Hrudananda Sahu vs State Of Odisha And Others
2023 Latest Caselaw 1785 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                W.P.(C) No.32791 of 2022

                 Hrudananda Sahu                           ....             Petitioner

                                                         Mr. A.K. Chhatoi, Advocate
                                              -versus-
                 State of Odisha and others                ....        Opposite Party

                                                                Mr. P.C. Das, A.S.C.


                                         CORAM:

                            JUSTICE A.K. MOHAPATRA

                                            ORDER

Order No.                                  27.02.2023
    03.     1.      This matter is taken up through Hybrid Arrangement (Virtual
            /Physical Mode).

2. Heard learned counsel for the petitioner as well as learned counsel for the State. Perused the writ petition as well as documents annexed thereto.

3. The present writ petition has been filed by the petitioner with the following prayers:

"In view of the above facts and circumstances stated above, it is ardently prayed that this Hon'ble Court be graciously pleased to quash the impugned order of punishment i.e. compulsory retirement dtd.28.07.2022 passed by the appellate authority (Opp.Party No.2) under annexure-15 as well as the order of dismissal passed by the disciplinary authority (Opp.Party No.3) under Annexure-7 respectively.

And further be pleased to direct the Opp.Parties to reinstate the petitioner in the service with all consequential service and financial benefits // 2 //

And issue any other appropriate writ/writs, order/orders, direction/directions as deem fit and proper in the fitness of the case."

4. It is submitted by learned counsel for the petitioner that while

the petitioner was working as Revenue Supervisor in the Tahasil

Office, Keonjhar i.e. under Opposite Party No.4, he entangled with

Balasore Vigilance P.S. Case No.22 of 2021 for the offence under

Section 7 of the Prevention of Corruption (Amendment) Act 2018 for

the allegation of making illegal demand and gratification. Although

the said case is pending before the criminal court, no charge-sheet

has been filed. Basing upon the involvement of the petitioner in the

aforesaid criminal case, a departmental proceeding was initiated

against the petitioner and the petitioner was placed under suspension

on 09.11.2021 for arrest and detention in judicial custody.

5. It is further submitted by learned counsel for the petitioner that

in the disciplinary proceeding under Annexure-6 bearing D.P. No.1

of 2022, the petitioner was given thirty days time to file show-cause

reply. However, the petitioner could not file the same within the

stipulated period of time and he has filed the same on 24.01.2022. He

further submits that without supplying any document to the petitioner

and without providing an opportunity to file show-cause before the

expiry of time to show-cause, the petitioner was dismissed from // 3 //

service on 08.02.2022 under Annexure-7.

6. Being aggrieved by the dismissal order, the petitioner

approached this Court by filing a writ petition bearing W.P.(C)

No.4547 of 2022 and the said writ petition was disposed of by

granting liberty to the petitioner to file an appeal in appropriate

forum. The order which was challenged is an appealable one.

Thereafter, the petitioner approached before the appellate authority

by filing an appeal under Annexure-14. It may not be mentioned that

the Revenue Divisional Commissioner, Northern Division, Odisha,

Sambalpur is the appellate authority. The appellate authority upon

careful consideration of the appeal memo submitted by the petitioner

and further taking into consideration para-wise comments of the

department disposed of the appeal vide order dated 28.07.2022 under

Annexure-15. On perusal of the order passed by the appellate

authority-Opposite Party No.2, it appears that the appellate authority

has expressed its displeasure with regard to non-observance of the

procedure in the matter and further observes that the petitioner was

not given opportunity to submit his written statement. However, the

impugned order of dismissal dated 24.11.1987 passed by Disciplinary

Authority-cum-Collector, Keonjhar was modified and the petitioner

was awarded punishment of compulsory retirement from service // 4 //

w.e.f. 08.02.2022 instead of dismissal from service.

7. On perusal of the order passed by the appellate authority, the

following findings are as follows:-

"On going through the appeal petition of Sri Hrudananda Sahu, the Para-Wise comments of the ADM, Keonjhar and other required information/documents, it is revealed that the appellant while working as a Revenue Supervisor in Tahasil Office, Keonjhar, a vigilance case by S.P. Vigilance, Balasore Division by P.S. Case No.22, dt.08.11.2021 U/S/7 of Prevention of Corruption Amendment Act- 2018 was registered against the appellant for demanding & accepting illegal gratification of Rs.20,000/- from the complainant Sri Harikar Sahu for submission of field enquiry report to the Tahasildar, Keonjhar. Then he was placed under suspension w.e.f. 09.11.2021 for his arrest and detention in the judicial custody for the period exceeding 48 hours. Thus, basis on draft charges submitted by S/P. Vigilance, Balasore Division, a Departmental Proceeding No-01/2022 U/r 15 of OCS (CCA) Rules, 1962 has been initiated and was served on appellant vide District Office Memo No-152/BBE Dt.17.01.2022 for violation of Rule-3 of OGS Conduct Rules, 1959 against the appellant Sri Sahu.

From the above narrated facts it is revealed that, in the midst of the whole process, the Disciplinary Authority-cum-Collector, Keonjhar dismissed the // 5 //

appellant Sri Sahu from Govt. Service on dt.08.02.2022 without giving him opportunity for submission of his defense statement within 30 days from the receipt of the Memorandum of charge sheet and also to state whether he desires to be heard in person.

It is clearly mentioned in the office order of dismissal of Sri Sahu, that in accordance with Govt. in G.A. & P.G. Deptt. Circular No.30495 dt.24.11.1987 read with Clause-(a) of Rule-71 of the Orissa Service Code the appellant Sri Sahu is dismissed from Govt. Service. In this context, it is to submit here that, the Circular No.30495 dtd. 24.11.1987 is superseded vide Letter No.27037/Gen, Dt.24.09.2019 regarding premature retirement of Govt. Servant.

Further, the major punishment of dismissal from Govt. Service cannot be imposed on an employee without giving the appellant reasonable opportunity of being heard. Sri Sahu has been dismissed from Govt. Service within 21 days, from the date of receiving the Memorandum of charges. Thus, it is cleared that, the Disciplinary Authority-cum-Collector, Keonjkhar has dismissed Sri Sahu without following proper procedures and rules laid down by Govt.

The Govt. of Odisha is also giving Compulsory retirement to corrupt Officers under "MO SARKAR" initiatives. Hence the dismissal order from Govt. Service of Sri Sahu is not well judged.

Further, as per the judgment of Hon'ble Supreme // 6 //

Court in State of U.P. and Others-Vrs-Vijay Kumar Jain, Appeal (Civil) 2083 of 2002. If the conduct of a Government employee becomes unbecoming to the public interest or obstructs the efficiency in public services, the Government have an absolute right to compulsorily retire such an employee in public interest.

Hence, I am convinced that the dismissal order passed by the Disciplinary Authority-cum-Collector, Keonjhar as per the Govt. in G.A. & P.G. Deptt. Circular No.30495/Dt.24.11.1987 is not appropriate as the said circular is superseded by G.A.&P.G. Deptt. Letter No.27037/Gen, Dtd. 24.09.2019."

8. On further perusal of the order passed by the appellate

authority-Opposite Party No.2, this Court is of the considered view

that the appellate authority once came to a conclusion that proper

procedure has not been followed while conducting the disciplinary

proceeding, the Opposite Party No.2 should have set aside the order

passed by the disciplinary authority and remanded back the matter to

the disciplinary authority for de novo disciplinary proceeding for

filing the final written statement of the delinquent Officer. However,

for the reasons placed before the appellate authority, the appellate

authority in its wisdom to convert the punishment from dismisal to

compulsory retirement by referring to some scheme of Government

of Orissa "Mo Sarkar" initiative whereunder compulsory retirement // 7 //

has been given to corrupt officers. Such conclusions are not taken by

the appellate authority, which is punishable in law. Moreover, once

an appellate authority exercising its appellate jurisdiction a proper

procedure has not been convinced as has been directed in OCS

(CC&A) Rules, 1962 than the entire appeal order against the

petitioner should have been quashed and the matter should have been

remanded to the Opposite Party by following procedure as has been

provided under the OCS (CC&A) Rules, 1962.

9. Learned Additional Standing Counsel for the State-Opposite

Parties submits that the petitioner was involved in a vigilance case,

therefore, he was arrested and sent to judicial custody. Thereafter, he

was immediately placed under suspension and the proceeding was

initiated against him. As such, the Opposite Parties have not

committed any illegality and dismissed the petitioner from service. It

was also contended that such type of cases protected under Article

311 in the Constitution of India is not applicable to such delinquent

employees. Therefore, the order of dismissal passed by the

disciplinary authority, which was subsequently modified by the

appellate authority in accordance with law and the same should not

be interfered with at this juncture for the public interest.

10. Having heard learned counsels for the respective parties, and // 8 //

upon careful consideration of the documents filed along with the writ

petition, this Court is of the considered view that once the appellate

authority found that the proper procedure has not been followed and

come to the conclusion to observe without giving the petitioner an

opportunity to submit his defence statement,. The disciplinary

authority has passed the order of punishment, which was incumbent

upon the Opposite Party No.2 to immediately set aside the impugned

punishment order and the matter should have been remanded then for

consideration afresh by providing opportunity of hearing to the

petitioner.

11. In such view of the matter, this Court is of the considered view

that the order dated 28.07.2022 under Annexure-15 passed by the

appellate authority as well as the order dated 08.02.2022 under

Annexure-7 passed by the disciplinary authority are hereby set aside

and the matter remitted back to the Opposite Party No.3 and the

Opposite Party No.3 shall do well to proceed afresh by giving an

opportunity to the petitioner to file his show-cause reply. Further, it is

directed that the Opposite Party No.3 shall proceed strictly in

accordance with OCS (CC&A) Rules, 1962 and the procedure to

dispose of the matter as expeditiously as possible preferably within a

period of three months from the date of production of certified copy // 9 //

of this order. The petitioner is further directed to file his show-cause

reply within a period of four weeks from today before the

disciplinary authority.

12. With the aforesaid observation/direction, the writ petition is

disposed of.

Urgent certified copy of this order be granted on proper application.

( A.K. Mohapatra ) Judge Jagabandhu