been provided for

imposition of minor penalty. A perusal of memorandum of

charge under Annexure-1 dated 05.02.2017 would evident

that proceeding was initiated under Rule-16 of the Rules,

1962. Therefore, if the proceeding was initiated under

Rule-16, procedure for imposition of minor penalty has to

be followed under the said Rules. If the inquiry would

have been conducted by the District Agriculture Officer

under Rule-15, which envisaged the procedure for

imposition of major penalties, on the basis of such inquiry

report, the disciplinary authority could have imposed the // 17 //

penalty. It is the specific case of the petitioner that he was

not given any opportunity and abruptly the enquiry was

closed and inquiry report was not supplied to him by the

disciplinary authority, knowing the fact that the

proceeding was initiated against the petitioner under

Rule-16 of the Rules, 1962. Thereby, if the inquiry which

has been conducted against the petitioner does not

contemplate under Rule-16 and basing upon such inquiry

report if any punishment is imposed by the disciplinary

authority, the same cannot be sustained in the eye of law,

as Rules, 1962 has been framed in exercise of the powers

conferred under Article 309 of the Constitution of India

and it has got statutory force. Therefore, this Court is of

the considered view that if procedure has been envisaged

under the Rules, it should have been followed strictly and

for non-adherence of such provision, the order of penalty

cannot be sustained in the eye of law.

8. In the case of Zuari Cement Ltd. (supra) at

paragraph-14 of the judgment the apex Court held that it

is the cardinal rule of interpretation that where a statute // 18 //

provides a particular thing should be done, it should be

done in the manner prescribed and not in any other way.

Where a power is given to do a certain thing in a certain

way, the thing must be done in that way or not at all. This

rule has been recognized as a salutary principle of

administrative law and exercise of jurisdiction by courts.

Thereby, it can be safely concluded that since the

proceeding was initiated under Rule-16 of the Rules,

1962, the inquiry should have been conducted under the

said rule. But in the instant case, though proceeding was

initiated under Rule-16 of the Rules, 1962, the inquiry

was conducted as per procedure contemplated under

Rule-15 of Rules, 1962 and, as such, punishment having

been imposed on the basis of such inquiry report, the

same cannot be sustained in the eye of law. Furthermore,

if at all according to Rule-15 the inquiry was conducted,

then the authority should have supplied copy of the

inquiry report to the delinquent employee so that he could

have made an adequate representation explaining his own

stand. But in the present case the petitioner was not // 19 //

supplied with copy of the inquiry report, basing upon

which the punishment was imposed.

9. In H.P. State Electricity Board (supra), the

apex Court held that an inquiry report in a disciplinary

proceeding is required to be furnished to the delinquent

employee so that he can make an adequate representation

explaining his own stand.

10. In Managing Director, ECIL (supra), the apex

Court held that when the Inquiry Officer is not the

disciplinary authority, the delinquent employee has a right

to receive a copy of the Inquiry Officer's report before the

disciplinary authority arrives at its conclusions. That right

is a part of the employees' right to defend himself against

the charges levelled against him. A denial of Inquiry

Officer's report before the disciplinary authority takes its

decision on the charges, is a denial of reasonable

opportunity to the employee to prove his innocence and is

a breach of the principles of natural justice. This will be

the case whether there are rules governing the disciplinary // 20 //

proceeding or not and whether they expressly prohibit the

furnishing of the copy of the report or are silent on the

subject and whatever be the nature of punishment.

11. The disciplinary authority without adhering to

the procedure laid down for imposition of minor penalty

under Rule-16 of Rules, 1962 and without taking an

independent reasoned decision after considering the

allegations levelled against the Government servant and

representation made thereto by the Government servant,

passed the order of punishment on 13.03.2006 without

any application of mind to the fact of the case. Rather,

reiterated the recommendation made by the Inquiry

Officer, which is absolutely an outcome of non-application

of mind. Rule-16(2)(iv) of the Rules, 1962 mandates the

disciplinary authority to take a reasoned decision after

considering the defence raised by the Government servant.

But in the present case, it is evident that while passing

the order of punishment on 13.03.2006, no reason has

been assigned by the disciplinary authority as to why the

allegations made against the petitioner were made out, // 21 //

but, on the other hand, the disciplinary authority

reiterated the recommendation made by the Inquiry

Officer. Thereby, the same violates the principles of

natural justice.

12. In Krishna Narayan Tewari (supra), the apex

Court held that non-application of mind by the Inquiry

Officer or the disciplinary authority, non-recording of

reasons in support of the conclusions arrived at by them

are grounds on which the Writ Courts are justified in

interfering with the orders of punishment. If the

disciplinary authority does not properly appreciate the

evidence nor records reasons in support of his conclusion

or records a finding unsupported by any evidence, then

the Writ Courts can interfere.

13. As it appears, the disciplinary authority had not

considered the fact that the groundnut seeds alleged to

have been misappropriated by the petitioner were in fact

put to auction by tender process at the Sale Centres,

which is apparent from the letter dated 08.05.1996 // 22 //

annexed by the opposite parties as Annexure-C/2 to the

counter affidavit. The groundnuts of Q106.64 kg were

lying in the go-down and were auctioned but the bidder

did not pick it up as they were lying in a damaged

condition. Therefore, the entire allegation of

misappropriation of Q106.64 kg of groundnuts, cannot

sustain in the eye of law. Even if such plea had been

taken before the appellate authority, the same was not

considered. Consequentially, the petitioner though

approached the tribunal, but the tribunal, referring to the

judgment of the apex Court in the case of Union of India

v. P. Gunasekaran, (2015) 1 SCC (L&S) 554, dismissed

the Original Application. But in the judgment cited by the

tribunal, the apex Court has elaborately discussed as to

what the Court has to examine:-

a) The enquiry is held by competent authority;

b) The enquiry is held according to procedure prescribed on that behalf;

c) There is violation of principle of natural justice in conducting the proceeding;

d) The authorities have disabled themselves from reaching a far conclusion by some consideration extraneous to the evidence and merit of the case;

// 23 //

e) The authorities have allowed themselves to be influenced by irrelevant or extraneous consideration.

f) The conclusion on the very face of it is so wholly arbitrary capricious that no reasonable person could ever have arrived such conclusion.

g) The disciplinary authority erroneously failed to admit the admissible and material evidence;

h) The disciplinary authority had erroneously admitted inadmissible evidence which influenced finding;

i) The finding of fact is based under "no evidence"

Under Articles 226/227 of the Constitution of India the High Court may note:-

i) Re appreciate evidence;

ii) interfere with the conclusion in the enquiry, If the same are conducted in accordance with law;

iii) go into reliability/adequacy of evidence;

iv) interfere, if there is some legal evidence on which findings are based;

v) correct error of fact however grave it may be;

vi) go into proportionality of punishment unless it shocks conscience of court."

14. As it appears, the tribunal has not considered

the law laid down by the apex Court, as mentioned above,

and without delving into the issue involved in the case,

has proceeded with the matter and come to a finding that

nothing wrong in the impugned penalty order or in the

appellate order and accordingly dismissed the Original // 24 //

Application. Therefore, the question with regard to

applicability of Rule-15 or Rule-16, as discussed above,

has not been taken into consideration by the tribunal.

There is no dispute with regard to the fact that proceeding

was initiated against the petitioner under Rule-16 of the

Rules, 1962. Therefore, the procedure envisaged under

Rule-16 should have been followed. Without following the

same and without adhering to the procedure as envisaged

under Rule-16 of the Rules, 1962, inquiry was conducted

behind the back of the petitioner and, as such, without

complying with the principles of natural justice, major

penalty was imposed by the disciplinary authority.

15. In the above premises, the order dated

13.03.2006 so passed by the disciplinary authority under

Annexure-4, as well as the order dated 24.03.2007 passed

by the appellate authority under Annexure-5, and the

consequential order dated 06.04.2018 under Annexure-6

passed by the tribunal cannot be sustained in the eye of

law and the same are liable to be quashed and are hereby

quashed. The matter is remitted back to the disciplinary // 25 //

authority to follow the procedure, as envisaged under

Rule-16 of Rules, 1962, basing upon which the charge is

framed for imposition of minor penalty in compliance

thereof. Since the petitioner has retired from service long

since, the disciplinary authority is directed to conclude

the proceeding as expeditiously as possible, preferably

within a period of four months from the date of

communication/production of certified copy of this

judgment. The petitioner is also directed to cooperate with

the authority for early conclusion of the proceeding.

16. In the result, the writ petition is allowed.

However, there shall be no order as to costs.

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

                                          DR. B.R. SARANGI,
                                               JUDGE

G. SATAPATHY, J.    I agree.


                                          ..............................
                                            G. SATAPATHY,
                                              JUDGE

          Orissa High Court, Cuttack
          The 12th October, 2022, Ashok/GDS