Siddheswar Behera Vs State of Odisha

Heard Mr. P.K. Mahapatra, learned counsel appearing for the Petitioner, Mr. S.P. Das, learned Addl. Standing Counsel appearing for the State-Opp. Party and Mr. T. Patnaik, learned counsel appearing for the Opp. Party No. 2.

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The present writ petition has been filed inter alia with the following prayer:-

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“In view of the aforesaid facts and circumstances as narrated above it is prayed that this Hon'ble Court be graciously be pleased to admit the Writ Petition and issue Rule Nisi or any other appropriate Writs against the Opp. parties calling upon the opposite parties to show cause as to why the order of punishment at Annexure-9, Annexure-10 & Annexure-11 shall not be set aside & they shall not be directed to treat the period of suspension from 06.04.2021 to 15.09.2023 as on duty with all consequential service & financial benefits;

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Page 1 of 6.

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And, if the Opp. Parties failed to show cause or show insufficient cause, make the said Rule absolute by setting aside the order of punishment at Annexure-9, Annexure-10 & Annexure-11 & direct the Opp. Parties to treat the period of suspension from 06.04.2021 to 15.09.2023 as on duty with all consequential service & financial benefits.

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And/or issue any other appropriate Writ/Writs, order/orders, direction/directions as deem fit and proper in the fitness of the case.

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

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It is contended that in the proceeding initiated against the Petitioner vide Memorandum dtd.26.11.2021 under Annexure-2, Petitioner after filing of his written statement of defence under Annexure-3, participated in the enquiry so conducted.

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4.1. Learned counsel appearing for the Petitioner contended that after completion of the enquiry, the Enquiry Officer submitted the report on 17.06.2023 under Annexure-5 inter alia with the following recommendation:-

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“8. Recommendation From the above discussion, facts and after careful study of the written statement of defence and final written statement of defence submitted by the delinquent officer, Sri Siddheswar Behera, deposition of APO & PW-1, deposition of the complainant & PW-2, observation of the recorded audio CD, it is concluded that the entire telephonic conversation as recorded in the audio CD was about the execution of official assignments to be done on the next day. But, the alleged statement in question was made without any ill-intention by the

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Page 2 of 6.

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delinquent officer. Hence, the delinquent officer may be 'CENSURED' on the charges labelled against him.”

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4.2. It is contended that after receipt of the enquiry report, Petitioner was issued with the 1^st show-cause in terms of the provisions contained under Rule 15(10)(i)(a) of the OCS (CCA) Rules, 1962 (in short Rules). On receipt of the same Petitioner submitted his reply under Annexure-6.

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4.3. It is contended that after receipt of the reply to the 1^st showcause and without issuing the 2^nd show-cause proposing the punishment, if any in terms of the provisions contained under Rule 15(10(i)(b) of the Rules, Petitioner was straight away imposed with the punishment vide order dtd.04.05.2024 under Annexure-9. Vide the said order Petitioner was imposed with the following punishment:-

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“i) Stoppage of two increments without cumulative effect, and

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ii) Censure.”

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4.4. Learned counsel appearing for the Petitioner while assailing the impugned order of punishment contended that since after issuance of the 1^st show-cause with submission of the reply under Annexure6, no 2^nd show-cause was issued in terms of the provisions contained under Rule 15(1)(i)(b) of the Rules, which is a mandatory requirement and order of punishment was straight away imposed vide the impugned order dtd.04.05.2024 under Annexure-9, the same is not sustainable in the eye of law because of non-compliance of the statutory provision. It is accordingly contended that the impugned order requires interference of this Court.

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Page 3 of 6.

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Learned Addl. Standing Counsel on the other hand made his submissions basing on the stand taken in the counter affidavit. While supporting the impugned order it is contended that since after consideration of the reply to the 1^st show-cause, the disciplinary authority found that Petitioner is guilty of the charges, the proceeding was disposed of with imposition of the punishment vide the impugned order on 04.05.2024 under Annexure-9. Stand taken in Para 9 of the counter affidavit reads as follows:-

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“9. That, it is humbly submitted that as submitted above, the petitioner has agreed to the complaint made against him by the Lady Tahasildar Ms. Sahu. So, it warrants punishment for the offence he has committed being a responsible Govt. employee.

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So far as the question of assigning any reason of disagreement and issue of show cause notice are concerned, it is submitted that the Disciplinary Authority enjoys the power vested u/r-15 of the Odisha Civil Services (Classification, Control & Appeal) Rules, 1962 of imposing minor penalties on the D.O. Further, the proposed punishment was minor in nature, not major [Rule-13 (vi) to (ix)] as prescribed u/r-13 of the Odisha Civil Services (Classification, Control & Appeal) Rules, 1962. As such, it was not necessary to serve 2nd Show Cause Notice on the petitioner. Therefore, the provision of Rule 15(10)(i)(b) has not been violated.”

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5.1. It is accordingly contended that no illegality or irregularity can be found with the impugned order.

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Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioner

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while in service, the proceeding in question was initiated vide Memorandum dtd.26.11.2021 under Annexure-2 under Rule 15 of the Rules. As found after completion of the enquiry, Enquiry Officer submitted the report on 17.06.2023 by proposing the punishment of censure. Petitioner thereafter was issued with the 1^st show-cause and submitted the reply under Annexure-6. However, without issuing the 2^nd show-cause, which is a mandatory requirement in terms of the provisions contained under Rule 15(10)(i)(b) of the Rules, Petitioner was imposed with the punishment straight away vide the impugned order dtd.04.05.2024 under Annexure-9.

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6.1. Since in the counter affidavit it is also admitted that such a 2^nd show-cause was never issued and it is also not a requirement, this Court while not accepting such plea of the State, is of the view that since statutory provisions contained under Rule 15(10)(i)(b) has not been followed, the impugned order of punishment cannot sustain legal scrutiny.

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6.2. Therefore, on that ground this Court is inclined to quash the impugned order dtd.04.05.2024 so issued by Opp. Party No. 1 under Annexure-9. While quashing the said order, this Court remits the matter to Opp. Party No. 1 to start the proceeding from the stage of issuance of the 2^nd show-cause considering the enquiry report and the reply submitted by the Petitioner under Annexure-6 and dispose of the proceeding in accordance with law as expeditiously as possible, preferably by the end of March 2026. In view of the quashing of the impugned order under Annexure-9, consequential orders issued under Annexure-10 and 11 also stand quashed.

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