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1972 DIGILAW 149 (ORI)

KULAMANI PARIDA v. STATE OF ORISSA

1972-07-11

K.B.PANDA, R.N.MISRA

body1972
JUDGMENT : R.N. Misra, J. - The Petitioner, an Engineer in the employment of the State of Orissa. has asked for a writ of certiorari to quash the order dated 10th of June, 1969 of Government of Orissa, in the Works and Transport Department imposing the punishment of stoppage of two of his annual increments with cumulative effect. 2. The Petitioner joined service as a Junior Engineer and by 1964 he was working as an Assistant Engineer attached to the Capital Construction Subdivision No. 2 at Bhubaneswar. In June, 1964, he was approached by one Baishnab Charan Mohanty for a certificate regarding the state of construction of his (Baishnab?s) house at Bhubaneswar in order to draw special loans from Government under the Middle Income Group Housing Scheme. The Petitioner granted such a certificate. About two months thereafter on being approached by the said Baishnab Charan Mohanty, the Petitioner granted a further certificate allowing progress of construction of the house. On the basis of these two certificates Baishnab Charan Mohanty drew instalments of loan under the Scheme. It subsequently transpired that Baishnab Charan Mohanty had utilised the loan in raising a construction in his own village and had not raised any construction at Bhubaneswar and on misrepresentation bad taken the loan. In September, 1966, the Additional Member of the Administrative Tribunal framed a charge against the Petitioner which ran to the following effect: While working as an Assistant Engineer in the Capital Construction Subdivision, Bhubaneswar, you misconducted yourself in giving two false certificates to one Baishnab Charan Mohanty without verifying as to actual state of affairs and that Sri Baishnab Charan Mohanty brought two instalments of the loan amounting to Re. 4,000/- each on the basis of your false certificate a without any construction of house which he could not have got from the Middle Income Group Housing Scheme. By this act, you have committed gross dereliction of duty and misconducted yourself. The Petitioner showed cause and after the enquiry was over the Administrative Tribunal sent a report finding the Petitioner not guilty. Copy of the report of the Tribunal was not supplied to the Petitioner. By this act, you have committed gross dereliction of duty and misconducted yourself. The Petitioner showed cause and after the enquiry was over the Administrative Tribunal sent a report finding the Petitioner not guilty. Copy of the report of the Tribunal was not supplied to the Petitioner. But on 25th of July, 1969, the Chief Engineer (Roads and Buildings), Orissa, communicated a Government order to the Petitioner wherein it was said: After careful consideration of the findings of the Member, Administrative Tribunal, Government have been pleased to hold Sri Kulamani Parida (Petitioner) guilty of the charges and have ordered that two of his annual increments should be stopped with cumulative effect. This order is asked to be quashed on the allegation that no opportunity was given to the Petitioner to show cause against the punishment, though the punishment imposed a major one covered under Rule 13(vi) of the Services (Classification, Control, and Appeal) Rules, 1962 (hereinafter referred to as the Civil Service Rules). It is alternatively contended that even if it is not a punishment in terms of Rule 13(vi) of the aforesaid rules and amounts to a minor punishment, a proceeding under Rule 16 was mandatory and the Petitioner should have been given a notice of the proposed action before any penalty could be imposed. The Petitioner?s contention is that there is no inconsistency between the aforesaid rules and the Disciplinary Proceedings (Administrative Tribunal) Rules, 1951 (hereinafter referred to as the Tribunal Rules). Therefore, both the rules co-exist and the punishment to be valid required compliance with Rule 16 of the Civil Service Rules. 3. In the counter affidavit on behalf of the State of Orissa it is conceded that the Administrative Tribunal exonerated the Petitioner from the charges and submitted its report to Government. The Governor after considering the report of the Administrative Tribunal and the materials on record disagreed with the findings of the Tribunal and found the Petitioner guilty of the charges. Accordingly the punishment in question wall inflicted. The imposition of the penalty is said to have been in terms of Rule 9 of the Tribunal Rules. 4. It has first to be decided whether for the imposition of the penalty in question any steps under the Civil Service Rules were at all necessary to be taken. Mr. Mohanty does no dispute the validity of the Disciplinary Proceedings (Administrative Tribunal) Rules, 1951. 4. It has first to be decided whether for the imposition of the penalty in question any steps under the Civil Service Rules were at all necessary to be taken. Mr. Mohanty does no dispute the validity of the Disciplinary Proceedings (Administrative Tribunal) Rules, 1951. In fact they have already been found to be valid. Under the scheme of these rules, it is open to Government either suo motu or on the request of the Government servant concerned to refer any case relating to a gazetted Government servant or a non-gazetted Government servant of Class-III in respect of the enumerated matters in Rule 4 to the Tribunal Rules 6, 7 and 7-A provide the procedure for inquiry. As per Rule 8, after completion of the inquiry, the Tribunal is to make a record of the case which it shall state the charges, the explanation of the delinquent and its own findings. In case the Tribunal is satisfied that some punishment should be imposed, it has also to formulate its recommendation about the punishment. Rule 9 which is material in this case provides thus: 9. (1)*** *** (2) The Governor may, before passing final orders, consult the Tribunal, if necessary, in such manner as he may deem fit. (3) No appeal shall lie against the orders so passed by the Governor. Rule 12(1) which has some bearing on the contention raised by Mr. Mohanty provides thus: In the event of any conflict between the provisions of these rules and those of the Civil Services (Classification, Control and Appeal) Rules, 1962 and the Bihar and Orissa Subordinate Services Discipline and Appeal Rules, 1936, and any notification or order issued under those rules in their application to persons to whom these rules apply, the provisions of these Rules shall prevail. 5. The Civil Service rules make a more elaborate procedure for disciplinary matters. Part V of the rules deals with discipline. Rule 13 provides the various penalties. Rule 14 prescribed the disciplinary authorities. Rule 15 deals with the procedure for imposition of major penalties which are items (vi) to (ix) of Rule 13. Rule 16 deals with imposition of minor penalties. Miscellaneous provisions are made in Rules 17, 18, 19 and 20 of the Rules 21 of Part. VI debars appeal against order made by the Governor. 6. Rule 15 deals with the procedure for imposition of major penalties which are items (vi) to (ix) of Rule 13. Rule 16 deals with imposition of minor penalties. Miscellaneous provisions are made in Rules 17, 18, 19 and 20 of the Rules 21 of Part. VI debars appeal against order made by the Governor. 6. Thus for Government employees in regard to disciplinary actions two sets of rules hold the field. If the Governor decides under Rule 4 of the Tribunal Rules to make a reference of the case to the Tribunal, the procedure which is less elaborate and as has been indicated under those rules, applies, while in a normal case under the Civil Service Rules, the more elaborate procedure applies, In the case of State of Orissa v. Bidyabhusan 1963 S.C.D. 368 the Tribunal Rules came up for consideration. Their Lordships came to hold that mere adoption of one procedure in preference to another permissible procedure would not justify an inference of unlawful discrimination. It was open to the authorities to resort to anyone of the procedures for holding an injury against the public servant charged with misdemeanour. It was further found that the existence of a right of appeal against the order of an administrative head imposing penalty and absence of such a right of appeal against the order of Governor under the Tribunal Rules, do not result in any discrimination. Their Lordships further said: Under the Tribunal Rules, there is no enumeration of penalties, but it is left to the Governor in his discretion after considering the report of the Tribunal to select the appropriate punishment having regard to the gravity of the delinquency. From the aforesaid observation of their Lordships of the Supreme Court it would clearly follow that in respect of action taken under the Tribunal Rules, the procedure for disciplinary action under the Civil Service Rules has no application. Though broadly the punishment to be imposed under Rule 9(1) of the Tribunal Rules would be one of those enumerated in Rule 13 of the Civil Service Rules, the requirement of Rules 15 and 16 of the Civil Service Rules would be attracted. 7. Where, however, the punishment to be inflicted is one provided under Article 311(2) of the Constitution, the requirements of that Article has to be satisfied before punishment can be inflicted validly. 7. Where, however, the punishment to be inflicted is one provided under Article 311(2) of the Constitution, the requirements of that Article has to be satisfied before punishment can be inflicted validly. Rule 15 of the Civil Service Rules virtually provides the same procedure as indicated under Article 311(2) of the Constitution. If for the infliction of a major punishment under the Tribunal rules that procedure is followed, it is not because the Civil service Rules provide the mandate, but because the provisions of Article 311(2) of the Constitution have to be complied with. 8. With the aforesaid conclusion, Mr. Mohanty?s contention has to be negatived. It was not necessary for the Governor to give any second notice or further opportunity to the delinquent Petitioner after the Tribunal?s report under Rule 8 was received by the Governor. The Petitioner had due opportunity of knowing the case against him when he participated in the inquiry before the Tribunal. The Tribunal did not find the Petitioner guilty and after the records of the proceedings were received, the Governor, upon consideration of the recommendation of the Tribunal to drop the proceeding, did not agree with it and found the Petitioner guilty of the charge and imposed the punishment in question. It was indeed in compliance with the provisions of the Tribunal Rules. 9. Mr. Mohanty does not contend that the punishment imposed in this case is one which is covered under Article 311(2) of the Constitution. It was his contention that the punishment inflicted was one covered by Rule 13(vi) of the Civil Service Rules, while it was learned Government Advocate?s contention that it came under Clause (3) of that rule. It is not necessary for us to decide as to which of the contentions is correct, because the contention of Mr. Mohanty with reference to that rule has already been ruled out as not available. If a major penalty within the meaning of Article 311(2) of the Constitution was being imposed, the Petitioner was certainly entitled to a further notice as envisaged in that Article. But as long as that Article was not attracted, the Petitioner was not entitled to any further opportunity after the records of the proceedings of the Tribunal came to the Governor and the punishment in question was imposed. 10. The writ petition accordingly fails and is, dismissed. We do not award any costs. K.B. Panda, J. 11. But as long as that Article was not attracted, the Petitioner was not entitled to any further opportunity after the records of the proceedings of the Tribunal came to the Governor and the punishment in question was imposed. 10. The writ petition accordingly fails and is, dismissed. We do not award any costs. K.B. Panda, J. 11. I agree.