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2012 DIGILAW 332 (ORI)

Surya Narayan Acharya v. State of Orissa

2012-08-01

B.K.MISRA, L.MOHAPATRA

body2012
JUDGMENT B.K. MISRA, J. : The petitioner who was a Junior Grade Diarist, Industries Department being dismissed from Government service as per the provisions of Rule 18 of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 (hereinafter referred to C.C.A. Rules, 1962) vide Government Office Order No.VIII-OE-106/2005. 2909/I dated 26.2.2007 (Annexure-4) approached the Orissa Administrative Tribunal, Bhubaneswar Bench by filing Original Application No.385 of 2010 praying therein for quashing the order of the Government at Annexure-4 or in the alternate to quash Annexure-1 with consequential relief for a direction to the respondent No.1 for payment of compensatory pension so also for regular pension to him. The Tribunal by the impugned order at Annexure-1 dismissed the Original Application filed by the petitioner and did not interfere with the order of dismissal passed by the Government. Being aggrieved with the order of the Tribunal at Annexure-1, the present petitioner has approached this Court under Articles 226 and 227 of the Constitution of India praying therein to quash the impugned order at Annexure-1 and to direct the opposite parties to pay the service benefits to the petitioner. 2.The petitioner’s case is that while he was working as a Junior Grade Diarist in Industries Department, Government of Orissa was involved in a case of dowry death and torture of his daughter-in-law and faced trial in the Court of the Ad hoc Addl.Sessions Judge, Fast Track Court No.IV, Bhubaneswar vide S.T. No.164-62 of 2005 arising out of G.R. Case No.4150 of 2004, having been charged under Sections 304-B and 498-A read with Section 34 of the Indian Penal Code as well as under Section 4 of the Dowry Prohibition Act. The petitioner was found guilty of the offences under Section 304-B and under Section 498-A of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for seven years for the offence under Section 304-B of the Indian Penal Code. He was further convicted under Section 498-A of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.2,000/-. After such conviction the present petitioner two days prior to his attaining the age of the normal superannuation was dismissed from service as per the order of the Government dated 26.2.2007. He was further convicted under Section 498-A of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.2,000/-. After such conviction the present petitioner two days prior to his attaining the age of the normal superannuation was dismissed from service as per the order of the Government dated 26.2.2007. The aforesaid order of the Government was challenged by the petitioner before the Orissa Administrative Tribunal, Bhubaneswar, but the same was dismissed vide Annexure-1. 3.The petitioner challenges the order of the Tribunal mainly on the ground that the impugned order at Annexure-1 is a non-speaking one and such order has been passed without application of judicial mind and conscience and the Tribunal did not thought it proper to look into the illegalities committed by the Administrative Department in passing the order of dismissal without recording the reasons for its satisfaction that it was not reasonably practicable to hold the enquiry as contemplated by Article 311(2). It is also the case of the petitioner that when the Administrative Department namely the disciplinary authority violated the constitutional obligation and when the order of penalty is void and unconstitutional one it is most unfortunate that the Tribunal being a quasi judicial authority while acting in exercise of its statutory power failed to discharge its duty fairly with an open mind. Accordingly, the petitioner has approached this Court for quashing the impugned order at Annexure-1 as well as the order of dismissal at Annexure-4. 4.The opposite parties have filed their counter wherein while praying for dismissal of the writ petition, it is their stand that taking into account the conduct of the petitioner that he was involved in a case of dowry torture and death of his daughter-in-law he was convicted by a Sessions Court in S.T. No.164-62 of 2005 and accordingly the order of dismissal was rightly issued by invoking power under Rule 18 of the C.C.A. Rules, 1962. Besides that it is also the case of the opposite parties that the prayer of the petitioner for sanction of compassionate allowance was also considered by the Department in terms of Rule-46 of the Orissa Civil Service (Pension) Rules, 1992, but was disallowed on merit and for that no motive can be attributed. Besides that it is also the case of the opposite parties that the prayer of the petitioner for sanction of compassionate allowance was also considered by the Department in terms of Rule-46 of the Orissa Civil Service (Pension) Rules, 1992, but was disallowed on merit and for that no motive can be attributed. 5.We have heard learned counsel appearing for the parties extensively and also perused the concerned file produced by the Opposite Parties relating to the dismissal of the petitioner. 6.The main thrust of the argument of the learned counsel for the petitioner by placing reliance on various decisions of the Apex Court is that the reasons in support of the decision must be cogent, clear and succinct. The pretence of reasons or rubber-stamp reasons is not to be equated with a valid decision making process. Accordingly, it was contended that since the order of dismissal has been passed in absence of reasons that cannot be sustained and consequently the order of the Tribunal at Annexure-1 also cannot be sustained. The Apex Court in plethora of judicial pronouncements have opined that the face of an order passed by a quasi-judicial authority or even an administrative authority affecting the rights of parties, must speak. It must not be like the “inscrutable face of a sphinx”, (2010) 13 SCC 427 , Oryx Fisheries Private Limited v. Union of India and others, (2010) 9 SCC 496, Kranti Associates Private Limited v. Masood Ahmed Khan and others, (2010) 7 SCC 678 East Coast Railway and another v. Mahadev Appa Rao and others and (2010) 4 SCC 785 Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota v. Shula and brothers. 7.Learned Addl.Standing Counsel appearing for the opposite parties contended that after the amendment of Clause (2) of Article 311 of the Constitution (42) Amendment Act, 1976 and the provisions contained in Rule, 18 of the CCA Rules, 1962 when the petitioner was held guilty of serious criminal offences like dowry death and dowry torture of his daughter-in-law and when he was convicted by a competent Court of law the disciplinary authority has rightly dismissed the petitioner from service by dispensing with issuance of any show cause notice and also the procedure prescribed in Rules 15, 16 and 17 of the CCA Rules, 1962. It was very strenuously urged by learned Addl.Standing Counsel that in the criminal trial the present petitioner was afforded full and complete opportunity to contest the allegation against him and to make out his defence. In the criminal trial charges were framed to give clear notice regarding the allegations made against the accused, witnesses wee examined and cross-examined in presence of the accused and the accused was also given full opportunity to produce his defence and it is only after hearing the argument the Court passed the final order of conviction. In the instant case in view of the fact that the petitioner has been convicted after a full dressed hearing in a criminal trial, holding of departmental enquiry if not would have been dispensed with there would have been unnecessary wastage of time and expense. Accordingly, it was contended that since the founders of the Constitution thought that where once a delinquent employee has been convicted of a criminal offence that should be treated to be sufficient proof of misconduct and the disciplinary authority has the discretion to impose the penalties referred to in Article 311(2) of the Constitution of India. Accordingly, it was urged by the learned Addl.Standing Counsel that the writ petition should be dismissed with exemplary cost. 8.It is an admitted fact that after the present petitioner was convicted in S.T. No.164-62 of 2005 by the Ad hoc Addl.Sessions Judge, (Fast Track Court No.IV), Bhubaneswar, appeal has been preferred by the appellant and he has been released on bail. There is no dispute that the appeal being a statutory right, trial Court’s verdict does not attain finality during pendency of the appeal and for that purpose the trial is deemed to be continuing despite conviction, (Smt. Akhtari Bi v. State of Madhya Pradesh), (2001)4 SCC 355 . At this juncture we are not at all concerned with the provisions contained in Section 389(1) of the Code of Criminal Procedure nor we are concerned with the position that on the event the petitioner would be acquitted in the appeal or other proceeding, the impugned order of dismissal can always be revised and the petitioner would be entitled to all the service benefits to which he would have been entitled to, had he continued in service, (Deputy Director of Collegiate Education v. S. Nagoor Meera), (1995) 3 SCC 377 . 9.What has been stressed upon in the instant case is that the impugned order of dismissal has been passed by the concerned department of the Government i.e. the disciplinary authority without application of mind and without considering the entire circumstances of the case. But it has been passed only on the ground of conviction of the petitioner in a criminal trial. Rule 18 of the Orissa Civil Services (CCA Rules, 1962) reads as follows :- “18. Special Procedure in certain cases-Notwithstanding anything contained in Rules 15, 16 and 17 - (i)where a penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge; or (ii)where the disciplinary authority is satisfied for reasons to be recorded in writing by that authority that it is not reasonably practicable to follow the procedure prescribed in the said rules; or (iii)where the Governor is satisfied that in the interest of the security of the State it is not expedient to follow such procedure. The disciplinary authority may consider the circumstances of the case and pass such orders thereon as it deems fit : Provided that the Commission shall be consulted before passing such orders in any case in which consultation is necessary.” Thus, on a plain reading of the aforesaid provisions, it is seen that a duty has been cast on the disciplinary authority to consider the circumstances of the case and pass such orders as it deems fit. Similarly Article 311(2) of the Constitution of India gives the discretionary power to the disciplinary authority to impose the penalties referred to under Article 311(2) namely, dismissal, removal or reduction in rank. Proviso (a) to Article 311(2) is an enabling provision and it does not enjoin or confer a mandatory duty on the disciplinary authority to pass an order of dismissal, removal or reduction in rank the moment an employee is convicted. The disciplinary authority has to consider the circumstance of the case and pass such orders as it deems fit. Proviso (a) to Article 311(2) is an enabling provision and it does not enjoin or confer a mandatory duty on the disciplinary authority to pass an order of dismissal, removal or reduction in rank the moment an employee is convicted. The disciplinary authority has to consider the circumstance of the case and pass such orders as it deems fit. The word consider connotes that there should be active application of the mind by the disciplinary authority after considering the entire circumstances of the case in order to decide the nature and extent of the penalty to be imposed on the delinquent employee on his conviction on a criminal charge, ( AIR 1975 S.C. 2216 , Divisional Personnel Officer, Southern Railway and another v. T.R. Challappan). Similarly a constitution Bench of the Apex Court in the case reported in (1985) 3 SCC 398 , Union of India and another v. Tulsiram Patel have categorically observed as follows : “Where a disciplinary authority comes to know that a government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be. For that purpose it will have to peruse the judgment of the criminal Court and consider all the facts and circumstances of the case. Once the disciplinary authority reaches the conclusion that the government servant’s conduct was such as to require his dismissal or removal from service or reduction in rank he must decide which of these three penalties should be imposed on him. This too it has to do by itself and without hearing the concerned government servant by reason of the exclusionary effect of the second proviso. However, a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned government servant and therefore, it is it is not mandatory to impose any of these major penalties. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order.” The constitution Bench of the Apex Court has categorically observed that :- “the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). Having decided which of these three penalties is required to be imposed, he has to pass the requisite order.” The constitution Bench of the Apex Court has categorically observed that :- “the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional. The recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty.” 10.In the instant case the impugned order of dismissal at Annexure-4 reads as follows :- “Whereas consequent upon conviction u/s 304-B/498-A read with 34 of IPC and Section 4 of Dowry Prohibition Act vide judgment dated 22.1.2007 of Hon’ble Adhoc Additional Sessions Judge Fast Track Court No.IV, Bhubaneswar in S.T. Case No.164-62 of 2005 (Arising out of G.R. Case No.4150 of 2004), Sri Surya Narayan Acharya, Junior Grade Diarist, Industries Department is dismissed from Government service with immediate effect as per the provisions of Rule 18 of O.C.S. (CC &A) Rules 1962.” 11.There is nothing on record to show that the penalty was imposed after consideration of the circumstances of the case as required under Rule 18 of the CCA Rules. There is a clear distinction between dismissing a Government servant for his misconduct and dismissing him for his conviction. The order in Annexure-4 quoted above shows that it was a dismissal flowing from conviction. We perused the file produced by the learned Addl.Standing Counsel in Industries Department which shows that it is only on receipt of a note from the Deputy Secretary to Government in General Administration Department calling for a report from the Industries Department for reinstating the appellant after his conviction and why he was not dismissed taking recourse to the provisions of Rule 18 of the CCA Rules before the deemed date of retirement of the petitioner i.e. 28.2.2007, the order of dismissal at Annexure-4 was issued on 26.2.2007 and the administrative file is completely silent as to under what circumstances the Administrative Department i.e. the disciplinary authority passed the order of dismissal. The order of the Deputy Secretary to Government is quoted below :- “Consequent upon conviction of Sri Surya Narayan Acharya, Junior Grade Diarist for offences U/s. 304-B/498-A r/w 34 IPC and Section 4 of the DP Act vide judgment dated 22.1.2007, the Administrative Department may immediately dismiss Sri Acharya from service by taking recourse to the provisions u/r 18 of the O.C.S. (CC&A) Rules, 1962 before the deemed date of his retirement i.e. 28.2.2007. The Administrative Department reinstated Sri Acharya in gross violation of instructions contained in G.A. Deptt. Circular No.16570 dated 15.6.1992 and advice given by this Department. Such a decision of the Administrative Department indicates a gesture of undue leniency to a Government servant involved in a dowry death case. It is apprehended, this may amount to show of undue official favour. The Administrative Department are requested to furnish reason thereof for perusal of the Govt.” 12.Admittedly Rule-13 of the CCA Rules enumerates the penalties which can be inflicted on a Government servant in a disciplinary proceeding. Dismissal from service is one of the penalties described in clause (ix) of the Rule. The procedure for imposing the penalties of dismissal which is a major penalty is laid down in Rule 15. In the instant case the order of dismissal was not passed in a disciplinary proceeding. Therefore, it is not a penalty imposed under Rule 15. Rule 18 provides a special procedure for imposition of penalties in certain cases. Since in the instant case dismissal of the petitioner by the order in Annexure-4 is not a penalty imposed under the CCA Rules, the provisions of Rule 12(4) are not attracted. 13.After giving our anxius hearing to the matter and keeping in mind the position of law and the CCA Rules, we are constrained to hold that the learned Tribunal failed to exercise its jurisdiction in the matter. The impugned order of the Tribunal smacks of application of judicial mind and conscience. It is to be remembered that the reasons are the soul of orders. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. The orders of the Court must reflect what weighed with the Court in granting or declining the relief claimed by the petitioner. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. The orders of the Court must reflect what weighed with the Court in granting or declining the relief claimed by the petitioner. 14.Thus, in the present facts and circumstances of the case, we have no hesitation to quash the impugned order of the Tribunal at Annexure-1 with regard to the dismissal of the petitioner as well as the impugned order of dismissal of the petitioner passed by the Government in Industries Department at Annexure-4. Since the impugned order of dismissal of the petitioner from service is set aside and quashed, it would be open to the concerned authority to consider the facts of the case and pass such order of punishment as would be deemed fit and proper by following the procedures laid down in Rule 18 of the CCA Rules. 15.We direct the Government in Industries Department to complete the exercise within a month on receipt of this order as the petitioner has already been dismissed from service since 26.2.2007. With the aforesaid observations, the writ petition stands disposed of. L. MOHAPATRA, J.I agree. Petition disposed of.