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2017 DIGILAW 997 (ORI)

Sunanda Kumar Mohanty v. Chairman, Odisha Gramya

2017-09-07

SUJIT NARAYAN PRASAD

body2017
JUDGMENT S.N. PRASAD, J. - This writ petition is for quashing the Annexure-3 dated 1.5.2001 by which following punishment has been imposed; (i) Stoppage of five increments in his scale of pay with cumulative effect in terms of Regulation 30 (1) (b) of Cuttack Gramya Bank Staff Service Regulations, 1980. (ii) Degradation to the post of Clerk-cum-Cashier in terms of Regulation 30 (1) (c) of Cuttack Gramya Bank Staff Service Regulations, 1980; The order dated 1.3.2002 under Annexure-7 passed by the appellate authority by which the order passed by the disciplinary authority has been reversed and confined to the punishment of degradation to the post of Clerk-cum-Cashier w.e.f. 1.5.2001 with a further direction to draw basic salary equivalent to the basic salary drawn by the present senior most Clerk-cum=-Cashier and will be placed above such senior most Clerk-cum-Cashier in the seniority list of Clerk-cum-Cashier. 2. The petitioner who was working as Field Supervisor in the Kuakhia Branch, proceeded departmentally for the following charges:- Charges Penalty Proposed 1. You have knowingly overdraw Rs. 300/- on 4.12.1985 from your own SB A/c No. 4270 & altered the balance amount as on 13.11.85 from Rs. 4010.50 to Rs. 4310.50 in the a/c Removal from service. 2. On 10.12.85 you wrongly calculated higher interest in SB A/c No. 4328 of Shri Hiralal Naik and allowed withdrawl of Rs. 30/- to him. Removal from service. 3. You removed of vouchers of 25.09.85 and withdrawal slips dt. 6.8.85 and 9.8.85 in SB A/c No. 4297 for Rs. 10,000/- and Rs. 800/-respectively which is detrimental to the interest of Bank and causing monetary loss of Rs. 10,000/- to the Bank. Removal from service. 4. Jotting down the balance of SB A/c No. 4297 from the Balance Register instead of ledger, thereby showing an act of negligence. Stoppage of increment. The petitioner was asked to appear before the Enquiry Officer wherein he has admitted his guilt by saying that due to inadvertence it has been done, the Enquiry Officer has found the charges proved, forwarded the same before the disciplinary authority, who on its acceptance after following due procedure has passed the order of punishment on 1.5.2001 imposing therein two punishments, one stoppage of 5 increments and degradation to the post of Clerk-cum-Cashier in terms of the provision of Cuttack Gramya Bank Staff Service Regulations, 1980. According to the petitioner, he has filed a detail memo of appeal before the Board of Directors, Cuttack Gramya Bank showing the legality and propriety committed by the Enquiry Officer and the disciplinary authority by specifically praying therein to exonerate him from the charges. 3. The appellate authority while disposing of the appeal vide order dated 21.05.2001 has imposed the punishment by quashing the order of withholding of five increments in his scale of pay with cumulative effect and confined to that of degradation to the post of Clerk-cum-Cashier w.e.f. 1.5.2001 with a further punishment to draw a basic salary equivalent to the present Senior most Clerk-cum-Cashier and will be placed above, such senior most in the Clerk-cum-Cashier. 4. According to the petitioner, he has approached the jurisdiction of appellate forum as provided under the Regulation by giving detail reasons for his exoneration but the appellate Board, without assigning any reason, has confirmed the order of punishment of degradation to the post of Clerk-cum-cashier and placed him in on a basic pay equivalent to the basic salary drawn by the present senior most Clerk-cum-Cashier. 5. The submission of the learned counsel for the petitioner that since the appellate authority is discharging quasi judicial jurisdiction, it is incumbent upon him to pass reasoned order by disclosing the reason as to on what ground one of the punishments has been recalled while the other punishment has been continued. He also submits that the punishment is also not proportionate to the offence committed and as such degradation being a major punishment, the appellate authority ought to have taken into consideration the ground raised by him before it and he has differed with the same, at least the brief reason must be there. It has been submitted that in absence of the reason the order cannot be said to be an order in the eye of law, on this ground the petitioner has submitted that the appellate order passed by Appellate Board is not sustainable in the eye of law. 6. It has been submitted that in absence of the reason the order cannot be said to be an order in the eye of law, on this ground the petitioner has submitted that the appellate order passed by Appellate Board is not sustainable in the eye of law. 6. So far as merit of the case is concerned, submission has been made that even finding given by the enquiry officer is not warranting major punishment, since he himself has disclosed that the amount has been withdrawn that too a meager amount, due to inadvertence which immediately thereafter has been deposited in the Bank, as such the bank has not put any pecuniary loss. 7. Learned counsel for the Bank has vehemently opposed the prayer of the learned counsel for the petitioner by submitting that the Appellate Board has passed order after going through the averment made in the memo of appeal, proceeding file and material available on record and as such it cannot be said to be illegal. He submits that the scope of the High Court sitting under Article 226 of the Constitution of India to exercise its power of judicial review in the interference of the order of punishment is very limited and as such this Court may not interfere with the order of punishment. He further submits that since the offence as has been alleged against him, has been admitted, hence there is no requirement to pass a reasoned order by the Appellate Board. Learned counsel for the parties have been heard in detail and perused the documents available on record. 8. After taking into consideration the fact of this case, it is not in dispute that the petitioner was working as Field Supervisor had been departmentally proceeded for the charges of commission of irregularities as quoted herein above. The petitioner has participated in the enquiry, wherein he has taken ground that there is no ulterior motive rather due to inadvertence irregularities has been committed. The petitioner immediately within two days has deposited excess amount in the Bank as such the Bank has not sustained pecuniary loss. The petitioner has participated in the enquiry, wherein he has taken ground that there is no ulterior motive rather due to inadvertence irregularities has been committed. The petitioner immediately within two days has deposited excess amount in the Bank as such the Bank has not sustained pecuniary loss. The enquiry officer has found the charges proved, forwarded the enquiry report before the disciplinary authority who in turn has issued second show cause notice which has been replied by the petitioner, thereafter the disciplinary authority has passed the order of punishment of withholding 5 increments with cumulative effect and degradation to the post of Clerk-cum-Cashier. 9. The petitioner has challenged the order of punishment before the Board of Directors, as per the provision made in the Regulation. Memo of appeal has been annexed as Annexure-6 to the writ petition, the Board of Directors has passed the order on 1.03.2002 whereby and where under the order of punishment of withholding of one annual increment has been recalled, however, the degradation to the post of Clerk-cum-Cashier w.e.f. 1.5.2001 has been approved as has been passed by the disciplinary authority with a further order to draw a basic salary equivalent to the basic salary drawn by the present senior most Clerk-Cum-Cashier and will be placed above such senior most Clerk-cum-Cahier and will be placed above such senior most Clerk-cum-Cashier in the seniority list of Clerk-cum-Cashier. The petitioner has challenged the order passed by the disciplinary authority as well as appellate authority on merit as well as on the ground that the appellate authority has not passed the order by assigning reason. 10. It is not in dispute that the order in absence of a reason will not be said to be an order in the eye of law. It is settled and in case of absence of reason, it will be said to be violation of principle of natural justice, reason being that if an order is being passed against aggrieved party, he is supposed to know the reason that led the authority to come to the conclusion with passing the order. It is also requirement of law to assign the reason so that the higher forum may come across with the reason to assess the mind of the authority that on what reasoning the order has been passed. It is also requirement of law to assign the reason so that the higher forum may come across with the reason to assess the mind of the authority that on what reasoning the order has been passed. In absence of the reasons, no one can appreciate what led the authorities in coming to the conclusion in taking the decision, reference in this regard may be made to the judgment rendered by the Hon’ble Supreme Court in the case of MMRDA Officers Association Kedarnath Rao Ghorpade vrs. Mumbai Metropolitan Regional Development Authority and Another reported in (2005) 2 SCC 235 , wherein the Lordship has been pleased to hold at paragraph-5, which is being reproduced herein below for ready reference; “5. Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at.” Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the “inscrutable face of the sphinx”, it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The “inscrutable face of the sphinx” is ordinarily incongruous with the judicial or quasi-judicial performance. It is equally settled that the appellate authority do not suppose to give detail reasons but at least brief reasoning must be there in the order to know his mind, reference in this regard maybe made to the judgment rendered by the Hon’ble Supreme Court in the case of Divisional Forest Officer, Kothagudem vrs. Madhusudan Rao reported in 2008 (3) SCC 469 at para-19, which is being reproduced herein below for ready reference:- “19. Madhusudan Rao reported in 2008 (3) SCC 469 at para-19, which is being reproduced herein below for ready reference:- “19. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum” 11. In view of the settled proposition of law as stated hereinabove, the order passed by the appellate authority 1.3.2002 is not sustainable in the eye of law, accordingly quashed. In the result, the matter is remitted back before the Appellate Board to take fresh decision on the basis of material available on record by passing a speaking order within a period of six weeks from the date of receipt of copy of this order. Accordingly, with this observation and direction, the writ petition is disposed of. Petition disposed of.