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2017 DIGILAW 305 (ORI)

Nilakantha Mishra v. State of Odisha

2017-03-21

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S.N. Prasad, J. This writ petition is under Articles 226 and 227 of the Constitution of India assailing the order dated 5.9.2007 passed by the Orissa Administrative Tribunal, Bhubaneswar in O.A. No. 1333 of 2007 whereby and whereunder the order of punishment has been refused to be interfered with. 2. The brief facts of the case is that the petitioner while working as Assistant Teacher in a Tribal School run by the Harijan and Tribal Welfare Department of the Govt. of Odisha and while he was posted as the Headmaster in Dimiripalli Ashram School in Puri District, he was proceeded departmentally for various allegations of improper maintenance of cash book and other accounts including an allegation of financial irregularities to the tune of Rs.77,809/- The competent authority has appointed Enquiry Officer directing the petitioner to participate in the enquiry. The Enquiry Officer has concluded the enquiry on 25.7.1996 proving the charges levelled against the petitioner. The disciplinary authority after accepting the findings of the Enquiry Officer, has passed the order of punishment of dismissal and recovery of Rs.77,809.99. The petitioner has assailed the same before the appellate authority under the provisions of Rule 29 of the Orissa Civil Service (Classification, Control and Appeal) Rules, 1962. The appellate authority has considered the memorandum of appeal and without interfering with the order of dismissal, has reduced the quantum of amount to be recovered from the petitioner on the basis of proper assessment of the audit report, which comes to Rs.30,985.99. The petitioner being aggrieved with the order passed by the disciplinary authority and the appellate authority, is before this Court challenging the same on the ground that he has not been given proper and adequate opportunity to defend himself. The grounds raised by him is that the allegation is not so serious to impose major punishment of dismissal from service since a sum of Rs.30,985.99 has been found to be misappropriated by him. Apart from merit, it has been argued on behalf of the petitioner that since he has performed long service, the order of dismissal may be reversed to the order of compulsory retirement so that he may be able to get at least the pension. 3. Mr. M.S. Sahoo, learned Addl. Govt. Apart from merit, it has been argued on behalf of the petitioner that since he has performed long service, the order of dismissal may be reversed to the order of compulsory retirement so that he may be able to get at least the pension. 3. Mr. M.S. Sahoo, learned Addl. Govt. Advocate representing the State of Orissa while refuting the ground of the petitioner, has submitted that this Court cannot exercise the power of the appellate court sitting under Article 226 of the Constitution of India, to re-appreciate the evidence in view of the two concurrent findings. So far as the contention that the order of dismissal be reversed to the order of compulsory retirement, it has been submitted that considering the nature of allegation, the petitioner does not deserve any sympathy and even on sympathy the order of dismissal cannot be reversed to the order of compulsory retirement since there is allegation of misappropriation of public money and as such, it is not a case where the quantum of punishment is to be looked into by this Court. 4. We have heard the learned counsel for the parties and perused the documents available on record. 5. The admitted fact in this case is that while the petitioner was working as in Ashram School, he was departmentally proceeded for misconduct in discharge of his official duty including the charge of misappropriation of public money to the tune of Rs.77,809.99, which has been surfaced by way of audit report. The petitioner was directed to appear before the Enquiry Officer to defend himself. He participated in the enquiry. The Enquiry Officer has found the charge proved against him regarding the misconduct in course of discharge of official duty. The disciplinary authority has accepted the findings of the enquiry report and imposed the punishment of dismissal from service with a direction to recover a sum of Rs.73,609.38. The petitioner has assailed the said order before the appellate authority. The appellate authority after hearing him and taking into consideration the calculation part as has been done by the audit report, has reached to the conclusion that the petitioner has misappropriated a sum of Rs.30,985.99 and as such, without interfering with the order of dismissal has reduced the amount, which has been directed to be recovered by the disciplinary authority, i.e. a sum of Rs.73,609.38 to a sum of Rs.30,985.99. 6. 6. The scope of judicial review so far as the findings in a departmental proceeding is concerned is very limited under Article 226 of the Constitution of India as has been held by the Hon’ble Apex Court in catena of decisions, the recent is the judgment rendered in the case of State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, (2011) 4 SCC 584 , wherein in paragraph 7 it has been held as follows : “7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, 10 Page 11 capricious, mala fide or based on extraneous considerations.” In the judgment reported in Union of India and others v. P. Gunasekaran, (2015) 2 SCC 610 , the Hon’ble Apex Court in paragraph 12 has held as follows : “12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the inquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether: (a) the inquiry is held by a competent authority; (b) the inquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person 13.could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; 13.(i) the finding of fact is based on no evidence. 13. Under Articles 226/227 of the Constitution of India, the High Court shall not: (i) re-appreciate the evidence; (ii) interfere with the conclusions in the inquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience.” Recently, in the judgment rendered in the case of Central Industrial Security Force and others v. Abrar Ali, AIR 2017 SC 200 , the Hon’ble Apex Court in paragraph 12 held as follows : “12. Though we are of the view that the High Court ought not to have interfered with the order passed by the Disciplinary Authority, the penalty of dismissal from service is not commensurate with delinquency. The Respondent was found guilty of desertion of the Force for a period of five days and not improving his conduct in spite of imposition of penalties on three occasions earlier. For the above delinquencies, the penalty of dismissal from service is excessive and harsh. The Respondent was found guilty of desertion of the Force for a period of five days and not improving his conduct in spite of imposition of penalties on three occasions earlier. For the above delinquencies, the penalty of dismissal from service is excessive and harsh. In our view, the penalty of compulsory retirement would meet the ends of justice. We are informed by the counsel for the Appellants that the Respondent is entitled for pension as he has completed 10 years of service. In order to avoid any controversy, we direct that the Respondent shall be entitled for notional continuity of service till the date of completion of minimum service required to make him eligible for pension. He will not be entitled for payment of salary and allowances for that period.” 7. So far as the fact of the case is concerned, admittedly the charge of misappropriation of public money has been proved by the Enquiry Officer. The petitioner has not alleged that he has not been allowed to defend himself properly, rather, we, on scrutiny of the entire record, have found that the petitioner has been allowed to participate in the enquiry in which he has participated fully without any grievance. He has been allowed to defend even with respect to the finding of the Enquiry Officer and thereafter, the disciplinary authority has imposed the punishment of dismissal from service with a direction to recover the misappropriated amount to the tune of Rs.73,609.38. It is also evident that the petitioner has availed the statutory appeal by raising all the points. The appellate authority has taken into consideration and also gone into the calculation part regarding the misappropriation of public money in which the appellate authority has found that the total misappropriated amount is not Rs.73,609.38, rather it is Rs.30,985.99 and accordingly, the appellate authority has reduced the amount, which is to be recovered from the petitioner without interfering with the order of dismissal. Hence, there are two concurrent findings of the original authority as well as the appellate authority based upon the evidence. Hence, there are two concurrent findings of the original authority as well as the appellate authority based upon the evidence. On the settled proposition as has been held by the Hon’ble Apex Court quoted hereinabove, the jurisdiction of the High Court sitting under Article 226 of the Constitution of India to reverse the fact finding based upon evidence is very limited and as such, we are not inclined to interfere with the finding and in consequence upon the order of punishment. 8. So far as the contention of the petitioner that the order of dismissal be reversed to the order of compulsory retirement so that the petitioner may get pension, we are of the opinion that merely on sympathy the order of punishment cannot be reversed. So far as the quantum of punishment is concerned, the Hon’ble Apex Court in Union of India and another v. S.S. Ahluwalia, (2007) 7 SCC 257 has held that if the conscience of the Court is shocked as to the severity or inappropriateness of the punishment imposed, it can remand the matter back for fresh consideration to the disciplinary authority concerned. The Hon’ble Apex Court in another judgment rendered in Ishwar Chandra Jayaswal v. Union of India and others, (2014) 2 SCC 748 has been pleased to held at para-5 as follows: “It is now well settled that it is open to the Court, in all circumstances, to consider whether the punishment imposed on the delinquent workman or officer, as the case may be, is commensurate with the Articles of Charge levelled against him. There is a deluge of decisions on this question and we do not propose to travel beyond Union of India v. S.S. Ahluwalia (2007) 7 SCC 257 in which this Court had held that if the conscience of the Court is shocked as to the severity or inappropriateness of the punishment imposed, it can remand the matter back for fresh consideration to the Disciplinary Authority concerned. In that case, the punishment that had been imposed was the deduction of 10% from the pension for a period of one year. The High Court had set aside that order. In that case, the punishment that had been imposed was the deduction of 10% from the pension for a period of one year. The High Court had set aside that order. In those premises, this Court did not think it expedient to remand the matter back to the Disciplinary Authority and instead approved the decision of the High Court.” In Union of India v. P. Gunasekaran (supra), the Hon’ble Apex Court in paragraph 20 has held as follows: “Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is “moral uprightness; honesty”. It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values.” 9. We, on consideration of the settled proposition of law and after taking into consideration the serious nature of allegation that the petitioner being the Headmaster has misappropriated the amount from the Ashram School, which is being run by way of welfare measure to provide education to the down trodden children of the society, and the same pertains to the moral turpitude, are not inclined to reverse the punishment of dismissal to that of compulsory retirement. 10. We, on scrutiny of the order passed by the Tribunal, have found that the Tribunal has taken into consideration the fact that the court of law has limited jurisdiction to exercise its judicial power when there are concurrent findings based upon evidence and thus, we are in agreement with such findings since the same is based upon the settled proposition of law as discussed above. 11. In view thereof, the writ petition fails and the same is dismissed.