Orissa High Court
Administrative Tribunal Act vs State Of Odisha on 30 May, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.C (OAC) No.2178 of 2016
In the matter of an application under Section 19 of the
Administrative Tribunal Act, 1985.
Sri Manoranjan Mohapatra .... Petitioner
-versus-
1.State of Odisha
2.Joint Secretary to Govt. of Odisha,
Water Resources Department,
Bhubaneswar
3. Engineer-in-Chief, Water Resources,
Bhubaneswar
4. Superintending Engineer, Sambalpur .... Opposite Parties
Advocates appeared in this case through Hybrid Mode:
For Petitioner : Mr.B.P. Pradhan, Advocate
on behalf of Ms. S. Devi, Advocate
For Opp. Parties: Mr.S. S. Mohapatra,
Additional Standing Counsel
CORAM:
HON'BLE MISS JUSTICE SAVITRI RATHO
.................................................................................
Date of Judgment: 30.05.2025
..................................................................................
Savitri Ratho, J. This writ application has been filed for the following reliefs:
"a) Admit the Original Application, call for the records,
and quash the impugned order dtd. 09.02.2016 at
Annexure-9;
b) And/or pass such other order (s) or direction (s) as
this Hon'ble Tribunal may deem just and proper.
Pending final adjudication of the Original Application,
the applicant prays for the following interim relief (s):
Stay operation of the order dtd. 09.02.2016 at
Annexure-9 in the interest of justice, equity as the
applicant has a prima facie case, balance of
convenience is in favour of the applicant and against
the Respondents."
CASE OF THE PETITIONER
2. In the year, 1991, the petitioner was appointed as a Stipendiary
Engineer by the Irrigation Department, Government of Orissa and his
services were placed at the disposal of Panchayati Raj Department as
per order dtd. 10.01.1991. He joined the Panchayati Raj Department on
01.02.1991 at Ersama Block of Jagatsinghpur District and was
promoted as Assistant Engineer (Ad hoc) and was reverted back to the
parent department which has since been renamed as Department of
Water Resources. He continued in the Water Resources Department as
Assistant Engineer (Ad hoc) till his services were placed at the disposal
of the Panchayati Raj Department as per order dated 13.07.2001. While
continuing as such under Panchayati Raj Department in Koksara Block
in the District of Kalahandi, the applicant supervised the construction of
primary school building at Banjhikote under Gottomunda Gram
Panchayat of Koksara Block. On the allegation of some irregularities in
the casting of the roof of the said primary school building,
memorandum of charges along with imputations dated 19.12.2006 were
served on the applicant. By order dated 30.07.2007 and enquiry officer
was appointed for conducting enquiry into the charges. After enquiry,
the Enquiry Officer submitted his report dated 29.06.2013 (Annexure-
6), exonerating the applicant from the charges of dereliction of duty,
causing loss to the Govt. and misconduct. The Panchayati Raj Deptt.
differing from the finding of the Inquiring Officer issued letter dated
01.06.2015 (Annexure-7), styling the same as show cause notice. The
applicant submitted his reply on 24.06.2015. But by Office Order dated
09.02.2016 (Annexure-8), the Panchayati Raj Deptt. after getting the
concurrence of the OPSC, in a whimsical manner decided to impose the
punishment of stoppage of one annual increment on the applicant
without cumulative effect.
3. Challenging this order, O.A. No. 2178 (C) of 2016 was filed in
the State Administrative Tribunal. On 27.06.2016 notice of admission
had been issued and it had been directed that no coercive action be
taken against petitioner. Consequent upon abolition of the Tribunal, the
case was transferred to the High Court and renumbered as W.P.(C)
(OAC) No.2178 of 2016.
COUNTER OF THE STATE GOVERNMENT
4. It has been stated in the counter that the petitioner while
continuing as Assistant Engineer in Kokasara Block, District-
Kalahandi was proceeded under Rule 15 read with Rule 17 of the Orissa
Civil Services (Classification, Control & Appeal) Rules, 1962 (in short
'OCS (CC&A) Rules') for dereliction of duty, gross misconduct and
causing loss to Government during construction of Primary School
Buildings at Khuntia (Mirjapur) under Khuntia G.P of Kokasara Block
and at Banjikot of Kokasara Block vide Department Memorandum No.
17707/PR dated 19.12.2006. In reply to the charge memo, the petitioner
and other delinquent officers had submitted their written statement of
defence refuting the charges. There were found unsatisfactory. Hence,
as per rules, the Project Director, DRDA, Kalahandi was appointed as
the Inquiring Officer to conduct enquiry. After completing his enquiry,
he submitted his report on 29.06.2013. In the report, he has opined that
the charges are not proven to the extent of dereliction of duty, causing
loss to Government and misconduct. But in his report, the Inquiring
Officer had observed that the delinquent officers should have been
vigilant during execution of the projects. The Disciplinary Authority on
perusal of the records and after going through the enquiry report came
to the finding that on account of lack of proper supervision by the
Junior Engineer and the Assistant Engineers, the slab casting of
Mirjapur Primary School was done for the second time by the VWR and
the Junior Engineer has also admitted about recasting of the slab. The
carelessness of the supervising officers during execution of the project
is well established. Therefore, the contention of the petitioner vide the
show cause notice dated 01.06.2015 was an empty formality and the
authority had already taken decision to punish him is baseless and is not
sustainable. The contention of the petitioner that the show cause notice
was issued to him in a whimsical manner without indicating the reason
of disagreement with the findings of the Inquiring Officer is completely
incorrect. In the concluding paragraph of the enquiry report, the
Inquiring Officer has categorically indicated that the delinquent officer
should have been vigilant during execution of the projects. From these
remarks of the Inquiring Officer, it is manifestly clear that the
supervising Officers like the Junior Engineer and the Assistant
Engineers were very casual during execution of the project
(construction of primary School buildings) for which there were defects
in slab casting and those were re-cast for the second time after the
matter was inspected by the vigilance technical team. A copy of the
enquiry report is annexed as Annexure-A. For the above supervisory
lapses of the delinquent officers, the Disciplinary Authority did not
accept the findings of the Inquiring Officer and tentatively decided to
impose minor punishment upon the Officers. As per rule, second show
cause notice was issued to all the delinquent officers specifying the
reason of disagreement with the findings of the Inquiring officer for
imposition of punishment. The averment of the petitioner that
Panchayati Raj Department being the borrowing authority has not taken
concurrence of the lending authority i.e. from Water Resources
Department (Parent Department of the petitioner) before imposition of
punishment on him as per the provision of Rule-19 of the OCS (CC&A)
Rules, 1962 is misconceived. Rule-19 of the OCS (CC&A) Rules, 1962
is applicable where services of Government. Servant have been lent to
the union or any other state Government. In the instant case, the
petitioner being an Assistant Engineer of Water Resources Department
was working under the Panchayati Raj Department under the same
Govt. for which concurrence of the Water Resources Department is not
mandatory as minor punishment has been imposed on the petitioner i.e.
stoppage of one increment without cumulative effect. Had it been a
major punishment, concurrence of the parent Department/appointing
authority would have been required to be taken in terms of rule-14 (4)
(b) of OCS (CC&A) Rules, 1962. By misleading the learned Tribunal,
the petitioner had obtained an interim order. However, concurrence of
the Odisha Public Service Commission was obtained before awarding
the punishment. Hence, the contention of the petitioner that the
authority had flouted proper procedure of rules while finalising the
Departmental Proceeding against him is a travesty of truth.
SUBMISSIONS
5. I have heard Mr. B.P. Pradhan, learned counsel appearing on
behalf of the petitioner and Mr. S.S. Mohapatra, learned Additional
Standing Counsel for the opposite parties.
6. Mr. B.P. Pradhan, learned counsel appearing on behalf of the
petitioner submitted that it is the settled principle of law that when the
disciplinary authority differs with the findings of the enquiry officer,
brief reasons for the same should be stated and a brief statement of the
findings along with brief reasons for disagreement with the findings of
the enquiry officer should have been provided to the petitioner along
with the second show cause notice. But reasons are not mentioned in
the second show cause notice (Annexure-7) for which there has been
violation of Rule 15 (10) (i) (b) of the OCS (CC&A) Rules, 1962 and
the principles of natural justice. The impugned order/letter vide
Annexure-9 imposing punishment, is therefore liable to be quashed.
7. Mr. S.S. Mohapatra, learned Additional Standing Counsel has
submitted that in the second show cause notice dated 1.6.2015
(Annexure-6), the reasons for differing with the enquiry report can be
gathered and as the petitioner has submitted his representation it is
apparent that he has not been prejudiced in any manner. As minor
punishment has been imposed after considering his representation,
Annexure-9 does not call for any interference.
STATUTORY PROVISIONS
8. Rule 15 (10) (i) (b) and 15 (10) (ii) of the OCS(CC&A) Rules,
1962 are extracted below:
"Rule 15 (10) (i) (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 inquiring 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 Orissa 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."
"Rule 15 (10) (ii)- The orders passed by the disciplinary
authority shall be communicated to the Government servant,
who shall also be supplied with a copy of the report of
inquiring authority and where the disciplinary authority is
not the inquiring authority, a statement of its findings
together with brief reasons for disagreement, if any, with
the findings of the inquiring authority, as well as a copy of
the advice of the Commission, where the Commission had
been consulted, and brief statement of reasons for non-
acceptance of the advice of the Commission, if the
disciplinary authority has not accepted such advice."
JUDICIAL PRONOUNCEMENT
9. In the case of Ram Kishan vs Union of India: 1995 SCC (6)
157, the Supreme Court has held as under:-
"The next question is whether the show cause notice is
valid in law. It is true, as rightly contended by the counsel
for the appellant, that the show cause notice does not
indicate the reasons on the basis of which the disciplinary
authority proposed to disagree with the conclusions
reached by the inquiry officer. The purpose of the show
cause notice, in case of disagreement with the findings of
the enquiry officer, is to enable the delinquent to show that
the disciplinary authority is persuaded not to disagree with
the conclusions reached by the inquiry officer for the
reasons given in the inquiry report or he may offer
additional reasons in support of the finding by the inquiry
officer. In that situation, unless the disciplinary authority
gives specific reasons in the show cause on the basis of
which the findings of the inquiry officer in that behalf is
based, it would be difficult for the delinquent to
satisfactorily give reasons to pursuade the disciplinary
authority to agree with the conclusions reached by the
inquiry officer. In the absence of any ground or reason in
the show cause notice it amounts to an empty formality
which would cause grave prejudice to the delinquent
officer and would result in injustice to him. The mere fact
that in the final order some reasons have been given to
disagree with the conclusions reached by the disciplinary
authority cannot cure the defect."
In the case of Punjab National Bank and Ors. vs Sh. Kunj
Behari Misra : 1998 (7) SCC 84, has referred to the decisions in Ram
Kishan (supra) and its earlier decisions and held as follows:
"The result of the aforesaid discussion would be that the
principles of natural justice have to be read into
Regulation 7(2). As a result thereof whenever the
disciplinary authority disagrees with the inquiry authority
on any article of charge then before it records its own
findings on such charge, it must record its tentative
reasons for such disagreement and give to the delinquent
officer an opportunity to represent before it records its
findings. The report of the inquiry officer containing its
findings will have to be conveyed and the delinquent
officer will have an opportunity to persuade the
disciplinary authority to accept the favorable conclusion of
the inquiry officer. The principles of natural justice, as we
have already observed, require the authority, which has to
take a final decision and can impose a penalty, to give an
opportunity to the officer charged of misconduct to file a
representation before the disciplinary authority records its
findings on the charges framed against the officer."
These decisions have been referred to in the case of Yoginath D
Bagde vs State of Makarashtra: (1999) 7 SCC 739, where the dismissal
of a judicial officer was set aside by the Supreme Court on the ground
that the disciplinary committee of the High Court disagreed with the
findings of the Enquiry Officer but the specific grounds were not
mentioned in the show cause notice and opportunity of hearing was not
given to the officer.
The Division Bench of this Court in the case of Dr. Raj Kishore
Sahu vrs. Government of Orissa and Others reported in 102 (2006)
CLT 737 in paragraphs 9, 10, 11, 12, 14, 17 and 18 has held as follows:
"9. Before proceeding further, it is necessary to mention
that the services of the petitioner were governed by the
Orissa Civil Services (Classification, Control and Appeal)
Rules, 1962 (hereinafter referred to 'as' CCA Rules') which
were made in exercise of the powers conferred by the
proviso to Article 305 of the Constitution of India by the
Governor of Orissa. Clauses 10(i)(b) and 10(ii) of Rule 15
inter alia provide that the Disciplinary Authority would
give the brief reason for disagreement with the report of
the enquiry officer.
The relevant portion of that rule is quoted as under:
"10(i)(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 inquiring officer and give
him 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 Orissa 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."
"10(ii) The orders passed by the Disciplinary Authority
shall be communicated to the Government servant, who
shall also -be supplied with a copy of the report of
inquiring authority and where the Disciplinary
Authority is not the enquiring authority, a statement of
its findings together with brief reasons for
disagreement, if any, with the findings of the inquiring
authority, as well as a copy of the advice of the
Commission, where, the Commission had been
consulted, and brief statement of reasons for non
acceptance of the advice of the Commission, if the
Disciplinary Authority has not accepted such advice."
10. The C.C.A. Rules are the statutory rules and departure
from the same would definitely be an illegality.
11. Apart from the statutory provision, is the common law that
according to the principle of natural justice an employee should at
least know the tentative reasons for disagreement with the report
of the enquiry officer before inflicting punishment upon him so that
he may be able to make a representation to satisfy the punishing
authority by way of his explanation to the tentative reasons which
are formed by the punishing authority to its mind.
12. In the case of Joginath D. Badge v. State of Maharashtra and
another reported in (1999) 7 Supreme Court Cases 739 the Apex
Court held that:
"it was open to the Disciplinary Authority either to agree
with the findings recorded by the enquiring authority or
disagree with those findings. If it does not agree with the
findings of the enquiring authority, it may record its own
findings. Where the enquiring authority has found the
delinquent officer guilty of the charges framed against him
and the Disciplinary Authority agrees with hose findings,
there would arise no difficulty. So also if the enquiring
authority has held the charges proved, but the Disciplinary
Authority disagrees and records a finding that the charges
were not established, there would arise no difficulty.
Difficulties have arisen in all those cases in which the
enquiring authority has recorded a positive findings that the
charges were not established and the delinquent officer was
recommended to be exonerated, but the Disciplinary
Authority disagreed with those findings and recorded its
own findings that the charges were established and the
delinquent officers was liable to be punished. This difficulty
relates to the question of giving an opportunity of hearing to
the delinquent office at that stage. Such an opportunity may
either be provided specifically by the rules made
under Article 309 of the Constitution or the Disciplinary
Authority may, of its own, provide such an opportunity.
Where the rules are in this regard silent and the
Disciplinary Authority also does not give an opportunity , of
hearing to the delinquent officer and records findings
different from those of the enquiring authority that the
chargers were established, "an opportunity of hearing" may
have to be read into the rule by which the procedure for
dealing with the enquiring authority's report is provided
principally because it would be contrary to the principles of
natural justice if a delinquent officer, who has already been
held to be "not guilty" by the enquiring authority, is found
"guilty without being afforded an opportunity of hearing on
the basis of the same evidence and material on which a
finding of "not' guilty" has already been recorded."
"14. In view of the above facts and circumstances, we are of the
firm view that the impugned punishment, imposed upon the
petitioner disagreeing with the report of the enquiry officer without
recording reasons, vitiates the impugned order of punishment
being bad in law."
"17. In view of the above mentioned facts and circumstances, the
writ application is allowed. The impugned judgment and order
passed by the Tribunal as well as the impugned punishment
inflicted upon the petitioner ate quashed. Consequently the
petitioner shall be entitled to get all consequential benefits
including the salary for the period of suspension as the same shall
be treated as to be spent on duty.
18. Since the petitioner is a retired person being superannuated on
30.6.1997, we feel that it would not be proper at this stage to
direct the enquiry officer to proceed with the enquiry afresh."
ANALYSIS
10. The petitioner was aged 54 years in the year 2016 when he had
filed the Original Application.
11. It is stated at the Bar that on the account of the interim order
passed by the learned Tribunal in the year 2016, his increment has not
been stopped and he has superannuated in the meanwhile.
12. I have carefully perused the show cause notice dated 01.06.2015
(Annexure-7), the reply of the petitioner (Annexure-8) and the
impugned order dated 9.2.2016 (Annexure-9).
13. The relevant portion of the show cause notice dated 01.06.2025
(Annexure-7) is extracted below:-
"Whereas after careful consideration of the charges,
written statement of defence submitted by the D.Os, report of
the I.O., representation of the D.O on the findings of the I.O.,
and available records, the Government differs from the
findings of the I.O. and has decided to inflict following
punishment upon the D.Os since the D.Os have utterly failed
to exercise proper supervision for which there were defects in
the slab casting which were subsequently repaired by the
executant:-
(i) 2% of the pension of Sri Narasingha Panda, Ex-J.E,
Kokasara Block (now retired) is to be withheld for a
period of one year in terms of rule-7 of the OCS
(Pension) Rules, 1992.
(ii) One annual increment of each of the D.O. (Sri Manoj
Kumar Mund, Ex-A.E. Kokasara Block now, AEE
Khurda Irrigation Subdivision and Sri Manoranjan
Mohapatra, Ex-A.E., Kokasara Block now A.E., Gop
Block) is to be stopped without cumulative effect u/r-13
of O.C.S (CC&A) Rules, 1962.
And whereas as per the provision made under rule-15
sub-rule 10(i)(b) of OCS(CC&A) Rules, 1962 all of the D.Os
are hereby directed to submit their representations, if any, on
the tentative punishment passed by the Govt. within 15 days
from the date of receipt of copy of this Show Cause Notice
failing which it will be presumed that they have no explanation
to submit on the tentative punishment passed by the Govt. and
action as deemed proper will be taken against them as per
law."
14. On consideration of the submission of the learned counsel, the
provision of Rule 15 (10) (i) (b) and 15 (10) (ii) of the OCS (CC&A)
Rules, 1962 and the decision referred to above, I am of the considered
view that there has been violation of principle of natural justice.
15. Annexure-7 does not contain the reasons in brief on the basis of
which the Disciplinary Authority disagreed with the findings of the
Enquiring Officer. In fact, the Disciplinary Authority sought for
response of the alleged delinquent in response to the proposed
punishment. The show cause notice, therefore, amounts to an empty
formality as the provisions of Rule 15 (10) (i) (b) of the OCS (CC&A)
Rules, 1962 have not been complied with. It appears that the
Disciplinary Authority had already decided what punishment to impose,
while issuing this show cause notice. Hence punishment was imposed
without issuing a show cause notice to the petitioner or indicating in the
show cause notice which was issued to explain why the Disciplinary
Authority will not differ from the findings of the Enquiring Officer for
the reasons which were to be disclosed by the Disciplinary Authority in
the show cause notice.
16. It is true that the petitioner has submitted a representation but as
the show cause notice (Annexure-7) was not in accordance with Rule 15
(10) (i) (b) of the OCS (CC&A) Rules, 1962 and did not contain the
reasons for differing with the decision of the Enquiring Authority, it
does not fulfil the requirement of law and is therefore liable to be
quashed.
17. In such circumstances, I would have remanded the matter to the
Disciplinary Authority to disclose the tentative reasons for his
difference from the enquiring report exonerating the petitioner, in order
to issue a fresh show cause notice to the petitioner in accordance with
Rule 15 (10) (i) (b) of the OCS (CC&A) Rules, 1962. But as the
petitioner has superannuated in the meanwhile, instead of remitting the
matter, I deem it proper to quash Annexure-9 imposing punishment on
the petitioner.
18. The order dated 09.02.2016 (Annexure-9) is quashed.
19. The writ petition is accordingly allowed. No order as to costs.
.......................
(Savitri Ratho)
Judge
Orissa High Court, Cuttack
Dated 30.05.2025 /Puspa
Signed by: PUSPANJALI MOHAPATRA
Designation: Personal Assistant
Reason: Authentication
Location: Orissa High Court
Date: 30-May-2025 20:48:39
