JUDGMENT Dr. D.P. CHOUDHURY, J. - The order of compulsory retirement passed against the petitioner has been assailed in the writ application on the ground that the impugned orders passed vide Annexures-6 and 8 are illegal and invalid. 2. The infiltrated facts leading to the case of the petitioner is that he joined as Junior Clerk on 21.8.1984 and in due course he was promoted to the post of Nazir of the District Court Phulbani on 4.3.1999. While he was continuing as such, on 22.11.2002 and 23.11.2002 Hon’ble Mr. Justice A.S. Naidu (as His Lordship then was), the portfolio Judge of the Judgeship visited Phulbani and during course of His Lordship’s inspection, it was found that the present petitioner has misappropriated cash and prima facie committed several irregularities including other gross misconducts. So His Lordship directed the opposite party no. 2 to take disciplinary action against the petitioner. On 13.12.2002 in contemplation the disciplinary proceeding against him the petitioner was placed under suspension. The disciplinary proceeding was started against the petitioner as a set of charges were framed against him with regard to gross misconduct, negligence, carelessness, dereliction of duty, insubordination, misappropriation of Government money, misuse of Government property and abuse of official position and accordingly the petitioner was asked to submit his show cause. 3. Be it stated that the petitioner is governed as per the Orissa District and Subordinate Courts Ministerial Service (Method of Recruitment and Conditions of Services) Rule, 1969. It is alleged, inter alia, that without serving the note of visit of the Hon’ble portfolio Judge the disciplinary proceeding was started against the petitioner. On 17.3.2003 the petitioner filed written defence denying all the charges and then the Additional District Judge, Boudh was appointed as Enquiring Officer. After closing of enquiry the Enquiring Officer submitted report on 05.8.2004 having found the petitioner guilty of 11 charges out of 12 charges framed against him. On 13.8.2004 the opposite party No. 2 having agreed with the findings of the Enquiring Officer, proposed major penalty and issued notice to the petitioner to show cause within 15 days as to why such penalty will not be imposed on him. At that time the petitioner was supplied with the enquiry report along with findings of the Disciplinary Authority. 4. At that time the petitioner was supplied with the enquiry report along with findings of the Disciplinary Authority. 4. It is stated that although the petitioner was issued with the notice to show cause as to why major punishment as specified in Clauses-(vi) to (ia) of Rule-13 of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 (hereinafter called “the Rules”), would not be inflicted, the petitioner was not given opportunity of representing against the reasonableness or propriety of enquiry, findings and conclusion arrived at by the Enquiring Officer as a part of the mandatory requirement. 5. Be it stated that the petitioner being the delinquent filed show cause on 28.8.2004 stating therein about the impropriety in assessment of evidence by the Enquiring Officer and non-application of Judicial mind by the Disciplinary Authority while proposing to impose major penalty. But the opposite party no. 2 without any sufficient reason imposed the punishment of compulsory retirement from service and a copy of the same order was supplied to the petitioner. 6. Be it stated that the petitioner preferred appeal against such order before the Appeal Committee of this Court under Rule-26 of the Rules on various grounds, but the Appeal Committee disposed of the appeal by affirming the order of the Disciplinary Authority and such conclusion by the Appeal Committee is stated to be wrong, because the opposite party no. 2 has not given his finding on each charge while agreeing with the opinion of the Enquiring Officer. Moreover, it is stated, the statutory requirements of Sub-clause (a) of Clause (i) of Sub-Rule (10) of Rule-15 of the Rules being not taken into consideration by the Appeal Committee, the decision of the Appeal Committee is also vitiated. It is also stated that the decision of the Appeal Committee was also wrong being in complete violation of the judgment of the Hon’ble Apex Court in the case of Union of India v. Md. Ramjan Khan and others. Reported in AIR 1991 SC 471 and other decisions of the Hon’ble Apex Court. 7. It is stated that the disciplinary proceeding was started not only against the petitioner, but also against the Head Clerk and Ex District Judge vide D.P. No. 4/2002 and D.P. No. 2/2003 on the same charges respectively. Ramjan Khan and others. Reported in AIR 1991 SC 471 and other decisions of the Hon’ble Apex Court. 7. It is stated that the disciplinary proceeding was started not only against the petitioner, but also against the Head Clerk and Ex District Judge vide D.P. No. 4/2002 and D.P. No. 2/2003 on the same charges respectively. The Head Clerk and Ex District Judge were exonerated by the Disciplinary Authority, but the petitioner was punished, which amounts to discrimination and violation of Articles 14, 16 and 21 of the Constitution of India. 8. Thus, the petitioner made prayer to declare the order of the Disciplinary Authority passed vide Annexure-6 and order of the Appeal Committee passed vide Annexure-8 as illegal, invalid and to quash the same. 9. Per contra the opposite party no. 2 filed counter affidavit refuting all allegations made by the petitioner. It is the case of the opposite party no. 2 that on 22.11.2002 and 23.11.2002 the Hon’ble portfolio Judge made inspection of the District Court and found the petitioner committed several gross misconducts by misappropriating the Government money, misutilizing of Government property showing utter carelessness and dereliction of official duties and several other irregularities. So basing on the note of inspection the petitioner was proceeded departmentally. Although the petitioner was officiating as Nazir, but he was not promoted to the said post of Nazir. However, after D.P. No.3/2002 initiated against him, Enquiring Officer was appointed and following due procedure of law the enquiry was conducted by the Additional District Judge, Bough after giving sufficient reasonable opportunity of being heard to the petitioner. Since the then District Judge was placed under suspension, the Additional District Judge was entrusted with the administrative and financial power until further order by this Court. After due enquiry the Enquiring Officer submitted the enquiry report finding the petitioner guilty of 11 charges out of 12 charges framed against him. During enquiry the petitioner was given full opportunity to defend himself. 10. Since the then Additional District Judge being in charge of the District Judge and entrusted with the administrative and financial power by this Court, went ahead in considering the report of the Enquiring Officer. After this, the Disciplinary Authority finding no satisfactory reply, proposed to impose major penalty and accordingly show cause notice was served on the petitioner giving reasonable opportunity of being heard. After this, the Disciplinary Authority finding no satisfactory reply, proposed to impose major penalty and accordingly show cause notice was served on the petitioner giving reasonable opportunity of being heard. The opposite party No. 2 hearing the petitioner imposed the major penalty of compulsory retirement from service. 11. Be it stated that the Appeal Committee in accordance with the Rules passed the order upholding the punishment inflicted by the Disciplinary Authority. So, there is no infirmity in imposing punishment upon the petitioner. Hence it is prayed to dismiss the writ application. SUBMISSIONS: 12. Learned counsel for the petitioner submitted that the order of suspension as well as the order of imposing major penalty by the Additional District Judge, who was kept in charge of the office of the District Judge is clear violation of Sub-Rule (1) of Rule -12 of the Rules. The enquiry was also vitiated by not supplying the report basing on which the charges were framed, the list of witnesses and list of documents relied on. He further submitted that the Enquiring Officer did not summon the material witnesses even though they were enlisted by the Marshalling Officer. The opposite party no. 2 erred in law by not issuing notice with the copy of the enquiry report in compliance of Sub-Clause (a) of Clause (i) of Sub-Rule (10) of Rule-15 of the Rules. The opposite party no. 2 has also erred in law by accepting the enquiry report without his own assessment of each charge in compliance to Rule-9 of the Rules. It is further submitted that the punishment inflicted is absolutely disproportionate to the charges framed. 13. Learned counsel for the petitioner further submitted that when there is mandatory requirement of Article-311 of the Constitution for issuing the second show cause notice, the opposite party no. 2 has committed error in law by only issuing a single notice without following Rule-15 (10) of the Rules and Article-311 of the Constitution of India. According to him, since the order of compulsory retirement is passed without application of judicial mind and violation of mandatory provisions of law, the same should be quashed. 14. Learned Additional Government Advocate while supporting the impugned orders, submitted that there were serious charges framed against the petitioner and the Hon’ble portfolio Judge on visit, has found prima facie case against the petitioner. 14. Learned Additional Government Advocate while supporting the impugned orders, submitted that there were serious charges framed against the petitioner and the Hon’ble portfolio Judge on visit, has found prima facie case against the petitioner. He further submitted that in accordance with the provisions of the Rules the enquiry was conducted and the Enquiring Officer after giving sufficient opportunity to the petitioner to defend his case concluded the enquiry. Eleven charges out of twelve were proved against the petitioner and the findings of the Enquiring Officer are based on the evidence on record which requires no interference. 15. Learned Additional Government Advocate further submitted that the Disciplinary Authority has issued notice to show cause proposing punishment along with the report of the enquiry and other material documents calling upon the petitioner to explain and the petitioner had made the representation which amply disclosed about compliance of the mandatory provisions of Rules-15 (10) of the Rules. After hearing the petitioner, order of punishment imposing major penalty of compulsory retirement was passed against him. So, the Disciplinary Authority has followed the proper procedure. He further submitted that when this Court in administrative side has endowed the Additional District Judge all powers of the District Judge to exercise in administrative side, there cannot be violation of any provisions. 16. Learned Additional Government Advocate contended that the order of the Disciplinary Authority has been tested by this Court while sitting in appeal on the administrative side. The Hon’ble Appeal Committee while confirming the order of compulsory retirement after hearing the petitioner, the same order cannot be said to be illegal or incorrect. Since reasonable opportunity has been provided to the petitioner in every stage of the disciplinary proceeding right from beginning till passing of the order by the Appeal Committee, the petitioner has no valid ground to challenge the same. 17. POINTS FOR DISCUSSION: (I) The main point for consideration is whether there is statutory compliance by the Disciplinary Authority while awarding the major punishment of compulsory retirement? (II) Whether the impugned order of punishment is liable to be quashed? 18. POINT NO. (I): It is the admitted fact that the petitioner was an employee being Nazir of the District Court of erstwhile district of Phulbani. (II) Whether the impugned order of punishment is liable to be quashed? 18. POINT NO. (I): It is the admitted fact that the petitioner was an employee being Nazir of the District Court of erstwhile district of Phulbani. It is not in dispute that the Hon’ble portfolio Judge of this Court for the district had made visit on 22.11.2002 and found various financial irregularities and other gross misconduct like use of Court building as his residence, using electricity and other facilities, receiving house rent allowance etc. The petitioner being Nazir could not produce very important papers before the inspecting authority and the Hon’ble portfolio Judge found shortage of cash to the tune of Rs. 58,985/- in the cash in hand. It is the admitted fact that the Hon’ble portfolio Judge directed for immediate drastic action to be taken. It is not in dispute that the enquiry was initiated vide D.P. No. 3/2002 against the present petitioner and the enquiry report was submitted finding 11 charges proved against the petitioner out of 12 charges. It is admitted fact that the opposite party no. 2 being the Disciplinary Authority issued notice on 13.8.2004 to the petitioner proposing penalty and along with notice he issued the copy of the enquiry report and other relevant documents to the petitioner and after hearing the petitioner imposed the major penalty of compulsory retirement. No doubt the Appeal Committee have also confirmed the order of the Disciplinary Authority in the appeal preferred by the petitioner to this Court. 19. The grievance of the petitioner in this case is that he was not given sufficient opportunity of being heard by the Enquiring Officer in not calling upon the material witnesses to be examined in the disciplinary proceeding. 20. On going through the documents, it appears that the following charges were framed against the petitioner:- “OFFICE OF THE DISTRICT JUDGE: KANDHAMAL-BOUDH, PHULBANI CHARGES IN D.P. NO. 3 OF 2002” 1. Name, Rank and Grade of the Officer proceeded against Sri Raj Kishore Panigrahi, Sr. Clerk (Jr. Branch) Ex. Nazir, District Court, Phulbani (Now under Suspension) 2. Rank Class-III 3. Whether permanent or temporary Temporary 4. Scale of pay Rs. 4000/- to Rs. 6000/- 5. Charges Charges must be specific. Each charges should be drawn up separately numbered and should give the date, occasion and nature of the offence committed. A copy should be given to the officer charges. Sl. Rank Class-III 3. Whether permanent or temporary Temporary 4. Scale of pay Rs. 4000/- to Rs. 6000/- 5. Charges Charges must be specific. Each charges should be drawn up separately numbered and should give the date, occasion and nature of the offence committed. A copy should be given to the officer charges. Sl. No Particular of Charges You Sri Rajkishore Panigrahi, Sr. Clerk (Jr. Branch), Ex. Nazir, District Court, Kndhamal-Boudh, Phulabani, now under suspension are charged as follow: Charge No. 1 From the materials on record, it prima facie appears that while functioning as Nazir of the District Court, Phulbani from 4.3.1999 to 13.12.2002, you were in charge of cash, cash-books and cash-registers of the Nizarat Section of the District Court. During the said period you were responsible for proper and up-to-date maintenance of the records and registers maintained in the Nizarat. During your incumbency as the Nazir of the District Court the Hon’ble port-folio Judge, visited the District Court at Phulbani and verified the registers and records of the Nizarat on 22.11.2002 and 23.11.2002. On verification, it was found that you had not placed the cash registers under Demand Nos. 1 and 4 from 5.11.2002 to 22.11.2002 before the Judge-in-Charge, Accounts for his scrutiny and signature. The C.J.M., Phulbani who has functioning as the Judge-in-Charge, disclosed that in spite of his repeated directions, you failed to produce the cash registers before him for his verification and signature. Your aforesaid conduct and omission prima facie amounts to gross mis-conduct, negligence, carelessness and dereliction of duty within the meaning of Rule-3 of Orissa Government Servants Conduct Rule, 1959. Charge No. 2 From the materials on records, it prima facie appears that the Hon’ble Port-folio Judge, made physical verification of cash with reference to General Cash Books in Demand No. 1 and 4 on 22.11.2002. On verification, it ws found that the total cash balance in the General Cash Book under Demand No. 1 was Rs. 26,561.45 (Rupees Twenty Six Thousand Five Houndred Sixty One and Forty-Five Paise) and that under Demand No. 4 was Rs. 51,512. 20 (Rupees Fifty One Thousand Five Hundred Twelve and Twenty Paise). Thus, the total cash balance as per the entries in the cash books was Rs. 78,073.65 (Rupees Seventy Eight Thousand and Seventy-Three and Sixty Five Paise). But on physical verification of the cash-balance, a sum of Rs. 51,512. 20 (Rupees Fifty One Thousand Five Hundred Twelve and Twenty Paise). Thus, the total cash balance as per the entries in the cash books was Rs. 78,073.65 (Rupees Seventy Eight Thousand and Seventy-Three and Sixty Five Paise). But on physical verification of the cash-balance, a sum of Rs. 19,088.00 (Rupees nineteen thousand eighty eight only) was found in the iron chest under your custody. Thus, there was shortage of cash to the tune of Rs. 58,958.65 (Rupees Fifty Eight Thousand Nine Hundered Fifty Eight and Sixty-Five Paise). Thus, there was mis-appropriation of Govt. cash by you. Your aforesaid act prima facie amount to gross dereliction of duty, negligence and mis-conduct within the meaning of Rule 3 of the Orissa Government Servants Conduct Rules, 1959. Charge No. 3 From the materials on record, it prima facie appears that during your incumbency as the Nazir, on 22.11.2002 and 23.11.2002, the Hon’ble Prot-folio Judge asked you to produce the following documents before His Lordships for verification. 1. Registers and files relating to purchase of different articles for the judgeship; 2. Registers and files relating to supply of different articles to the residential offices of different officers; 3. Files and vouchers relating to payment of electricity bills; and 4. Files and vouchers relating to telephone bills. But you disobeyed the order of the Port-folio Judge and other superior authorities and did not produce the above mentioned documents for verification. Your aforesaid act and omission amounts to gross misconduct, insubordination, negligence and dereliction of duty within the meaning of Rules 3 and 5 of the Orissa Government Servants Conduct Rules, 1959. Charge No. 4 It appears from the materials on record (Annexure-A) that during your incumbency as the District Office Nazir, Phulbani you had purchased articles for use in the headquarters station and outlying stations of the Judgeship. But you failed to enter those purchased articles in stock-book. These articles have not been shown to have been supplied to any office nor were available in the stock at the time of visit of the Hon’ble Port-Folio Judge on 22.11.2002. The articles as per the Annexure-A/1 though have been entered in sock register, those are not available in stock nor those articles were handed over to Sri S.K. Mishra, the present Nazir. The articles as per the Annexure-A/1 though have been entered in sock register, those are not available in stock nor those articles were handed over to Sri S.K. Mishra, the present Nazir. Your aforesaid action and omission prima facie amounts to gross misconduct, dereliction of duty, negligence and misappropriation within the meaning of Rule 3 of the Orissa Government Servants Conduct Rule, 1959. Charge No. 5 It prima facie appears from the materials on record that during your incumbency as the Nazir of the District office, during the period from 1.7.2001 to 3.12.2002, you unauthorizedly signed the log-book of the staff-car of the District Court bearing registered No. OR-12-3638 in violation of the Rules for use of Government Vehicle. (Annexure-B) Your aforesaid act prima facie amounts to gross misconduct, dereliction of duty and carelessness within the meaning of Rule 3 the Orissa Govt. Servants Conduct Rules, 1959. Charge No. 6. It prima-facie appears from the materials on record that during your incumbency as the Nazir of the District Court, Phulbani, you unauthorisedly occupied the old S.D.J.M., Court building situated by the side of the District Bar Association, Phulbani and used it as your residence from July, 2001 to January, 2003. Further despite occupying Govt. building for residential accommodation, you received House rent allowance for the aforesaid period. (Annexure-C). Your aforesaid act prima facie amounts to gross dereliction of duty, misuse of Govt. property, misappropriation of Govt. money and negligence within the meaning of Rule 3 of the Orissa Govt. Servants Conduct Rules. 1959. Charge No. 7. It prima facie appears from the materials available on record that you while unauthorisedly occupying the said old S.D.J.M. Court building from July, 2001 till January, 2003 for your residential purpose you paid electricity bills for the said building from the office funds amounting to Rs. 30,836/- (Rupees thirty thousand seven hundred and thirty six only). This amount should have been paid by you from your own pocket. (List of bills are enclosed as Annexure-D). Your aforesaid act amounts to gross dereliction of duty, misappropriation of Government funds and misuse of Govt. property which is gross misconduct within the meaning of Rule 3 of the Orissa Govt. Servants Conduct Rules, 1959. Charge No. 8. This amount should have been paid by you from your own pocket. (List of bills are enclosed as Annexure-D). Your aforesaid act amounts to gross dereliction of duty, misappropriation of Government funds and misuse of Govt. property which is gross misconduct within the meaning of Rule 3 of the Orissa Govt. Servants Conduct Rules, 1959. Charge No. 8. It prima facie appears from the material available on record that during your unauthorized occupation of the aforesaid old S.D.J.M. Court building for residential purpose, you had taken several office articles (as per the list enclosed in Annexure-E) and used them for your private purpose. Your aforesaid act amounts to gross abuse of official position, misuse of Government property, which is gross misconduct within the meaning of Rule 3 of the Orissa Govt. Servants Conduct Rules 1959. Charge No. 9. It prima-facie appears from the materials available on record that during your unauthorized occupation of the aforesaid old S.D.J.M., Court building for residential purpose, you had unauthorisedly got the official Nizarat Tlephone, installed in the said old S.D.J.M, Court building and used it at your residence from 10.12.2001 to 16.1.2003. The telephone bills for the said period amounting to Rs. 3826. 00 (Rupees three thousand eight hundred and twenty six only)were drawn from the official allotment basing on your note. Further another sum of Rs. 4692/- (is pending for payment) relating to the telephone installed in the building used as your residence. You should have paid both the bills from your own pocket as you had used the telephone at your residence. (Annexure-F) Your above act prima-facie amounts to gross mis-use of Govt. property, mis-utilization of Govt. money and abuse of your official position as District Court Nazir, which is gross misconduct within the meaning of Rule-3 of the Orissa Govt. Servants Conduct Rules, 1959. Charge No. 10. It prima facie appears from the material available on record that on 16.1.2002, you, in your capacity as the Nazir, put up a note before the authority for appointment of Prasant Kumar Mallick and Hemanta Kanhar for their appointment as peons, though they were never enrolled as candidate peons. You intentionally gave misleading notes, suppressed this fact from the notice of the authority and failed to point out the relevant rules in your note. You intentionally gave misleading notes, suppressed this fact from the notice of the authority and failed to point out the relevant rules in your note. (Annexure-G) Your above action amounts to carelessness, negligence and dereliction of duty within the meaning of Rule 3 of the Orissa Govt. Servants Rules, 1959 Charge No. 11. It prima facie appears from the materials on record as per Annexure-R to H/4 that on 23.09.02, 24.8.02, 26.8.02 and 27.8.02, you in your capacity as the Dist. Court Nazir, put up a note before the District Judge for appointment of Kumari Nandini Pradhan, Jitendra Behera, Kabiraj Pradhan, Manoj Kumar Mishra, Jharia Kumar Mohapatra, Bipin Konahar, Jiban Ranjan Ray, Promod Kumar Sahu, Kasturi Doi Konhar, Prabhakar Naik and Kalyani Keshari Pattanaik respectively in the Class-IV cadre of the judgeship. Further, you directly put up the above notes before the District Judge by passing the Judge-in-charge Nizarat, you intentionally gave mis-leading note to the District Judge and suppressed the fact that those 11 persons were never enrolled as candidate peons as per Rule 71 provided in G.R. & C.O.(Civil) Vol-I, you also failed to point out the relevant rules in your note. Your above act amount to carelessness, negligence and dereliction in duty within the meaning of Rule 3 of the Orissa Govt. Servants Conduct Rule 1959. Charge No. 12. It also prima-facie appears from the materials available on record that during your incumbency as the District Court Nazir, two process servers namely Santosh Kumar Behera and Anil Kumar Samantray were staying at Bhubaneswar and were not entrusted with process. You know that they had not performed their duty as process-servers, but disbursed their salary to them. You intentionally suppressed this fact and did not bring it to the notice of the Judge-in-Charge, Nizarat and Accounts. Your above acts amounts to negligence, carelessness and dereliction of duty within the meaning of Rule 3 of the Orissa Government Servants Conduct Rule 1959. And you Sri Rajakishore Panigrahi are hereby called upon to put in your written statement of defence to the above charges within a month from the date of receipt of the charges. Take notice that on your failure to put in the written statement of defence by the date fixed, it will be presumed that you have no explanation to offer and the matter will be decided not withstanding your failure. Take notice that on your failure to put in the written statement of defence by the date fixed, it will be presumed that you have no explanation to offer and the matter will be decided not withstanding your failure. Your may also state in writing if you desire to be heard in person. District Judge, Kandhamal-Boudh, Phulbani” 21. On going through the enquiry report, it appears that the Enquiring Officer has discussed each and every charge vis-à-vis the evidence adduced on behalf of the Department and the evidence adduced by the petitioner. It further appears from the enquiry report that the petitioner has participated in the enquiry and after evaluating the evidence of both sides the Enquiring Officer has found 11 charges proved against the petitioner except charge no. 4. So, it cannot be stated that no sufficient and reasonable opportunity was given to the petitioner to place his case, thus, the finding of the Enquiring Officer being based on materials need not be interfered with. 22. In the counter affidavit it is admitted by the opposite party no.2 that after receiving the enquiry report the Disciplinary Authority passed the order on 13.8.2004 in the following manner:- “OFFICE OF THE DISTRICT JUDGE, KANDHAMAL-BOUDH, PHULBANI State-Versus-Raja Kishore Panigrahi, Ex-Nazir, District Court, Phulbani. Delinquent Order dated 13.8.2004. Perused the Enquiry Report submitted by the Addl. District Judge-cum-Enquiring Officer, Boudh. Tweleve charges were framed against the delinquent Sri Raja Kishore Panigrahi. Out of the above charges, all the charges except Charge NO. 4 have been proved against the delinquent. All the above charges are supported by oral and documentary evidence. I do not find any reason to differ from the view taken by the Enquiring Officer. Grave charges like misappropriation, gross negligence, gross misconduct, dereliction in duty, disobedience of order, insubordination etc. Have been proved against the delinquent. The Enquiring Officer has not proposed by punishment to be inflicted. The findings of the Enquiring Officer are supported by some reasoning’s. Hence, I agree with the findings of the E.O. The delinquent be called upon to show-cause within 15 days of receipt of the notice as to why major punishment specified in clauses VI to IX of Rule-13 of the Orissa Civil Service (C.C.A) Rules, 1962 shall not be imposed on him. Copy of the enquiry report and my findings be supplied to him. Put up on 4.9.2004 for show cause and further orders. Copy of the enquiry report and my findings be supplied to him. Put up on 4.9.2004 for show cause and further orders. (Dictated) Sd.-G.C. Tripathy, 18.8.2004 District Judge” 23. On the same day the opposite party no. 2 purportedly sent the second show cause notice in the following manner:- “OFFICE OF THE DISTRICT JUDGE, KANDHAMAL-BOUDH, PHULBANI D.P. NO. 3 of 2002 State-Versus-Sri Raja Kishore Panigrahi, Ex-Nazir, District Court, Phulbani SECOND SHOW CAUSE NOTICE To Sri Raja Kishore Panigrahi, Ex-Nazir, Dist. Court, Phulbani That you are hereby directed to show-cause within 15 days of receipt of the notice as to why major punishment specified in clauses VI of Rule-13 of the Orissa Civil Services (C.C.A.) Rules, 1962 shall not be imposed. A copy of enquiry report and findings dated 13.8.2004 are enclosed herewith for your reference. Sd/Illegible 13.8.2004 District Judge, Kandhamal-Boudh, Phulbani Enclosures: 1. Findings-one sheet 2. Enquiry Report-twelve sheets. (23 pages). Memo NO. 4956 dt. 13.8.2004 Forwarded to the Judge-in-charge of Nizarat, Dist. Court, Phulbani and return the S/R forthwith. Sd/Illegible, Registrar, Civil Courts, Phulbani” 24. No doubt the petitioner submitted representation defending his case vide Annexure-5 with a prayer to reconsider the quantum of punishment. It appears from Annexure-E/2 that on 4.9.2004 the Disciplinary Authority-cum-District Judge considering petitioner’s second show cause and taking all other factors into consideration passed the order of compulsory retirement from the Government service as contemplated in Clause-vii of Rule -13 of the Rules with further punishment treating the period of suspension as such. As it appears that the order of the Disciplinary Authority was challenged before the Appeal Committee of this Court, which also made the following observation while affirming the order of the Disciplinary Authority:- “The appellant was extended due to opportunity of hearing during the enquiry and all charges except charge no. 4 were proved. The ground taken in this appeal is that one of the material witnesses on behalf of the prosecution had not been examined and material documents had not been exhibited. The aforesaid cannot be a ground to treat the entire disciplinary proceeding to be vitiated. That apart, looking into the charges proved against the appellant and the penalty awarded, we are of the view that the penalty is not harsh and shockingly disproportionate to the charges proved for which we are not inclined to interfere with the order passed by the Disciplinary Authority. That apart, looking into the charges proved against the appellant and the penalty awarded, we are of the view that the penalty is not harsh and shockingly disproportionate to the charges proved for which we are not inclined to interfere with the order passed by the Disciplinary Authority. The appeal is accordingly dismissed.” It appears that the petitioner was heard in person by the Disciplinary Authority and also by the Appeal Committee. 25. In presence of the aforesaid materials, it is only contended by learned counsel for the petitioner that the requirement of law with regard to imposition of major penalty has not been followed. 26. Rule-16 of the Rules relates to procedure for imposing minor penalties and Rule-13 prescribes about the nature of punishment. Rue-15 of the Rules states about nature of penalty imposed vide Clauses (vi) to (ix) of Rule-13 of the Rules are major penalty and the procedure to be adopted in the manner as prescribed under Rule-15 of the Rules for imposing such major penalty. Sub-Rule(9) of Rule-15 of the Rules states that the Disciplinary Authority has to give finding on each of the charges, whether agree or not agree. In the instant case, the order of the Disciplinary Authority passed on 13.8.2004 only shows that he has agreed to the findings of the Enquiring Officer as the same findings are supported by some reasoning, but he has not recorded his finding on each charge of Course, the departure of same however does not affect the right of the petitioner. 27. Rule-15 (10) of the Rules states as follows:- “(10) (i) (a) If the inquiring officer is not the disciplinary authority, the disciplinary authority shall furnish to the delinquent Government servant a copy of the report of the inquiring officer and give him a notice by registered post or otherwise calling upon him to submit within a period of fifteen days such representation as he may wish to make against the findings of the Inquiring Authority. (b) On receipt of the representation referred to in sub-clause (a) if the disciplinary authority having regard to the findings on the charges, is of the opinion that any of the penalties specified in clauses (vi) to (ix) of rule 13 should be imposed, he shall furnish to the delinquent Government servant a statement of its findings along with brief reasons for disagreement, if any, with the findings of the inquiring officer and give him a notice by registered post or otherwise stating the penalty proposed to be imposed on him and calling upon him to submit within a specified time such representation as he may wish to make against the proposed penalty: Provided that in every case in which it is necessary to consult the Commission under the provision of the Constitution under the provision of the Constitution of India and the Orissa Public Service Commission (Limitation of Functions) Regulation, 1989, the record of inquiry together with copies of the notices given under sub-clauses (a) and (b) and the representations, if any, received in response thereto within the specified time shall be forwarded by the disciplinary authority to the Commission for its advice. Xx xx xx xx” 28. In terms of the discussion made above, it appears that after the enquiry report was received, the Disciplinary Authority being not the Enquiring Officer has directed the petitioner to show cause within 15 days as to why major punishment specified in Clause (vi) to (ix) of the Rule-13 would not be imposed. On the other hand, the Disciplinary Authority has bypassed the Sub-Rule- (10) (i) (a) of the Rule-15 by not sending the copy of the enquiry report by Registered Post to the petitioner to give him fifteen days time to make representation against the findings of the Enquiring Officer, but jumped to Sub-clause (i) (b) of Sub-Rule-(10) of Rule-15 of the Rules proposing major penalty and issued the second show cause notice. It must be remembered that one cannot jump to issue second show cause notice unless first show cause is issued in the manner as prescribed under Clause (i) (a) of Sub-Rule-10 of Rule-15. It is reiterated that the notice under nomenclature as second show cause notice was issued as indicated above. 29. It must be remembered that one cannot jump to issue second show cause notice unless first show cause is issued in the manner as prescribed under Clause (i) (a) of Sub-Rule-10 of Rule-15. It is reiterated that the notice under nomenclature as second show cause notice was issued as indicated above. 29. The importance of first show cause notice cannot be said to be directory, but mandatory, because the delinquent must be given chance first to challenge and give his comments on the findings of the Enquiring Officer by filing representation. If upon such representation the Disciplinary Authority is not satisfied and agrees with the finding(s) of the Enquiring Officer, then he would propose to impose major penalty or the penalty, as the case may be, and in case of major penalty is likely to be imposed, then the Disciplinary Authority would offier another opportunity to the delinquent to make representation against the proposed major penalty and at that time also again the copy of the enquiry report and the order proposing to impose penalty should be issued to the delinquent. The object of maintaining such formalities is to ensure the compliance of principle of natural justice. Natural justice means a person must be given adequate opportunity of being heard before his right to employment is taken away or affected. This is also object under Article-311 of the Constitution of India. 30. It is reported in the case of Union of India and others (supra) as follows in paragraph-13:- “Several pronouncements of this Court dealing with Art. 311(2) of the Constitution have laid down the test of natural justice in the matter of meeting the charges. This Court on one occasion has stated that two phases of the inquiry contemplated under Art. 311(2) prior to the 42nd amendment were judicial. That perhaps was a little stretching the position. Even if it does not become a judicial proceeding, there can be no dispute that it is quasi-judicial one. There is a charge and a denial followed by an inquiry at which evidence is led and assessment of the materials before conclusion is reached. These faces do make the matter quasi-judicial and attract the principles of natural justice. Even if it does not become a judicial proceeding, there can be no dispute that it is quasi-judicial one. There is a charge and a denial followed by an inquiry at which evidence is led and assessment of the materials before conclusion is reached. These faces do make the matter quasi-judicial and attract the principles of natural justice. As this Court rightly pointed out in the Gujarat Case ( AIR 1969 SC 1294 ), the disciplinary authority is very often influenced by the conclusions of the Inquiry Officer and even by the recommendations relating to the nature of punishment to be inflicted. With the Forty-Second Amendment, the delinquent officer is not associated with the disciplinary inquiry beyond the recording of evidence and the submissions made on the basis of the material to assist the Inquiring Officer to come to his conclusions. In case his conclusions are kept away from the delinquent officer and the Inquiry Officer submits his conclusion with or without recommendation as to punishment, the delinquent is precluded from knowing the contents thereof although such material is used against him by the disciplinary authority. The report is an adverse material is the Inquiry Officer records a finding of guilt and proposes a punishment so far as the delinquent is concerned. In a quasi-judicial matter, if the delinquent is being deprived of knowledge of the material against him though the same is made available to the punishing authority in the matter of reaching his conclusion, rules of natural justice would be affected. Prof Wade has pointed out: The concept of natural justice has existed for many centuries and it has crystallized into two rules: that no man should be judge in his own cause; and that no man should suffer without first being given a fair hearing. They (the Courts) have been developing and extending the principles of natural justice so as to build up a kind of Code of fair administrative procedure to be obeyed by authorities of all kinds. They have done this once again, by assuming that Parliament always intends powers to be exercised fairly. “ 31. With due regard to the aforesaid decision, it must be held that the supply of report of the Enquiry Officer by the Disciplinary Authority before proposing any punishment is necessary for compliance of the principle of natural justice. 32. They have done this once again, by assuming that Parliament always intends powers to be exercised fairly. “ 31. With due regard to the aforesaid decision, it must be held that the supply of report of the Enquiry Officer by the Disciplinary Authority before proposing any punishment is necessary for compliance of the principle of natural justice. 32. In the instant case there is absolute departure from Rule-15 (10)(i)(a) and (10)(i) (b) of the Rules as the petitioner has been issued with the second show cause notice without having been issued with the first show cause notice and as such principle of natural justice has been violated by the Disciplinary Authority while imposing major penalty. Hence, we are of the view that there is no compliance of statutory provisions while imposing major penalty. The Point No. (I) is answered accordingly. 33. POINT NO. (II): No doubt the Enquiring Officer has found grave charges proved against the petitioner, but subsequently the Disciplinary Authority departed from the Rules while awarding punishment of compulsory retirement. 34. As such, due to non-compliance of the mandatory provision of Rule-15 (10)(i)(a) and consequently Rule-15 (10)(i)(b) of the Rules, the order of punishment passed by the Disciplinary Authority on 13.8.2004 and 4.9.2004 cannot be sustained in law and is liable to be quashed. Similarly, the Appeal Committee although confirmed the order of the Disciplinary Authority, it failed to consider the violation of the statutory provisions. Consequently the order of the Appeal Committee also cannot be sustained. Point No. (II) is answered accordingly. CONCLUSION: 35. In terms of the above discussion, there is violation of the principle of natural justice by not following Sub-Rule 10 (i)(a)(b) of Rule-15 of the Rules by the Disciplinary Authority and his order passed under Annexure-6 is liable to be quashed as per the observation indicated hereinabove. Similarly, the order of the Appeal Committee for reasons as discussed is also liable to be quashed. Hence both the orders of the Disciplinary Authority vide Annexcure-6 and the order of the Appeal Committee vide Annexure-8 imposing the penalty are hereby quashed. 36. In the result, Departmental Proceeding No.3 of 2002 is remitted back to the opposite party no. Similarly, the order of the Appeal Committee for reasons as discussed is also liable to be quashed. Hence both the orders of the Disciplinary Authority vide Annexcure-6 and the order of the Appeal Committee vide Annexure-8 imposing the penalty are hereby quashed. 36. In the result, Departmental Proceeding No.3 of 2002 is remitted back to the opposite party no. 2 (Disciplinary Authority), who shall follow Rule-15 (10) of the rules from the stage of submission of the enquiry report of the Enquiring Officer and pass fresh order in accordance with law within a period of two months from the date of receipt the order. The Writ Application is accordingly disposed of. Requisites for communication of the order be filed within a week. Application disposed of.