Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 728 (ORI)

Sohar Ranjan Pattnaik v. Union of India

2015-12-24

B.R.SARANGI

body2015
JUDGMENT : B.R. Sarangi, J. 1. The petitioner files this application seeking for following relief: "(i) Admit the writ petition. (ii) Call for the relevant records, and (iii) After hearing the counsel for the parties be further pleased to issue appropriate writ/writs quashing the impugned order of dismissal dated 05.10.2009 under Annexure-17 and the impugned order dated 28.10.2011 of the appellate authority under Annexure-23 rejecting the appeal including the reports of the enquiry concluding ex-parte against the petitioner under Annexure-14 and 15 with a further direction to the opp. Parties to reinstate the petitioner in service with all consequential service benefits. 2. The factual matrix of the case, in hand, is that the petitioner while working as a Head Constable/Radio Operator in Central Reserve Police Force at Bhubaneswar, a departmental proceeding was drawn up against him vide memo dated 23.10.2008 on the allegation that the petitioner while was working as such assaulted one R.C. Baral on 19.05.2008. In the enquiry proceeding, the petitioner was not allowed to take the assistance of a retired Central Government employee as his Defence Assistant for which the petitioner filed W.P. (C) No. 2772 of 2009 before this court. The said writ application was allowed on 03.03.2009 and the opposite parties were directed to permit the petitioner to take the assistance of a retired Central Government employee as his Defence Assistant. In course of enquiry, the brother of the petitioner fell ill for which the petitioner took five days casual leave from 07.05.2009 to 13.5.2009 to attend to his brother. While availing casual leave, the petitioner himself fell ill and was treated as an out-door patient in the City Hospital, Cuttack. For the above reason, the petitioner remained on medical leave. In course of the first enquiry, another departmental enquiry was started on the allegation that on 11.08.1998 the petitioner assaulted one Gnanendra Chatri and caused grievous injuries to him. When the Enquiry Officer made an attempt to conduct the enquiry ex parte, the petitioner approached this Court in another writ application vide W.P.(C) No. 3203 of 2009 and this Court disposed of the same directing the Enquiry Officer to give adequate opportunity of hearing to the petitioner. Thereafter both the enquiry proceedings were concluded and reports were submitted in Annexures-14 and 15. In both the proceedings the petitioner was found guilty of the charges. Thereafter both the enquiry proceedings were concluded and reports were submitted in Annexures-14 and 15. In both the proceedings the petitioner was found guilty of the charges. After receipt of the enquiry report in both the proceedings, the disciplinary authority asked the petitioner to take his submissions in respect of the findings of the Enquiry Officer. Thereafter the disciplinary authority accepted the findings of the Enquiry Officer in both the proceedings and imposed the punishment of dismissal from service. The disciplinary authority also directed that the period of suspension shall be treated as such. Assailing the order passed by the disciplinary authority, the petitioner preferred an appeal raising a question that he has not been given adequate opportunity, but the appellate authority without applying his mind passed the impugned order in Annexure-23. 3. Mr. Ashok Kumar Mohanty, learned Senior Counsel for the petitioner submits that assailing the order of punishment imposed by the disciplinary authority, the petitioner raised objection before the appellate authority that he was not given adequate opportunity to submit his representation. It is urged that even if such point has been raised before the appellate authority, the same has not been considered in proper prospective in compliance to the direction given by this Court in W.P.(C) No. 15541 of 2009. 4. Mr. B. Nayak, learned Central Government Counsel appearing for opposite parties refuted the allegation made by learned counsel for the petitioner and stated that while disposing of the appeal, adequate opportunity has been given and therefore, no fault can be found with the authority in disposing of the appeal. 5. On the basis of the facts pleaded above and on perusal of the record, it appears that the notice to show cause sent by the disciplinary authority, nowhere indicates that the same was sent through messenger, whereas a copy of notice filed along with the counter affidavit has an endorsement at the bottom of the letter that notice was sent also through a messenger. Therefore, there is every likelihood of manipulating the records. Subsequently, to verify the correctness of the allegations made by Mr. A.K. Mohanty, learned Senior Counsel for the petitioner, this Court directed the learned Central Government Counsel to produce the original records. Therefore, there is every likelihood of manipulating the records. Subsequently, to verify the correctness of the allegations made by Mr. A.K. Mohanty, learned Senior Counsel for the petitioner, this Court directed the learned Central Government Counsel to produce the original records. From the record it appears that notice was sent to the petitioner in his quarter address and some of the officers of the opposite parties were the witnesses to such notice, but the same could not be served on the petitioner on the allegation that he has refused to accept the same and the same was affixed at the door step and endorsement of the official witness had been taken on the backside of the said notice. But subsequently, it appears that the very same notice was sent to the petitioner in his village address. By the time it reached the petitioner, the proceeding has already been concluded. In that view of the matter there is a dispute with regard to fact that whether the notice was duly served on the petitioner while adjudicating the dispute by the disciplinary authority. In any case, when this question was raised before the appellate authority by the petitioner in compliance to the order passed by this Court in W.P.(C) No. 15541 of 2009, the appellate authority has not applied his mind and passed the impugned order confirming the punishment imposed by the disciplinary authority. Therefore, this Court is prima facie of the considered view that no adequate opportunity has been given to the petitioner and as such while the appellate authority has decided the matter has not considered the above mentioned fact in proper prospective. 6. For the reasons stated above, the order passed by the appellate authority confirming the punishment imposed by the disciplinary authority is hereby set aside and the matter is remitted back to the appellate authority to reconsider the allegation made by the petitioner and decide the appeal on all questions raised by the petitioner including the above factual aspects of service of notice with reference to the original record in the departmental proceeding. 7. With the above observation and direction, the writ petition is disposed of.