Dusmanta Kishore Swain v. Cuttack Development Authority
2010-04-26
A.S.NAIDU, B.N.MAHAPATRA
body2010
DigiLaw.ai
JUDGMENT A.S. NAIDU, J. : There are persons who have a habit of approaching the Courts more than once for ventilating their grievance and there are also persons who are compelled to ap¬proach the Court for redressal of contemplated injustice caused to them. The petitioner belongs to later class. 2. The facts and point of law in all these Writ Petitions being more or less identical, the same are taken up for hearing with consent of learned counsel for the parties. 3. The petitioner was working as Senior Accounts Assistant in the establishment of Cuttack Development Authority (hereinaf¬ter referred to as “C.D.A”) which is a creature under the Orissa Development Authority Act, 1982. The Finance and Accounts Member of C.D.A. to whom the petitioner was attached had assigned him number of onerous duties, which according to learned counsel for the petitioner, the petitioner was performing diligently. It is stated that the petitioner is an honest person and he had never succumbed to the pressure and was strict in maintaining accounts, consequently he became an eyesore of many persons who were hold¬ing responsible posts in the establishment and were dealing with finance matters. 4. On the basis of certain allegations the petitioner was put under suspension in the year 2007 by the Vice-Chairman-cum-Disciplinary Authority of C.D.A. Subsequently on 18.4.2007 the Disciplinary Authority issued a Memorandum of Article of Charges and decided to hold an enquiry in consonance with Rule 15 of the Orissa Civil Service (C.C. & A) Rules, 1962. The main allegation was with regard to negligence in duty, misuse of official posi¬tion and misconduct. The petitioner was called upon to submit his show cause within 30 days. Due to paucity of time it is stated, the petitioner was not in a position to prepare his show cause and prayed for extension of time. The petitioner also requested to supply certain relevant documents basing upon which charges were framed so as to enable him to file a full-fledged show cause. It is alleged, instead of considering the application filed by the petitioner the Disciplinary Authority appointed opposite party No.4 as Enquiry Officer to enquire into the charges framed against the petitioner. Thereafter, opposite party No.4 issued a letter calling upon the petitioner to attend the preliminary enquiry, which was scheduled to 11.6.2007.
It is alleged, instead of considering the application filed by the petitioner the Disciplinary Authority appointed opposite party No.4 as Enquiry Officer to enquire into the charges framed against the petitioner. Thereafter, opposite party No.4 issued a letter calling upon the petitioner to attend the preliminary enquiry, which was scheduled to 11.6.2007. After receipt of the above two letters the petitioner once again re¬quested the authorities to supply copies of relevant papers and documents on the basis of which charges were framed so as to enable him to file his show cause. The petitioner also filed another application with a prayer to change the Enquiry Officer-opposite party No.4 mainly on the ground that some of the charges have been framed at the behest of said opposite party. According to the petitioner in course of discharging his duties he had pointed out certain illegalities and irregularities in the ac¬counting procedure adopted by opposite party No.4 who was working as an Engineer at the relevant time and that he is the main architect in leveling the allegation against the petitioner and initiation of the proceeding. 5. According to learned counsel for the petitioner no steps were taken by the Disciplinary Authority either to supply the documents called for by the petitioner or to change the Enquiry Officer. It is further submitted that the apprehension of the petitioner that the Enquiry Officer - opposite party No.4 entertain bias against him is apparent from the fact that though a time petition was filed the said authority rejected the same. Thus it is submitted that there was gross violation of the prin¬ciples of audi alteram partem and also principles of natural jus¬tice and equity. The petitioner, therefore approached this Court in W.P.(C) No.7378 of 2007 with a prayer to direct the Discipli¬nary Authority to change the Enquiry Officer and to supply re¬quired documents. The said Writ Petition was disposed of on 21.6.2007 observing as follows :- “So far as the prayer for change of Enquiry Officer is concerned, we are not inclined to accede to such prayer of the petitioner at this stage.
The said Writ Petition was disposed of on 21.6.2007 observing as follows :- “So far as the prayer for change of Enquiry Officer is concerned, we are not inclined to accede to such prayer of the petitioner at this stage. As regards the supply of required documents, it is open to the petitioner to pray for supply of copies of such documents and if the said documents are voluminous in nature, the authority shall allow the petitioner to inspect and/or take photocopies of the same at the cost of the petitioner in presence of the custo¬dian of that record.” 6. In pursuance to the said direction the petitioner submitted another application on 25.6.2007 before opposite party No.2 with a prayer to permit him to inspect relevant documents, files and registers. The petitioner also prayed to supply him Xerox copies of those documents so as to enable him to prepare the show cause. It is further alleged that the authorities per¬mitted the petitioner to inspect the documents bearing Sl. Nos.1 to 4 but then denied him to inspect documents of Sl. Nos. 5, 6, 7 and 8 though the same were very much necessary, on the ground that those documents are not relevant to the draft charges. Though the petitioner made repeated request to verify the said documents and tried to convince the authorities that the said documents had nexus with the allegation levelled, permission was not granted to the petitioner. 7. While matter stood thus, it is stated, opposite party No.4-the Enquiry Officer once again fixed a date for Preliminary Enquiry and without waiting for inspection of the documents by the petitioner, proceeded with the enquiry. The Enquiry Officer, it is alleged, did not permit the petitioner to engage an advo¬cate to defend him in the enquiry and proceeded with the enquiry as if he is determined to punish the petitioner and such action of the Enquiry Officer, it is stated gave an impression to the petitioner that he has mala fide intention and has made up his mind to see that the petitioner is found guilty so that the ille¬galities and irregularities committed by him (opposite party No.4) would not be disclosed. 8.
8. With the aforesaid averments W.P.(C) No.10291 of 2007 has been filed with a prayer to quash the order dated 12.6.2007 (Annexure-11 to the said Writ Petition) issued by the Secretary, C.D.A. rejecting the request made by the petitioner to change the Enquiry Officer and for other consequential reliefs. It appears that during pendency of W.P.(C) No.10291 of 2007 the Enquiry Officer proceeded with the enquiry ex parte and submitted a report. The petitioner has also filed W.P.(C) No.10977 of 2007 with a prayer to quash the ex parte enquiry report dated 28.8.2007 (Annexure-6 to the said Writ Petition) passed by opposite party No.4 with other consequential reliefs. The petitioner had also filed W.P.(C) No.4667 of 2008 as¬sailing the order of suspension dated 04.4.2007 (Annexure-2 to the said Writ Petition). 9. Detailed counter affidavits have been filed by the C.D.A. repudiating all the allegations made in the Writ Peti¬tions. According to Mr. Mishra, learned Senior Advocate appearing for C.D.A., the petitioner has committed grave errors and several allegations of malfeasance and misfeasance as well as misappro¬priation and embezzlement of funds are levelled against him. The Disciplinary Authority after due application of mind had appoint¬ed opposite party No.4 a very responsible Senior Officer of C.D.A. to act as an Enquiry Officer. Enough opportunity was granted to the petitioner to inspect the documents, which have some nexus with the charges framed. Unfortunately the petitioner without availing the said opportunity insisted to inspect volumi¬nous records which have no connection or nexus with the charges framed. The entire endeavour, it is stated, was just to evade the enquiry as long as possible. It is further submitted that the prayer made by the petitioner to change the Enquiry Officer having been rejected by this Hon’ble Court earlier the said prayer is not available any more to the petitioner. 10. The matter was argued at length by learned counsel for the petitioner. In course of his argument he once again reiterat¬ed the stand that opposite party No.4 was appointed as Enquiry Officer entertained bias against the petitioner and as such law requires he should be changed so as to give fair and equitable justice to the petitioner.
10. The matter was argued at length by learned counsel for the petitioner. In course of his argument he once again reiterat¬ed the stand that opposite party No.4 was appointed as Enquiry Officer entertained bias against the petitioner and as such law requires he should be changed so as to give fair and equitable justice to the petitioner. Further referring to the earlier order dated 21.6.2007 passed by this Court in W.P.(C) No.7378 of 2007, learned counsel for the petitioner submitted that this Court did not entertain the prayer of the petitioner to change the Enquiry Officer at that stage which indicates that liberty was granted to the petitioner to reiterate his prayer once again at a later stage of the proceeding. Learned counsel for the petitioner reit¬erated that the action of the Enquiry Officer not permitting the petitioner to verify the documents basing upon which the charges have been framed and connected documents, not allowing the peti¬tioner to engage advocate, not granting the petitioner enough opportunity and/or breathing space to prepare his show cause, indicates that opposite party No.4 entertains bias, thus it is a case where the Enquiry Officer needs to be changed. 11. So far as question of bias is concerned it goes without saying that justice should not only be done but manifestly and undoubtedly seem to be done (See 1959 SC 1376). In the case of M.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon reported in (1968) 3 W.L.R. 694 at page 707 it is observed by Lord Denning as follows :- “If a reasonable man would think on the basis of the exist¬ing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision.” In the case of Kumaon Mandal Vikas Nigam Ltd. v. Girija Shankar Pant reported in AIR 2001 SC 24 the Supreme Court once again reiterated the said principle. The Supreme Court in the case of S. Parthasarathi v. State of Andhra Pradesh reported in AIR 1973 SC 2701 observed as fol¬lows :- The test of likelihood of bias which has been applied in a number of cases is based on the ‘reasonable apprehension’ of a reasonable man fully cognizant of the facts. The Courts have quashed decisions on the strength of the reasonable suspicion of the party aggrieved without having made any finding that a real likelihood of bias in fact existed.
The Courts have quashed decisions on the strength of the reasonable suspicion of the party aggrieved without having made any finding that a real likelihood of bias in fact existed. Thus the question whether a real likelihood of basis existed or not is to be determined on the probabilities to be inferred from the circumstances by Court objectively, or upon the basis of the impressions that might reasonably be left on the minds of the party aggrieved or the public at large. The test of ‘real likelihood’ and ‘reasonable suspicion’ are really in consistent with each other. We think that a Court or authority must make a determination on the basis of a whole evidence before it, whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The Court must look at the impression which other people have. This follows from the principle that justice must not only be done but seem to be done. If right minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the enquiry, nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not been ought. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The Court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the exiting circumstances that he is likely to be prejudiced, that is sufficient to quash the decision.” 12. Mr. Mishra, on the other hand forcefully submitted that no materials are available to arrive at a conclusion that the Enquiry Officer at any time entertained any bias against the petitioner. According to Mr. Mishra simply taking a plea that the Enquiry Officer was biased is not enough and if such a plea is accepted then it will become a tool in the hand of litigants. He submitted that, apart from making bald allegation of bias the petitioner failed to point out any cogent material to establish that in fact the Enquiry Officer entertained bias against him. 13. Heard learned counsel for the parties at length. Pe¬rused the materials available on record. Fact remains, a Disci¬plinary Proceeding has been initiated against the petitioner and charges have been framed.
13. Heard learned counsel for the parties at length. Pe¬rused the materials available on record. Fact remains, a Disci¬plinary Proceeding has been initiated against the petitioner and charges have been framed. The said charges have to be enquired into so as to bring the Disciplinary Proceeding to a logical end. The petitioner during pendency of the enquiry has alleged, not only bias but also made specific statements that there is gross violation of principles of natural justice and equity by the Enquiry Officer leading to bias. Such allegation involves disput¬ed questions of fact, which cannot be effectually adjudicated under Writ jurisdiction. This Court, therefore, giving conscious thought to the facts and circumstances feels that ends of justice and equity will be better served if the Writ Petitions are dis¬posed of giving liberty to the petitioner to file a detailed petition before the Chairman of C.D.A. enclosing all relevant documents within three weeks hence and directs accordingly. If such a petition is filed the Chairman shall do well to call for the records, inspect the same and if felt necessary grant oppor¬tunity of hearing to the petitioner and others and dispose of the same by a reasoned order, as expeditiously as possible. It is needless to say that the orders passed in the enquiry/Departmen¬tal Proceeding shall not be implemented till a decision is taken by the Chairman. With the aforesaid observation all these Writ Petitions are disposed of. B.N. MAHAPATRA, J. I agree. Petition disposed of.