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2017 DIGILAW 212 (ORI)

Sanatan Jena v. CESU

2017-03-01

D.DASH

body2017
JUDGMENT : This writ application has been filed with the prayer for quashment of the orders dated 23.06.2003 and 26.08.2003 passed by the opposite party no. 2; further raising the question that the report submitted by the Enquiry Officer before opposite party no. 2 in connection with the Disciplinary Proceeding No. 04 dated 22.02.2003 drawn up against the petitioner is not legally tenable and as such is also liable to be quashed. 2. Brief facts necessary for deciding this writ application are:- The petitioner having worked as Executive Grade-2 (Junior Manager) till 31.01.2003, retired from service on superannuation thereafter. On 27.01.2003 i.e. 4 days prior to the date of the petitioner’s attaining the age of superannuation and retirement, he received a notice to show-cause from opposite party no. 3 to explain as to why suitable disciplinary action would not be taken against him for the following lapses:- (i) As found a two phase 11 kv line has been extended from Jagannathpur structure over six span and one KVS Transformer but it has originally means for 33/11 kv sub-station. Further one 25 kva transformer have also been installed on a newly constructed plinth in front of farm house of Sri Jay Krishna Sahoo and a single phase service connection extended to the same house. Meter installed in house of Sri Sahoo, as a matter of fact has not been sealed and the service line found to have been bye-passed. It is not understood how the sub-station has been installed independently for a single consumer where there are no other consumer. (ii) It has been further reported that six span single phase L.T. line has been extended from Gopalpur sub-station to ‘Sani’ and another single phase L.T. line extended inside the sahi when two moles erected without conductor. The service connection has also been provided to eight consumers without sanctioned estimate and installation of meters. But strongly enough provision Bius has been served to the consumer showing initial meter reading in the absence of any meter in the consumer premises. The explanation having been found to be unsatisfactory, the departmental proceeding was initiated on the following charges:- (i) “Gross dereliction in duty showing undue favour to the consumer financial loss to the company; (ii) Suspected integrity; and (iii) Misconduct.” As asked for, the written statement being submitted vide Annexure-4, finally the enquiry commenced under intimation to the petitioner. The explanation having been found to be unsatisfactory, the departmental proceeding was initiated on the following charges:- (i) “Gross dereliction in duty showing undue favour to the consumer financial loss to the company; (ii) Suspected integrity; and (iii) Misconduct.” As asked for, the written statement being submitted vide Annexure-4, finally the enquiry commenced under intimation to the petitioner. On conclusion of the enquiry in so far as charge no. (i) is concerned, the finding of the Enquiry Officer has remained that said charge has not been established. Next about the charge no. (ii) and (iii), the Enquiry Officer has found as under:- CHARGE NO. (ii) : In so far as the construction of the sub-station and illegal shifting of the service connection to J-636 to the old house to the new house of Jaykrushna Sahoo had been done, the same is with in connivance with the Department staff deployed in the area, the defence of the petitioner, he could not know about the illegal construction is not acceptable. Even if he had no knowledge the same can be said to have come when he accompanied the Superintendent of Engineer to the spot and thereafter he did not lodged any F.I.R either about such illegal construction of sub-station or illegal use of Department transformer by said Shri Sahoo nor he asked any explanation through concerned line staff not reported the matter to him. The defence although has been due to pass jurisdiction, the petitioner was unable to detect the illegal construction and misuse of material by the outsiders those by themselves, go to expose his jurisdiction incapability of the petitioner in keeping the staff under him within, they are bound and in controlling and safeguarding the department materials. The conclusion is not the charge has been established that the petitioner has acted any gross dereliction of his duty by showing undue favour to the consumer causing financial loss to the company relating to the tampering and bye-pass of meter although the petitioner has not been directly attributed to have been involvement it in any manner; yet it is said that is inaction by not going for disconnection of the supply of electric energy and the line of Shri Sahoo even after he knew the matter when he had been to the spot accompanying Superintendent, Engineer, the same cause established the charge. CHARGE NO. CHARGE NO. (iii) : Factually finding the materials to have been removed from the defunct OLIC point Purunakote and erected LT line of village Gopalpur; the same has not done in highly irregular manner violating the rules and regulations showing undue favour to the consumer and thereby causing financial loss to the company. The above report being submitted by the Enquiry Officer vide letter dated 12.05.2003, the same was received by the opposite party no. 2 on the next day. Thereafter, the following office order has been passed. The petitioner then having filed an appeal questioning the punishment imposed upon him, the same has not yielded any fruitful result. So, the punishment for the departmental proceeding is ultimately been imposed upon the petitioner by permanently stripping him of 1/3rd pension of the petitioner. 3. The petitioner in this writ application has questioned the finding of the Enquiry Officer as shown in the report in respect of charge no. (ii) and (iii) as unilateral and arbitrary and thus those are not acceptable having been recorded without taking into consideration the defence version on their proper prospective as also without any materials on record having proper foundation. It is next contended that when the Enquiry Officer has not arrived at a conclusion either as to the exact or even approximate pecuniary loss with the mere finding that loss has been caused to the company on account of negligence of the petitioner, the order of punishment permanently withholding 1/3rd pension of the petitioner is unsustainable in the eye of law and it is also highly disproportionate. 4. The opposite parties in the counter affidavit have asserted the findings of the Enquiry Officer to have been correctly recorded. The contention of the petitioner that those are unilateral and arbitrary without considering the defences laid by the petitioner in their proper prospective and also by not taking into account the documents placed from his side stands refuted. It has next been stated that taking into account the gravity of the charges established, the punishment permanently withholding of 1/3rd of pension of the petitioner is just and proper and commensurate. For that reason it is further stated that the appeal filed by the petitioner has been rightly rejected. The proceeding is said to have been conducted strictly following the procedures as prescribed in the rule holding the field. 5. For that reason it is further stated that the appeal filed by the petitioner has been rightly rejected. The proceeding is said to have been conducted strictly following the procedures as prescribed in the rule holding the field. 5. On the scope of judicial review in the context of disciplinary proceeding, the Apex Court in case of M.V. Bijlani Vs. Union of India; (2006) 5 SCC 88 has observed at para 25:- (SCC P. 95) “25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analyzing the documents must arrive at a conclusion that there had been preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.” The followings remain the observation in the matter of judicial review with regard to disciplinary proceeding in case of B.C. Chaturvedi Vs. Union of India, (1995) 6 SCC 749 are as follows:- “12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of the Evidence Act nor of proof of fact or evidence as defined therein and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, the mould the relief so as to make it appropriate to the facts of such case. 13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to re-appreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/ Tribunal. In Union of India v. H.C. Goel this Court held at p.728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.” 6. In Union of India v. H.C. Goel this Court held at p.728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.” 6. In view of the above settled position of law, the contentions raised by the petitioner questioning the sustainability of the findings recorded by the Enquiry Officer are found to be beyond the purview of consideration of this Court in this proceeding particularly when nothing is urged nor any such material is placed that the Enquiry Officer right from the beginning till submission of report, at any such point of time has committed breach of the rule in this regard, thereby causing prejudice to the petitioner. Moreover, the conclusions upon consideration of the evidence reached by the Enquiry Officer are not seen to be perverse nor are found to be suffering from patent error on the face of the record or on no evidence at all. Learned counsel for the petitioner has not been successful in his attempt to find and point out fault in the disciplinary proceeding in showing before the this Court that the manner in which the proceedings have been held indicate that the petitioner did not get fair opportunity to meet the charges and therefore the departmental proceeding can be rendered bad in law having been concluded in violation of principle of natural justice. The records as placed lead to show that Enquiry Officer observed the principle of natural justice while conducting the departmental proceeding. It is not in dispute that the petitioner was served detail charge-sheet and had been asked to verify the documents if he so desires. He has replied to the charge-sheet, and was given the opportunity to adduce evidence. Therefore, the prayer as advanced in this writ application for quashment of enquiry report submitted by the Enquiry Officer in disciplinary proceeding No. 4 dated 22.02.2003 under Annexure-6 is found to be devoid of merit. 7. This takes to the next question as to whether the punishment of permanently withholding of 1/3rd of pension to the petitioner inflicted on the petitioner is justified or not. It is the submission of learned counsel for the petitioner that such punishment is not justified. 7. This takes to the next question as to whether the punishment of permanently withholding of 1/3rd of pension to the petitioner inflicted on the petitioner is justified or not. It is the submission of learned counsel for the petitioner that such punishment is not justified. It is the settled position of law that once the charges levelled against the delinquent employee are proved, then it is for the Appointing Authority to decide as to what punishment should be imposed on the delinquent employee as per the Rules. The Appointing Authority keeping in view the nature and gravity of the charges, findings of Enquiry Officer, entire service record of the delinquent employee and all other relevant factors regarding delinquent is to exercise its discretion and then impose the punishment as provided in the Rules. 8. Once such discretion is exercised by the Appointing Authority in inflicting the punishment (whether minor or major) then the courts are slow to interfere in the quantum of punishment and only in rare and appropriate case substitutes the punishment. Such power is exercised when the courts find that the delinquent employee is able to prove that the punishment inflicted on him is wholly unreasonable, arbitrary and disproportionate to the gravity of the proved charges thereby shocking the conscience of the court or when it found to be in contravention of the Rules. The court may in such case remit the case to the Appointing Authority for imposing any other punishing as against what was originally awarded to the delinquent employee by the Appointing Authority as per the Rules or may substitute the punishment by itself instead of remitting to the Appointing Authority. 9. At this juncture, before taking the view as to if the punishment as inflicted upon the petitioner by the Authority having regard to the nature of proved charges whether is just and proper or it calls for interference, let’s have a glance at the stages of the proceeding subsequent to the submission of the Enquiry Report. As already stated, the report having been received by opposite party no. 2 on 13.05.2003, the order of punishment has been passed concluding the proceeding by permanently withholding 1/3rd pension of the petitioner on 23.06.2003. The petitioner then preferred an appeal on 17.07.2003 which has been dismissed as communicated by letter dated 26.08.2003. 10. As already stated, the report having been received by opposite party no. 2 on 13.05.2003, the order of punishment has been passed concluding the proceeding by permanently withholding 1/3rd pension of the petitioner on 23.06.2003. The petitioner then preferred an appeal on 17.07.2003 which has been dismissed as communicated by letter dated 26.08.2003. 10. Section -2 Chapter-X of CESU Officers Service Regulations (hereinafter called as ‘the Regulations’) deals with the ‘Discipline and Appeal’. As per regulation 45(3), the ‘Disciplinary Authority if is not itself the Enquiring Authority on receipt of the report of the Enquiry Officer with the records of the Enquiry: (a) it may for the reasons recorded by it in writing remand the case to the Enquiry Officer; whether the enquiring officer is the same or different for a fresh or further enquiry and report and the Enquiring Authority shall there upon proceed to hold further enquiry according to the provisions of these rules as far as may be applicable; (b) if the Disciplinary Authority disagrees with the finding of the Enquiry Officer on any article of charge, it shall record its reason for such disagreement and record its own findings on such charge if the evidence on record is sufficient for the purpose; (c) the Disciplinary Authority having regard to its finding on all or any of the article of the charge, is of the opinion that any of the penalties specified in Rule-44 should be imposed on the Officer, it shall propose an order imposing such penalty. Proviso remains to the above clause (c) that where the Disciplinary Authority is of the opinion that the penalty to the imposed is any of the major penalties and if it is lower in rank to the Appointing Authority in respect of the category of Officers to which the Officer belongs, it shall submit to Appointing Authority, the records of the enquiry together with its recommendations regarding the penalty that may be imposed and the Appointing Authority shall make an order proposing such penalty as it considers in its opinion appropriate. Lastly clause (d) provides that if the Disciplinary Authority or the Appointing Authority, as the case may be having regard to the findings on all or any of the articles of charge is of the opinion that no penalty is called for, it may pass an order exonerating the officer concerned. Lastly clause (d) provides that if the Disciplinary Authority or the Appointing Authority, as the case may be having regard to the findings on all or any of the articles of charge is of the opinion that no penalty is called for, it may pass an order exonerating the officer concerned. Regulation 45 (4) next lays down that if the Disciplinary Authority or the Appointing Authority propose to impose any penalty, it shall give an opportunity to the Officer to represent against the penalty proposed and shall make final decision on the penalty after taking into consideration, the representation received from the Officer. As provided in regulation 45(5)(b) of the Regulations in relation to minor penalties where even so proposed to impose, the disciplinary authority if satisfied that an enquiry is necessary, it shall follow the same procedure as in the case for imposing a major penalty as laid down in rule 45(2) of the Regulation. 11. Careful reading being given to the above regulations, when the facts as stand in the instant case are looked into, it is found that the Chief Executive Officer (O.P. No. 2) simply considering the report and finding of the Enquiry Officer in the proceeding drawn up against the petitioner has concluded the proceeding by passing the order imposing the penalty in permanently withholding 1/3rd pension of the petitioner. Thus, the position emerges that the petitioner was not given an opportunity to represent against the penalty proposed as mandatorily required under regulation 45(4) which speaks that when it is proposed to impose any penalty, opportunity has to be provided to the Officer to represent against penalty proposed and then the final decision on the penalty has to be taken after taking into consideration the representation if so received from the Officer. This regulation has been totally overlooked and surpassed while concluding the proceeding by imposition of penalty. This important aspect has also lost sight of the Appellate Authority. The very objective and purpose of this regulation is that having proposed the penalty if so represented the Disciplinary Authority has to give a relook into the matter. This regulation has been totally overlooked and surpassed while concluding the proceeding by imposition of penalty. This important aspect has also lost sight of the Appellate Authority. The very objective and purpose of this regulation is that having proposed the penalty if so represented the Disciplinary Authority has to give a relook into the matter. Therefore before expressing any opinion with regard to the punishment imposed on a delinquent in saying whether its disproportionate or not in addressing the contention raised by learned counsel for the petitioner, since it is seen that as per the regulation 45(4) of the Regulation, the delinquent has not been given an opportunity to submit the representation/reply on the enquiry report which finds the two charges to have been proved against the delinquent, I am of the view that the opinion formed by opposite party no.2 on 23.06.2003 was formed without there being the benefit of comments of the writ petitioner on the enquiry report. The writ petitioner in his representation to the enquiry report is entitled to point out any defect in the procedure, a defect of substantial nature in appreciation of evidence, any misleading of evidence, both oral and documentary. Any inputs and explanation given by the delinquent in his representation are also entitled to be considered by the opposite party no. 2 before it embarks upon further proceedings as per statutory rules. All these above, thus lead me to take the view that there has been violation of principle of natural justice at the level of opposite party no. 2 when opinion was formed to punish the writ petitioner with permanently withholding 1/3rd of pension as payable to him without forwarding the enquiry report to the delinquent and before obtaining his comments on the enquiry report. The order of the opposite party no.2 imposing the punishment as well as the appellate order which are seen to have been thus passed without being cognizant of above aspect have to be quashed. 12. In view of above discussion, I am of the view that present is the case where while quashing the punishment order as well as the appellate order the opposite party no.2 has to be permitted to proceed with the inquiry from the stage in which fault has been noticed i.e. non-observance of regulation 45(4) of the Regulations. 12. In view of above discussion, I am of the view that present is the case where while quashing the punishment order as well as the appellate order the opposite party no.2 has to be permitted to proceed with the inquiry from the stage in which fault has been noticed i.e. non-observance of regulation 45(4) of the Regulations. I am conscious that sufficient time has elapsed in between when the petitioner has been leading the life as a retired person almost since the initiation of proceeding by now for about thirteen long years with usual mental agony of being stripped of substantial portion of pension which an employee earns by virtue of long service so as to maintain the minimum status after the period of service keeping in view the status that he was enjoying last during service which the employer also takes up the responsibility in view of long service record of the servant. Therefore, it is felt that ends of justice would be best served in disposing of this writ application by fixing a time frame for completing the proceeding from the stage of observance of regulation 45(4) of the Regulations and onwards. 13. I having found that the principles of natural justice have been violated after submission of the enquiry report dated 12.05.2003, the proceedings taken by the opposite party no. 2 after 22.06.2003 have to be set aside and the opposite party no.2 is to be directed to forward the copy of the enquiry report in accordance with regulation 45(4) of the Regulations and further proceedings, if any, are to be accordingly taken thereafter. 14. In the result, the writ application is partly allowed as is ordered hereunder:- (a) The proceeding taken up by the opposite party no. 2 after submission of the enquiry report dated 12.05.2003 including punishment order 23.06.2003 and appellate order dated 26.08.2003 are quashed; (b) The opposite party no. 2 shall forward the enquiry report as per regulation 45(4) of the Regulation. The writ petitioner would be allowed 15 days time to submit his representation to the enquiry report; (c) After receipt of the representation of the writ petitioner to the enquiry report, the opposite party no. 2 may proceed and take a decision in accordance with regulation 45(4) of the Regulation; and (d) The opposite party no. The writ petitioner would be allowed 15 days time to submit his representation to the enquiry report; (c) After receipt of the representation of the writ petitioner to the enquiry report, the opposite party no. 2 may proceed and take a decision in accordance with regulation 45(4) of the Regulation; and (d) The opposite party no. 2 shall complete the proceedings and pass appropriate orders as aforesaid within a period of two months from the date of receipt of the representation of the writ petitioner to the enquiry report. No order as to cost is passed.