Allowed

Mohan Sundar Patra v. Cesco.

Orissa HC17 Nov 2020OJC/4685/2001

Case brief

AI extract

What is this about?

This court entertained a writ petition challenging a dismissal order from service. It found the enquiry report defective due to internal contradictions regarding measurement evidence and lack of documentary proof for financial loss. Consequently, the court quashed the dismissal and ordered the calculation of retirement dues.

What did the court decide?

The order of dismissal was set aside, and the employer was directed to calculate and release the petitioner's retirement dues along with 6% interest within three months.

Mohan Sundar Patra Vs Cesco. — Service and Employment | Orissa HC (2020)

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IN THE HIGH COURT OF ORISSA : CUTTACK

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O.J.C. No.4685 OF 2001

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

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- Mohan Sundar Patra	---- Ver	------ … sus	. Petitioner
Central Electricity Supply Company of Orissa Ltd. and another		…	. Opposite parties
For Petitioner	…	Mr. Mr. Mr. Mr. and Adv	N.C.Mohanty along with R. Sahu-3, Mr. P.K. Dhal, B.B. Panda, P.R. Behera, Mr.A.K.Biswal ocates
For Opposite Party Nos.1 and 2	…	Mr. Mr. Mr. Mr. Adv	B.K.Patnaik along with Debaranjan Roy, P. Sinha and P. Choudhury ocates

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J U D G M E N T

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PRESENT:

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THE HONOURABLE JUSTICE BISWANATH RATH

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Date of Hearing and Judgment : 17.11.2020

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Biswanath Rath, J. This writ petition involves a challenge to

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the order of dismissal passed by the Competent Authority,

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vide Annexure-3 based on conclusion of a departmental

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proceeding involving an enquiry also in involvement of the

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parties concerned.

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Mr. Mohanty, learned counsel appearing for the

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petitioner submits that there is no need to implead Tata Power as a party to the case for there being neither involvement of such party nor petitioner is seeking any relief against such party.

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2. Short background involving the case is that involving an allegation of false measurement, Departmental Proceeding No.283 was initiated against the petitioner, who was working as a Junior Engineer (Elec.) along with the S.D.O., Jatni on the charge of inflated measurement as well as excess payment to the Contractor for construction of the compound wall and spreading of metal and sand in 33/11 KV Sub-Station, Jatni. On being appointed, the Enquiry Officer conducted enquiry involving the parties. Dependent on the enquiry report, vide Annexure-1, after entering into discussion on the article of charges, the Enquiry Officer submitted his final report appearing from Pages-21 to 24. Based on such report of the Enquiry Officer, show-cause notice on punishment was issued to the petitioner, vide Annexure-2. After considering the report and the objection

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of the petitioner in response to the second show-cause, the Disciplinary Authority passed the penalty order, vide

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Annexure-3, thereby dismissing the petitioner from service with immediate effect.

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3. Assailing the impugned order of dismissal, Mr.

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Mohanty, learned counsel for the petitioner attempted to support the case of the petitioner on the premises that petitioner has a clear case of no experience and did not possess requisite qualification to undertake measurement involved herein. He has also specifically pleaded in the enquiry proceeding that he was even not having expertise in such matter. Further taking this Court to the observation in the enquiry proceeding as well as report and for clear recording that there was no documentary evidence to establish the actual measurement taken by the Vigilance Authority and also for the observation of the Enquiry Officer that the charge of loss of Rs.34,709/- to the establishment could not be supported in absence of supporting material, further, for the observation of the Enquiry Officer that there is no evidence or proof to establish that the Charged Officer (C.O.) with ulterior motive has shown undue favour to the Contractor. It is in the above background, Mr. Mohanty, learned counsel for the petitioner submitted that petitioner has been punished with dismissal from service, which is

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contrary to the observation in the enquiry report and in absence of any material proof. Mr. Mohanty, learned counsel for the petitioner submitted that the conclusion of the Enquiry Officer is not based on any supportive document. Further the conclusion arrived at by the Enquiry Officer also remains contrary to his own observation at several places in the enquiry report. It is also alleged by Mr. Mohanty that the above aspect has not been considered by the Disciplinary Authority while passing the impugned order, and therefore, the punishment awarded by the Disciplinary Authority under Annexure-3 should go for having no support of material evidence and the decision of the Disciplinary Authority. In the alternative, learned counsel for the petitioner also submitted that even assuming the charges established the punishment imposed by the Disciplinary Authority appears to be disproportionate to the quantum of offence.

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4. Mr.Debaranjan Roy, learned counsel appearing on behalf of opposite parties on the basis of instruction of the opposite parties as new counsel in opposition to the submission of learned counsel for the petitioner, taking this Court again to the report of the Enquiry Officer as well as

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the observation made by the Enquiry Officer submitted that for the categorical recording of the Enquiry Officer that the measurement has been taken by the Charged Officer is false, to this claim made by petitioner there is no material available on record to establish the finding against the petitioner otherwise. For the concluding observation of the Enquiry Officer, the Disciplinary Authority only on the basis of observation passed the order of dismissal against the petitioner from service, vide Annexure-3. Mr. Ray, learned counsel for the contesting opposite parties on the above premises submitted that for the nature of offence involving the Junior Engineering, the petitioner, unless drastic action of dismissal is taken, the recurring of such offence cannot be restricted. Mr.Ray, therefore, prays this Court for dismissing the writ petition for having no merit.

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5. Considering the rival contentions of the parties, this Court finds, petitioner was admittedly involved in connection with measurement of construction of compound wall involving a contract given to Shri K.K.Sundaray in the year 1994. It is after ascertaining that there has been

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excess payment to the Contractor for illegal calculation/measurement in involvement of the petitioner as

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well as the then S.D.O., the Technical Wing of the Vigilance Department on being informed, took the measurement and on finding certain discrepancies between the actual construction and the measurement on the basis of which the payment to the Contractor was made, on the allegation of inflated measurement and excess payment to the tune of Rs.34,709/-, resulting loss to the Establishment, charges were accordingly framed involving the petitioner as well as the then S.D.O. Considering the charges levelled against the petitioner and as a consequence of the enquiry report, the Disciplinary Authority dismissed the petitioner from service by passing order at Annexure-3. Taking into account the allegation made at the instance of the petitioner by the learned counsel for the petitioner and the order of dismissal, this Court having glanced to the document at Annexure-1 appearing to be the enquiry report involving the petitioner, finds the Enquiry Officer has the following

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recording:

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“The P.O. presented the case and gave clarification on the measurement, which has been taken as Ext.8. The C.O. gave a statement in his defence, which is taken under Exhibit-9. The P.O. could produce the Measurement Book after recovering the same from the State Vigilance Office. He,

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however, could not produce the actual measurement taken by the technical wing of the Vigilance for necessary verification.”

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The Enquiry Officer has also made the following

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observation :

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“C.O. took the measurement of the compound wall and metal/sand spreading work for Jatni S/S on 25.8.94 and 15.1.95, which was in excess of the actual work done in case foundation wall and metal spreading. This was detected by the technical wing of the State Vigilance on 17.1.95 and they made an assessment that the Board has sustained a loss of Rs.34,709.00 towards excess payment made to the contractor.”

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6. On the discussion of article of charges, the

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Enquiry Officer has given the following recordings :

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“When the measurement taken by the technical Wing of the Vigilance department could not be obtained by the Presenting Officer for presentation before the E.O., the P.O. himself took the measurement of the foundation and the super-structure of the compound wall.”

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Again in the same report, the Enquiry Officer has

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also made clear recording of the submission of Charged Officer that he had no technical knowledge to take the measurement of civil work. In the observation at Page-23, the Charged Officer has indicated as follows:

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“In absence of the document showing actual measurement taken by the Vigilance,

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it could not be established if there is a loss of Rs.34,709/-. It is also established that no actual measurement has either been taken by C.O. or the S.D.O. before entering in the Measurement Book.”

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This Court here observes that the observation made by the Enquiry Officer contradicts his own measurement under the first instance reflected herein at Page-24 of the Measurement Book.

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7. The Charged Officer has clearly made the following observation:

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“It could not be established that there was a loss of Rs.34,709.00 in absence of any supporting documents.

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There is no evidence or proof to establish that the C.O. with ulterior motive, has shown undue favour to the contractor.”

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8. It is in view of the above observation of the

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Enquiry Officer, this Court finds, the concluding observation no doubt clearly contradicts his own observation in the report itself. It is in this view of the matter, this Court finds,

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the dismissal order at Annexure-3 being based on defective enquiry report, the same is unsustainable in the eye of law. This Court, therefore, interferes with the order of dismissal

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at Annexure-3 and sets aside the same. For the

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superannuation of the petitioner in the meanwhile this

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Court further directs the opposite party-Employer at present to calculate the retiral dues of the petitioner, as admissible in law, and release the same along with interest @6% all through. Since the petitioner has already superannuated in the meantime, the entire exercise shall be completed within a period of three months from the date of communication of copy of this order by the petitioner.

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The writ petition thus succeeds. There shall be

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no order as to cost.

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BISWANATH RATH, J.

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Orissa High Court, Cuttack. Dated 17^th November, 2020/Uks, PA

Mohan Sundar Patra v. Cesco.

Case brief

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Mohan Sundar Patra v. Cesco.

Case brief

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