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2016 DIGILAW 837 (ORI)

State of Orissa v. Saheb Ali Khan

2016-09-20

BISWAJIT MOHANTY, I.MAHANTY

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JUDGMENT : BISWAJIT MOHANTY, J. 1. This writ application has been filed by the State of Orissa and its Officers with a prayer to quash the impugned order dated 12.8.2008 under Annexure-3 passed by the learned Orissa Administrative Tribunal, Bhubaneswar in O.A. No. 519 of 2001. 2. The case of the petitioner is that the sole opposite party, who happens to be a driver in the office of the petitioner no. 2, without obtaining any permission, disappeared from the Office with the office vehicle bearing Registration No. OR-02-D-3833 at about 4.00 P.M. on 13.7.1998. Thereafter, the aforesaid vehicle while being driven by the sole opposite party, met with an accident with a Luna bearing Registration No. OR-02-H-7281 resulting in the death of Luna rider, namely, Rashmi Ranjan Mohanty. After the above fact was brought to the notice of the authority on 22.7.1998, the opposite party was placed under suspension. On 5.11.1998, charge sheet was issued against the sole opposite party for his careless conduct, disobedience of established conduct, dereliction of duties, lack of devotion towards discharging Government duty, unauthorized absence from duty and for misuse of official vehicle along with loss of Government property. Further, vide office Order No. 22909 dated 8.12.1998, the opposite party was served with additional charges relating to payment of compensation of Rs.2.50 lakhs claimed by Smt. Sarojini Mohanty and Mamata Mohanty if they succeed in getting award of above noted compensation in M.A.C. No. 143 of 1998 filed in the court of M.A.C.T., Dhenkanal. On 25.1.1999, the sole opposite party filed his written statement of defence and thereafter the Enquiring Officer and Marshalling officers were appointed. On completion of enquiry, the Enquiring Officer submitted his enquiry report on 21.8.1999 before petitioner No. 2. In the said enquiry report, the Enquiring Officer found the opposite party guilty of all the charges for which charge sheet was issued on 5.11.1998. However, the Enquiry Officer kept the enquiry into additional charge pending till finalization of the compensation case by M.A.C.T., Dhenkanal. On receipt of the enquiry report, the petitioner No. 2 issued show-cause notice to the opposite party on 9.9.1999 as to why penalty as contemplated under the Orissa Civil Service (CCA) Rules, 1962 should not be imposed on him. However, the Enquiry Officer kept the enquiry into additional charge pending till finalization of the compensation case by M.A.C.T., Dhenkanal. On receipt of the enquiry report, the petitioner No. 2 issued show-cause notice to the opposite party on 9.9.1999 as to why penalty as contemplated under the Orissa Civil Service (CCA) Rules, 1962 should not be imposed on him. The petitioner No. 2 vide show cause notice dated 9.9.1999, also directed that the opposite party should submit his explanation by 8.10.1999, failing which it would be construed that he had no explanation to offer and in such event orders as deemed and proper would be passed without further reference. Pursuant to such show cause notice, the opposite party filed a detailed reply/representation. According to Mr. Sahu, learned Addl. Government Advocate that only after consideration of such reply/representation, order of punishment was passed on 6.10.1999. As per the said order, the period of suspension of opposite party was treated as such. Further, two annual increments were with-held with cumulative effect. Though vide self-same order, the opposite party was re-instated in service, however, it was further directed that recovery of compensation amount awarded by the competent court along with interest would be effected in terms of the decision of the concerned court awarding compensation to the claimants, holding opposite party guilty of rash and negligent driving. The opposite party preferred an appeal against the order of punishment before the appropriate authority. On 13.7.2000, the petitioner was directed to deposit Rs.50,000/- in shape of bank draft for payment of interim compensation to Smt. Sarojini Mohanty, the mother of the deceased-Rashmi Ranjan Mohanty in tune with the direction of the 2nd M.A.C.T., Sambalpur passed in M.A.C. Case No. 143 of 1998. Further, vide order dated 19.4.2001, the petitioner No. 2 directed for recovery of interim compensation amount of Rs.50,000/- from the monthly salary of opposite party at the rate of Rs.600/- per month. Ultimately, vide order dated 6.7.2001, the appeal of the petitioner against the order dated 6.10.1999 imposing punishment as described earlier was rejected. Challenging the order of punishment and order dated 13.7.2000 directing him to deposit Rs.50,000/- and order dated 19.4.2001 directing recovery of Rs.50,000/-from his monthly salary and order dated 6.7.2001 rejecting his appeal, the opposite party moved learned Orissa Administration Tribunal, Bhubaneswar by filing O.A. No. 519 of 2001. Challenging the order of punishment and order dated 13.7.2000 directing him to deposit Rs.50,000/- and order dated 19.4.2001 directing recovery of Rs.50,000/-from his monthly salary and order dated 6.7.2001 rejecting his appeal, the opposite party moved learned Orissa Administration Tribunal, Bhubaneswar by filing O.A. No. 519 of 2001. Vide order under Annexure-3 dated 12.8.2008, the learned Tribunal held the order of punishment was not tenable in law and was liable to be set aside. It also held that the order dated 19.4.2001 directing for recovery of Rs.50,000/-from the salary of opposite party in equal monthly installment was also not tenable. However, the learned Tribunal granted liberty to the petitioner to conduct enquiry relating to additional article of charges dated 8.12.1998 regarding liability of the opposite party to pay compensation after giving due opportunity of hearing to the opposite party in the matter. In coming to such conclusion, the learned Tribunal was influenced by the fact that in the punishment order dated 6.10.1999, there existed no reference to the show cause reply filed by the petitioner. Secondly, the learned Tribunal also held that since vide show cause dated 9.9.1999, time was granted till 8.10.1999 to file show cause, the authorities ought to have waited till 8.10.1999 as that would have gave the opposite party liberty to file additional show cause before expiry of 8.10.1999. In such circumstances, the learned Tribunal has recorded a finding that there has been a clear violation of the principles of natural justice which make the order imposing punishment on 6.10.1998 legally vulnerable. Further, with regard to imposition of punishment relating to recovery of compensation vis-à-vis the additional charge dated 8.12.1998, the learned Tribunal came to a finding that when the said charge has not been enquired at all, the order of recovery of compensation to be awarded by the M.A.C.T. was not proper. 3. Heard Mr. M. Sahu, learned Addl. Government Advocate and Mr. V. Narsingh, learned counsel for the sole opposite party. 4. Mr. Sahu, learned Addl. Government Advocate submitted that the learned Tribunal has gone wrong in thinking that the order of punishment dated 6.10.1999 has been imposed without any reference to the show cause reply filed by the opposite party. 3. Heard Mr. M. Sahu, learned Addl. Government Advocate and Mr. V. Narsingh, learned counsel for the sole opposite party. 4. Mr. Sahu, learned Addl. Government Advocate submitted that the learned Tribunal has gone wrong in thinking that the order of punishment dated 6.10.1999 has been imposed without any reference to the show cause reply filed by the opposite party. According to him, a perusal of the punishment order dated 6.10.1999 would show that pursuant to the show cause notice dated 9.9.1999, the opposite party had filed a representation and the same was not found to be satisfactory. In this context, he drew attention of this Court to Paragraph-2 of the punishment order dated 6.10.1999. In this context, he submitted that instead of saying show cause, the petitioner No. 2 while passing the punishment order has referred to the same as representation. Further, in this context, Mr. Sahu, learned Addl. Government Advocate drew our attention to the language of Rule-15(10) of Orissa Civil Service (CCA) Rules, 1962 which uses the word “representation” instead of “show cause.” Therefore, he contended that when the relevant rules used the word “representation” instead of “show cause” and when in the punishment order dated 6.10.1999 the petitioner No. 2 refers to the language of statute i.e. “representation” instead of “show cause” the Tribunal went wrong in holding that since there was no reference to the show cause filed by opposite party, it should be presumed that the show cause of the opposite party had not been taken into consideration while passing the order. Secondly, he submitted that it is nowhere the requirement of law that even if the delinquent officer submits his representation/show cause before the last date fixed for submitting such representation, the same cannot be taken into account by the Disciplinary Authority and that the Disciplinary Authority has to wait till the last date only after which the order of punishment can be passed under Rule-15(10(i)(d) of the Orissa Civil Service (CCA) Rules, 1962. According to him, the said rule nowhere prohibits the Disciplinary Authority to pass such order after taking into consideration the representation/show cause of the delinquent employee filed before expiry of the stipulated date. He also submitted that the Rule-15(10)(i)(d) of Orissa Civil Service (CCA) Rules, 1962 nowhere enables the delinquent Government servant (opposite party) to file additional show cause reply/representation. According to him, the said rule nowhere prohibits the Disciplinary Authority to pass such order after taking into consideration the representation/show cause of the delinquent employee filed before expiry of the stipulated date. He also submitted that the Rule-15(10)(i)(d) of Orissa Civil Service (CCA) Rules, 1962 nowhere enables the delinquent Government servant (opposite party) to file additional show cause reply/representation. Accordingly, he prayed that the order learned Tribunal under Annexure-3 should be set aside. 5. Mr. V. Narsingh, learned counsel for the opposite party defended the impugned order under Annexure-3 and submitted that there exists no error apparent on the face of the record requiring interference of this Court. He further submitted that when the Enquiry Officer has not enquired into the additional charge as contained in the additional charge sheet dated 8.12.1998 the direction for recovery of the compensation in tune with decision of the M.A.C.T. was not proper. 6. We have considered the rival submissions made by both parties at the Bar. A perusal of Para-6 of the impugned order under Annexure-3 would show that the learned Tribunal has proceeded on an incorrect finding that the punishment order did not make any reference to the show cause reply filed by the opposite party. A perusal of Paragraph-2 of the punishment order dated 6.10.1999 clearly shows that the petitioner No. 2 has made reference to the representation filed by the opposite party in response to the show cause notice dated 9.9.1999. Only instead of using the phrase “show cause” the petitioner No. 2 while passing punishment order dated 6.10.1999 has indicated the same as “representation” as submitted by the opposite party. A perusal of Rule-15(10) clearly refers to the word “representation” in place of “show cause” at various places. Therefore, the learned Tribunal should have treated the “representation” as “show cause” instead of saying that the punishment order dated 6.10.1999 does not make any reference to the show cause filed by the opposite party. In fact, the word “show cause” nowhere occurs in Rule-15(10) of Orissa Civil Service (CCA) Rules, 1962. Rule-15(10) only refers to the word “representation” at various places. In fact, the word “show cause” nowhere occurs in Rule-15(10) of Orissa Civil Service (CCA) Rules, 1962. Rule-15(10) only refers to the word “representation” at various places. In such background, we have no hesitation in saying that there exists an error apparent on the face of the impugned order under Annexure-3 when it records a finding that the order of punishment dated 6.10.1999 (which was filed as Annexure-11 in the Original Application) there has been no reference to the show cause field by the opposite party. Secondly also a reading of the Rule-15(10) of Orissa Civil Service (CCA) Rules, 1962 nowhere prohibits the Disciplinary Authority to pass an order of punishment before expiry of the stipulated date that is indicated in the show cause once the delinquent has filed a representation before such date. Further, the said rule also does not provide any scope for the delinquent to file additional show cause reply. In such background, the finding of the learned Tribunal that the authority should have waited till expiry of the last date i.e. 8.10.1999 before passing the punishment order does not have the backing of law. In such background, the finding of the learned Tribunal regarding violation of the principles of natural justice has no legs to stand. However, so far as additional charge dated 8.12.1998 is concerned, a perusal of the enquiry report dated 21.8.1999 reflects that the Enquiry Officer has not enquired into the said charges. In such background, the direction of the petitioner No. 2 while passing the punishment order dated 6.10.1999 to effect recovery of compensation amount to be awarded by the M.A.C.T. along with interest in terms of the decision of the concerned court is not proper. 7. In such background, while upholding the no recovery order passed by the learned Tribunal, we set aside the order of the learned Tribunal so far as it quashes the punishment of treating the period of suspension as such. In other words, we restore the punishment of treating the period of suspension as such and that the said period would count towards the qualifying service of the opposite party. In other words, we restore the punishment of treating the period of suspension as such and that the said period would count towards the qualifying service of the opposite party. So far as quashing of the punishment of withholding of two annual increments with cumulative effect is concerned, while we set aside the same, however, we modify the punishment to be one for withholding two annual increments without cumulative effect as that would be more just and appropriate under the circumstance. We are doing this keeping in mind the nature of allegations made against the opposite party, a driver and the type of defence advanced by him and the totality of the circumstances of the case. 8. It is made clear that we have not interfered with the direction of the learned Tribunal granting liberty to the petitioners to conduct enquiry relating to additional charges issued vide office order no. 22909 dated 8.12.1998 regarding the liability of the opposite party to pay compensation. Accordingly, the writ application is partly allowed and disposed of. No costs. I. Mahanty, J. – I agree.