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2017 DIGILAW 958 (ORI)

Ashok Kumar jena v. Food Corporation of India

2017-08-30

SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S. N. Prasad, J. 1. The prayer made in this writ petition is to quash the departmental proceeding, the memorandum of charge under Annexure-4, enquiry report under Annexure-8 and the notice for dismissal from service under Annexure-10. 2. The grievance raised by the petitioner in the writ petition is that he was initially working in Food Corporation of India through a Contractor, subsequently absorbed in the regular service of the Food Corporation of India in the year 1992 by taking his name from the Contractor, while working under the Contractor, the Contractor had recorded the nick name of the petitioner as Jayanta Kumar in his register but at the time of absorbing in Food Corporation of India the petitioner had to fill up a bio-date in which he mentioned his nick names as Jayanta Kumar. The petitioner had sworn an affidavit stating that his good name is Ashok Kumar Jena and nick name is Jayanta Kumar Jena. The grievance of the petitioner is that he has been taken under the service of Food Corporation of India in the name of Ashok Kumar Jena but subsequently the Collector conducted confidential enquiry regarding the proper identity of the petitioner and it was found that the petitioner has impersonated his name for getting the service under Food Corporation of India, as such departmental proceeding has been initiated against him by issuing memorandum of charge. The departmental proceeding has been initiated and reached to the conclusion of the enquiry. 3. The petitioner approached this court and this court, vide order dtd.05.11.2007, has passed an interim order not to take any coercive action against him till next date, accordingly he was continuing in service. Learned counsel for the petitioner has submitted that it is not a misconduct since the misconduct has been defined under the standing order under clause-15 as per which since the allegation leveled against the petitioner is not coming under the fold of misconduct, as such the very initiation of departmental proceeding by issuing memorandum of charge is not fit to be sustainable in the eye of law. The additional point has been raised by the learned counsel for the petitioner that during pendency of the writ petition the petitioner since been superannuated after attaining the normal age of superannuation, as such the proceeding will be vitiated in the eye of law since there is no provision in the Standing Order to continue the departmental proceeding against an employee after his superannuation. 4. Learned counsel for opposite party Food Corporation of India has vehemently opposed the submission of learned counsel for the petitioner and submitted that it is evident from the memorandum of charge that the petitioner has impersonated himself to get the service in Food Corporation of India which has come from the report submitted by the Collector of the concerned district, as such this court, at this stage, may not interfere in the matter of departmental proceeding. He submits that this court, sitting under Article 226 of the Constitution of India, may not assume the power of inquiry officer to come to fact finding to be given by the disciplinary authority. He submits that since the second show cause notice has been issued to the petitioner, although he has submitted his reply, but he can further support his statement what he is stating before this court by way of this writ petition and if he will do that, the disciplinary authority, after taking into consideration the same, shall take decision in accordance with law. Learned counsel for opposite party further submits rebutting the argument advanced on behalf of learned counsel for the petitioner regarding continuation of departmental proceeding after superannuation of the petitioner that it is not a case where the departmental proceeding has been initiated after superannuation of the petitioner, rather the petitioner has superannuated during pendency of the writ petition and the final order could not have been passed due to interim order passed by this court in this writ petition. 5. This court after hearing learned counsels for the parties and perusing the documents available on record, has found that the petitioner has challenged the memorandum of charge, the very initiation of disciplinary proceeding and the inquiry report. It is settled that the High Court, Sitting under Article 226 of the Constitution, cannot assume the power of enquiry officer. 5. This court after hearing learned counsels for the parties and perusing the documents available on record, has found that the petitioner has challenged the memorandum of charge, the very initiation of disciplinary proceeding and the inquiry report. It is settled that the High Court, Sitting under Article 226 of the Constitution, cannot assume the power of enquiry officer. If any charges have been framed against any of the employee, it is the disciplinary authority who is supposed to come to the rightful conclusion. The High Court’s jurisdiction under Article 226 of the Constitution is to exercise the power of judicial review in case of any perversity in the finding after conclusion of the departmental proceeding. The petitioner is disputing the fact that the allegations leveled against him is not coming under the fold of definition of misconduct as defined under Clause-15 of the Standing Order, as such it would not be proper for this court to give any finding to that effect, it is to be given by the disciplinary authority in which the disciplinary authority has already proceeded and the enquiry has also been concluded. So far as the argument advanced on behalf of learned counsel for the petitioner that the disciplinary proceeding will be vitiated in the eye of law since during pendency of the writ petition the petitioner has been superannuated from service, but this argument is not acceptable to this court for the reason that the departmental proceeding against the petitioner has been initiated while he was in service, he has participated in the enquiry, enquiry has been concluded and thereafter the matter came to this court wherein interim order has been passed to the effect not to take any coercive action in pursuance to the enquiry report and thereupon the final decision has not been taken by the authorities, hence it is not a case where the departmental proceeding has been initiated after his superannuation. In view thereof the argument advanced by the learned counsel for the petitioner that the departmental proceeding will be said to be vitiated is hereby rejected. 6. In view thereof the argument advanced by the learned counsel for the petitioner that the departmental proceeding will be said to be vitiated is hereby rejected. 6. In that view of the matter, this court refrains itself at this stage to interfere with the disciplinary proceeding, however, the petitioner is at liberty to give additional reply to the show cause, if he so wishes raising all the points which will be taken into consideration by the disciplinary authority in accordance with law while taking final decision in the disciplinary proceeding. With the above observations and directions the writ petition stands disposed of. Interim order dtd.05.11.2007 passed in this case stands vacated.