Orissa High Court

Debendranath Behera vs Government Of India And Others on 19 April, 2023

          IN THE HIGH COURT OF ORISSA AT CUTTACK
                     W.P.(C) No. 13766 of 2016

      An application under Articles 226 & 227 of Constitution of
      India.
                          ---------------
      Debendranath Behera              ......             Petitioner

                              - Versus -

      Government of India and others .......              Opp. Parties
      Advocate(s) appeared in this case:-
      _______________________________________________________
        For Petitioner        :    Mr. S.K. Das, S.K. Mishra &
                                   P.K. Behera, Advocates.

         For Opp. Parties :        Mr. S.P. Mishra, Sr. Advocate
                                   with M/s. S. Mishra, S.K.
                                   Samantray, E.Agarwal, A.
                                   Mohanta & L.K. Mohapatra,
                                   [ O.P. No.2]

      CORAM:
           JUSTICE SASHIKANTA MISHRA

                               JUDGMENT

19th April, 2023 SASHIKANTA MISHRA, J.

The petitioner has filed this writ petition with

the following prayer:

"Under the aforesaid facts and circumstances of the case it is, therefore, prayed that your lordship may kindly be graciously pleased to admit the writ petition, issue rule NISI calling upon the opp.Parties as to why the order dated 06.07.2016 passed by the Appellate Authority under Annexure-12 shall not be quashed if the opp.Parties fails to show cause or show

insufficient cause then the rule NISI be made absolute and further the Hon'ble Court be pleased to quash the order of discharging dtd: 30.12.2014 under Annexure-6 and the order of the Registrar dtd: 10.02.2017 under Annexure- 15 and the 50th meeting of the Board of Governors pertaining to the petitioner dtd: 29.09.2016 under Annexure-16.

And further the Hon'ble Court be pleased to direct to reinstate of the petitioner in former post forth with all consequential service and financial benefit including back wages.

And further be pleased to allow the petitioner to join and discharge his duties"

2. Petitioner's case is that pursuant to an

advertisement issued by the National Institute of

Technology (NIT), Rourkela for the post of Engineer

(Electrical) on regular basis, he applied for the same and

was selected for appointment vide letter dated 22.10.2011

issued by the Registrar (opposite party No.3). Accordingly,

he joined in the post on 09.01.2012. As per the terms of

the appointment, he was on probation for a period of one

year. His service was however, not confirmed despite

expiry of the period of probation. While the matter stood

thus, basing on a complaint, the Director (opposite party

No.2), vide order dated 12.08.2014 appointed a Technical

Committee to account for efficiency of three machines.

The Director also constituted another committee

comprising six members to investigate the arrangement

for operation of diesel genset and to detect the possible

irregularity in the findings therein. The petitioner was

supplied with questionnaires and asked to answer the

same, which he did. The committee was of the view that

the data recorded in the log book had been grossly

fabricated and manipulated with the sole objective of

getting some financial benefit in a dishonest way and

thus, held the petitioner and five other employees directly

or indirectly involved in such activities. The Committee

submitted a fact finding report on 12.12.2014 suggesting

several remedial measures to regularize the process and

prevent any possible recurrence of the situation. The

Committee also recommended to fix responsibility on the

petitioner. It was specifically held that the involvement of

others in the dishonest transaction cannot be ruled out

completely. The report of the fact finding Committee was

placed before the Board of Governors in its 44th meeting

held on 23.12.2014, wherein it was decided to discharge

the petitioner from the service of the Institution with

immediate effect for his dishonesty and lack of integrity.

Accordingly, by order dated 30.12.2014 (copy enclosed as

Annexure-6 to the writ petition), the petitioner was

discharged from services of the Institute with immediate

effect for his dishonesty and lack of integrity. The

petitioner preferred an appeal before the Director (opposite

party No.2) on 14.01.2015 but realizing that he is not the

appellate authority, he preferred appeal on 21.01.2015,

27.02.2015, 28.02.2015 and 03.05.2015 before the

Chairman. In the meantime, the decision taken in the 44th

Board meeting was approved by the Board in its 45th

meeting, after the issuance of the order of discharge. The

petitioner challenged the decision of the Board of

Governors of the 44th and 45th meeting before this Court

in W.P.(C) No. 9367 of 2015 as also the order of discharge

under Annexure-6. This Court, by order dated 13.05.2015

disposed of the writ application directing the Chairman to

dispose of the appeal filed by the petitioner in-conformity

with the provisions of law within a period of three months

from the date of communication of the order. Pursuant to

such order, the Chairman of the Board of Governors, by

order dated 06.07.2016 allowed the appeal and directed

the NIT to reinstate the petitioner immediately. The

petitioner thereafter wanted to join in his duty on

22.07.2016 but the Director did not allow him to do so. In

the meantime by letter dated 27.07.2016, the under

Secretary to Government of India in Ministry of Human

Resources stated that the appeal of the petitioner should

be placed before the Board in its forthcoming meeting for

further deliberation and decision. Pursuant to such

clarification issued by the Government of India, the Board

of Governors in its 50th meeting held on 30.12.2014,

rejected the appeal of the petitioner, which was

communicated to the petitioner by opposite party No.3 in

his letter dated 10.02.2017 (copy enclosed as Annexure-

15)

3. The case of the NIT (opposite party Nos. 2 to 5)

is that the petitioner was involved in serious financial

irregularities to the tune of Rs.10 lakhs through dishonest

transactions, which was clearly proved in the fact finding

enquiry conducted by the six member Committee.

Therefore, the Board of Governors in its 44th meeting held

on 23.12.2014, considering the probationary status of the

petitioner and evidence of dishonesty and lack of integrity

decided to relieve him from the services of the institute

from 30.12.2014. Undoubtedly, the Chairman had allowed

the appeal filed by the petitioner but he had no power to

do so as it is only the Board, which has power to consider

the appeal. The Board also accorded opportunity of

personal hearing to the petitioner, which he availed but in

its 50th meeting the Board took into consideration all

relevant documents along with the statement of the

petitioner recorded during personal hearing and held that

his discharge from service was justified and found no

merit in the appeal.

4. Heard Mr. Samir Kumar Das, learned counsel

for the petitioner and Mr. S.P. Mishra, learned Senior

Counsel with Mr. S. Mishra, learned counsel for NIT.

5. Mr. Das has argued at the outset that as per

the Rules, the petitioner's probation period could not have

been extended for more than a year and that if no order

confirming, discharging or reverting the officer is issued

within eight months after expiry of double the normal

period of prescribed probation, an employee is deemed to

have successfully completed the probation period. In such

view of the matter, the petitioner could not have been

removed from service without following the procedure laid

down in the relevant service rules. It is further contended

by Mr. Das that the petitioner has been visited with a

stigmatic termination order without following the

principles of natural justice. The report of the fact finding

enquiry could not have been formed the basis for taking

such drastic action against the petitioner. Moreover, the

appeal of the petitioner was rightly allowed by the

Chairman but the Board of Governors revoked the same

without any justified reason.

6. Per contra Mr. S.P. Mishra, learned Senior

counsel contended that there is no question of any

automatic confirmation of service, inasmuch as in the

absence of any specific order being passed by the

concerned authority to confirm the services of the

petitioner it implies that his services were not found

satisfactory enough for confirmation. On merits, it is

contended that the fact finding enquiry was conducted by

six members consisting of three technical and three non-

technical members. The petitioner was given chance of

submitting of his reply to the questions posed by the

Committee, which he did, but the same were not accepted.

The Committee found clear proof of

manipulation/fabrication of documents at the instance of

the petitioner for financial gain. As a result, there was

huge financial irregularity to the tune of Rs.10 lakhs.

7. From the rival contentions noted above it is

evident that the following questions fall for consideration

before this Court;

(i) Whether the petitioner was a probationer at

the relevant time.

          (ii)   Whether        the         impugned      order       of

          disengagement         of    the    petitioner    from      his

          services     vide    Annexure-6        is   legal     and/or

          justified.

8. In course of arguments, Mr. S.K. Das referred

to an office memorandum dated 11.03.2019 issued by the

Ministry of Personnel, Public Grievances and Pensions,

Department of Personnel & Training, Government of India,

which purports to be a master circular of

probation/confirmation in central services. Statute-23(3)

of the First Statutes of NIT provides that for the purposes

of appointment, the Rules Applicable to the Central

Government employees shall apply. Coming to the office

memorandum dated 11.03.2019, Paragraph-27 under the

heading 'confirmation' thereof reads as follows;

"27. The date from which confirmation should be given effect is the date following the date of satisfactory completion of the prescribed period of probation or the extended period of probation, as the case may be. The decision to confirm the probationer or to extend the period of probation as the case may be should be communicated to the probationer normally within 6 to 8 weeks. Probation should not be extended for more than a year and, in no circumstance, an employee should be kept on probation for more than double the normal prescribed period of probation. The officer will be deemed to have successfully completed the probation period if no order confirming, discharging or reverting the officer is issued within eight weeks after expiry of double the normal period of prescribed probation."

9. Thus, ordinarily probation should not be

extended for more than a year and in any case, not more

than double the normal period of probation. In the instant

case, the period of probation being one year, the

petitioner's service should have been either confirmed or

not confirmed w.e.f. 08.01.2013 or 08.01.2014 at best.

Admittedly, no order relating to confirmation or discharge

of the petitioner was issued by the authorities within eight

weeks after 08.01.2014. In fact no such order was issued

even till the date of his disengagement. Thus, there is no

alternative than to apply the deeming provision as per

paragraph-27 of the Office Memorandum referred to

hereinabove. In other words, the petitioner is deemed to

have been confirmed in his service w.e.f. 8/9.01.2014.

10. This answers the first question framed for

determination.

11. Coming to the second issue, the petitioner being

deemed to be a confirmed employee can obviously be

proceeded and/or discharged from service only in

accordance with the relevant rules. In this regard,

reference may be had to the provisions of the First

Statute, particularly to Statute-24, which lays down the

general terms and conditions of service of permanent

employees. Clause-(v) of Statute-24 provides that the

employees of the Institute shall be governed by the

Central Civil Services (Conduct) Rules, 1964. However,

Statute-26 provides for Suspension, Penalties,

Disciplinary proceedings. Clause-5 of Statute-26 lays

down the penalties that may be imposed on any employee.

Clause-6 reads as under;

"(6) No Order imposing on any member of the staff any of the penalties specified (v) to (viii) above shall be passed by any authority subordinate to that by which he was appointed and except after an enquiry has been held and the member of the staff has been given reasonable opportunity of showing cause against the action proposed to be taken in this regard."

12. Thus, from reading of the provisions quoted

above, it is evident that a confirmed/permanent employee

can only be visited with penalties of removal or dismissal

from service only after an enquiry has been held and he

has been given reasonable opportunity of showing cause

against the action proposed to be taken in such regard. As

regards the enquiry, the procedure required to be followed

is as laid in the Central Civil Services (Classification,

Control and Appeal) Rules, 1965, (in short CCS(CCA)

Rules, 1965). Part-VI deals with procedure for imposing

penalties. Rule-14 therein lays down the procedure for

imposing major penalties. Undoubtedly, disengagement

from service is a major penalty and corrected under Sub-

clause (vi) of Clause-6 of the Statutes. There is no dispute

that no procedure whatsoever as laid in CCS(CCA) Rules,

1965 was followed. On the contrary, the fact finding report

of the committee was accepted by the Board and acted

upon. The question is, whether such action could be

countenanced in law. The answer would obviously be in

the negative. Evidently, the petitioner was disengaged

from service as a measure of punishment inasmuch as the

order of disengagement refers to his purported dishonesty

and lack of integrity. It is therefore, a major penalty.

Therefore, the principles of natural justice as embodied

under Rule-14 of CCS(CCA) Rules, 1965 cannot be given a

go-bye.

Reading of the minutes of 50th meeting of Board

of Governors held on 28.12.2015 (Annexure-16) reveals

that the Board, inter alia held as follows:

"In the meantime serious financial irregularity in the operation of diesel generators being supervised by Mr. Behera was detected. An enquiry committee was setup by the Director on 14.10.2014 to investigate the matter. The committee submitted its report on 12.12.2014. The committee, prima facie, estimated financial irregularity to the tune of Rs.10.0 lakhs and opined Mr. Behera to be primarily responsible for the dishonest transactions.

The issue of financial irregularity and report of the committee was discussed at length in the 44th meeting held on 23.12.2014. After taking into consideration the probationary status of Mr. Behera and evidences of dishonesty and lack of integrity on his part, the Board decided to discharge him from service of the institute. Accordingly, Mr. Behera was discharged from service of the institute w.e.f. 30.12.2014."

As regards his appeal, it was held as follows;

"It may be observed that available documents, viz.(i) order of PIC (Electrical) assigning duty of operation and maintenance of the diesel generators to Mr. Behera and (ii) more than 50 requisitions of diesel procurement signed by Mr. Behera negate his claim of not being guilty on the ground of non-involvement in the process of diesel procurement."

13. Thus, there can be no manner of doubt that the

order of discharge from service of the petitioner was

initiated as a measure of punishment for his alleged

misconduct i.e., dishonest transaction. Such being the

case, a full-fledged disciplinary proceeding ought to have

been conducted with strict adherence to the procedure

laid down under Rule-14 of the CCS(CCA) Rules, 1965.

14. This answers the second question framed for

determination.

15. From a conspectus of the analysis of facts,

contentions raised and law involved, this Court is of the

considered view that the petitioner cannot be considered a