Allowed

Saroj Kumar Padhi v. State of Odisha

Orissa HC1 Oct 2024WP(C)/11825/2023

Case brief

AI extract

What is this about?

The High Court quashed departmental proceedings initiated 17 years after the alleged incident due to unexplained inordinate delay and prejudice caused to the petitioner near retirement. The court applied Supreme Court precedents holding that such delay warrants quashing proceedings to avoid mental agony.

What did the court decide?

Quashing of Memorandum dated 15.12.2022 enclosing Articles of Charge; entitlement to all retirement benefits to be disbursed within three months.

Saroj Kumar Padhi Vs State of Odisha — Service and Employment | Orissa HC (2024)

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ORISSA HIGH COURT: CUTTACK

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W.P.(C) No.11825 OF 2023

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In the matter of an Application under Articles 226 and 227 of the Constitution of India; 1950

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Saroj Kumar Padhi Aged about 59 years Son of Late Raghunanandan Padhi House No.44, Arabinda Nagar, 1^st Lane Berhampur-1, Ganjam At present working as Superintending Engineer R.W. Division, Keonjhar District: Keonjhar … Petitioner.

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-VERSUS-

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State of Odisha, Represented through its Principal Secretary Works Department Bhubaneswar, District: Khordha. … Opposite party.

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Counsel appeared for the parties:

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For the Petitioner : Mr. Gyana Ranjan Sethi and Ms. Babita Kumari Pattanaik, Advocates For the Opposite party : Mr. Arnav Behera, Additional Standing Counsel

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W.P.(C) No.11825 of 2023

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P R E S E N T:

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HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN

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Date of Hearing : 01.10.2024 :: Date of Order

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: 01.10.2024

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ORDER

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MURAHARI SRI RAMAN, J.—

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Assailing the communication of charges alleging failure to survey and conduct inspection of road work relating to the years 2002-05 enclosed to Memorandum No. 18150— WORKS-CON-CASE5-0098-2015/W., dated 15.12.2022 (Annexure-4) issued by the Principal Secretary to Government of Odisha in Works Department indicating institution of departmental proceeding under Rule 15 of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962, the Petitioner has approached this Court by way of this writ petition invoking extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India with the following prayers:

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“It is therefore humbly prayed that this Hon’ble Court may graciously be pleased to admit the case, call for the records and after hearing both the parties pass the following reliefs;

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i) To quash the departmental proceeding initiated against the petitioner under Annexure-4.

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ii) To declare the actions of the opposite party in withholding promotion of petitioner on account of departmental proceeding initiated against the petitioner under Annexure-4.

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iii) To direct the opposite parties to grant all financial, service and consequential benefits consequent upon quashing of departmental proceeding under annexure-4.

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iv) And pass such other order/orders as may be deemed fit and proper for the interest of justice.

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And for this act of kindness, the petitioner asin duty bound shall ever pray.”

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2. Shorn off unnecessary details of facts, suffice it to narrate as is revealed from writ petition.

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2.1. The petitioner, appointed as Stipendiary Engineer on 19.11.1991, continued as Assistant Engineer since 2001 on ad hoc basis, and consequent upon validation Act, the service of petitioner was regularized. Upon cadre restructure, the post of Assistant Executive Engineer was redesignated as Executive Engineer (Civil). Consequently, by virtue of order dated 18.07.2014 the petitioner having got promotion to the rank of Deputy Executive Engineer on ad hoc basis was allowed regular promotion in the rank of Executive Engineer (Civil) on recommendation of the Odisha Public Service Commission (“OPSC” for short) vide order dated 11.08.2017.

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2.2. While continuing in the post of Executive Engineer (Civil) of Works Department, the petitioner was considered for further promotion to the rank of Superintending Engineer (Civil) on ad hoc basis in Level-14 of the pay matrix under the Odisha Revised Scale of Pay Rules, 2017 vide notification dated 30.09.2021. As claimed by the petitioner he is now eligible for further promotion to the rank of Additional Chief Engineer.

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2.3. While the matter stood thus, the Department for an incident of 2002-05, in the year 2023 served Memorandum dated 15.12.2022 indicating institution of Departmental Proceeding under Rule 15 of the Odisha Civil Service (Classification, Control and Appeal) Rules, 1962 (“OCS (CCA) Rules”, for brevity) for alleged negligence of duty and breach of thrust. It is inter alia alleged vide Memorandum dated 15.12.2022 as follows:

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“During inspection it was found that the road from Chandapur to Berhampur has been executed for a length of 6.841 KM. In this road the concrete road length is 1.011 KM and B.T.Road is 5.8294 KM. In the B.T. Road, it was seen that number of pot holes, depressions and Crocodiles cracks have been developed and subsequently repaired. Even after repair further pot holes, depressions and Crocodiles cracks have also been developed. In concrete road also cracks noticed in two places. It was due to inadequate survey. Investigation has not properly been done considering the site condition of black cotton soil base. The road condition is not satisfactory and it may be due to in adequate engineering treatment to the base of the said road which is mainly passing through treacherous black cotton soil. Thus, it is found that ShriSaroj Kumar Padhy, Assistant Engineer, Rural Works Sub-

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division, Digapahandi while supervising the execution and regarding check measurement had not applied his engineering mind and prepared the same without adequate survey and investigation of the site for which the Road failed and developed defects within one year of construction. ***”

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2.4. Being dissatisfied with the action of the opposite party in institution of Departmental Proceeding at the fag end of his service career citing lapse during the period 2002-05, the petitioner has filed the present writ petition.

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3. Ms. Babita Kumari Pattanaik, learned counsel for the petitioner submitted that it transpires from the Memorandum dated 15.12.2022 (Annexure-4) that the alleged defective road work found in course of inspection by the Vigilance Technical Wing in the presence of the Engineers of R.W. Division-II related to the years 200205 and it took around 17-18 years for the department to institute the Departmental Proceedings without any explanation with respect to the inordinate delay.

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3.1. Placing reliance on the decisions of the Hon’ble Supreme Court in the cases of State of Madhya Pradesh and another Vs. Bani Singh and another 1990 (Supp) SCC 738 and P.V. Mahadevan Vs. MD., T.N. Housing Board, (2005) 6 SCC 636 and the judgment of this Court dated 06.11.2023 rendered by Single Bench in Sri Surath Chandra Mishra Vs. State of Odisha and others , in W.P.(C) No.33496 of 2021 being confirmed by a Division Bench vide order dated 23.07.2024 in State of Odisha

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Vs. Sri Surath Chandra Mallick in W.A. No. 55 of 2024, Ms. Babita Kumari Pattanaik, learned counsel vehemently contended that in absence of any explanation by the opposite parties for the delay caused in institution of Departmental Proceeding, the same is vitiated and is, therefore, liable to be quashed.

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3.2. She went on to submit that since 2002-05 the petitioner has got three promotions, i.e ., Deputy Executive Engineer, Executive Engineer and Superintending Engineer which itself is indicator to show that there was no breach of trust nor negligence in duty on the part of the petitioner. It is only when the promotion for the post of Additional Chief Engineer was due in 2023 the Departmental Proceeding has been foisted, which smacks not only whimsical approach but also arbitrary on the part of the opposite party.

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4. Sri Arnav Behera, learned Additional Standing Counsel referring to State of Madhya Pradesh and another Vs. Akhilesh Jha, (2021) 12 SCC 460 submitted that mere delay in instituting the Departmental Proceeding cannot be a factor for consideration to quash the said proceeding. He has reiterated what has been stated at Paragraphs 11 and 12 of the counter affidavit, contents of which are reproduced herein below:

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“11. That, in reply to the averments made in Para-12 to Para-16 of the Writ Petition, it is humbly submitted that, a Berhampur Vigilance File No.04 dated 16.02.2006 was initiated against the petitioner and six (06) others on the allegation that the Delinquent Officers did not properly surveyed the road and the condition of soil which is black cotton soil for which the road developed numbers of potholes, depression and cracks within one year of construction of the work, i.e., “road works from R.D. road to Limiganon, Goudagoan and (2) From Chandapur to Bhramarpur road executed under PMGSY during the year 20002001”. The General Administration (Vigilance) Department, Cuttack vide their Letter No.1490/V.SS(S), dated 11.03.2008 submitted the Enquiry Report of the SP, Vigilance, Berhampur along with the draft charges against the petitioner and six (06) others to institute Disciplinary Proceedings against them. In view of the erstwhile General Administration Department Circular No.4835, dated 21.02.2015 regarding check list on institution of Departmental Proceedings, the General Administration (Vigilance) Department, Cuttack were requested vide this Department Letter No.12779/W., dated 07.11.2015, Letter No.4366/W., dated 06.03.2020, Letter No.3988/W., dated 22.03.2021 and Letter No.12125/W., dated 03.09.2022 to furnish the authenticated copies of relevant documents as shown in the Memos of Evidence to substantiate the charges against the Delinquent Officers. ***

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12. That, in reply to the averments made in Para-17 to Para-20 of the Writ Petition, it is humbly submitted that, the Disciplinary Proceedings in question was

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instituted vide Memorandum No.18150/W., dated 15.12.2022. The Delinquent Officers were called upon to submit their Written Statement of Defence within thirty (30) days from the dated of receipt of the Memorandum.As reported by the Engineer-inChief (Civil), Odisha, Bhubaneswar, the Memorandum was served on him on dt. 05.01.2023 and in response, he submitted his Written Statement of Defence on 03.02.2023. Thereafter, on examination of the Written Statement of Defence so received, an Inquiring Officer was appointed on dt.22.03.2023. In the meantime, the Inquiring Officer has submitted his report to the Department. As such, there is no delay in processing the Disciplinary Proceedings itself. Also, the Delinquent Officers have all along participated in the enquiry process. ***”

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4.1. The facts on record clearly reveals the position that a Disciplinary Proceeding has been instituted by framing charges, which are made part of the Memorandum dated 15.12.2022 wherein the incident of improper survey and inspection of road work executed under the Prime Minister Gramin Sadak Yojana (2002-05) has been narrated with material particulars.

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5. Perusal of record and scrutiny of counter affidavit do not justify long delay of around 17-18 years has not been explained by the opposite party. It is also on record that from the year 2002-05 to till 2022, the petitioner has been promoted to the different ranks, viz., Deputy Executive Engineer, Executive Engineer and

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Superintending Engineer and he was due to be considered for promotion to the rank of Additional Chief Engineer in the year 2023.

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6. Ms. Babita Kumari Pattanaik, learned counsel for the petitioner has submitted that dubious design has been hatched against the petitioner only thwart promotion to the rank of Additional Chief Engineer. This Court going through contents of paragraphs 11 and 12 of the counter affidavit (extracted herein above) finds no explanation, much less proper/sufficient, proffered by the opposite party. Nothing transpires from the record to show as to why it took around 17-18 to institute Departmental Proceeding with respect to incident of 2002-05 and it has been initiated at the fag end of the career that too when his promotion to the rank of Additional Chief Engineer was pending consideration. The action of the authority concerned appears to be exceptionable inasmuch as inordinate delay in institution of Departmental Proceeding has not been explained.

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7. This Court is fortified with the position set forth by the Hon’ble Supreme Court of India rendered in the case of Bani Singh (supra) and P.V. Mahadevan (supra) .

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7.1. In the State of Madhya Pradesh Vs. Bani Singh, 1990 (Supp) SCC 738 it has been observed as follows:

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“3. O.A. No.102 of 1987 was filed by the same officer against Initiation of departmental enquiry proceedings and issue of charge-sheet on April-22, 1986 in respect of certain incidents that happened in 1975-76 when the said officer was posted as Commandant 14th Battalion SAF Gwalior. By the order dated December 16, 1987 the Tribunal quashed the charge memo and the Departmental enquiry on the ground of inordinate delay of over 12 years in the initiation of the departmental proceedings with reference to an incident that took place in 1975-76. In the order dated January 25, 1988 the Tribunal allowed the prayer for quashing the adverse entries in the ACR for the year 1979-80 and granted the prayer for retrospective promotion to the selection grade from 1979 when the juniors of the respondent’s batch were promoted. In regard to the third relief prayed for the Tribunal directed the government to constitute special review committee to consider the promotion of the officer to the Supertime Scale post of DIG, with effect from the date his junior was promoted, on merits in accordance with the directions given in the judgment. These two appeals have been filed against those two orders as already stated.

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4. The appeal against the order dated December 16, 1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned counsel. The irregularities which were the subject matter of the enquiry is said to have

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taken place between the years 1975-77. it is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977 there was doubt about the involvement of the officer in the said irregularities and unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal’s orders and accordingly we dismiss this appeal. ***”

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7.2. In P.V. Mahadevan Vrs. MD, T.N. Housing Board, (2005) 6 SCC 636 referring to the aforesaid judgment the Hon’ble Supreme Court has been pleased to observe as follows:

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“3. Mr. V. Prabhakar, learned counsel for the appellant submitted that the charge memo had been issued in the year 2000 for the irregularity in issuing a sale deed in 1990 to one Mr. A.N. Beemaiah who was an employee of the Housing Board and was to superannuate shortly. Mr. Prabhakar also submitted that though the records were very much available with therespondent, no action has been taken against the appellant since 1990 for about 10 years; that no explanation whatsoever was offered by the Housing Board for the inordinate delay in initiating the disciplinary action against the appellant. Mr. Prabhakar placed strong reliance on the following

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two decisions of this Court in (i) State of M.P. Vrs. Bani Singh and (ii) State of A.P. Vrs. N. Radhakrishan and submitted that the High Court did not even consider any of these judgments, which were specifically referred in the writ petition.

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***

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6. Mr. Prabhakar also invited our attention to the affidavit filed by the appellant in support of his case. It is stated in para 14 of the affidavit that the respondent with mala fide intention issued the present charge memo against the appellant even though the alleged incident of issuance of sale deed was of the year 1990, which was 10 years prior to the issuance of charge memo and that the very reason for issuing charge memo was that the appellant could be detained from being promoted to the post of Chief Engineer of the Housing Board.

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7. The very same ground has been specifically raised in this appeal before this Court wherein it is stated that the delay of more than 10 years in render the departmental proceedings vitiated and that in the absence of any explanation for the inordinate delay in initiating such proceedings as made in the writ petition.

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11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher Government official under charges of corruption and disputed integrity would cause

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unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a Government employee should, therefore, be avoided not only in the interests of the Government employee but in public interest andalso in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer .

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12. We, therefore, have no hesitation to quash the charge memo issued against the appellant. The appeal is allowed. The appellant will be entitled to all the retrial benefits in accordance with law. the retrial benefits shall be disbursed within three months from this date. No costs. ***”

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7.3. It is also noteworthy to have reference to a coordinate Bench decision of this Court in the case of Sri. Surath Chandra Mallick Vs. State of Odisha and another (supra), wherein it has been observed as follows:

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“10. The petitioner has demitted the office on attaining the age of superannuation on 30th April, 2023. The petitioner has also succeeded before the learned

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Central Administrative Tribunal. Therefore, notional promotion to the cadre of IAS under Regulation 55 has been directed to be granted and the consequential service and financial benefits has been restored. The only grievance left to be addressed in the writ petition is the tenability of the long pending departmental proceeding.

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14. Be that as it may, by the time the Vigilance Department carried out the house search on 12.10.2010, the up to date property statement of the petitioner had already been filed on 15.09.2009. Moreover, the vigilance case registered against the petitioner in the year 2011 has not even progressed an inch. Even the charge sheet has not yet been filed. Three promotions meanwhile have been given to the petitioner. It is trite to say that the disciplinary proceeding must be conducted soon after the alleged irregularities are committed or soon after discovery of the irregularities. That cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes task of proving the charge difficult for the department. As such, it is also not in the interest of the administration. Delayed initiation of proceeding is bound to give room for allegation of bias, mala fide and misuse of power. If the delay is too long and is unexplained, the Court should interfere and quash the entire proceeding. But how long a delay is too long is the question stares on the face of record of every case.

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15. In the instant case, delay of the initiation of the departmental proceeding is about ten years. That

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apart, the timing of initiation of the proceeding also smacks mala fide intention. The departmental proceeding was initiated on 03.12.2020 whereas, the petitioner’s name was recommended for promotion to the IAS cadre on 17.12.2020. The department chose not to initiate the proceeding against the petitioner for ten years, rather granted three promotions meanwhile and all of a sudden, issued memo just 14 days before his name was considered for promotion to the IAS cadre. Therefore, initiation of the departmental proceeding is not only hit by delay and latches but also poised with mala fide intention. Hence, this Court considers it appropriate to quash the departmental proceeding initiated against the petitioner. ***”

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7.4. The said matter was carried before the Division Bench in W.A. No.55 of 2024 wherein this Court while affirming the judgment of learned Single Judge made the following observation:

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“5. Mr. Sameer Kumar Das, learned counsel representing on behalf of the respondent has submitted that learned Single Judge has rightly taken note of the Supreme Court’s decision in the case of the State of Madhya Pradesh Vrs. Bani Singh and Another, AIR 1990 SC 1308 and M. Bijlani Vrs. Union of India reported in (2006) 5 SCC 88, while quashing the impugned office memorandum. Before reaching the conclusion that in the absence of any satisfactory explanation for inordinate delay in the issuance of the charge memo, the disciplinary proceeding deserved to be quashed, he contends. He has submitted that the said opinion

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recorded by the learned Single Judge is legally sound and does not require any interference. He has however submitted that he has no objection if the finding of mala fide recorded in the impugned judgment is expunged.

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6. After having considered rival submissions made on behalf of Mr. Mishra, learned Additional Government Advocate and Mr. Das, learned counsel for the respondent, we are of the view that the impugned decision to be extent it has quashed the disciplinary proceeding does not suffer from any legal infirmity requiring this Court’s interference in an intra-court appeal. In the case of Bani Singh (Supra), the departmental proceeding was initiated 12 years after the department was aware of the involvement of the officer in the irregularities. In the absence of any justifiable explanation, the Supreme Court in the case of Bani Singh has upheld the decision the Central Administrative Tribunal to quash the departmental proceeding.

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7. However, the finding of mala fide recorded the impugned order stands expunged, in the absence of any specific pleading in the writ petition in that regard. It goes without saying that the State shall be at liberty to proceed against the respondent, in accordance with law, depending upon the outcome of the criminal case. ***”

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7.5. This Court also takes note of the fact from the cause title of the writ petition that the petitioner is at the age of 59 years in the year 2023 and at the verge of his retirement and just before being considered for promotion to the

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rank of Additional Chief Engineer he was served with the Memorandum dated 15.12.2022. By way of submission, Ms. Babita Kumari Pattanaik, learned Advocate brought to the notice of this Court that neither Criminal Case nor Vigilance Case is pending against the petitioner.

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7.6. The decision rendered by Hon’ble Supreme Court of India in Akhilesh Jha (supra), as referred by Sri Arnav Behera, learned Additional Standing Counsel, has no application on the facts and in the circumstances of the case and the said reported case is distinguishable. The said judgment in Akhilesh Jha (supra) turned on the fact as follows:

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“2. The first respondent was posted as Superintendent of Police at Alirajpur from June 2012 to June 2015. It has been alleged that in spite of the instructions issued by the Inspector General of Police, Indore Zone to disband the “Gunda Squad”, the first respondent constituted, supervised and operated the squad. It has been alleged that on 1-6-2014, individuals belonging to such a squad, acting under the supervision of the first respondent arrested an accused who was taken into custody after being called to the police station by the members of the Gunda Squad. The person, who was under interrogation, died in custody on 03.06.2014. A Magisterial enquiry was conducted into the custodial death and a report was submitted on 10.10.2014. The report contained observations against the first

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respondent on his role in illegally constituting the squad.

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***

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6. The Tribunal, by its order dated 05.01.2018 [Akhilesh Jha Vrs. Union of India, 2018 SCC OnLine CAT 28635] , quashed the charge-sheet issued to the first respondent. The following three grounds weighed with the Tribunal:

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(i) There was a delay of nearly two years;

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(ii) The charges were ambiguous; and

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(iii) The High Court had expunged the remarks in the Magisterial enquiry which was held to enquire into the custodial death.

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15. The line of reasoning which weighed with the Tribunal is plainly erroneous. The Tribunal would have been justified in directing the expeditious conclusion of the enquiry, but instead, it proceeded to quash the enquiry in its entirety. This, in our view, was clearly impermissible. Every delay in conducting a disciplinary enquiry does not, ipso facto, lead to the enquiry being vitiated. Whether prejudice is caused to the officer who is being enquired into is a matter which has to be decided on the basis of the circumstances of each case. Prejudice must be demonstrated to have been caused and cannot be a matter of surmise. Apart from submitting that the first respondent was unable to proceed on deputation or to seek promotion, there is no basis on which it could

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be concluded that his right to defend himself stands prejudicially affected by a delay of two years in concluding the enquiry. The High Court, therefore, in our view, has clearly failed to properly exercise the jurisdiction vested in it by simply affirming the judgment of the Tribunal. The judgment of the Tribunal suffered from basic errors which go to the root of the matter and which have been ignored both by the Tribunal as well as by the High Court.”

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7.7. As it appears in the aforesaid judgement in Akhilesh Jha (supra), the Hon’ble Supreme Court was considering the Disciplinary Proceeding which was instituted with a delay of two years and observed that there was no prejudice caused in affording right to defend. The facts of Akhilesh Jha (supra) is distinguishable from Bani Singh (supra), P.V. Mahadevan (supra) and Sri Surath Chandra Mallick (supra) .

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7.8. In the present case firstly, the petitioner was at the verge of retirement and it took 17-18 years for institution of the Departmental Proceeding with respect to an incident that took place during 2002-05. This apart, the petitioner has been deprived of consideration of promotion to the rank of Additional Chief Engineer by issuing the Memorandum enclosing Charges in 2022 and serving the same in the year of 2023. It is in the opinion of this Court that in the instant case there is prejudice caused to the petitioner. This Court also takes

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cognizance of the fact that during 2002-05 and 2023, the petitioner has got three promotions.

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8. As a consequence of observation made above, keeping in view the ratio of judgments referred to supra and for the reasons ascribed in the foregoing paragraphs, the writ petition deserves to be succeeded. Accordingly, the Memorandum dated 15.12.2022 enclosing therewith the Articles of Charge (Annexure-4) stands quashed for nonassignment of explanation as to undue delay of around 17 years in instituting Departmental Proceeding.

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9. Accordingly, the writ petition is allowed.

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9.1. As a consequence thereof, the petitioner is entitled to all the benefits including the retirement benefit in accordance with law, which shall be decided and disbursed within a period of three months from this date.

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9.2. There shall be no order as to costs.

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(MURAHARI SRI RAMAN) JUDGE

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High Court of Orissa, Cuttack

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Signature Not Verified The 01^st October, 2024//Laxmikant/Suchitra

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Digitally Signed

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Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2024 20:00:57

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Saroj Kumar Padhi v. State of Odisha

Case brief

What is this about?

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Saroj Kumar Padhi v. State of Odisha

Case brief

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