Bijay Kumar Pany vs State Of Odisha & Others
2023 Latest Caselaw 60 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                        WPC(OA) No.1725 of 2018

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

      Bijay Kumar Pany                   ....        Petitioner


                                  -versus-


      State of Odisha & Others ....                 Opposite Parties


              For Petitioner        : M/s. D.P. Panigrahy,
                                      Advocate

              For Opp. Parties : M/s. D.K. Mohanty,
                                Addl. Standing Counsel

       PRESENT:
       THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
     --------------------------------------------------------------------------
     Date of Hearing: 21.12.2022 and Date of Order: 03.01.2023
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Biraja Prasanna Satapathy, J.

This Writ Petition has been filed challenging the order of

punishment passed on 05.1.2016 under Annexure-8 and the

confirmation of the same by the appellate authority vide order

dated 03.04.2017 under Annexure-11 as well as by the

Revisional Authority vide order dated 03.04.2017 under

Annexure-13.

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2. The brief facts giving rise to filing of the present

writ petition is that the petitioner while working as a

Constable and posted as such under Opposite Party No.4, he

was placed under suspension on the ground that the

petitioner was found sleeping at new building Sentric Post

No.1 (roof top )on a plastic chair without performing his duty

vide order dated 09.09.2014 under Annexure-1. The

petitioner subsequently vide order dated 29.09.2014 was

released from suspension with effect from the said date. But

thereafter, a proceeding was initiated with service of charges

vide memorandum dated 734 dated 17.10.2016 under

Annexure-3. The charge framed in the said proceeding is

reproduced hereunder.

CHARGE

C/58 Bijaya Kumar Pani of PTC Angul is charged with gross misconduct and disobedience of orders in that he joined PTC Angul on transfer as Constable from Angul district on 25.06.2003 as per O.O. No.1848/Exe dated 24.05.2003 and PTC D.O. No.620 dated 26.06.2003. During his posting at PTC Angul on 05.09.2014, he along with Hav. Kirtan Behera, C/53 Hrudananda Dehury, C/01 Chandramani Sahu and C/148 Salman Ekka of PTC Angul were commanded by RI PTC Angul vide PTC C.C NO.0189826 dt.05.09.2014 at 1 pm to perform PTC Magazine Security duty round the clock from the same day from 6 pm onwards. On joining at PTC Magazine Guard, Hav. L. Sahu detained the charged constable (C/58 Bijaya Kumar Pani) for Sentry duty at Sentry Post No.1 (Roof Top) of New Building for 8 pm to 10 pm and others as per Magazine Guard SDE No.218 dated 05.09.2014. During checking of Magazine Guard by Night

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Magazine Security Officer (RI PTC Angul) on 5.9.2014 at 9.55 pm, the charged constable was found sleeping on a plastic chair at the duty post a Sentry Post No.1(Roof Top New Building without performing his assigned duty.

The fact was reported by R.I. PTC, Angul(T ) Vice Principal PTC Angul PTC Magazine/Armoury guard is a sensitive psot in view of Maoist threat in the State. For such gross misconduct and dereliction in duty for which he was placed under suspension vide PTC D.O No.450 dt.9.9.2014.

He should submit his show cause by 10.11.2014 as to why he will not be suitably dealt in the event of the charge held to be proved against him. Any representation that he may wish to make orally or in writing will be duty considered by the authority competent to pass final orders before such orders.

2.1. Even though the petitioner submitted his reply to

the charges vide Annexure-4, but the Disciplinary Authority

on not being satisfied with the reply, appointed the Enquiry

Officer and the Marshalling Officer to cause enquiry to the

charges framed against the petitioner vide Annexure-3. The

Enquiry Officer submitted the enquiry report on 19.05.2015

under Annexure-5 inter alia with the following finding.

"In view of the above I left with no other alternative other than to mention that the charge of gross misconduct could not substantiated through independent witnesses during proceeding enquiry. As such the prosecution could not able to establish the charge level against the charged constable/58 Bijay Kumar Pani"

2.2. Even though the Enquiry Officer while submitting

the report under Annexure-5 held that the prosecution could

not be able to establish the charge framed against the present

petitioner, but the Opposite Party No.4 without following the

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provision contained under Rule 15 of the OCS (CCA) Rules,

1962 (hereinafter called as "the Rules") and without issuing

the 1st show cause by enclosing a copy of the enquiry report,

as provided under the said Rules, straightaway issued the 2nd

show-cause by proposing to impose punishment of one black

mark with treating the suspension period as such on

19.11.2015 under Annexure-6.

2.3. The Petitioner though submitted his reply to the

said 2nd show cause on 27.12.2015 under Annexure-7, but

the Opposite Party no.4 passed the order of punishment with

imposition of one Black Mark and by treating the period of

suspension as such by holding the petitioner guilty of the

charges vide order dated 05.01.2016 under Annexure-8. The

Petitioner preferred an appeal before Opposite Party No.3, but

the said appellate authority while rejecting the appeal

confirmed the order of punishment vide order Annexure-11.

The Petitioner thereafter preferred a revision before the

Opposite Party No.2 under Annexure-12. But the Revisional

authority also confirmed the order of punishment by rejecting

the revision vide his order under Annexure-13. The present

writ petition accordingly has been filed challenging the order

of punishment passed under Annexure-9 and order passed

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by the appellate authority as well as by the Revisional

Authority under Annexures-11 & 13.

3. It is the main contention of the learned counsel

appearing for the Petitioner that the petitioner on receipt of the

charges in the proceeding initiated under Annexure-3 though

submitted his explanation under Annexure-4, but the

Disciplinary Authority-Opposite Party No.4 was not satisfied

with the said explanation and appointed the Enquiry Officer as

well as the Marshalling Officer to proceed with the enquiry.

The Enquiry Officer taking into account the materials available

on record, more particularly, the evidence of P.Ws.3 & 4 while

submitting the enquiry report under Annexure-5 did not find

any illegality or irregularity as against the petitioner and by

holding that the prosecution failed to prove the charges. The

evidence of P.Ws.3 & 4 elicited during their cross-examination

are reproduced hereunder.

"The charged constable cross examined the PW-3 who stated that he detailed his duty on 05.09.2014 from 08.00 PM to 10.00 PM as in-charge of Havildar of magazine guard to perform sentry duty on the roof top of new building. He denied he had not seen him in sleeping while performing duty on 05.09.2014 at about 9.55 P.M and at that time there was rain. He was not personally seen charged constable B.K. Pani was sleeping while on his duty on 05.09.2014 at about 09.55 P.M and only on the direction of RI, PTC, Angul he was singed in the station diary. Hav. Kirtan Behera of PTC was also present there with RI, PTC at the time of writing of station diary. ON being asked by charged constable B. K. Pani that RI found him sleeping on his duty at about 09.555 P.M on

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05.09.2014 on the roof top of new building, but RI entered the fact in the station diary while SDE No-219 at 09.55 PM on the same timing. How many time to take to come the guard room from the spot, he replied minimum 5 minutes to required to come the guard room.

PW-4 Kirtan Behera, Havildar PTC, Angul deposed evidence and proved that on 05.09.2014 night he was on duty on the roof top new building at LMG post. On that night at about 09.55 P.M RI, PTC, Angul came there and cheeked their duty post and he was present at LMG post. C/58 B.K. Pani was on duty near him. There was rain in that night. C/58 B.K. Pani was sitting n a chair at his post due to his headache being informing him. At that time, RI PTC checked duty post and found in the torch light that B.K. Pani was sleeping. RI asked him to wake him up. He called B.K. Pani who immediately alerted and stood up. As per direction of RI, PTC he went to the guard room with him. RI, entered about this in the station diary of guard room vide SDE No-219, which has already marked as exhibit-V and as per direction of RI he signed on the station diary without knowing the fact entered in the station diary. He denied that he did not know the letter of letter No.955/F, Dt.08.09.2014 which has already marked as exhibit- IV.

The charged constable cross-examined the P.W.4- Kirtan Behera, who stated that on that night RI, PTC, Angul checked the duty posts twice in civil dress. At about 09.30 PM he went to outside to drink water being informed by him."

3.1. It is contended that even though during the

enquiry, the charges framed against the petitioner could not

be established with submission of the enquiry report, but the

Opposite Party No.4 as the Disciplinary authority never

issued the 1st show cause by enclosing a copy of the enquiry

report and by allowing the petitioner to submit his

representation against the said finding, as provided under

Rule 15 of the Rules. Opposite Party No.4 instead issued the

2nd show cause by proposing the order of punishment, which

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according to the learned counsel for the Petitioner is not

permissible in the eye of law. It is contended that since the

enquiry officer in his report clearly indicated that the

prosecution failed to establish the charges levelled against the

petitioner, Opposite Party no.4 even if while issuing the 2nd

show-cause notice under Annexure-6 by proposing the order

of punishment should have given his disagreement note in

terms of Rule 15 of the Rules.

3.2. Learned counsel for the petitioner vehemently

contended that without having a disengagement note

enclosed to the 2nd show-cause, opposite party no.4 could

not have proposed to impose the punishment of one black

mark with treating the suspension period as such. The

petitioner on receipt of the 2nd show cause though submitted

his reply under Annexure-7, but the Opposite Party No.4

without considering the same reply in its proper perspective

imposed the order of punishment vide order dated

05.01.2016 under Annexure-8.

3.3. The Petitioner challenging the order of

punishment, though preferred an appeal before Opposite

Party No.3, but the said authority also without proper

appreciation of the grounds taken in the appeal and the

materials available on record, confirmed the order of

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punishment by rejecting the appeal vide order under

Annexure-11.

3.4. The Petitioner thereafter though moved a revision

before opposite party no.2 but the said Revisional authority

as like the appellate authority never take into consideration

the grounds raised by the petitioner with regard to improper

action of Opposite Party no.4 in awarding the punishment

and that too without complying the provisions of Rule 15 of

the Rules. The Revisional authority also rejected the revision

vide order under Annexure-13.

3.5. Learned counsel for the Petitioner accordingly

contended that since very passing of the impugned order by

the original authority Opposite party No.4 has been made

without following the provisions contained under Rule 15 of

the Rules, the said order cannot sustain legal scrutiny and

accordingly liable for interference by this Court. Not only

that, the consequential order passed by the appellate

authority as well as by the Revisional authority in confirming

the order of punishment is also not legally sustainable.

3.6. Learned counsel appearing for the Petitioner in

support of his aforesaid stand relied on a decision of this

Court passed in OJC No.16076 of 2021 (Lingaraj Khadenga

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vs. State of Odisha & Others), reported in 2006 (II) OLR 172.

This Court in Para 6 of the said judgment held as follows:

6. Admittedly, in the case at hand, the Disciplinary Authority disagreed with the findings of the inquiry authority. But at no point of time, the petitioner was made to know about the reasons for such disagreement. He was also never asked to submit his reply to the proposed disagreement by the disciplinary authority. In other words, the disciplinary authority has taken a final decision that the charges leveled against the petitioner have been proved. The Petitioner was only asked to show cause against the punishment, not against the proposed disagreement. The Tribunal ahs lost sight of the aforesaid fact. Since the disciplinary authority did not give any opportunity of hearing to the petitioner before taking final decision in the matter relating to the disagreement, there has been violation of principle of natural justice. In our considered opinion, the ratio decided in Bagde (supra) is squarely applicable to the present case.

3.7. Learned counsel appearing for the Petitioner also

relied on another decision of the Hon'ble Apex Court in the

case of Punjab National Bank & Others Vs. Sri Kunja

Bihari Mishra passed in Civil Appeal No.7433 of 1995,

decided on 19.08.1998. Hon'ble Apex Court in the said

decision ultimately has held as follows:

"The controversy in the present case, however, relates to the case where the disciplinary authority disagrees with the findings of the inquiring authority and acts under Regulation- 7 (2). The said sub- regulation does not specifically state that when the disciplinary authority disagrees with the findings of the inquiring authority, and is required to record its own reason for such disagreement and also to record its own reason for such disagreement and also to record its own finding on such charge, it is required to give a hearing to the delinquent officer."

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3.8. Learned counsel appearing for the Petitioner also

relied on a recent decision of this Court passed in the case of

Sailendu Kumar Panda Vs. State of Orissa and Others

dated 15.03.2022 passed in W.P.C (OAC ) No.2088 of 2015.

This Court in Para 11,12 & 13 has held as follows:

11. As has already been discussed hereinbefore, the Enquiring Officer, after rendering a finding of guilt against the Petitioner proposed imposition of the punishment of stoppage of two annual increments with cumulative effect and censure. The disciplinary authority however, did not accept the recommendation of the Enquiring Officer and imposed higher penalties, namely withholding of three increments with cumulative effect and withholding promotion for next three years. In this context, Rule- 15(10(i)(b) are relevant and is quoted hereinbelow.

"(b) On receipt of the representation referred to in Sub-clause (a) the disciplinary authority having regard to the findings on the charges, is of the opinion that any of the penalties specified in Clauses (vi) to

(ix) of Rule 13 should be imposed, he shall furnish to the delinquent Government servant a statement of its findings along with brief reasons for disagreement, if any, with the findings of the Enquiring officer and give him a notice by Registered post or otherwise stating the penalty proposed to be imposed on him and calling upon him to submit within a specified time such representation as he may wish to make against the proposed penalty:

Provided that in every case in which it is necessary to consult the Commission under the provision of the Constitution of India and the Odisha Public Service Commission (Limitation of Functions) Regulation, 1989 the record of Inquiry together with a copy of the notice given under Sub-clause (a) and the representation if any, received within the specified time in response to such notice shall be forwarded by the disciplinary authority to the Commission for its advice.

Admittedly, the penalty of withholding of three increments with cumulative effect is a major penalty.

It was therefore, incumbent upon the disciplinary authority to cite specific reasons for disagreeing with the recommendations of the Enquiring Officer with regard to the punishment to be inflicted. In the instant case, it is simply Officer with regard to the

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punishment to be inflicted. In the instant case, it is simply stated by the disciplinary authority that considering the serious matter of misconduct, the competent authority disagreed with the penalty suggested by the I.O as it is too lenient.

12. It goes without saying that the penalty imposed on a Government servant must be commensurate to the charges proved against him and therefore, it is the bounden duty of the disciplinary authority to examine such aspect and indicate specifically as to why it is deemed proper to differ from penalty proposed by the Enquiring Officer. Simply by stating that the misconduct is serious or that the penalty suggested is too lenient cannot satisfy the requirement of the Rule quoted hereinbefore. Even otherwise, it is the settled principle of law that recording of reasons by the concerned authority would enable the Court to examine as to what had weighed upon its mind while passing the order in question and so decide whether the same is correct or not.

The obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with judicial power. The above view was taken by the apex Court in the case of Travancore Rayons Ltd. Vs. The Union of India, reported in MANU/SC/0280/1969: AIR 1974 SC 862

Further, in S.N. Mukherjee vs. Union of India reported in MANU/SC/0346/19901990)4 SCC 549, the apex Court held that the requirement to record reasons can be regarded as one of the principles of natural justice, which governs exercise of power by administrative authorities.

Both the cases as above have also been relied upon by this Court in the case of Narottam Pati (supra) relied upon by the petitioner involving somewhat similar facts as the present case.

13. For the forgoing reasons therefore, this Court is persuaded to hold that the disciplinary proceeding initiated against the petitioner, culminating in a finding of guilt having been conducted in gross violation of the principles of natural justice, as enshrined under Rule 15(3) of the OCS (CCA) Rules, 1962 stands vitiated. Further, the impugned order imposing penalty by the disciplinary authority being devoid of reasons is also rendered unsustainable in the eye of law. Consequently, the impugned order under Annexure-12 is hereby quashed."

// 12 //

4. Mr. D.K. Mohanty, learned Additional Standing

Counsel appearing for the State-Opposite Parties on the other

hand made his submission basing on the stand taken in the

counter affidavit.

It is contended that while issuing the second show

cause, the Opposite Party no.4 has clearly stated the reason

of his disagreement with the finding of the enquiry officer and

since the petitioner was permitted to give his explanation and

after consideration of the same, the order of punishment was

passed under Annexure-8, no illegality or irregularity can be

found with the said order. It is also contended that during

enquiry, the charges against the petitioner were clearly

proved through the prosecution witnesses and the appellate

authority as well as the revisional authority after due perusal

of the materials placed before them held the order of

punishment passed under Annexure-8 as just and proper

while dismissing the appeal as well as the Revision.

5. I have heard Mr. D.P. Panigrahy, learned counsel

appearing for the Petitioner and Mr. D.K. Mohanty, learned

Additional Standing Counsel appearing for the State-Opposite

Parties. On the consent of the learned counsel appearing

for the parties, the matter is taken up for final disposal at the

stage of admission.

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6. Having heard learned counsel for the parties and

taking into account, the materials available on record, this

Court finds that the enquiry officer in his report

under Annexure-5 clearly held that the prosecution

failed to prove the charges against the Petitioner

Therefore, as provided under Rule 15(10)(i)(a) of the Rules,

the disciplinary authority-Opp. Party no.4 on receipt of the

said enquiry report should have communicated the enquiry

report to the petitioner calling upon him to submit his

representative against the finding of the enquiry authority.

Admittedly, in the present case, the same has not been

followed by Opposite Party No.4. Not only that, since the

Enquiry Officer in his report clearly held that the prosecution

has failed to prove the charges, therefore, even while issuing

the second show-cause as provided under Rule 15 (10)(b), the

Opposite Party no.4 while proposing the punishment against

the petitioner, should have given his brief reasons of

disagreement with the finding of the Enquiry Officer. This

Court finds from Annexure-6 that there is no disagreement

note enclosed to the 2nd show-cause. Therefore, in the

present case, the provision contained under Rule-15(10)(b)

has also not been followed. This Court further finds that the

charge against the petitioner is very specific i.e. the petitioner

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while in duty in the new building Sentric Post No.1 (roof top),

he was sleeping in a plastic chair at about 9.55 P.M. on

05.09.2014 during checking of Magazine Guard by the Night

Magazine Security Officer, (RI PTC), Angul. The said charge

could not be proved against the petitioner through the

examination of the P.Ws. The evidence laid by P.Ws.3 & 4 in

their cross-examination clearly shows that the prosecution

allegation against the petitioner could not be proved through

these witnesses. Taking that thing into account, the enquiry

officer held that the prosecution could not establish the

charges against the petitioner. But the disciplinary authority

without disagreeing with the finding of the Enquiry Officer

and without issuing the 1st show cause, imposed the

punishment vide the impugned order.

7. Therefore, in view of the non-compliance of the

statutory provision contained under Rule 15 and the

decisions relied on by the learned counsel for the Petitioner,

this Court is of the view that the order of punishment has

been passed not only in violation of the provision contained

under Rule 15 of the Rules but also in violation of the

principle of natural justice. Hence, this Court is inclined to

quash the order of punishment passed against the petitioner

under Annexure-8 as well as the order passed by the

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appellate authority under Annexure-11 and by the Revisional

authority under Annexure-13.

8. The Writ Petition is accordingly allowed. However,

there shall be no order as to costs.

(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 3rd January, 2023/sangita