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2021 DIGILAW 233 (ORI)

Hemanta Kumar Dash v. Union Of India

2021-06-10

K.R.MOHAPATRA, S.MURALIDHAR

body2021
JUDGMENT S. Muralidhar, C. J. - Both the writ petitions, having the same parties and filed by the same Petitioner, arise out of a similar set of facts and are accordingly being disposed of by this common judgment. 2. In W.P.(C) No.14274 of 2021 the Petitioner challenges an order dated 18th January, 2021 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack (CAT) dismissing his O.A. No.371 of 2015. 3. In W.P.(C) No.14278 of 2021 the Petitioner challenges the order dated 28th January, 2021 passed by the CAT dismissing his O.A. No.407 of 2015. 4. As far as Writ Petition (Civil) No.14274 of 2021 is concerned, the background facts are that the Petitioner while working as Senior Post Master (SPM), Banarpal S.O. was served with a charge sheet for minor misconduct. Proceedings were initiated against him under Section 16 of the CCS (CCA) Rules, 1965. The charge sheet alleged that the Petitioner, who is a trained official in various modules of software, while working as officiating SPM from 21st January, 2011 till 18th February, 2011, neither reported to the Divisional Office nor to the System Administrator, Angul Head Office regarding disconnection of the system of Banarpal SO to speed net server of PTC Mysore. Further it was alleged that no eMO was printed nor paid data updated till 14th February, 2011 except on 5th February, 2011 when the System Administrator (SA) visited Banarpal SO. The SA had printed 16 eMOs and booked three speed post articles. From the record, it was revealed that the Petitioner (Shri Dash) had contrary to his plea of not being able to move his right hand, had actually performed the office work manually. His conduct of not working on the computers was found unjustified. It was stated that the Petitioner had not only willfully avoided to perform the assigned duty contravening the provisions of Rule 62 of the Postal Manual Volume III but also failed to maintain due devotion to duty and acted in a manner unbecoming of a government servant as enjoined in Rule 3(1)(ii) and 3(1)(iii) respectively of the CCS (Conduct) Rules, 1964. 5. According to the Petitioner, he was not afforded any opportunity of hearing although he did file a reply to the charge sheet and which reply was considered by the Inquiry Officer Authority (IO). 5. According to the Petitioner, he was not afforded any opportunity of hearing although he did file a reply to the charge sheet and which reply was considered by the Inquiry Officer Authority (IO). The disciplinary enquiry culminated in the Disciplinary Authority (DA) finding him guilty and awarding him the punishment of withholding of one increment of pay for a period of two and half years, without cumulative effect. 6. The order dated 9th March, 2011 of the DA was modified by the Appellate Authority (AA) by an order dated 25th October, 2011 reducing the punishment awarded to the Petitioner to withholding one increment for a period of one year, without cumulative effect. 7. The Revisional Authority (RA) by order dated 11th July, 2013 declined to further interfere and dismissed the revision petition of the Petitioner. 8. By the impugned order dated 18th January 2021, the CAT dismissed the Petitioner's O.A. No.371 of 2015 challenging the above orders of the DA, AA and RA. 9. As far as Writ Petition (Civil) No.14278 of 2021 is concerned, the Petitioner was served with a charge sheet on 3rd July, 2013 alleging that while working as SPM, Hulursinga SO from 7th June, 2012 till 17th April, 2013, the Petitioner failed to take print out of 49 eMOs booked at Nalco Nagar between 18th and 22nd March, 2013 for payment to the beneficiaries at Badakera BO under Hulursinga SO. When the SA visited the said station on 22nd March, 2013 on receiving complaints, he took a print out of 35 eMOs prior to which the Petitioner had taken print out of 14 eMOs. It was alleged that the Petitioner had not only willfully avoided performing the assigned duty thus contravening Rule 62 of the Postal Manual Volume III and but also failed to maintain due devotion to duty. 10. The above charge sheet culminated in an order dated 17th April, 2013 of the DA awarding the punishment of stoppage of increment for an year. The AA rejected the Petitioner's appeal by an order dated 3rd December, 2013. The further challenge to the said order by the Petitioner was negatived by the CAT by the impugned order dated 28th January, 2021 dismissing O.A. No.407 of 2015. 11. This Court has heard the submission of Mr. S. Mohanty, learned counsel appearing for the Petitioner in both the writ petitions. 12. The further challenge to the said order by the Petitioner was negatived by the CAT by the impugned order dated 28th January, 2021 dismissing O.A. No.407 of 2015. 11. This Court has heard the submission of Mr. S. Mohanty, learned counsel appearing for the Petitioner in both the writ petitions. 12. It is contended that in both the proceedings before the IO and the DA, the Petitioner was not afforded an opportunity of personal hearing and therefore, serious prejudice was caused to the Petitioner. It was contended that in both cases, there was violation of the principles of natural justice and, therefore, the disciplinary proceedings and all orders passed therein should be quashed. 13. When pointedly asked by the Court what kind of prejudice was caused to the Petitioner, and what difference it would have made to his defence if the Petitioner had been afforded the opportunity of hearing, and whether he would have put forth a defence which he could not otherwise have done, learned counsel for the Petitioner was unable to give a clear answer pointing out the precise prejudice caused to the Petitioner. 14. At this stage the legal position in regard to the consequence of the denial of an opportunity of hearing in a given case may be noted. In M.P. Industries Ltd. v. Union of India, (1966) AIR SC 671 , the Supreme Court, on the facts of that case held: "It is no doubt a principle of natural justice that a quasi- judicial tribunal cannot make any decision adverse to a party without giving him an effective opportunity of meeting any relevant allegations against him. Indeed, r. 55 of the Rules, quoted supra, recognize the said principle and states that no order shall be passed against any applicant unless he has been given an opportunity to make his representations against the comments, if any, received from the State Government or other authority. The said opportunity need not necessarily be by personal hearing. It can be by written representation. Whether the said opportunity should be by written representation or by personal hearing depends upon the facts of each case and ordinarily it is in the discretion of the tribunal. The facts of the present case disclose that a written representation would effectively meet the requirements of the principles of natural justice." (emphasis supplied) 15. Whether the said opportunity should be by written representation or by personal hearing depends upon the facts of each case and ordinarily it is in the discretion of the tribunal. The facts of the present case disclose that a written representation would effectively meet the requirements of the principles of natural justice." (emphasis supplied) 15. Again in Union of India v. Jesus Sales Corporation, (1996) AIR SC 1509 , the Supreme Court explained: "It need not be pointed out that under different situations and conditions the requirement of the compliance of the principle of natural justice vary. The courts cannot insist that under all circumstances and under different statutory provisions personal hearings have to be afforded to the persons concerned. If this principle of affording personal hearing is extended whenever statutory authorities are vested with the power to exercise discretion in connection with statutory appeals, it shall lead to chaotic conditions. Many statutory appeals and applications are disposed of by the competent authorities who have been vested with powers to dispose of the same. Such authorities which shall be deemed to be quasi-judicial authorities are expected to apply their judicial mind over the grievances made by the appellants or applicants concerned, but it cannot be held that before dismissing such appeals or applications in all events the quasi-judicial authorities must hear the appellants or the applicants, as the case may be. When principles of natural justice require an opportunity to be heard before an adverse order is passed on any appeal or application, it does not in all circumstances mean a personal hearing. The requirement is complied with by affording an opportunity to the person concerned to present his case before such quasi-judicial authority who is expected to apply his judicial mind to the issues involved. Of course, if in his own discretion if he requires the appellant or the applicant to be heard because of special facts and circumstances of the case, then certainly it is always open to such authority to decide the appeal or the application only after affording a personal hearing. But any order passed after taking into consideration the points raised in the appeal or the application shall not be held to be invalid merely on the ground that no personal hearing had been afforded."(emphasis supplied) 16. But any order passed after taking into consideration the points raised in the appeal or the application shall not be held to be invalid merely on the ground that no personal hearing had been afforded."(emphasis supplied) 16. In light of the above legal position, the Court notes that in both the cases, the Petitioner's reply to the charge sheet was considered in detail by the IO. The order of the DA reveals that the representation of the Petitioner was in fact examined in detail. One of the grounds raised before the AA by the Petitioner was that the DA ought to have remanded the matter to the IO for a fresh inquiry under Rule 16 (1) of the CCS (CCA) Rules, 1965. 17. With the basic facts not being in dispute and the Petitioner not having indicated that he has any witness to examine, and further not seeking to examine or cross-examine anyone from the side of the Department, the holding of a hearing would have been an empty formality. The Petitioner himself categorizes the charge as being one for a minor misconduct. The very nature of the charge indicates that in the absence of any seriously disputed facts, the holding of hearing would have delayed the matter and not improved greatly the defense of the Petitioner. Interestingly, in the grounds in this petition, the Petitioner has characterized his misconduct as a "silly mistake" and has sought to contend that "similarly types of mistakes happen very frequently due to the computerization and modernization of post offices by almost all the employees of postal department". This is in one sense an admission of misconduct. 18. As the charge sheet indicates sufficient training was indeed granted to the Petitioner. In any event, having served the organization for a long time, he would not have been a stranger to computer operations. 19. Having carefully examined the orders of the DA and AA in both the matters, the Count finds that the Petitioner did take all possible defences that were available to him but was unable to persuade any of the authorities to accept his defence. 20. The Court also finds that in both cases consistent and concurrent reasoned orders have been passed by the DA, the AA, the RA and the CAT whose orders have been challenged before this Court. 20. The Court also finds that in both cases consistent and concurrent reasoned orders have been passed by the DA, the AA, the RA and the CAT whose orders have been challenged before this Court. The Court is unable to find any illegality committed by any of the said authorities in the Department or the CAT. 21. There is no merit either of the writ petitions and they are dismissed as such. But in the circumstances, there shall be no order as to costs. 22. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No.4798, dated 15th April, 2021.