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2017 DIGILAW 6 (ORI)

State of Odisha v. Ashok Ku. Purohit

2017-01-02

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S.N. Prasad, J. This writ petition is by the State of Orissa assailing the order passed by Orissa Administrative Tribunal, Bhubaneswar in O.A. No.733 of 2012 dtd.24.03.2015 whereby and where under the Tribunal after quashing the order of punishment has directed the authorities to proceed with the enquiry afresh after supplying the documents in accordance with the provision under Rule 15(3) of the Orissa Civil Service (Classification, Control and Appeal) Rules, 1962 (herein after referred to as the Rules, 1962). 2. The brief fact for the case is that opposite party no.1 was appointed as Special Land Acquisition Officer, Daitari Bansapani Rail Link Project, Keonjhar, appointed as Land Acquisition Officer and Rehabilitation and Resettlement Officer, Kanpur Major Irrigation Project, Kanpur in addition of his own duty vide order dtd.26.10.98. The Special Land Acquisition Officer and Rehabilitation and Resettlement Officers are declared as Appointing Authority in respect of class-III and class-IV staff borne under the Water Resources Department and working in various offices. The opposite party no.1 being the head of office and discharging the duty of Land Acquisition Collector under the administrative control of Water Resources Department, appointed three Amins and one Chairman on 89 days basis as per the instruction of the Collector, Keonjhar for smooth management of the day to day work, subsequently 6 Amins and Chairman were redeployed to the office of the Special Land Acquisition Officer, Mahanadi-Chitroptala Island Irrigation Project, Cuttack as per the order of the Government in the Water Resources Department. The Collector, Keonjhar had also appointed some persons to perform their duties in the aforesaid organization. The Government in their letter dtd.1.10.2001 directed the Special Land Acquisition Officer and Rehabilitation and Resettlement Officer to relieve the staff of Collectorate, accordingly, 13 employees were relieved. The Collector, Keonjhar being aggrieved by such action of the opposite party no.1 made some allegation against him, on the basis of which, a disciplinary proceeding was initiated vide memo or charge dtd.07.11.2002 and he was called upon to submit his written statement of defence. The opposite party no.1 had submitted his written defence denying the charges, being not satisfied with the written statement of defence, Inquiring Officer was appointed. The charges were enquired into and after conclusion of the enquiry, the Inquiring Officer submitted his report holding the applicant guilty of the charges. The opposite party no.1 had submitted his written defence denying the charges, being not satisfied with the written statement of defence, Inquiring Officer was appointed. The charges were enquired into and after conclusion of the enquiry, the Inquiring Officer submitted his report holding the applicant guilty of the charges. The applicant thereafter was called upon to submit his representation on the finding of the Inquiring Officer, accordingly he submitted the same, the disciplinary authority had issued notice to show cause on 21.06.2008 on the proposed punishment without supplying the statement of the disciplinary authority as required under Rule 15(1)(b) of the Rules, 1962, he had submitted his show cause reply against the proposed punishment with a prayer to give him opportunity to be heard in person and allow him to adduce further evidence to defend the charges. The opposite party no.1 had approached the Tribunal vide O.A. No.91 of 2009 assailing the proposed punishment, the Tribunal has directed the authorities to consider the show cause of the applicant and to give him opportunity of being heard in person before passing final order, he was called upon for personal hearing and ultimately the petitioner has made request to supply certain documents which were not supplied to him and as such the opposite party no.1 had challenged the second show cause notice before the Tribunal again by filing O.A. No.271 of 2010 wherein the Tribunal had directed to pass a speaking order within a period of 2 months from the date of receipt of show cause which he will submit, thereafter the disciplinary authority proceeded to conclude the enquiry by imposing punishment vide order no.1294 dtd.23.6.2012 whereby and where under the punishment of withholding 5 annual increments with cumulative effect and debarring him from promotion for a period of 5 years has been inflicted, which has been challenged before the Tribunal, subject matter of the instant writ petition. The Tribunal taking note of the submission of the parties has passed the order quashing the order of punishment directing the disciplinary authority to start the proceeding afresh from the stage of second show cause notice which has been assailed by the State of Orissa in this writ petition mainly on the grounds that; (i) The Tribunal is erred in passing the order by relying upon the provision of Rule 15(3) of the Rules, 1962, although there is no dispute about the statutory provision that the document, basis upon which imputation of charges have been levelled, has to be supplied to the delinquent employee, according to the State of Orissa the same has been supplied but the opposite party no.1, for the first time, has taken the plea of non-supply of certain documents before the Tribunal, the same has been entertained and on that basis the order of punishment has been quashed remitting the matter for fresh proceeding from the stage of second show cause notice which is highly unjustifiable order of the Tribunal for the reason that prior to the Tribunal the opposite party no.1 has never asked any documents from the disciplinary authority and whatever document, basis upon which the imputation of charges has been fixed, had been supplied to the delinquent employee and that is the reason he has never asked for any such documents either from the disciplinary authority or from the inquiring officer; (ii) The non-supply of the documents does not ipso facto vitiate the departmental proceeding, rather the delinquent employ is to demonstrate as to what prejudice has been caused due to non-supply of relevant document if at all it is relevant and not supplied; (iii) The documents which have been referred in the impugned order were already in possession of the delinquent employee which would be evident from the defence reply as has been annexed to this writ petition. (iv) The allegation levelled against the opposite party no.1 is very serious and almost all the allegations have been admitted by him while replying the same but taken a ground that the action having been done by him on the instruction/direction of the Collector and as such whatever action he has done is in bona fide believe and without any ulterior motive. 3. The opposite party no.1 had appeared and represented through his learned counsel, namely, Buddhadev Routray, learned Sr. 3. The opposite party no.1 had appeared and represented through his learned counsel, namely, Buddhadev Routray, learned Sr. Advocate and his associates, while arguing and defending the order passed by the Tribunal, it has been submitted that the disciplinary authority ought to have been followed the statutory provision while inflicting the punishment as prescribed under Rules, 1962. He submits that the provision has been made under Rule 15(3) of the Rules, 1962 which mandates to supply the relevant documents to the delinquent employee in order to put his proper defence before the inquiring officer but that has not been cared to and without supplying the relevant documents the order of punishment has been passed which has been taken into consideration by the Tribunal and the order of punishment has been quashed, the proceeding has been directed to be restarted from the stage of second show cause notice with a direction upon the disciplinary authority to supply the relevant documents. He submits, on the basis of this argument, that the Tribunal has not committed any error in passing the order. 4. We have heard the learned counsels for the parties and perused the documents available on record. We after hearing learned counsels for the parties and after going through the documents available on record, have found the fact which is not in dispute that the opposite party no.1, while working as a Special Land Acquisition Officer, had been departmentally proceeded for commission of irregularities for which imputation of charges has been supplied and the charges in brief are:- (i) That the opposite party no.1 had appointed one Sri Hrudananda Sahu as Chairman on 44 days basis vide order dtd.16.7.2001, the vacancy caused due to voluntary retirement of Sri A. Patra, Chairman against which Sri Sahu has been appointed and by doing so, he had contravened the Government Instruction contained in G.O. No. 29896 dtd.13.7.1998 of Finance Department which envisages that base level vacancy caused due to promotion/retirement/death, resignation etc. shall not be filled up as a matter of routine and the same is to be filled up with the prior permission of High Power Committee as per the Finance Department Memorandum dtd.14.3.2001; (ii) He had appointed three Amins on 89 days/ad hoc basis and subsequently on regular basis violating the recruitment rules; (iii) In L.A. case No.13/1997 for acquisition of land in village Sadanga under Anandapur Barrage Project, a sum of Rs.18,048.00 has been paid by him to the awardees of Sl. No.62 vide sub-voucher No.89/11.8.2000 of Award Statement No. 184/dtd.27.4.2000 and it is found from the C.C. Voucher that all the signatories/LTIs have been identified by one Gopal Mishra, Ward Member of Ward No.1 of Sadanga G.P. But the awardees Sri Nityananda Mishra, Sankarsan Mishra and Krushna Mishra filed a petition in the grievance cell of Collector stating that the payment has been made in their names but they have not received any payment. The memorandum of charge has duly been served upon opposite party no.1 asking him to give reply which has duly been replied by him denying the allegation but the authorities, being not satisfied with the reply has asked the delinquent employee, the opposite party no.1, to appear before the inquiring officer to defend the allegation, accordingly the opposite party no.1 had appeared before the inquiring officer, submitted his defence reply, cross-examined the witnesses at length and the inquiring officer, after taking into consideration the relevant facts and statements of the witnesses, have found all the three charges proved. The inquiring officer has forwarded the report before the disciplinary authority, the disciplinary authority, after accepting the same, has issued the second show cause notice asking the opposite party no.1 to give his reply, he has duly replied denying the allegations and thereafter the order of punishment has been passed withholding 5 annual increments along with a direction not to promote him for a period of 5 years which has been challenged by the opposite party no.1 before the Tribunal being O.A. No.733 of 2012 in which the Tribunal has passed an order without interfering with the departmental proceeding but however, quashing the order of punishment, remitting the matter back before the disciplinary authority to initiate a fresh proceeding from the stage of second show cause notice after taking into consideration the submission of the opposite party no.1 that the relevant documents has not been supplied to him, as per the provision as contained in Rule 15(3) of the Rules, 1962. The State of Orissa, questioning the order of Tribunal, has filed this writ petition on the grounds that: (i) The Tribunal is odd in passing the order by relying upon the provision of Rule 15(3) of the Rules, 1962, although there is no dispute about the statutory provision that the document, basis upon which imputation of charges have been levelled has to be supplied to the delinquent employee, according to the State of Orissa the same has been supplied but the opposite party no.1, for the first time, has taken the plea of non-supply of certain documents before the Tribunal and the same has been entertained and on that basis only the order of punishment has been quashed remitting the matter for fresh proceeding from the stage of second show cause notice which is highly unjustifiable order of the Tribunal for the reason that prior to the Tribunal the opposite party no.1 has never asked any documents from the disciplinary authority and whatever document, basis upon which the imputation of charges has been fixed, had been supplied to the delinquent employee and that is the reason he has never asked for any such documents either from the disciplinary authority or from the inquiring officer; (ii) The non-supply of the documents does not ipso facto vitiate the departmental proceeding, rather the delinquent employ is to demonstrate as to what prejudice has been caused due to non-supply of relevant document if at all it is relevant and not supplied; (iii) The documents which have been referred in the impugned order were already in possession of the delinquent employee which would be evident from the defence reply as has been annexed to this writ petition. (iv) The allegation levelled against the opposite party no.1 is very serious and almost all the allegations have been admitted by him while replying the same but taken a ground that the action having been done by him on the instruction/direction of the Collector and as such whatever action he has done is in bona fide believe and without any ulterior motive. The learned counsel representing the opposite party no.1 has submitted that the Tribunal has not committed error in passing the order since admittedly the relevant documents, basis upon which the memorandum of charge has been formulated, has not been supplied, hence there is violation of Rules 15(3) of the Rules, 1962 and after taking into consideration this aspect of the matter the Tribunal has quashed the order of punishment with a direction upon the disciplinary authority to initiate the proceeding afresh from the stage of second show cause notice, hence there is no infirmity with the same. There is no denial about the settled proposition of law that the delinquent employee has to be given adequate and sufficient opportunity of being heard to defend the charges and to that effect rule has also been formulated under the Rules, 1962 wherein under the provision of Rule 15(3) it has been provided that the Government Servant shall, for the purpose of preparing his defence, be supplied with all the records on which the allegations are based. He shall also be permitted to inspect and take extracts from such other official records as he may specify, provided that such permission may be refused if, for reasons to be recorded in writing in the opinion of the disciplinary authority such records are not relevant for the purpose or it is against the interest of the public to allow him access thereto, meaning thereby the disciplinary authority is duty bound to supply the relevant document on which the allegations are based. We, in the light of the statutory provision and the material brought on record, have scrutinized the entire aspect of the matter vis-à-vis the nature of allegation and found that the charges have been formulated against opposite party no.1 which is with respect to illegal appointment of Amins/Chairman without following the due procedure and contrary to the Finance Department circulars in vogue during the relevant time as also disbursement of amount of compensation not in favour of the legal claimants. The opposite party no.1 when asked to give reply about the allegations leveled against him, had submitted his reply denying the allegation but during that time he has not demanded any such documents from the authorities. The opposite party no.1 when asked to give reply about the allegations leveled against him, had submitted his reply denying the allegation but during that time he has not demanded any such documents from the authorities. We have found from the documents pertaining to imputation of charges that the relevant documents have been referred and it has been supplied which we have gathered from the averments made by the opposite party no.1 in the reply/explanation submitted before the disciplinary authority/inquiring officer time to time wherein there is no whisper that the documents has not been supplied to him, rather the opposite party no.1 has given an elaborate reply denying the allegation while admitting the fault by shifting the liability to other officers which suggests that the opposite party no.1 was well satisfied with the available documents which was supplied to him along with the imputation of charges. The disciplinary authority when not satisfied with the reply submitted by the o.p.1 had asked him to appear before the inquiring officer, the inquiring officer has provided him adequate and sufficient opportunity to defend himself, this we have gathered from the close scrutiny of the enquiry report and from its perusal, we have found that the witnesses have been cross-examined by the delinquent employee – opposite party no.1, elaborately, but no whisper has been made that some document is lacking and in absence of that document it is not possible for him to give proper defence rebutting the allegations leveled against him. The inquiring officer after appreciating the stand taken by the opposite party no.1, deposition of the witnesses and the relevant documents, have found the charges proved against him. The inquiring officer has forwarded the report before the disciplinary authority. The disciplinary authority, after accepting the report submitted by the inquiring officer, has asked the opposite party no.1 to give comment upon the finding given by the inquiring officer which has duly been replied by him and thereafter the disciplinary authority has imposed punishment withholding 5 annual increments along with direction not to promote him for a period of 5 years. The grievance of the opposite party No.1 that the relevant documents have not been supplied and the same has even been quoted in the order passed by the Tribunal, reference of which is being made herein below:- 1. The grievance of the opposite party No.1 that the relevant documents have not been supplied and the same has even been quoted in the order passed by the Tribunal, reference of which is being made herein below:- 1. File No.8/2001, File No.47/2000, File No.16/2000, File No.18/2000, File No. 17/99/2000, File No.2/2001, File No.54/2000 and File No.36/2001. 2. G.O. No.22146/Dt.07.05.2001 of Revenue Department, HG.O. No.29866/ Dt.13.07.1998 of Finance Department and F.D. Memorandum No.10954/Dt.14.3.2001. 3. Appointment Order No.449/Dt.16.7.2001. 4. Re-deployment order No.578/Dt.31.7.2000 and No.8-18/Dt.6.1.2000. 5. Transmission of Service Book vide letter No.575/Dt.25.9.2000. 6. Sub-Voucher No.89/Dt.11.8.2000 and L.A. Case Record No.13/97. 7. Grievance Petition of Sri Nityananda Mishra and others of village Sadanga filled in the Grievance Cell of Collector, Keonjhar.” We have gathered from the order of the Tribunal at its paragraph “11” that the tribunal has given its finding basing upon the reference of documents having been made by the inquiring officer in the enquiry report, i.e. the file No. XXXI V-81/2001 F.D.M. No.2986/FD dtd.13.7.1998, G.O. No.22146/07.05.2001 of Revenue Department communicated vide letter No.21522/WR dtd.01.06.2001 to establish Charge No.1 and further to consider Charge No.2 the inquiring officer has referred to order No.578 dtd.7/2000, Order No.848/6.11.2000 and other document and to prove charge No.3 L.A. Case No.13/93 and vouchers enclosed thereto have been relied upon. So far as these documents are concerned, we in order to examine as to whether these documents were at all available with the delinquent employee or not or whether any prejudice has been caused to him, for that purpose we have taken note of the submission of the show cause notice having been filed by the opposite party no.1 on 2.8.2008 which has been annexed as annexure-8 to the writ petition wherein the reference of Finance Department circulars dtd.13.7.1998 and 14.3.2001 has been made by the opposite party no.1 himself and by taking reference of these documents it has been stated at paragraph 6 of annexure-8 that these documents are meant for observance of economy and austerity measures, meaning thereby these circulars were well within the knowledge of the opposite party no.1 and that is the reason he has never demanded these documents at any occasion either from the inquiring officer or from the disciplinary authority. So far as the documents related to charge no.2, which have been referred in the order of Tribunal at paragraph “11”, i.e. the order No.578 dtd.7/2000, order no.848/6.11.2000 and other documents and the L.A. Case No. 13 of 1993 (1997), the same were also within the knowledge of opposite party no.1, since the same have also been referred in the reply submitted by him as contained in annexure-8 to the writ petition. We have taken note of the fact that the opposite party no.1 was knowing the fact regarding illegality committed by him with respect to the appointment of Amins or the Chairman or with respect to disbursement of amount of compensation not in favour of the genuine claimants and that is the reason he has admitted in his reply by saying that the same has been done either on the direction of the Collector or in bona fide belief. So far as the reference of vouchers made in the order passed by the Tribunal, the same has also been admitted by opposite party no.1 to be paid not in favour of genuine claimants. 5. We, after going through the entire records, particularly, the defence reply submitted stage by stage by opposite party no.1, have found that no document has ever been demanded by the delinquent employee, rather whatever document the opposite party no.1 is saying before the Tribunal, which has not been supplied to him, was well within his knowledge and that is the reason he has given reference of these documents in his reply. The inquiring officer has dealt with each and every aspect of the matter in detail from which we have found that the opposite party No.1 has been provided with adequate and sufficient opportunity to defend himself from the charges and for that purpose a detail cross-examination has also been done by him which suggests that opposite party No.1 has been provided with adequate and sufficient opportunity to defend himself from the charges leveled against him. The opposite party no.1, when inflicted with the major punishment of withholding 5 annual increments and withholding promotion for a period of 5 years, has filed original application before the Tribunal and there, for the first time, the point has been taken that the relevant documents have not been supplied which itself sine-qua-non as per the provision as contained in Rule 15(3) of the Rules, 1962 and taking into consideration this aspect of the matter the Tribunal has quashed the order of punishment, remitted the matter back before the disciplinary authority to initiate proceeding fresh from the stage of second show cause notice. There is no dispute about the fact that the document has to be supplied, but it is also not in dispute that in case the document has not been supplied, it is the duty of the delinquent employee to make requisition before the authority to supply the document and in that situation if the document has not been supplied, or the supply has been rejected without assigning any reason, then only it can be concluded that the document which was relevant for its consideration, since has not been supplied, as such prejudice has been caused to the delinquent employee, but we have found nowhere from the record that any requisition has ever been made by the delinquent employee in this regard. The learned Sr. Counsel repeatedly has given emphasis that the statute provides to supply the relevant document and it is mandatorily to be provided as per the statutory provision. The learned Sr. Counsel repeatedly has given emphasis that the statute provides to supply the relevant document and it is mandatorily to be provided as per the statutory provision. We are not in dispute about the statutory provision, but even assuming that the document has not been supplied in spite of the statutory provision, the thing which is to be seen as to whether the delinquent employee in order to get the relevant document has approached the disciplinary authority or the inquiring officer in order to get adequate opportunity to defend himself and in that situation it can be said that the approach of the delinquent employee is bona fide, but the opposite party no.1 in the instant case has failed to draw attention of the Court, there is no single cheat of paper wherein the document which were not supplied by the disciplinary authority, has been requisitioned to be supplied, rather it is for the first time this ground has been taken before the Tribunal showing the statutory provision as contained in Rule 15(3) of the Rules, 1962 and on that ground the order of punishment has been quashed. We have further gathered from the admission of the opposite party no.1 that he has admitted with respect to charge no.1 which pertains to appointment of Amins/Chairman, i.e. the allegation leveled against him. We have also found regarding charge no.2 that the opposite party no.1 is admitting the said charge. So far as charge no.3 is concerned which pertains to the money having been paid in favour of the in-genuine persons which is also been admitted and the persons who were entitled have been cross-examined by opposite party no.1 before the inquiring officer and have supported the charge leveled against him. In such an admitted position, taking into consideration this aspect of the matter, when the inquiring officer has found the charges proved, can on the ground of non-supply of some official document, the order of punishment will be quashed and that is the question to be considered by this Court. The document which has been shown not to be supplied to the opposite party no.1 is the Finance Department circulars and other different circulars pertaining to the power of appointment and the record of the land acquisition case, particularly case no.13 of 1997. The document which has been shown not to be supplied to the opposite party no.1 is the Finance Department circulars and other different circulars pertaining to the power of appointment and the record of the land acquisition case, particularly case no.13 of 1997. So far as the circular issued by the Finance Department is concerned, it has been issued by the State Government and the same was well within the knowledge of opposite party no.1 and that is the reason the same has been referred in his reply, non-payment of compensation in favour of the genuine persons have also been admitted by the opposite party no.1 as we have gathered from the record, hence merely on the ground of technicality, by taking help of the provision of Rule 15, the order of punishment which has been quashed by the Tribunal cannot be said to be proper in view of the discussion made herein above and taking into consideration the factual and legal position as has been discussed herein above the order of Tribunal is not sustainable in the eye of law. Accordingly the order of Tribunal is quashed. In the result the writ petition is allowed.