Orissa High Court
Afr vs Regional Chief Conservator on 2 May, 2023
ORISSA HIGH COURT: CUTTACK
W.P(C) NO. 5291 OF 2019
In the matter of an application under Articles 226 and
227 of the Constitution of India.
---------------
AFR
Rabindra Kumar Nayak ..... Petitioner
-Versus-
Regional Chief Conservator
of Forests, Bhubaneswar
Circle, Bhubaneswar & Anr. ..... Opp. Parties
For petitioner : M/s. R.K. Patnaik, T.K.Dwibedy,
B. Jalli, B.B. Acharya and U.K.
Patnaik, Advocates
For opp. parties : Mr. A.K. Mishra,
Addl. Govt. Advocate
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
AND
THE HONOURABLE MR JUSTICE M.S. RAMAN
Date of hearing : 25.04.2023 :: Date of Judgment: 02.05.2023
DR. B.R. SARANGI,J. The petitioner, by means of this writ
petition, seeks to quash the order dated 03.10.2018
passed in O.A. No.534(C) of 2011, by which the State
Administrative Tribunal, Cuttack Bench, Cuttack, while
dismissing the Original Application, has confirmed the
order of punishment imposed by the disciplinary
authority and upheld by the appellate authority; and
further seeks direction to the opposite parties to extend
three annual increments without cumulative effect and
treat the suspension period from 27.06.2007 to
02.01.2008 as on duty with payment of duty pay and
all other financial benefits.
2. The factual matrix of the case, in brief, is
that the petitioner, while serving as Forester, Kusanga
Section of Kusanga Wildlife Range under Divisional
Forest Officer (DFO), Mahanadi Wildlife Division,
Nayagarh, was placed under suspension, vide office
order dated 27.06.2007 issued by the Divisional Forest
Officer, Mahanadi Wildlife Division contemplating
disciplinary proceeding. He was served with statement
of article of charges and statement of imputation in
support of the article of charges together with the list of
documents, by which the article of charges are
proposed to be sustained. The statement of imputation
in support of the article of charges framed against the
petitioner runs as follows:-
"CHARGE NO-I: Suppression of facts and
connivance with smugglers.
CHARGE NO-II: Causing pecuniary loss to State
Exchequer.
CHARGE NO-III: Involvement in smuggling of
minor Forest produces from the
Sanctuary.
CHARGE NO-IV: Disobedience of instructions of
higher authorities and non-
cooperation with Divisional
Mobile Unit.
CHARGE NO-V: Commission of criminal offence
and giving false information."
He was called upon to file written statement of defence
within ten days and, accordingly, he submitted the
same on 28.11.2007. Thereafter, vide office order dated
01.01.2008, he was reinstated in service and was
posted as Forester, Special in Banigochha East Wildlife
Range with headquarters at Kuanaria with immediate
effect. Vide office order dated 05.01.2008, the DFO,
Mahanadi Wildlife Division himself made an inquiry
under Rule-15 of OCS (CCA) Rules, 1962 and in
exercise of powers conferred by Sub-rule (5) of Rule-15
of the said Rules, appointed Sribatsa Dash, Junior
Clerk as the Presenting Officer. The DFO, Mahanadi
Wildlife Division, Nayagarh issued a show-cause notice
on the departmental proceeding drawn up against the
petitioner, vide office order dated 23.10.2007. The
Inquiry Officer submitted his report with the following
findings:-
"1. Charge No.1 i.e. connivance with smugglers
was not proved but the suppression of facts
is provide beyond doubt.
2. Causing pecuniary loss to Govt. is provided
beyond doubt.
3. Involvement in smuggling of minor Forest
produces from the Sanctuary is not proved.
4. Disobedience of instructions of higher
authorities and non-cooperation with
Divisional Mobile Unit is partially proved.
5. Commission of criminal offence and giving
false information is proved beyond doubt."
Accordingly, he recommended the following
punishments:-
"1. His three annual increments may be stopped
with cumulative effect.
2. His suspension period may be treated as
such.
3. The loss sustained by the Govt. i.e.
Rs.4,400/- may be recovered from Sri
Rabindra Kumar Nayak, Forester.
4. He may be warned for the future."
Consequentially, agreeing with the findings and
recommendation of the Inquiry Officer, the Divisional
Forest Officer, Mahanadi Wildlife Division, Nayagarh
proposed to award the following punishment on the
petitioner:-
"1. His three annual increments are to be
stopped with cumulative effect.
2. His suspension period i.e. from 27.06.2007
to 02.01.2008 treated as such.
3. The loss sustained by the Govt. ie.
Rs.4,400/- is to be recovered from Sri
Rabindra Kumar Nayak, Forester.
4. He is to be warned for the future."
2.1 Against the said order of imposition of
penalty, the petitioner preferred appeal before the
Conservator of Forests-cum-Appellate Authority, who,
vide order dated 17.01.2011, confirmed the order of
punishment imposed by the disciplinary authority.
Against the said order, the petitioner approached the
Odisha Administrative Tribunal, Cuttack Bench,
Cuttack by filing O.A. No.534(C) of 2011 and the
Tribunal, vide order dated 03.10.2018, confirmed the
order of punishment imposed by the disciplinary
authority as well as the appellate authority. Hence, this
writ petition.
3. Mr. R.K. Patnaik, learned counsel appearing
for the petitioner vehemently contended that the DFO,
Mahanadi Wildlife Division, Nayagarh, being the
disciplinary authority, himself conducted enquiry and
appointed one Sribatsa Dash, Junior Clerk, as the
Presenting Officer. Thereby, he is the prosecutor as well
as the Inquiring Officer and has become the Judge of
his own cause. As such, the enquiry conducted by the
DFO, Mahanadi Wildlife Division, Nayagarh is illegal. It
is further contended that after enquiry, the enquiry
report was given to the petitioner and he was asked to
file show-cause. Accordingly, he filed his reply to the
show-cause on 08.04.2009 and, thereafter, the
punishment was imposed by the disciplinary authority,
i.e., DFO, Mahanadi Wildlife Division, Nayagarh, vide
order dated 01.05.2009. It is contended that the DFO,
Mahanadi Wildlife Division, Nayagarh, being the
disciplinary authority, conducted enquiry and imposed
penalty. Thereby, any action taken by the DFO,
Mahanadi Wildlife Division, Nayagarh is hit by the
principle of the Judge of his own cause. As a result, the
order so passed by the disciplinary authority cannot be
sustained in the eye of law and the same is liable to be
quashed. To substantiate his contentions, he has relied
upon the judgments of the apex Court in the cases of
State of Uttaranchal v. Kharak Singh, (2008) 8 SCC
236; Mohd. Yunus Khan v. State of Uttar Pradesh,
(2010) 10 SCC 539; and Ejaz Alam Siddique v.
Presiding Officer, Industrial Tribunal, 2015(II) ILR-
CUT-494.
4. Mr. A.K. Mishra, learned Addl. Government
Advocate appearing for the opposite parties vehemently
disputed the contentions raised by learned counsel
appearing for the petitioner and contended that the
emphasis laid by the learned counsel for the petitioner,
that the disciplinary authority at no point of time can
become an Inquiry Officer-cum-Punishing Authority in
a particular departmental proceeding for the ends of law
and fair play of justice, as because no person shall
become Judge of his own cause, is completely
unfounded and incorrect. He, thus, contended that the
entire process including the action taken by the
disciplinary authority is well within the ambit of law
and in consonance with Rule-15 of the OCS (CCA)
Rules, 1962 as well as the principles of natural justice
and fair play. It is further contended that, vide order
dated 05.01.2008 under Annexure-6, a Presenting
Officer was appointed by the DFO, Mahanadi Wildlife
Division, Nayagarh in exercise of powers conferred
under Rule-15(5) of the OCS (CCA) Rules, 1962 in order
to present the case/charges on behalf of the Mahanadi
Wildlife Division Nayagarh. In view of such provision,
the disciplinary authority may nominate any person to
present the case in support of the charges before the
authority inquiring into the charges and after
considering such documentary and oral evidence, as is
relevant or material in regard to the charges, as per
Rule-15(6) prepared a report of inquiry, recording its
findings on each of the charges together with reasons
thereof upon conclusion of the enquiry under Rule 15(7)
of the Rules. Opposite party no.2-DFO, Mahanadi
Wildlife Division, Nayagarh, being the disciplinary
authority, is thus competent and empowered to enquire
into the charges framed against the petitioner and there
is no infirmity or violation of the provisions of law as
such. He laid emphasis that DFO, Mahanadi Wildlife
Division, Nayagarh, the disciplinary authority, had
framed the charges against the petitioner on the basis
of the reports of the ACF, Mahanadi Wildlife Division,
Nayagarh dated 27.07.2007, the Range Officer,
Kusanga Wildlife Range dated 25.06.2007 and the
Range Officer Mobile Unit, Mahanadi Wildlife Division
dated 12.06.2007. Therefore, on the basis of the report
of ACF, Mahanadi Wildlife Division dated 27.07.2007,
the proceeding/enquiry was conducted by the DFO,
Mahanadi Wildlife Division, Nayagarh by recording the
statements of some of the witnesses, along with the
petitioner, and the petitioner was granted sufficient
opportunity to cross-examine the witnesses. The
allegations having been established against the
petitioner, punishment was imposed against him, which
is within the domain of the disciplinary authority.
Consequentially, no illegality or irregularity has been
committed by the disciplinary authority by imposing
such penalty. Thereby, dismissal of the writ petition is
sought for. To substantiate his contentions, he has
relied upon Union of India v. P. Gunasekaran, (2015)
2 SCC 610.
5. This Court heard Mr. R.K. Patnaik, learned
counsel appearing for the petitioner and Mr. A.K.
Mishra, learned Addl. Government Advocate appearing
for the opposite parties in hybrid mode. Pleadings have
been exchanged between the parties and with the
consent of learned counsel for the parties, the writ
petition is being disposed of finally at the stage of
admission.
6. Before delving into the merits of the case, it is
of relevance to refer to the rules governing the field for
just and proper adjudication of the case. In exercise of
powers conferred by the proviso to Article 309 of the
Constitution of India, the Governor of Odisha framed
the Odisha Civil Services (Classification, Control &
Appeal) Rules, 1962 (hereinafter referred to as "OCS
(CCA) Rules, 1962"). Rules 2(c), 15(4) and 15(5), being
relevant for the purpose of the case, are extracted
hereunder:-
"Rule-2(c). Disciplinary authority", in relation
to the imposition of a penalty on a Government
servant means the authority competent under
these rules to impose on him that penalty."
xxx xxx xxx
"15(4) On receipt of the written statement of
defence or if no such statement is received
within the time specified the disciplinary
authority may itself enquire into such of the
charges as are not admitted or, if it considers
it necessary so to do, appoint a board of
inquiry or an enquiring officer for the purpose.
Provided that if, after considering the
written statement of defence, the disciplinary
authority is of the view that the facts of the
case do not justify the award of a major
penalty, it shall determine after recording
reasons thereof what other penalty or
penalties, if any, as specified in Clauses (i) to
(v) of Rule 13 should be imposed and shall
after consulting the Commission, where such
consultation is necessary, pass appropriate
order.
15(5) The disciplinary authority may nominate
any person to present the case in support of
the charges before the authority inquiring into
the charges (hereinafter referred to as the
'inquiring authority'). The Government servant
shall have the right to engage a legal
practitioner to present his case if the person
nominated by the disciplinary authority, as
aforesaid, is a legal practitioner. The inquiring
authority may also having regard to the
circumstances of the case, permit the
Government servant to be represented by a
legal practitioner."
The OCS (CCA) Rules, 1962, having been framed by the
proviso to Article 309 of the Constitution of India, is
legislative in character. The powers of the Governor
under the proviso to Article 309 are the constitutional
powers and legislative in character subject to act of
legislation.
7. In B.S. Vadera v. Union of India, AIR 1969
SC 118, the apex Court in paragraph-24 of the said
judgment held that it is also significant to note that the
proviso to Article 309, clearly lays down that 'any rules
so made shall have effect, subject to the provisions of
any such Act'. The clear and unambiguous expressions,
used in the Constitution must be given their full and
unrestricted meaning unless hedged-in, by any
limitations. The rules, which have to be 'subject to the
provisions of the Constitution', shall have effect, subject
to the provisions of any such Act'.
8. In Bhakta Rame Gowda v. State of
Karnataka, AIR 1997 SC 1038, the apex Court,
referring to its earlier Constitution Bench judgment in
B.S. Vadera v. Union of India, AIR 1969 SC 118, held
that rules made under the proviso to Article 309 of the
Constitution are legislative in character. The same
principle has been reiterated in several judgments of
the apex Court.
9. In view of the law laid down by the apex
Court, as mentioned above, the OCS (CCA) Rules, 1962,
having been framed under the proviso to Article 309 of
the Constitution of India, is legislative in character
subject to limitation, as mentioned above. On perusal of
the provision contained in Rule-15(4) of the OCS (CCA)
Rules, 1962, it is made clear that the disciplinary
authority may itself enquire into such of the charges as
are not admitted or, if it considers it necessary so to do,
appoint a board of inquiry or an Inquiring Officer for the
purpose. In view of such power provided under Rule-
15(4) of the OCS (CCA) Rules, 1962, the disciplinary
authority can conduct the enquiry itself or may appoint
a board of inquiry or an Inquiring Officer, if he
considers it necessary to do so.
10. It is well settled law in Nelson Motis v.
Union of India, AIR 1992 SC 1981 that if the words of
a statute are clear and free from any vagueness and
are, therefore, reasonably susceptible to only one
meaning, it must be construed by giving effect to that
meaning, irrespective of consequences.
Similar view has also been taken by the apex
Court in State of Maharashtra v. Nanded-Parbhani
Z.L.B.M Operator Sangh, AIR 2000 SC 725.
11. On the face of the above settled position of
law, there is no ambiguity in the provisions contained
under Rule-15(4) of the OCS (CCA) Rules, 1962.
Therefore, the disciplinary authority may himself
enquire into such of the charges being an Inquiring
Officer and being disciplinary authority can also impose
punishment and to assist the Inquiry Officer under
Sub-rule (5) of Rule-15 of the OCS (CCA) Rules, 1962,
the disciplinary authority may nominate any person to
present the case in support of the charges before the
authority inquiring into the charges. Therefore, it is well
within the domain of the DFO, Mahanadi Wildlife
Division, Nayagarh, who can himself conduct the
inquiry and also can impose punishment as a
disciplinary authority.
12. Much reliance has been placed on Kharak
Singh (supra) by the learned counsel for the petitioner,
wherein the Divisional Forest Officer acting as Inquiry
Officer himself inspected the area where there was illicit
felling, put certain questions to the respondent and
after securing answers, submitted a report of enquiry.
Neither was any presenting officer nor any prosecution
witness examined. In that context, the apex Court in
the said case held that the Inquiry Officer acted as
investigator, prosecutor and also judge. Such a
procedure is opposed to the principles of natural justice
and the same was frowned upon by the Supreme Court.
Factually, the case in hand is absolutely
distinguishable from the cited case, in view of the fact
that on the basis of the report of the Assistant
Conservator of Forests, Mahanadi Wildlife Division,
Nayagarh, the DFO, being the disciplinary authority,
pending contemplation of disciplinary proceeding,
placed the petitioner on suspension and served with
memorandum of charges calling upon the petitioner to
file written statement and on consideration of the same
examined the witnesses and documents available on
record by appointing presenting officer under Rule-15(5)
of the OCS (CCA) Rules, 1962, caused enquiry and,
thereafter, imposed penalty being disciplinary authority
and, as such, there is no bar under Rule-15(4) for the
DFO, Mahanadi Wildlife Division, Nayagarh to continue
as Inquiry Officer and also the disciplinary authority.
Thereby, the ratio decided in Kharak Singh (supra)
has no application to the present case and the same is
distinguishable.
13. In Md. Yunus Khan (supra), the apex Court
held that the authority initiating disciplinary
proceedings, becoming a witness thereto, accepting
enquiry report and imposing punishment is
impermissible and no person can be a judge in his own
cause and no witness can certify that his own testimony
is true. Thereby, the procedure adopted there, was in
flagrant violation of natural justice and consequentially
stood vitiated.
Factually, the present case is absolutely
distinguishable from Md. Yunus Khan (supra). At no
point of time, in the case at hand, the disciplinary
authority has acted as a witness accepting enquiry
report and imposing punishment on the delinquent-
petitioner, rather the DFO, Mahanadi Wildlife Division,
Nayagarh has acted in conformity with the provisions
contained under the OCS (CCA) Rules, 1962 and,
consequentially, the plea advanced by the learned
counsel for the petitioner to that effect is not
acceptable.
14. In Ejaz Alam Siddique (supra), learned
Single Judge of this Court held that disciplinary
authority himself was a witness in the proceeding and
he has no competence to appoint the Inquiry Officer
and acted as disciplinary authority. The ratio decided in
that case is not applicable to the present case and it is
akin to Md. Yunus Khan (supra). Thereby, the
judgments of the apex Court and this Court relied upon
by the learned counsel appearing for the petitioner are
of no assistance to him.
15. In P. Gunasekaran (supra), the apex Court
in paragraphs-12 and 13 laid down the principle with
regard to scope of interference in a service matter and
when interference with disciplinary proceedings is
permissible. The said paragraphs-12 and 13 are
extracted hereunder:-
"12. Despite the well-settled position, it is
painfully disturbing to note that the High
Court acted as an appellate authority in the
disciplinary proceedings, reappreciating even
the evidence before the enquiry officer. The
finding on Charge I was accepted by the
disciplinary authority and was also endorsed
by the Central Administrative Tribunal. In
disciplinary proceedings, the High Court is not
and cannot act as a second court of first
appeal. The High Court, in exercise of its
powers under Articles 226/227 of the
Constitution of India, shall not venture into
reappreciation of the evidence.
The High Court can only see whether:
(a) the enquiry is held by a competent
authority;
(b) the enquiry is held according to the
procedure prescribed in that behalf;
(c) there is violation of the principles of
natural justice in conducting the
proceedings;
(d) the authorities have disabled
themselves from reaching a fair conclusion
by some considerations extraneous to the
evidence and merits of the case;
(e) the authorities have allowed themselves
to be influenced by irrelevant or
extraneous considerations;
(f) the conclusion, on the very face of it, is
so wholly arbitrary and capricious that no
reasonable person could ever have arrived
at such conclusion;
(g) the disciplinary authority has
erroneously failed to admit the admissible
and material evidence;
(h) the disciplinary authority had
erroneously admitted inadmissible
evidence which influenced the finding;
(i) the finding of fact is based on no
evidence.
13. Under Articles 226/227 of the Constitution
of India, the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusion in the
enquiry, in case the same has been
conducted in accordance with law;
(iii) go into the adequacy of the evidence:
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence
on which findings can be based.
(vi)correct the error of fact however grave it
may appear to be;
(vii)go into the proportionality of
punishment unless it shocks its
conscience."
16. Taking into consideration the aforementioned
principles laid down by the apex Court and applying the
same to the present case, since the DFO, Mahanadi
Wildlife Division, Nayagarh, being the disciplinary
authority, has acted as an Enquiry Officer as per Rule-
15(4) of OCS (CCA) Rules, 1962 and imposed
punishment, thereby, he has acted within the
parameters of the provisions of law by affording
opportunity of hearing to the petitioner. As a
consequence thereof, this Court does not find any error
in the order impugned so as to cause interference of
this Court.
17. In the result, therefore, the writ petition
merits no consideration and the same is hereby
dismissed, but, however, there shall be no order as to
costs.
(DR. B.R. SARANGI)
JUDGE
M.S. RAMAN, J. I agree.
(M.S. RAMAN)
JUDGE
The 2nd May, 2023, Alok
Orissa High Court, Cuttack
Digitally signed by
ALOK RANJAN ALOK RANJAN SETHY
SETHY Date: 2023.05.02
16:57:27 +05'30'
