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2017 DIGILAW 401 (ORI)

Arjun Charan Sahoo v. State of Odisha

2017-04-13

S.N.PRASAD, SANJU PANDA

body2017
JUDGMENT : S.N. Prasad, J. 1. This writ petition is under Articles 226 and 227 of the Constitution of India assailing the order dated 27.11.2013 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack O.A.No.401(C) of 2011 whereby and where under the petitioner has been dismissed from service in exercise of power conferred under Rule 836 of the Orissa Police Rules. 2. Brief facts of the case is that the petitioner while working as Cipoy in the Orissa State Armed Police, 7th Battalion, Bhubaneswar w.e.f. 5.4.1985 awarded nine Black Marks during the service period, hence the disciplinary authority initiated a proceeding against him bearing No.30 of 2000 and in exercise of powers conferred under Rule 836 of the Orissa Police Rules petitioner has been dismissed from service. 3. Learned counsel representing the petitioner at the outset has submitted that he is not arguing on the merit of the issue, rather he has tried to impress upon the Court regarding the provision of Rule 836 of the Orissa Police Rules that in case of award of nine Black Marks the consequence would be reduction in rank or compulsory retirement or removed or dismissal, in view thereof, it has been submitted that when there is other punishments apart from punishment of dismissal, consideration may be made for reversing the punishment of dismissal to that of punishment of compulsory retirement so that the petitioner may get his pension since he has performed regular duty for period of 17 years. He further submits that the main intent of the provision of Rule 836 of the Orissa Police Rules is to get rid of the incumbent when nine black marks have been award, even accepting the entire allegations against him is correct which is unauthorized absence, as such the order of dismissal is harse taking into consideration that he has already put 17 years of service and in case of dismissal from service he will be deprived of getting pensionary benefits. 4. Learned counsel representing the State of Odisha has submitted on merit that there is no error in conducting departmental proceeding and the authorities after taking into consideration of nine black marks imposed punishment upon him and exercising the power under Rule 836 of the Orissa Police Rules, he has been dismissed from service and as such on merit the petitioner has got no case. So far as reversion of punishment from dismissal to that of compulsory retirement, it has been fairly submitted by the learned Additional Government Advocate that it is up to the Court to consider it. 5. We have heard learned counsel for the parties and perused the documents available on record. 6. It is not in dispute that High Court sitting under Article 226 of the Constitution of India cannot pass order regarding quantum of punishment unless there exists sufficient reason and unless shocking to the conscience of the Court of the sovereign and impropriety of the punishments. 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.” We, on consideration of the judgment as quoted above, have considered the facts of this case which is not in dispute, that is, the petitioner while working under the Orissa State Armed Force, 7th Battalion has been inflicted punishment of 9 Black Marks, the authorities have resorted to the provision of Rule 836 of the Orissa Police Rule initiated departmental proceeding against him, the petitioner has been dismissed from service after being participated in the departmental proceeding. Provision of Rule 836 of the Orissa Police Rules which is being quoted herein below: “Effect of nine black marks–Nine black marks shall entail reduction in rank or compulsory retirement or removed or dismissal. Whenever any Member of the police below the rank of Deputy Superintendent of Police, has been awarded nine black marks, proceedings shall be drawn up against him with a view to awarding any of the above punishments.” It is confirmed from the Rule 836 of the Orissa Police Rule as quoted above that in case of 9 black marks, it entails reduction in rank or compulsory retirement, or removed or dismissal. Whenever any member of the police below the rank of Deputy Superintendent of Police has been awarded nine black marks, proceedings shall be drawn up against him with a view to awarding any of the above punishments. 7. We have examined the charge leveled against the petitioner mainly relates to unauthorized absence. There is no reference of any moral turpitude. We have considered the fact that the petitioner has rendered service of 17 years and he does not dispute having 9 black marks which suggests that he has not contested for reinstatement of his service rather he is concerned only with reversal of the order of dismissal to order of compulsory retirement so that he may get pension and survive his remaining life along with his family members who are depending upon him. It is not disputed that the provision of Rule 836 of the Orissa Police Rules meant to get rid of such employee whose conduct is bad and for that the authorities have been conferred with the power to reduce the rank or compulsory retirement or removal or dismissal. In the case in hand, since punishment imposed upon the petitioner is related to unauthorized absence and not related to his integrity and moral turpitude and as such the order of dismissal will be said to be harse considering the fact that there is also other punishment provided in Rule 836 of the Orissa Police Rules regarding compulsory retirement since the petitioner has already rendered 17 years of service and if the order of punishment of compulsory retirement will be awarded in place of the order of dismissal, the purpose of the department would be served, i.e. getting rid of the petitioner but simultaneously since he has performed his duty continuously for a period of 17 years, it is entitles him for the benefit of pension for the period for which he has rendered his service. 8. We, after taking into consideration this factual aspects and applying the ratio of the judgment referred to above, are of the considered view that awarding of punishment of compulsory retirement would be just and proper. 8. We, after taking into consideration this factual aspects and applying the ratio of the judgment referred to above, are of the considered view that awarding of punishment of compulsory retirement would be just and proper. In view thereof, we are inclined to interfere with the order impugned and the same is quashed and the matter be remitted back before the authorities to pass appropriate order in the light of the observations made herein above within period of eight weeks from the date of receipt of this order and take consequential steps. 9. In the result, the writ petition is disposed of.