Orissa High Court
Pramod Kumar Adhikari vs Union Of India And Others ..... Opposite on 7 January, 2025
IN THE HIGH
IGH C
COURT OF ORISSA AT CUTTACK
CK
W
W.P.(C) No.4013 of 2021
(T
(Through Hybrid Mode)
Pramod Kumar Adhikari ..... Petitioner
-versus-
Union of India and others ..... Opposite
Oppo Parties
Advocates appea
appeared in this case:
For Petitioner : Mr. S. K. Ojha, Advocate
For Opp. Parties
arties : Mr. Goutam Kumar Acharya,
arya,
Senior Advocate
CORAM:
THE HON'BL
ON'BLE MR. JUSTICE ARINDAM SINHA
INHA
AND
THE HON'B
ON'BLE MR. JUSTICE M.S.SAHOO
JUDGMENT
-------------------------
-----------------------------------------------------------------------
-----------------------
hearing: 26th November, 2024 and 7th January,
Dates of heari Janua 2025
D
Date of Judgment: 7th January, 2025
-------------------------
-----------------------------------------------------------------------
-----------------------
ARINDAM SIN
SINHA, J.
1. The writ pe
petition stands specially assigned.
2. Mr. Ojha,
Ojha learned advocate appears on behalf
alf of petitioner
and submits,
ts, under
un challenge is order dated 18th January,
Janu 2021
made by the Central
Ce Administrative Tribunal (CAT),, perversely
holding there
re is nno scope, necessity or justification to interfere
inte with
order dated 16th January, 2015 issued by the Disciplinary
linary Authority
(DA) uponn invo
invoking clause (ii) under rule 19 in Central
Cen Civil
Services (Classif
Classification, Control and Appeal) Rules,
ules, 1965.
1 The
clause is reprodu
produced below.
"19. Special
Spec Procedure in certain cases
Notw
Notwithstanding anything contained in Rule
Rul 14 to
Rule 18-
(i) ... ... ...
(ii) Where the Disciplinary Authority is satisfied
satis for
reasons to be recorded by it in writing
ng that
t it is
not reasonably practicable to hold ann inquiry
in in
the manner provided in these rules, or ... ...
the Discipl
sciplinary Authority may consider the circum
rcumstances
of the case and make such orders thereon as it deem
deems fit:
Provided
ed ... ..."
nection clause (b) under 2nd proviso, article
In this connection le 311 (2) in the
Constitutionn of In
India is also reproduced below.
"311. Dismissal,
Dis removal or reduction in rank
ra of
personss em
employed in civil capacities under thee Union
Un or
a State-
(1) ... ... ...
(2) No ssuch person as aforesaid shall be dismis
ismissed or
remo
removed or reduced in rank except after an iinquiry
in w
which he has been informed of thee ccharges
agai him and given a reasonable opportu
against ortunity of
bein heard in respect of those charges:
being
Prov
Provided ... ... ...
Prov
Provided further that this clause shall nott apply-
app
(a) ... ... ...
(b) w
where the authority empowered to dism
dismiss or
remo
remove a person or to reduce him in rrank is
satis
satisfied that for some reason, to be record
ecorded by
that authority in writing, it is not reasonably
reas
prac
practicable to hold such inquiry; or ... ... ..."
...
Mr. Acharya,
rya, le
learned senior advocate virtually appears
appea on
behalf of opposit
pposite parties.
3. Mr. Ojha submits,
s the DA invoked the provision
ision to avoid
holding thee inqu
inquiry. Charges were leveled againstt his client
c by
unidentifiedd pers
persons, who were not noticed in thee inquiry.
inqu As
such, invoking
ing th
the power to not hold the inquiry, wass arbitrary.
arbi
4. For our as
assistance Mr. Ojha had filed threee briefs
brief under
headings compe
compendiums 1, 2 and 3. He demonstrate
nstrates from
order dated 26th November, 2024, thee same officer
paragraph-44 in or
being District
rict an
and Sessions Judge (retired) was the Inquiring
Authority (IA) in two departmental inquiries. He had
d commenced
com
preliminaryy hearing
hear of the two disciplinary proceeding
eedings being
D.P. no.1 of 201
2012-13 and D.P. no.1 of 2013-14 respect
espectively on
13th May, 2014 aand 20th May, 2014. In minutes dated
ated 20th May,
2014, certain
in rem
remarks were made by the IA, which cannot
canno be said
to find basis
is in th
the earlier minutes of the first proceeding
eeding held on
13th May, 2014. He lays emphasis that minute dated
ted 13th May,
2014 in D.P.
.P. no.1
no. of 2012-13 does not contain a single remark
about his client's conduct or of alleged misconduct.
ct. In minutes
dated 20th May, 22014 of D.P. no.1 of 2013-14 there
re are remarks
about his client's
lient's misconduct, as alleged to be contained
tained in said
minutes of the eearlier proceeding held on 13th May,
ay, 2014.
2 He
submits, there
ere thus
th is demonstration of illegal invoking
voking of the
provision byy the DA, to deny his client's defence in the inquiries.
in
5. Mr. Ojha ssubmits, his client has suffered double
uble jeopardy,
je
denial of inquir
nquiry and punishment of compulsory
ry ret
retirement.
Impugned order bbe quashed and there be direction for conducting
con
the enquiries.. Opposite
O parties are resisting conduct
onducting the
inquiries because
ecause result of them will be in favour of his cli
client.
6. Mr. Acharya
Achar submits firstly, petitioner cannot
nnot m
maintain
challenge inn the writ
w petition because he has already obtained
obta his
benefits pursuant
rsuant to application made. He relies on view taken
t by
a Division Bench of the Madras High Court on judgmen
dgment dated
10th September,
mber, 2018 passed in W.P. no.10328 of 2014
2 (S.
ss v. State of Tamil Nadu) available at 2018
Murugadoss 201 SCC
OnLine Mad 2929. Mr. Acharya relies on paragraph
ad 29 raph-9 of the
judgment as qu
quoted in the written notes. He then
hen relies
re on
judgment off the Supreme Court in Union of India
a v. T
Tulsiram
Patel. He submit
ubmits, it is a Constitution Bench judgment
ent rep
reported in
AIR 1985 SC 1416. Thereby was declaration of la
law with
reference too clau
clause (b) in second proviso under article
ticle 311(2)
3 in
the Constitution
titution of India, of there being situations
situatio for
discontinuing
ing with
wit inquiry.
7. Acharya draws attention to confidential letter dated 15th
Mr. Achar
July, 2014 writte
written by the IA to the Accountant General.
eral. H
He submits
there are materia
aterials in it apart from Daily Order Sheet (D
DOS) dated
13th and 20th M
May, 2014. The IA was appointed to conduct
co the
inquiries after
fter eearlier incumbent had recused. Those
hose aare cogent
grounds forr exer
exercise of the power to not have continued
ntinued with the
inquiries. The
he wr
writ petition be dismissed.
8. The facts as
a far as we have been able to ascertain
ertain are, there
were three discip
disciplinary proceedings initiated against
st petitioner.
peti By
memorandum dated
da 29th August, 2013 there was
as allegation
alle of
misconductt and or
o misbehavior against petitioner, who was
w said to
have interfered
fered with official work of the Blockk De
Development
epartmental inquiry was ordered on 16th September,
Officer. Departm
pears from order dated 16th January, 2015 of the DA,
2013. It appears
there was anothe
another inquiry in respect of complaints
ts made
ma by the
villagers against
gainst petitioner. Said order goes on to say th
that the IA,
while writing DOS dated 20th May, 2014, brought
ing D ght to light the
improper and insulting
i comments made by petition
etitioner in the
previous sitting on 13th May, 2014 in another
immediate previo anoth inquiry
proceeding.. Petitioner's
Pe behaviour became all the
t more
reprehensible, when
w he forcibly penned through some portion of
DOS dated 20th May, 2014 stating
recording in DO the recording
relates to 13th May,
M 2014, 'cut by him'. Relevant passage
assage from said
order dated 16th January, 2015 of the DA is reproduced
ced below.
be
"... ..... W .2014,, the
While writing the D.O.S. dated 20.05.201
I.A. brough
ought to light the improper and insulting com
comments
made by the
t C.O. in the immediate previous sitting
sitt on
13.05.2014
2014 in another inquiry proceeding that
at hhe (the
I.A.) was
as valued
v like a "potato" in the vegetable
ble market
which could
cou never be a costlier vegetable like "tomato"
"to
and that
at th
the staff of this office were condemningg him.
hi The
CO's beha
behaviour became all the more reprehensible
sible when
he forcibly
cibly penned through some portion of record
cordings in
DOS dated
ated 20.05.2014 stating that "the recording
ing relates
05.2014, "cut by me", without however dispu
to 13.05.20 isputing its
veracity
ty or truth. ... ..."
9. pears from said order dated 16th January,
It appears ry, 2015
20 of the
DA, one more inquiry was launched against petit
petitioner for
demonstrating
ting ins
inside office building and inducing others
thers tto do so in
offic order, pursuant to memorandum dated 17th June,
violation off office
2014. Another
ther person
p was appointed IA in said inquiry
inquiry. Said IA
was resident
nt in a colony, where petitioner was President
Preside of the
Committee. The IA lodged complaint on 19th September,
Residents' Comm
2014 that his ho
house was locked from outside in thee morning.
mor The
date was incide
incidentally first date of preliminary hearing
hearin of the
inquiry. Ass such the inquiry was not held and said
aid order
or made
invoking the
he pow
power under rule 19 (ii). Punishment imposed
impos was of
compulsoryy retirement.
retire
10. According
rding to the date chart filed in the Tribunal
unal by
b opposite
parties, on 12th February, 2015 the Accountant General
eral had
ha allowed
for payment
nt of all retirement and compassionate
ate bbenefits to
petitioner in acco
accordance with provisions relating to superannuation.
super
We havee fo
found, earlier Original Applicatio
lication (OA)
no.260/0038/201
8/2015 was filed in the Tribunal challenging
nging said order
dated 16th Januar ted 2nd February,
January, 2015. The Tribunal by order dated
2017 allowed
wed tthe challenge on ground that the disciplinary
d
proceedingss were
wer initiated by the Accountant Gene
General, when
petitioner had
ad been
be appointed by the Principal Accountan
ountant General.
Opposite parties
arties challenged said order of the Tribunal
nal in this Court
by W.P.(C)) No.2725
No.2 orde dated 5th
of 2017. Coordinate Bench on order
March, 2020
20 upheld
up the challenge directing that
at the Tribunal
should dispose of the OA on the matter remitted back
ck to it
i for fresh
adjudication. Th
The Tribunal then passed impugned
ed ord
order, under
challenge inn the writ
w petition.
11. We have satisfaction that the IA made record
ecord regarding
petitioner in DOS of 20th May, 2014, giving
conduct of petitio ving basis as in
DOS dated 13th May, 2014. On perusal of DOS dated 13th May,
2014 we doo not see
s reflection therein regarding any
y misc
misconduct on
part of petitioner
itioner. In the circumstances, basis relied upon by the IA
as in DOS dated 20th May, 2014 does not appear in tthe record.
Hence, recusal
usal oof the IA citing misconduct exhibited by petitioner
oceeding held on 13th May, 2014 does not stand
in the proceedi
substantiated.
ed. It appears from the record and we under
understand that
petitioner had fi
filed application citing bias of the IA, soon after
minutes dated 20th May, 2014.
making of said m
12. Further
her rea
reason for our aforesaid satisfaction is, where
w DOS
dated 13th May, 2014 does not contain record of m
misconduct
exhibited byy peti
petitioner, on that day of hearing in anothe
another inquiry,
same IA dealing eld on 20th May,
aling with second inquiry in the sitting held
2014 made rema
remarks regarding what happened in the
he ear
earlier sitting
on 13th May,
ay, 2014.
201 Considering the remarks did not find
fin basis in
inutes dated 13th May, 2014, we understand
the said minutes tand ppetitioner's
state of mind
nd in having scored through the remarks to endorse
en 'cut
careful scrutiny of said order dated 16th January,
by me'. Onn caref Janu 2015
of the DA,, we hhave not seen a finding therein that
at the other IA
appointed in the 3rd departmental inquiry had been locked inside his
house on 19th September,
Se 2014 by petitioner himself,
lf, the President
of the Residents'
idents' Committee. We cannot act on presum
resumption that
petitioner had caused
ca the IA to be locked in since, there
the was no
steps taken, as appears from said order, in the
he direction
dir of
establishingg peti
petitioner's involvement. Regarding cont
contention of
opposite parties
arties bbased on the confidential letter, we are cconstrained
to confine oursel
ourselves to impugned order and impugned
ed therein
the order
dated 16th Januar
January, 2015, for adjudication on whether they are to be
maintained or int
interfered with.
13. On the question of fact regarding applicat
plication for
disbursement
nt of the benefits consequent to thee compulsory
com
retirement impo
imposed as punishment, Mr. Acharyaa submits,
sub in
paragraph-20
20 of the counter clear statement was made.
Paragraph-20
20 is reproduced
r below.
"20. That it is pertinent to mention here that
th the
petitioner
ner during the pendency of his O.A. appli
pplied for
disburseme
sement of his retirement benefits likee pension,
pe
gratuity
ty and
an GPF, etc. in term of the order of Accountant
Acco
General-O
Opp. Party No.3 and hence, he has alread
ready been
paid full GPF balance and pension with effec
ffect from
17.01.2015
2015, however, the gratuity has been withh
ithheld for
adjustment
ment against his liabilities towards gover
overnment
dues and
nd personal
p loan from bank in which the
he D
DDO of
the office
ice sstands guarantor."
Mr. Ojha submits
ubmits, his client was in need of sustenance.
nce. H
He was told
to apply for the
th benefits consequent to punishment
hment order of
compulsoryy retir
retirement. He is ready to return the be
benefits on
reinstatement,
ent, upon
up impugned order being set aside.
e. He said so in
paragraph-14
14 of the rejoinder, wherein paragraph 20 in the
th counter
stood dealtt with
with. Paragraph-14 from the rejoinderr is rreproduced
below.
"14. That
hat in
i reply to the averments made in Para
ra-20 of the
Counter,
er, it
i is respectfully submitted that the right
righ of the
petitioner
ner cannot be affected and wrong committe
itted by the
DA cannot
nnot be legalized merely because the service
vice benefits
extended
ed to an employee. Once, the petitioner is taken
tak back
to his earli
earlier service he is ready to refund the benefits
bene paid
to him tow
towards the retirement dues."
14. gned is order dated 18th January, 2021. The w
Impugned writ petition
ted on 1st February, 2021. In relied uponn parag
was presented paragraph-9 of
adoss (supra), there was discussion made
S. Murugadoss ade on
o several
judgments of the Supreme Court regarding approbation, reprobation
and election. We have already noticed opposite
ite parties
pa had
ted 16th January,
contended in the Tribunal that soon after order dated
2015 had been
een made
m by the DA, on 12th February, 2015
015 ppayment of
the benefitss was allowed. We have perused said earlier
rlier order
o dated
2nd February,
ry, 20
2017 passed by the Tribunal, quashing the
th order of
the DA. In recor
record of submissions made by opposite
ite parties,
par there
does not appear
ppear a submission made by opposite parti
parties that in
prosecutingg his ccase before the Tribunal, after having
ing obtained
ob the
benefits, petition
etitioner was guilty of approbation and reprobation.
reprob Nor
is there record
ecord of submission made by opposite
ite parties
pa that
petitioner after
fter having
ha challenged said order of the DA, had elected
to accept the
he DA
DA's order. So much so, opposite parties
rties challenged
c
said order befor
before this Court by their earlier writ
rit pe
petition and
obtained direction
irection for remitting the matter back to the
he Tribunal.
Trib
15. As aforesa
foresaid, we do not find basis of petitioner's
er's misconduct
m
as appearingg from DOS dated 13th May, 2014, given
n to be reason in
DOS dated 20th May, 2014 in the other enquiry proceed
oceeding by the
same IA. Hence,
ence, the circumstances in which the IA rec
recused from
conducting the eenquiry are such as causes doubts to arise.
aris Where
there are doubts
oubts arising in respect of exercise of power,
ower, to deny a
person inquiry,
uiry, we are inclined and do interfere,
re, to set aside
impugned order as well as order dated 16th January,
ry, 2015
20 of the
DA. Tulsiram Patel (supra) has no application in the facts
ram P fa of this
case. On query
uery from Court Mr. Ojha submits, his
is client
clie is little
more than two years
y away from achieving age of superannuation.
super
ior to order dated 16th January, 2015, issued
Position prior sued by
b the DA,
is restored.. Both parties must accept the consequenc
quences of the
direction and
nd act accordingly. Petitioner is to be re-instate
instated with full
back wagess and tthere is to be recovery of all moniess paid to him on
severance in executing,
ex rder ddated 16th
herein also set aside, order
January, 2015.
015. In event opposite parties proceed by resuming
res the
inquiries, wee direct
dir that petitioner must be on bestt behaviour
beha and
duly participate.
ipate. He must take care to ensure there is no reason or
even remote
te caus
cause for the employer to allege that hee has in
indulged in
unacceptable
le beh
behaviour in the resumed inquiry or inquirie
quiries.
16. The writ pe
petition is allowed and disposed of ass above.
abov
(Arindam Sinha)
Sin
Judge
(M.S. Saho
ahoo)
Judge
Gs/dutta
Prasant
Date: 10-Jan-2025W.P.(C) no.4013 of 2021
