Dismissed

State of Odisha v. Nirakar Biswal

Orissa HC1 Dec 2017WP(C)/11698/2016

Case brief

AI extract

What is this about?

The State of Odisha filed a writ petition assailing an Administrative Tribunal order that quashed a dismissal. The tribunal had relied on Rajpal Singh to prevent differential punishment for joint delinquents. The Court dismissed the petition primarily due to a delay of over four years without sufficient explanation and noting the order had already been implemented.

What the court decided

AI extract

9. 01.12.2017 This writ petition has been filed by the State of Odisha in th e Department of Water Resources, Bhubaneswar, assailing the order dated 22.11.2013 (Annexure-4 ) passed by learned Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 675 (C) of 2012, wherein learned Tribunal relying upon the case of State of Uttar Pradesh and others -v- Rajpal Singh, reported in 2010 (5) SCC 783, held that different punishment cannot be imp osed on different delinquents charged in disciplinary proceedings held under Rule 17 of the OC S (CC&A) Rules, 1962 (for short, the CCA Rules). Accordingly, the punishment imposed on the op posite party no.1, namely, Nirakar Biswal, vide order No. 600/WR (C) dated 10.09.2012 was qua shed and the petitioners were directed to extend the benefits in favour of opposite party no. 1 within a period of four months from the date of receipt of the said order.

2. Mr. M.S. Sahu, learned Additional Government Advocate appearing for the petiti oners-State submitted that the opposite party no.1 while working as Junior Engineer, M.I. Sect ion, Harichandanpur under M.I. Division, Anandpur, faced a departmental enquiry along with Sri Ashok Kumar Behera, the then Executive Engineer in-charge, M.I. Division, Anandpur, Kashinath Rout, the then Assistant Engineer, M.I. Sub-Division, Harichadanpur and Dayanidhi Na yak, Junior Engineer, M.I. Section, Jangira and was placed under suspension with effect from 0 6.11.2009. Subsequently, charges were framed against the Delinquent Officers and a joint enqui ry was conducted under Section 17 of the CCA Rules, 1962. On completion of the enquiry, the E nquiring Officer submitted his report on 30.10.2010 holding the opposite party no.1 along with Sri Ashok Kumar Behera, the then Assistant Engineer, to be guilty of the charges and suggeste d punitive action against them under Rule 13 of the CCA Rules. Since, Kashinath Rout was super annuated by then, his case was recommended to be dealt with under the provisions of the OCS (P ension) Rules, 1992. As Dayanidhi Nayak was appointed as Junior Engineer on contractual basis and was removed by then, it was held that his case could not be dealt with under the provision s of CCA Rules and a criminal proceeding was recommended to be initiated against him.

3. During pendency of the enquiry, the opposite party no.1 was reinstated in ser vice vide order dated 24.06.2010 considering his representation dated 20.06.2010 pending final ization of the proceeding. He was subsequently promoted to the post of Assistant Engineer, vid e order dated 30.09.2013. Following due procedure of law, the opposite party no.1 was dismisse d from service vide order dated 11.09.2012. Assailing the same, the opposite party no.1 had fi led O.A. No.675(C) of 2012, wherein the impugned order under Annexure-4 was passed.

4. Mr. Sahu, learned Additional Government Advocate further submitted that althou gh a joint enquiry under Rule 17 of the CCA Rules was conducted against all the delinquents, t he charges framed against each of the delinquents are distinctly separate considering the duti es and responsibility entrusted to each of the delinquents vis--vis their respective delinquen cy. Learned Tribunal failed to appreciate the same and relying upon the decision in the case o f Rajpal Singh (supra) has passed the impugned order, which is not sustainable in the eyes of law. He, relying upon a decision in the case of Administrator, Union Territory of Dadra and Na gar Haveli v- Gulabhia M. Lad, reported in (2010) 5 SCC 775 submitted that Honble Apex Court taking into consideration the ratio decided in Rajpal Sing (supra) held as follows:

16. Does the present case make out discrimination in inflicting punishment? We do not think so. In the first place, the respondent and the two other delinquents may have been found guilty in connection with the same incident, i.e. illegal grant of occupancy rights in respec t of government land to five persons but the charges against the respondent and the other two delinquents cannot be said to be same or substantially similar.

17. The substance of the charge against the respondent was that as a Land Reforms Officer- I,he granted occupancy rights to the government land to five persons with ulterior motive by g etting the survey conducted from co-delinquent R.K. Kapdi, Surveyor and without following the procedure prescribed under the Regulations. On the other hand, the main charge against R.K. Ka pdi was that he prepared a map by not following the procedure and without verifying the docume ntary evidence as was required under the Regulations and assigning new plot numbers without an y authority in flagrant violation of law. As regards, P.N. Vinod, he was principally charged f or having prepared the statement on oath of each of the applicants in his own handwriting in t he absence of the applicants and thereby abusing his official position as Patel Talati. Thus, there was variation in allegations of misconduct and all the three delinquents could not have been put on par although joint enquiry was held and there was common evidence.

Thus, he prayed for setting aside the impugned order under Annexure-4. 5. Pet contra, Mr. Pattnaik, learned counsel for the opposite party no.1, without disputing the factual aspects of the case, submitted on law that since all the delinquents fa ced disciplinary proceeding for the same incident, they cannot be punished differently as held in paragraphs-5 and 6 of Rajpal Singh (supra), which is reproduced below.

t the five employees who stood charged on account of the incident that happened on the same da y and then the High Court came to the conclusion that since the gravity of charges was the sam e, it was not open for the disciplinary authority to impose different punishments for differen t delinquents. The reasoning given by the High Court cannot be faulted with since the State is not able to indicate as to any difference in the delinquency of these employees. 6. It is undoubtedly open for the disciplinary authority to deal with the delinquency and once charges are established to award appropriate punishment. But when the charges are sam e and identical in relation to one and the same incident, then to deal with the delinquents di fferently in the award of punishment, would be discriminatory. In this view of the matter, we see no infirmity with the impugned order requiring our interference under Article 136 of the C onstitution.

Elaborating his submission, Mr. Pattnaik submitted that during 2006-07 and 200 7-08, execution of two MIPs, namely, Mankadanacha (D/W) and Balamunda M.I.P. under Harichandan pur Block of Keonjhar district were taken up under R.S.V.Y. Scheme. An inspection was conduct ed during the period form 6.08.2009 and 20.08.2009 and serious irregularities were detected in execution of the MIPs. Accordingly, the Delinquent Officers were charged on five counts, name ly, dereliction in duties, violation of Codal Provision, showing undue favour to the Contracto r, mis-appropriation of Government money by way of recording excess and false measurement and mis-conduct. A joint disciplinary proceeding under Rule 17 following Rule 15 of the CCA Rules was initiated against all the delinquents and only opposite party no.1 was dismissed from serv ice, which was illegal, discriminatory and violative of the principles of law. Being aggrieved , the opposite party no. 1 filed O.A No.675 of 2012. Considering the rival contentions of the parties and the materials available on record, learned Tribunal has passed the impugned order under Annexure-4, which is just and proper, and needs no interference. He further submitted th at during pendency of the disciplinary proceeding, the opposite party no.1 was reinstated in s ervice and subsequently, he was promoted to the post of Assistant Engineer in due course. Sinc e the impugned order under Anexure-4 was not implemented within the stipulated period of four months, the opposite party no.1 filed contempt petition and in the meantime, the impugned orde r has already been implemented and the opposite party no. 1 has been given all benefits pursua nt to the impugned order. As such, the impugned order is no more available to be challenged. The writ petition is hopelessly barred by limitation as the impugned order was passed on 22.11 .2013 and the writ petition was filed on 04.07.2016 without explaining the delay in filing the writ petition. As such, the writ petition is liable to be dismissed for the delay and latches of the petitioners.

6. Heard learned counsel for the parties and perused the records. 7. There is no dispute to the case law as referred to above. Be that as it may, t he impugned order under Annexure-4 was passed on 22.11.2013 and Mr. Sahu, learned Additional G overnment Advocate, on instruction, submited that the same has already been implemented. As s ubmitted by learned counsel for the parties, the delinquent officer, namely, Kashinath Rout, w as retired from service during pendency of the disciplinary enquiry. Hence, the Enquiring Offi cer recommended to proceed against him under the provisions of OCS (Pension) Rules, 1992. Sri Dayanidhi Nayak was appointed as Junior Engineer on contractual basis and has been removed fro m service. Hence, he could not be proceeded under the provisions of CCA Rules. Sri Ashok Beher a has expired in the meantime.

8. On perusal of the writ petition, it appears that the petitioners have explain ed the delay at Para-10, which is reproduced below. 10. That it is humbly submitted that some delay has been caused in approaching the Hon ble Court. Delay is not intentional. Delay has been caused due to fulfillment of official form alities.

9. As it appears, no explanation for the delay has been given by the petitioners, which is the basic requirement to be satisfied to entertain the writ petition after a delay o f more than three years. Although the period of limitation has not been provided for filing of a writ petition, it should be filed within a reasonable time and a long lapse of about four y ears without any explanation of the delay cannot be treated to be a reasonable period. Moreove r, the impugned order under Annexure-4 has already been implemented in the meantime. 10. Thus, taking into consideration the facts and circumstances of the case, we ar e not inclined to entertain the writ petition, which is accordingly dismissed.

State of Odisha v. Nirakar Biswal

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What the court decided

State of Odisha v. Nirakar Biswal

Case brief

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