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2018 DIGILAW 620 (ORI)

Panchanan Hembram v. State of Orissa

2018-06-27

K.R.MOHAPATRA, S.PANDA

body2018
JUDGMENT S. PANDA, J. - Petitioner in this writ petition assails the order dated 13.02.2014 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 1506 (C) of 2004 wherein the Tribunal rejected the prayer of the applicant without interfering with the order of dismissal. 2. Mr. Mishra, learned counsel for the petitioner submits that as per Paragraph-10 of Appendix-49 of the Police Manual the disciplinary authority is required to consider the records of the proceedings and record its findings on each charge which has not been done in the present case. The applicant was directed to perform duty in the jungle to restrain the dacoits and the dacoits attacked him for which his companion constable forced the applicant to open fire. The documents basing on which the charges were framed and more particularly the report of the IIC, Karanjia P.S. was not provided to the applicant even though he had requested for the same. The report of preliminary enquiry made by the I.I.C. Karanjia P.S. should have been provided as per the Appendix-49 wherein proceeding for departmental punishment under Rule, 828 of the Police Manual is stipulated and the delinquent should have been allowed to cross-examine the person who has conducted such enquiry at the very inception of the proceeding. He has also submitted that petitioner was not refused to cross-examine the I.I.C., Karanjia P.S. however he was kept outside the room where so called enquiry was conducted. He merely put his signature on the papers wherever the Enquiring Officer directed, on simple faith. Those contention of the applicant has not been considered by the Tribunal while passing the impugned order. It is also submitted that he had declined to cross-examine one witness and not all. The Disciplinary Authority should have given finding to each charge while accepting the enquiry report and issuing show cause notice why punishment proposed should not be awarded to him, which has not been complied with in the present case. He further submits that without supplying the documents as well as without giving opportunity of hearing to the applicant, the Disciplinary Authority passed the order of dismissal which was also confirmed by the Appellate Authority. The Tribunal without considering the aforesaid facts on its proper perspective passed the impugned order. He further submits that without supplying the documents as well as without giving opportunity of hearing to the applicant, the Disciplinary Authority passed the order of dismissal which was also confirmed by the Appellate Authority. The Tribunal without considering the aforesaid facts on its proper perspective passed the impugned order. He further submits that the order of dismissal passed by the Disciplinary Authority dismissing him from service being a major penalty need to be interfered with while setting aside the impugned order passed by the Tribunal. In support of his contention he has cited the decisions reported in ILR 1975 Cuttack 1298, Mahadeb Dash Vrs. Life Insrance Corporation of India, 70(1990) CLT 116, Prafulla Chandra Behera Vrs. Chairman, Board of Directors and Managing Director of Dena Bank & others, AIR 1989 SC 149 , Scooter India Limited Lucknow vrs. Labour Court Lucknow and others. 3. The learned Addl. Government Advocate submits that the applicant was relieved from Balasore district on 8.8.1993 and joined in Mayrbhanj district on 14.8.1993. While working in the district of Mayurbhanj the applicant on 7.9.2000 around 4.30 PM opened fire from his Service 303 Rifle issued to him, under the influence of alcohol, in order to terrorise the other constables, who were on duty with him. Accordingly a disciplinary proceeding was initiated against him. On receipt of the memorandum of charge the applicant submitted his explanation. The applicant was given full opportunity to defend himself in the departmental proceeding. All the documents as per the memo of evidence including the report submitted by the IIC, Karanjia P.S. were supplied to him on 17.9.2000 along with the charge memo. Neither the applicant produced any defence evidence nor did he file any written defence till 30.7.2001. The Enquiring Officer submitted his enquiry report on 30.7.2001. The disciplinary authority found the report of the Enquiring Officer to be just and proper asked the applicant to submit his reply suggesting the punishment of dismissal. The reply given by the applicant was found to be unsatisfactory and therefore the order of dismissal was passed which was also confirmed by the appellate authority. He further submits that he police department is supposed to be a disciplined department and a police constable is expected to act with utmost restraint while using the service rifle issued to him. The reply given by the applicant was found to be unsatisfactory and therefore the order of dismissal was passed which was also confirmed by the appellate authority. He further submits that he police department is supposed to be a disciplined department and a police constable is expected to act with utmost restraint while using the service rifle issued to him. The applicant under the influence of liquor, opened fire to terrorise his fellow constables who were on duty along with him. The learned Addl. Government however produced all the relevant documents and submits that the delinquent has put is signature and he being the constable the plea taken by him that he has put his signature wherever the Enquiring Officer directed to put, on simple faith was not accepted by the Tribunal rightly. The Tribunal considering the aforesaid facts on its proper perspective rightly passed the impugned order. 4. The brief fact of the case is that the applicant was appointed as a Police Constable in the district of Balasore on 26.11.1986. After serving for several years under S.P. Balasore, he was deputed to work in the district of Mayurbhanj under Superintendent of Police, Mayurbhanj-opposite party No. 3. While continuing as such a disciplinary proceeding was initiated against him and memorandum of charge was served on him. On receipt of the memorandum of charge the applicant made an application dated 19.9.2000 to opposite party No. 3 with a prayer to supply the relevant documents including the report of the IIC, Karanjia dated 08.09.2000 basing on which the proceeding was drawn. However petitioner contended that none of the documents was supplied to him. As such the applicant submitted his written statement of defence on 24.09.2000 denying all the allegations against him. Thereafter the enquiry was conducted without affording any opportunity to the applicant to cross-examine the witnesses examined on behalf of the department. The Enquiring Officer submitted his report which was accepted by opposite party No. 3. Thereafter the applicant was served with a second show cause notice dated 19.9.2001 suggesting the punishment of dismissal from service. The applicant on 19.09.2001 submitted his reply to such show cause notice. The opposite party No. 3 considering the Enquiring Officer report passed the order of dismissal from service by order dated 07.10.2001. 5. Thereafter the applicant was served with a second show cause notice dated 19.9.2001 suggesting the punishment of dismissal from service. The applicant on 19.09.2001 submitted his reply to such show cause notice. The opposite party No. 3 considering the Enquiring Officer report passed the order of dismissal from service by order dated 07.10.2001. 5. Challenging the dismissal order passed by the Disciplinary Authority the applicant approached the appellate authority i.e. opposite party No. 2 by filing appeal petition dated 30.01.2002. The appellate authority considering the Enquiring Officer report as well as the order passed by the Disciplinary Authority rejected the appeal by order dated 05.04.2003 confirming the order of the Disciplinary Authority. Finding no other way the applicant approached the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 1506(C) of 2004 with a prayer to quash the order of punishment dated 07.10.2001 passed by the Disciplinary Authority dismissing him from service as well as the order dated 5.4.2003 passed by the Appellate Authority confirming the order of the Disciplinary Authority. 6. The Tribunal taking into consideration the aforesaid facts passed the impugned order with an observation that the police department is supposed to be a disciplinary department and a police constable is expected to act with utmost restraint while using the service rifle issued to him. The applicant under the influence of liquor, opened fire to terrorise his fellow constables who were on duty along with him. With such finding the Tribunal was not inclined to interfere with the punishment of dismissal awarded on the applicant. 7. The decision referred by the learned counsel for the petitioner (supra) wherein the propositions settled by the Court are correct however those propositions are not applicable to the present case at hand. 8. The Apex Court in the Case of Managing Director, ECIL, Hyderabad etc. Vrs. B.Krunakar etc. reported in AIR 1994 S.C. 1074 held that:- “When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an “unnatural expansion of natural justice” which in itself is antithetical to justice. Hence, in all cases where the Inquiry Officer’s report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished. The Courts should avoid resorting to short-cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisionsl authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisionsl authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position of law.” 9. The learned Addl. Government Advocate produced the entire records of the Departmental Proceeding and it reveals that the petitioner has participated in the proceeding and put his signature in each page of the record of departmental proceeding. At no point of time he has raised any objection regarding non-supply of any document or copy of the enquiry report etc. He has not shown any reason that non-supply material document in Departmental Proceeding caused prejudice to him before the Tribunal. 10. At no point of time he has raised any objection regarding non-supply of any document or copy of the enquiry report etc. He has not shown any reason that non-supply material document in Departmental Proceeding caused prejudice to him before the Tribunal. 10. In view of the above settled principle of law since no prejudice is caused to him, we are not inclined to interfere with the matter. The Tribunal has taken into consideration all the above aspects and passed a reasoned order. There is no error apparent on the face of record to interfere with the same in exercising the jurisdiction under Article 227 of the Constitution of India. Accordingly the writ petition is dismissed. The record so produced by the learned Addl. Government Advocate be returned back forthwith. K.R. Mohapatra, J. I agree. Petition dismissed.