Lalit Mohan Baral Vs Central Ele.Supply

ORISSA HIGH COURT : CUTTACK

W.P.(C) No.1717 of 2002

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

Lalit Mohan Baral Aged about 56 years Son of Late Madhu Baral Resident of Village: Nrutanga P.S.: Mahanga, District: Cuttack, Working as Junior Engineer (Under Suspension) Office of the Executive Engineer Cuttack Electrical Division Central Electricity Supply Company of Orissa Limited Cuttack.

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… Petitioner -VERSUS-

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1. Central Electricity Supply Company of Orissa Limited Having its Registered Office at 11 Floor, IDCO Towers, Janpath Bhubaneswar, District: Khordha Represented by its Chief Executive Officer.

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2. Enquiry Officer- cum -Superintending Engineer (Enquiry and Investigation)

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CESCO Head Quarters Office Bhubaneswar.

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3. Executive Engineer (Elect.), Cuttack Electrical Division Central Electricity Supply Company of Orissa Limited Cuttack.

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4. Tata Power Central Odisha Distribution Ltd. TPCODL Corporate Office Power House Square, Unit-8 Bhubaneswar, District: Khordha Represented by its Chief Executive Officer. … Opposite parties

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Counsel appeared for the parties:

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For the Petitioner : Mr. Nirmal Chandra Mohanty, Advocate

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For the Opposite parties : Mr. Bibudhendra Dash, Advocate

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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 : 18.02.2025 :: Date of Order :

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25.02.2025

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O R D E R

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Challenging the imposition of major penalty by order dated 07.08.2002 passed by Opposite Party No.1, the petitioner has knocked the doors of this Court invoking

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the provisions of Articles 226 and 227 of the Constitution of India, with the following prayer(s):

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“Under the circumstances, it is most humbly prayed that the Hon‟ble Court be graciously pleased to issue Rule Nisi calling upon the Opp. Parties to show cause as to why the report of the Enquiry Officer in Disciplinary Proceeding No.8 dated 02.02.2002 and the order of the opposite party No.1 dated 07.08.2002 imposing major penalty of dismissal should not be quashed and if the opposite parties fail to show cause or show insufficient cause make the said rule absolute;

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And further direct the Opp.Parties to exonerate the charge levelled against the petitioner and reinstates him in service with all service benefits.

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And/or pass any other appropriate order(s)/direction(s) as this Hon‟ble Court thinks fit and proper;

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And Admit and allow this writ application with cost;

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And for which act of your kindness, the petitioner shall as in duty bound ever pray.”

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Facts:

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2. Facts, as adumbrated by the writ petitioner, reveal that the petitioner, who was serving as Junior Engineer (Electrical), Badachana Electrical Section, was placed under suspension by Office Order dated 22.11.2001 in contemplation of Disciplinary Proceeding.

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2.1. The allegations for initiation of the Disciplinary Proceeding, inter alia , were:

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(i) Even though on 05.01.2001 one 63 KVA Transformer was released from the store for replacement at Jemadeipur Sub-Station, he did not install the same till 15.10.2001.

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(ii) The Petitioner collected a sum of Rs.6,000/from nine consumers under Jemadeipur SubStation against total outstanding arrear of Rs.93,044/-. Out of such collection of Rs.6,000/-, a sum of Rs.5,400/- was shown towards arrear collection and balance amount of Rs.600/- was shown as expenses incurred towards transportation of Transformer.

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2.2. Therefore, the petitioner was charged with:

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(i) Negligence in duty;

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(ii) Doubtful integrity; and (iii) Misconduct.

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2.3. Responding to such charge-sheet, the petitioner submitted his reply and the Enquiry Officer appointed vide order dated 28.02.2002, conducted enquiry. In his report submitted to the Opposite Party No.1 the Enquiry Officer held the petitioner guilty of Charge No.(i), i.e ., negligence in duty and Charge No.(iii), i.e ., misconduct and exonerated him from the charge of doubtful integrity.

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2.4. Consequent upon such report, the petitioner was instructed to show-cause why punishment of dismissal from service would not be inflicted as disciplinary measure.

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2.5. The Opposite Party No.1 accepted the finding of Enquiry Officer and imposed penalty of dismissal from service vide Office Order dated 07.08.2002. Before the said dismissal order could be served on the petitioner, the petitioner approached this Court enclosing copy of the said Office Order dated 07.08.2002 issued by the Chief Executive Officer, CESCO, Bhubaneswar. In the present writ petition, this Court on 27.08.2002 passed the following order:

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“ Heard Mr. N.C. Mohanty, learned counsel for the petitioner.

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Issue notice to the opposite parties by registered post with A.D. returnable within six weeks. Steps shall be taken by 29.8.2002.

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In the meanwhile, the impugned order of dismissal dated 07.08.2002 shall remain stayed and the petitioner will be allowed to work as Junior Engineer (Electrical) as before and shall be paid his salary.

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Urgent certified copy of the order be granted on proper application.”

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2.6. By virtue of the aforesaid interim order of this Court, the petitioner continued in service till he attained the age of superannuation on 31.03.2004.

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2.7. However, after retirement, the petitioner was reappointed as Engineering Resource Personnel by GRIDCO and posted at Grid Sub-Station, Kendrapara on 02.11.2004. On 21.04.2005, the petitioner’s service was extended for a further period of six months.

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Hearing:

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3. Responding to the notice issued, the opposite parties have filed counter affidavit. Pleadings, being completed and exchanged among the counsel for respective parties, on their consent, this matter is taken up for final hearing.

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3.1. Accordingly, heard Sri Nirmal Chandra Mohanty, learned counsel appearing for the petitioner and Sri Bibudhendra Dash, learned counsel appearing for the opposite parties and the matter stood reserved for preparation and pronouncement of Order.

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Rival contentions and submissions:

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4. Sri Nirmal Chandra Mohanty, learned counsel appearing for the petitioner submitted that though charge was issued against the petitioner for “doubtful integrity”, the same could not be substantiated by the Enquiry Officer

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which has been accepted by the Disciplinary Authority. The only charge which proceeded further in the Disciplinary Proceeding was collection of Rs.6,000/-. Against such charge, it was explained by the petitioner that such a fact was within the knowledge of Indenting Officer and the Releasing Officer. On collection of Rs.5,400/-, the petitioner was compelled to replace the Transformer as per the instructions of the SubDivisional Officer. So far as the collection of Rs.600/from the consumers separately towards transportation expenses is concerned, it was clarified that the consumers on their own arranged a tractor and transported the Transformer to the spot and handed over Rs.600/- to the petitioner for payment to the tractor owner. It is explained that such payment of transportation charges by the consumers is the prevailing practice in CESCO as the same was being utilised for benefit of the Company. The Enquiry Officer has recorded the following facts:

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“ Five years before the Super Cyclone, the L.T. conductor inside the village had been removed due to non-payment of arrears. After super cyclone, during restoration of lines, the L.T. conductor had been restrung but due to burning of Transformer again they had been without supply since September, 2000. After they knew that one 63 KVA Transformer has been released for their Substation, they have collected Rs.600/- each and paid to the J.E., Badachana towards their arrear dues for which they

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have received the money receipt from the J.E. And further they have paid Rs.600/- to the J.E. for transportation of the repair transformer for installation in Jemdeipur S/S by hiring private vehicle (Tractor) and that some outsiders have made false allegations in the name of their village (Exhibit No.6). From this it is seen that the nine consumers of Jemadeipur village have paid Rs.5400/- towards revenue arrears and paid Rs.600/- (Privatel to J.E.) for hire of private vehicle and transporting the 63 KVA transformer to the site by the J.E. Sri Baral. This fact is also admitted by Sri Baral, J.E. (Elec) (C.O.) in his statement. From this it is clear that Rs.5,400/- collected towards arrear Revenue collection from 9 consumers of Jemadeipur village had been duly accounted for by the J.E. on 03.10.2001.”

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4.1. However, the Enquiry Report though did not find fault with the collection of Rs.5,400/-, it is stated that the Superintending Engineer of the Circle should have arranged for private vehicle on the requisition of the Field Officer in the event no vehicle was available for transportation. However, the utilization of Rs.600/- paid by the consumers for the purpose of transportation was irregular. Such being the fact, the Enquiry Officer has recorded the following conclusion:

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“ Thus, it is observed that the charge leveled against Sri L.M. Baral, J.E. (C.O) that he has neglected in his duty is established due to the fact he had violated CESCO procedure by accepting Rs.600/- from the consumers for transporting on hired vehicle the department (sic) and that he has replaced the burnt transformer in Jemadeipur Substation without collecting sufficient arrear revenue

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and only collecting Rs.5400/- out of outstanding of Rs.93,044/-.

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In the observations about it is nowhere seen that Sri Baral, J.E. has collected illegal money from any source for his own, and now here he has availed personal benefit. Hence doubtful integrity of the charged officer does not stand.”

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4.2. It is submitted that though there was failure to substantiate the allegation of “doubtful integrity” for procedural violation, the collection of Rs.600/- from the consumers for payment to the tractor owner towards transportation charges has been viewed adversely against the petitioner leading to awarding punishment of dismissal from service vide Office Order dated 07.08.2002 issued by the Chief Executive Officer, CESCO, Bhubaneswar.

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4.3. Sri Nirmal Chandra Mohanty, learned counsel appearing for the petitioner vehemently contended that the punishment of dismissal from service does not commensurate with the alleged charges; as such the punishment runs contrary to ratio laid down in B.C. Chaturvedi Vrs. Union of India, (1995) 6 SCC 749 and Bhaskar Chandra Mohapatra Vrs. The Disciplinary Authority, UCO Bank, 2015 (II) OLR 1042 .

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5. Sri Bibudhendra Dash, learned counsel appearing for the opposite parties submitted that approaching this

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Court directly circumventing alternative remedy available to the petitioner warrants dismissal of this writ petition. Sri Dash, learned counsel submitted that by virtue of the order of dismissal being stayed, the petitioner continued till 31.03.2004, i.e ., the date on which the petitioner retired from service on attaining the age of superannuation. Since the Enquiry Officer found the petitioner guilty of misconduct and negligence in duty, the order of dismissal is justified which needs no interference by this Court.

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5.1. It is submitted by Sri Bibudhendra Dash, learned counsel for the opposite parties that under judicial review, there is little scope for interference in the imposition of penalty as a result of Disciplinary Proceeding. He strenuously contended that if this Court finds the punishment awarded is shockingly disproportionate to the charges proved, the Disciplinary Authority is required to be afforded an opportunity to revisit the punishment.

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Discussion and conclusion:

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6. This Court heard the rival contentions advanced by the learned counsel for the respective parties.

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7. The objection as to maintainability of writ petition as raised by Sri Bibudhendra Dash, learned counsel for the opposite parties is taken up first.

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7.1. It is contended by the opposite parties that existence of alternative remedy shall be a bar for entertainment of the writ petition. Per contra, it is the submission of the counsel for the petitioner that such a dictum cannot be construed as rigid principle inasmuch as availability of alternative remedy cannot be, in every circumstance, pose as absolute bar for entertainment of writ petition.

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7.2. The record reveals that this Court on 27.08.2002, even prior to service of order of dismissal (Annexure-10) on the petitioner, granted interim order of stay. Pursuant to such order, the petitioner continued in service till he attained the age of superannuation. It is borne on record that even after the petitioner got retired on the aforesaid date, he was re-engaged in service till 31.10.2005. Such a fact presupposes that the allegation against the petitioner has been obliterated by the employer.

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7.3. It is also matter of record and not disputed by either of the parties that the petitioner has been granted provisional pension (Annexure-11).

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7.4. Nonetheless, this Court having issued notice and kept the matter pending since 2002, it would unjust and cause serious impact on the petitioner, who had been retired since 31.03.2004. After twenty-two years of pendency, it would be imprudent to relegate the petitioner to avail alternative remedy.

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7.5. In this regard, the observation of the Hon’ble Supreme Court in the case of State of U.P. Vrs. Ehsan, 2023 SCC OnLine SC 1331 may be pertinent to be referred to. At paragraph-28 of the said judgment, the following observation is made by the Hon’ble Supreme Court of India:

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“28. We are conscious of the law that existence of an alternative remedy is not an absolute bar on exercise of writ jurisdiction. More so, when a writ petition has been entertained, parties have exchanged their pleadings/affidavits and the matter has remained pending for long. In such a situation there must be a sincere effort to decide the matter on merits and not relegate the writ petitioner to the alternative remedy, unless there are compelling reasons for doing so. One such compelling reason may arise where there is a serious dispute between the parties on a question of fact and materials/evidence(s) available on record are insufficient/inconclusive to enable the Court to come to a definite conclusion.”

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7.6. In the case of State of Uttar Pradesh Vrs. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti, (2008) 12 SCC 675 , the Hon’ble Supreme Court of India at paragraph-38 observed as follows:

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“38. With respect to the learned Judge, it is neither the legal position nor such a proposition has been laid down in Suresh Chandra Tewari, AIR 1992 All 331 that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. It is

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no doubt correct that in the headnote of All India Reporter (p. 331), it is stated that “petition cannot be rejected on the ground of availability of alternative remedy of filing appeal”. But it has not been so held in the actual decision of the Court. The relevant para 2 of the decision reads thus : (Suresh Chandra Tewari case, AIR 1992 All 331, AIR p. 331)

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„2. At the time of hearing of this petition a threshold question, as to its maintainability was raised on the ground that the impugned order was an appealable one and, therefore, before approaching this Court the petitioner should have approached the appellate authority. Though there is much substance in the above contention, we do not feel inclined to reject this petition on the ground of alternative remedy having regard to the fact that the petition has been entertained and an interim order passed. ‟

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Even otherwise, the learned Judge was not right in law. True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ court. It has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that a writ petition is not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court

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cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ petition albeit wrongly and granted the relief to the petitioner.”

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7.7. Having had regard to the facts of the present case vis-àvis the proposition of law as enunciated by Courts, this Court considering that the employer-CESCO, which did dismiss the petitioner, is no more in existence and at present TPCODL (opposite party No.4) has taken over said company. It is pertinent to take cognizance of the fact that the petitioner has been extended the benefit of pension after retirement and he was also given extension in service post-retirement.

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7.8. Under the above premise, the objection raised by Sri Bibudhendra Dash, learned counsel appearing for the opposite parties against entertainment of this writ petition is rejected.

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8. Thus, this Court takes up the issue whether the punishment of dismissal from service awarded to the petitioner is disproportionate to the proved allegations.

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8.1. Though charge of “doubtful integrity” was levelled against the petitioner, the same could not be proved by

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the Enquiry Officer. Such fact was also accepted by the Disciplinary Authority without any variation.

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8.2. The only allegation, on which the major punishment has been inflicted, as conceded by the learned counsel for both sides, that collection of Rs.600/towards transportation of Transformer and payment being made to the Tractor owner. The facts are not disputed.

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8.3. There is no allegation of misappropriation of said amount by the petitioner. It is alleged that there was procedural irregularity. The circumstance under which such collection being made was explained by the petitioner during course of enquiry as well as before the Disciplinary Authority. It appears from the record that such a factual explanation has not been considered in its right earnest. Therefore, this Court on appraisal of facts and perusal of record is persuaded to discern that the allegation of collection of Rs.600/- is on flimsy ground. It is not the case of the opposite parties that after collecting Rs.6,000/-, the petitioner did not deposit Rs.5,400/- towards arrear dues of consumers and paid Rs.600/- to the tractor owner for transportation of transformer.

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8.4. Therefore, this Court is of considered view that the order of major punishment does not commensurate with the charges levelled and established/proved.

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8.5. This Court is fortified by the observations made by the Hon’ble Supreme Court of India in B.C. Chaturvedi Vrs. Union of India, (1995) 6 SCC 749. Reference be had to B.C. Chaturvedi (supra), wherein it has been observed as follows:

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“18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.

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22. The aforesaid has, therefore, to be avoided and I have no doubt that a High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief, which power it undoubtedly has, in view of a long line of decisions of this Court, to which reference is not deemed necessary, as the position is well settled in law. It may, however, be

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stated that this power of moulding relief in cases of the present nature can be invoked by a High Court only when the punishment/penalty awarded shocks the judicial conscience.

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23. It deserves to be pointed out that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice, and if moulding of relief would do complete justice between the parties, the same cannot be ordered. Absence of provision like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo Singh Vrs. State of Punjab, AIR 1963 SC 1909 that the High Courts too can exercise power of review, which inheres in every court of plenary jurisdiction. I would say that power to do complete justice also inheres in every court, not to speak of a court of plenary jurisdiction like a High Court. Of course, this power is not as wide as which this Court has under Article 142. That, however, is a different matter.”

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8.6. It is also relevant to have reference to the following observations rendered by the Hon’ble Supreme Court in the case of Rathin Ghosh Vrs. West Bengal State Electricity Distribution Company Limited (2021) 16 SCC 695 :

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“20. We are conscious of the scope of judicial review by the High Court and this Court in reference to

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disciplinary proceedings. A three-Judge Bench of this Court in B.C. Chaturvedi Vrs. Union of India, (1995) 6 SCC 749, in para 18 has laid down parameters of judicial review in the disciplinary proceedings to the following effect:

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„18. ***‟

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21. There cannot be any dispute to the proposition that disciplinary authority has exclusive power to impose appropriate punishment keeping in view the magnitude and gravity of misconduct. The punishment to be imposed on a delinquent employee has to be proportionate to the charge and in event punishment is disproportionate, the delinquent has to be held to be given discriminatory treatment violating Article 14. The test as has been approved by this Court is that the High Court and this Court can interfere with the punishment imposed by the disciplinary authority when it shocks the conscience of the Court. The present is a case where the punishment is so disproportionate to the charge that it clearly shocks the conscience of the Court. The charges which were held to be proved were not any such charges on which punishment of dismissal could have been imposed. Further, when the payment of air ticket which was got prepared by travel agent of M/s Secure Meters was ultimately made by the appellant, which was not disbelieved in the proceedings and no other material or evidence extending any benefit to M/s Secure Meters

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were on the record, there was no occasion of awarding extreme punishment.”

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8.7. This Court in the case of Bhaskar Chandra Mohapatra Vrs. The Disciplinary Authority, UCO Bank, 2015 (II) OLR 1042 having taken note of many observations in catena of decisions including that of B.C. Chaturvedi (supra), held in paragraphs-15 and 16 as follows:

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“15. Reliance has been placed on Lucknow K. Gramin Bank Vrs. Rajendra Singh, AIR 2013 SC 3540 by the opposite party -Bank, wherein the apex Court has held that punishment which is to be awarded to the delinquent is for the Disciplinary Authority to decide not for the Court. The quantum of punishment even if found disproportionate matter has to be referred back to disciplinary authority to take fresh decision and Court cannot usurp jurisdiction of disciplinary authority and decide the punishment subject to exception laid down in the said judgment.

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16. Considering the above law laid down by the apex Court and this Court and taking into consideration the factual matrix of the case in hand, this Court is of the considered view that since there is noncompliance of the provisions contained in subRegulation 13 of Regulation 6, the authorities have acted in utter disregard to the provisions of law governing the field, the order of punishment imposed by the Disciplinary Authority vide Annexure-7 dated 24.06.2008 and confirmation made thereof by Appellate Authority vide order dated 03.02.2010 in Annexure-10 cannot sustain in the eye of law and accordingly, the same are quashed. The matter is

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remitted back to the Disciplinary Authority to reenquire into the matter in consonance with the 1976 Regulations. While conducting such enquiry the authority may take into consideration the inspection report referred to in Annexure-12 and dispose of the same as expeditiously as possible preferably within a period of four months from the date of receipt of a copy of this judgment by affording opportunity to the parties. Needless to say that during pendency of the writ petition since the petitioner has already attained the age of superannuation, both the parties are directed to cooperate for early disposal of the proceeding within the time stipulated by this Court. It is further directed that pendency of this proceeding cannot disentitle the petitioner to get his legitimate claim as due and admissible to him in accordance with law.”

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9. It is next contended by Sri Bibudhendra Dash, learned counsel appearing for the opposite parties, as has been already taken note of, that in the event this Court feels that major punishment awarded to the petitioner is disproportionate to the charges proved, the matter could be remanded to the Disciplinary Authority for fresh consideration as has been held in Bhaskar Chandra Mohapatra (supra) . This Court is not inclined to accede to such a request made by the learned counsel for the opposite parties simply for the reason that the awarded punishment is made way back in the year 2002 by the Chief Executive Officer, Central Electricity Supply Company, Bhubaneswar and at this length of time, the

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CESCO is no more in existence and in its place, opposite party No.4-Tata Power Central Odisha Distribution Limited (TPCODL) has taken over the said Company. This apart, this Court takes cognizance of the fact that after the petitioner is allowed to work pursuant to an interim order dated 27.08.2002 of this Court, he continued till the date of attainment of superannuation. The petitioner was also re-engaged to work as Engineering Resources Personnel (Junior Executive) till 31.10.2005. This Court appreciates the fact, as revealed from Annexure-11 enclosed to the additional affidavit dated 17.08.2017 that the petitioner has been granted provisional pension acknowledging the fact by the CESCO authority that the petitioner had worked since 11.11.1972 till 31.03.2004 (31 years, 4 months and 20 days), which is apparent in the pension calculation sheet. In such view of the matter, this Court repels the prayer of the learned counsel appearing for the opposite parties for passing order of remit for fresh consideration by the Disciplinary Authority.

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10. Having diligently considering the rival contentions and each point raised before this Court during the course of hearing, this Court is, thus, inclined to set aside the order dated 07.08.2002 (Annexure-10) passed by Opposite Party No.1. Having thus set aside the order dated 07.08.2002 imposing major penalty of dismissal

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from service, it is needless to say that all consequential service as also financial benefits shall be extended to the petitioner by the opposite parties.

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11. In the result, this writ petition stands disposed of.

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(MURAHARI SRI RAMAN)

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Signature Not Verified

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JUDGE

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Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-inCharge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Feb-2025 16:31:48

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High Court of Orissa, Cuttack

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The 25^th February, 2025//Aswini/MRS/Laxmikant

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Lalit Mohan Baral v. Central Ele.Supply

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Lalit Mohan Baral v. Central Ele.Supply

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