Research › Search › Judgment

Orissa High Court · body

2011 DIGILAW 519 (ORI)

Mangobinda Samantray v. Union of India

2011-10-17

B.K.PATEL, P.MOHANTY

body2011
ORDER 17.10.2011 – Heard Mr. Jena, learned counsel for the petitioner and Mr. Das, learned Central Government Counsel. In this writ application, the petitioner prays to quash the final order dated 15.07.2000 passed by the Disciplinary Authority (Annexure-3), show cause notice issued by the appellate authority for enhancement of punishment (Annexure-5) and the order of the appellate authority terminating him from service (Annexure-8). The brief facts of the case are that the petitioner, while working as Constable under CISF Unit, N.T.P.C. Kaniha, was issued with a charge-sheet (Annexure-1) for gross misconduct, dereliction of duty and assault to senior officers. As the petitioner in his reply denied the allegations, enquiry proceeding was initiated and opposite party No.5 was appointed as the Enquiry Officer. After conclusion of the enquiry, the Enquiry Officer found that the charges levelled against the petitioner are proved. The Disciplinary Authority on receipt of the enquiry report after following due procedure passed final order on 15.07.2000 (Annexure-3) imposing penalty of reduction of pay by two stages, i.e., from Rs. 3425/- to Rs. 3275/- in the time scale of pay for a period of 3 years with immediate effect and the petitioner will not earn increments of pay during the period of reduction and that on expiry of this period the reduction will have the effect of postponing his future increments of pay. Aggrieved by the order of punishment the petitioner preferred an appeal before the appellate authority (opposite party No.3). While considering the appeal the appellate, authority issued show-cause notice (Annexure-5) to the petitioner proposing enhancement of penalty. After receiving the said show cause notice the petitioner preferred a revision (Annexure-6) through proper channel but the same was not accepted by the Unit Officer on the ground of maintainability. Thereafter, the petitioner filed a petition before the appellate authority for extension of time to file show cause. But, the appellate authority instead of extending the time for filing show cause passed the order of dismissal from service which is impugned in this writ application. Learned counsel for the petitioner submits that the impugned order enhancing the penalty suffers from violation of principles of natural justice inasmuch as the same has been passed by the appellate authority without giving adequate opportunity to the petitioner to defend himself. Learned counsel for the petitioner submits that the impugned order enhancing the penalty suffers from violation of principles of natural justice inasmuch as the same has been passed by the appellate authority without giving adequate opportunity to the petitioner to defend himself. He further submits that on the face of the impugned order it would be apparent that the appellate authority before passing the same has not applied his mind to the documents placed before him. Mr. Das, learned Central Govt. Counsel appearing for CISF submits that the writ petition is not maintainable. The petitioner has not availed alternative remedy and approached this Court directly. He further submits that the enquiry has been conducted against the petitioner as per the C.I.S.F. Acts and Rules by following principles of natural justice. The finding of the Enquiry Officer is based on the evidence adduced during the enquiry. As a matter of fact, no revision has been filed by the petitioner before the revisional authority. He further submits that after going through the appeal memo and the connected records/evidence the appellate authority came to the conclusion that the penalty imposed does not commensurate the gravity of the charge and accordingly issued show cause notice to the petitioner proposing enhancement of penalty. As the petitioner despite adequate opportunity did not file his reply to the show cause, the appellate authority imposed the punishment of dismissal from service. Therefore, no illegality or irregularity has been committed by the appellate authority in passing the impugned order dismissing the petitioner from service. Keeping the rival submissions in view this Court perused the records of this case as well as of the disciplinary authority and the appellate authority which are produced by Mr. Das, learned Central Govt. Counsel pursuant to the order dated 08.07.2011. As it appears, after receipt of the show cause notice for enhancement the petitioner filed a petition before the appellate authority seeking extension of time to file show-cause reply on the ground that he could not obtain papers from his lawyers since they were on strike. But, evidently no order was passed by the appellate authority on the said petition. As it appears, after receipt of the show cause notice for enhancement the petitioner filed a petition before the appellate authority seeking extension of time to file show-cause reply on the ground that he could not obtain papers from his lawyers since they were on strike. But, evidently no order was passed by the appellate authority on the said petition. On perusal of the records of appeal it further appears that on 09.01.2001 an endorsement has been made in the order-sheet to the effect that a draft order has been prepared and placed before the appellate authority (opposite party No.3) for kind perusal and approval. The appellate authority on 15.01.2001 has approved the said draft order. From the aforesaid, it can be safely inferred that the order of enhancement of penalty was drafted by the subordinate staff and the appellate authority has only approved the same without applying his mind. In view of the above, this Court quashes the order of the appellate authority and remits the matter back to the appellate authority to hear it afresh. The entire exercise shall be completed within six months. This Court directs the petitioner to file his show-cause reply to Annexure-5 within six weeks from today. The writ petition is accordingly disposed of. Urgent certified copy of this order be granted on proper application. Petition disposed of.