Dr. Ramesh Chandra Samal vs State Of Odisha And Ors
2022 Latest Caselaw 4853 Ori

    IN THE HIGH COURT OF ORISSA AT CUTTACK
               W.P.(C) No.3908 of 2022

 (In the matter of an application under Articles 226 and 227 of
the Constitution of India, 1950).


Dr. Ramesh Chandra Samal                  ....            Petitioner
                            -versus-
State of Odisha and Ors.                  ....          Opp. Parties

Advocates appeared in the case through Hybrid Mode:
For Petitioner            :     Dr. Binoda Kumar Mishra, Adv.
                            -versus-

For Opp. Parties            :               Mr. Saswat Das, AGA
                                         (for O.Ps.1 to 3 & 6 to 8)
                                 Mr. Bijaya Kumar Routray, Adv.
                                                  (for O.Ps.4 & 5)
            CORAM:
            DR. JUSTICE S.K. PANIGRAHI

              DATE OF HEARING:-12.08.2022
             DATE OF JUDGMENT:-20.09.2022

  Dr. S.K. Panigrahi, J.

1. The petitioner has filed this writ petition challenging the

illegal recovery of Rs.2,66,469/-, the amount arbitrarily

determined in the Interim Audit Report of the Special Audit

of the Golden Jubilee function of the college and the order to

deposit the same amount vide Order No. 2514 dated

27/11/2021. He further seeks to challenge the illegal Order of

the Principal I/C vide Order No. 40 dated 05/01/2022 to 1 of 26 deduct 10,000 rupees from the salary of the Petitioner with

effect from December, 2021.

I. Facts of the case:

2. The present Petitioner is serving as a Reader in Commerce

of V.N. (Auto) College, Jajpur Road, Jajpur. Being aggrieved

by the order dated 27.11.2021 passed by the Principal, V.N.

(Auto.) College, Jajpur Road, Jajpur requesting the

Petitioner to deposit Rs.2,66,469/- towards Audit recovery

vide Special IAR No.04/2019-20 and finding no other

equally efficacious remedy, the Petitioner is constrained to

invoke the extra ordinary jurisdiction of this Court under

Articles 226 of the Constitution of India. He assails the

illegal recovery of Rs. 2,66,469/- (Two Lakhs sixty six

thousand four hundred sixty nine only) as suggested by the

Interim Audit Report of the Special Audit to the Golden

Jubilee celebration of the V.N, Autonomous College, Jajpur

Road, Jajpur and its recovery through deduction from

salary.

3. The Golden Jubilee of the College in question was

celebrated during 2019-20. Major repair works of the

College infrastructure were undertaken for such celebration.

After the event was over, some local people who were

unrelated to the institution, lodged a complaint with the

Department of Higher Education alleging excess and

2 of 26 irregular expenditure on account of the event. Taking

cognizance, the Higher Education Department ordered a

Special Audit into the expenditure leading to the event. The

Special Audit in its Interim Audit Report suggested

recovery of irregular expenditure to the tune of

Rs.49,94,360/- against an apparent irregular expenditure of

Rs.45,47,051/-. The suggested recovery is Rs.2,66,469/- excess

than the apparent irregular expenditure. The Department of

Higher Education vide its letter No 1635/HE dated

12.01.2021 forwarded the Interim Audit Report of the

Special Audit to the Opposite Party No.4/ Principal, V.N.

(Auto) College, Jajpur Road, Jajpur requesting "to furnish

para wise compliance report". Pursuant to the said letter, the

Opposite Party No.4/ Principal, V.N. (Auto) College, Jajpur

Road, Jajpur issued a show cause notice vide order No.938,

dated 08.06.2021 to the Petitioner owing to the fact that the

Petitioner was officiating as the Accounts Bursar of the

College during the relevant period to comply with the

explanation in writing as to why an amount of Rs.2,66,469/-

shall not be recovered from him against apparent irregular

expenditure identified by the Special Audit. Complying

with the said notice of the Opposite Party No.4, the

Petitioner furnished his written reply vide his letter dated

25.06.2021, wherein he pointed out that the apparent

irregularities and the said attribution to the position of

Accounts Bursar are irrational and illogical. Illustratively, it

was mentioned that in point 3 (a) of the Report, the Special

Audit has fixed the liability of Rs.1,27,050/- on the then

Principal, the then Accounts Bursar (the Petitioner) and the

Dealing Assistant (Rs.66,701/- each) on account of non-

distribution of Souvenirs printed on the occasion of the

Golden Jubilee. The Interim Audit Report is irrational in

finding irregularities and fixing accountability. The

Department of Higher Education had sought para wise

compliance from the incumbent Principal I/C/ Opposite

Party No.4. It was mentioned that the Petitioner was

unaware as to whether the Opposite Party No.4 had

complied with the same or not. The Petitioner submitted his

response to the Show Cause notice issued to him by the

Opposite Party No.4. However, the Petitioner received the

Order No.2514 dated 27.11.2021, asking him to deposit

Rs.2,66,469/- sent by the Opposite Party No.4.

II. Submissions advanced on behalf of the Petitioner:

4. Learned counsel for the Petitioner submits that in response

to the above-mentioned letter, the Petitioner submitted a

representation dated 06.12.2021 stating therein that he has

already complied with the Show Cause Notice No.938 dated

08.06.2021 and the Opposite Party No.4 was to file the

4 of 26 compliance with the Department of Higher Education in

that light. However, the order to deposit Rs.2.66,469/-

against the suggestion in the Interim Audit Report is

irrational and arbitrary and demanded the production of

any recovery letter if issued by the Department of Higher

Education.

5. He further submitted that the Opposite Party No.4, instead

of responding to the representation of the Petitioner, issued

Order No.40 dated 05.01.2022 stating therein that "in

pursuance of the Governing Body Resolution dated

30.10.2021 and by order of the President Governing Body,

Rs.10,000/- shall be deducted from his salary every month

with effect from December, 2021 through HRMS towards

recovery of Rs.2,66,469/-..." It is contended that the action of

the Opposite Party No.4 directing deduction of Rs.10,000/

from the Petitioner's salary towards the recovery of

Rs.2,66,469/- is illegal, arbitrary, without jurisdiction and

possibly taking false grounds. It was mentioned that the

Order of deduction vide Order No.40 dated 05.01.2022

shows that the decision of deduction has been taken by the

Governing Body in its meeting dated 30.10.2021. It was

pointed out that such decision of the Governing Body finds

no mention in the earlier order of the Opposite Party No.4

issued to the Petitioner vide Order No.2514 dated

27.11.2021.

6. He further submitted that the Opposite Party No.4 with an

intention to harass the Petitioner for reasons best known to

him, has issued such illegal deduction letter towards

recovery of expenditure identified by the Special audit and

their flawed attribution to the Petitioner, the then Accounts

Bursar, is purely illegal, arbitrary and needs to be interfered

with in the interest of justice and fair play. The Opposite

Party No.4, instead of waiting till the final report has issued

the said deduction notice on the false ground that such a

resolution was taken in the meeting of the Governing Body

held on 30.10.2021. It is contended that the Governing Body

resolution is contrary to the claim of the Opposite Party

No.4, as in the said Resolution the Governing Body has

strictly instructed the Opposite Party No.4 to comply with

the letter of the Higher Education Department issued vide

letter No.1635 dated 12.01.2021 with para wise comments

positively by 15th November.

7. It is also submitted that such illegal misrepresentation of the

resolution of the Governing Body by the Opposite Party

No.4 is highly illegal and intended only to harass the

Petitioner. The Opposite Parties have also withheld the

salary of the Petitioner from the month of December, 2021.

6 of 26 Therefore, the petitioner is constrained to approach this

Court for redressal of his grievance. In such view of the

matter, he submitted that the letters dated 27.11.2021 and

05.01.2022 issued by the Opposite Party No.4 be quashed

and the Opposite Parties be directed to release full salary of

the Petitioner forthwith which has been kept withheld from

December, 2021.

III. Submissions of the Opposite Parties

8. Learned Additional Government Advocate submitted that

the Petitioner in this Writ petition has challenged the

recovery of Rs.2,66,469/- determined in the Internal Audit

Report (IAR) of the Special Audit of Golden Jubilee function

of the College vide Order No. 25814 dated 27.11.2021 issued

by the Opposite Party No.4 and also Order No. 40 dated

05.01.2022 with regard to recovery of the audited amount

from his monthly salary @ Rs. 10,000/-.

9. He further submitted that on receipt of a mass petition from

one namely Nihar Ranjan Jena & Others pertaining to

misuse, mismanagement and misappropriation of college

funds over the period from February, 2016 to May, 2019

relating to the Golden Jubilee celebration of the College in

question as well as income vis-à-vis the expenditure of the

college hostel, a Special Audit was conducted vide Govt.

Order No.21668/HE., dated 16.10.2019.

10. It is contended that the Special Audit audited the accounts

of the Principal of the College during the period with effect

from 22.10.2019 to 06.02.2020 consuming 58 working days.

After completion of the work, the Head of the Audit Party

handed over the Draft Special Audit Report to the

Government and after review of the same by the Audit

Officer of the Government, it was then approved by the

Principal Secretary to Government, Higher Education

Department. After approval of the final Audit Report

No.04/2019-20, it was sent to the Opposite Party

No.4/Principal V.N. (Auto) College, Jajpur Road, Jajpur vide

Letter No.1635/HE., dated 12.01.2021 for taking appropriate

action and to furnish Para wise Compliance report to Govt.

within 30 days period of receipt of the Audit Report.

11. He further submitted that as per the audit report the total

expenditure for conducting the Golden Jubilee celebration

came out to be Rs.45,47,051/-. Out of the said amount the

Governing Body of the college accorded approval for

expenditure to the tune of Rs.20,00,000/- whereas the

balance amount of Rs.25,47,051/- was found to be spent

unauthorizedly, for which the Principal was made aware of

the fact and it was also suggested to take appropriate action

as deemed proper against the concerned employee for such

unauthorised and misutilization of the funds generated

8 of 26 specifically by the students money. Therefore, objection was

raised in the Special Audit Report showing it as

unauthorized expenditure/ misappropriation to the tune of

Rs.25,47,051/- from the college funds. The audit report

thereby, reflected the Principal, the Accounts Bursar and the

Dealing Assistant in charge of the college to have been

responsible for such lapses. On receipt of the Audit Report,

the Opposite Party No.4 issued office order No.2514, dated

27.11.2021 instructing the Petitioner to deposit Rs.2,66,469/-.

Further, vide office Order No.40, dated 05.01.2022 the

Opposite Party No.4 instructed for deduction of Rs.10,000

per month from the salary of the Petitioner with effect from

December, 2021 towards recovery of Rs. 2,66,469/- till final

recovery of the aforesaid amount. It is also submitted that

while issuing the Order dated 05.01.2022, it was reflected

that pursuant to Resolution of the Governing Body dated

30.10.2021 and in compliance with the order of the President

of the Governing Body's direction of such deduction was

made. It is also contended that the Opposite Party Nos.1

and 2 are no way concerned to get attracted with imposition

of such recovery on the Petitioner. In case, the objection is

complied satisfactorily on production of documentary

evidence, with due approval from the Governing Body, the

recovered amount can be refunded to the Petitioner.

IV. Rejoinder affidavit by the Petitioner:

12. A rejoinder affidavit has been filed by the petitioner herein

it has been stated that the Petitioner is not seeking immunity

from any "just" recovery (if any) fixed under appropriate

jurisdiction and under proper rules and following proper

procedure. The Petitioner rather prays for protection from

the arbitrary amount of recovery imposed on him in the

most manipulative manner; by misrepresenting Governing

Body resolution(s) and hoodwinking the Court's order and

deceiving higher authorities. The Opposite Party No.4 has

started a process of recovery from the Petitioner and other

colleagues which is the most blatant misuse of the Audit

Report admittedly sent by the Higher Education

Department to him vide Government Letter No. 1635/HE,

dated 12.01.2021 for para-wise compliance report to the

Government within 30 days.

13. It is further stated that the audit report by the Opposite

Party No.4 begins from fixing the recovery amount. The

Opposite Party No.4 and the Opposite Party No.5/

President, Governing Body have enclosed a Note sheet of

suggested recovery in lieu of Audit Report No.04/2019-20.

The note sheet was approved by the Opposite Party No.4

and it suggested recovery an amount of Rs.73,69,206/- . The

AR No.04/2019-20 has suggested a recovery of Rs.31,20,155/.

10 of 26 This speaks volumes of the arbitrariness of the Opposite

Party No.4 in fixing the recovery amount in apparent

reference to the AR No. 04/2019-20.

14. At the cost of repetition, it is stated that the Opposite Party

No.4 has not calculated the amount he has imposed for

recovery vide the impugned letters on the basis of the AR

No.04/2019-20. A detailed description of the manipulated

figures has been submitted to this vide IA No.5438/2022.

15. It is further stated that in paragraph 3(a) of the Audit

Report under the heading Non-distribution of Souvenirs led

to wasteful expenditure of Rs.66,701/-, suggests that

"... responsibility may be fixed against the concerned

Principal, Account Bursar, Dealing Assistant and the

members of the Purchase Committee for such lapses and

step needs to be taken to recover Rs.66,701/- from them in

equal share under intimation to Government". But the

incumbent Principal fixed the responsibility on the then

Principal, Account Bursar, Dealing Assistant only and not

on the entire members of the Purchase Committee. It shows

the malafide intention of the Opposite Party No.4 in

transferring the liability only to the Petitioner along with

two others.

16. It is also stated that in the compliance report the Opposite

Party No.4 has undertaken that "recovery of Rs. 66,701/-

shall be made from Sri H.K. Rout, the then Principal for

wasteful expenditure". However, the Opposite Party No.4

has imposed one-third of the amount on the Petitioner. In

paragraph 5 of the Audit Report under the heading

Fictitious Expenditure of Rs.1.96.653/- towards repairing of

College Building, the Audit Report suggests that, "..steps

needs to be taken to recover Rs.1,96,653/ from the concerned

Principal, Account Bursar, Dealing Assistant and other

person(s) in-change of repairing work and compliance with

furnished to government with all supporting records". But

the malafide intention of the Opposite Party No.4/Principal

V.N. (Auto) College, Jajpur Road, Jajpur is further

accentuated by the fact that the responsibility was fixed

only on the then Principal, the Accounts Bursar and the

Dealing Assistant for the above-mentioned recovery and not

on the entire team of the Purchase Committee.

17. It is stated that under paragraph 6 (c) Excess Payment made

to Supplier Rs.49,603/- is held under objection because of

some missing vouchers and the same vouchers could have

been traced or the supplier could have been asked to supply

the supporting vouchers. The vouchers dated 17.01.2018 for

the said expenditure were very much available with the

supplier. The Opposite Party No.4/Principal V.N. (Auto)

College, Jajpur Road, Jajpur was not interested in setting the

12 of 26 records right or do anything as instructed. He was happy in

imposing penalties on the Petitioner along with the then

Principal and the Dealing Assistant, which is illegal and

unfair.

18. It is further mentioned that in paragraph 8(b) under the

heading Non distribution of TDS of Rs.20,000/-, the AR

suggests that, "...step need to be taken for deduction of TDS

amount of Rs.20,000/- from the concerned agencies and

deposit the same amount as per the section-194 C of Income

Tax Act and the fact intimated to Government with

supporting document". However, the Opposite Party No.4

has imposed a recovery of Rs.6,667 which is 1/3 of the

recovery amount under 8(b) despite there being no such

suggestion in the AR to recover the amount from the

Petitioner, which is a clear demonstration of inappropriate

use of authority to embroil the Petitioner in unnecessary

economic offences and harm him.

19. It is also stated that that, in paragraph 21(b) under the

heading "Irregularities In construction and repairing of

hostel building (West, East & Boys Hostel)", the AR strictly

instructed the Principal to collect the TDS and cess from the

contractor and deposit the same to the Government. But the

The Opposite Party No.4 has imposed a recovery of an

arbitrary and imaginary amount Rs.3,539/- on the Petitioner,

there being no suggestion of recovery of any amount from

the Petitioner. Rather to quote the AR, "The Principal is

strictly instructed to recover the tax as well as cess from the

contractor and deposit the same with the concerned

authorities under intimation to Government with all

supporting records". It is also mentioned that the incumbent

Principal, instead of complying with the AR suggestion and

taking steps to recover the tax and cess from the contractor,

has transferred the liability of Rs.3,539/- in an act with

malafide intention to somehow implicating the Petitioner.

20. It is further stated that in the developmental activities of the

College leading to Golden Jubilee Celebration were

undertaken under the supervision of various Committees

constituted by the Governing Body. The list of the

Committees published vide Notice No.95, dated 11.01.2018.

But none of the others involved in the event has been

covered by the unscrupulous recovery imposed by the

Opposite Party No.4.

21. Apart from arbitrarily fixing the recovery amount,

Opposite Party No. 5 has made a mockery of the

administrative principles and procedures. At Para 5 of the

counter affidavit filed by Opposite Party No. 4 and 5, it was

asserted that the recovery was resolved in the meeting of

the Governing body held on 30.10.2021 and 30.10.2022. It is

14 of 26 contended that 30.10.2022 is yet to arrive. Secondly, the

meeting resolution as annexed to the counter affidavit

(pages 33-36), there is no mention of any recovery to be

made from the Petitioner. On the contrary, in the relevant

resolution, it is clearly mentioned that:

"Compliance to the show cause notices served to the persons held responsible by Audit Team has been submitted to the Government/DLFA. But Para-wise comments have not been given by the college to that effect. So accounts section/Principal is strictly instructed to submit the same to appropriate quarters positively by 15th November, 2021."

The resolution of the GB is unambiguous and there is no

resolution to recover Rs.2,66,469/-. However, the Opposite

Party No.4 has invoked this Governing Body's resolution in

imposing a specific amount of Rs.2,66,469/- on the Petitioner

which is not permitted under any Law of this Land. The

intent behind such misrepresentation can only be hostile

and directed at harassing the Petitioner.

22. It is also stated that in the same above-mentioned Para of

the same counter affidavit, it is asserted that the recovery

was suggested by the Account Officer, Department of

Higher Education in a meeting dated 25.12.2021. It is

mentioned that no document showing the minutes of the

meeting with the claimed suggestion of recovery of

Rs.2,66,469/- from the Petitioner. Secondly, it my kindly be

recalled that the letter for recovery was issued by the

Opposite Party No.4 on 27.11.2021, i.e. much prior to

25.12.2021. Thus, claiming by the Higher Department

Authorisation "post-facto" the action of the Opposite Party

No.4 only amounts to gross misuse of the name of Higher

Authorities. Such action by the Opposite Party

No.4/Principal V.N. (Auto) College, Jajpur Road, Jajpur is

only a desperate measure to draw (untenable) legitimacy to

his illegal action. It is pertinent to mention here that,

Opposite Party No.1 (the Higher Education Department) in

his signed instruction to the Office of the Advocate General,

vide letter no.20671/HE dated 21.05.2022 at para-5 clearly

mentioned:

"That it is the Principal of the college who has issued letters at annexure 5 & 7 of the Petition er for recovery of the amount of Rs.2,66,469/ after obtaining approval of the Governing Body of the said college. The Opposite Party No. 1&2 are in no way concerned with imposing such recovery on the petitioner. (Copy of the letter no.20671/HE dated 21/05/2022 is enclosed as Annexure- 15)."

23. It is clear that the Opposite Party No.4 has imposed the

recovery without the mandate or consent of Higher

Education Department as claimed in the counter affidavit of

Opposite Party Nos.4 and 5 and such order must be set

16 of 26 aside for being issued without jurisdiction and being

claimed to have been issued under the consent of the Higher

Education Department.

24. It is also stated that the counter affidavit is accompanied by

two pages, i.e. page 10 named "Governing Body Meeting,

dated 30.01.2022; and Page 11 containing apparent

resolutions beginning from 12. In the same page at

paragraph 14, it is mentioned that Rs.10,000/ shall be

deducted from the salary of the petitioner. It is to humbly

submit that the Governing Body meeting is not signed by

the members present and secondly the meeting being held

after issuance of recovery notice by the Opposite Party No.4

can easily be construed to be a desperate act to legalise the

illegal action of the Opposite Party No.4. It is most

important to point out that nowhere in the resolution talks

about recovering Rs.10,000/- per month from the salary of

the petitioner from the month of December, 2021. It may be

appreciated that in his determination to impose financial

penalty on the Petitioner as per his sweet will, the Opposite

Party No.4/Principal V.N. (Auto) College, Jajpur Road,

Jajpur has misguided the Governing Body and misused the

resolution apparently passed by the Governing Body. It is

also mentioned that Opposite Party No.4's determination to

impose financial cost on the Petitioner was so strong that he

did not hesitate to hoodwink the Sub-Collector-cum

Counter Signing Authority and the treasury.

25. It is also stated that the Petitioner preferred an appeal

before the Collector and District Magistrate to which the

Collector and District Magistrate was pleased to mark the

same to the Sub-Collector. Thereafter, the Sub-Collector

wrote to the Principal to release the salary of the Petitioner

along with others without any deduction from their salaries.

26. It is also mentioned that there has been a mention of "by the

order of the President GB". No Document has been adduced

where the President GB has been entrusted with the task of

ordering recovery with reference to the Special Audit. Nor

is there any document to show the President to have

authorized the Opposite Party No.4 to recover Rs. 2,66,469/-

through instalment of Rs.10,000/-. All that has been adduced

in the name of Order of the President but the email from the

President does not mention either the amount or the

instalment.

27. It is stated that the entire illegal recovery imposed vide the

impugned letters are Opposite Party No.4's own doing with

only mala fide intentions of harassing the Petitioner and

such actions of a person holding the most responsible

position in a temple of knowledge must be taken serious

view of.

18 of 26 VI. Conclusion and Order:

28. Heard learned counsel for the parties.

29. Constitution Benches of the Supreme Court in K.S. Rashid

and Sons v. Income Tax Investigation Commission and

Ors.1, Sangram Singh v. Election Tribunal, Kotah and Ors.2,

Union of India v. T.R. Varma3, State of U.P. and Ors. v.

Mohammad Nooh4, and K.S. Venkataraman and Co. (P) Ltd.

v. State of Madras5, held that Article 226 of the Constitution

confers on all the High Courts a very wide power in the

matter of issuing writs. However, the remedy of writ is an

absolutely discretionary remedy and the High Court has

always the discretion to refuse to grant any writ if it is

satisfied that the aggrieved party can have an adequate or

suitable relief elsewhere. The Court, in extraordinary

circumstances, may exercise the power if it comes to the

conclusion that there has been a breach of principles of

natural justice or procedure required for decision has not

been adopted.

1954 AIR 207

1955 AIR 425

1957 AIR 882

1958 AIR 86

1966 AIR 1089

30. Additionally, in the case of Union of India (UOI) vs. P.

Gunasekaran6, the Hon'ble Supreme Court once again

explaining the scope and interference in service matters and

disciplinary proceedings, which was only permissible in

case of perversity, held thus:

"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge No. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers Under Article 226/227of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:

a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of natural justice in conducting the proceedings; d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

2015 (2) SCC 610

20 of 26 f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

i. the finding of fact is based on no evidence."

31. In one of the earliest decisions in State of Andhra Pradesh

and Ors. v. S. Sree Rama Rao7, many of the above principles

have been discussed and it has been concluded thus:

"7....The High Court is not constituted in a proceeding Under Article226of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ Under Article226to review the evidence and to arrive at an independent finding on the evidence.

The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner

AIR 1963 SC 1723

inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ Under Article 226 of the Constitution."

32. It is settled law that policy decisions of the State are not to

be disturbed unless they are found to be grossly arbitrary or

irrational. In this context reference may be had to the

judgment of the Supreme Court in the case of Federation of

Railway Officers Association & Ors. Vs. Union of India8,

where the court held as follows:

"12. In examining a question of this nature where a policy is evolved by the Government judicial review thereof is limited. When policy according to which or the purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be said to be an unrestricted discretion.

(2003) 4 SCC 289

22 of 26 On matters affecting policy and requiring technical expertise the Court would leave the matter for decision of those who are qualified to address the issues. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of power, the Court will not interfere with such matters."

33. Reference may also be had to the judgment of the Supreme

Court in the case of Directorate of Film Festivals & Ors. Vs.

Gaurav Ashwin Jain & Ors.9, where the Court held as

follows:

"16. The scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy nor are courts Advisors to the executive on matters of policy which the executive is entitled to formulate."

34. Learned Additional Government Advocate had clarified

that that the Petitioner in this Writ petition has challenged

the recovery of Rs.2,66,469/- determined in the Internal

Audit Report (IAR) of the Special Audit of Golden Jubilee

function of the College vide Order No. 25814 dated

27.11.2021 issued by the Opposite Party No.4 and also Order

No. 40 dated 05.01.2022 with regard to recovery of the

audited amount from his monthly salary @ Rs. 10,000/-.

(2007) 4 SCC 737

35. It is contended that the Special Audit audited the accounts

of the Principal of the College during the period with effect

from 22.10.2019 to 06.02.2020 consuming 58 working days.

After completion of the work, the Head of the Audit Party

handed over the Draft Special Audit Report to the

Government and after review of the same by the Audit

Officer of the Government, it was then approved by the

Principal Secretary to Government, Higher Education

Department. After approval of the final Audit Report

No.04/2019-20, it was sent to the Opposite Party No.4 vide

Letter No.1635/HE., dated 12.01.2021 for taking appropriate

action and to furnish Para wise Compliance report to Govt.

within 30 days period of receipt of the Audit Report.

36. In this regard, this Court does not deem fit to interfere with

the points determined in the Internal Audit Report (IAR) of

the Special Audit Team. It has been well established that the

Court should not delve into the matters attended by third

party experts unless there is an element of illegality or

arbitrariness. In the present case, Higher Education

Department ordered a Special Audit owing to several

complaints and due procedure has been followed to review

the Internal Audit Report (IAR). Moreover, the Petitioner

has not been able to prove illegality and his involvement

with regards to the Internal Audit Report (IAR).

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37. However, the Court finds inconsistencies in regards to the

meetings and penalizing attitude of the Governing Body

headed by the Opposite Party no.4. It is pertinent to note

that the petitioner was penalized by the Governing Body

without the preparation of the final report and without

considering the representation dated 06.12.2021 filed by the

petitioner. It has been well established that the principle of

natural justice have to be mandatorily followed even in

cases of administrative proceedings.

38. In Dharampal Satyapal Ltd. v. Deputy Commissioner of

Central Excise, Gauhati and Others10, this Court has

highlighted that procedural fairness is essential for arriving

at correct decisions, by observing:

"27. It, thus, cannot be denied that the principles of natural justice are grounded in procedural fairness which ensures taking of correct decisions and procedural fairness is fundamentally an instrumental good, in the sense that procedure should be designed to ensure accurate or appropriate outcomes. In fact, procedural fairness is valuable in both instrumental and non-instrumental terms."

39. Considering the facts of the case and the precedents cited

herein, this Court is not inclined to decide on the conclusion

of the Internal Audit report. However, this Court quashed

(2015) 8 SCC 519.

the Order No.40 dated 05.01.2022 to deduct Rs.10,000/- from

the salary of the Petitioner with effect from December, 2021.

40. Accordingly, this Writ Petition is disposed of.

( Dr. S.K. Panigrahi ) Judge

Orissa High Court, Cuttack, Dated the 20th September, 2022/B. Jhankar

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