Quashed

Dr. Satyapriya Dash v. State of Odisha

Orissa HC18 Jan 2023WPC(OAC)/3106/2018

Case brief

AI extract

What is this about?

The High Court of Orissa quashed a disciplinary punishment order imposed on a government employee. The court held that the disciplinary authority violated principles of natural justice by issuing a second show-cause notice based on reasons contrary to the inquiry report and without recording its own disagreement, under Rule 15 of the OCS (CCA) Rules, 1962.

What did the court decide?

The impugned punishment order is quashed. The disciplinary authority is directed to reconsider the leave application and pass an appropriate order within two months.

Dr. Satyapriya Dash Vs State of Odisha — Pension and Retirement Benefits | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C)(OAC) No.3106 of 2018

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Dr. Satyapriya Dash

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Petitioner

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-versus-

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State of Odisha & Ors.

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…. Opposite Parties

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CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY

ORDER

18.01.2023

Order No

07. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

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2. The present writ petition has been filed by the Petitioner challenging the order of punishment passed by the Govt.-O.P. No. 1 on 07.05.2021 vide Annexure-14.

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3. The facts giving rise to filing of the present writ petition is that the Petitioner while continuing as an ADVO (D.C.) at Malkanagir, he was placed under suspension vide order dtd.29.01.2018 under Annexure-1 and subsequently a proceeding was initiated against him under Rule 15 of the OCS (CCA) Rules, 1962 vide Memorandum dtd.28.06.2018 under Annexure-7. The following charges are framed against the Petitioner in the said proceeding:-

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“1. Unauthorized absence from duty.

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2. Misbehavior to higher authority.

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3. Negligence in duty.

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4. Violation of Government Conduct Rules.

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5. Gross Misconduct.”

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3.1. After receipt of the charges the Petitioner submitted his written state of defence and thereafter the Enquiry Officer proceeded with the enquiry. The Enquiry Officer after completion of the enquiry submitted the report vide letter dtd.21.01.2020 under Annexure-9.

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// 2 //

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The finding of the Enquiry Officer as reflected in the report is quoted hereunder:-

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“From the recorded evidence as well as the statement of witness during the enquiry process it was revealed that the allegations made against Dr. S.P. Dash, Ex-ADVO (DC), Malkanagiri could not be clearly ascertained/proved.”

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3.2. The O.P. No. 1 after receipt of the enquiry report issued the 1^st show-cause by enclosing a copy of the enquiry report and the petitioner submitted his representation on 10.06.2020 vide Annexure-10 inter alia indicating therein that the Petitioner accept the enquiry report and accordingly prayed for disposal of the proceeding. But thereafter, without considering the case of the Petitioner in its proper perspective, O.P. No. 1 issued the 2^nd showcause on 23.02.2021 under Annexure-12 by proposing to impose the following punishment:-

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“1. Withholding of one increment without cumulative effect.

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2. The period of suspension be traeted as such.”

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3.3. The Petitioner though submitted his reply to the said showcause, but the O.P. No. 1 without proper appreciation of the grounds taken by the Petitioner, passed the impugned order of punishment on 07.05.2021 under Annexure-14.

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4. Dr. J.K. Lenka, learned counsel for the Petitioner contended that since the proceeding was initiated under Rule 15 of the OCS (CCA) Rule, 1962 and the Enquiry Officer while submitting the report, did not found anything against the Petitioner, the O.P. No. 1 while issuing the 2^nd show-cause, should have issued the disagreement note and the reason for disagreeing with the finding of the Enquiry Officer. It is contended that the same having not been followed,

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Page 2 of 7

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// 3 //

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which violates Rule 15 of the OCS (CCA) Rules, 1962, the order of punishment passed against him under Annexure-14 is not sustainable in the eye of law.

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4.1. Dr. Lenka in support of his aforesaid submission relied of 2 (two) decisions of the Hon’ble Apex Court reported in the case of Punjab National Bank & Ors. The Chief Personnel Vs. Sh. Kunj Behari Mishra, Sh. Shanti Prasad Goel (Civil Appeal No. 7433 of 1995) and another decision reported in the case of Allahabad Bank & Ors. Vs. Krishna Narayan Tewari (Civil Appeal No. 7600 of 2014) .

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4.2. Hon’ble Apex Court in the case of Punjab National Bank has held as follows:-

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“The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result, thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.”

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// 4 //

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4.3. Similarly, Hon’ble Apex Court in the case of Allahabad Bank in Para 7 has held as follows:-

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“7. We have given our anxious consideration to the submissions at the bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a Departmental Authority on the basis of defence available on record. But it is equally true that in a case where the Disciplinary Authority cords a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at the writ court would be justified if not duty bound to examine the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case Non-application of mind by the Enquiry Officer or the Disciplinary Authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the Disciplinary Authority and the Appellate Authority. The respondent's case that the enquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defence has not been effectively rebutted by the appellant More importantly the Disciplinary Authority does not appear to have property appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the Appellate Authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the Disciplinary Authority. All told the Enquiry Officer, the Disciplinary Authority and the

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// 5 //

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Appellate Authority have faltered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the Disciplinary Authority and the Appellate Authority.”

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5. Even though notice of the writ petition was issued by the Tribunal on 01.03.2019 and the matter was listed on several occasion, but no counter affidavit has been filed by the State-Opp. Parties. However, Mr. Balabantaray, learned AGA made his submission basing on the materials available on record. It is contended that since the Enquiry Officer in Para 3 & 5 of his report found that the Petitioner remained on leave without making proper application, O.P. No. 1 while issuing the 2^nd show-cause assigned the said reason for disagreeing with the finding of the Enquiry Officer. Accordingly, it is contended that since the O.P. No. 1 has given the disagreement note while issuing the 2^nd show-cause, no illegality or irregularity has been committed by the said Authority in imposing the order of punishment under Annexure-14 after consideration of the reply made by the Petitioner.

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6. I have heard Dr. J.K. Lenka, learned counsel for the Petitioner and Mr. M.K. Balabantaray, learned AGA appearing for the StateOpp. Parties as well as Mr. S.B. Jena, learned counsel appearing for the OPSC. On their consent the matter was finally heard at the stage of admission and disposed of vide the present order.

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7. Having heard learned counsel for the Parties and after going through the materials available on record, this Court finds that the O.P. No. 1 while issuing the 2^nd show-cause, has taken the following reason for disagreeing with the report of the Enquiry Officer:-

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Page 5 of 7

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“The inquiry report brings out the Delinquent Officer had frequently availed leave without prior approval of the competent authority.”

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7.1. To the aforesaid stand of the O.P. No. 1, this Court finds that the Petitioner on different occasion though remained on leave, but he has made necessary application to that effect and the said fact is apparent in the communication issued by the C.D.V.O., Malkanagiri on 26.07.2018 under Annexure-5. Therefore, it cannot said that the Petitioner remained on frequent leave without making any application and issuance of the 2^nd show-cause on that ground is not acceptable.

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7.2. This Court after going through Para 3 & 5 of the enquiry report, also finds that the Enquiry Officer has never indicated that the Petitioner remained on frequent leave without making any application. Therefore, it is the view of this Court that the O.P. No. 1 without proper appreciation and without following the provision contained under Rule 15 of the OCS (CCA) Rules, 1962 issued the 2^nd show-cause under Annexure-12 on 23.02.2021. The reason assigned by the O.P. No. 1 while issuing the second show-cause is not sustainable on the face of the communication issued under Annxuire-5 and the finding of the Enquiry Officer in Para 3 & 5 of his report.

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7.3. Therefore, this Court finds that O.P. No. 1 without following the provision contained under Rule 15 of the OCS (CCA) Rules, 1962 issued the 2^nd show-cause and without considering the reply given by the Petitioner, imposed the order of punishment under Annexure-14. In view of such material irregularity committed by the O.P. No. 1 and the decisions relied on by Dr. Lenka as cited (supra), this Court is inclined to interfere with the impugned order

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passed under Annexure-14. While interfering with the same, this Court is inclined to quash the order at Annexure-14. While quashing the same, this Court further directs that the leave as due and admissible and recommended by the CDVO, Malkanagiri under Annexure-5 be considered and appropriate order be passed by O.P. No. 1 on it within a period of two (2) months from the date of receipt of this order.

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8. The writ petition is disposed of with the aforesaid observation and direction.

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(Biraja Prasanna Satapathy)
Judge
Sneha

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Dr. Satyapriya Dash v. State of Odisha

Case brief

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Dr. Satyapriya Dash v. State of Odisha

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