Partly allowed

State of Orissa v. Udayanath Majhi

Orissa HC17 Jul 2017WP(C)/6063/2017

Case brief

AI extract

What is this about?

The High Court set aside a Tribunal order quashing departmental proceedings if not concluded in three months. The Court held that delay attributable to judicial pendency does not vitiate proceedings and dismissed the automatic quashing direction.

What did the court decide?

Part of OAT order directing quashing of proceedings if not concluded in three months set aside; direction to conclude proceedings within four months.

State of Orissa Vs Udayanath Majhi — Service and Employment | Orissa HC (2017)

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HIGH COURT OF ORISSA: CUTTACK.

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W.P.(C) No.6063 of 2017

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

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State of Odisha …… Petitioner.

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Versus-

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Udayanath Majhi and Another …… Opposite Parties.

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Counsel for Petitioner : Mr. Buddhiman Rout, Standing Counsel, School and Mass Education Department.

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Counsel for Opp.Parties : M/s. L. K. Mohanty and B. K. Jena.

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PRESENT:

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THE HONOURABLE KUMARI JUSTICE SANJU PANDA &

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THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD

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Date of hearing and judgment : 17.07.2017

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S. N. Prasad, J. This writ petition is by the State of Orissa, through its

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Commissioner-cum-Secretary to Government, School and Mass Education Department, Bhubaneswar wherein the order dtd.1.10.15 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.147(C) of 2005 is under challenge whereby and where under the Tribunal has passed an order for quashing of the departmental proceeding in case it will not be concluded within the period of three months from the date of receipt of copy of the order.

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The fact of the case in short is that while the applicant was working as District Inspector of Schools, Jajpur-II, a disciplinary proceeding was initiated against him, he was called upon to submit written statement of defence and accordingly he submitted his defence reply denying the charges. The authority thereafter has appointed an inquiry officer to enquire into the charges. The Commissioner for Departmental Inquiries, General Administration Department was appointed to enquire into the charges and the District Inspector of Schools, Jajpur-II was appointed as the presiding officer. On 19.1.2000 additional charge was framed against him. The applicant submitted his reply denying the additional charge. The applicant submitted a detailed explanation, denying the charges leveled against him. The inquiry officer has submitted its report regarding the first charge on the basis of which the disciplinary authority has proposed punishment to stop five increments with cumulative effect and treat the period of suspension as such.

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The case of the applicant is that the order of punishment has been passed without supplying the relevant documents as has been referred in the memorandum of charge. The applicant has further submitted that no enquiry has been conducted on the additional charge, therefore the punishment proposed is not tenable, but without considering the specific stand taken by him in the reply to the show cause, the order of punishment was passed on 19.1.2004.

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The applicant, being aggrieved with the order of punishment preferred an appeal / memorial before His Excellency the Governor of Odisha on 22.06.2004 but as the same was not disposed of, he submitted a reminder but till

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the date of filing of the original application before the Tribunal when the appeal was not disposed he approached to the Tribunal.

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The main grievance of the applicant is that while conducting enquiry due opportunity has not been given to him to defend himself, inasmuch as the basis of the allegations, on the basis of which charge was framed, was never been supplied as a result the applicant did not get any opportunity to defend himself.

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It has further been pleaded that in respect of charge No.1, the Marshalling Officer had pointed out that the delinquent is not responsible but without appreciating the proposal of the Marshalling Officer, the inquiry officer proceeded to hold the applicant guilty of the charges. Even though the applicant submitted his reply to additional charge on 19.1.2000 but no enquiry was conducted as yet.

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The State of Odisha, through its functionaries, had appeared and filed counter affidavit denying the averments made in the Original Application wherein inter alia it has been stated that the applicant while working as District Inspector of Schools, Jajpur-II, committed gross irregularity by giving promotion to the post of headmaster in respect of 357 persons violating the principle of reservation and with an ulterior motive regularized the non-formal educator instructors and supervisors. After the charge was framed against the applicant, he was called upon to submit show cause, on receipt of show cause when it was not found to be satisfactory, the inquiry officer was appointed to conduct enquiry and to submit his report who has conducted a thorough enquiry allowing applicant to participate in the same, submitted enquiry report proving the guilt of the charges

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and thereafter he was called upon to submit his show cause, which was responded to by him, the disciplinary authority, after considering the defence reply, has passed the order of punishment considering the gravity of charge, hence the same is just and proper and no interference is called upon.

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The Tribunal, after considering the rival submissions of the parties and taking into consideration the fact that the relevant documents has not been produced which is the requirement of the provision of rule 15(3) of Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 (herein after referred to as the Rules, 1962) has quashed the order of punishment, remitted the matter back for fresh enquiry from the stage from where the enquiry was vitiated and accordingly the disciplinary authorities have been directed to conclude the proceeding expeditiously, preferably within period of three months from the date of receipt of copy of the order giving due opportunity of hearing to the applicant and in the event the proceeding will not be concluded within the stipulated period, the same shall be deemed to have been quashed and the applicant will be entitled to all consequential service and financial benefits. The applicant has also been directed to cooperate with the disciplinary authority for conclusion of the enquiry in time, failing which the disciplinary authority is at liberty to proceed ex-parte as per rule.

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Being aggrieved with the part of the order passed by the tribunal wherein it has been directed that the departmental proceeding will be quashed in case of its non-conclusion within the period of three months is under challenge in this writ petition.

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The main contention raised by the petitioner in the instant writ petition, i.e. the State of Odisha, that the Tribunal has committed gross error in issuing direction to quash the department proceeding in case of its non-conclusion within period of three months without appreciating the fact that the charge leveled against the petitioner is very serious in nature.

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It has been submitted that under the Rules, 1962 there is no deeming provision for quashing of the departmental proceeding. He however, has submitted that the Tribunal at best can pass direction to conclude the disciplinary proceeding at an early date but in case of its non-conclusion directing for its quashing will ultimately give premium to the delinquent employee who have committed gross illegality / irregularity in course of discharging public service.

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He has further submitted that quashing of the departmental proceeding, if not concluded within three months, will amounts to quashing of the departmental proceeding on technical ground which should not have been done by the Tribunal.

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While on the other hand, learned counsel for the applicant – opposite party has submitted that the Tribunal has committed no error so far as it relates to the direction for quashing of the departmental proceeding in case of its nonconclusion within period of three months for the reason that if such direction would not be passed, the delinquent employee like the applicant will unnecessarily been harassed by the authority. He submits that if any proceeding has been initiated against any employee, it is the duty of the disciplinary authority to arrive at an early conclusion by concluding the departmental proceeding at an early date.

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He submits that the departmental proceeding cannot be allowed to continue indefinitely and the Tribunal, after taking into consideration these aspects of the matter, has passed an order for quashing of the departmental proceeding in case of its non-conclusion within the period of three months, hence the Tribunal has committed no error.

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We have heard the learned counsels for the parties and perused the documents available on record.

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The admitted position in this case is that the applicant while working as District Inspector of Schools, Jajpur-II, a departmental proceeding was initiated against him. The applicant has participated in the enquiry proceeding, given his defence reply. The inquiry officer has found the charges proved against him. The authorities have also issued additional charge by issuing the memorandum of charge of the same to the applicant which has also been responded to. The inquiry officer has found the charge proved against him. The inquiry officer has forwarded the enquiry report before the disciplinary authority for onward action, in pursuance thereto, the disciplinary authority has issued a show cause notice and thereafter imposed punishment of withholding five increments with cumulative effect with further direction to treat the period of suspension as such. The order of punishment has been assailed before the appellate authority, but when the appellate authority has not exercised its appellate jurisdiction, the applicant has approached the Tribunal by way of filing an original application being O.A. No.147(C) of 2005 challenging the entire disciplinary proceeding on the ground that the relevant documents, basing upon which the memorandum of charge has been issued, has not been supplied to him and further in respect of additional

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charge, which has been served upon him on 19.1.2000, no enquiry was conducted. The Tribunal after taking note of these grounds and taking into consideration the provision of Rule 15(3) of Rules, 1962, has quashed the order of punishment, remitted the matter before the disciplinary authority for fresh enquiry from the stage from where the enquiry was vitiated with a further direction to conclude the proceeding within period of three months after providing due opportunity of hearing to the applicant and in the event the proceeding will not be concluded within the stipulated period, the same shall be deemed to have been quashed and the applicant will be entitled to all service benefits. The applicant has also been directed to cooperate with the disciplinary authority for conclusion of the enquiry in time, failing which the disciplinary authority is at liberty to proceed exparte as per rule.

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The order passed by the tribunal is before this court for its judicial scrutiny having been assailed by the State of Odisha through its School and Mass Education Department assailing the part of the order whereby and where under the disciplinary proceeding has been held to be vitiated in case of its nonconclusion within the period of three months as directed by the Tribunal.

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There is no dispute about the fact that if any departmental proceeding has been initiated against a delinquent employee, the same has to be concluded at an early date.

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It is also not in dispute that merely on technicality a delinquent employee may not be made scot free otherwise the same will give premium to such

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type of employees which ultimately will lead to giving premium to the illegal doors in course of discharge of public service.

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Before examining the issue which has been raised by the State of Odisha, it is important to look into the nature of allegation leveled against the applicant as would be evident from the memorandum dtd.27.5.1999 as contained in Annexure-1 annexed to the writ petition whereby and where under the following charges have been leveled against the applicant, i.e. –

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“1. He has suppressed the vacancy position of Primary School Teachers existing as on 30.6.1996 in Jajpur-II Education District and has submitted inaccurate vacancy position to the District Selection Committee, Jajpur and to this Directorate and thus he has falsified the official documents.

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2. He has further violated the provision of simultaneous appointment of Primary School Teachers from the open market and regularization of the continuing Non-formal Educator Instructor / Supervisor provided in office order No.35090(4)/SME, dtd.6.11.1996 in the capacity of District Selection Committee member as well as appointing authority.

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3. Since the vacancy position was inaccurately reported the roster point was found to have been wrongly maintained.”

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It is evident from the statement of imputation of charge that there

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were 151 vacancies confirmed by the District Inspector of Schools, Jajpur-II in his

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letter No.8785(2) dtd.16.12.1998 but the applicant has submitted various figures

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of candidates as on 30.6.1996 as detailed below:-

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First Phase	Second Phase	Third Phase
Jajpur-I.	Jajpur-I.	Jajpur-I –
Jajpur-II-105	Jajpur-II-89	Jajpur-II-25
158	147	54

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He being a member of the District Selection Committee as well as

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appointing authority of Primary School teachers has suppressed the vacancy position as on 30.6.1996 and has reported inaccurate figure to the District Selection Committee.

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It is further evident from the imputation of charge that as per provision of Government letter No.35090(4)/SME dtd.8.11.96, the regularization of the existing Non-formal Educator Instructors, Supervisors and appointment of fresh candidates from the open market should have been made simultaneously by computing the accurate vacancy position as on 30.6.1996.

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It is further evident from the imputation of charge that by way of suppression of vacancy the applicant has regularized only 105 members of NonFormal Educator Instructors / Facilitators in the different orders, hence the Government has decided to proceed against him departmentally.

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In the light of these allegations the department has proceeded against the applicant to find out accountability and his involvement and for that an inquiry officer has been appointed, who has found the charge proved against him which however have been said to be illegal by the Tribunal and the matter has been remitted before the disciplinary authority to conduct fresh enquiry by providing due opportunity of being heard to him.

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We are of the considered view that the Tribunal has committed no error so far as it relates to remitting the matter before the disciplinary authority for conducting fresh enquiry by providing due opportunity of being heard to the delinquent employee.

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The State of Odisha is also not aggrieved with that part of the order as it has been submitted by the learned Additional Standing Counsel in course of argument, rather he is only aggrieved with the deeming clause whereby and where

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under the departmental proceeding has been said to be quashed in case of its nonconclusion within the period of three months.

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We, before examining that part of the order passed by the Tribunal, have gone into the various propositions laid down by Hon’ble Apex court wherein the principle for quashing the disciplinary proceeding has been laid down in case of delay in its conclusion.

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We have considered the judgment rendered by Hon’ble Apex Court in the case of Abdul Rehman Antulay Vrs. R. S. Nayak , reported in AIR 1992 SC 1701 wherein the proposition has been laid down taking into consideration the intent of Article 21 of the Constitution of India. There is no denial about the fact that speedy trial is the mandate of the Constitution and perhaps that led the Tribunal to fix the time limit and in case of its non-conclusion the proceeding has been directed to be quashed, but while passing such order, the Tribunal has failed to appreciate the pendency of the proceeding before it which was pending from 2005 to 2015 and that period has been counted towards the inordinate delay said to have been committed by the authorities, which according to us is unjustified reasoning of the Tribunal in coming to conclusion that there is inordinate delay, rather the departmental proceeding which was initiated on 27.5.1999 has already been concluded on 19.1.2004 by passing an order of punishment which has only been quashed by the Tribunal in its order dtd.1.10.2015 passed in O.A. No.147(C) of 2005, hence the proceeding of the said departmental proceeding was for judicial scrutiny before the Tribunal, as such the said period cannot be taken as the period of inordinate and abnormal delay which led the Tribunal to pass the order for quashing of the departmental proceeding in case of its non-conclusion.

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The Tribunal has passed the order of quashing the departmental proceeding in case of its non-conclusion within the time frame but while doing so, the Tribunal has failed to consider the fact that only because of delay whether the charge will vitiate, should be decided by balancing process, i.e. weighing the factors for and against and taking decision on the totality of the circumstances, in this respect the judgment rendered by Hon’ble Apex Court in the case of State of Punjab Vrs. Chamanlal Goyal , reported in (1995) 2 SCC 570 needs to be referred wherein at paragraph 9 it has been held that “such departmental proceeding must be conducted soon after the irregularities are committed and soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration xxxxxxx. But how long a delay is too long always depends upon the facts of each case .

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In the case of B. C. Chaturvedi Vrs. Union of India and Others , reported in (1995) 6 SCC 749 wherein at paragraph 11 Hon’ble Apex Court has been pleased to held that the question whether the delay in initiating the disciplinary proceeding is an unfair procedure depriving the livelihood of a public servant offending Article 14 or 21 of the Constitution. Each case depends upon its own facts.

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In the case of State of Andhra Pradesh Vrs. N. Radhakishan , reported in (1998) 4 SCC 154 the Hon’ble Apex Court, at paragraph 19, has been pleased to discuss the issue as to whether on the ground of delay in concluding of

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disciplinary proceeding, can it be terminated, answering this it has been observed that each case has to be examined on the facts and circumstances of that case.

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In the case of Food Corporation of India and Another Vrs. V.P.

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Bhatia , reported in (1998) 9 SCC 131 the Hon’ble Apex Court has been pleased to observe at paragraph 4 that “it is no doubt true that undue delay in initiation of disciplinary proceedings may cause prejudice to the employee concerned in defending himself and, therefore, the courts insist that disciplinary proceedings should be initiated with promptitude and should be completed expeditiously. The question as to whether there is undue delay in initiation of disciplinary proceedings or whether they are being unnecessarily prolonged has to be considered in the light of the facts of particular case.

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We have examined the facts of this case vis-à-vis the nature of allegation from which it is evident that the memorandum of charge has been issued to the applicant on 27.5.1999 for an allegation occurred in the year 199697, enquiry proceeded, concluded by passing final order of punishment on 19.1.2004. The delinquent employee, i.e the applicant has approached the Tribunal in the year 2005 vide the instant original application which remain pending before it and ultimately has been disposed of on 1.10.2015 and the Tribunal, while passing the order for quashing of the disciplinary proceeding on the deeming clause, has taken note of pendency of the disciplinary proceeding, but according to our considered view the disciplinary proceeding cannot be said to be pending from 2005 till the month of September 2015 reason being that the order of punishment has already been passed. It is settled that the day when the order

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of punishment is being passed, the disciplinary proceeding will be said to be concluded in the eye of law.

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Here, the Tribunal has restored the departmental proceeding from the stage of enquiry, that does not mean that the delay will be attributable to the disciplinary authority, hence in the facts and circumstances of the case the principle as laid down by Hon’ble Apex Court in the judgments referred herein above for quashing of the departmental proceeding on the ground of inordinate and abnormal delay is not applicable.

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It is evident from the proposition laid down by these judgments that the disciplinary proceeding may not continue for indefinite period but the Hon’ble Apex Court is also of the view that the disciplinary proceeding may not be quashed merely on the ground of its longevity and before quashing it on this ground the proper assessment is to be made by the court of law as to whether the delay caused is attributable to the delinquent employee or the disciplinary authority.

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We have gathered from the judgments referred herein above that the disciplinary proceeding if going on for long period, that to say for more than five years, then such type of power should be exercised by the court of law.

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But so far as the deeming provision, according to our considered view, the same should not have been directed in case of departmental proceeding otherwise the whole purpose of the Classification, Control and Appeal Rule will be frustrated and there might be chances of its non-conclusion with the connivance of the delinquent employee and the disciplinary authority as we have gathered in the instant case wherein pursuance to the direction passed by this court in this

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writ petition on 26.4.2017 asking the learned Standing Counsel to file an affidavit regarding accountability in not concluding the disciplinary proceeding pursuance to the direction of the Tribunal, in pursuance thereto an affidavit has been filed by one Sri Ramkanta Das, presently working as Under Secretary to Government, School and Mass Education Department, Odisha, has stated that it is due to the fault of one Sri Tribikram Sahoo, the then Legal Advisor who is responsible for not submitting the court order to the knowledge of higher authority in time when it was the specific duty of the legal cell to pursue the legal matter with the concerned section expeditiously.

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It has further been stated that Sri Parikhita Sethy, Section officer of Section IV is also responsible for not submitting the file in time though he has received the copy of order of case No.147(C) of 2005, for better appreciation the statement made in the affidavit at paragraph 4 is being reflected herein below:-

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“4. That, it is submitted that the enquiry has been completed by the Joint Secretary to Government and in the enquiry it is found that Sri Tribikram Sahoo, the then Legal Advisor is responsible for not submitting the Court order to the knowledge of higher authority in time. It is the duty of the legal cell to pursue the legal matter with concerned section expeditiously. However it is found that Sri Parikshita Sethy, Section Officer of Section IV is also responsible for not submitting the File in time though he has received the copy of the order of Case No.147(C) of 2005.”

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This court has deprecated the stand of the authority by passing an order on 6.7.2017, while passing the order by observing that the affidavit filed is very casual in nature without showing any accountability upon the erring officer regarding non-conclusion of the disciplinary proceeding in question, however, granted one more time to file another affidavit, in pursuance thereto another affidavit has been filed duly been sworn on 15.7.2017 by Smt. Ranjana Chopra, at present working as Commissioner-cum-Secretary to Government, School and

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Mass Education Department who has stated that an explanation has been sought for from Sri Parikshita Sethy, Section Officer requesting him to explain why disciplinary action as deemed proper will not be taken against him for such deviation / inaction on his part, the said letter dtd.11.7.2017 is quoted herein below for ready reference.

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“xxxxx The undersigned is directed to invite a reference to the above cited subject and to say that, he has committed mistake in dealing / submitting the file in time though he has received the copy of the order of Hon’ble OAT dtd.1.10.2015 passed in O.A. No.147(C) of 2005 filed by Sri Udayanath majhi – vrs.- State of Odisha & Others.

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In the above premises, you are requested to explain why disciplinary action as deemed proper will not be taken against you for such deviation / inaction on your part. Your explanation should reach t he undersigned within three days from the date of receipt of this notice.”

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It is very surprising that two affidavits have been filed, one by the

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Under Secretary to the Department and another by the Secretary to the Department that too on the direction passed by this court. It is very much astonishing that the Joint Secretary to Government is issuing show cause to Sri Parikshita Sethy but with a request to explain why disciplinary action as deemed proper shall not be taken against him.

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We have gathered from these affidavits that every thing was within the knowledge of the Department and when this Court has taken strict view in this regard, then only, by way of these two affidavits, the accountability is decided to be fixed upon the personnel / authorities, however, we are not satisfied with the said affidavits reason being that the Secretary of the Department who has been impleaded as party before the court of law is also responsible to follow the court proceeding and he / she cannot shift accountability by saying on affidavit that the concerned section has not transmitted the file before the competent authority, if

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that is so, what action has been taken by the authority, who was party before the Tribunal against the concerned section in course of the subsistence period as has been granted by the Tribunal to monitor the things for compliance of the Tribunal’s order.

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We, at this juncture, are constrained to observe that the State Government is initiating disciplinary proceeding to deal with the irregularities/illegalities leveled against one or the other employee but simultaneously are protecting such employee in the garb of courts order which is very much unfortunate.

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We have gathered from these affidavits that the file was lying with the Department and for one reason or the other it has not been brought to the notice of the authority that resulted in non-conclusion of the disciplinary proceeding as per the direction passed by the Tribunal.

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Now the question is that whether on these grounds can the disciplinary proceeding be said to be vitiated and further thing which is to be seen is that whether the order of Tribunal in quashing the disciplinary proceeding on the deeming clause can be said to be justified one.

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So far as the question as has been observed by us in the preceding paragraphs, we are of the considered view that it is not possible to lay down any pre-determined principles applicable to all cases and in all situation where there is delay in conclusion the disciplinary proceeding. Whether on that ground the disciplinary proceeding are to be terminated, each case has to be examined in the facts and circumstances of that case. The essence of the matter is that the court

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has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceeding should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for such delay.

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We have observed in various orders passed by the Tribunal who used to pass orders for quashing of the proceeding in case of its non-conclusion within time frame without considering the relevant factors and without determining if it is in the interest of clean and honest administration.

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We have found from the order impugned that no such finding has been given while directing to quash the disciplinary proceeding in case of its nonconclusion within three months from the date of receipt of copy of the order.

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We, after going through the facts and circumstances of the case and the nature of allegation as also the decision for initiation of the departmental proceeding which was started on 27.5.1999 and the punishment order having been passed on 19.1.2004 against which a proceeding was filed in the year 2005, which was disposed of on 1.10.2015, as such the observation of the Tribunal that there is inordinate delay in conclusion of the departmental proceeding cannot be said to be acceptable because the delay from 2005 to 2015 cannot be attributable to the disciplinary authority, rather the disciplinary authority has initiated a disciplinary proceeding on 27.5.1999 which has been culminated into order of punishment dtd.19.1.2004 and since the year 2005 the matter was pending before the Tribunal and in that pretext it cannot be said that delay was inordinate and it

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is attributable to the disciplinary authority to come to the conclusion that the fact of the case in hand will come into the purview of inordinate and abnormal delay caused by the disciplinary authority, as such the principle of abnormal delay is not applicable to this case which warranted the Tribunal to pass the order of quashing of the Departmental Proceeding in case of its non-conclusion within the time frame.

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In the result the part of the order whereby and where under the departmental proceeding has been said to be vitiated in case of its non-conclusion is hereby set aside with a direction upon the competent authority to conclude the departmental proceeding at an early date, preferably within period of four months from the date of receipt of copy of the order by providing due opportunity to the petitioner.

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The applicant is also directed to cooperate with the departmental

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proceeding.

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In case of non-cooperation, the departmental authority is at liberty to proceed ex-parte so that it be concluded within the time frame.

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With this observation and direction the writ petition stands disposed

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of.

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…. ………………… …. ………………… S.N.Prasad, J. Sanju Panda, J.