Orissa High Court

Unknown vs Union Of India And Others on 19 June, 2025

Author: M.S. Sahoo

Bench: M.S. Sahoo

           IN THE HIGH COURT OF ORISSA AT CUTTACK
                          W.A.NO.2720 OF 2024

        An appeal arising out W.P.(C) No.18538 of 2021 disposed of on
                                 31.07.2024
                                  --------------

      Dharmapada Ghadai                            ...... Appellant

                                  -Versus-

      Union of India and Others                    ...... Respondents
      Advocate(s) appeared in this case:-
      _______________________________________________________
        For Appellant       : M/s. A.K.Pandey, L.Pradhan,
                              D.Pradhan, R.K.Mishra, D.P.Das &
                              S.K.Mandal, Advocates

         For Respondents: Mr. M.K.Pati,
                          Senior Panel Counsel

      _______________________________________________________
      CORAM:
           HON'BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD
                                        AND
                     HON'BLE MR. JUSTICE M.S. SAHOO


                             JUDGMENT

19.06.2025 PER DIXIT KRISHNA SHRIPAD,J.

An employee of respondent organization, who has

suffered removal from service on account of proven

misconduct of bribery is invoking intra-Court appellate

jurisdiction for laying a challenge to a learned Single Judge's

order dated 31.07.2024 whereby his following two writ

petitions have been negatived:

(i) In W.P.(C) No.17035 of 2016 he had called in question the punishment order dated 19.12.2014 as affirmed in departmental appeal dismissed on 30.08.2016;

(ii) in W.P.(C) No. 18538 of 2021 he had laid a challenge to the management's order dated 09.04.2021 whereby his representation for reinstatement after acquittal in the criminal appeal was dismissed.

2. FOUNDATIONAL FACTS:

(a) The delinquent employee gained entry into service of

respondent organization as Accounts Officer with effect from

23.12.2006. He earned promotion as Assistant Manager

(Finance) in due course. In a CBI Raid he was found red

handed on 28.08.2012 whilst accepting a bribe of

Rs.20,000/- from a person, namely, Sugris Singh associated

with the tender in question. Appellant happened to be one of

the members of the Tender Committee.

(b) Appellant was served with a Charge Memo on

26.03.2013 in relation to the misconduct in question. A

disciplinary inquiry was held at the hands of a retired

official of the organization and he was found guilty. A copy

of Inquiry Report dated 14.08.2014 was served on him and

he submitted his representation against the same on

27.09.2014. The Disciplinary Authority passed the

punishment order of removal from service on 23.12.2014.

Appellant's departmental appeal also came to be disfavoured

vide order dated 30.08.2016. This he had challenged in

W.P.(C) No. 17035 of 2016, which is not the subject-matter

of this appeal.

offences punishable inter alia under the provisions of the

Prevention of Corruption Act, 1988 in R.C. No. 19A of 2012.

The Special CBI Court at Dhanbad vide order dated

21.01.1019 had entered conviction and sentenced him to

undergo a simple imprisonment for two years coupled with

levy of fine of Rs.50,000/-. However, a learned Single Judge

of Jharkhand High Court vide order 29.09.2020 allowed his

Criminal Appeal (SJ) No. 138 of 2019 and set aside order of

conviction & sentence. Thus, he was acquitted of the

criminal charges.

(d) Appellant made a representation seeking his

reinstatement in service on the basis of acquittal order

contending that his was a case of honourable acquittal. The

same having been rejected by the Management, W.P.(C) No.

18538 of 2021 came to be filed. As already mentioned above,

both the writ petitions were heard together and came to be

dismissed by the learned Single Judge of this Court. We

repeat that the order in WP(C) No. 18538 of 2021 alone is

put in challenge before us.

3. Learned counsel appearing for the delinquent-

employee urged the following grounds for the invalidation of

impugned order:

(a) The entire disciplinary proceedings are vitiated inasmuch as under the extant Conduct Rules, it was not open to the Management to appoint an ex-employee of the organization as the Inquiry Officer and therefore, everything would fall down on the principle of ex nihilo nihil fit meaning nothing comes out from nothing.

(b) The Management ought to have examined the complainant (Shri Sugriw Singh) as a witness to prove

demand & acceptance of bribe and that having not been done, the finding of guilt is vitiated. Similarly, all the persons associated with the trap event ought to have been examined; no explanation is offered for their non-

examination.

(c) Second show cause notice after the acceptance of the recommendation of Inquiry Officer is a sine qua non for passing the punishment order. No opportunity of hearing was given to the delinquent before passing the major penalty of removal from service. Thus, the decision to remove him from service is unsustainable.

(d) In criminal proceedings, although trial ended in the conviction & sentencing of appellant, he came to be acquitted by the Jharkhand High Court honourably and therefore he ought to have been reinstated in service, disregarding the subject removal order.

(e) Lastly, the punishment is disproportionate to the gravity of charges even if the finding of guilt is sustained and therefore, the impugned order of termination is liable to be set aside on the doctrine of proportionality.

In support of theses contentions, learned counsel

representing the appellant banked upon certain rulings.

4. After service of notice, Respondent No.1-Union of

India has entered appearance through its Senior Panel

Counsel, Mr. M.K.Pati. However, no formal notice was

served on the employer-organizations since requisites were

not complied and that would not come in the way of

disposing of this appeal on merits, since these organizations

are under the aegis of Central Government.

5. Learned Senior Panel Counsel made the following

submission in justification of the impugned orders:

(a) that there is absolutely no warrant for the

indulgence of this Court in the appeal, since the findings

therein operate as res judicata;

(b) that the challenge to punishment order in the

departmental appeal and subsequently in W.P.(C) No. 17035

of 2016 has been negatived and the same has attained

finality, there being no further challenge to the same;

(c) that once a finding of guilt is recorded in a properly

constituted inquiry, after full opportunity to the delinquent,

and punishment is upheld in the departmental appeal and

further in writ petition, this Court may not undertake a

deeper examination of the matter, even if there are some

arguable errors;

(d) that the subject Conduct Rules do not prohibit the

appointment of an ex-employee as Inquiry Officer. Even

otherwise, no prejudice is shown to have been thereby

caused; and

(e) that there is no need of issuing a second show

cause notice to the delinquent who had already submitted

his representation to the Inquiry Report. The punishment

awarded is not dismissal but only removal from service.

6. Having heard the learned counsel appearing for the

parties and having perused the appeal papers, we decline

indulgence in the matter for the following reasons:-

6.1. The first submission of learned counsel for the

appellant that the entire disciplinary proceeding is vitiated

inasmuch as there is no scope in the CIL Conduct,

Discipline & Appeal Rules, 1978 (as amended in 2006) to

appoint an ex-employee of the organization as the Inquiry

Officer, does not impress us even in the least. Reasons for

this are not far to seek: Firstly, a Conduct Rule promulgated

by the Employer Organization like the one herein is not

under any statute as such. It is a product of exercise of

employer's prerogative and more in the nature of contract.

Therefore, it cannot be construed as being literally

mandatory. Obviously, it mentions "any officials of the

company" and this phrase has to be liberally construed to

include ex-officials as well. What we are construing is, a

bye-law like thing and not a statute of Westminster Abbey.

Secondly, the delinquent employee ought to have taken

objection at the earliest point of time, which he did not.

Having consciously participated in the disciplinary

proceedings without raising a little finger, he cannot now

turn around to find fault with the same. In a way, he is

estopped from taking such a contention appears to be an

afterthought. Thirdly, what prejudice has been caused to

him by virtue of an ex-employee of the organization holding

the inquiry proceedings, remains unsubstantiated.

6.2. The second submission of learned counsel that non-

examination of alleged bribe giver i.e the complainant is

fatal to the case of Management, is difficult to agree with, for

more than one reason:

i) It is a CBI trap case wherein the appellant was caught red handed and admittedly the phenolphthalein test proved positive, the sparkling lotion turning pink.

Added, he himself admitted the receipt of Rs.20,000/- from the complainant. The norm that admitted facts need not be proved, is as old as mountains. Of course, admission is not a conclusive piece of evidence, is true. However, it is sacrosanct unless a plausible explanation rebutting the same is offered.

ii) Appellant had pleaded that this amount was not the bribe but it was taken for some other purpose. What was that other purpose, was never spelt out by him. Employer cannot fathom out what lurked in the mind of his delinquent employee. The so called 'other purpose' was 'especially within the knowledge' of employee himself and therefore he ought to have put the same across in the disciplinary inquiry on the general principle akin to the one enacted in Section 106 of the Evidence Act, 1872.

iii) It is for the management to decide as to who should be examined as its witness, and a delinquent employee cannot dictate terms, in matters like this. In our considered view, the Management cannot be faltered in not calling the complainant as a witness, when there was other abundant evidentiary material on record. It is not that

invariably all persons named in the Charge Memo or in the list of witnesses should be examined. It all depends upon a host of factors that essentially lie within the wisdom of parties.

iv) Added lastly, what prejudice is caused to the appellant by employer not examining the complainant is not forthcoming. In disciplinary proceedings ordinarily the provisions of the Evidence Act, 1872 are not invokable, although general principles of evidence do apply. In all fairness, opponent could have asked the management to examine the complainant so that he could elicit something in his favour in the cross-examination. That fairness having not been shown, he cannot complained of unfair treatment.

6.3. Appellant's contention that subsequently on the

same set of facts he has been honourably acquitted by the

Jharkhand High Court and therefore he ought to have been

reinstated in service in the light of Apex Court decision in

Ram Lal v. State of Rajasthan,1, cannot be countenanced

because:

(i) The incident of bribery happened on 28.08.2012; the Charge Memo was served 23.06.2013; appellant filed his reply on 10.04.2013; inquiry proceedings were accomplished vide report dated 14.08.2014; appellant

(2024) 1 SCC 175

sent his representation against the report on 27.09.2014. The punishment order of removal was passed on 23.12.2014; departmental appeal against the same was negatived on 30.08.2016. Challenge was laid to the same in WP(C) No. 17035 of 2016 and no interim order of any kind was granted to him. He could have sought for stay of disciplinary proceedings pending disposal of criminal case vide Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.,2. However, that endeavor does not appear to have been undertaken.

ii) The case in WP(C) No.17035 of 2016 was heard, along with WP(C) No. 18538 of 2021 (this was filed subsequent to Jharkhand High Court order of acquittal). Both the writ petitions came to be rejected by the learned Single Judge of this Court. However, what is challenged before us is only the order made in WP(C) No.18538 of 2021. In other words, no grievance is made out against the order concerning WP(C) No.17035 of 2016 and thus the lis in that writ petition is laid to rest once for all. The findings recorded therein have attained finality, regardless of they being right or wrong and they bind the parties vide State of Punjab v. Gurdev Singh3.

(iii) In the CBI criminal case (RC No.19A of 2012), the appellant was tried for the offence of bribery. The Criminal Court vide order dated 21.01.2019 had convicted

AIR 1999 SC 1416 3 AIR 1992 SC 111 (Paras 5 & 6)

and sentenced him to undergo two year imprisonment, apart from levying a fine of Rs.50,000/-. The Jharkhand High Court, on 29.09.2020, favoured appellant's Criminal Appeal No. 138 of 2019 and acquitted him of the charges. That would not liquidate the punishment order of removal from service that was made long before such acquittal and findings as to its regularity entered by the learned Single Judge having attained finality.

(iv) If delinquent employee was removed from service only on the ground of conviction & sentencing in a criminal case involving moral turpitude, we would have straightway directed reinstatement on the strength of acquittal order secured in criminal appeal, regardless of such acquittal being honourable or otherwise. However, that is not the case before us. It hardly needs to be stated that a same set of facts can be a subject matter of a criminal case and a disciplinary proceeding; even if a criminal case against an accused employee fails, a disciplinary proceeding may culminate into an order of punishment against a delinquent employee.

(v) We carefully perused the copy of Jharkhand High Court order supplied to us at the Bar and it availed in the original record of writ petition too, which we had secured from the Registry. In Ram Lal supra it is broadly delineated as to when an acquittal is said to be honourable, is true. Whether a case is of honourable acquittal has to be ascertained from discerning the substance of the judgment

and not just by its terminology. The acquittal granted by the said High Court is on the benefit of doubt and paucity of evidence. Contra submission therefore does not merit acceptance.

6.4. Since the ground of honourable acquittal was passionately pressed into service, a little more deliberation in this regard is undertaken. The concept of 'honourable acquittal' is easy to say, but difficult to employ, there being no statutory definition thereof, more particularly in the IPC, CrPC & Indian Evidence Act. Lord Williams, J. in ROBERT STUART WAUCHOPE v. EMPEROR,4 observed:

"The expression 'honourably acquitted' is one which is unknown to court of justice. Apparently it is a form of order used in courts martial and other extra judicial tribunals...."

The idea of 'honourable acquittal' is not easy to define

although it can be illustrated, vide Karnataka High Court

decision in P.V. Rudrappa v. State of Karnataka,5. If an

accused is discharged at pre-trial stage or the criminal

proceeding launched against him is quashed, there is no

difficulty in treating the same as the cases of 'honourable

acquittal' for the limited purpose of disciplinary enquiry. A

case of 'honourable acquittal' may arise when, after trial the

(1934) 61 ILR Cal.168

2024 SCC Online Kar 10628

Criminal Court orders acquittal with any of nearly following

observations:

(i) that accused is falsely prosecuted to seek vengeance or for such other ulterior motive;

(ii) that there is absolutely no evidence or very little evidence on record to implicate the accused in the criminal case;

(iii) that the prosecution has miserably failed to prove the charges against the accused;

(v) that the prosecution witnesses are unworthy of any credence and their version does not generate any confidence.

Applying these parameters, we are of the considered opinion that the case of appellant herein is not one of 'honourable acquittal'.

6.5. The next contention of learned counsel that after

the disciplinary authority accepted the recommendation of

Inquiry Officer, the appellant ought to have been granted a

second show cause notice before awarding the punishment

of removal from service, is unworthy of acceptance. Article

311(2) of the Constitution, as amended, dispenses with such

a second show cause notice. The principle enacted in this

provision can be extended to the case of appellant, although

he was not a 'civil servant' stricto sensu, inasmuch as, he

was given full opportunity by providing a copy of the Inquiry

Report and he had submitted an elaborate representation

against the same. Added, never he had sought for any

opportunity of hearing on the punishment aspect. Further,

he is not telling us as to how he would have been benefited,

had a second show cause notice been issued. The principles

of natural justice cannot be chanted like vedic mantr or

hymns. A plea of breach principles of natural justice per se

would not suffice; one has to demonstrate consequent

prejudice due to such breach, in a cognizable measure. That

is lacking in this case.

6.6. The last contention of the appellant that the

award of punishment of removal from service is

disproportionate to the gravity of charge, does not gain

acceptance. Ordinarily, once the guilt is proved in a properly

constituted disciplinary inquiry, what punishment should

be awarded to a delinquent employee, belongs to the domain

of the Disciplinary Authority, of course subject to all just

exceptions into which argued case of the appellant does not

fit in. Appellant was in a higher rank of service (Assistant

Manager, Finance), and not a Clerk or Group-C employee.

He was a member of Tender Committee too, and had taken

bribes in connection with the very tender in question.

Bribery, corruption & misappropriation of funds are treated

in any civilized jurisdiction as serious acts of misconduct

involving high moral turpitude. It is more so, when such

acts are committed by the employees in the higher rung of

service associated with Finance Department. Such acts

obviously shake public confidence and the trust of the

employer. Therefore, it cannot be gainfully argued that the

punishment of removal from service, as distinguished from

dismissal, is disproportionate to the proven guilt. Thus there

is no scope for invoking the principle of proportionality. It is

not argued at the Bar that the punishment awarded to the

appellant shocks the conscience of the Court, because it

does not.

6.7. Several rulings were cited before us.

(a) We have reproduced the script of the appellant as

it is:

"1999 (8) SCC 582 Hardwari Lal vs State of U.P. and ors Para 3 On the point that if the complainant not examined then the enquiry not proper.

2011 (6) SCC 376 Para 16 Commissioner of police Vs Jai Bhagwan On the point that non examination of material witness is fatal.

1999 (2) SCC 10 Kuldeep Singh VS Commissioner of police Court can interfere with conclusion reached if there was no evidence to support finding or finding is perverse.

2009 Suppl 1 OLR 1096 Duryodhan Lenka vs Chairman of Board of Director Kalinga Gramya Bank and others Second show cause is mandatory before major punishment."

(b) We are of the considered view that the case of

appellant fits into the foundational principles of service

jurisprudence. We have no quarrel with the broad

propositions emerging from the above rulings. However,

case of the appellant being bit different and peculiar, the

said rulings cannot be readily imported disregarding the

variables apparent from the record. It hardly needs to be

stated that a case is an authority for the proposition laid

down in a given fact matrix and not for all that, that logically

follows from what has been so laid down, said Lord

Halsbury more than a century ago in Quinn v. Leathem6,.

Much in this regard is not necessary to deliberate.