Orissa High Court
Binay Kumar Singh vs Union Of India & Others on 24 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
WA No.185 of 2020
Binay Kumar Singh .... Appellant
Mr. Somadarshan Mohanty, Advocate
-versus-
Union of India & Others .... Respondents
Mr.P.K. Parhi, DSGI with
Ms. Babita Sahoo, CGC
CORAM:
THE CHIEF JUSTICE
JUSTICE M.S. RAMAN
ORDER
Order No. 24.01.2023
M. S. Raman, J.
03. 1. Challenging the order dated 3rd February, 2020 passed by the
learned Single Judge in W.P.(C) No. 14919 of 2006, the Appellant
filed this intra-court appeal invoking Article-4 of Orissa High Court
Order, 1948 read with Clause-10 of the Letter Patent and Chapter
VIII of the Odisha High Court Rules, 1948.
2. Fact as pleaded in the writ petition reveals that the Petitioner,
constable in Central Industrial Security Force (CISF), assailed the
order of punishment awarded in the disciplinary proceeding initiated
under Rule 34 of the Central Industrial Security Force, Rules 1969.
The case of the Petitioner is that while the Petitioner was on election
duty and absent from headquarters, the wife of the Petitioner had
taken ill for which the Unit Commandant being approached by his
brother-in-law on 15th February, 2000, a jeep was provided. It is
alleged by the Petitioner that the wife of the Assistant Commandant
stopped the jeep while the wife of the Petitioner was carried for
treatment to a hospital and misbehaved by using intolerable words.
After returning from election duty, the Petitioner came to know
about the incident and he made a representation to the Inspector
General on 28th February, 2000.
While the matter stood thus, a memorandum of charge
dated 3rd June, 2000 was served on the Petitioner alleging
misconduct on the ground that the petitioner abused his senior
officer-Assistant Commandant. After receipt of reply dated 16th
June, 2000 of the Petitioner, enquiry was conducted and disciplinary
proceeding for misconduct and insubordination was initiated. Said
Disciplinary Proceeding culminated in passing of order of
punishment of dismissal from service.
2.1. Appeal filed against the said order of punishment dated 31st
March, 2001 resulted in confirmation of award of punishment vide
order dated 9th December 2005.
3. At the behest of the Petitioner, the matter was carried before the
Inspector General, CISF Eastern Zone, Patna in revision case. The
said revisional authority vide order dated 4th May, 2006 while
rejecting the revision as devoid of merits observed as follows:
"03. The petitioner acknowledged the charge memo on
7.6.2000 denying the charges framed against him.
Accordingly the Disciplinary authority appointed Shri II
Toppo Inspector as an Inquiry Officer. The petitioner
represented for change of enquiry officer on the ground to
appoint enquiry officer from other Unit. The request of the
petitioner was considered by the disciplinary authority and
rejected being devoid for merit and the petitioner was
informed to attend the enquiry and co-operate with the
proceedings of enquiry. Thereafter the petitioner attended the
proceedings of enquiry and accepted the same enquiry officer
to continue with the enquiry. The Enquiry Officer conducted
the DE as per the laid down procedure and submitted his
enquiry report proving the charges to the disciplinary
authority. Being agreed with the enquiry report, the
disciplinary authority sent a copy of enquiry report to the
petitioner giving him opportunity to submit his representation
against enquiry report, if any. The petitioner was granted
maximum opportunity to submit his representation but he
adopted dilatory tactis and ultimately did not submit his
representation on the pretext that he had filed a writ petition
in Orissa High Court and requested to allow him to submit
his representation after the disposal of the writ petition. Since
no stay or any interim direction was passed by the Hon'ble
court the disciplinary authority finally concluded the
proceedings. The Disciplinary authority duly considered the
statement of witness and documentary evidence as well as the
representation of the petitioner, awarded the penalty of
Dismissal from service."
4. While passing the order in revision, the Inspector General has
dealt with each and every point raised by the Petitioner and
confirmed the finding of fact that the Petitioner has abused and
threatened the Assistant Commandant in presence of others and the
material witnesses have been examined by the enquiry officer. The
Inspector General while stating that the Petitioner was afforded
reasonable opportunity to defend his case came to the following
conclusion:
"The proceedings of enquiry has been conducted as per rule
and there is no legal infirmity. The charges framed against
the petitioner have been established in a duly constituted
enquiry and the punishment awarded to the petitioner is
commensurating to the gravity of offence committed by him
and meet the end of justice. I find no justifiable ground to
interfere in the order passed by the disciplinary authority and
upheld by the appellate authority. The revision petition is
hereby rejected being devoid of merit."
5. In the counter affidavit, the Opposite Parties has stated that the
Petitioner, constable, on 16th February, 2000 along with CISF
personnel while returning to Lafripada Police Station at about 6.30
P.M. and crossing Unit Quarter Guard used 'un-parliamentary and
abusive language' against his Unit Commander. During course of
departmental enquiry, the enquiry officer had recorded statements of
as many as seven witnesses and one court witness in presence of the
Petitioner and the Petitioner was given opportunity to cross-examine.
In the counter affidavit it has been made clear that the Petitioner was
supplied with copies of listed documents with charge memorandum
which were duly acknowledged by the Petitioner.
6. Learned Single Judge after considering rival contention passed
the following order on 3rd February, 2000:-
"Considering the rival contentions of the parties and taking
into account the allegation and counter at the instance of both
the parties, this Court on perusal of the inquiry report on the
discussions on the evidence laid by both the parties finds the
prosecution could be able to satisfy its case to bring home the
charges through several witnesses apparent from the
discussions in the inquiry report from page 37 to page 40.
Perusal of the prosecution evidence, this Court finds that
most of the witnesses have supported the case of of the
confirmed allegation involving the charges through their
evidence. Whereas looking to the defence witness, this Court
nowhere finds even any single witness has come forward to
say that the incident involving the petitioner on his abuse and
use of unparliamentary language against the Assistant
Commandant at the time of incident has not taken place. For
clear evidence in favour of the prosecution, this Court finds
there has been establishment of charges leveled by the
Department. Further, for the evidence through the
prosecution and the material available to support the case of
the Department, this Court finds no scope for interfering in
such aspect. Further, the Disciplinary Authority finding since
based on the clear material available on record, this Court
finds, there is no scope for interfering in such aspect. Taking
into account the settled position of law in the case of
M.H.Devendrappa v. Karnataka State Small Industries
Development Corporation, (1998) Supreme Court Cases, 723
this Court observes that misbehaviour at the instance of the
junior employee inasmuch as scolding to the senior officer in
unparliamentary language and threatening to the senior
officer amounts to major misconduct. Coming to the scope of
interference of this Court in such matters in the Disciplinary
Proceeding, this Court takes into account the decision of the
Hon'ble Apex Court in the case of State of Uttar Pradesh
and another v. Man Mohan Nth Sinha and another, (2009)
8 Supreme Court cases 310 where the Hon'ble Apex Court in
clear terms held that the writ court cannot sit as appellate
authority involving such disputes. Consequently, the writ
petition stands dismissed."
7. Mr. Somadarshan Mohanty, learned counsel for the Appellant
submitted that the enquiry proceeding is vitiated on account of
violation of principles of natural justice. There was no material to
establish the charges levelled against him as false allegations have
been made against him by the Assistant Commandant. It is submitted
that there is no corroboration of the fact that the Appellant had used
unparliamentary language against Assistant Commandant.
8. On perusal of record, it is transpired that the punishment awarded
in the disciplinary proceeding was challenged before the appellate
authority. The appellate authority having considered the grounds
passed elaborate order confirming the finds of disciplinary authority.
The Appellant being dissatisfied had approached the revisional
authority, namely, Inspector General. After discussing the material
on record, the said revisional authority was satisfied that the enquiry
was conducted in consonance with procedure laid down in relevant
rules and the charges framed against the Petitioner were established
in duly constituted enquiry. The learned Single Judge having
considered the material on record rightly, thus, held that the Writ
Court cannot sit as Appellate Court.
8.1. This Court in Anindita Mohanty vs. The Senior Regional
Manager, HP Co. Ltd., 2020 (II) ILR Cuttack 398 has held as
follows:-
"Let us first examine the power of the Division Bench while
entertaining a Letters Patent appeal against the judgment/order
of the Single Judge. This writ appeal has been nomenclatured as
an application under Article 4 of the Orissa High Court Order,
1948 read with clause 10 of the Letters Patent Act, 1992. Letters
Patent of the Patna High Court has been made applicable to this
Court by virtue of Orissa High Court Order, 1948. Letters Patent
Appeal is an intra Court appeal where under the Letters Patent
Bench, sitting as a Court of Correction, corrects its own orders
in exercise of the same jurisdiction as vested in the Single
Bench. (Ref: (1996) 3 Supreme Court Cases 52, Baddula
Lakshmaiah -Vrs.- Shri Anjaneya Swami Temple). The
Division Bench in Letters Patent Appeal should not disturb the
finding of fact arrived at by the learned Single Judge of the
Court unless it is shown to be based on no evidence, perverse,
palpably unreasonable or inconsistent with any particular
position in law. This scope of interference is within a narrow
compass. Appellate jurisdiction under Letters Patent is really a
corrective jurisdiction and it is used rarely only to correct errors,
if any made."
8.2. Since the Disciplinary Authority, Appellate Authority and
Revisional Authority as matter of fact have come to the conclusion
that the Appellant had misbehaved and used abusive language
against his Senior Officer, such conduct fell clearly within the
connotation of 'misconduct'. The learned Single Judge while sitting
in the writ jurisdiction rightly refused to interfere with the concurrent
finding of fact.
9. In view of the aforesaid observations, this Court does not find any
reason to interfere with the decision taken by the learned Single
Judge vide Order dated 3rd February, 2020 while disposing of
W.P.(C) No. 14919 of 2006.
10. In the result, the writ appeal is dismissed.
(Dr. S. Muralidhar) (M. S. Raman)
Chief Justice Judge
Aks
