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2017 DIGILAW 959 (ORI)

Digambar Das v. Food Corporation of India

2017-08-30

SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S. N. Prasad, J. 1. In both these writ petitions since common prayer has been made, as such both have been directed to be heard together and accordingly heard together and are being disposed of by this common order. The prayer made in these writ petitions 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 petitioners in both the writ petition is that they were 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 1990 by taking their names from the Contractor, while working under the Contractor, the Contractor had recorded the nick name of the petitioners as Pramod Kumar (the petitioner in W.P.(C) No.12579 of 2007) and Manas Kumar (the petitioner in W.P.(C) No.12574 of 2007) in his register but at the time of absorbing in Food Corporation of India the petitioners had to fill up a bio-date in which they mentioned their nick names as Pramod Kumar & Manas Kumar. The petitioners in both the cases had sworn affidavits stating that their good names are Prasanta Kumar Jena and Digambar Das, nick names Pramod Kumar Jena and Manas Kumar Das respectively. The grievance of the petitioner is that they have been taken under the service of Food Corporation of India in the name of Prasanta Kumar Jena and Manas Kumar Das but subsequently the Collector conducted confidential enquiry regarding the proper identity of the petitioners and it was found that both the petitioners have impersonated their names for getting the service under Food Corporation of India, as such departmental proceeding has been initiated against them by issuing memorandum of charge. The departmental proceeding has been initiated and reached to the conclusion of the enquiry. 3. The petitioners have approached this court and this court, while issuing notice vide order dtd.11.10.2007, has passed an interim order not to take any coercive action against them till next date, accordingly they are continuing in service. The departmental proceeding has been initiated and reached to the conclusion of the enquiry. 3. The petitioners have approached this court and this court, while issuing notice vide order dtd.11.10.2007, has passed an interim order not to take any coercive action against them till next date, accordingly they are continuing in service. Learned counsel for the petitioners has submitted that it is not a misconduct since the misconduct has been defined in the Standing Order under clause-15 as per which since the allegation leveled against the petitioners 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. 4. Learned counsel for opposite party Food Corporation of India has vehemently opposed the submission of learned counsel for the petitioners and submitted that it is evident from the memorandum of charge that the petitioners have impersonated themselves 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 a fact finding to be given by the disciplinary authority. He submits that since the second show cause notice have been issued to the petitioners, although they have submitted their reply, but they can further support their statement what they are stating before this court by way of these writ petitions and if they will do that, the disciplinary authority, after taking into consideration the same, shall take decision in accordance with law. 5. This court after hearing learned counsels for the parties and perusing the documents available on record, has found that the petitioners have 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. 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 petitioners are disputing the fact that the allegations leveled against them 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. 6. In that view of the matter, this court refrains itself at this stage to interfere with the disciplinary proceeding, however, the petitioners are at liberty to give additional reply to the show cause, if they 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 both the writ petitions are disposed of. Interim order dtd.11.10.2007 passed in both the cases stands vacated.