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2017 DIGILAW 1281 (ORI)

Umakanta Rath v. M. D. , O. F. D. Ltd.

2017-11-09

S.N.PRASAD

body2017
JUDGMENT S.N. PRASAD, J. - This writ petition is under Article 226 and 227 of the Constitution of India, whereby and where under the order dated Annexure-2 dated 27.01.2001 whereby and where the punishment of recovery of Rs. 88119.84 has been directed to recovered one punishment to withhold three annual increments with cumulative effect. Annexure-4 dated 7.8.2001 passed by the appellate authority whereby and where under the order passed by the disciplinary authority has been affirmed. 2. Case of the petitioner as per the pleading made in the writ petition is that while he was working as Field Assistant, he was departmentally proceeded for an allegation of timber loss resulting into the loss in the Government exchequer. The main point raised in this writ petition is that the enquiry officer while conducting enquiry has come to finding to make recovery from the petitioner of an amount of Rs. 55809.00 but the Disciplinary authority has inflicted punishment of making recovery of Rs. 88119.84 and while doing so, i.e. differing with the finding of the enquiry report is without giving an opportunity to represent with respect to the reason of difference, hence the order passed by the Disciplinary Authority is not sustainable. He has also submitted that in the appeal, the appellate authority has also not taken into consideration this aspect of the matter. 3. While on the other hand, the learned Senior Counsel representing the Corporation has vehemently opposed the submission and the plea taken by the petitioner, while arguing he has submitted that the point of difference of opinion which he has taken in the writ petition has never been taken before the appellate authority. He further submits that this point was available with him before the appellate authority and the enquiry officer, he has not raised this legal position before the appellate authority, hence the same may not be entertained. 4. Heard the learned counsel for the parties and on appreciation of the rival submission made on their behalf, it is evident from the record that the petitioner while posted as Field Assistant an allegation of commission of irregularities has been inflicted upon him which lead loss to the Government exchequer, since according to the Corporation, the petitioner has failed in discharging his duty with all sincerity and honesty in keeping the timber properly. The Corporation has initiated a departmental proceeding against him, the petitioner had appeared before the Enquiry Officer. It is evident from the enquiry report as annexed under Annexure-3 that the charge has been found to be proved but the punishment recommended is recovery of Rs. 55809.00 in suitable installments. The petitioner has been given an opportunity to explain by serving copy of the enquiry report as would be evident from the show cause notice dated 10.04.2000. The petitioner has submitted his response denying his liability to make payment. 5. The Disciplinary authority being not satisfied with the response has inflicted the punishment vide order dated 7.8.2001 under Annexure-4, whereby and where under the petitioner has been directed to deposit a sum of Rs. 88119.84 which is to be recovered from him along with the punishment of withholding of three annual increments with cumulative effect. The petitioner has preferred an appeal before the appellate authority, the appellate authority has confirmed the order of recovery but however the part of the order whereby and where under the three annual increments has been withheld has been reduced to one increment but with cumulative effect. 6. The petitioner, being aggrieved with the order passed by the Disciplinary Authority and also the appellate authority is before this Court by way of this writ petition. In course of scrutinizing the pleading made by the petitioner, the contention raised by the learned counsel for the opposite parties is that the point which he has raised has never been raised by him either before the Disciplinary authority or before the appellate authority, but the point which has been raised by the petitioner in this writ petition is not on fact rather it is legal question which has been raised by the petitioner and also such even though he has not raised this question before the Disciplinary Authority or the appellate authority, the legal question cannot be given go bye, by this Court sitting under Article 226 of the Constitution of India. This is being said on the basis of the settle proposition, that the legal question can be raised at any stage of proceeding. This is being said on the basis of the settle proposition, that the legal question can be raised at any stage of proceeding. The legal proposition is that when there is any finding by the Enquiry Officer and if the Disciplinary Authority differs with the finding, the requirement of the law is to give the difference of opinion along with the reason of difference and the delinquent employee be provided an opportunity to make due representation against the difference of opinion, reference in this regarding may be made to the judgment rendered by the Hon’ble Supreme Court in the case of Punjab National Bank and others vrs. Sh. Kunj Behari Misra and others reported in (1998) 7 SCC 84 . 7. Here, in the instant case, the petitioner has been inflicted with two punishments, one relates to recovery and second relates to withholding of one annual increment with cumulative effect, although the recovery of punishment is minor in nature as per the discipline and appeal rule governing in the field but withholding of annual increment with cumulative effect is major. The Disciplinary Authority has come to conclusion on the basis of the finding given by the Enquiry Officer or recovery and also withholding of increments with cumulative effect. The enquiry report suggests that the charge has been found to be proved but the recovery which has been found to be made from the petitioner by the Enquiry Officer is Rs. 55,809/- but the said amount has been enhanced to the tune of Rs. 88,119.84 by the Disciplinary Authority and as such according to the considered view of this Court, the Disciplinary Authority has differed with the finding of the Enquiry Officer, hence ratio laid down by the Hon’ble Supreme Court in the case of Punjab National Bank and others vrs. Sh. Kunj Behari Mishra and others reported in (1998)7 SCC 84 applicable in the facts and circumstances of the instant case. 8. In view thereof, the order passed by the Disciplinary Authority and also by the appellate authority are not sustainable in the eye of law. Accordingly, the same quashed. 9. In the result, the matter is remitted before the opposite party no.3, the Divisional Manager, Berhampur (C) Division, M/s. Orissa Forest Development Corporation Limited, Berhampur, Dist. Ganjam, who shall pass a fresh order in accordance with law as per the observation made hereinabove. 10. Accordingly, the same quashed. 9. In the result, the matter is remitted before the opposite party no.3, the Divisional Manager, Berhampur (C) Division, M/s. Orissa Forest Development Corporation Limited, Berhampur, Dist. Ganjam, who shall pass a fresh order in accordance with law as per the observation made hereinabove. 10. It has been informed by the learned Senior Counsel representing the Corporation that the petitioner has retired from service and as such it will be difficult for the Corporation to serve notice upon him. Considering this submission, this Court has thought it proper to direct the learned counsel for the petitioner to communicate the order to him for his appearance before the opposite party no. 3 in between 15th to 20th December, 2017 which suits the parties. On his appearance opposite party no. 3 shall serve copy of the show cause showing the difference of opinion as observed herein above by giving specific time for his response. The petitioner is directed to submit his response during the time which will be fixed by the opposite party no. 3 in the show cause. The opposite party no. 3 immediately after receipt of the response shall pass order within three weeks from the date of receipt of the same, in accordance with law without being prejudiced by this order. With this observation and direction, the writ petition is disposed of. Petition disposed of.