Partly allowed

Aswini Kumar Ojha v. State of Odisha

Orissa HC18 Dec 2023WPC(OAC)/3779/2010

Case brief

AI extract

What is this about?

The High Court at Cuttack issued a relief in a writ petition challenging a dismissal order. The court quashed the appellate order dismissing the petitioner, noting that other employees with similar charges were merely reverted. The court remanded the matter for the appellate authority to reconsider and order the petitioner's reversion to a lower post instead of dismissal within two months.

What did the court decide?

The appellate order imposing dismissal is quashed; the matter is remanded to the Appellate Authority to decide on reversion to a lower post instead of dismissal within two months.

Aswini Kumar Ojha 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.3779 of 2010

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Aswini Kumar Ojha

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Petitioner

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Mr. G.R. Sethi, Advocate

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-versus-

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State of Odisha & Ors.

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…. Opposite Parties Mr. S.K. Samal, AGA

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CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY

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ORDER

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18.12.2023

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Order No 07. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

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2. Heard Mr. G.R. Sethi, learned counsel for the Petitioner and Mr. S.K. Samal, learned Addl. Govt. Advocate appearing for the Opp. Parties.

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3. The Petitioner has filed the present writ petition inter alia challenging the office order dtd.20.03.2009 so passed by the Opp. Party No. 2 under Annexure-5, so confirmed by the Appellate Authority - Opp. Party No. 1 vide order dtd.26.11.2010 under Annexure-8.

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4. It is contended that Petitioner while continuing as a Junior Clerk in the establishment of Opp. Party No. 2, a proceeding was initiated against him vide Annexure-1 dtd.20.11.2007 inter alia with the charge that Petitioner submitted a fake order alleged to have been passed by the Tribunal on 11.02.2003 in O.A. No. 3706(C) of 2001. In the said disciplinary proceeding Petitioner was imposed with the

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punishment of dismissal from service vide order dtd.20.03.2009 under Annexure-5. Against the said order Petitioner though preferred an appeal, but the Appellate Authority confirmed the order of punishment while rejecting the appeal vide order dtd.26.11.2010 under Annexure-8.

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4.1. Even though learned counsel for the Petitioner does not dispute the conduct of the Petitioner in submitting a fake order before the authority, but it is the main contention that similar nature of charge framed against other employees working in the self same establishment with regard to submission of fake order from the Tribunal were imposed with the punishment of reversion from service vide order under Annexure-7 series. But Petitioner with having similar nature of allegation to that of other four employees was removed from his service. It is contended that since Petitioner was charged with similar nature of charge as those of the four other employees, who were reverted from their post to a lower post, Petitioner should not have been dismissed from service. In support of his submission Mr. Sethi relied on a decision of the Hon’ble Apex Court so reported in (2013) 3 SCC 73 (Rajendra Yadab Vs. State of Madhya Pradesh & Ors.) . Hon’ble Apex Court in Para 8 to 12 of the said decision has held as follows:-

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“ 8. We have gone through the inquiry report placed before us in respect of the appellant as well as Constable Arjun Pathak. The inquiry clearly reveals the role of Arjun Pathak. It was Arjun Pathak who had demanded and received the money, though the tacit approval of the appellant was proved in the inquiry. The charge levelled against Arjun Pathak was more serious than the one charged against the appellant. Both the appellants and other two persons as well as Arjun Pathak were involved in the same incident. After having found that Arjun Pathak had a more serious role and, in fact, it was he who had demanded and received the money, he was inflicted comparatively a lighter punishment. At the same time, the

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appellant who had played a passive role was inflicted with a more serious punishment of dismissal from service which, in our view, cannot be sustained.

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9. The doctrine of equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The disciplinary authority cannot impose punishment which is disproportionate i.e. lesser punishment for serious offences and stringent punishment for lesser offences.

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10. The principle stated above is seen applied in a few judgments of this Court. The earliest one is DG of Police v. G. Dasayan [(1998) 2 SCC 407 : 1998 SCC (L&S) 557] wherein one Dasayan, a police constable, along with two other constables and one Head Constable were charged for the same acts of misconduct. The disciplinary authority exonerated two other constables, but imposed the punishment of dismissal from service on Dasayan and that of compulsory retirement on the Head Constable. This Court, in order to meet the ends of justice, substituted the order of compulsory retirement in place of the order of dismissal from service on Dasayan, applying the principle of parity in punishment among co-delinquents. This Court held that it may, otherwise, violate Article 14 of the Constitution of India.

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11. In Shaileshkumar Harshadbhai Shah case [(2006) 6 SCC 548 : 2006 SCC (L&S) 1486] the workman was dismissed from service for proved misconduct. However, few other workmen, against whom there were identical allegations, were allowed to avail of the benefit of voluntary retirement scheme. In such circumstances, this Court directed that the workman also be treated on the same footing and be given the benefit of voluntary retirement from service from the month on which the others were given the benefit.

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12. We are of the view that the principle laid down in the abovementioned judgments would also apply to the facts of the present case. We have already indicated that the action of

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the disciplinary authority imposing a comparatively lighter punishment on the co-delinquent Arjun Pathak and at the same time, harsher punishment on the appellant cannot be permitted in law, since they were all involved in the same incident. Consequently, we are inclined to allow the appeal by setting aside the punishment of dismissal from service imposed on the appellant and order that he be reinstated in service forthwith. The appellant is, therefore, to be reinstated from the date on which Arjun Pathak was reinstated and be given all consequential benefits as were given to Arjun Pathak. Ordered accordingly. However, there will be no order as to costs.”

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4.2. Mr. Sethi also relied on another decision of this Court reported in 2017(II) ILR-CUT-317 as well as the Judgment passed by this Court on 20.10.2022 in W.P.C.(OAC) No. 4116 of 2015.

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5. Mr. S.K. Samal, learned Addl. Govt. Advocate on the other hand contended that since Petitioner does not dispute with regard to the charges that he submitted a fake order from the Tribunal, Petitioner has been rightly imposed with the order of dismissal from service. Since admittedly Petitioner has committed fraud by producing a fake order, he does not deserve any sympathy.

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6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that with similar nature of charge i.e. submission of fake order from the Tribunal, employees working in the establishment of Opp. Party No. 2 have been imposed with punishment of reversion from a higher post to a lower post vide order under Annexure-7 series.

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6.1. Therefore, in view of such action taken by the authority in reverting those four (4) employees and dismissing the Petitioner from his services on similar allegation, this Court is inclined to quash the order under Annexure-8 for the present. While quashing the order at Annexure-8, this Court remits the matter to Opp. Party

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No. 1 to take a fresh decision on the claim of the petitioner for his reversion to a lower post instead of punishment of dismissal. The Appellate Authority-Opp. Party No. 1 is directed to take a fresh decision on the claim of the Petitioner for his revision to a lower post within a period of two (2) months from the date of receipt of this order. It is observed that while taking such decision, the relevancy and effects of the decision as cited (supra), be taken into consideration, if it is applicable to the case of the Petitioner.

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7. The writ petition is disposed of accordingly.

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(Biraja Prasanna Satapathy)
Judge
Sneha

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Signature Not Verified

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Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-Dec-2023 12:46:28

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Aswini Kumar Ojha v. State of Odisha

Case brief

What is this about?

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Aswini Kumar Ojha v. State of Odisha

Case brief

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