Adaitya Prasad Patra vs State Of Odisha And
2023 Latest Caselaw 10144 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                        W.P.(C) No.25124 of 2023
        Adaitya Prasad Patra               ....                    Petitioner
                                                 Mr. B.B. Mohanty, Advocate

                                        -versus-
        State of Odisha and
        Others                             ....              Opposite Parties
                                                         Mr. S.K. Samal, AGA
                           CORAM:
               JUSTICE BIRAJA PRASANNA SATAPATHY

                                          ORDER

28.08.2023 Order No.

02. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. Heard Mr. B.B. Mohanty, learned counsel for the Petitioner and Mr. S.K. Samal, learned Addl. Govt. Advocate for the State.

3. Petitioner is aggrieved by the order dated 29.07.2023 so passed by the Govt.-O.P. No.1 under Annexure-7 in terminating the petitioner from his services in terms of the provision contained under Rule-18(ii) of the OCS(CCA) Rules, 1962.

4. It is contended that the petitioner while continuing as a Principal at Govt. Polytechnic, Nabarangpur, a proceeding was initiated against him under Rule-15 of the OCS(CCA) Rules, 1962 vide Memorandum dated 31.01.2023 under Annexure-2. In the said proceeding, the petitioner after filing of written statement of defence, // 2 //

enquiry was conducted and Enquiry Officer also submitted the report vide order dated 24.07.2023.

4.1. But thereafter by treating the proceeding to have initiated under Rule 18(ii) of the OCS (CCA) Rules, 1962, the petitioner was dismissed from service, just prior to 2 (two) days of his retirement which was due on 31.07.2023.

4.2. It is contended that once a proceeding is initiated against the petitioner under Rule 15 of the aforesaid Rules, there was no occasion on the part of Opposite Party No.1 to treat the same as a proceeding under Rule 18(ii) and pass the order of dismissal on the ground indicated in the impugned order. Rule 18(ii) of the Rules speaks as under:-

<18. ii) where the disciplinary authority is satisfied for reasons to be recorded in writing by that authority that it is not reasonably practicable to follow the procedure prescribed in the said rules; or.=

4.3. In support of his aforesaid submission Mr. Mohanty relied on a decision of the Hon'ble Apex Court in the case of Risal Singh Vrs. State of Haryana and Others, reported AIR 2014 SC 2922. Hon'ble Apex Court in Para-

7, 10 and 11 of the said judgment as held as follows:

<7. In Jaswant Sing v. State of Punjab and Others[(1991) 1 SCC 362] the Court, while dealing with the exercise of power as conferred by way of exception under Article 311(2)(b) of the Constitution, opined as follows:

<Clause (b) of the second proviso to Article 311(2) can be invoked only when the authority is satisfied from the material

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placed before him that it is not reasonably practicable to hold a departmental enquiry. This is clear from the following observation at page 270 of Tulsiram case: (SCC p.504, para

130)

<A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the department's case against the government servant is weak and must fail.=

The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer.=

10. Tested on the touchstone of the aforesaid authorities, the irresistible conclusion is that the order passed by the Superintendent of Police dispensing with the inquiry is totally unsustainable and is hereby annulled. As the foundation founders, the order of the High Court giving the stamp of approval to the ultimate order without addressing the lis from a proper perspective is also indefensible and resultantly, the order of dismissal passed by the disciplinary authority has to pave the path of extinction.

11. Consequently, we allow the appeal and set aside the order passed by the High Court and that of the disciplinary authority. The appellant shall be deemed to be in service till the date of superannuation. As he has attained the age of superannuation in the meantime, he shall be entitled to all consequential benefits. The arrears shall be computed and paid to the appellant within a period of three months hence. Needless to say, the respondents are not precluded from initiating any disciplinary proceedings, if advised in law. As the lis has been pending before the Court, the period that has been spent in Court shall be excluded for the purpose of limitation for initiating the disciplinary proceedings as per rules. However, we may hasten to clarify that our observations herein should not be construed as a mandate to the authorities to initiate the proceeding against the appellant. We may further proceed to add that the State Government shall conduct itself as a model employer and act with the objectivity which is expected from it. There shall be no order as to costs.=

4.4. Mr. Mohanty, learned counsel for the petitioner also relied on another decision of this Court in the case of

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State of Orissa and Ors. Vrs. Amulya Kumar Champatiray in W.P.(C) No.11311 of 2013, decided on 03.01.2017. This Court in Para 14, 17 and 18 of the said decision as held as follows:-

<14. The question raised by the learned counsel representing the State of Orissa that there is no illegality in the order since the situation during the relevant time had warranted for immediate dismissal and that is the reason the provision of Article 311(2)(b) of the Constitution of India, has been resorted to by assigning reason.

While on the other hand, learned counsel representing the sole opposite party refuting the submission of the learned counsel for the State has submitted that the mandatory requirements as laid down under Article 311(2)(b) of the Constitution of India have not been complied with since no reason has been assigned and a proper opportunity to defend himself has not been given.

17. In the present case, the extraordinary powers provided under Article 311(2)(b) have been invoked but the essential requirements of the Article qua recording of the reasons for invoking the said provisions have not been complied with. Simply it cannot be said that formal inquiry may not be reasonably practicable in prevailing circumstances as has been narrated in the order dated 24.1.2012 assigning reasons for invoking the jurisdiction conferred under Article 311(2)(b) of the Constitution of India whereas it is well settled proposition of law that due reasons are necessary to be recorded as to why it was not practicably possible to conduct an enquiry or how it was not convenient to the authority to conduct an enquiry to invoke clause 2(b) of Article-311 of the Constitution of India. The said provisions are attracted by exercising extraordinary powers under the extraordinary circumstances. The absence of extraordinary circumstances to invoke provisions of Article 311(2)(b) can be termed as misuse of power and therefore, such an action is not sustainable in the eyes of law. There are two contradictory versions regarding the incident and which one of the two versions was correct cannot be ascertained without conducting any enquiry. The impugned order is based on the reports of the Superintendent of Police, Puri wherein the sole opposite party has never been provided with the opportunity to put forward his case. It is further relevant to state here that when the Superintendent of Police, Puri could conduct two enquiries by recording the statements of the complainant and other witnesses, who can depose in the preliminary enquiry, then whey they could not depose in a

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formal enquiry, has not been satisfactorily explained by the learned counsel representing the State of Orissa. In the case of Tarsem Singh v. State of Punjab (2006) 13 SCC 581 their Lordships of the Supreme Court had held that if a preliminary enquiry could be conducted, there was no reason as to why formal departmental enquiry could not be initiated against the delinquent.

We have found from the record that the FIR has been instituted on 09.12.2011 by the concerned police station. In such a situation when there is negligence of duty on the part of the other officials also hence not providing opportunity of being heard and by not resorting to the regular proceeding as provided under Rule 828 of the Orissa Police Rule, invoking the power conferred under Article 311(2)(b) of the Constitution of India, seems not justified.

18. It is also for the reason that the provision of Article 311(2)(b) of the Constitution of India mandates that a reason is to be recorded while depriving the delinquent employee to participate in a full-fledged inquiry, but we have found that no such reason has been reflected in the order of dismissal dated 24.1.2012, rather only one line has been written that <conducting a formal inquiry may not be reasonable and practicable and what was the prevailing circumstances in not conducting such inquiry, that has not been discussed at all when the Hon'ble Apex Court while interpreting the provision of Article 311(2)(b) of the Constitution of India has clearly mandates that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry as contemplated by Article 311(2)(b) of the Constitution of India. This is a Constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional, (Para 133 of the judgment in the case of Tulsiram Patel :

(MANU/SC/0373/1985 : AIR 1985 SC 1416) (supra). =

4.5. It is accordingly contended that the order of dismissal is not sustainable in the eye of law.

5. On instruction Mr. Samal, learned Addl. Govt. Advocate though prayed for some time to obtain further instruction in the matter, but fairly contended that once a proceeding is initiated under Rule 15 with due submission of Enquiry Report, which is admitted by the

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authority in the impugned order, no step should have been taken under Rule 18 (ii) of the Rules.

6. Having heard learned counsels appearing for the Parties and in view of the submissions made by learned counsels as well as placing reliance on the decisions as cited supra, this Court is of the view that once a proceeding is initiated under Rule-15 with submission of the Enquiry Report, the authority cannot take recourse to the provisions of Rule-18 of the Rules and thereby dismissing the petitioner from his service.

6.1. Hence, this Court in view of such material irregularities with regard to the action of the Opposite Parties, is inclined to interfere with the impugned order dated 29.07.2023, so passed by the Opposite Party No.1 under Annexure-7. While interfering with the same, this Court is inclined to quash the said order. However, quashing of the impugned order shall not preclude the authority to conclude the proceeding as initiated under Annexure-2 in accordance with law, in which case this Court expresses no opinion.

7. The Writ Petition is accordingly disposed of.

(Biraja Prasanna Satapathy) Judge

Basudev

Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Reason: Authentication of order Location: High Court of Orissa, Cuttack Date: 31-Aug-2023 18:29:57