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2012 DIGILAW 543 (ORI)

SUBASH CHANDRA PANDA v. STATE OF ODISHA

2012-12-13

B.N.MAHAPATRA, V.GOPALA GOWDA

body2012
JUDGMENT : V. Gopala Gowda, C.J. - This Writ Petition has been filed by the petitioner with a prayer to quash the order of his removal from service dated 30.6.2011 under Annexure-1 passed by the Chairman-cum-Managing Director, The Odisha State Police Housing and Welfare Corporation Ltd., Bhubaneswar and to direct opposite party Nos. 1 to 3 of the Corporation to pay the salary and other allowances admissible from time to time from the date of suspension till the date of reinstatement of the petitioner with all consequential and financial benefits. The case of the petitioner is that he was initially appointed as a Junior Engineer (Civil) by the Managing Director of Odisha State Police Housing and Welfare Corporation Ltd., Bhubaneswar-opposite party No. 2 vide order dated 23.1.1989 on ad hoc basis for a period of 44 days only on a consolidated pay of Rs. 900/- with site allowance of Rs. 150/- per month. His services were regularized w.e.f. 23.9.1991 and he was posted as an Asst. Project Manager (Civil). Being aggrieved by the action of the opposite party-Corporation is not considering the case of the petitioner for promotion to the post of D.P.M., he had approached this Court in W.P. (C) No. 10388 of 2007 challenging promotion of two persons from the post of Asst. Project Manager (Civil) to the post of D.P.M. The main ground of challenge in the said Writ Petition was that the said two persons had only about six months of regular service, whereas the petitioner had more than 21/2 years of regular service and therefore, their promotion was made arbitrarily and on extraneous consideration. There was some allegation with regard to corruption and misappropriation of funds against opposite party Nos. 2, 3 and 4 respectively, which was published in various newspapers both in Odia and English. Assuming that the paper publications were made at the instance of the petitioner and the fact that the petitioner had filed a Writ Petition before this Court against the Corporation, a charge-sheet was issued on 1.12.2010 by opposite party No. 2 against the petitioner. The petitioner had filed his explanation against the charges vide letter dated 14.12.2010 under Annexure-17 series. Prior to issuance of charge-sheet against the petitioner, he was placed under suspension vide order dated 2.9.2010 under Annexure-5 while working as Dy. The petitioner had filed his explanation against the charges vide letter dated 14.12.2010 under Annexure-17 series. Prior to issuance of charge-sheet against the petitioner, he was placed under suspension vide order dated 2.9.2010 under Annexure-5 while working as Dy. Manager in Solara in the district of Jaipur and a Departmental Proceeding bearing No. 2 of 2010 was initiated against him. During the suspension period the headquarters of the petitioner was fixed at Rayagada, which is about 400 Kms. away from his place of working. An employee is entitled to get subsistence allowance during his suspension period but as the said benefit was not extended to the petitioner during his suspension period, he had approached this Court in W.P. (C) No. 15285 of 2010 : (2012 Lab IC (NOC) 29 (Ori). The said Writ Petition was disposed of by this Court directing the Corporation to fix the headquarters of the petitioner at either Cuttack or Bhubaneswar Head Office of the Corporation and release the subsistence allowance in favour of the petitioner. In the Departmental Proceeding the Chairman-cum-Managing Director of the Corporation passed an order on 23.4.2011 that it is proposed to remove the petitioner from employment and treat the period of suspension as such in calculation of financial dues and directed the petitioner to show-cause before 10.5.2011. Pursuant to the said letter, the petitioner filed his show-cause reply to the proposed punishment on 31.5.2011. The petitioner vide letter dated 7.3.2011 under Annexure-19 requested opposite party No. 2 to change the Enquiry Officer as he was not expecting a fair enquiry from the said Enquiry Officer. The opposite party No. 2 vide order dated 14.3.2011 under Annexure-10 rejected the request of the petitioner with regard to change of Enquiry Officer. The Enquiry Officer after careful examination of the evidence on record and written statement of witnesses came to the conclusion under Annexure-22 that the charge of gross misconduct, dereliction of duty and disobedience of orders against the petitioner in Departmental Proceeding No. 2 of 2010 have been proved and submitted the report to the Disciplinary Authority for necessary action. The Chairman-cum-Managing Director of the Corporation after careful examination of the show-cause submitted by the Charged Officer and other connected records, passed an order on 30.6.2011 under Annexure-1 removing the petitioner from service and also held that the period of suspension from 2.9.2010 to 30.6.2011 is to be treated as such. The Chairman-cum-Managing Director of the Corporation after careful examination of the show-cause submitted by the Charged Officer and other connected records, passed an order on 30.6.2011 under Annexure-1 removing the petitioner from service and also held that the period of suspension from 2.9.2010 to 30.6.2011 is to be treated as such. The said order is challenged in this Writ Petition on the ground that the same is highly illegal, arbitrary, prejudged, without having competency to do the same and also in gross violation of the principles of natural justice as well as tainted with mala fide, legal malice and also violation of both the Service Rules and the provisions prescribed under Article 311 of the Constitution of India. 2. Mr. Jayant Das, learned Senior Advocate appearing for the petitioner placing reliance on the charge memo dated 1.12.2010 under Annexure-4 series submitted that it, is alleged that while the petitioner was posted at Police Training College, Solara, he was allowed to remain in-charge of construction but he was frequently found absent, did not show any interest in the work, did not go to the site for supervision and also did not listen to the instructions of the superiors, which amounted to negligence in duty, whereas in the statement of imputation there is no mention of any advise/instruction nor is there any letter whatsoever containing any advise/instruction alleged to have not been listened. He further submits that as per letter dated 26.3.2010 under Annexure-7 issued by opposite party No. 2 the petitioner was required to report day-to-day progress to opposite party No. 3, the Chief Engineer of the Corporation and pursuant to the said letter the petitioner joined and submitted his joining report on 30.3.2010 under Annexure-8 before opposite party No. 3. Thereafter as per instruction of opposite party No. 2 the petitioner submitted his joining report to opposite party No. 4, the Joint Manager of Cuttack Division of the Corporation on 26.5.2010 under Annexure-9 and reported the progress of work with a request to provide adequate manpower and official instruments i.e. estimates, drawing designs, agreements for smooth progress of the work. The petitioner vide letter dated 2.7.2010 informed opposite party No. 3 that at the instance of opposite party No. 4 one B.R. Bhola, A.P.M. (Civil) ad hoc bypassing the petitioner, submitted bills to opposite party No. 4 which was passed by the said opposite party. The petitioner vide letter dated 2.7.2010 informed opposite party No. 3 that at the instance of opposite party No. 4 one B.R. Bhola, A.P.M. (Civil) ad hoc bypassing the petitioner, submitted bills to opposite party No. 4 which was passed by the said opposite party. Thereafter the petitioner was placed under suspension on 2.9.2010. It is submitted that whenever opposite party Nos. 2 and 3 visited the spot found the petitioner present. The petitioner has received full pay and allowances from the date he was posted at Solara till the date of suspension which proves that the petitioner has shown interest in his work and took the responsibility of supervising the construction and as such the allegations in support of the charge are deliberately false. The petitioner was not permitted to engage an Advocate to defend his case which is in violation of the principles of natural justice. Mr. Das, further submits that the charges levelled against the petitioner are not so grave and hardly there is any loss of image or any pecuniary loss so also any damage to the name and fame of the Corporation for which the charge cannot be accepted as so grave which may warrant dismissal or removal from service. The punishment so imposed against the petitioner considering the charges are shockingly disproportionate and not in commensuration of the alleged act or omission on the part of the petitioner. Opposite party No. 2 who has already predetermined the issue and prejudged it, has specifically observed that 'the conduct of the petitioner is an example of irresponsibility, contemptuous nonchalance of accountability and total negligence in duty besides an extremely high degree of insubordination' which is neither the part of the charge nor the conclusion of the enquiry. It is also evident that opposite party No. 2, who had bent upon to punish the petitioner at any cost before framing the charge even has misused his power and imposed the punishment of removal from service against the petitioner. Hence the punishment imposed against the petitioner is not in proportion to the charges alleged to have been proved. That apart the Managing Director of the Corporation is the Disciplinary Authority and Chairman is the appellate authority. Before any amendment of bye-law, the Chairman-cum-Managing Director cannot act as the Disciplinary Authority irrespective of the incumbents carrying the post with a maximum scale of Rs. That apart the Managing Director of the Corporation is the Disciplinary Authority and Chairman is the appellate authority. Before any amendment of bye-law, the Chairman-cum-Managing Director cannot act as the Disciplinary Authority irrespective of the incumbents carrying the post with a maximum scale of Rs. 500/- of corresponding pay during 1981 or the scale above to the same. Further the Managing Director has been declared as the Disciplinary Authority of the employees and the Chairman has been declared as the appellate authority of the employees against the order of the Managing Director. That being the position, after declaring the post as Chairman-cum-Managing Director, the right to appeal against the order of the Disciplinary Authority has been denied inasmuch as the order of punishment in respect of the petitioner has been passed by the appellate authority, which is per se illegal in view of settled position as decided by the Hon'ble Apex Court in the case of Surjit Ghosh Vs. Chairman and Managing Director, United Commercial Bank, and others, ). It is further stated that the impugned order of punishment under Annexure-1 is arbitrary, discriminatory, illegal, mala fide and disproportionate to the charges levelled against the petitioner and as such the same is liable to be quashed. 2.1 So far as the allegation of the petitioner with regard to denial of right to appeal is concerned, Mr. Das submitted that the Supreme Court in the case of Surjit Ghosh Vs. Chairman and Managing Director, United Commercial Bank, and others, held that when an appeal is provided to the higher authority against the order of the disciplinary authority or of a lower authority and the higher authority passes an order of punishment, the employee concerned is deprived of the remedy of appeal which is a substantive right given to him by the Rules. An employee cannot be deprived of his substantive right. 2.2 As regards the allegation of the petitioner with regard to denial of the prayer for engaging an Advocate as defence counsel, Mr. Das stated that the Supreme Court in the case of Board of Trustees of the Port of Bombay Vs. An employee cannot be deprived of his substantive right. 2.2 As regards the allegation of the petitioner with regard to denial of the prayer for engaging an Advocate as defence counsel, Mr. Das stated that the Supreme Court in the case of Board of Trustees of the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni and Others, ) held that in a Disciplinary Proceeding denial of a request of the delinquent employee, seeking permission to appear and defend himself by a legal practitioner, would vitiate the enquiry on the ground that the delinquent employee had not been afforded a reasonable opportunity to defend himself, thereby violating one of the essential principles of natural justice. 2.3 So far as the allegation that the enquiry report is perverse and prejudged is concerned, the learned counsel for the petitioner submitted that the Supreme Court in the case of Union of India (UOI) and Others Vs. Gyan Chand Chattar, held that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct. 2.4 So far as the allegation of the petitioner with regard to disproportionate punishment is concerned, it is submitted on behalf of the petitioner that the Supreme Court in the case of Jagdish Singh Vs. Punjab Engineering College and Others, held that the Courts can interfere with the decision of the disciplinary authority only when it is satisfied that the punishment imposed by the disciplinary authority is shockingly disproportionate to the gravity of the charges alleged and proved against a delinquent employee and not otherwise. It was contended by Mr. Das, learned Senior Advocate that in the case, of B.C. Chaturvedi Vs. It was contended by Mr. Das, learned Senior Advocate that in the case, of B.C. Chaturvedi Vs. Union of India and others, the Supreme Court held that the Disciplinary Authority, or on appeals, the appellate authority are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court while exercising the power of judicial review cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. It was further contended by Mr. Das that in the case of V. Ramana Vs. A.P.S.R.T.C. and Others, the Supreme Court held that the common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision for that of the administrator. The scope of judicial review is limited to the deficiency in decision making process and not the decision. To put it differently unless the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the Court, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course, if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the disciplinary authority or the appellate authority to reconsider the penalty imposed. 3. A counter-affidavit has been filed by opposite party Nos. 2 to 5 denying the allegations levelled in the Writ Petition. Relying on the counter-affidavit Mr. Palit, learned counsel appearing for opposite party Nos. 3. A counter-affidavit has been filed by opposite party Nos. 2 to 5 denying the allegations levelled in the Writ Petition. Relying on the counter-affidavit Mr. Palit, learned counsel appearing for opposite party Nos. 2 to 5 submits that generally the conduct of the petitioner is extremely subversive of discipline and hence, in contemplation of initiation of Disciplinary Proceedings, he was placed under suspension. He further submits that instead of doing the duty assigned to the petitioner, he was keeping himself engaged in all other activities and was in a habit of sulking and shirking the responsibilities whatever responsibilities had been assigned to him besides using foul and abusive languages against the superiors and colleagues. It is stated that this Court while disposing of W.P. (C) No. 15285 of 2010 vide order dated 8.3.2011 (2012 Lab IC (NOC) 29 (Ori) did not incline to interfere with the order of suspension of the petitioner. Against the said order the petitioner approached the Supreme Court in SLP (Civil) No. 13969 of 2011, which was dismissed at the stage of admission. It is further stated that the petitioner was assigned enough work commensurate to his status as a Deputy Manager keeping him in exclusive charge of the new Solara Project and instead of carrying out his responsibility, the petitioner did not visit the work site which is highly negative and unprofessional approach for undertaking work by a public servant and also quite irresponsible raising further frivolous demand regarding drawings, estimates, grant etc. without reporting to the site. It is stated that the order of removal from service passed by opposite party No. 2, was purely based on evidence on record, far from being biased and enquiry had been conducted in an extremely fair manner strictly adhering to the principles of natural justice where fullest opportunity was given to the petitioner to present his case and the Enquiry Officer has given clear, cogent, valid and genuine reasons for disallowing the prayer of the petitioner to engage an Advocate of his choice to defend his case in the enquiry proceeding. Relying on several judgments of different Courts including Supreme Court Mr. Palit, learned counsel appearing for opposite party Nos. 2 to 5 submits that as the order of removal from service passed against the petitioner is proportionate to the charges levelled against him, this Court may not interfere with the same. 4. Relying on several judgments of different Courts including Supreme Court Mr. Palit, learned counsel appearing for opposite party Nos. 2 to 5 submits that as the order of removal from service passed against the petitioner is proportionate to the charges levelled against him, this Court may not interfere with the same. 4. In the case of Om Kumar and Others Vs. Union of India, ) the Supreme Court held as follows: 27. The principle originated in Prussia in the nineteenth century and has since been adopted in Germany, France and other European countries. The European Court of Justice at Luxembourg and the European Court of Human Rights at Strasbourg have applied the principle while judging the validity of administrative action. But even long before that, the Indian Supreme Court has applied the principle of 'proportionality' to legislative action since 1950, as stated in detail below. 28. By 'proportionality', we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the Court will see that the legislature and the administrative authority 'maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve'. The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the Court. That is what is meant by proportionality. XXXX 37. The development of the principle of 'strict scrutiny' or 'proportionality' in administrative law in England is, however, recent. Administrative action was traditionally being tested on Wednesbury grounds. But in the last few years, administrative action affecting the freedom of expression or liberty has been declared invalid in several cases applying the principle of 'strict scrutiny'. In the case of these freedoms, Wednesbury principles are no longer applied. The Courts in England could not expressly apply proportionality in the absence of the convention but tried to safeguard the rights zealously by treating the said rights as basic to the common law and the Courts then applied the strict scrutiny test. In the case of these freedoms, Wednesbury principles are no longer applied. The Courts in England could not expressly apply proportionality in the absence of the convention but tried to safeguard the rights zealously by treating the said rights as basic to the common law and the Courts then applied the strict scrutiny test. In the Spy catcher case Attorney-General Vs. Guardian Newspapers Ltd., (1987) 1 W.L.R. 1248 Lord Goff stated that there was no inconsistency between the convention and the common law. In Derbyshire Country Council v. Times Newspapers Ltd. ( 1993 AC 534 ) Lord Keith treated freedom of expression as part of common law. Recently, in R. v. Secy, of State for Home Deptt., ex p Simms (1999) 3 All ER 400 (HL)) the right of a prisoner to grant an interview to a journalist was upheld treating the right as part of the common law. Lord Hobhouse held that the policy of the administrator was disproportionate. The need for a more intense and anxious judicial scrutiny in administrative decisions which engage fundamental, human rights was re-emphasized in R. v. Lord Saville, Ex p A (1999 (4) All ER 860) : (All ER (870, 872) CA). In all these cases, the English Courts applied the 'strict scrutiny' test rather than describe the test as one of 'proportionality'. But in any event, in respect of these rights 'Wednesbury' rule has ceased to apply. 5. In the case of State of Mysore Vs. K. Manche Gowda, the Supreme Court held that under Article 311 (2) of the Constitution, a Government Servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the Government servant must be told of the grounds on which it is proposed to take such action. If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment, he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment, he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment is mainly based upon the previous record of the Government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from the knowledge of the Government servant. It would be no answer to suggest that every Government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him, nor would it be an adequate answer to say that he knew as a matter of fact that the earlier punishments were imposed on him or that he knew of his past record. This contention misses the real point, namely, that what the Government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him. It is not possible for him to know what period of his past record or what acts or omissions of his in a particular period would be considered. If that fact was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officers; that he had adequate explanation to offer for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or at any rate approved by the superior officer. Even if the authority concerned took into consideration only the facts for which he was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of the present enquiry. He may have many other explanations. The point is not whether his explanation would be acceptable, but whether he has been given an opportunity to give his explanation. He may have many other explanations. The point is not whether his explanation would be acceptable, but whether he has been given an opportunity to give his explanation. The Court cannot accept the doctrine of 'presumptive knowledge' or that of 'purposeless enquiry', as their acceptance will be subversive of the principle of 'reasonable opportunity'. 6. Not allowing the petitioner to engage an Advocate to defend his case and not permitting the petitioner to cross-examine the three witnesses examined by the Corporation is violative of the principles of natural justice and erroneous in law and hence the enquiry report submitted by the authority could not have been accepted, but the same has been accepted by the Disciplinary Authority and basing thereon second show-cause notice was issued. That apart the past service record of the petitioner was not taken into consideration. Therefore, the major punishment imposed on the petitioner is shockingly disproportionate to the charges proved and violative of the principles of natural justice. On this ground the impugned order of removal of the petitioner from service is liable to be quashed. 7. In the case of Gujarat Steel Tubes Ltd. and Others Vs. Gujarat Steel Tubes Mazdoor Sabha and Others, the Supreme Court at paragraph-79 held as follows:-- The basis of this submission, as we conceive it, is the traditional limitations woven around high prerogative writs. Without examining the correctness of this limitation, we disregard it because while Article 226 has been inspired by the royal writs its sweep and scope exceed hide bound British processes of yore. We are what we are because our Constitution framers have felt the need for a pervasive reserve power in the higher judiciary to right wrongs under our conditions. Heritage cannot hamstring nor custom constrict where the language used is wisely wide. The British paradigms are not necessarily models in the Indian Republic. So broad are the expressive expressions designedly used in Article 226 that any order which should have been made by the lower authority could be made by the High Court. The very width of the power and the disinclination to meddle, except where gross injustice or fatal illegality and the like are present, inhibit the exercise but do not abolish the power. The very width of the power and the disinclination to meddle, except where gross injustice or fatal illegality and the like are present, inhibit the exercise but do not abolish the power. In view of the aforesaid decision of the Apex Court, even assuming for the sake of argument that the charges levelled against the petitioner have been proved, the punishment of removal from service which has been imposed on the petitioner being a major punishment under the Service Rules, is shockingly disproportionate and the same is required to be suitably substituted by this Court. 8. The contention of the petitioner that having regard to the misconduct proved on the basis of the enquiry report, the punishment of removal from service imposed on the petitioner, which is a major punishment under the Service Regulations, is shockingly disproportionate to the gravity of the charges alleged and proved against the petitioner. This Court therefore, proceeded to examine this aspect only though other legal aspects were raised on behalf of the petitioner to substantiate his case, and considering the decisions of the Apex Court referred to supra and taking into account the facts and circumstances of the case, this Court found that the punishment of removal from service imposed on the petitioner is shockingly disproportionate and the same is contrary to law laid down by the Hon'ble Supreme Court in the cases referred (supra). While exercising power under the Service Regulations to remove the petitioner from service, which is a major punishment, his past records have not been taken into consideration, which is the statutory duty cast upon the Disciplinary Authority and therefore, it is a clear case of legal malice as held by the Supreme Court. This Court in exercise of its judicial review power feels that it is a fit case where the punishment of removal from service imposed on the petitioner under Annexure-1 is liable to be quashed as the same suffers from doctrine of proportionality, based on perverse enquiry report, without following the procedure and law laid down by the Supreme Court in catena of cases particularly not taking into consideration the past service record and made the petitioner to suffer mental agony from the date of passing of the order of his removal till today as it has not been proved that the petitioner was gainfully employed during the said period. This Court is also of the view that the order of removal of the petitioner from service is disproportionate to his misconduct and contrary to law and as the petitioner remained unemployed from the date of his removal from service, he is entitled to 50% of his salary from the said date till today. Further the impugned order of removal is also bad in law on the ground that pending disposal of Disciplinary Proceeding the petitioner was kept under suspension and pursuant to the order passed by this Court, the subsistence allowance was paid to the petitioner as provided under Service Rules. After completion of the enquiry, accepting the enquiry report, the punishment of removal from service was imposed on the petitioner treating the period of suspension as such is also a punishment in addition to the order of removal from service, which amounts to double punishment and not permissible under Service Rules. In this case after accepting the finding of the Enquiry Officer, notice was issued to the petitioner regarding imposition of penalty of removal from service, which is a major punishment under the Service Regulations. The Disciplinary Authority was required to take into consideration the mitigating circumstances while imposing penalty with regard to the gravity of misconduct against the petitioner keeping in view the doctrine of proportionality. This aspect of the matter has not been taken into consideration by the Disciplinary Authority. Though the petitioner had given the detail points to examine adequate number of defence witnesses so as to prove his defence, the Enquiry Officer only permitted three official witnesses, who could be gained over with the sole motive of leading the proceeding to prove the guilt against the petitioner, which is not permissible in law. The Enquiry Officer vide order dated 7.3.2011 under Annexure-18. observed that 'the improper behavior of the petitioner during the conduct of the proceeding is kept on record for future reference', which clearly shows that the authorities were vindictive and biased to take action against the petitioner. The Enquiry Officer further vide order dated 25.3.2011 under Annexure-22 observed that the petitioner requested to engage an Advocate to assist him in defending his case in course of enquiry, which was disallowed. The said action of the Enquiry Officer is illegal, arbitrary and violative of principles of natural justice. The Enquiry Officer further vide order dated 25.3.2011 under Annexure-22 observed that the petitioner requested to engage an Advocate to assist him in defending his case in course of enquiry, which was disallowed. The said action of the Enquiry Officer is illegal, arbitrary and violative of principles of natural justice. Not giving an opportunity to the petitioner to examine the persons whose statements are recorded and are taken into consideration for recording a finding against the petitioner is violative of principles of natural justice and on this ground also the enquiry report is liable to be quashed. If the enquiry report is liable to be quashed then the matter is required to be remanded to the Disciplinary Authority for conducting the enquiry de novo. But having regard to the nature of charges and the explanation offered by the petitioner wherein it is stated that the Disciplinary Proceeding was initiated as a measure of counter blast and as the punishment imposed on the petitioner is shockingly disproportionate, this Court is of the view that the punishment imposed against the petitioner should be modified to that of stoppage of two annual increments with cumulative effect. After hearing learned counsel for the parties, going through the materials available on record and following the principles laid down by the Supreme Court in the cases (supra), this Court, while quashing the impugned order of removal from service passed against the petitioner by opposite party No. 2 on 30.6.2011 under Annexure-1 imposes the punishment of stoppage of two annual increments of the petitioner with cumulative effect and directs the said opposite party to reinstate the petitioner in the post of Dy. Manager, OPHWC, Cuttack and release 50% of his back salary from 30.6.2011 i.e. the date of order of dismissal from service till today within a period of four weeks from the date of production of a certified copy of this judgment. The Writ Petition is accordingly allowed. Issue Rule. Final Result : Allowed