Radhakrushna Ghosh vs Orissa Forest Development
2022 Latest Caselaw 5437 Ori

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               IN THE HIGH COURT OF ORISSA AT CUTTACK

                                 WP(C) No.3513 of 2012

          In the matter of an application under Article 226 and 227 of the
          Constitution of India

           Radhakrushna Ghosh                 ....                  Petitioner


                                        -versus-

           Orissa Forest Development
           Corporation Ltd. and others        ....           Opposite Parties


                      For Petitioner : Mr. S. P Jena, Advocate
                      For Opposite Parties : Mr. P.R.J. Dash, Advocate

               CORAM: JUSTICE V. NARASINGH
                               Date of hearing : 12.10.2022

                              Date of judgment : 12.10.2022

V. Narasingh, J.

1. At the outset, learned counsel for the Petitioner submits

that inadvertently in the prayer portion, instead of Annexure-2,

Annexure-1 has been mentioned.

2. On the submission, he is permitted to make necessary

correction in Court today.

3. Heard Mr. S.P. Jena, learned counsel for the Petitioner and

Mr. P.R.J. Dash, learned counsel appearing for the Orissa Forest

CRA No.53 of 1991 Development Corporation Ltd. (hereinafter referred to as "OFDC",

for convenience).

4. The Petitioner, who was working as Deputy Sub-

Divisional Manager, OFDC retired since 2019, has assailed the

order passed by the disciplinary authority dated 12.1.11 at

Annexure-2 directing recovery of an amount of Rs.1,08,258/- and

stoppage of one annual increment with cumulative effect and of the

appellate authority reducing the amount to Rs.72,172/- and

directing for stoppage of one annual increment without cumulative

effect at Annexure-5.

5. It is the case of the Petitioner that while he was working as

Sectional Supervisor and in charge of Sub-Divisional Manager

Ghatagaon Sub-Division, he was proceeded against in the

disciplinary proceeding at Annexure-1 for several irregularities

causing financial loss to the OFDC. For convenience of ready

reference, the relevant portion of the memorandum of charges is

extracted hereunder:

"1. Shortage of 60,625 nos. standing trees in 2 nos. commercial plantations, the working cost of which comes to Rs.2,16,517/- (rupees two lakh sixteen thousand five hundred seventeen) only loss sustained to O.F.D.C. Ltd.

2. Negligence in duty.

3. Hiding of the fact.

4. Dishonesty."

WP(C) No.3513 of 2012

6. It is stated by the learned counsel for the Petitioner that

after receiving the memorandum of charges, the Petitioner

submitted his explanation, but without considering the same, the

disciplinary authority mechanically passed the order as adverted to

above at Annexure-2 against which he preferred an appeal, which

was rejected in a cavalier manner by the impugned order at

Annexure-5.

7. Since the facts are not in dispute, this Court is refraining

from referring to the same. The principal ground of challenge to the

departmental proceeding is delay in initiation thereof and it is also

submitted with vehemence that since the Petitioner in due discharge

of his official duties was regularly submitting his monthly progress

report, which was never objected to, it is not open to the authorities

to start a disciplinary proceeding after delay of about 5 years and to

fortify his stand regarding delay, learned counsel for the Petitioner

relies on the judgment of the apex Court in the case of P.V.

Mahadevan vrs. Md. T.N. Housing Board, reported in (2005) 6

SCC 636.

8. Per contra, learned counsel appearing for the OFDC, Mr.

Dash, submits that the authorities in obedience to the earlier order

WP(C) No.3513 of 2012 passed by this Court dated 29.08.2011 in WP(C) No.20825 of 2011

directing for disposal of appeal on an objective assessment not only

reduced the recovery confining to 1/3rd of the total loss to the tune

of Rs.72,172/- but also modified the direction relating to stoppage

of one annual increment without cumulative effect.

9. It is the submission of the learned counsel for the OFDC

that since there is no irregularity in the decision making process,

this Court in exercise of the power under Article 226 of the

Constitution of India cannot sit as an appellate authority and in this

context, he relies on the judgment of the apex Court in the case of

B.C. Chaturvedi vrs. Union of India and others reported in

(1995) 6 SCC 749 more particularly para-12 thereof is quoted

hereunder:

"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence.

Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the

WP(C) No.3513 of 2012 delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

10. The contention relating to delay has been succinctly stated

by the Petitioner in Paragraph-4 of the writ petition, which is quoted

hereunder:

"4. That after departure of the petitioner from the sub- division, a charge sheet in O.O No.147 dated 19.5.09 was framed against the petitioner after a lapse of 5 years on the charges of shortage of standing trees, negligence in duty, hiding of facts and dishonesty.

It is submitted that initiation of a disciplinary proceeding against the petitioner was itself ab initio void, since the charge sheet never accompanied the list of documents, list of witnesses and the statement of allegations relied upon by the delinquent. As per OFDC Service Rules all such formalities ought to have been followed while framing charges against an officer of the Corporation. Mere giving a copy of charge sheet after a lapse of five years does not absorb the liability of the Corporation. The copy of charge sheet is annexed to this writ application as ANNEXURE-1."

11. In response thereto, in paragraph-10, Opposite Parties-

OFDC has tried to justify the delay of 5 years in initiation of the

proceeding. For convenience of the ready reference, the same is

culled out below:

WP(C) No.3513 of 2012 "10. That in reply to averments made in paragraphs-4 and 5 of the writ petition, it is submitted that when the matter was detected during 2004, further verification was made with a view to finding out the actual loss caused to the Corporation and the persons responsible for the loss, whereafter departmental proceedings was initiated during 2009, following the due procedures of disciplinary proceeding rules. There is no such time limitation prescribed for initiation of Disciplinary Proceeding against an erring staff during his service period. Further, it may be submitted that the petitioner after receiving the charge memo have never approached the Disciplinary Authority for providing copies of documents for submission of defense statement. Rather he submitted his defense, explanation on 29.6.09, shifting the responsibility to his subordinate staff Sri B.K. Mohanty, F/A. But the fact remains that the petitioner, in deviation of the instructions of Divisional Manager had relieved Sri Mohanty, F/A without ensuring that the charge plantations is handed over to Sri Mohanty's successor. In the circumstances, it is humbly submitted that both petitioner and Sri Mohanty, F/A are responsible for the losses caused to the Corporation and accordingly, petitioner, due to his negligence as Supervising Officer is contributory to bear 1/3rd of the total loss, leaving aside the remaining balance to be recovered from others."

12. On instruction, learned counsel appearing for the OFDC,

Mr. Dash, submits that during pendency of the writ petition, in

deference to the order passed by this Court, an amount of

Rs.22,000/- out of total of Rs.72,172/- has only been recovered.

13. This Court carefully examined the memorandum of

charges and the order passed thereon and the memorandum of

appeal filed by the Petitioner. It is not in dispute that the shortage of

plantation had taken place during the incumbency of the Petitioner.

It is on record that he was relieved on 24.10.2003 and charge sheet

was issued after lapse of 6 years on 19.05.2009.

WP(C) No.3513 of 2012

14. The ground of delay as advanced by the learned counsel

for the Petitioner has not been meaningfully answered by the OFDC

in its reply inasmuch as it is only stated that the detection was made

in 2004 but there is no plausible explanation as to why the

authorities had taken 5 more years to initiate the disciplinary

proceeding. 15. On the factual aspect it can be seen that while

considering the appeal of the Petitioner, the appellate authority has

been considerate and has reduced the amount of recovery as well as

the direction relating to increment has also been modified. As

rightly submitted by the learned counsel for the OFDC, Mr. Dash,

the contours of this Court to exercise its jurisdiction in a

departmental proceeding, evidently when there is no procedural

irregularity, is limited. In the case at hand, the finding, so far as

complicity of the Petitioner for the loss sustained by the OFDC,

cannot be faulted save and except the unexplained delay in

initiation of the proceeding.

16. Learned counsel for the Petitioner, on instruction, submits

that the Petitioner has retired in 2019 and the so-called dereliction

of duty relates to 2003, which is more than a decade and half before

retirement of the Petitioner.

WP(C) No.3513 of 2012

17. There is no plausible explanation regarding the delay in

initiation of the disciplinary proceeding. Hence, on a conspectus

materials on record, this Court is of the view that the cause of

justice and equity would be sub served if the recovery is modified

and confined to the amount as recovered (Rs.22,000/-) taking into

account that the Petitioner has retired since 2019. The order of

punishment accordingly stands modified.

18. The writ petition accordingly stands disposed of. No costs.

(V. NARASINGH) Judge

Orissa High Court, Cuttack Dated the 12th of October, 2022/ Pradeep

WP(C) No.3513 of 2012