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Orissa High Court · body

2016 DIGILAW 579 (ORI)

State of Odisha v. Golak Chanda Dhal

2016-07-29

D.P.CHOUDHURY, I.MAHANTY

body2016
JUDGMENT Dr. D.P. CHOUDHURY, J. - Challenge has been made to the order dated 11.05.2010 passed by the learned Odisha Administrative Tribunal, Cuttack Bench, Cuttack (hereinafter called the Tribunal) in O.A. No. 815(C) of 2005, wherein the learned Tribunal has ordered to regularize the period of unauthorized absence of opp.party No. 1. FACTS: 2.The factual matrix leading to the case of the petitioner is that opp.party no. 1 was appointed as Junior Employment Officer vide order dated 21.07.1984. From 19.9.1993 to 23.9.1993 opp.party no. 1 remained absent unauthorizedly although he had filed a C.L. application for 21.9.1993 and 22.9.1993 to the District Employment Officer, Dhenkanal. But on 19.9.1993 he left the headquarters without submitting any C.L. application. Opp.party no. 1 also made a tour programme to visit the State Employment Exchange, Bhubaneswar from 22.9.1993 to 25.9.1993, but the tour programme was disallowed by petitioner no. 3. Inspite of the disallow of the tour programme opp.party no. 1 had left the headquarters by submitting C.L. application without being allowed to leave the headquarters. Thus, for the unauthorized absence and disobedience to the orders of the superiors, Disciplinary Proceeding was drawn up against opp.party no. 1 and at the same time he was placed under suspension. 3.It is stated that in contemplation of the Disciplinary proceeding opp.party no. 1 was suspended by the superior authority. On 11.4.1994 considering the representation of opp.party no. 1, opp.party no. 2 reinstated him in service. The Enquiring Officer after due enquiry submitted the report by finding opp.party no. 1 guilty of negligence in duty and suggested to warn him. 4. The Disciplinary Authority passed the order after receiving the recommendation of the Enquiring Officer that the opp.party no. 1 be warned and the period of suspension be treated as “leave due”. Against the observation of the Disciplinary Authority, opp.party no. 1 preferred appeal before the next higher authority and the same was dismissed observing that only minor penalty has been imposed. 5.It is the further case of the petitioners that against the order of the Disciplinary Authority and the appellate authority opp.party no. 1 filed Original Application before the Odisha Administrative Tribunal to set aside the punishment awarded against him. 1 preferred appeal before the next higher authority and the same was dismissed observing that only minor penalty has been imposed. 5.It is the further case of the petitioners that against the order of the Disciplinary Authority and the appellate authority opp.party no. 1 filed Original Application before the Odisha Administrative Tribunal to set aside the punishment awarded against him. It is the case of petitioners that the warning being a minor punishment and the suspension period has been regularized as leave due against the leave credited to his account, opp.party no 1 has no cause of action to file the Original Application before the Tribunal. It is stated that the Tribunal without considering the case with proper perspective under the provision of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 (hereinafter called ‘the C.C.A Rules’) passed the order illegally against which the petitioners have filed the present writ application. 6.Opp.party no. 1 filed affidavit refuting to the averments made in the writ application. According to opp.party no. 1 the writ application filed before this Court is defeated due to delay and laches because the writ application was filed on 30.9.2011 although the Impugned order was passed on 11.5.2010 by the Tribunal. On the other hand the order of the Tribunal was not complied by the petitioners, for which opp. Party no. 1 had filed Contempt Petition No. 1 (C) of 2012 before the tribunal and the petitioners took lot of adjournments before the tribunal to face the Contempt proceeding. The petitioners for the sake of protecting its Officers have informed the Tribunal that the order has been complied and accordingly informed vide order dated 16.2.2012 that the period from 6.10.1992 to 5.6.2012 has been regularized. Opp.party no. 1 contends that because of the filing of the Contempt petition the order of regularizing leave has been withdrawn without any reason. It is stated that since opp.party No. 1 has been harassed in spite of the order of the tribunal the present writ application should be dismissed. SUBMISSIONS AND DISCUSSIONS:- 7.It is stated by Mr. M.Sahoo, learned Addl. Government Advocate that the learned Tribunal has committed error by not considering Sub-Rule(6) of Rule-12 of the C.C.A. Rules. Learned Tribunal should have considered the fact that opp.party no. SUBMISSIONS AND DISCUSSIONS:- 7.It is stated by Mr. M.Sahoo, learned Addl. Government Advocate that the learned Tribunal has committed error by not considering Sub-Rule(6) of Rule-12 of the C.C.A. Rules. Learned Tribunal should have considered the fact that opp.party no. 1 has been found guilty by the Enquiring Officer and the Disciplinary Authority and it has no authority to interfere with the finding of the Disciplinary Authority except any challenge about the procedure adopted in the Disciplinary Proceeding. According to him the period of unauthorized absence having been regularized and as such there is no cause of action for opp.party no. 1 to prefer Original Application before the Tribunal to set aside the order in the Disciplinary Proceeding. It is further submitted on behalf of the petitioners that minor penalty being imposed, the regular procedure for imposing major penalty is unwarranted. So, application of Sub-Rule (10) of Rule-15 which is required to be followed in respect of imposing major penalty should not have been pressed into service by the Tribunal. It is submitted by learned Addl. Government Advocate that breach of observance of Sub-Rule-(10) of Rule-15 of the Rules is not a breach of Rule, which should have been considered by the learned Tribunal. The punishment being given warning and the suspension period treated as “leave due” being not penalty the Tribunal should have considered the same under Rule-13 of the C.C.A. Rules. In case of minor penalty being imposed the enquiry report is not required to be supplied to the delinquent and as such the question of violation of fundamental right is non-est. On the other hand direction of the learned Tribunal to consider the provision of Sub-Rule-(6) of Rule-12 of C.C.A. Rules is illegal and invalid, for which the same should be set aside. 8.Learned counsel for opp.party no. 1 submitted that the order of the Tribunal is correct, legal and proper because the order of the Tribunal has taken into consideration the relevant provisions of law. According to him Sub-Rule (10) of Rule-15 requires that before passing any order by the Disciplinary Authority, opportunity should be given to opp. party no. 1 to submit purportedly on supply of necessary report prepared by the Enquiring Officer and order of the Disciplinary Authority. According to him Sub-Rule (10) of Rule-15 requires that before passing any order by the Disciplinary Authority, opportunity should be given to opp. party no. 1 to submit purportedly on supply of necessary report prepared by the Enquiring Officer and order of the Disciplinary Authority. He further submitted that Sub-Rule (10) of Rule-15 requires that in respect of the major penalty imposed the Disciplinary Authority should give a personal hearing to the delinquent. In this case the Disciplinary Proceeding has been started under Rule-16 and any penalty is awarded, the procedure as required under Rule 15 should be started inasmuch before any punishment given the delinquent should be given copy of the report to hear him. He further submitted that in the instant case, the punishment seems to be minor on the outside, but if the order is verified clearly, the order of suspension be treated as “leave due” amounts to double punishment to opp.party no. 1. He further submitted that warning or censure is a minor penalty, but the suspension period be made “leave due” amounts to major penalty because under Rule -15 there is no such punishment which can be given and even if such punishment is given opp.party no. 1 is punished for no fault of him inasmuch as the period of suspension being passed by the Disciplinary Authority or appointing authority and against it any “leave due” debited from the account of the concerned opp.party and at the same time required number of leave having been debited from his account, opp.party no. 1 is unable to encash the same against such leave credited to his account. So, it is submitted that the said order of the Disciplinary Authority is primarily is a major punishment and it is not authorized by the law to do so. So, he submitted to dismiss the writ application and pass appropriate order. POINTS FOR CONSIDERATION: 9. The points to be considered in this writ application are as follows :- (I) Whether the order passed by the Disciplinary Authority in imposing the penalty amounts to punishment under the head of major penalty? And (II) Whether the order of the Tribunal is wrong and illegal? POINT NO. I: 10.It is not in dispute that opp.party no. 1 was serving as Junior Employment Officer and allegedly remained unauthorized absence from 19.3.2009 to 23.3.2009 and left headquarters without informing the superior Officer. And (II) Whether the order of the Tribunal is wrong and illegal? POINT NO. I: 10.It is not in dispute that opp.party no. 1 was serving as Junior Employment Officer and allegedly remained unauthorized absence from 19.3.2009 to 23.3.2009 and left headquarters without informing the superior Officer. It is also not in dispute that the Enquiring Officer found opp.party no. 1 left the office without informing anybody because of his father’s illness, for which suggested to issue warning to opp. Party no. 1. At the same time the Enquiring Officer exonerated him from other charge. It is also undisputed that the Disciplinary Authority agreed with the opinion of the Enquiring Officer so far as warning is concerned, but at the same time passed order observing that the suspension period of opp.party no. 1 be treated as “leave due” in addition to warning to opp.party no. 1. The appeal made by opp.party no. 1 against such order of the Disciplinary Authority has been rejected. 11.It is profitable to quote the order of the Enquiring Officer:- “xxx xxxxxx After due consideration of the charges, the statement of allegation, the depositions and evidences by the presenting officer, defence statement of the delinquent officer, I have come to the conclusion that the charges framed against the delinquent officer can be fully established. Keeping the view of serious illness of the delinquent officer’s father, the delinquent officer may be excused and a warning may be issued to Shri G.C. Dhal ex-junior officer Hindola for his negligence of duty and disobedience of order and he may be exonerated of the charges and set at liberty.” Against such order the Disciplinary Authority passed the following order:- “After careful consideration of the charges framed, explanation of the delinquent officer, views and recommendations of the Inquiring Officer, DE’s Orissa has been pleaded to impose the following punishments on him. 1. He is warned. 2. The period of suspension be treated as on leave due.” 12.Against such order of the Disciplinary Authority the appeal was preferred by opp.party no. 1 and the Commissioner-cum-Secretary to Government passed the order on 4.11.2014 in the following order:- “Now, therefore, after careful consideration of his appeal petition and all other relevant records, the undersigned (appellate authority) does hereby reject the appeal petition of Sri Dhal on the following manner:- 1. The punishment is quite minor with reference to the charges drawn-up against the appellant. The punishment is quite minor with reference to the charges drawn-up against the appellant. 2. The punishment has been imposed on the basis of the finding of the Inquiring Officer, which appears to be correct. 3. Although the Enquiry was made under rule 15 of the O.C.S. (CC&A) Rules, 1962, the punishment has been awarded under rule-16 of the said Rules on the basis of the recommendations of the Inquiring Officer. 4. As the punishment is minor in nature, the procedure for supply of the enquiry report can be ignored, especially when the appellant, prior to his submission of the appeal petition, dated 27.7.2002, had represented before the Director of Employment on 13.7.2000 and 28.1.2002 for reconsideration and modification of the punishment awarded to him and his representations were rejected on due consideration.” 13.From the aforesaid order of the Enquiring Officer, the Disciplinary Authority or the appellate authority without having found any fault with the findings of the Enquiring Officer, has considered to award warning to opp.party no. 1 and to treat the suspension period as “leave due” to opp.party no. 1. It is rather available from the order of the appellate authority that the punishment has been awarded under Rule-16 of the said Rules on the basis of the recommendation of the Enquiring Officer and since the punishment is minor in nature, the procedure of supplying enquiry report can be ignored as the appellant has already represented before the Director, Employment on 13.7.2000 and 28.1.2002 for reconsideration and modification of the punishment. Now the question arises whether the punishment awarded is minor or major. If it is minor, the question of formality required for imposing major penalty does not arise. 14.The Enquiring Officer has not suggested for treating the suspension period of “leave due” but suggested for warning. The disciplinary Authority has got every power under the law to disagree or agree with the finding and opinion of the Enquiring Officer. There is nothing found from the order of the Disciplinary Authority or the appellate authority about disagreeing with the finding to the extent of charge against opp.party no. 1 by the Enquiring Officer. The disciplinary Authority has got every power under the law to disagree or agree with the finding and opinion of the Enquiring Officer. There is nothing found from the order of the Disciplinary Authority or the appellate authority about disagreeing with the finding to the extent of charge against opp.party no. 1 by the Enquiring Officer. When there is no disagreement with the findings of the Enquiring Officer and suggestion of his warning has been concurred with, the award of suspension period as “leave due” without having any suggestion made or charge being proved to impose such punishment, the award of such punishment is not only irregular, but also illegal so far as manner of procedure being followed during the Disciplinary Proceeding concerned. 15.Rule -13 the C.C.A. Rules, 1962 is extracted below:- “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. 2 [ 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;” Rule -15 of the C.C.A. Rules, 1962 is extracted below:- “15. Procedure for imposing Major Penalties – (1) Without prejudice to the provisions of the Public Servants (Inquiry) Act, 1850, no order imposing on a Government servant any of the penalties specified in Clauses (vi) to (ix) of rule 13 shall be passed except after an inquiry held as far as may be in the manner hereinafter provided. (2) The disciplinary authority shall frame definite charges on the basis of the allegations of which the inquiry is to be held. (2) The disciplinary authority shall frame definite charges on the basis of the allegations of which the inquiry is to be held. Such charges, together with a statement of the allegations on which they are based, shall be communicated in writing to the Government servant and he shall be required to submit, within such time as may be specified by the disciplinary authority, not ordinarily exceeding one month, a written statement of his defence and also to state whether he desires to be heard in person. Explanation – In this sub-rule and in sub-rule (c), the expression, ‘disciplinary authority’ shall include the authority competent under these rules to impose upon the Government servant any of the penalties specified in Clauses (i) to (v) of rule 13.” Rule-16 of the C.C.A. Rules is extracted below:- “16. Procedure for Imposing Minor penalties- (1) No order imposing any of the penalties specified in clauses (i) to (v) of rule 13 shall be passed except after- (a) the Government servant is informed in writing of the proposal to take action against him and of the allegation on which it is proposed to be taken and given an opportunity to make any representation he may wish to make; (b) such representation, if any, is taken into consideration by the disciplinary authority and (c) the Commission is consulted in cases where such consultation is necessary.” 16.From the aforesaid provisions it is clear that the penalty specified in clause (i) to (v) of Rule-13 are minor penalties and there no such procedure for imposing major penalty as required under clause VI to IX of Rule-13 read with Rule-15 is required. On the other hand for imposing major penalty the procedure as enshrined in Rule-15 is required to be followed. The statutory authority cannot impose any penalty except the penalties prescribed under Rule-13. Now adverting to the present case, it appears that warning is a minor penalty but to treat the period suspension as “leave due” is not prescribed as any penalty which can be awarded either as major or minor penalty. So, the petitioners have exercised the jurisdiction not vested under law for which same would not be sustainable under law. 17.The contention of the learned counsel of opp.party no. 1 that Sub-Rule-(10) of Rule-15 being not complied the order of treating the suspension period as “leave due” or warning cannot be saddled with upon opp.party no. So, the petitioners have exercised the jurisdiction not vested under law for which same would not be sustainable under law. 17.The contention of the learned counsel of opp.party no. 1 that Sub-Rule-(10) of Rule-15 being not complied the order of treating the suspension period as “leave due” or warning cannot be saddled with upon opp.party no. 1. Sub-Rule-(10) of Rule-15 is prescribed hereunder:- “(10)(i)(a) If the inquiring officer is not the disciplinary authority, the disciplinary authority shall furnish to the delinquent Government servant a copy of the report of the inquiring officer and give him a notice by registered post or otherwise calling upon him to submit within a period of fifteen days such representation as he may wish to make against the findings of the Inquiring Authority. (b) On receipt of the representation referred to in sub-clause (a) if the disciplinary authority ;having regard to the findings on the charges, is of the opinion that any of the penalties specified in clauses (vi) to (ix) of rule 13 should be imposed, he shall furnish to the delinquent Government servant a statement of its findings along with brief reasons for disagreement, if any, with the findings of the inquiring officer and give him a notice by registered post or otherwise stating the penalty proposed to be imposed on him and calling upon him to submit within a specified time such representation as he may wish to make against the proposed penalty: 2 [Provided that in every case in which it is necessary to consult the Commission under the provision of the Constitution of India and the Orissa Public Service Commission (Limitation of Functions) Regulation, 1989, the record of inquiry together with copies of the notices given under sub-clauses (a) and (b) and the representations, if any, received in response thereto within the specified time shall be forwarded by the disciplinary authority to the Commission for its advice.] Xxxxxxxxx “ 18. From the aforesaid provision it is clear that whenever the major penalty under clauses VI to IX of Rule -13 are imposed, there is no necessity for furnishing of copy of the report of the Enquiring Officer, reasons for disagreement by the Disciplinary Authority and statement of the findings by the Disciplinary Authority to the delinquent for submitting representation. So, Sub-Rule (10) of Rule-15 is basically required for imposing major penalty not for minor penalty. So, Sub-Rule (10) of Rule-15 is basically required for imposing major penalty not for minor penalty. 19.It is submitted by learned counsel for opp.party no. 1 that not only the order of suspension as “leave due”, even if made outside the statutory power of the Disciplinary Authority, but also it leads to major penalty if examined with a blind eye. On the other hand learned Addl. Government Advocate submitted that the leave of opp.party no. 1 has been regularized and compliance of the order of the Tribunal has been made. Learned counsel for opp.party no. 1 brought to our notice that on 16.4.2012 the petitioners regularized the period of suspension right from 6.10.1993 to 25.7.1994 (period of suspension), but again on 5.6.2012 they have withdrawn such order vide Annexure-11 and 12 respectively. So, the fact remains that the order of the Tribunal has not been complied. The operative portion of the impugned order reads as follows:- “In the circumstances, the respondents are directed to consider under sub rule 6 of rule 12 of CCA rules the manner in which the period of suspension shall be treated and regularize his such period within three months from communication of this order.” 20.The Tribunal has further asked to follow Sub-Rule (6) of Rule-12. The relevant provision is quoted below:- “(6) The disciplinary authority, while passing the final order of punishment or of release in the disciplinary proceedings against the Government servant, shall give directions about the treatment of the period of suspension, which is passed not as a measure of substantive punishment but as suspension pending inquiry, and indicate whether the suspension would be a punishment or not. “ 21.From the aforesaid provision it appears that while passing order the Disciplinary Authority has to show whether suspension would be a punishment or not. In the instant case it has been simply stated that suspension period be treated as “leave due” and it has been passed intelligently to show outside like red apple, but inside something subsists. Order of suspension is passed by the Disciplinary Authority under the C.C.A. Rules, 1962 and period of suspension remains under the order of the Disciplinary Authority till it is revoked by the same authority. Here the opp.party no. 1 has no any role to remain absent, but to obey the order of the Disciplinary Authority. Order of suspension is passed by the Disciplinary Authority under the C.C.A. Rules, 1962 and period of suspension remains under the order of the Disciplinary Authority till it is revoked by the same authority. Here the opp.party no. 1 has no any role to remain absent, but to obey the order of the Disciplinary Authority. When the suspension period is treated as “leave due”, equal amount of suspension period would be debited from the leave accrued to opp.party no. 1. Had it not been passed the leave which is credited to his account would have been encashed to him either at the time of superannuation or leave available by him, subject to sanction of the same. Now he is compelled to sacrifice his dues to be received in lieu of the leave at the time of superannuation for no fault of remaining absent on duty during the period of suspension. On the other hand when the suspension period is not treated as such, he is entitled to the entire full amount of salary during the period of suspension. Be that as it may, in either way opp.party no. 1 is imposed the penalty by passing of such order of suspension and period be treated as “leave due”. It is a punishment under Sub-Rule-(6) of Rule-12 as occasioned in this case, in addition to the fact that the Disciplinary Authority and the appellate authority have passed such order outside their jurisdiction, the present fact of treating the suspension period as “leave due” being a punishment to opp.party no. 1, it must be held that Sub-Rule (10) of Rule-15 would apply in the fact and circumstances of the case and as such, it is a major penalty requiring the procedure under Rule-15 to be followed. The Point No. 1 is answered accordingly. POINT NO. II: 22.From the foregoing discussion it is clear that the Tribunal has passed order to follow Sub-Rule-(6) of Rule-12 and pass appropriate order on the period of suspension. The Point No. 1 is answered accordingly. POINT NO. II: 22.From the foregoing discussion it is clear that the Tribunal has passed order to follow Sub-Rule-(6) of Rule-12 and pass appropriate order on the period of suspension. We have already observed in the aforesaid paragraph that such order of Disciplinary Authority with regard to suspension period was passed outside the jurisdiction of the Disciplinary Authority and the appellate authority, and the fact that the punishment has been awarded by awarding the suspension period to be treated as “leave due”, there is no disagreement with the order of the Tribunal but no compliance of Sub-Rule 6 of Rule 12 of the CCA Rules is necessary. Hence the order of the Tribunal is otherwise correct, legal and proper. Point No. II is answered accordingly. CONCLUSION: 23.In view of the aforesaid analysis, we are of the view that the impugned order being valid and legal, cannot be faulted with, but in view of our observation that the suspension period be treated as “leave due” is a punishment and cannot be treated as a minor penalty, but a major penalty, Sub-Rule-(10) of Rule-15 should have been followed. On the other hand, warning being awarded as minor penalty by Disciplinary Authority is affirmed. 24.It is reported in 2016 (2) SCALE 625 (Commissioner of Police & Ors. Vs. Sat Narayan Kaushik) where Their Lordships observed at para-19 as follows: “19. Coming to the first two submissions of the learned counsel for the appellant, we are of the view that High Court, in exercise of its writ jurisdiction, has power to interfere with the quantum of punishment imposed by the appointing authority in an appropriate case provided the High Court has taken into consideration the totality of the facts and circumstances of the case such as nature of charges leveled against the employee, its gravity, seriousness, whether proved and, if so, to what extent, entire service record, work done in the past, remaining tenure of the delinquent left etc. in other words, it is necessary for the High Court to take these factors into consideration before interfering in the quantum of the punishment.” 25.With due respect to the aforesaid decision, High Court can interfere with the quantum of punishment in appropriate cases after taking into consideration the facts and circumstances of each case. In the said case the delinquent was awarded the punishment of dismissal from service. In the said case the delinquent was awarded the punishment of dismissal from service. But after analyzing the facts of the case the High Court in a writ jurisdiction interfered with the quantum of punishment and directed to punish the respondent with the penalty of compulsory retirement from service and further directed that the respondent shall not be entitled to any service benefits from the date of dismissal. Such order of changes in quantum of punishment passed by the High Court was confirmed by the Hon’ble Apex Court but denied service benefit from the date of suspension as the suspension continued and ended with dismissal in that case. Thus, in writ jurisdiction the quantum of punishment in a disciplinary proceeding can be interfered with. 26.With due regard to the aforesaid authority, now adverting to the present case we have already observed that suspension period treated as “leave due” is a punishment and there is breach of Sub-Rule 10 of Rule 15, we, therefore, have no hesitation to quash the punishment awarded by the Disciplinary Authority and Appellate Authority so far suspension period be treated as “leave due” and we do so. We further direct the petitioners to disburse the retrial benefits including pension and DCRG with arrears to opp.party no. 1 within a period of two months. The writ application is disposed of accordingly. I. MAHANTY, J.I agree Application disposed of.