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2016 DIGILAW 595 (ORI)

STATE OF ODISHA v. BIJAYA KU. SAMANTARAY

2016-08-04

D.P.CHOUDHURY, I.MAHANTY

body2016
JUDGMENT : Dr. D.P. Choudhury, J. - In the captive writ petition the order of the learned Odisha Administrative Tribunal, Bhubaneswar (hereinafter called 'the Tribunal') is assailed by the petitioners arraying the said order as illegal and improper. Facts 2. The backdrop of the case of the petitioners is that opposite party No.1 was transferred on administrative ground but on the plea of his wife's illness did not obey the order of transfer for which disciplinary proceeding vide Proceeding No.32 of 2007 was started against him. While the proceeding was pending, the opposite party No.1 filed O.A. No.296 of 2010 before the Tribunal and the learned Tribunal disposed of the same directing the petitioners to complete the enquiry within a period of one year from the date of receipt of the order. 3. It is stated that the Enquiring Officer after receiving the order of the Tribunal conducted enquiry but the opposite party No.1 refused to participate in the enquiry and finally the enquiry was delayed and could not be completed as per the order of the Tribunal. So, M.P. No.378 of 2014 was filed by the petitioners before the Tribunal praying for extension of time to complete the enquiry but that was rejected being not maintainable. Then the enquiry proceeded. After closure of the enquiry a show cause notice was issued to opposite party No.1. On consideration of the written submission, second show cause notice was issued to the opposite party No.1. After second show cause reply received the final order was passed on 11.2.2015 imposing major penalty of dismissal from service upon the opposite party No.1 but the opposite party No.1 filed O.A. No.717 of 2015 challenging the major penalty. Learned Tribunal disposed of O.A. No.717 of 2015 by setting aside the order of punishment on the ground that the enquiry could not be completed within the time framed by the Tribunal and as such the punishment is illegal. Arraying the order of the Tribunal as illegal and improper, the present writ petition is filed to set aside the same. Submissions 4. Mr. M. Sahoo, learned Additional Government Advocate submitted that the petitioners have preferred the present writ petition against the order dated 14.8.2013 passed in O.A. No.296 of 2010 and order dated 24.8.2015 passed in O.A. No.717 of 2015 on the ground that same have been passed on irrelevant consideration and without applying the proposition of law. Submissions 4. Mr. M. Sahoo, learned Additional Government Advocate submitted that the petitioners have preferred the present writ petition against the order dated 14.8.2013 passed in O.A. No.296 of 2010 and order dated 24.8.2015 passed in O.A. No.717 of 2015 on the ground that same have been passed on irrelevant consideration and without applying the proposition of law. The Tribunal has exceeded the jurisdiction by not allowing six months time to complete the enquiry. He further submitted that the Tribunal has committed error by observing that the disciplinary proceeding has been quashed even after the final orders have been passed. The Tribunal erred in law by not considering the decision of the Hon'ble Apex Court in Chairman, LIC of India and others v. A. Masilamani: (2013) 6 SCC 530 , where the Hon'ble Apex Court have observed that the Court must take into consideration all relevant facts and to balance and weigh the same, so as to determine for it is in fact in the interest of clean and honest administration, that the judicial proceedings are allowed to be terminated only on the ground of delay in their conclusion. 5. Mr. Sahoo, learned Additional Government Advocate further submitted that the order passed by the learned Tribunal is against the principles of law decided by the Hon'ble Apex Court in the case of Government of Andhra Pradesh and others v. V. Appala Swamy: (2007) 14 SCC 49 . Also the order of the Tribunal is erred in law being contrary to the decision of the Hon'ble Apex Court in Bharat Coking Coal Ltd. v. Bibhuti Kumar Singh and others: 1994 Supp. (3) SCC 628. Due to administrative processes the matter was filed in delay but petitioners have got good case on merit. He submitted to quash both the orders passed by the learned Tribunal. 6. Ms. D. Mahapatra, learned counsel for the opposite party No.1 submitted that on vexatious allegations the disciplinary proceeding was started against opposite party No.1 and Opposite party No.1 had to file O.A. No.296 of 2010 challenging charge made against him because of wrong procedure followed by the disciplinary authority and in fact the Tribunal quashed the show cause notice and enquiry report and remanded the matter to the disciplinary authority to have a de novo enquiry right from the stage of charge and complete the same within a period of one year. That order was passed on 14.8.2013. She further submitted that the disciplinary authority failed to complete the enquiry in spite of cooperation of the opposite party No.1. Instead of completing enquiry as per the order of the Tribunal the petitioners approached the Tribunal praying for extension of time to complete enquiry but the same was rejected vide M.P. No.378 of 2014. She further submitted that the allegation made by the State against the opposite party No.1 is only to harass him and there is no base with their allegations. She further submitted that against the order of the Tribunal in O.A. No.296 of 2010 and M.P. No.378 of 2014 the State has not preferred any writ petition before this Court to quash the same but instead filed the present writ petition challenging the recent order of the Tribunal and the earlier order passed in O.A. No.296 of 2010. The challenge to the earlier order by the State Government is to be defeated for delay and laches. Moreover, she submitted that the impugned order of the Tribunal being passed thoroughly after hearing the parties should not be interfered with. In support of her submission, she also submitted a letter of the Directorate of Prisons and Correctional Services, Odisha addressed to the Senior Superintendent, Circle Jail, Sambalpur where the apex Jail authority has observed that the punishment awarded to opposite party No.1 is not in accordance with rule and it should be disposed of according to rule. When the authority superior to the disciplinary authority has observed as such on 19.2.2015 and the order of the disciplinary authority has been passed by not giving proper opportunity to the opposite party No.1, the punishment has been rightly quashed by the Tribunal and accordingly writ petition should be dismissed. 7. The points for consideration:- (i) Whether the Tribunal can quash the Departmental Proceeding when it was not concluded within the time framed earlier by the Tribunal. Discussions Point No.(i) : 8. It is not disputed that there was disciplinary proceeding against the opposite party No.1 for not honouring the transfer order. It is also admitted fact that the opposite party No.1 has challenged the original disciplinary proceeding vide O.A. No.296 of 2010 and same was disposed of directing the petitioners to complete the enquiry within a period of one year. It is not disputed that there was disciplinary proceeding against the opposite party No.1 for not honouring the transfer order. It is also admitted fact that the opposite party No.1 has challenged the original disciplinary proceeding vide O.A. No.296 of 2010 and same was disposed of directing the petitioners to complete the enquiry within a period of one year. It is further admitted fact that within one year the enquiry could not be completed and the extension of time prayed by the petitioners was rejected by the Tribunal in a Misc. Case arising out of O.A. No.296 of 2010. 9. On perusal of the order, the relevant portion of the order dated 14.8.2013 passed in O.A. No.296 of 2010 is quoted below: "In view of the said position, the matter is remitted back to the disciplinary authority for conducting enquiry afresh right from the stage of charge allowing the applicant due time for filing his reply to the charge on the basis of the documents cited in the memo of evidence made over to the applicant as per letter No.3341 dated 29.7.2013. The inquiry report at annexure-10 and show cause notice at annexure-12 are accordingly quashed. It is also directed that this departmental proceeding be completed within a period of one year from the date of receipt of these orders, failing which the charge at annexure-1 shall be deemed as quashed". Although aforesaid order was passed on 14.8.2013, the above order was found to have received by the Senior Superintendent, Circle Jail, Sambalpur on 11.9.2013 as per the averment in the writ petition. Thereafter on 13.1.2014 an Enquiry Officer was appointed to conduct enquiry but the enquiry proceeded with dilatory process and it was not closed within one year and before expiry of the one year on 8.8.2014 the Department filed M.P. No.378 of 2014 asking for six months time to complete the enquiry. That petition was also rejected on 3.12.2014 by the Tribunal against which no petition was filed before this Court and as such the order dated 14.8.2013 and 3.12.2014 reached finality. Only in 2016 the order dated 14.8.2013 passed in O.A. No.296 of 2010 has come to be challenged, there is no any explanation given by the State why there is delay in challenging such order of the Tribunal. Only in 2016 the order dated 14.8.2013 passed in O.A. No.296 of 2010 has come to be challenged, there is no any explanation given by the State why there is delay in challenging such order of the Tribunal. When there is no challenge to order dated 3.12.2014 passed in M.P. No.378 of 2014, the order dated 14.8.2013 having been reached the finality, cannot be challenged in this writ petition for two reasons. Firstly due to non-challenge of order dated 3.12.2014, the order dated 14.8.2013 out of which the order dated 3.12.2014 of the Tribunal arises remained as such, secondly without having any explanation of delay and laches the said order dated 14.8.2013 of the Tribunal is defeated thereby. 10. Moreover, the relevant portion of the impugned order dated 24.8.2015 is placed below for better appreciation: "After hearing the learned counsel for both sides, the O.A. is disposed of with direction that since the departmental proceeding was not completed within one year i.e. by 11.9.2014, as per the order of the Tribunal in O.A. No.296/2010, the said departmental proceeding stands quashed. Accordingly the impugned order of punishment dated 11.2.2015 at Annexure-14 therefore cannot hold good and is accordingly quashed. The applicant shall be entitled to all consequential service benefits". 11. In the aforesaid order the Tribunal has quashed the Departmental Proceeding because it was not completed within a period of one year as per the order passed by the Tribunal in O.A. No.296 of 2010. In the aforesaid para we have observed that we are not inclined to interfere with the order in O.A. No.296 of 2010 which has reached finality. Since the order in O.A. No.296 of 2010 was neither being challenged nor time being extended to complete the enquiry vide M.P. No.378 of 2014, the observation of the Tribunal cannot be said wrong per se. Apart from this, the letter of the Director of Prisons dated 19.2.2015 can be also read to find out the case of the opposite party No.1 as same has been filed by the learned counsel for the opposite party No.1. The said letter is reproduced below: "Directorate of Prisons and Correctional Services, Odisha No.6526 FE(B)LM-4/10 Date 19.2.2015 To The Senior Superintendent, Circle Jail, Sambalpur Sub: Show cause notice in the Departmental Proceeding Case No.2/13 drawn of against you. The said letter is reproduced below: "Directorate of Prisons and Correctional Services, Odisha No.6526 FE(B)LM-4/10 Date 19.2.2015 To The Senior Superintendent, Circle Jail, Sambalpur Sub: Show cause notice in the Departmental Proceeding Case No.2/13 drawn of against you. Sir, In inviting a reference to your Memo No.17 dated 2.01.2015 on the subject cited above, I am directed to state that a copy of the enquiry report in D.P. Case No.2/2013 drawn up against Bijoy Kumar Samantaray, Warder has been furnished to the delinquent and simultaneously purposed punishment in the said case, which appears to be violative of the prescribed rules and done in a haste. You are, therefore, requested to do the needful as per rules and dispose of the case within the stipulated date line. Yours faithfully, Sd/- Establishment Officer (Field)" From the letter, it appears that the Director of Prisons being superior authority above the disciplinary authority has observed that the punishment proposed is violating of prescribed rules for which it was directed to do the needful as per the rules. When the Tribunal and the superior authority do not favour the punishment as awarded and the State has failed to submit how the order of the Tribunal is irreversible, we are of the view that the impugned order of the Tribunal in O.A. No.296 of 2010 needs no interference. 12. It is reported in (2013) 6 SCC 530 ; Chairman, Life Insurance Corporation of India and others v. A. Masilamani where Their Lordships observed in the following paras:- "16. It is a settled legal proposition, that once the Court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the Court cannot reinstate the employee. It must remit the case concerned to the disciplinary authority, for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide: ECIL v. B. Karunakar, AIR 1994 SC 1074 ; Hiran Mayee Bhattacharyya v. S.M. School for Girls, (2002) 10 SCC 293 ; U.P. State Spg. Co. Ltd. v. R.S. Pandey, (2005) 8 SCC 264 and Union of India v. Y.S. Sadhu (2008) 12 SCC 30 ). xxx xxx xxx xxx 18. The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limits of judicial review. xxx xxx xxx xxx 18. The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limits of judicial review. In the event that the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by the court. The same principle is applicable, in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question have to be examined taking into consideration the gravity/magnitude of charges involved therein. The essence of the matter is that the court must take into consideration all relevant facts and to balance and weigh the same, so as to determine if it is in fact in the interest of clean and honest administration, that the judicial proceedings are allowed to be terminated, only on the ground of delay in their conclusion. (Vide: State of U.P. v. Brahm Datt Sharma, AIR 1987 SC 943 ; State of M.P. v. Bani Singh, AIR 1990 SC 1308 ; Union of India v. Ashok Kacker, 1995 Supp (1) SCC 180; Prohibition and Excise Deptt. v. L. Srinivasan, (1996) 3 SCC 157 ;State of A.P. v. N. Radhakishan, AIR 1998 SC 1833 ; M.V. Bijlani v. Union of India, AIR 2006 SC 3475 ; Union of India v. Kunisetty Satyanarayana, AIR 2007 SC 906 ; and Ministry of Defence v. Prabhash Chandra Mirdha, AIR 2012 SC 2250 ). 13. With due regard to the aforesaid enunciation of the Hon'ble Apex Court, we are of the view that the facts and circumstances of each case should be taken into consideration before terminating the Departmental Proceeding targeted to be completed within certain period by the Authority but not concluded within time schedule. It is also clear that the Court or Tribunal must apply the mind meticulously of each case and come to a conclusion. 14. In Government of Andhra Pradesh and others v. V. Appala Swamy: (2007) 14 SCC 49 where Their Lordships observed the following:- "12. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard-and-fast rule can be laid down therefor. 14. In Government of Andhra Pradesh and others v. V. Appala Swamy: (2007) 14 SCC 49 where Their Lordships observed the following:- "12. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard-and-fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are: (1) where by reason of the delay, the employer condoned the lapses on the part of the employee; (2) where the delay caused prejudice to the employee. Such a case of prejudice, however, is to be made out by the employee before the inquiry officer". 15. With due respect to the aforesaid decision, we are of the view that there cannot be hard and first rule to quash the Departmental Proceeding on the ground of delay but delay should be taken into consideration to come to a conclusion whether the proceeding can be quashed. 16. It is also reported in 1994 Supp. (3) SCC 628; Bharat Coking Coal Ltd. v. Bibhuti Kumar Singh and others where Their Lordships observed at para-14: " xxx We are also of the view that considering the seriousness of the charges, the explanation offered by the appellant for the delay in concluding the enquiry, which cannot be said to be unsatisfactory and the fact that the enquiry has proceeded to some length the High Court ought not to have rejected the reasonable prayer of the appellant for extension of time". 17. With due regard to the aforesaid authority, no delay has been explained in this case as to why there was delay in disposal of the enquiry in spite of the time schedule as ordered by the Tribunal to conclude the same. Keeping in view of the aforesaid propositions of law, it has to be seen whether the order of the Tribunal in O.A. No.717 of 2015 can be affirmed or not. In the present case the opposite party No.1 had approached the Tribunal in O.A. No.296 of 2010 and order was passed to conclude the enquiry within one year. Normally the enquiry should be completed within a period of six months. But the Tribunal has given one year time from the stage of frame of charge afresh. In the present case the opposite party No.1 had approached the Tribunal in O.A. No.296 of 2010 and order was passed to conclude the enquiry within one year. Normally the enquiry should be completed within a period of six months. But the Tribunal has given one year time from the stage of frame of charge afresh. It appears from the writ petition that there has been delay caused by the Disciplinary Authority in changing the Enquiry Officer and the Enquiry Officer took his own time to take over the proceeding and just before one year completed filed a petition before the Tribunal praying for extension of time. That was also rejected by the Tribunal in M.P. No.378 of 2014. But the Disciplinary Authority did not prefer any application before this Court to challenge the same. On the other hand, the allegation of employer is that the employee did not participate but it appears from the impugned order the employer after having perused the show cause the punishment was awarded. We do not enter into all sorts of facts decided by the Tribunal but the operating portion of the impugned order speaks for itself, that in spite of refusal of extension of time the delay was caused and in the meantime the opposite party No.1 has retired. The proceeding continued for about five years. Moreover, the proceeding was for disobedience of transfer order but the punishment given in the proceeding is dismissal from service. Considering all such aspects and in view of the earlier order of the Tribunal which went unchallenged and only same being challenged now which is defeated by delay and laches at the instance of the State Government, we find that the order of the Tribunal passed in O.A. No.717 of 2015 is correct and proper. Hence, the order of the Tribunal quashing the Departmental Proceeding is intelligible. Conclusion 18. From the foregoing discussion, it is found that the Tribunal has made judicial review of the order challenged before it by taking into the facts and circumstances of the case. In the meantime the opposite party No.1 has superannuated. Hence, the order of the Tribunal quashing the Departmental Proceeding is intelligible. Conclusion 18. From the foregoing discussion, it is found that the Tribunal has made judicial review of the order challenged before it by taking into the facts and circumstances of the case. In the meantime the opposite party No.1 has superannuated. When the Disciplinary Proceeding has taken long five years in spite of the direction of the Tribunal in earlier proceeding and the subsequent impugned order passed by the Tribunal are legal and proper, we do not interfere with the order passed in O.A. No.296 of 2010 and also order passed in O.A. No.717 of 2015. So, the impugned orders passed by the Tribunal are affirmed. In the result, the writ petition stands dismissed. Final Result : Dismissed