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2008 DIGILAW 855 (ORI)

Benudhar Mohapatra v. Union of India

2008-09-19

I.MAHANTY, L.MOHAPATRA

body2008
JUDGMENT L. MOHAPATRA, J. — The petitioner in this writ application assails the order of the Central Administrative Tribunal, Cuttack Bench, Cuttack dated 30.11.2004 passed in O.A. No.1009 of 2002 directing further inquiry in a departmental proceeding. 2. The petitioner while working as a Primary Teacher in Kendriya Vidyalaya, INS Chilika, was served with a memorandum of charges through the Principal of the said school on 11.6.1991 and a departmental proceeding was initiated against him on the basis of the said charges. He submitted his reply to the charges and the inquiry continued for almost eight years. The proceeding having not been completed in spite of passage of several years, the petitioner approached this Court in a writ application and the said writ application was disposed of directing the authori¬ties to complete the departmental proceeding within a month from the date of receipt of the order. The proceeding having not been completed within the time granted by this Court, the petitioner again approached this Court by filing another writ application. The said writ application was disposed of on 25.11.1998 holding that the direction having been already passed in the earlier writ application for early completion of disciplinary proceeding, no further order is necessary. However, the disciplinary proceeding was completed in a haste after the second writ application was disposed of and steps were being taken for imposing penalty. Apprehending imposition of major penalty, the petitioner again approached this Court in O.J.C. No.2467 of 1999 and the Central Administration Tribunal having been constituted under the Admin¬istrative Tribunals’ Act, the writ application was transferred to the Tribunal and was registered as O.A. No.86 of 1999. During pendency of the original application, on the basis of the inquiry report penalty was imposed on the petitioner by order dated 6.12.1999 and, therefore the aforesaid O.A. was disposed of with a direction to the petitioner to approach the appellate authority against the order of punishment. The appellate authority having dismissed the appeal on 13.6.2001, the present original applica¬tion was filed by the petitioner challenging he punishment. The Tribunal in the impugned judgment found that the petitioner has not been given an opportunity to cross-examine the witnesses, there was insufficiency of materials in order to hold the peti¬tioner guilty of the charges and, accordingly, directed for fur¬ther inquiry by quashing the order of punishment. The Tribunal in the impugned judgment found that the petitioner has not been given an opportunity to cross-examine the witnesses, there was insufficiency of materials in order to hold the peti¬tioner guilty of the charges and, accordingly, directed for fur¬ther inquiry by quashing the order of punishment. Challenging the said order of the Tribunal, this writ application has been filed. 3. The learned counsel for the petitioner assails the impugned judgment solely on the ground that the Tribunal having come to a conclusion that the petitioner had not been given rea¬sonable opportunity of hearing in the departmental proceeding, should have quashed the entire proceeding and the punishment imposed on the basis of the report of the inquiry officer and there was no scope to direct for further inquiry. Shri Ashok Mohanty, the learned Senior Counsel appearing for the opposite parties submitted that considering the nature of charges levelled against the petitioner, the Tribunal was justi¬fied in remitting the matter back to the inquiry officer for further inquiry. 4. It appears from the impugned judgment that the peti¬tioner raised two contentions. Firstly, that the copy of the charge memo contained an annexure listing some documents on the basis which, charges were framed but the said documents were not supplied to him in spite of request. The second contention raised before the Tribunal was that the photo copy letter allegedly written by him to one Vishwanath Das along with English transla¬tion thereof had not been made available to him and, therefore he could not defend himself properly. The Tribunal in the impugned judgment came to the following conclusion : “From the above, it is clear that the disciplinary proceeding against the applicant was vitiated because of denial of his right to re-examine/cross-examine the witnesses without valid ground and also for lack of sufficiency of evidence.” 4. Now the question that arises for consideration is as to whether having come to such a conclusion, it was open for the Tribunal to remit the matter back to the inquiry officer for further inquiry. The department having framed the charges, it was the duty on the part of the disciplinary authority to prove the said charge. Now the question that arises for consideration is as to whether having come to such a conclusion, it was open for the Tribunal to remit the matter back to the inquiry officer for further inquiry. The department having framed the charges, it was the duty on the part of the disciplinary authority to prove the said charge. If the department has not been able to prove the charges levelled against the petitioner and the Tribunal comes to a specific finding that the case suffers from insufficiency of evidence, it could not have remitted back the case to the inquiry officer for further inquiry to prove the charges. Apart from the above, it appears that the Tribunal directed for examination of said Vishwanath Das to prove the charges which the department never thought in course of proceeding. The Tribunal also having come to a conclusion that the petitioner had not been given an opportunity to re-examine/cross-examine the witnesses in course of the departmental enquiry, the report of inquiry officer, order of the disciplinary authority as well as the order of the appel¬late authority should have been quashed by the Tribunal and the Tribunal could not have remitted the matter back to the inquiry officer giving another opportunity to the department to prove the charges. We, therefore accept the contention of the learned counsel for the petitioner and set aside that part of the order of the Tribunal directing further inquiry. 5. The Tribunal having come to a specific finding that the petitioner had been denied his right to re-examine/cross-examine the witnesses without valid ground and that the materials were insufficient to hold the petitioner guilty of the charges, the report of the inquiry officer, the order of punishment passed by the disciplinary authority as well as the appellate order stand quashed. With the above modification in the order of the Tribunal, this writ application is disposed of. I. MAHANTY, J. I agree. Application disposed of.