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2008 DIGILAW 1067 (ORI)

Purna Chandra Pattnaik v. State of Orissa

2008-11-28

B.N.MAHAPATRA, B.S.CHAUHAN

body2008
JUDGMENT DR. B.S. CHAUHAN, C.J. — This writ petition has been filed for quashing the impugned order dated 1.12.1998 (Annex-1) by which the punishment order had been passed against the petitioner after holding Disciplinary Proceedings. 2. The facts and circumstances giving rise to the case are that the petitioner the then Sub-Divisional Judicial Magistrate (SDJM) was served with a charge sheet containing nine charges of granting bail for extraneous consideration when he was posted at Nawarangpur. For that purpose, this Court appointed the Enquiring Officer, who after completing the enquiry meeting all the re¬quirement of law and principles of natural justice submitted the Enquiry Report dated 20.10.1997 exonerating the petitioner from all the charges. The Enquiry Report was considered by this Court on administrative side. The Court cautioned the officer and asked to be careful in future, he was kept under observation. It was directed that these facts be reflected in his C.C.Rs. Further the period during which he remained under suspension was to be treat¬ed as such. Hence this writ petition. 3. Learned counsel for the petitioner Mr. Mohanty has submitted that in view of the fact that the petitioner had been exonerated of all the nine charges, it was not permissible for the Court to impose any kind of punishment whatsoever and that too without disagreeing with the Enquring Officer and recording the reasons for such disagreement. Therefore, the punishment is liable to be quashed. 4. On the contrary, Sri. P. Panda, learned Addl. Standing Counsel has submitted that undoubtedly the Enquiring Officer had exonerated the petitioner from all the nine charges, but as the Full Court had been of the considered opinion that he had not acted in good faith, minor punishment had been imposed only treating the period of suspension as such. Therefore, no inter¬ference is called for. 5. We have considered the rival contentions of the parties and perused the record. 6. It is settled legal proposition that scope of judicial review of Disciplinary Proceedings is negligible and the Court should not interfere unless the order is found suffering from illegality or perversity. Review lies against the process in decision making and not against the decision itself. 7. In the instant case, nine charges had been framed against the petitioner and he was exonerated of all the charges by the enquirying Officer giving twenty eight page report. Review lies against the process in decision making and not against the decision itself. 7. In the instant case, nine charges had been framed against the petitioner and he was exonerated of all the charges by the enquirying Officer giving twenty eight page report. Thus it cannot be held that the report was not given exonerating him on each individual charge. In case the High Court was of the view that the Enquiry Officer had not appreciated the evidence cor¬rectly, the Court could reach different conclusion by recording reasons and then show cause notice ought to have been issued to the petitioner for giving reply to the same. Recording reasons for disagreement with the inquiry report is a condition precedent to proceed against a delinquent officer. Further, he has to be given an opportunity to meet the same. 8. If the competent authority does not agree with the Inquiry Officer, he must record reasons for disagreement and supply the same to the delinquent to file his comments/objec¬tions. Otherwise the order would stand vitiated for non-compliance of the principles of natural justice. 9. In Punjab National Bank & Ors., v. Kunj Behari Misra, AIR 1998 SC 2713 , the Apex Court considered this issue observing as under : “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 enquiry 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 enquiry officer contain¬ing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final deci¬sion 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. The principles of natural justice, as we have already observed, require the authority which has to take a final deci¬sion 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. The aforesaid conclusion which we have arrived at is also in consonance with the underlying principle enunciated by this Court in the case of Institute of Chartered Accountants of India v. L.K. Ratna & Ors., AIR 1987 SC 71 . While agreeing with the deci¬sion in Ram Kishan v. Union of India & Ors., AIR 1996 SC 255 , we are of the opinion that the contrary view expressed in State Bank of India, Bhopal v. S.S. Koshal, 1994 Supp. (2) SCC 468; and State of Rajasthan v. M.C. Saxena, AIR 1998 SC 1150 , do not lay down the correct law” (Emphasis added). 10. The judgment in Kunj Bihari Mishra (supra) was consid¬ered and approved by the Apex Court in Yoginath D. Bagde Vs. State of Maharashtra & Anr., AIR 1999 SC 3734 ; High Court of Judicature at Bombay Vs. Sashikant S. Patil & Anr., AIR 2000 SC 22 ; J.A. Naik¬satam Vs. Prothonotary & Senior Master, High Court of Bombay & Ors., (2004) 8 SCC 653 ; State Bank of India & Ors. Vs. Arvind K. Shukla, (2004) 13 SCC 797 . 11. In the instant case, the record reveal that after considering the inquiry report, the Full Court in its meeting dated 21.11.1998 resolved as under : “Considering the nature of the allegations made and conclu¬sions of the Enquiring Officer, the Full Court finds that though he has been exonerated of all the charges, there is scope for entertaining a doubt about the motive. Therefore, the officer be cautioned to be careful in future and he shall be kept under observation. Inform the concerned District & Sessions Judge and C.J.M. This should be reflected in his C.C.R. Resolved further that the period of suspension shall be treated as such.” (Empha¬sis added) 12. In view of the settled legal proposition as explained herein above, such a course was not permissible. The order has been passed in utter disregard to the principles of natural justice. 13. In view of the settled legal proposition as explained herein above, such a course was not permissible. The order has been passed in utter disregard to the principles of natural justice. 13. Rule 13 of the Orissa Civil Service (C.C.A.) Rules, 1962 provides for major and minor punishments and it reads as under :- “13. Nature of penalties- The following penalties may for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely : (i) fine (ii) censure (iii) withholding of increments (without cumulative effect; and (iii-a) withholding of promotion; (iv) recovery from pay of the whole, or part of any pecuniary loss caused to Government, or to a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by Government, or to a local authority set up by an Act of Parliament or of the Legislature of a State by negligence or breach of orders; (v) suspension; (vi) reduction to a lower service, grade or post or to a lower time-scale or to a lower stage in a time scale; (vi-a) withholding of increments (without cumulative effect); and (vii) compulsory retirement; (viii) removal from service which shall not be a disqualifica¬tion for future employment; Provided that the penalty of fine shall be imposed only on Class IV Government servants.” 14. From the aforesaid Rule, it is clear that ‘suspension’ is a punishment under the Rule. Further direction “to be cau¬tioned and be careful in future and shall be kept under observation”, was outside the aforesaid Rules and could not be provided for unless it is held to be merely advisory: 15. In such a fact situation, as the Full Court has not disagreed with the Enquiring Officer nor it recorded any reasons for disagreement nor gave any notice to the petitioner, we are of the opinion that such an order is not sustainable in law. Petition succeeds and is allowed. The order impugned dated 1.12.1998 (Annex-1) is hereby quashed. The period of suspension is to be treated as part of service and petitioner shall be entitled for the difference of arrears of the subsistence allowance paid to him during the period of suspension and his actual salary. The arrear be paid to the petitioner with interest @ 9% per annum, within a period of four months from today. B.N. MAHAPATRA, J. I agree. Petition allowed.