Allowed

Radha Mohan Kar v. B.D.A. and Anr.

Orissa HC16 Dec 2016WP(C)/7529/2010

Case brief

AI extract

What is this about?

The High Court of Orissa allowed the petitioner's appeal against his dismissal from service. The Court quashed the dismissal order and the confirming appellate order, holding that issuing a second show-cause notice after six years without recording reasons for disagreeing with the inquiry officer's findings violated natural justice and amounted to a second inquiry.

What did the court decide?

The order of dismissal and the appellate order confirming the dismissal are quashed. Petitioner is entitled to notional pay, allowances, and continuity of service.

Radha Mohan Kar Vs B.D.A. and Anr. — Pension and Retirement Benefits | Orissa HC (2016)

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HIGH COURT OF ORISSA : CUTTACK

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W.P.(C) NO. 7529 OF 2010

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In the matter of an application under Articles 226 and 227 of the Constitution of India.

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AFR

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----------Radhamohan Kar ....… Petitioner -VersusBhubaneswr Development Authority and another ....... Opp. Parties

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For petitioner : M/s. Janmejaya Katikia, A. Mohanty, D. Rout, P. Mohanty, S. Swain,Advocates For opp. parties : Mr. P.K.Mohanty, Senior Advocate, along with M/s. P.K. Pasayat, D.N.Mohapatra, J.Mohanty, P.K.Nayak and S.N. Dash, Advocates. ---------------

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PRESENT:

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THE HONOURABLE DR. JUSTICE B.R. SARANGI

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-----------------------------------------------------------------------------Date of hearing : 09.12.2016 :: Date of Judgment : 16.12.2016 ------------------------------------------------------------------------------------- DR. B.R. SARANGI, J The petitioner, who was working as Junior Assistant,

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under the Bhubaneswar Development Authority (hereinafter referred to as ‘BDA’), has filed this application challenging the order of his dismissal from service dated 05.01.2009 passed by

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the Vice-Chairman and consequential rejection of the appeal by order dated 03.03.2010 passed by the appellate authority by confirming the order of dismissal.

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The factual matrix of the case is that the petitioner was initially appointed as a peon under the BDA vide order dated 30.06.1989. Pursuant to such appointment, he joined and was posted in the office of the OSD and receiving his usual pay and allowance admissible to the post. While so continuing, due to creation of the post of Junior Assistant in the 57^th Authority Meeting of the BDA held on 24.061996, he was promoted to the said post on 30.10.1996 with the condition that the promotion was provisional subject to his acquiring minimum qualification prescribed for the post of Junior Assistant within three years from the date of such promotion. Accordingly, the petitioner joined as Junior Assistant on 30.10.1996 and submitted his joining report to the Secretary, B.D.A., which was duly accepted by office order dated 22.11.1996.

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The promotion being a conditional one, the minimum qualification prescribed for the Junior Assistant being +2, or equivalent, he availed earned leave to appear in the said examination conducted by the Board of Intermediate Education, Hyderabad. After passing the said examination, the petitioner submitted +2 pass certificate to the BDA, which was not

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accepted due to discrepancy in the date reflected in the said certificate. As the said certificate, which was issued by the Board of Intermediate Education, Hyderabad, was considered to be fake and forged one, the petitioner was issued with a show cause notice on 21.09.1998 on the charge of misconduct and submission of forged certificates. The petitioner submitted his reply to the show cause on 16.10.1998 requesting the BDA to return the original certificate issued by Board of Intermediate Education, Hyderabad so that he can get the same corrected from the Controller of Examination, Intermediate Education, Hyderabad. In spite of such request being made, no action was taken by the BDA pursuant to the show cause notice. Consequentially, the petitioner was continuing as Junior Assistant under the bona fide belief that the matter has been dropped.

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Subsequently, he was issued with an office order on 18.09.2000 granting time till 30.09.2000 to furnish the education certificate required for the post of Junior Assistant. The petitioner appeared in +2 Upashastri Examination (Sanskrit) from the Shree Jagannath Sanskrit Biswa Vidyalaya, Puri and after passing the examination, he submitted the certificate to the Vice-Chairman, B.D.A. on 22.09.2000. On 25.10.2000, the petitioner was issued with another show cause,

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wherein it was stated that in view of the second certificate submitted by the petitioner why the earlier certificate submitted by him shall not be taken to be a forged one. The petitioner submitted his reply to such additional show cause reiterating the stand that the earlier certificate issued by the Board of Intermediate Education, Hyderabad was genuine and as there was some typographical error, he requested the BDA to return the certificate in order to get the same corrected, but no action was taken. The opposite parties, having not satisfied with the reply submitted by the petitioner, appointed an inquiry officer to enquire into charges made against the petitioner. After inquiry, the inquiry officer submitted his report on 06.11.2003 with the following finding:

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“xxxxxxxx. Thus, no doubt the certificate submitted by the delinquent is a forged one as ascertained from the Intimation made by Board of Intermediate Education, Hyderabad, A.P. It is very difficult to put the reasonability on the head of the delinquent that he has managed and arranged a certificate for his self-interest in view of the sponsored course by NIIMS. It is further pertinent to express here that subsequently he has submitted the pass certificate of Upasashtri after appearing the examination with due permission of the Authority, which is equivalent to 2 course within the time stipulated by the Authority. As there is no prohibition in law to get the additional/higher qualification by an employee, the charges for appearing the Upasashtri examination and submission of pass certificate is not sustainable in eye of law. Hence, the same is acceptable by the office. The earlier certificate submitted the delinquent should be ignored as he has not been accepted considering its non-validity and deemed to be (sic) since the delinquent has not enjoyed any financial benefit consequent upon submitting the earlier certificate,

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it may not be reasonable to put the responsibility on the head of the delinquent, except a token punishment due to embarrassing situation occurred and valuable time of the Authority was exhausted.

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In view of the matter as discussed, it will be reasonable to suggest that the earlier certificate which was not accepted should not be taken into account and the subsequent certificate submitted by the delinquent receiving from Jagannath Sanskrit Viswavidyalaya for the Upasashtri may be accepted and the proceeding drawn against the delinquent may be dropped, giving him a token punishment for the lapses.”

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After submission of such inquiry report, no action was taken by the BDA and the petitioner was allowed to continue in the post of Junior Assistant as before.

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Suddenly, on 30.04.2009, the petitioner was served with a second show-cause notice, wherein it was stated that as the charges, like misconduct, submission of forged certificate, furnishing of wrong information, etc, have been proved in the inquiry, why he shall not be dismissed from service. On receipt of such show cause, the petitioner submitted his reply, but without considering the same in proper perspective, the order of dismissal was passed on 05.10.2009 by the Vice-Chairman, BDA. Against the said order of dismissal, the petitioner approached this Court by filing W.P.(C) No. 16318 of 2009, but this Court disposed of the same granting liberty to the petitioner to prefer an appeal before the appellate authority, vide order dated 10.11.2009. Consequentially, against the order of dismissal from service, the petitioner preferred an appeal before

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the appellate authority, which was rejected by order dated 03.03.2010. Hence this application.

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Mr. A. Mohanty, learned counsel for the petitioner submits that subsequent to the earlier show cause notice dated 21.09.1998, the BDA having permitted the petitioner to produce +2 pass certificate by 30.09.2000 and the petitioner having produced the necessary certificate of +2 Upashastri (Sanskrit) from Shree Jagannath Sanskrit Biswa Vidyalaya, Puri on 22.09.2000 and the same having been duly accepted by the authorities, issuance of show cause notice on 25.10.2000, on the allegation of the petitioner submitting a forged certificate, was not proper and justified. The BDA having appointed an inquiry officer, to enquire into the charges levelled against the petitioner, who submitted his report on 06.11.2003 holding that the petitioner was not at fault and that the disciplinary proceeding against the petitioner should be dropped and, more so, while conducting an inquiry, the opposite parties having not followed the principle of natural justice, consequential imposition of punishment made by the disciplinary authority, suffers from bias, in view of the fact that the Vice-Chairman being one of the members of the appellate authority, could not have participated in the proceeding itself and, as such, the order of the appellate authority is vitiated as no man should be a

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judge of his own cause. His further submission is that the disciplinary authority, while not accepting the recommendation of the inquiry officer and passing an order of dismissal, must justify his action supported by sufficient evidence against the petitioner. The same having not been complied with, the order of punishment so passed by the disciplinary authority, as well as the confirming order passed by the appellate authority cannot sustain in the eye of law and liable to be set aside. It is further contended that one Ramakanta Das, who had been promoted along with the petitioner and for self same reason was dismissed from service, had approached this Court by filing W.P.(C) No. 8985 of 2010 and, on adjudication of the said writ application, this Court set aside the order of dismissal and granted all consequential benefits vide order dated 02.11.2006. The petitioner having stood in the similar footing is also entitled to get such benefits. To substantiate his contention, he has relied upon the judgment in Union of India (UOI) V. H.C. Goel, AIR 1964 SC 364; J. Mohapatra and Co. v. State of Orissa, AIR 1984 SC 1572; and Dharampal Satyapal Limited V. Deputy Commissioner of Central Excise, Gauhati and others, (2015) 8 SCC 519.

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Mr. P.K. Pasayat, learned counsel on behalf of Mr.

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P.K. Mohanty, learned Senior Counsel for opposite parties no. 1

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and 2 strenuously urged before this Court justifying the action of the authority concerned and stated that the petitioner, having produced the fake education certificate, departmental proceeding was initiated against him. When the petitioner was asked to submit his education certificate by 30.09.2000, he produced +2 Upashastri (Sanskrit) certificate from Shree Jagannath Sanskrit Biswa Vidyalaya, Puri on 22.09.2000, on receipt of which it was confirmed that earlier certificate produced by the petitioner was fake one. It is contended that disciplinary proceeding was initiated against the petitioner and, though the inquiry officer submitted a report on 06.11.2003 observing that the petitioner was not at fault and the proceeding drawn up against him be dropped with token punishment of lapses, the disciplinary authority did not accept the same and issued 2^nd show cause notice to the petitioner and on receipt of his reply the order of dismissal has been passed. It is further contended that there were materials available on record to show that petitioner had earlier furnished a forged educational certificate, which was an act of gross misconduct, and the action of the BDA in dismissing him from service is proper and justified.

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This Court heard learned counsel for the parties and perused the records. Pleadings having been exchanged between the parties, the matter is disposed of at the stage of admission.

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To sum up the facts, as discussed above, the so called certificate of having passed +2 examination issued by the Board of Intermediate Education, Hyderabad had been submitted by the petitioner in the year 1998. But, on 18.09.2000, the petitioner was directed by the BDA to submit requisite certificate of having passed +2 examination by 30.09.2000. The petitioner submitted the certificate of having passed +2 Upasastri (Sanskrit) from Shree Jagannath Sanskrit Biswa Vidyalaya, Puri on 22.09.2000, well within the time extended by the authority concerned and, as such, the same was accepted. But, immediately thereafter the BDA initiated disciplinary proceeding against the petitioner and appointed inquiry officer, who submitted his report on 06.11.2003 absolving the petitioner of his charges. The relevant finding of the inquiry officer is as follows:

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“ In view of the matter as discussed, it will be reasonable to suggest that the earlier certificate which was not accepted should not be taken into account and the subsequent certificate submitted by the delinquent receiving from Jagannath Sanskrit Viswavidyalaya for the Upasashtri may be accepted and the proceeding drawn against the delinquent may be dropped, giving him a token punishment for the lapses.”

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The disciplinary authority, on receipt of inquiry report, did not take any action on the same and sat over the matter for more than six years. Thereafter, disagreeing with the finding of the inquiry officer, the disciplinary authority issued the second show cause on 30.04.2009, pursuant to which the impugned order of dismissal from service has been passed.

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It is well settled law laid down by the apex Court that after receiving the enquiry report, the disciplinary authority may find it difficult to agree with the findings of the enquiry officer. The rules generally provide that in case of such disagreeing the disciplinary authority must record his reasons and also record his own findings, if the evidence on record is sufficient for that purpose or remit the case to the enquiry authority for further enquiry and report.

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In Ram Kishan v. Union of India, AIR 1996 SC 255, the apex Court held that notice has to be given assigning specific reasons on the basis of which the disciplinary authority disagreed with the findings of the enquiry officer. Similar view has also been taken by the apex Court in SBI V. Arvind K. Shukla, (2004) 13 SCC 797.

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However, in High Court of Judicature of Bombay

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v. Shashikantga S. Patil, (2000) 1 SCC 416: AIR 2000 SC 22

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the apex Court held that when disciplinary authority disagrees

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with the finding favourable to the charged employee, it is not bound to state the basis of its disagreement by a detailed discussion and contest the conclusions of the enquiry officer as that would imply relegating disciplinary authority to an inferior status.

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As it appears from the factual backdrop of the case in hand after remaining silent for six years the disciplinary authority issued a second show cause notice without assigning reasons why he was disagreeing with the finding of the inquiry officer mentioned earlier. The general principle is that there should be only one enquiry in respect of charge for a particular misconduct and that is also what the rules usually provide.

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In Union of India v. K.K. Pandey, (2002) 10 SCC 471 the Supreme Court has held that where the enquiry report contains a specific finding in favour of the employee after discussing the matter and where the disciplinary authority does not find that in the enquiry the employer did not have opportunity of leading evidence or that the findings were perverse, remission of the matter for the further enquiry would be unjustified and would amount to a second enquiry on the same set of charges resulting in abuse of process.

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On the materials available on record, it appears that before the disciplinary authority no evidence has been adduced

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nor any opportunity of hearing has been given to the petitioner. Consequentially, principle of natural justice has not been complied with. More particularly, the order of dismissal so passed is actuated with bias by the authority concerned, in view of the fact that after six years of submission of inquiry report, there is no valid or justifiable reason available on the part of the disciplinary authority to issue a show cause notice basing upon which the order of dismissal has been passed and, subsequently, against the order of dismissal, when appeal was preferred, the Vice-Chairman, being one of the members of the appellate authority, could not have participated in such proceeding. Consequentially, the appellate authority order cannot also be sustained in the eye of law.

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In view of the aforesaid position, this Court is of the considered view that issuance of second show cause notice is absolutely misconceived one and without assigning any reason, which cannot sustain in the eye of law, and basing on such show cause notice the consequential order of dismissal having been passed, the same cannot also sustain in the eye of law.

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For the foregoing reasons, the order of dismissal passed by the disciplinary authority and the order of the appellate authority confirming the order of dismissal are hereby quashed.

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Since in the meantime it is stated that the petitioner has already reached the age of superannuation, this Court is not inclined to issue any direction for reinstatement in service. But, however, the petitioner’s entitlement of benefit of pay, allowance and other financial benefits for the period of dismissal shall be computed and he shall be extended with such benefits notionally by applying the principle of ‘no work no pay’ for the said period. Further, he is entitled to get continuity in service with all consequential benefits admissible to the post.

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The writ application is allowed. No order to cost.

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.…………….…………..

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DR. B.R.SARANGI,

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JUDGE

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Orissa High Court, Cuttack The 16^th December, 2016, Ajaya/GDS

Radha Mohan Kar v. B.D.A. and Anr.

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Radha Mohan Kar v. B.D.A. and Anr.

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