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2002 DIGILAW 301 (ORI)

Padma Charan Tripathy v. State of Orissa

2002-05-14

PRADIP MOHANTY, R.K.PATRA

body2002
JUDGMENT PRADIP MOHANTY, J. — The petitioner, in this application under Articles 226 and 227 of the Constitution of India, has challenged the validity of the order of the Orissa Administrative Tribunal dated 17.10.1998 dismissing his O.A. No. 3627(C) of 1996 which was directed against the order of his reversion. The case of the petitioner, in brief is that, while he was working as Assistant Engineer in-charge of Balimela Electrical Division, a departmental proceeding was initiated against him. The following charges were framed against him : (a) Misconduct; (b) Misappropriation of Government materials. (c) Tampering of Government records. The petitioner submitted his explanation denying the charges levelled against him and stated that he joined as Assist¬ant Engineer, Balimela Electrical Division in July, 1986 and the indents for supplying of materials were merely placed before him for post-facto approval. An Enquiry Officer was appointed to enquire into the charges. On conclusion of the enquiry, he submitted his report holding the petitioner guilty of the charges. On the basis of the said report, the Disciplinary Authority called upon the petition¬er to submit his reply with regard to the findings of the Enquiry Officer. The petitioner submitted his reply. On consideration of all the materials, the Disciplinary Authority imposed the penalty of reversion. Accordingly, the petitioner was reverted from the rank of Assistant Executive Engineer (Civil) to the Assistant Engineer (Civil) vide order under Annexure-9. The said order under Annexure-9 was challenged before the State Administrative Tribunal, Cuttack Bench, Cuttack in O.A. 3627 (C) of 1996. The Tribunal in its order (Annexure-11) dismissed the O.A. Hence, this writ application. 3. Mr. Manoj Mishra, learned counsel for the petitioner, submits that the findings of the Enquiry Officer are perverse being based on ‘no evidence’. He further submits that the Enquiry Officer was biased and prejudiced which ultimately resulted in unreasonable findings. It is also submitted that the procedure prescribed under Rule 15 of the Orissa Civil Services (Classifi¬cation, Control and Appeal) Rules, 1962 (for short, ‘the C.C.A. Rules’) has not been followed while imposing penalty in question. It is also contended that there is total non-application of mind by the Tribunal while confirming the order of reversion. 4. We have perused the records of the disciplinary pro¬ceeding produced by the learned Additional Government Advocate. On perusal of the disciplinary file it is found that, no witness was examined during the enquiry. It is also contended that there is total non-application of mind by the Tribunal while confirming the order of reversion. 4. We have perused the records of the disciplinary pro¬ceeding produced by the learned Additional Government Advocate. On perusal of the disciplinary file it is found that, no witness was examined during the enquiry. The Enquiry Officer has simply recorded the statement of the petitioner and concluded the pro¬ceedings on the same day. The Enquiry Officer appears to have relied upon some documents marked as “(a) to (k)”. On the basis of such materials, he held the petitioner guilty of the charges. The Enquiry Officer stated in his report that the oral evi¬dence adduced was taken on 25.4.95 but no such oral evidence is available on record. It appears from the record that the Enquiry Officer has not followed the procedure prescribed under Rule 15(6) of the C.C.A. Rules by not examining witnesses and not giving an opportunity to the petitioner to controvert the docu¬mentary evidence exhibited by the department. It is worth-while to mention here that the Enquiry Officer called one P.C. Mohapa¬tra, Junior Engineer (Electrical) for his oral evidence, but he was not examined. No reason is assigned by the Enquiry Officer for his non-examination. We also find from the records that the Enquiry Officer has not followed the procedure, such as, non-maintaining of the order sheet, non-recording of the evidence, non-affording of opportunities to the petitioner to controvert the documentary evidence and to examine any witness in his de¬fence. Since the procedure envisaged under Rule 15 of the C.C.A. Rules is not followed, the enquiry is vitiated affecting the report of the Enquiry Officer. 5. So far as the other contention of the learned counsel that the Enquiry Officer was biased against the petitioner is concerned, we find from the record that the petitioner represent¬ed vide letter dated 13.2.95 for change of the Enquiry Officer. It is evident from the letter under Annexure-2 that the above letter of the petitioner was received by the Disciplinary Authority and the Disciplinary Authority has requested the peti¬tioner to intimate the name and designation of the officer from whom the petitioner did not expect justice for enquiring into the charges. It is evident from the letter under Annexure-2 that the above letter of the petitioner was received by the Disciplinary Authority and the Disciplinary Authority has requested the peti¬tioner to intimate the name and designation of the officer from whom the petitioner did not expect justice for enquiring into the charges. Accordingly, the petitioner under Annexure-3 requested to replace R. N. Pati, the Enquiry Officer, but it appears that no steps were taken and R. N. Pati concluded the enquiry and submit¬ted the report. Since the Disciplinary Authority itself issued the letter vide Annexure-2 and the petitioner having specifically wanted to change the Enquiry Officer R. N. Pati, there was no justification not to change him. Since the petitioner specifical¬ly wanted that R. N. Pati should not conduct the enquiry in his letter dated 10.4.95 and knowing this, the enquiry was abruptly concluded on 25.4.95 in one day, the apprehension that there is every likelihood of bias on the part of the Enquiry Officer cannot be ruled out. In this connection the decision of the apex Court in the case of S. Parthasarathi v. State of Andhra Pradesh, AIR 1973 SC 2701 may be referred to. In paragraph 16 of the judgment their Lordships have held : “......If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision (see per Lord Denning, M. R. in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon (1968) WLR at p. 707-1tc.)” The above decision was subsequently followed in the case of Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, AIR 2001 SC 24 . In the case at hand, since the Enquiry Officer adopted a procedure which is contrary to the Rules and since it cannot be ruled out that he was biased, it would be unfair to rely on such report. 6. For the reasons stated above, the order of reversion cannot be supported and is liable to be quashed. The Tribunal lost sight of the fact that the Enquiry Officer abruptly conclud¬ed the proceeding on one day without giving opportunity of hear¬ing to the petitioner and the bias of the Enquiry Officer against him cannot be easily brushed aside as he had been insisting for change of the Enquiry Officer. The Tribunal lost sight of the fact that the Enquiry Officer abruptly conclud¬ed the proceeding on one day without giving opportunity of hear¬ing to the petitioner and the bias of the Enquiry Officer against him cannot be easily brushed aside as he had been insisting for change of the Enquiry Officer. In the result, the impugned order of the Tribunal and the order of reversion are hereby quashed. It is open to the disci¬plinary authority to commence the disciplinary proceedings, if so advised, from the stage the illegality had crept in as noticed by us in this order. The writ petition is allowed. No costs. R. K. PATRA, J. I agree. Petition allowed.