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2016 DIGILAW 1210 (ORI)

Samir Kumar Mittra v. State of Orissa

2016-12-07

S.N.PRASAD, S.PANDA

body2016
JUDGMENT : S.N. Prasad, J. The order dated 25.8.2016 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A.No.600(C) of 2013 is under challenge whereby and whereunder the punishment imposed upon the petitioner has been refused to be interfered with by the learned Tribunal. 2. The brief fact of the case is that while the petitioner was working as Assistant Conservator of Forest in the office of Working Plans Division, Bhanjanagar, disciplinary proceeding was initiated against him vide Department Memorandum No.17120/F&E dated 17.10.2006 alleging disobedience of the orders of the higher authorities and gross misconduct. The allegation was that the petitioner while serving as Assistant Conservator of Forest, Athagarh(T) division was transferred vide Department Notification dated 2.5.2013 to the Working Plan Division, Bhanjanagar. He was relieved from Athagarh on 09.06.2003, but remained on unauthorized absence on the ground of illness for a period of more than two years. As such, departmental enquiry was conducted and vide order dated 12.12.2011, he was awarded with the punishment of censure and the period of suspension has been treated as leave due. The petitioner being aggrieved with the order of punishment, approached the Orissa Administrative Tribunal on the ground that the order of punishment has been passed without following the principles of natural justice, since copy of the enquiry report has not been furnished by the disciplinary authority and also on the ground that the punishment of treating the period of suspension as leave due is without any jurisdiction since statute does not contain any punishment under the list of punishment contained under Rule 12 of the Orissa Civil Services (Classification, Control & Appeal) Rules, 1962, hereinafter to be referred to as ‘Rules’ in short. 3. While on the other hand, learned counsel appearing for the State-Opposite party has defended the order by submitting that the petitioner was transferred vide order dated 2.5.2003, but he did not join in his duty in the transferred place of posting fairly for a period of more than two years on the ground of illness and no such medical leave has been sanctioned by the Department and treating the said action of the petitioner as a major misconduct for non-compliance of the valid order passed by the competent authority. Accordingly, a regular departmental proceeding has been initiated wherein the petitioner had participated. Accordingly, a regular departmental proceeding has been initiated wherein the petitioner had participated. In the proceeding, the Inquiry Officer has found the charge proved and order has been passed on 12.12.2011 inflicting punishment of censure and treating the period of suspension as leave due. Hence, there is no infirmity in the decision taken by the authorities, rather the authorities have taken lenient view imposing minor punishment upon the petitioner since censure is a minor punishment under the provisions of Rules governing the field. 4. So far as the order to treat the period of suspension as leave due, it has been submitted that although there is no punishment prescribed under Rule 13 of the Rules, but under the provisions of Rule 12(6) the authorities have been conferred with the power to treat the said period as leave due after conclusion of the departmental proceeding and accordingly, invoking the said power the order of suspension has been directed to be treated as leave due. Hence, there is no infirmity in the same. 5. Heard the learned counsel for the parties and perused the materials available on record. The undisputed fact in this case is that the petitioner was transferred while working as Assistant Conservator of Forest vide order of transfer dated 2.5.2003 directing him to resume his duty at Working Plan Division, Bhanjanagar. He was relieved from Athagarh on 09.06.2003, but he did not resume his duty in the transferred place of posting and remained absent fairly for a period or more than two years. The competent authority having no option but to initiate a departmental enquiry vide decision taken in this regard on 17.10.2006 by framing a charge of disobedience of the orders of the higher authorities and gross misconduct. The petitioner had appeared before the Inquiry Officer as directed, submitted his defence reply by stating that he was medically ill due to a spinal injury and as such, he was hospitalized in the S.C.B. Medical College and Hospital, Cuttack where he was virtually immobile and as such could not able to resume his duty as directed. But when he was recovered from the ailment, on receipt of the memo dated 31.5.2006 along with the letter dated 27.5.2006 on 30.6.2006, by which he was directed to resume his duty by 31.5.2006 positively. But when he was recovered from the ailment, on receipt of the memo dated 31.5.2006 along with the letter dated 27.5.2006 on 30.6.2006, by which he was directed to resume his duty by 31.5.2006 positively. The letter received on 3.6.2006 being a Saturday and the next date was Sunday, he submitted his joining report on 5.6.2006 and as such, no misconduct has been committed by him. But without appreciating this aspect of the matter, the Inquiry Officer has found the charge proved against him, which has been accepted by the disciplinary authority imposing punishment of censure with a direction to treat the period of suspension as leave due. 6. The petitioner had assailed the order of punishment on the ground that there is violation of principles of natural justice and to substantiate his argument, he has cited the judgment reported in the case of Managing Director, ECIL v. B.Karunakar, AIR 1994 SC 1074 , whereby and whereby law has been laid down by the Hon’ble Apex Court that in case of non-supply of copy of the enquiry report along with the second show cause notice, departmental proceeding will be vitiated in the eye of law and exactly in the case at hand, the copy of the enquiry report has not been supplied to the petitioner and thus, it is argued that the order of punishment is not sustainable in the eye of law. 7. We after appreciating the argument advanced on behalf of the petitioner and taking into consideration the legal position, are of the view that before the judgment rendered by the Hon’ble Apex Court in the case of Managing Director, ECIL (supra), the rule of the land was the judgment rendered by the Hon’ble Apex Court in the case of Union of India v. Mohd. Ramzan Khan, AIR 1991 SC 471 wherein it has been laid down that wherever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the enquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter. But the matter when gone before the Constitution Bench in the case of Managing Director, ECIL (supra), the said view has been over-ruled by laying down proposition that the departmental proceeding will not ipso facto be vitiated due to non-supply of copy of the enquiry report along with the second show cause notice as has been held by the Hon’ble Apex Court in the case of Mohd.Ramzan Khan (supra), but the delinquent employee is to establish what prejudice has been caused to him due to non-supply of the copy of the enquiry report along with the second show cause notice and if there is no prejudice due to non-supply of these documents, departmental proceeding will not be vitiated. 8. We, by considering the aforesaid settled proposition of law, are of the view that the petitioner had participated before the Inquiry Officer, given his defence reply by stating that he was medically ill and as such, the Inquiry Officer ought to have taken into consideration that the absence was not willful. There is no dispute about the settled proposition that if the absence is not willful, the delinquent employee cannot be inflicted with any punishment, but that is not the case here because the petitioner was transferred vide office order dated 2.5.2003 and remained absent for a period of more than two years without any permission from the departmental authorities and as such, it cannot be said that the charge levelled against the petitioner is without any cogent reason and basis, rather it is expected from the Government officials to do their duty diligently. However, in case of exigencies, it is also expected from such employees to get permission for leave. We have not found anything on record that any such permission has been granted by the competent authority for sanction of any such type of leave, rather when the authorities have asked the petitioner to appear before the Medical Board, he has avoided to appear which shows that the petitioner only in order to defend himself has taken a ground of illness and as such, it will be said that the delinquent employee, the petitioner herein, has willfully not discharged his duty fairly for a period of more than two years. 9. 9. So far as the contention that the copy of the enquiry report has not been supplied to the petitioner and as such the Departmental Proceeding cannot sustain in the eye of law, is concerned, as per the law laid down by the Hon’ble Apex Court in Managing Director, ECIL (supra), the petitioner has not shown either before the disciplinary authority or before the learned Tribunal or even before this Court as to what prejudice has been caused to him due to non-supply of the copy of the report and as such, the departmental proceeding will not ipso facto be vitiated in the eye of law, moreover, the petitioner had participated fully in the enquiry before the Inquiry Officer, submitted the document, but the said document has been discarded by the Inquiry Officer by taking into consideration the fact that there is no sanction of leave or even the petitioner has avoided to appear before the Medical Board, which led the Inquiry Officer to come to the conclusion that the charge levelled against him is proved. 10. We are of the considered view that since the Inquiry Officer has come to a definite finding basing upon the relevant documents and as such, we sitting under Article 226 of the Constitution of India, cannot re-appreciate the evidence for reversing the fact finding given by the Inquiry Officer and accepted by the disciplinary authority, rather, the authorities have taken a lenient view by imposing a minor punishment that too in the nature of censure. 11. So far as the contention with regard to treating the period of suspension as leave due is concerned, the same is without any jurisdiction since the said punishment is not prescribed under the Statute. We have examined the list of punishments as prescribed under Section 13 of the Rules, which is being reproduced hereunder : “13. 11. So far as the contention with regard to treating the period of suspension as leave due is concerned, the same is without any jurisdiction since the said punishment is not prescribed under the Statute. We have examined the list of punishments as prescribed under Section 13 of the Rules, which is being reproduced hereunder : “13. Nature of penalties – The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely :- (i) Fine; (ii) Censure; (iii) Withholding of increments (without cumulative effect) (iii)-A. Withholding of promotion (iv) Recovery from pay of the whole, or part of any pecuniary loss caused to Government, or to a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by Government, or to a local authority set up by an Act of Parliament or of the Legislature of State, by negligence or breach of orders : (v) Suspension; (vi) Reduction to a lower service, grade or post or to a lower time scale or to a lower stage in a time-scale. (vi) A. Withholding of increments (with cumulative effect)] (vii) Compulsory retirement; (viii) Removal from service which shall not be disqualification for future employment, and (ix) Dismissal from service which shall ordinarily be a disqualification for future employment : Provided that the penalty of fine shall be imposed only on Group-D Government servants.” 12. It is not in dispute that treating the period of suspension as leave due is not prescribed under the Statute and when the period of suspension has been treated to be leave due, it also amounts to punishment, but since it is not prescribed under the statute and we are also not in agreement with the argument advanced on behalf of the Government before the learned Tribunal that even if it is not prescribed under Rule 13, but as per Rule 12(6) of the Rules, the disciplinary authority, while passing the final order of punishment or of release in the disciplinary proceedings against a Govt. servant, shall give directions about the treatment of period of suspension, which is passed not as a measure of substantive punishment, but as suspension pending enquiry and indicate whether the suspension would be the punishment or not. servant, shall give directions about the treatment of period of suspension, which is passed not as a measure of substantive punishment, but as suspension pending enquiry and indicate whether the suspension would be the punishment or not. The reason for deciding the said view is that the authorities have not reflected in the order as to whether the order of suspension is by way of punishment or not. Hence, passing the order regarding suspension cannot be said to be in terms of the provisions of Rule 12(6) of the Rules. Accordingly, that part of the order, which related to treating the period of suspension as leave due, is not sustainable and accordingly quashed. 13. In the result, the matter is remitted to the authority to pass a fresh order regarding the period of suspension of the petitioner. 14. With the aforesaid observation and direction, the writ petition stands disposed of.