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2017 DIGILAW 245 (ORI)

State of Odisha v. Rakesh Kumar Swain

2017-03-08

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S. N. PRASAD, J. 1. This writ petition is under Articles 226 and 227 of the Constitution of India filed by the State of Odisha and its functionaries assailing the order dated 23.9.2015 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 3215(C) of 2014 whereby and where under the order of removal from service issued against the applicant-opposite party has been quashed with a direction to reinstate him in service with all financial benefits, however, without any back ages with liberty to the State authorities, if so advised, to proceed against the applicant in accordance with law. 2. The brief facts in narrow compass is that the applicant-opposite party was appointed as Constable vide order dated 8.8.2012 and was allotted to Cuttack Urban Police District. He was deputed for training to Police Training School, Nayagarh on 27.9.2013 for a period of six months. While he was undergoing training on 10.12.2013 a command was issued to the applicant-opposite party by the order of the Principal of the Training School directing him to report to the DPC for further duty. While the applicant-opposite party was continuing as such, the Deputy Commissioner of Police, Cuttack passed the order of removal from service on 13.2.2014 and discharged him from the force as per Rule 668(a) of the Police Manual on the ground that he was involved in series of misconduct in the training Centre i.e., he assaulted RC-220 Kali Prasanna Jena by means of broom stick and used slang languages thereby violating discipline in the training centre and as per the Principal of the Police Training School, Nayagarh, he was in habit of regularly misbehaving the other trainees and inmates for which he was earlier warned and imposed with minor punishment, but in spite of that he did not mend his attitude, rather, continued as such, as a result of which he was returned to Cuttack UPD with the recommendation for departmental action. The applicant-opposite party denied all the allegations, but according to him without providing adequate and sufficient opportunity of being heard, he has been removed from service taking recourse of the provisions of Rule 825(c) of the Police Manual and as such, the applicant-opposite party being aggrieved with the decision of the authority has approached the Tribunal, which is the subject matter of the instant writ petition. 3. 3. While on the other hand, the case of the State-opposite party, who is the petitioner before this Court, is that while he was undergoing the training, failed to maintain discipline in the training centre in series of indiscipline acts. The matter was enquired by the Assistant Commandant of the Police Training School, Nayagarh, who submitted the enquiry report proving the entire allegation against the applicant. The Deputy Commissioner of Police, Cuttack taking into consideration the enquiry report, has taken departmental action by removing him from service. It has been contended by the writ petitioner-State of Orissa that there is no illegality in the same since the applicant-opposite party was on probation period as would be evident from the appointment order dated 27.8.2012 and according to the learned counsel if an employee is on probation, there is no requirement to follow the principles of natural justice as enshrined in the Discipline and Appeal Rules read with Article 311(1) of the Constitution of India. The Tribunal after re-appreciating the argument advanced on behalf of the parties has passed the order by allowing the Original Application and quashed the order of removal by reinstating the applicant in service however without any back wages, but granted liberty to the opposite parties-State to proceed against the applicant in accordance with law. 4. We have heard the learned counsel for the parties and perused the documents available on record. 5. The sole question raised before this Court by the learned counsel appearing for the State of Odisha is that in course of probation there is no requirement to follow the principles of natural justice, reason being that the applicant was on probation for a period of two years and in course of probation, the principles of natural justice or regular departmental proceeding is not required to be followed by the authorities. To substantiate his argument, he has taken the help of the provisions of Rules 825(c) and 668(a) of the Police Manual. 6. We have thought it proper to quote the relevant provision as contained in Rules 668 and 825 of the Orissa Police Rules, which is being referred hereunder: “668. Removal or reversion of officers appointed direct or promoted on probation: - The following rules shall govern first appointments and the promotion of police and ministerial officers as detailed in Appendix 41. We have thought it proper to quote the relevant provision as contained in Rules 668 and 825 of the Orissa Police Rules, which is being referred hereunder: “668. Removal or reversion of officers appointed direct or promoted on probation: - The following rules shall govern first appointments and the promotion of police and ministerial officers as detailed in Appendix 41. (a) All officers shall in the first instance be appointed or promoted on probation. Where the period of probation is not otherwise provided for in the rules, it shall be period of two years in the case of executive officers and one year in the case of ministerial officers. The authority empowered to make such appointment or promotion may at any time during such probationary period and without the formalities laid down in Rule 828 remove an executive officer directly appointed or revert such an officer promoted who has not fulfilled the conditions of his appointment or who has shown himself unfit for such appointment or promotion. No appeal shall lie in such cases. (b) Xx xx xx xx 825. Officers empowered to impose punishments:- (a) The Inspector-General may award to any police officer below the rank of Deputy Superintendent any one or more of the punishments in Rule 824. (b) The Deputy Inspector-General may impose on any Police Officer Subordinate to him and below the rank of Deputy Superintendent any one or more of the punishments as specified in Rule 824 except dismissal and removal in the case of Reserve Inspector or an Inspector. (c) The Superintendent may impose on any police officer subordinate to him and below the rank of Reserve Inspector or Inspector any or more of the punishments in Rule 824 except dismissal and removal in the case of sergeants and sub-inspectors, provided that the superintendent shall send to the District Magistrate a report of the result together with the proceedings of – (i) any enquiry that has been initiated by the District Magistrate under Rule 17(a); and (ii) all cases of serious misconduct affecting the outside public, If the Magistrate is dissatisfied with the result of such enquiry or proceedings, he should follow the procedure laid down in Rule 16(a) (3). Xx xx xx xx” It is evident from the provisions as contained in Rule 825(c) that the same empowers the Superintendents to impose punishment on any police officer subordinate to him and below the rank of Reserve Inspector or Inspector any one or more of the punishments in Rule 824 except dismissal and removal in the case of sergeants and sub-inspectors, provided that the superintendent shall send to the District Magistrate a report of the result together with the proceedings of any enquiry that has been initiated by the District Magistrate under Rule 16(a) and all cases of serious misconduct affecting the outside public. In the facts and circumstances of the instant case, the order of removal has been passed against the applicant-opposite party before initiation of the proceeding by the District Magistrate under Rule 16(a). So far as the provisions as contained in Rule 668 is concerned, it empowers the authority to remove or revert officers appointed directly or promoted on probation in a situation if such officer has not fulfilled the conditions of his appointment or who has shown himself unfit for such appointment or promotion. According to our conscious view, which we have got from the appreciation of the facts of the instant case, the situation for imposing punishment of removal is not attracted as has been reflected in the provision as contained in Rule 668 since it is not the case of the authority that the applicant-opposite party has not fulfilled the conditions of his appointment or has shown himself unfit for such appointment or promotion, rather the case of the State of Odisha here is that the applicant-opposite party has failed in behave like a disciplined police officer in course of getting his training in the police training school, but there is no such finding that he is not fit to hold such post. It is settled that in absence of any finding to that effect, removal to be passed under the provisions of Rule 668 cannot be said to be a justified order. 7. It is settled that in absence of any finding to that effect, removal to be passed under the provisions of Rule 668 cannot be said to be a justified order. 7. The contention raised by the learned counsel for the petitioners- State of Odisha is that since the applicant-opposite party was under probation and as such, there is no requirement to follow the principles of natural justice, there is no denial about this proposition, but the requirement of natural justice is not attracted only in a case where the order of termination is simplicitor and not stigmatic / punitive and the moment the order of removal or termination is punitive, the employee cannot be dismissed taking the help of the period of probation and in that situation, the requirement as laid down under Article 311(2) is mandatorily to be followed by the authority. 8. The situation with respect to the provision while passing the order of punishment on the ground of misconduct leading to a stigma is the subject matter before the Hon’ble Apex Court in the case of V.P.Ahuja v. State of Punjab and others, (2000) 3 SCC 239 and their Lordships by referring to the judgment of the Hon’ble Apex Court in the case of Dipti Prakash Banerjee v. Satyendra Nath Biose, National Centre for Basic Sciences, (1999) 3 SCC 60 have held that if the order of punishment is stigmatic on the face of it, a probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice. 9. In the light of the statutory provisions and the settled proposition as referred to hereinabove, the admitted position of the instant case is that the applicant-opposite party was on probation having been sent for training to the Police Training School and after completing the training, he has been given posting before the DCP, Cuttack. While he was discharging duty under the Deputy Commissioner of Police, Cuttack, a report was sent by the Principal of the Police Training School, Nayagarh alleging therein that he was involved in series of misconducts in the training centre and accordingly, recommendation was made to take departmental action against him, in view thereof, the order of removal has been passed by the Deputy Commissioner of Police, Cuttack. The applicant-opposite party has challenged the same before the appellate authority, i.e. before the Commissioner of Police, Bhubaneswar raising the point of violation of principles of natural justice and non-applicability of the provisions of Rule 668(a) and 825(c) of the Orissa Police Rule, but the appellate authority vide order dated 23.4.2014 has rejected the appeal on the pretext that no appeal lies as per Rule 668(a) of the Orissa Police Rule. 10. We after appreciating the argument advanced on behalf of the learned counsel for the State of Odisha and going through the record including the relevant provision of the Orissa Police Manual and the proposition settled by the Hon’ble Apex Court with respect to taking action against a probationer, are of the considered view that the order of removal having been passed under the provisions of Rule 668(a) or 825(c) of the Orissa Police Rule is not at all not applicable in the facts and circumstances of the case as discussed above and as such, the order of removal having been passed by the Deputy Commissioner of Police, Cuttack is without any application of mind. So far as the contention that there is no requirement to follow the principles of natural justice with respect to a probationer and on that ground the principles of natural justice has been denied, according to our conscious view, the decision taken by the authorities in this regard is not sustainable more particularly in the facts and circumstances of this case that specific allegation has been levelled by the Principal, Police Training School sending a report regarding the misconduct of the applicant before the Deputy Commissioner of Police, Cuttack after completion of the training that too when he has been posted under the Deputy Commissioner of Police, Cuttack, but the applicant-opposite party has not been given sufficient opportunity to defend. Since the order of punishment of removal having been passed on the ground of misconduct, which cannot be said to be simplicitor and as such, the argument advanced on behalf of the State of Odisha through the learned Addl.Govt. Advocate that in case of probation, the requirement of principles of natural justice is not to be followed, is not acceptable by us reason being that here in the instant case the order of punishment is punitive basing upon the misconduct alleged against the applicant-opposite party. Advocate that in case of probation, the requirement of principles of natural justice is not to be followed, is not acceptable by us reason being that here in the instant case the order of punishment is punitive basing upon the misconduct alleged against the applicant-opposite party. Accordingly, the order of punishment of removal is not sustainable in the eye of law and to that effect the Tribunal is right in passing the order quashing the order of removal. Hence, we are not inclined to interfere with the order of the Tribunal so far as this part is concerned. There is no dispute with the proposition that in cases where the High Court finds the enquiry to be deficient either procedurally or otherwise, the proper course always is to remand the matter back to the concerned authority to re-do the same afresh. Reference in this regard may be made to the judgment of the Hon’ble Apex Court in the case of Allahabad Bank and others v. Krishna Narayan Tewari, AIR 2017 Supreme Court 330. However, in the given situation, the proposition as laid down by the Hon’ble Supreme Court referred to above, may not be applicable, reason being that because of long time lag or such other supervening circumstances, the writ court considers it unfair, harsh or otherwise unnecessary to direct a fresh enquiry or fresh order by the competent authority. According to our conscious view, the present case is not coming under the parameters of the exception to the settled proposition and hence, the part of the order by which the Tribunal has directed to reinstate the applicant-opposite party seems to be not sustainable and accordingly, the same is not sustainable and in the result, the same is set aside. 11. In the result, the disciplinary authority is directed to initiate fresh departmental proceeding in accordance with law and conclude the same within a period of three months from the date of receipt of a copy of the order. The continuance of the applicant-opposite party in service will dependent upon the out-come of the disciplinary proceeding. 12. With the aforesaid observation and direction, the writ petition is partly allowed.