Jitendra Kumar Singh Vs State of Odisha

Being aggrieved by the order dated 06.04.2023 passed by the Appellate Authority-Additional Director General of Police, SAP, Odisha, Bhubaneswar in respect of six appellants (constables) confirming the order dated 03.12.2022 passed by the Disciplinary Authority-Commandant (SAG), OISF, Bhubaneswar in Proceeding File No.14 of 2019, whereby the petitioner, constable, has been awarded punishment of dismissal from service with effect from 03.12.2022 for his gross misconduct, gross indiscipline conduct, disobedience of order, revolt against lawful authority and insubordination towards his senior officers in contravention to Rules 3 and 4 of Odisha Government Servants’ Conduct Rules, 1959 and Section 8 of the Odisha Industrial Security Force Act, 2012, the present writ petition has been filed craving to invoke extraordinary jurisdiction of this Court under Articles 226 & 227 of the Constitution of India with the following prayer(s):

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“Under such circumstances it is therefore prayed that your lordships would graciously pleased to admit this writ application call for

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records & after hearing the parties may be pleased to issue a writ/s, order/s, direction/s in the nature of certiorari quashing the order of dismissal dt.3.12.2022 passed by the commandant OISF Bhubaneswar under Annexure-10 as well as the order of the Appellate Authority dt.6.4.2023 under Annexure-12

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And further may issue a writ of mandamus directing the authority to re-instate him in service with all consequential service benefits, within a stipulated period as this Hon‟ble Court deems just & proper.

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And further may pass any other Order/s, Direction/s, as this Hon‟ble Court deems fit proper to give relief to the petitioner. And for this act of kindness the petitioner as in duty bound shall ever pray.”

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Facts as adumbrated in the writ petition reveal that the petitioner was initially appointed as a Constable/250 on 30.04.2016 on contractual basis in the Odisha Industrial Security Force under the opposite parties and performed his duties sincerely and diligently to the satisfaction of the authority concerned.

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3.1. It is alleged that on 21.03.2019 at about 9.40 a.m. while Sri S.K. Rath, OA PSI Deputy Commandant, OISF, Bhubaneswar was briefing the personnel at OISF Camp Cyclone Centre, Jatni for deputation to OISF Camp, Vedanta, Lanjigarh for security duty, the petitioner was instigating other constables for not proceeding to said Camp for security duty in an indisciplined manner with insubordination.

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3.2. It is further alleged that the petitioner had demanded withdrawal of force from OISF Camp, Vedanta, Lanjigarh and raised many slogans against the administration. While Deputy Commandant, Sri S.K. Rath was being led away from the Camp, while performing sentry duty at the main Gate, the petitioner did not open the main Gate to get Deputy Commandant H.K. Rath out of the Camp. When driver C/583, Santosh Kumar Nayak, tried to bring the Government vehicle out of the Camp,

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the petitioner deliberately closed the main Gate. Thereafter, few of them pelted stone and bricks to the backside glass of the vehicle, as a result of which the vehicle got damaged.

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3.3. It is also alleged that during that time, most of the persons gathered there have abused in filthy languages and shouted in loud voice and also raised slogans.

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3.4. In view of the aforesaid allegations, the proceedings were initiated against the petitioner along with others and an F.I.R. was also lodged against them in Police Station vide Jatni P.S. Case No.102 dated 24.03.2019 for the alleged commission of offences under Sections 341, 294, 323, 353, 332, 427, 506 read with Section 34 of the Indian Penal Code, 1860.

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3.5. Basing on the proceeding initiated, the petitioner was called to submit explanation on 24.04.2019, responding to which he submitted his explanation on 08.05.2019 controverting the allegations made against him.

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3.6. Thereafter, the Commandant, OISF, Bhubaneswar vide Office letter No.388/R.O. (OISF) dated 24.05.2019 called for preliminary explanation from the petitioner, in compliance to which preliminary explanation was furnished before the said authority.

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3.7. In consideration thereof, the authority has initiated a disciplinary proceeding against the petitioner vide Proceeding File No.14 dated 24.05.2019 and framed the following charges against him:-

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“C/250 Jitendra Kumar Singh of OISF, Bhubaneswar is charged with gross misconduct, gross indiscipline conduct, disobedience of order, revolt against lawful authority and insubordination towards Senior Officers in contravention to Rule-3 & 4 of O.G.S.C.R-1959 and Section-8 of OISF Act-2012 in that,

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On dtd.21.03.2019 at about 9.40 AM, while Sri H.K. Rath, OAPS-I, Dy.Commandant, OISF, BBSR was briefing force personnel at OISF Camp, Cyclone Shelter, Jatni for deputation to OISF Camp, Vedanta, Lanjigarh for security duty, he was instigating to other Constables for not proceed to OISF Camp, Vedanta, Lanjigarh for security duty in an indiscipline, insubordination & baseless manner. He also demanded for withdrawal of force from OISF Camp, Vedanta, Lanjigarh and raised many slogans against the administration. While Dy.Commandant H.K. Rath was being led away from Camp, he was performing sentry duty at Main gate did not open the main gate. However Dy.Subedar (Adjt.) Gayadhar behera interfered and opened the gate to get Dy.Commandant H.K. Rath out of Camp. When Driver C/583 Santosh Kumar Nayak tried to bring the Govt. vehicle out of the Camp, he knowingly closed the Main gate. In this connection Dy.Commandant H.K. Rath, Subedar Bibekananda Mohanty, Camp I/C, OISF, Cyclone Shelter, Jatni, Dy.Subedar (Adjt.) Gayadhar behera, Dy.Subedar Srikanta Mallick and C/583 Santosh Kumar Nayak (Driver of Govt. vehicle “TATA SUMO” bearing Regd. No.OD-05Y-5580), OISF submitted separate reports against him. In this regard, Dy.Commandant H.K. Rath gave a report to the IIC Jatni PS for lodging of FIR vide D.R. No.815/OISF dtd.23.03.2019. Basing on his report, Jatni PS Case No.102 dtd.24.03.2019 U/s.341/294/323/353/332/427/506/34 IPC had lodged against him. On the basis of the above reports, he was called for an explanation on 24.04.2019 and he submitted his reply on 07.05.2019 which is self-explanatory.

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Being a member of the discipline department, such type of behavior, attitude, instigation of force to disobey lawful order & indulge in criminal acts with an intention to cause physical harm, highhanded approach and utter disregards rules/orders, amounts to gross misconduct, gross indiscipline conduct, disobedience of order, revolt against lawful authority and insubordination towards Senior Officers in contravention to Rule-3 & 4 of Odisha

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Govt. Servants Conduct Rules-1959 & Section-8 of OISF Act2012.

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As such, he is directed to submit his preliminary explanation within 30 days from the date of receipt of the charge, as to why suitable departmental disciplinary action shall not be taken against him in the event of charges being held to be proved against him.

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Any representation that he wishes to make in this regard will be duly considered by the authority competent to pass final order before passing such order.”

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3.8. On the basis of the aforesaid charges, the petitioner filed his preliminary explanation controverting the allegation made therein. In his reply he has categorically stated that all the charges framed against him are baseless and unspecific, for which he may be exonerated from all the charges. Thereafter, the petitioner also filed his written defence before the Enquiring Officer reiterating the same fact and also explained his innocence in the said incident.

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3.9. Thereafter, upon such allegation an enquiry was conducted by the Enquiring Officer, but without appreciating the reply and the evidence adduced by the petitioner, by order dated 12.09.2019 it is held that the charges framed against the petitioner in Proceeding No.14 of 2019 are well proved. Basing on the said report, order was passed by the Disciplinary Authority directing the petitioner to submit his 1^st showcause explanation against the findings of the Enquiring Officer. Relevant portion of the first order of show-cause passed by the Disciplinary Authority vide order dated 26.09.2019 reads as thus:

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“***

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After going through the Proceeding File in details, I am of the view that the prudent E.O. has conducted the proceeding enquiry in a free and fair manner without bias attitude and adopting the

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principles of natural justice. Also fair & reasonable opportunities has been extended to the charged officer to defend his case on all stages of proceeding enquiry and disprove the charge levelled against him. But he has utterly failed to prove his innocence during the course of enquiry. I do agree with the findings of the learned E.O.

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As such, the charged officer is directed to submit his 1^st show cause explanation against the findings of the E.O. within a fortnight from the date of receipt of this order. If no explanation is received within stipulated time, it will be presumed that he has nothing to represent anything against the findings of the E.O. and further orders in this regard as deemed proper will be passed accordingly.”

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3.10. In obedience to the above order, the petitioner has also filed his 1^st show-cause reply controverting the allegations made against him therein. In his reply he has categorically explained that the allegation brought against him is wrong, baseless, unspecific and based on no evidence. The Disciplinary Authority being not satisfied with the 1^st show-cause reply submitted by the petitioner, vide order dated 21.11.2019 while proposing to award him with punishment of “ Dismissal from Service”, directed him to submit his 2^nd show cause explanation stating as to why the above proposed punishment would not be inflicted on him. The relevant portion of the second show-cause order passed by the Disciplinary Authority reads as thus:

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“***

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In view of the above delinquency, it is proposed to award him with punishment of “Dismissal from Service”. He is directed to submit his 2^nd show cause explanation within 15 days from the date of receipt of this order as to why the above proposed punishment will not be inflicted on him. If he will not submit the 2^nd show cause explanation within the stipulated time, it will be

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presumed that he has nothing to represent anything against the proposed punishment and final order will be passed accordingly.”

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3.11. In response to the above order of the Disciplinary Authority, the petitioner has filed his reply denying his involvement in the alleged incident. In his reply he further explained that since enquiry was made without following the principle of natural justice, the proposed punishment of dismissal from service cannot withstand judicial scrutiny. Since the proceeding has been initiated without any material evidence available against him, the same would not be initiated against him and should be dropped. He has also mentioned in his explanation the order dated 10.07.2019 of the learned Tribunal passed in O.A. No.1988 of 2019, wherein it was clearly held that no final order would be passed in departmental proceeding without the leave of said Tribunal. Nonetheless, the Disciplinary Authority without considering the aforesaid reply of the petitioner proceeded to passed orders of dismissal from service on 03.12.2022.

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3.12. Being aggrieved by the aforesaid order of dismissal, the petitioner approached this Court by way of filing W.P.(C) No.35413 of 2022, which came to be disposed of vide order dated 22.12.2022 along with other similar writ petitions, made an observation that the said dismissal order dated 03.12.2022 being appealable one, the present petitioner and others are at liberty to approach the appellate authority by filing appropriate appeals.

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3.13. Pursuant to the aforesaid order dated 22.12.2022 passed by this Court in W.P.(C) No.35413 of 2022, the petitioner preferred an appeal before the Appellate Authority challenging the order dated 03.12.2022 passed by the Disciplinary Authority in Proceeding File No.14 of 2019.

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The Appellate Authority took up the appeal of the petitioner along with appeals by other constables for hearing and vide common order dated 06.04.2023 dismissed the batch of appeals of the petitioner and others. The relevant portion of the said order of the appellate authority reads as thus:

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“Copy of Orders passed by Sri R.P. Koche, IPS, Additional Director General of Police, SAP, Odisha, Bhhubaneswar on the appeal petitions of ex-constables, C/165 Debabrata Rath, C/457 Hatan Kumar Khatua, C/670 Jaya Prakash Mohanty, C/250 Jitendra Kumar Singh, C/05 Md. Noor Illahi and C/353 Rakesh Kumar Pradhan, submitted in accordance with orders passed vide Order No.01, dated 22.12.2022 and Order No.01, dated 14.12.2022 in W.P.(C) No.35397, 35409, 34209, 34247, 35413, 35393, 35400 of 2022, filed by them in Hon‟ble High Court of Orissa

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After receipt of the appeal petitions, the undersigned has carefully gone through the relevant records of the case to dispose of the appeal petitions. Based on the documents on record, it has come to a conclusion that there is no merit in the appeal petitions submitted by the dismissal Constables as they have indulged themselves in acts of gross misconduct, indiscipline of the highest order, disobedience of lawful orders, and insubordination. This is not expected from the members of a disciplined force.

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The Final Order passed by the Commandant, OISF, Bhubaneswar, against these 6 dismissed Constables, is justified and the undersigned finds no scope to interfere with the Final Order.

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In view of the above, the appeal petitions of ex-Constables, C/165 Debabrata Rath, C/457 Hatan Kumar Khatua, C/670 Jaya Prakash Mohanty, C/250 Jitendra Kumar Singh, C/05 Md. Noor Illahi and C/353 Rakesh Kumar Pradhan, being devoid of merit, are hereby rejected.”

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3.14. Being aggrieved by the aforesaid order of the Appellate Authority, the petitioner has approached this Court by filing the present writ petition with the prayer, as quoted earlier.

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Mr. C.R. Pattnaik, learned counsel appearing for the petitioner submitted that the impugned order dated 06.04.2023 passed by the Appellate Authority vide Annexure-12 confirming the order dated 03.12.2022 passed by the Disciplinary Authority vide Annexure-10 is untenable in the eye of law and the same be quashed. His alternative submission is that since the Appellate Authority decided the appeals preferred by the petitioner and others and passed a common order without considering the involvement of each one of the constables in the incident which led to initiation of disciplinary proceeding, the impugned appellate order does deserve to be quashed so far as the present petitioner is concerned.

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Ms. Saswata Pattnaik, learned Additional Government Advocate being assisted by Mr. Arnav Behera and Mr. Sailaza Nandan Das, learned Additional Standing Counsels appearing for the State vehemently contested the matter and urged that there is no necessity to show any leniency on the petitioner whose conduct is such that he has defied the orders of the superior authorities and collectively all the constables are attributed to the nature of charge framed.

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Minute reading of the Appellate Order transpires that but reiterating the incident leading to disciplinary proceeding, the Appellate Authority simply stated that there is no merit in the appeals and jumped to the conclusion that all the constables were “indulged themselves in accts of gross misconduct, indiscipline of the highest order, disobedience of lawful orders, and insubordination”. Said Order does not reveal any reason based on analysis of documents on record vis-a-vis explanation

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proffered by the petitioner. Though the incident did occur, but nothing in the order of the Appellate Authority demonstrates the nature of overt act or insubordination so far as the present petitioner is concerned. It is emanating from the facts that the petitioner was at the Gate and he did not obey the orders of the superiors, like Deputy Commandant. However, there is nothing placed on record by the opposite parties in their counter affidavit to show that there was any written instruction imparted to the petitioner, in particular, to open the gate.

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It is also submitted by Sri Chitta Ranjan Pattnaik, learned Advocate that other constables who were also present at the scene, proceeding against whom being dropped, the petitioner could not have been discriminated. This Court finds force in such submission. The Appellate Authority was, therefore, required to take into consideration the similarity in nature of charges framed. The Appellate Authority having not ascribed reason to subscribe the view of the Disciplinary Authority and discussed material against the petitioner so as to assess the tenor of insubordination and misconduct, his approach seems to be erroneous while deciding all the appeals by common order. The Appellate Authority was required to apply his mind independently while imposing penalty of dismissal. Reading of Appellate Order reflects that the Appellate Authority has disposed of appeals as if the same is empty formality.

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“Reason”, being heartbeat of every decision making process, it has been restated in Nareshbhai Bhagubhai Vrs. Union of India, (2019) 15 SCC 1 as follows:

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“In Kranti Associates (P) Ltd.Vrs. Masood Ahmed Khan, (2010) 9 SCC 496 this Court held that:

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“12. The necessity of giving reason by a body or authority in support of its decision came up for consideration before this Court in several cases. Initially this Court recognised a sort of demarcation between administrative orders and quasi-judicial orders but with the passage of time the distinction between the two got blurred and thinned out and virtually reached a vanishing point in the judgment of this Court inA.K. KraipakVrs.Union of India, (1969) 2 SCC 262.

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***

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47. Summarising the above discussion, this Court holds:

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(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

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(b) A quasi-judicial authority must record reasons in support of its conclusions.

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(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

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(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

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(e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.

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(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.

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(g) Reasons facilitate the process of judicial review by superior courts.

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(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.

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(i) Judicial or even quasi-judicial opinions these days can be as different as the Judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.

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(j) Insistence on reason is a requirement for both judicial accountability and transparency.

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(k) If a Judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.

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(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or “rubber-stamp reasons” is not to be equated with a valid decision-making process.

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(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decisionmaking not only makes the Judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. [See David Shapiro in “Defence of Judicial Candor”, (1987) 100 Harvard Law Review 731-37].

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(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz TorijaVrs. Spain, (1994) 19 EHRR 553, EHRR, at p. 562 para 29 and AnyaVrs.University of Oxford, 2001 EWCA Civ 405 (CA), wherein the Court referred to Article 6 of the European Convention of Human Rights which requires,„adequate and intelligent reasons must be given for judicial decisions‟.

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(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “due process”.”

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8.1. Conceding the position that giving reasons facilitates the detection of errors of law by the Court, this Court in Santosh Kumar Paikray Vrs. State of

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Odisha, 2016 (II) OLR 1131 (Ori) discussed importance of assignment of reason in the following lines:

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“8. The meaning of the expression „reason‟ as stated by Franz Schubert: „reason is nothing but analysis of belief.‟

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In Black‟s Law Dictionary, 5th Edition, „reason‟ has been defined as:

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„a faculty of the mind by which it distinguishes truth from falsehood, good from evil, and which enables the possessor to deduce inferences from facts and from propositions.‟

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In other words, reason means the faculty of rational thought rather than some abstract relationship between propositions and by this faculty, it is meant the capacity to make correct inferences from propositions, to size up facts for what they are and what they imply, and to identify the best means to some end, and, in general, to distinguish what we should believe from what we merely do believe. The importance of giving reason, it reveals a rational nexus between facts considered and conclusions reached.

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9. In Union of India Vrs. MadalLalCapoor, AIR 1974 SC 87 and Uma CharanVrs. State of MP, AIR 1981 SC 1915, the Apex Court held reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-judicial and reveal a rational nexus between the facts considered and conclusions reached. The reasons assure an inbuilt support to the conclusion and decision reached. The fair play requires recording of germane and relevant precise reasons when an order affects the right of a citizen or a person irrespective of the fact whether it is judicial, quasi-judicial or administrative. The recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record and it is vital for the purpose of showing a person that he is receiving justice.”

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8.2. In Steel Authority of India Limited Vrs. Sales Tax Officer, (2008) 9 SCC 407 the Hon’ble Supreme Court has laid down the ruling as follows for the Appellate Authorities with regard to manner of disposal of appeal:

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“7. Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same it becomes lifeless. (See Raj Kishore Jha Vrs. State of Bihar, (2003) 11 SCC 519.)

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8. Even in respect of administrative orders, Lord Denning, M.R. in Breen Vrs. Amalgamated Engg. Union, (1971) 2 QB 175 = (1971) 2 WLR 742 = (1971) 1 All ER 1148 (CA) observed (All ER p. 1154h):

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„The giving of reasons is one of the fundamentals of good administration.‟

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In Alexander Machinery (Dudley) Ltd. Vrs. Crabtree, 1974 ICR 120 (NIRC) it was observed:

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„Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at.‟

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Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the „inscrutable face of the sphinx‟, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reasons is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The „inscrutable face of the sphinx‟ is ordinarily incongruous with a judicial or quasi-judicial performance.” [Ed. : Quoting from State of Orissa v. Dhaniram Luhar, (2004) 5 SCC 568, p. 572, paras 7-8.]

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Considering the aforesaid facts and circumstances of the case, so also the submissions advanced by the learned counsel for the parties, the impugned order vide Annexure-12 is not sustainable in the eye of law. Therefore, this Court is inclined to exercise the power of judicial review and the impugned order dated 06.04.2023 under Annexure-12 does warrant indulgence. In the result, the writ petition succeeds. As a sequel to the aforesaid discussions, the impugned appellate order under

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Annexure-12 is set aside and the appeal is remitted to the Appellate Authority-opposite party No.3 for a fresh consideration of the appeal. Needless to say, he has to dispose of the appeal by a reasoned order dealing with all the points of challenge highlighted by the appellant with reference to each charge with reference to material on record. It goes without saying that the petitioner shall have to be given opportunity of personal hearing. On passing the order in appeal, the same be communicated to the petitioner forthwith. It is requested the Appellate Authority shall take up the hearing of appeal at the earliest and conclude the same as expeditiously as possible preferably not later than three months from today.

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With the aforesaid observations and directions, the writ petition stands disposed of.

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(M.S. Raman) Judge

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MRS/Laxmikant

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Signature Not Verified

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Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Sep-2024 20:19:09

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Jitendra Kumar Singh v. State of Odisha

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Jitendra Kumar Singh v. State of Odisha

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