Bhabani Charan Biswal vs State Of Odisha & Others
2023 Latest Caselaw 9728 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK

             WPC(OAC) Nos.1708 & 1709 of 2012

 In the matter of an application under Section 19 of the
 Administrative Tribunal Act, 1985.
                          ..................

                      WPC(OAC) No.1708 of 2012

 Bhabani Charan Biswal                      ....                     Petitioner

                                     -versus-

 State of Odisha & Others                   ....             Opposite Parties


          For Petitioner         :      M/s.P. K. Mishra, S.Mishra,
                                        S.Pattnaik & M. Pati.

          For Opp. Parties :            Addl. Standing Counsel
                                        Mr.H.K. Panigrahi.


                      WPC(OAC) No.1709 of 2012

 Sukesh Kumar Panda                         ....                     Petitioner

                                     -versus-

 State of Odisha & Others                   ....             Opposite Parties


          For Petitioner         :      M/s.S.N. Biswal, G.R. Sethi &
                                        J.K. Digal.

          For Opp. Parties :            Addl. Standing Counsel
                                        Mr.H.K. Panigrahi.

PRESENT:


     THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY

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 Date of Hearing:02.08.2023 and Date of Judgment: .08.2023
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Biraja Prasanna Satapathy, J.

1. Since issue involved in both the cases is identical and

the challenge made in the writ petitions are also similar,

both the matters are heard analogously and disposed of

vide the present common order.

Both the Writ Petitions have been filed challenging the

Office Order dated 01.05.2012 so issued by the

Government-Opposite Party No.1, whereby the fresh

Enquiry Officer was appointed to enquire into the charges

framed against the Petitioners vide Memorandum dated

21.04.2008 and 15.03.2008 respectively. On initiation of

such proceeding against the Petitioner, not only they filed

their respective written statement of defence, but also

participated in the enquiry so conducted by the Enquiry

Officer on being duly appointed by Opposite Party No.1.

2. The factual backdrop giving rise to filing of the

present case is that the Enquiry Officer after conducting

the enquiry submitted his enquiry report on 16.11.2010.

While the Enquiry Officer in his report opined to exonerate

the Petitioner in WPC(OAC) No.1708 of 2012 from the

charges, the self-same Enquiry Officer in respect of the

Petitioner in the connected WPC(OAC) No.1709 of 2012 held

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in guilty as against Charge No.1 of the Memorandum and

proposed to impose punishment of withholding of

increment. While recommending such punishment against

the Petitioner in the connected WPC(OAC) No.1709 of 2012,

the Enquiry Officer also opined not to impose any major

penalty and to exonerate him from the charges.

3. It is contended that after receipt of the enquiry report

both the Petitioners were issued with the 1st show cause in

terms of the provision contained under Rule-15 of the OCS

(Pension) Rules, 1992 on 01.10.2011. On receipt of the

enquiry report along with the 1st show cause, both the

Petitioners were also submitted their respective replies on

25.10.2011.

3.1. It is also contended that since an initiation of the

proceeding against the Petitioners, both are placed under

suspension and the order of suspension was never revoked,

the Petitioners approached the Tribunal in O.A No.2995(C)

of 2010 and 2441(C) of 2010 respectively. The Tribunal

when directed the Opposite Party No.1 to take a decision in

terms of the provisions contained under Rule-12(5) of the

OCS (CC&A) Rules, 1962. Opposite Party No.1 vide order

dated 25.05.2011 while refusing to revoke the order of

suspension enhanced the subsistence amount from 50% to

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75% as provided under Rule-90(1)(a)(i) of the Orissa Service

Code, 1908.

3.2. It is contended that while the matter stood thus, and

without conducting the proceeding basing on the enquiry

report so submitted by the Enquiry Officer, when Opposite

Party No.1 passed the impugned order on 01.05.2012 by

appointing another Enquiry Officer to conduct fresh

enquiry and to submit the report, challenging such order of

Opposite Party No.1 both the writ petitions were filed.

3.3. Learned Tribunal while issuing notice of the matter

vide order dated 06.06.2012 passed an interim order

restraining Opposite Party No.1 from taking further action

against the Petitioners, pursuant to the order impugned.

4. It is contended by the learned counsel appearing for

the Petitioners in both the cases that since after due

conduct of the enquiry, the Enquiry Officer submitted the

report against both the Petitioners on 16.11.2010 and the

Petitioners were issued with the 1st show cause on

01.10.2011, the reply on which was also made on

25.10.2011, there was no occasion to direct for fresh

enquiry by appointing another Enquiry Officer to enquire

into the charges.

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4.1. Mr. Mishra, learned counsel for the Petitioner in

WPC(OAC) No.1708 of 2012 relied on the following

decisions rendered by this Court in 2010(Suppl.I) OLR-

302, 2009 (Suppl.II) OLR-968, 2006 (Supp.I) OLR-644,

and 2006(II) OLR-172.

4.2. Similarly, the Petitioners in WPC(OAC) No.1709 of

2012 relied on the decisions of the Hon'ble Apex Court

reported in (1999) 7 SCC-739, AIR 2001 SC-2398, AIR

2003 SC-1100, (2014) 10 SCC-589. In addition to the

decision relied on by the learned counsel in WPC(OAC)

No.1708 of 2012.

5. Hon'ble Apex Court in Para-31 of the decision in

(1999) 7 SCC-739 has held as follows:-

"31. In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges levelled against him but also at the stage at which those findings are considered by the Disciplinary Authority and the latter, namely, the Disciplinary Authority forms a tenative opinion that it does not agree with the findings recorded by the Enquiry Officer. If the findings recorded by the Enquiry Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the Disciplinary Authority has proposed to disagree with the findings of the Enquiry Officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings

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to the Disciplinary Authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or Service Rule including Rules made under Article 309 of the Constitution."

5.1. Hon'ble Apex Court in Para-2 of the decision in AIR

2001 SC-2398 has held as follows:-

"2.. Mr. Sundravardan, the learned senior counsel appearing for the State Bank of India contended before us that in the case in hand, in fact, there has been no disagreement with the findings of the enquiring officer by the disciplinary authority, and on the other hand, the disciplinary authority on the accepted findings of the enquiring officer has recorded his conclusion differently on the basis of the relevant provisions of the rules, and therefore the question of giving an opportunity to the delinquent at that stage does not arise. To appreciate this contention, we have been taken through the findings of the enquiring officer and charges 1 (a) and 1(d) as well as the reasonings and ultimate conclusion of the disciplinary authority on those two charges. On examining the same, we are not persuaded to accept the submission of the learned counsel and in our view, the disciplinary authority has disagreed with the conclusion and findings arrived at by the enquiring officer. The next question therefore is, as has been formulated earlier, whether the disciplinary authority was required to record its tentative reasons for disagreement and give to the delinquent officer an opportunity to represent before it recorded its ultimate findings. This question is concluded by a 3-Judge Bench decision of this Court in the case of Punjab National Bank v. Kunj Behari Misra, . The Bench in the aforesaid case relied upon the earlier decision in the Institute of Chartered Accountant case as well as the Ram Kishan case and came to hold that the view expressed in S. S. Koshal (1994 AIR SCW 2901) and M. C. Saxena cases do not lay down the correct law. Mr. Sundravardan, however, brought to our notice yet another 3-Judge Bench decision in the case of Union Bank of India v. Vishwa Mohan. , and contended that a different view has been taken in the aforesaid cases. But on examining the aforesaid decision in Union Bank of India case, we find that the question which arose for consideration in the Punjab National Bank case was not really there before the Court and the Court was examining the question as to what would be the effect, if copy of the enquiry report is not furnished to the delinquent employee. The Court obviously relied upon the Constitution Bench decision of this Court in Managing Director, ECIL v. B.

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Karunakar, . In the absence of any contrary decision of a 3- Judge Bench decision on the question in issue, we are bound by the earlier Judgment of this Court in Punjab National Bank case, necessarily, therefore we do not find any merit in this appeal, which stands dismissed."

5.2. Hon'ble Apex Court in Para-4 to 7 of the decision in

AIR 2003 SC-1100 has held as follows:-

"4.When asked, learned senior counsel for the appellants submitted that Regulation 7(2) of the Punjab National Bank Officer Employee' (Discipline and Appeal) Regulations, 1977 referred to in the Punjab National Bank case is para-materia to the Rule 50(3)(ii) of State Bank of India (Supervising Staff) Service Rules governing the facts of the present case with which we are concerned. The contentions advanced by the learned senior counsel for the appellant before us are almost similar to the contentions advanced in the case of Punjab National Bank aforementioned. In the case of Punjab National Bank also similar contentions wore urged that the Punjab National Bank officer Employees' (Discipline and Appeal) Regulations, 1977 did not require that an opportunity of being heard be given to the delinquent officers when the disciplinary authority disagreed with the finding of the enquiring authority; once the enquiring authority had given hearing to them and if the decision was before Ramzan Khan's case, the disciplinary authority was not required to give the copy of the enquiry report to the delinquent officer. In that view, it was not necessary to give a hearing to the case where disciplinary authority differs from the enquiry report. A Bench of learned three Judges in the said case has specifically noticed in paragraph II as to the controversy that was required to be resolved in that case. The controversy in that case also related to the case where the disciplinary authority disagreed with the findings of the enquiring authority and Regulation 7(2) does not expressly state that when the disciplinary authority disagrees with the finding of the enquiring authority an opportunity is to be given. After referring to various decisions including the decisions relied on behalf of the Bank, this Court has clearly held that where the disciplinary authority disagrees with the report of the enquiring authority in regard to certain charges, providing of an opportunity is necessary to satisfy the principle of natural justice. Paragraph 19 of the said judgment reads thus:

"The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its

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findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principle of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."

5. In paragraph 20 thereof, this Court agreeing with the case of Institute of Chartered Accountants of India v. L.K. Ratna, [1986] 4 SCC 537 and Ram Kishan v. Union of India, [1995] 6 SCC 157, specifically stated that the view taken in State Bank of India v. S.S. Koshal, [1994] Supp. 2 SCC 468 and State of Rajasthan v. M.C. Saxena, [1998] 3 SCC 385, did not lay down the correct law. In our view, the controversy that is to be resolved in the present case arose for consideration in the said Punjab National Bank case directly. The said judgement in all force applies to the facts of the present case. The distinction sought to be made on behalf of the appellants taking support from the Constitution Bench judgment of this Court in Mohapatra 's case (supra) does not help them for two reasons: firstly, that was not a case where the controversy that has arisen in this case dealing with specific regulation was directly dealt with. As already stated above, in the case of Punjab National Bank a three Judge Bench of this Court has directly considered the effect of said Regulation, particularly and directly in regard to providing of an opportunity to be read into the Regulation. Secondly, on the facts of the case before the Constitution Bench, this Court found that the direction given by the High Court to reconsider as to the punishment imposed in that case was not correct. The argument that in the case arising prior to Ramzan Khan's case not giving an opportunity by the disciplinary authority, would not vitiate the order of dismissal, also does not support the case of the appellants in the light of the fact that in the case of Punjab National Bank also the proceedings related to the period prior to Ramzan Khan case.

6. It was also contended on behalf of the appellants that the High Court committed an error in setting aside the order of dismissal when it was not shown that any prejudice was caused to the respondent by not giving an opportunity to him by the disciplinary authority. In this regard the learned counsel cited a decision of this Court in Union Bank of India v. Vishwa Mohan, [1998] 4 SCC 310. As already noticed Signature Not Verified above, before the High Court both the parties concentrated only on one point, namely, the effect of not providing an Digitally Signed Signed by: SUBRAT KUMAR BARIK opportunity by the disciplinary authority when the Reason: .. disciplinary authority disagreed with some findings of the Location: HIGH COURT OF ORISSA, CUTTACK Date: 26-Aug-2023 11:58:15 enquiry officer. It was also not shown by the appellants before the High Court that no prejudice was caused to the