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2012 DIGILAW 181 (ORI)

Sibaram Mishra v. State of Orissa

2012-04-03

M.P.MISRA, S.N.DASH

body2012
ORDER M.P. MISRA, MEMBER (JUDICIAL) - The applicant in the present O.A. has challenged the order of the Collector, Koraput dismissing him from service. He has also challenged the appellate order of the R.D.C. confirming the order of the Collector. 2. The case of the applicant as revealed in his O.A. may be briefly stated as follows: The applicant was working as the Head Sevak in Pradhanipaut Sevashram under Kundra Block Office in the district of Koraput in May, 1989. All on a sudden he was placed under suspension by the Collector, Koraput vide his office order dtd. 5.5.1989 at Annexure-1. Along with the order of suspension a set of charges at Annexure-2 were also served on the applicant. The applicant was charged that he was unauthorisedly absent from duty from 12.12.1987 to 16.12.1987. He was also charged that he was unauthorisedly absent from duty from 21.1.1989 to 27.1.1989. The applicant submitted his written defence on 13.5.1989 at Annexure-2. The Sub-Collector, Jeypore was appointed as the Enquiring Officer. By his order dtd. 6.7.1989 at Annexure-4 the Enquiring Officer directed the applicant to appear before him on 19.7.1989 at 10 A.M. for inquiry. In obedience to such order the applicant attended the office of the Sub-Collector at the appointed time and date. But the Enquiring Officer, though present in his office, remained otherwise busy and did not hold any inquiry. While the proceeding was pending, the Collector, Koraput served another additional charge on the applicant by his order dtd 5.10.1989 at Annexure-5. In the said additional charge the applicant was charged that during the period of suspension his headquarters were fixed at Malkangiri. But the applicant neither stayed at Malkangiri nor reported before the Sub-Collector, Malkangiri. The applicant submitted his written defence to the additional charge in his letter dtd. 29.10.1989 at Annexure-6. The Sub-Collector, Jeypore, who had been appointed as Enquiring Officer, did not actually hold any inquiry and without giving the applicant reasonable chance of defending himself submitted an inquiry report dtd. 19.8.1989 at Annexure 7-A holding the applicant guilty of the charges. On receipt of the inquiry report the Collector by his order dtd. 31.1.1990 at Annexure-7 dismissed the applicant from service. His period of suspension was also treated as such. The applicant preferred appeal to the R.D.C. (Southern Division), Berhampur vide Annexure 9-A against the order of dismissal. 19.8.1989 at Annexure 7-A holding the applicant guilty of the charges. On receipt of the inquiry report the Collector by his order dtd. 31.1.1990 at Annexure-7 dismissed the applicant from service. His period of suspension was also treated as such. The applicant preferred appeal to the R.D.C. (Southern Division), Berhampur vide Annexure 9-A against the order of dismissal. Since no order was passed by the Appellate Authority the applicant approached this Tribunal in O.A. No. 63 of 1991. The Tribunal disposed of the O.A. in their order dtd. 7.12.1999 directing the R.D.C. to dispose of the appeal within a period of two months. In spite of that the R.D.C. did not dispose of the appeal and the applicant filed a contempt petition against the R.D.C. for disobedience of the order of the Tribunal. Finally, the RDC disposed of the appeal by his order dtd. 31.1.2003 at Annexure-12 holding that the appeal should have been preferred before the concerned Head of the Department and the applicant being an incumbent under the ST/SC Development Department he should have preferred the appeal to the Director ST/SC Development Department. Accordingly, the RDC refused to entertain the appeal and advised the appellant that if the latter so liked he could approach the Director, ST/SC Development Department against the punishment awarded on him. 3. The respondents, in their counter while challenging the maintainability of the O.A., have pleaded as follows: The applicant was found unauthorisedly absent from duty from 12.12.1987 to 15.12.1987 for which an explanation was called for from him by the B.D.O., Kundra. He was again found unauthorisedly absent from duty from 21.1.1989 to 22.1.1989. The inquiry was conducted properly and the delinquent was given sufficient opportunity to defend himself. Though the applicant's headquarters during his period of suspension was fixed at Malkangiri, he disobeyed the order of the' Collector and did not report before the Sub-Collector, Malkangiri. All the charges had been established against the applicant and the order of dismissal was passed after following due procedure of law. 4. We have heard the learned counsel for the applicant and the learned Standing Counsel at length. We could have disposed of the O.A. with a direction to the Director, ST/SC Development Department to dispose of the appeal. But the matter has long been delayed. The applicant has in the meantime retired from Govt. 4. We have heard the learned counsel for the applicant and the learned Standing Counsel at length. We could have disposed of the O.A. with a direction to the Director, ST/SC Development Department to dispose of the appeal. But the matter has long been delayed. The applicant has in the meantime retired from Govt. service and a direction to the Director, ST/SC Development Department would cause further delay in disposal of the matter. Since the applicant is already 75 years old the O.A. shall be disposed of on merit without going through the technicalities. 5. Even if for the sake of argument it is accepted that the charge of unauthorised absence has been proved still it must be held that injustice has been done to the applicant. We are of the considered view that penalty of dismissal imposed on the applicant on the ground of unauthorised absence from duty is shockingly disproportionate to the gravity of the irregularity. In case of Indrajit v. Punjab and Haryana High Court and Another, reported in (2011) 1 SCC (L & S) 249. Their Lordships of the Apex Court held that absence of duty did not warrant the extreme penalty of dismissal. In the instant case the alleged unauthorised absence from duty was for a small period six to seven days. We are, therefore, of the opinion that extreme penalty of dismissal imposed on the applicant is shockingly disproportionate to the nature of delinquency. In the case of Indubhusan Dwivedy v. State of Jharkhand and another, reported in (2011) 1 SCC (L & S) 64 Their Lordships of the Apex Court held that failure to remain at headquarters during the period of suspension was not sufficient to impose penalty of dismissal. 6. In case of Surendra Prasad Shukla v. State of Jharkhand and others, reported in (2011) 2 SCC (L & S) 372 Their Lordships, considering the long period of service rendered by the applicant set aside the order of dismissal on the ground that dismissal was shockingly disproportionate to the negligence proved against him. Accordingly, Their Lordships modified the punishment of dismissal from service to compulsory retirement. In a similar case in OA No. 4249 (c) of 2010 disposed of on 22.12.2011 a Two Member Bench of this Tribunal also held that punishment of dismissal for unauthorised absence for small period was disproportionate to the negligence proved against the applicant. Accordingly, Their Lordships modified the punishment of dismissal from service to compulsory retirement. In a similar case in OA No. 4249 (c) of 2010 disposed of on 22.12.2011 a Two Member Bench of this Tribunal also held that punishment of dismissal for unauthorised absence for small period was disproportionate to the negligence proved against the applicant. This Tribunal following the view of the Hon'ble Apex Court held that a Govt. servant, who has rendered long years of service, should not be punished with a dismissal so as to deprive him of his pension for the service rendered by him. 7. In the facts and circumstances, we are of the considered view that the punishment should be reduced to compulsory retirement, instead of remitting the matter back to the disciplinary authority for the purpose. Accordingly, the impugned penalty of dismissal from service is modified to compulsory retirement. We, however, do not interfere with the finding of guilt recorded against the applicant. We only interfere with the order of penalty imposed under Annexure-7 so far as it relates to the quantum of penalty. Accordingly, the penalty of punishment of dismissal from service is modified to one of the compulsory retirement from-service w.e.f. from the date from-which the order of dismissal was given effect to. The applicant shall be entitled to admissible pension and other retirement benefits in accordance with the Rules governing the field. We direct the respondent No.1 to release all the retirement benefits including the arrears of pension to the applicant within a period of six months from the date of receipt of this order. 8. The O.A. is accordingly disposed of. No costs. Dr. S.N. DASH, MEMBER (A) I agree. O.A. disposed of.