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2017 DIGILAW 513 (ORI)

Narottam Pati v. North Eastern Supply Company

2017-05-03

B.R.SARANGI

body2017
JUDGMENT : B.R. Sarangi, J. The petitioner was working as a Clerk in the office of the Executive Engineer, Jajpur Road Electrical Division under the erstwhile Orissa State Electricity Board. His services were placed under North Electrical Supply Company of Orissa Limited (hereinafter referred to ‘NESCO’). While the petitioner was working as a Clerk (A) General Cashier, a proceeding was initiated against him by opposite party no.1, on the basis of an interim special audit report wherein it was alleged that during his incumbency as Revenue Cashier at Jajpur Road Electrical division, he had committed some financial and procedural irregularities, which lead to misappropriation of an amount of Rs.8,63,409.65. As the petitioner failed to take all possible measures to ensure and protect the interest of the company in due discharge of his duties and caused a pecuniary loss to the company, on the ground of gross negligence and misconduct in duties, he was called upon to submit his written statement of defence within seven days as to why the aforesaid amount shall not be recovered from him. 2. On receipt of the said charges, the petitioner filed an application to supply certain documents on the basis of which allegations were made, but the same were not supplied to him. Consequentially he submitted his written statement of defence denying the allegations made against him. After filing of show cause/written statement of defence, an additional charge was framed on 11.03.2004 alleging that an amount of Rs. 2,41,165.40 collected towards revenue was misappropriated. Consequentially, he submitted an additional reply on 18.03.2004. 3. Having not satisfied with the written statement of defence submitted by the petitioner on both the charges, an enquiry officer was appointed on 18.03.2004. The petitioner objected to the appointment of Sri D. Mukhapadhaya Deputy Manager (Finance) as Enquiry Officer on the ground that he belonged to Finance Wings and the departmental proceeding was initiated on the basis of the audit report prepared by Deputy General Manager (Finance). In spite of the objection being raised, no action was taken. Pursuant to notice issued by the Inquiry Officer, the petitioner appeared before him. Though he objected the continuance of Inquiry Officer in writing by letter dated 12.05.2004, both Marshalling Officer and Inquiry Officer compelled the petitioner to concede and admit the charges. The same was objected to by the petitioner in his representation dated 24.05.2004. 4. Pursuant to notice issued by the Inquiry Officer, the petitioner appeared before him. Though he objected the continuance of Inquiry Officer in writing by letter dated 12.05.2004, both Marshalling Officer and Inquiry Officer compelled the petitioner to concede and admit the charges. The same was objected to by the petitioner in his representation dated 24.05.2004. 4. Again on 27.04.2004, the petitioner sought for certain documents, but the same were not supplied to him. Consequentially, he approached this Court by filing W.P.(C) No. 8749 of 2004 wherein an interim order was passed on 01.09.2004 that no final order in terms of disciplinary proceeding would be passed without leave of the Court till the following date. But the opposite parties passed the order of dismissal from service by antedating to 28.08.2004 and produced the same before this Court along with counter affidavit. Against the imposition of penalty of dismissal from service dated 28.08.2004, the petitioner preferred an appeal. By the time W.P.(C) No.8749 of 2004 was listed on 13.12.2007, the departmental proceeding was over and the petitioner had already preferred an appeal. Therefore, this Court disposed of the said writ petition on 13.12.2007 directing the appellate authority to dispose of the appeal by passing a reasoned order, if the same be still pending, within a period of two months from the date of communication of that order. By order dated 12.02.2008, the appellate authority dismissed the appeal in a mechanical manner without application of mind to the materials available on record and confirmed the order of punishment imposed by the disciplinary authority in connection with the charges levelled against him, hence this application. 5. Mr. S. Das, learned counsel for the petitioner contended that the entire proceeding was conducted without affording an opportunity of hearing to the petitioner and thereby principles of natural justice has been grossly violated. In addition to the same, though the petitioner objected to the appointment of Inquiry Officer and requested for its change, no action was taken and more particularly, when the petitioner sought for documents, the same were not supplied to him. In addition to the same, though the petitioner objected to the appointment of Inquiry Officer and requested for its change, no action was taken and more particularly, when the petitioner sought for documents, the same were not supplied to him. Being aggrieved by such procedural irregularities, when the petitioner preferred W.P.(C) No. 8749 of 2004 and this Court passed an interim order on 01.09.2004 directing that no final order in terms of the disciplinary proceeding would be passed without leave of this Court till the following date, it was brought to the notice of this Court by way of filing a counter affidavit that the proceeding had already been concluded by imposing a major penalty of dismissal from service, by antedating the same to 28.08.2004 and that against the said order the petitioner had already preferred an appeal. Therefore, the writ petition was disposed of by order dated 13.12.2007 directing the appellate authority to dispose of the appeal within a period of two months by passing a reasoned order. But, the appellate authority, without any application of mind to the order dated 13.12.2007 passed by this Court in W.P.(C) No. 8749 of 2004, mechanically dismissed the appeal on 12.02.2008 without assigning any reason, which warrants interference of this Court in present proceeding. 6. Mr. P. Mohanty, learned Senior Counsel, appearing along with Mr. P.K. Pasayat, learned counsel for the opposite parties, while supporting the impugned order passed by the authorities concerned, argued with vehemence that the petitioner had misappropriated the company money. The action taken against him by initiating disciplinary proceeding was wholly and fully justified and does not require interference by this Court. 7. This Court heard Mr. S. Das, learned counsel for the petitioner and Mr. P.K. Mohanty, learned Senior Counsel along with the Mr. P.K. Pasayat, learned counsel for opposite parties and perused the records. Pleadings having been exchanged between the parties, with the consent of learned counsel for the parties this writ petition is disposed of finally at the stage of admission. 8. On receipt of the memorandum of charges, it appears that the petitioner had sought for supply of certain documents but the same were not provided him to file effective written statement of defence to alleged charges. Again when the Inquiry Officer was appointed, even though the petitioner raised an objection, the same was not considered in proper perspective. 8. On receipt of the memorandum of charges, it appears that the petitioner had sought for supply of certain documents but the same were not provided him to file effective written statement of defence to alleged charges. Again when the Inquiry Officer was appointed, even though the petitioner raised an objection, the same was not considered in proper perspective. The said Inquiry Officer was neither changed nor was any reply given by the disciplinary authority to the objection raised by the petitioner, and ultimately, the Inquiry Officer submitted his report on 08.06.2004 finding the petitioner guilty of the charges. Though the petitioner submitted his reply to such inquiry report, without considering the same, the disciplinary authority passed the order on 28.08.2004 in Annexure-11 imposing major penalty of dismissal from service from the date of passing of the order. As against the said order, the petitioner though preferred an appeal, the appellate authority by order dated 12.02.2008 in Annexure-12 stated that the punishment awarded by the disciplinary authority in connection with the proceeding no. 42 dated 16.02.2004 and Additional Proceeding no. 85 dated 11.03.2004 was justified. On perusal of the order passed by the disciplinary authority, as well as appellate authority, it appears that no reasons have been assigned for imposing such major penalty against the petitioner. 9. In Travancore Rayons Ltd. v. The Union of India, AIR 1971 SC 862 the apex court observed that the necessity to give sufficient reasons which disclose proper appreciation of the problem to be solved, and the mental process by which the conclusion is reached in cases where a non-judicial authority exercises judicial functions is obvious. When judicial power is exercised by an authority normally performing executive or administrative functions, the Supreme Court would require to be satisfied that the decision has been reached after due consideration of the merits of the dispute, uninfluenced by extraneous considerations of policy or expediency. The court insists upon disclosure of reasons in support of the order on two grounds: one that the party aggrieved in a proceeding before the court has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were erroneous; the other, that the obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with the judicial power. 10. 10. In S.N. Mukherjee v. Union of India (1990) 4 SCC 594 the apex Court held that keeping in view the expanding horizon of principles of natural justice, the requirement to record reasons can be regarded as one of the principles of natural justice which governs exercise of power by administrative authorities. Except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority is required to record reasons for its decision. 11. In Menaka Gandhi v. Union of India, AIR 1978 SC 597 the apex Court observed that the reasons, if disclosed, being open to judicial scrutiny for ascertaining their nexus with the order, the refusal to disclose the reasons would equally be open to the scrutiny of the court; or else, the wholesome power of a dispassionate judicial examination of executive orders could with impunity be set naught by an obdurate determination to suppress the reasons. 12. Reasons being a necessary concomitant to passing an order, the appellate authority can thus discharge its duty in a meaningful manner either by furnishing the same expressly or by necessary reference to those given by the original authority. 13. In view of the law discussed above there is no iota of doubt that the authority, while passing an order has to record reasons which should be in compliance of principles of natural justice. The reasons so disclosed being open to judicial scrutiny for ascertaining their nexus with the order non-assigning the reasons would equally open to scrutiny of the Court. 14. In view of the aforesaid facts and circumstances, the order dated 28.08.2004 of the disciplinary authority in Annexure-11 and consequential order dated 22.02.2008 of the appellate authority in Annexure-12, having been passed without assigning any reasons, cannot sustain in the eye of law, and are hereby quashed. The matter is remitted back to the disciplinary authority to pass a reasoned and speaking order by affording opportunity of hearing to the petitioner as expeditiously as possible, preferably within a period of two months from the date of communication of this judgment and order. 15. In the result, the writ petition is allowed. No order as to cost.