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2017 DIGILAW 1404 (ORI)

Anirudha Panigrahi v. Registrar (Administration)

2017-12-05

B.K.NAYAK, D.P.CHOUDHURY

body2017
JUDGMENT : D.P. Choudhury, J. Challenge has been made to the order passed by the learned Appeal Committee in imposing stoppage of four increments, recovery of shortage amount and for not passing any order on period of suspension. FACTS 2. The unshorn details of the case leading to this writ petition is that on 2.1.1986 the petitioner entered into service as Copyist. Thereafter in 1994 he was posted as Nazir in the establishment of SDJM, Nuapada. He applied for leave from 24.4.2004 to 30.4.2004. In his place one Motiram Jagat, Junior Clerk was kept in-charge of Nazir in the establishment of Nuapada. It is alleged inter alia that on 26.4.2004 Shri Justice P.K. Tripathy, the then Judge of this Court made a surprise visit to Nuapada. On verification of accounts His Lordship found shortage of cash of Rs.2831.40 p. in the Nizarat. But immediately the Junior Clerk in-charge arranged the shortage money and made up the deficit amount. However, on the direction of His Lordship, an enquiry was started against the present petitioner. Contemplating Departmental Proceeding the petitioner was placed under suspension on 18.7.2004. When the explanation was called for from the petitioner to the charges, he submitted same solely stating that he was not in-charge of the Nazir at the relevant time. After due enquiry the punishment was inflicted on 5.3.2005 by removing the petitioner from service. So, the petitioner filed appeal on 17.3.2005 before this Court. After hearing the petitioner the Appeal Committee of this Court set aside the order of removal from service and directed to reinstate the petitioner but substituted the punishment with the stoppage of four increments with cumulative effect and the petitioner was directed to make good the shortage amount. After the petitioner was reinstated, he made representation for payment of the salary during the period of suspension and the period he was kept out of service for no fault of his. That representation was rejected. Hence, the writ petition. SUBMISSIONS 3. Learned counsel for the petitioner submitted that the enquiry report prepared by the Enquiring Officer was not communicated to the petitioner although it is required by law to first communicate the same to the delinquent employee. That representation was rejected. Hence, the writ petition. SUBMISSIONS 3. Learned counsel for the petitioner submitted that the enquiry report prepared by the Enquiring Officer was not communicated to the petitioner although it is required by law to first communicate the same to the delinquent employee. It is further submitted that the disciplinary authority without giving any opportunity of hearing to the petitioner on the enquiry report, accepted the same to the extent of differing on the point of recommendation on punishment, although law requires that after considering the show cause of the petitioner along with enquiry report the disciplinary authority would give his final opinion. Learned counsel for the petitioner relied upon the decision in AIR 1991 SC 471 , Union of India and others v. Mohd. Ramzan Khan, where it is held that the enquiry report would first be supplied to the delinquent to give him chance to rebut the finding of the Enquiring Officer and said decision has been repeatedly followed by the Hon’ble Apex Court in AIR 2011 SC 120 , Punjab National Bank v. K.K. Verma and (2013) 7 SCC 251 , S.P. Malhotra v. Punjab National Bank and others. 4. Learned counsel for the petitioner submitted that Rule 15 (10) (i) (a) of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 (hereinafter called “the Rules, 1962”) clearly enshrines that the report of the Enquiring Officer must be communicated to the employee with notice of calling him to submit such representation within a period of fifteen days. Moreover, Rule 15 (10) (i) (b) of the Rules, 1962 directs that upon such representation the disciplinary authority has to furnish the delinquent servant a statement of his finding along with brief reasons for disagreement with the proposed punishment to be imposed and issue a second show cause notice before imposing major penalty. But in this case the disciplinary authority has not followed the entire procedure and inflicted punishment of removal from service. Learned counsel for the petitioner submitted that the above lacunae have been well noticed by the learned Appeal Committee but unfortunately it imposed punishment of stoppage of four increments and recovery of shortage amount. 5. Learned counsel for the petitioner submitted that due to gross violation of natural justice and procedure laid down by Rules, the petitioner is not liable to any punishment much less, the punishment awarded. 6. 5. Learned counsel for the petitioner submitted that due to gross violation of natural justice and procedure laid down by Rules, the petitioner is not liable to any punishment much less, the punishment awarded. 6. Learned counsel for the petitioner submitted that when one Motiram Jagat was officially in-charge of the petitioner on the date of alleged detection of shortage, the charge of unauthorisedly allowing Motiram Jagat to operate the cash and shortage of cash cannot be saddled on petitioner. Apart from this, the defence wanted to examine the then Judge-in-charge, Accounts, Shri G.D. Pati but he was not examined at the instance of the Department. In view of the decision of the Hon’ble Apex Court in AIR 1998 SC 853 , Ministry of Finance v. S.B. Ramesh and (2008) 15 SCC 306 , Rajiv Arora v. Union of India and others, the non-examination of material witness is fatal to the entire proceeding. So, due to non-examination of Shri Pati, the entire proceeding has been vitiated. 7. Learned counsel for the petitioner further submitted that even if the petitioner is reinstated by the order of the learned Appeal Committee but of he has not been paid the salary for the period he was removed from service due to the fault of the Disciplinary Authority. On the other hand, he submitted that once the employee is reinstated in service, he should be treated to be continued in employment during that period and is entitled to all service benefits including financial benefits. He relied on the decision reported in (2013) 10 SCC 324 , Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya. 8. Learned Additional Government Advocate submitted that even if Motiram Jagat was in-charge of the petitioner during the relevant time but the petitioner cannot be absolved of the charge of shortage of cash and for unauthorized use of cash, because he was the regular Nazir of the Court. Apart from this, the learned counsel for the State made it clear that the learned Appeal Committee has not fully exonerated the petitioner from the charges he was facing and as such rightly substituted the punishment of stoppage of increments in place of removal from service. 9. Apart from this, the learned counsel for the State made it clear that the learned Appeal Committee has not fully exonerated the petitioner from the charges he was facing and as such rightly substituted the punishment of stoppage of increments in place of removal from service. 9. Learned counsel for the State submitted that there is compliance of the procedure maintained in Rule 15 (10) of the 1962 Rules because clear notice was served upon the petitioner to show cause on the report of the Enquiring Officer and the punishment proposed by the disciplinary authority on 10.1.2005 and the petitioner himself has filed the show cause. Thus, there is clear compliance of the procedural law and as such the submission of the learned counsel for the petitioner has no substance. 10. Learned Additional Government Advocate further contended that as per the enquiry the finding of the Enquiring Officer has not been set aside by the Appeal Committee and only the punishment is substituted, the prayer of the petitioner that the period of suspension be treated as duty may not be acceded to. Besides, he submitted that as the petitioner was not on duty and away from service, he is not entitled to the financial benefit for the period he remained out of service from the date of removal till his reinstatement. So, he submitted to dismiss the writ petition. 11. Main point for consideration : (i) The main point for consideration whether the petitioner is entitled to be exonerated from the charges and not liable to any punishment? DISCUSSION 12. It is not in dispute that the petitioner was on casual leave from 24.4.2004 to 30.4.2004. It is admitted fact that one Motiram Jagat, Junior Clerk was kept in-charge of the post of Nazir in place of the petitioner. It is not in dispute that on 26.4.2004 there was inventory of cash kept in Nizarat while there was an inspection by the High Court to the Civil Court, Nuapada. It is admitted fact that during enquiry, the petitioner has requested for examination of Shri G.D. Pati, the then Judge-in-charge, Accounts, Nuapada but he was not examined. 13. In the Departmental Proceeding No.14 of 2004 the petitioner was supplied with the Article of Charges under Rules, 1962 in the following manner : “2. It is admitted fact that during enquiry, the petitioner has requested for examination of Shri G.D. Pati, the then Judge-in-charge, Accounts, Nuapada but he was not examined. 13. In the Departmental Proceeding No.14 of 2004 the petitioner was supplied with the Article of Charges under Rules, 1962 in the following manner : “2. That during your incumbency as such on 26.4.2004 the S.D.J.M., Nuapada-cum-Judge-in-charge, Accounts (in-charge) verified the cash in the Nizarat and found shortage of cash of Rs.2831.40 paise in comparison to the Book balance as per the Cash Books both Civil and Criminal as reported by the S.D.J.M., Nuapada who was in-charge of the Judge-in-Charge, Accounts-cum-Civil Judge (Senior Division), Nuapada vide his Confidential letter No.4 dated 27.4.2004. Thus you committed temporary misappropriation of Government money and gross misconduct on the part of a Government servant. 3. That without formally handing over the charge of the Cash Books both Civil and Criminal and the cash as per book balance before proceeding on leave on 24.4.2004 you unauthorisedly allowed Sri Motiram Jagat, Junior Clerk to operate Cash causing shortage of cash of Rs.2831.40 P. on the date of verification on 26.4.2004, for which you are liable for gross misconduct and misappropriation of public money.” Necessary charges along with Annexures were supplied to the petitioner and the petitioner made representation vide Annexure-2 to exonerate him from the charges on sole ground that he was on leave during that period. Annexure-6 shows the disciplinary authority, learned District Judge, Kalahandi-Nuapada issued notice to show cause in the following manner : “Office of the District Judge, Kalahandi-Nuapada, At-Bhawanipatna No.191 Dt.10.1.05 From The Registrar, Civil Courts, Kalahandi-Nuapada, At-Bhawanipatna To Sri Anirudha Panigrahi, Junior Clerk, Nazir of the court of S.D.J.M., Nuapada (Under Suspension) NOTICE TO SHOW CAUSE In enclosing herewith the copies of the inquiry report of the inquiring officer dated 13.12.04 and the finding of the Disciplinary Authority-cum-Dist. Judge, Kalahandi-Nuapada, At-Bhawanipatna dt. 7.1.2005 in Deptt. Proceeding No.14/2004, initiated against you, your are hereby directed to submit your show cause within TEN days from the date of receipt of this notice. Further you are directed to note that if no show cause is received within the stipulated period, it will be deemed that you have nothing to show cause and action as would be deemed proper shall be taken against you. Enclosures: Sd/- Registrar, Civil Courts, Kalahandi-Nuapada, At-Bhawanipatna. Further you are directed to note that if no show cause is received within the stipulated period, it will be deemed that you have nothing to show cause and action as would be deemed proper shall be taken against you. Enclosures: Sd/- Registrar, Civil Courts, Kalahandi-Nuapada, At-Bhawanipatna. Copy of the report of inquiring officer and copy of findings of Disciplinary authority. 8 sheets.” The aforesaid notice clearly shows that the enquiry report along with proposed punishment was issued for the first time to the petitioner on 10.1.2005. 14. Rule 15 (10) (i) of the Rules, 1962 are quoted herein below : “(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 : 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. (c) On receipt of the advice from the Commission the disciplinary authority shall consider the representation, if any, made by the Government servant and the advice given by the Commission and shall pass appropriate orders in the case. (c) On receipt of the advice from the Commission the disciplinary authority shall consider the representation, if any, made by the Government servant and the advice given by the Commission and shall pass appropriate orders in the case. (d) In any case in which it is not necessary to consult the Orissa Public Service Commission, the disciplinary authority shall consider the representation, if any, made by the Government servant in response to the notice under Sub-Clause (b) and pass appropriate order in the case. 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 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. xxx xxx xxx” The aforesaid Rules are in vogue during the enquiry period. The aforesaid Rule 15 (10) (i) (a) clearly mentioned that after enquiry if the Enquiring Officer is not the disciplinary authority, the disciplinary authority shall furnish to the delinquent Government servant a copy of the report of the Enquiring Officer to make representation on the report of the Enquiring Officer. After the delinquent made representation then the disciplinary authority will again furnish to the delinquent a statement of its finding along with brief reasons of disagreement with the findings of the Enquiring officer to submit another representation while proposing major penalty. Thus, without compliance of Section 10 (i)(a), the provision of Rule 10 (i)(b) would be redundant. 15. It is reported in AIR 1991 SC 471 , Union of India and others v. Mohd. Ramzan Khan, para 18 of which is quoted herein below : “18. Thus, without compliance of Section 10 (i)(a), the provision of Rule 10 (i)(b) would be redundant. 15. It is reported in AIR 1991 SC 471 , Union of India and others v. Mohd. Ramzan Khan, para 18 of which is quoted herein below : “18. We make it clear that wherever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry 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.” 16. It is also revealed from para-27 of the decision reported in AIR 2011 SC 120 , Punjab National Bank v. K.K. Verma which is quoted herein below : “27. The counsel for the appellant relied upon the judgment of this Court in National Fertilizers Ltd. and Anr. v. P.K. Khanna [ AIR 2005 SC 3742 ] : (2005 AIR SCW 4333) where the disciplinary rules were pari-materia to the rules in the present case as can be seen from para 10 of that judgment. Counsel relied on para 13 of the judgment which reads as follows :- "As far as the second question is concerned, neither the decision in Karunakar nor Rule 33 quoted earlier postulate that the delinquent employee should be given an opportunity to show cause after the finding of guilt as to the quantum of the punishment. The Rules envisage the passing of an order by the Disciplinary Authority not only finding the delinquent guilty, but also imposing punishment after the delinquent has been given a copy of the Enquiry report and had an opportunity of challenging the same." (Emphasis supplied) This paragraph make it clear that there is no second opportunity available to the delinquent employee after the finding of guilt on the quantum of punishment. At the same time, the second sentence of this para clearly states that a copy of the inquiry report is to be given to the delinquent employee prior to the decision of the disciplinary authority for providing him with an opportunity to challenge the report. At the same time, the second sentence of this para clearly states that a copy of the inquiry report is to be given to the delinquent employee prior to the decision of the disciplinary authority for providing him with an opportunity to challenge the report. It is also material to note from this judgment that since the employee had contended in that case, that the Disciplinary Authority had not considered his objections correctly, this Court directed the Appellate Authority (and not the Disciplinary Authority) to reconsider the objections of the respondent.” 17. With due regard to the aforesaid decisions, it appears that compliance of Rule 15(10)(i)(a) is not affected by 42nd amendment and in fact the said right to make representation is indefeasible right of the delinquent. Violation of such rule speaks about violation of natural justice of the delinquent. In the reported decision of this Court in Narayan Patnaik v. State of Orissa & Others (Original Jurisdiction Case No.3945 of 1999) where Their Lordships observed at para-12 in the following manner : “12. We are also further of the view that failure on the part of the employer to provide the copy of the inquiry report to the delinquent/petitioner clearly vitiates the proceeding resulting the punishment in the proceeding unlawful.” 18. With due respect to the said decisions, we are of the view that non-supply of the copy of the enquiry report to the delinquent by the Disciplinary Authority before differing with proposed punishment clearly vitiates the proceeding resulting the punishment awarded unlawful. 19. In the instant case, admittedly the learned counsel for the State has not produced any material to show that the enquiry report was supplied to the petitioner at the first instance to make representation so as to consider same by the Disciplinary Authority and then proposed his punishment and supply the notice again to show cause having disagreed on the findings of the Enquiring Officer. Learned Appeal Committee has not discussed about this aspect in the impugned order. So, we are of the view that non-compliance of Rule 15 (10)(i)(a) has resulted in violation of natural justice. 20. The next contention of the learned counsel for the petitioner that non-examination of the material witnesses on behalf of the defence is serious lacunae in the enquiry. Learned Appeal Committee has not discussed about this aspect in the impugned order. So, we are of the view that non-compliance of Rule 15 (10)(i)(a) has resulted in violation of natural justice. 20. The next contention of the learned counsel for the petitioner that non-examination of the material witnesses on behalf of the defence is serious lacunae in the enquiry. When it is admitted fact that Shri G.D. Pati, the then Judge-in-charge of Accounts was the most material witness as he had signed the Cash Book, his non-examination even after request of the petitioner has vitiated the proceeding. 21. We may rely on a decision reported in (2008) 15 SCC 306 , Rajiv Arora v. Union of India and others where Their Lordships observed at paras-13 and 14 in the following manner : “13. No explanation has been offered as to why the witnesses concerned could not be examined. Shri Reddy, PW-7 was the custodian of the report. He was not the maker thereof. Effective cross-examination could have been done as regards the correctness or otherwise of the report, if the contents of them were proved. The principles analogous to the provisions of the Evidence Act as also the principles of natural justice demand that the maker of the report should be examined, save and except in cases where the facts are admitted or the witnesses are not available for cross-examination or similar situation. No reason has been assigned as to why the named witnesses who only could prove the charges had not been examined. Indisputably, they were the prime witnesses. 14. The High Court in its impugned judgment proceeded to consider the issue on a technical plea, namely, no prejudice has been caused to the appellant by such non-examination. If the basic principles of law have not been complied with or there has been a gross violation of the principles of natural justice, the High Court should have exercised its jurisdiction of judicial review. Before a court martial proceeding is convened, legal requirements therefor must be satisfied. Satisfaction of the officer concerned must be premised on a finding that evidence justified a trial on those charges. Such a satisfaction cannot be arrived at without any evidence. If an order is passed without any evidence, the same must be held to be perverse.” 22. Before a court martial proceeding is convened, legal requirements therefor must be satisfied. Satisfaction of the officer concerned must be premised on a finding that evidence justified a trial on those charges. Such a satisfaction cannot be arrived at without any evidence. If an order is passed without any evidence, the same must be held to be perverse.” 22. With due respect to the said decision, it appears that the principles of provisions of Evidence Act and the principles of natural justice being violated, there being observation of the learned Appeal Committee that benefit of doubt should go to the petitioner, we are of the view that absence of evidence of Shri Pati has made the charges vulnerable against the petitioner. 23. However, the petitioner preferred the appeal before the learned Appeal Committee and relevant portion of order passed by the learned Appeal Committee is placed below for reference : “We have perused the charge, the written statement of the appellant, the enquiry report. Admittedly, the cash was verified during the period when the appellant was on leave and Motiram Jagat was in-charge of the seat of Nazir. Plea of the appellant was that he handed over charge of cash and key of Iron Chest to Motiram Jagat before proceeding on leave. D.W.1 in his evidence admitted to have received his duty pay from Motram Jagat on 26.04.2004. The verification was made on the third day of Motiram remaining in charge of post of Nazir. Motiram was a vital witness to prove the truth or otherwise of the plea of the appellant as regards handing over and taking over of cash and key of the Iron Chest. Although there is no scrap of paper showing handing over charge, can it be presumed that the appellant had not handed over the cash and key to Motiram ? What was the closing balance on 23.04.2004 has also not been verified. The cash book must have been placed before the Judge-in-Charge, Accounts on 23rd and 24th for verification. The department did not choose to examine him. Whether the shortage figure was arrived at taking into consideration the amount said to have been received by D.W.1 is not known. In such circumstances, the benefit of doubt should go to the appellant and it cannot be said that the appellant was solely responsible for the shortage. The department did not choose to examine him. Whether the shortage figure was arrived at taking into consideration the amount said to have been received by D.W.1 is not known. In such circumstances, the benefit of doubt should go to the appellant and it cannot be said that the appellant was solely responsible for the shortage. In our opinion the punishment suggested by the enquiry officer will meet the ends of justice. Therefore while setting aside the punishment of removal from service, we direct that four increments of the appellant be withheld with cumulative effect and the appellant be directed to make good the shortage.” 24. After perusal of the aforesaid order, it appears that the learned Appeal Committee was also critical about the findings of the Enquiring Officer and the Disciplinary Authority but it is reiterated that they have not considered about non-compliance of Rule 15 (10) (i)(a), i.e., the right of the petitioner to submit representation at first instance before view taken by the Disciplinary Authority. Had this provision been taken into consideration, we are of the view that the learned Appeal Committee must have reached the conclusion that the petitioner was not guilty of charge of shortage of money. When the learned Appeal Committee has not accepted the finding of the Enquiring Officer and the Disciplinary Authority regarding proof of charges against the petitioner and gave him benefit of doubt, we are unable to agree with the findings of the learned Appeal Committee that four increments of the petitioner would be withheld with cumulative effect with direction to make loss of Government money. 25. In terms of the above discussion, the petitioner should be exonerated of the charges imposed on him and not liable to any punishment. The point is answered accordingly. CONCLUSION 26. In the writ petition it has been prayed to quash the order of the Appeal Committee so far punishment is concerned and to allow all service benefits for the period the petitioner remained out of employment and to regularize the period of suspension of the petitioner. Further, it has been prayed that the recovery made from the petitioner in regard to shortage of money may be ordered to be returned to him. 27. We, therefore, quash the order of the Appeal Committee under Annexure-13. Further, it has been prayed that the recovery made from the petitioner in regard to shortage of money may be ordered to be returned to him. 27. We, therefore, quash the order of the Appeal Committee under Annexure-13. Since the charges have not been proved against the petitioner because of the reasons as mentioned hereinabove, there is no reason to deny the petitioner all service benefits including financial benefits from the date of suspension till the date of reinstatement by adjusting the subsistence allowance. The writ petition is disposed of accordingly.