Bijay Kishore Das v. Orissa Forest Development Corporation Ltd
2018-07-17
B.RATH
body2018
DigiLaw.ai
JUDGMENT B. Rath, J. - This is a writ petition challenging the imposition of penalty in the way of recovery of 50% of the loss sustained in the process for the reason attributable to the petitioner passed in the Disciplinary proceeding vide Annexure-4 and the appellate order confirming the above vide Annexure-6. 2. Short background involved in the case is that the petitioner while continuing as Field Assistant, was proceeded on charges framed under Annexure-1. Explanation of the petitioner remaining not satisfactory, allegations involving the petitioner were enquired into and on completion of the enquiry, the Enquiry Officer suggested that considering that the petitioner was in the verge of retirement while awarding the punishment of make good the pecuniary loss caused to the OFDC on account of shortage of stock on the delinquent-petitioner, the petitioner was also censured severely with direction for release of withheld pay and treating the period from 13.09.2001 to 03.01.2002 as leave. It was also directed therein to charge-sheet the S.D.M. as he is also responsible for the losses. Upon receipt of the show-cause to the enquiry report, the Disciplinary Authority taking stock of the matter while computing misappropriation to the tune of Rs. 1,48,366/- made the delinquent liable for 50% of the stock and directed for recovery of this amount from the delinquent with further direction for stoppage of one increment without having cumulative effect in future, further warning while confirming the recommendation nos.3 and 4 of the Enquiry Officer as it is appearing at Annexure-4. 3. Petitioner preferred Appeal vide Annexure-5. The appeal was disposed of by the appellate authority vide Annexure-6 on further computation of the loss reducing the amount to be recovered, directed recovery for Rs. 22,977/- only. It may be stated here that in the meantime the petitioner had also approached this Court in W.P.(C) No.1076 of 2008 which was disposed of with permission to the petitioner for preferring an appeal. 4. Assailing the orders at Annexures-4 and 5, Shri G.N. Mishra, learned counsel appearing for the petitioner submitted that for no service of the enquiry report along with the show-cause for proposed punishment, there is no following of the principle of natural justice. Shri Mishra, learned counsel appearing for the petitioner further contended that looking to the discussions in the enquiry report, it appears that the Enquiry Officer has proceeded beyond the charges.
Shri Mishra, learned counsel appearing for the petitioner further contended that looking to the discussions in the enquiry report, it appears that the Enquiry Officer has proceeded beyond the charges. Further, taking this Court to the discussions of the Disciplinary Authority, particularly the observation of the Disciplinary Authority that the Enquiry Officer acted in perfunctory and hastened manner and failed to consider the matter appropriately, the Disciplinary Authority instead of remanding the matter back entered into the merit involving this and decided it finally. Further, since the Enquiry Officer found the S.D.M. also guilty of the offence, for no initiation of Disciplinary proceeding involving the S.D.M., petitioner has been discriminated thereby. In the above premises, Shri G.N. Mishra, learned counsel appearing for the petitioner prayed this Court for interference and setting aside the orders at Annexures-4 and 5. 5. Shri S.K. Pattnaik, learned senior counsel appearing for the Orissa Forest Development Corporation Limited (for short "the Corporation") taking this Court to the discussions in the enquiry as well as in the appellate order while strongly disputing that the punishment has been awarded by the Disciplinary Authority in absence of supply of copy of enquiry report, further contended that there has been full compliance of natural justice in the enquiry proceeding as well as in the Disciplinary proceeding. On proper analysis of the entire materials, the Enquiry Officer concluded the proceeding finding the petitioner at least liable to loss to the extent of 50%. Taking to the specific plea of the delinquent, the petitioner in his statement during course of personal hearing in the Departmental proceeding to the effect "since the stock was of two years old in the meanwhile those had been seriously detrimental due to weathering effect, white ant attack the stocks are dismantled naturally". Shri Pattnaik, learned senior counsel appearing for the Corporation submitted that at one hand the delinquent while denying his liability and shifting the responsibility of transportation to the higher officer, at the same time also was contending that there is natural loss of bamboos for the delayed transportation as indicated hereinabove. Shri Pattnaik, learned senior counsel further taking this Court to the explanation submitted by the petitioner vide Annexure-2 where the delinquent-petitioner took the same stand as reflected hereinabove, contended that there has been divergent response by the petitioner while denying the liability or loss of property of the Corporation.
Shri Pattnaik, learned senior counsel further taking this Court to the explanation submitted by the petitioner vide Annexure-2 where the delinquent-petitioner took the same stand as reflected hereinabove, contended that there has been divergent response by the petitioner while denying the liability or loss of property of the Corporation. It is in the above situation of the case and for the detail consideration by the Enquiry Officer as well as the further consideration of the matter, thereby drastically reducing the award of recovery by the appellate authority or re-computation of the loss aspect, the petitioner though was liable to be punished under major misconduct, but considering his service was at the fag end of the career, the Disciplinary Authority choose to impose a lenient punishment requiring no interference in the writ petition. 6. Considering the rival contentions of the parties, this Court finds, the petitioner faced two charges as follows :- "Charge No. I. While he was working in Haladiaseni BCD for the year 1999-2000 crop, he has produced 4670 IDB. Full bundle and 8530 CDB. Out of said stock he transported 1357 IDB and 5633IDB to depot within the working period. A joint physical verification was made in Haladiaseni BCD conducted by Range Officer, Baramba and S.D.M. Narsinghpur on 15.1.2000 in presence of Sri Dash and Sri R.C. Kar, F/A and concerned Forester. During the physical verification it is found that no bamboo stock were available in the coupe. It is clearly evident that he has misappropriated the OFDC stock with malafied intention for which O.F.D.C. Ltd. has sustained the loss amounting to Rs. 1,48,366/- being the cost of 3313 I.D.B. and 2897 C.D.B. For such loss, Sri Dash, F/A is fully responsible for the same. Charge No. II. Sri Bijoy Kishore Dash, F/A was transferred from Haladiaseni B.C.D. to Chandragiri (A) B.C.D. vide O.O. No.129 dated 22.6.01 and has been directed to handed over the stock to Sri R.c. Kar, F/A with immediate effect. But, he has failed to handedover the stock to his successor Sri Kar, F/A who joined thereon 27/7/01. He has been reminded to handed over the stock of Haladiaseni B.C.D. to Sri Kar, F/A by 31/8/01 vide this office letter No.3887 dated 30.8.01.
But, he has failed to handedover the stock to his successor Sri Kar, F/A who joined thereon 27/7/01. He has been reminded to handed over the stock of Haladiaseni B.C.D. to Sri Kar, F/A by 31/8/01 vide this office letter No.3887 dated 30.8.01. But he did not handover the charges in time and applied leave on 12/9/01 for availing C.L. from 13/9/01 to 15/9/01 (3 days) and left his headquarter unauthorisedly without permission of the S.D.M. Narsinghpur. Due to disobedience of order for non-handing over the charges within the time limit given to Sri Dash, F/A the salary for the period from 28/7/01 to 12/9/01 has been held up. Further, Sri Dash, F/A extended his leave from time to time with effect from 16/9/01 to 30/9/-1, 1/10/01 to 20/10/01, 21/10/01 to 3/1/02 (113 days) and did not resume his duty. Inspite of repeated reminder issued by the S.D.M. Narsinghpur vide S.D.M. Narsinghpur office letter No.1256 dated 17.10.01, Telegram dated 23/1/01 and Regd. Letter No.1449 dated 1/12/01 to resume duty and to handover charges. But he did not turn up to his duty and extended leave from time to time at his sweet will. It is clearly understood that he has avoided to handover the charges, as there is no stock of bamboo were available which is well known to him. For such willful absent and negligence in duty the O.F.D.C. has sustained a great loss amounting to Rs. 1,48,366/-." 7. Petitioner on being asked to file a show-cause, submitted his response at Annxure-2 apart from other response, petitioner had a clear admission that there has been damage of some properties on account of exposure of the material to hit and rain and further for white ant attack and thereby there is natural decaying of the materials. Therefore, it appears that this is not a case that there is no collection of the volume of materials, put under the custody of the petitioner and further could not be transported. Even though the petitioner took the plea of innocence but from the entire statements of the petitioner recorded during the enquiry, this Court nowhere finds, the petitioner being able to satisfy his such contention. Further, looking to the discussions in the enquiry report, this Court also finds, there is elaborate discussions on the loss of materials with document in proof.
Even though the petitioner took the plea of innocence but from the entire statements of the petitioner recorded during the enquiry, this Court nowhere finds, the petitioner being able to satisfy his such contention. Further, looking to the discussions in the enquiry report, this Court also finds, there is elaborate discussions on the loss of materials with document in proof. The Enquiry Officer even though recommended for higher recovery, the appellate authority, however, entering into the details as well as the calculation part while observing that the Enquiry Authority assessed the material in perfunctory manner but however on taking fresh stock of the annual loss, has drastically reduced the amount and the petitioner has been punished simply with award of recovery and censure. Admittedly, the petitioner has been superannuated immediately thereafter. Law has been settled to the extent that High Court in exercise of power under Article 226 of the Constitution of India cannot sit in these matters as appellate authorities. The Hon'ble Supreme Court in a judgment in the case of Gohil Vishvaraj Hanubhai and others v. State of Gujarat and others, reported in (2017) 13 SCC 621 -B has categorically held that while doing judicial review of Administrative action, Courts can only examine the decision making process of administrative authorities, but not the decision itself. Applying the principle indicated hereinabove, for the authorities going to the depth of the matter, since this Court finds, there is no infirmity in the decision making process and for the findings of the Disciplinary Authority as well as the Appellate Authority being based on sound reasoning, this Court has no scope for interfering in such Administrative action. 8. Resultantly, the writ petition stands dismissed. No cost.