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2017 DIGILAW 874 (ORI)

Pragyan Mishra v. State of Odisha

2017-08-11

S.N.PRASAD, SANJU PANDA

body2017
JUDGMENT : S.N. Prasad, J. This writ petition is under Articles 226 and 227 of the Constitution of India wherein the order 28.6.2016 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A.No.39(C) of 2011 is under challenge whereby and where under the Tribunal has dismissed the original application without interfering with the order of punishment. 2. Brief facts of the case of the petitioners is that husband of the petitioner no.1/applicant has joined Government Service as Warder in Jail on 25.5.1981, departmental proceeding was initiated bearing Departmental Proceeding No.8 of 1999 against him in the year 1999 in accordance with the provisions of Section V, Chapter V of Orissa Jail Manual Vol.I read with Rule 15 of the Orissa Civil Services(Classification, Control and Appeal) Rules,1962 for his unauthorized absence, dereliction of duty and misconduct. Plea of the applicant is that he has not been given reasonable opportunity to defend himself in the departmental proceeding since he could not have been able to take part in it as he has been suffering from Tuberculosis with Haemoplysis with effect from 15.9.1999 to 27.5.2003, without considering his absence due to compelling circumstances he has been removed from service by the disciplinary authority vide order dated 31.8.2001. He has represented against the order of removal from service before the authority but the same was rejected vide order dated 2.12.2003. The petitioner, being aggrieved with the order of removal from service, has approached the Tribunal and the Tribunal after taking into consideration the fact that the procedure laid down in the rule for inflicting punishment of removal from service, has not been violated, hence declined to interfere with the original application. 3. Learned counsel for the petitioners submits that husband of the petitioner no.1/applicant has not been afforded due opportunity to defend himself, additional charge has been framed while he was under suspension, but the charge having vague in nature and this point has been raised before the Tribunal but the Tribunal without taking into consideration this aspect of the matter has declined to interfere with the order of removal, hence the order of the Tribunal needs interference by this Court. 4. Learned Additional Government advocate representing the State/opposite parties has submitted that the applicant has been proceeded departmentally for his unauthorized absence by serving memo of charge which has properly been served upon him and the applicant has participated in the enquiry. 4. Learned Additional Government advocate representing the State/opposite parties has submitted that the applicant has been proceeded departmentally for his unauthorized absence by serving memo of charge which has properly been served upon him and the applicant has participated in the enquiry. Although he has taken ground for his absence in the departmental proceeding due to his suffering from Tuberculosis but he has found to be moving here and there in Puri town but not participated in the enquiry which shows that he, in one way or the other, wanted to linger the departmental proceeding. The authority has also issued additional charge in the same departmental proceeding alleging therein that while he was under suspension vide order dated 6.10.1999 he was reinstated in service and posted to District Jail, Phulbani vide order dated 18.3.2000 but he did not join there and remained unauthorizedly, said additional charge has been served upon him and also duly been replied and thereafter the Enquiry Officer, after taking note of his response, has found the charge proved and forwarded the enquiry report to the disciplinary authority who accepted the same and passed the order of removal from service. He submits that the scope of High Court sitting under Articles 226 and 227 of the Constitution of India in the matter of punishment is very limited and the High Court cannot assume power of appellate authority for reversing the fact finding given by the Enquiry Officer or the disciplinary authority. He further submits that the record shows that he has been provided all adequate opportunity to defend himself. He submits that on earlier occasion he, on the similar nature of charge, had been awarded punishment of ‘censure’, again he has committed similar nature of allegation, disciplinary proceeding has been initiated which has been culminated into removal from service. The Tribunal, after taking into all these aspects of the matter, has dismissed the original application, hence the same needs no interference by this Court. However, learned counsel for the State has fairly submitted that since the employee has been removed from service, he and his legal heirs will not get pension or pensionary benefits, but the case can be considered in the light of the provision of Rule 46 of the Orissa Civil Service (Pension) Rules. 5. We have heard learned counsel for the parties and perused the documents available on record. 6. 5. We have heard learned counsel for the parties and perused the documents available on record. 6. We, after perusing the materials available on record as well as the order passed by the Tribunal, have found that the applicant on earlier occasion has been proceeded departmentally for the allegation of unauthorized absence which ultimately culminated into punishment of censure. The petitioner has again been proceeded departmentally for unauthorized absence, to that effect, a memorandum of charge has been served upon him but he, on one pretext or the other, has not appeared in the proceeding by taking plea that he has been suffering from Tuberculosis during the relevant time and as such could not be able to appear before the Enquiry officer. It has also been noticed by us that he was put under suspension but subsequently he has been reinstated in service with direction to report to the Phulbani office but he has not joined there and he has been seen moving in Puri town and had taken plea that he has not participated in the enquiry proceeding due to illness. It has also been noticed by us that for not joining at Phulbani office and moving around at Puri, additional charge has been framed in the same departmental proceeding by serving copy upon him. We have seen the memorandum of charge, however the charge contains the allegation with respect to unauthorized absence and violation of the government order. It is evident from the record that the petitioner has accepted the additional charge and defended himself but the Enquiry Officer, after going through the reply of the original memorandum of charge as well as additional memorandum of charge, has found the charge proved against him, forwarded finding before the disciplinary authority and the disciplinary authority thereafter while accepting the finding of the Enquiry Officer has inflicted punishment of removal from service. The petitioner has approached before the higher authority challenging the order of removal but the same has been confirmed. The order of the disciplinary authority has been assailed before the Tribunal mainly on the ground that he has not been provided adequate opportunity to defend himself. The petitioner has approached before the higher authority challenging the order of removal but the same has been confirmed. The order of the disciplinary authority has been assailed before the Tribunal mainly on the ground that he has not been provided adequate opportunity to defend himself. We, after going through the record, finding of the Enquiry officer as well as the order passed by the Tribunal, have found that the applicant has been allowed to defend himself but he intentionally has not participated in the departmental proceeding on the plea of his suffering from Tuberculosis. It is evident that even after order of suspension he has been reinstated into service but he has not joined at Phulbani Office and moving around Puri town and to that effect additional charge has been leveled against him for not joining at Phulbani office. We, on the basis of these factual aspect, have come to conclusion that the applicant has been provided all adequate opportunity to defend himself but in one pretext or the other, he has avoided to participated in the enquiry, thereafter the Enquiry Officer proved the charge against him. 7. It is settled that in the matter of departmental proceeding where there is finding of the Enquiry Officer regarding proving of charge should be interfered by the High Court in case there is perverse in the finding but learned counsel for the petitioners fails to make out a case regarding perversity of the finding. In view thereof, we are of the considered view that the Tribunal has passed the order after taking into consideration the settled proposition of law, factual aspects of the matter and the procedure have not been violated by providing adequate opportunity to defend, hence according to us, the order passed by the Tribunal needs no interference since there is no error apparent on the face of the record. 8. At this juncture, learned counsel for the petitioners submits that the case may be considered by providing compassionate allowance in the light of the provision of Rule 46 of the Orissa Civil Service (Pension)Rules. Learned counsel for the State has fairly submitted that as per the statement made in the additional affidavit and as per the provision of Rule 46 of the OCS (Pension) Rules, the case of the petitioners can be considered for giving compassionate allowance. 9. Learned counsel for the State has fairly submitted that as per the statement made in the additional affidavit and as per the provision of Rule 46 of the OCS (Pension) Rules, the case of the petitioners can be considered for giving compassionate allowance. 9. In view of such assertion having been made by learned Additional Government advocate, the Opposite party/State is directed to consider entitlement of the petitioners in the light of the provisions of Rule 46 of the OCS (Pension) Rules and pass speaking order within reasonable period preferably within six weeks from the date of receipt of copy of this order. With the above observation and direction, the writ petition is disposed of.