Chain Singh Pradhan vs Managing Director, Orissa Forest Development Corporation Ltd., Khurda And Ors

Dr. S.K. Panigrahi, J.

The Petitioner, through this Writ Petition, seeks to challenge the order of punishment passed by the Disciplinary Authority vide Office order No.1114 dated 18.05.2009 as well as the order of the Appellate Authority vide Office order No.92 dated 11.11.2011.

He also prays that his salary for the period from 31.08.2006 to 11.12.2007 be sanctioned if leave is available in the leave account of the  Petitioner.

I. FACTUAL MATRIX OF THE CASE:

The brief fact of the case is that:

(i) The petitioner, while working as Watcher in Palasapara C.G. of Bhabanipatana (CKL) Sub-Division, was transferred and posted to Bhawanipatana Firewood Dept. under Bhabanipatana Sub-Division by order dated 7.6.2005. The petitioner challenged the concerned order and filed WP(C) No. 7561/2006. This Court vide order dated 13.06.2005 passed an order to maintain status quo in respect of the Petitioner’s service.

(ii) While the matter stood thus, the petitioner applied for leave on 26.8.2006 to the Sub-Divisional Manager (KL), Bhabanipatana and stated that he would remain absent from 27.8.2006 to 4.9.2006 for the treatment of his wife at Bisam Cuttack. The petitioner extended the leave from time to time; till 30.11.2006. During the period of leave, the petitioner was again transferred to Bhawanipatana Division Office (CKL) Division on 29.8.2006. The aforesaid transfer order was challenged by the petitioner in W.P. (C) No.12096/2006 and this High Court vide order dated 30.11.2006 stayed the transfer order.

(iii) On receipt of the stay order, the petitioner, on 14.12.2006, submitted his joining report to the Sub-Divisional Manager (KL), Bhabanipatana, but the joining report was not accepted and he was not allowed to work.

(iv) Meanwhile, this High Court vide order dated 20.11.2007 disposed of both the Writ Petitions and held that the Court shall not interfere in the aforementioned transfer order. Thereafter the petitioner submitted his joining report on 10.12.2007 after receipt of the order.

(v) Though relieved from Central Godown on 30.11.2006, the petitioner did not resume his duty at Bhawanipatna (C) Office, and remained absent from duty, without authorization, till disposal of the above W.P.(C) No.12096 of 2006 dated.20.11.2007. However, he finally joined in duty on 12.12.2007 after which a disciplinary proceeding was initiated against the petitioner vide office order No.55 dated 26.2.2008 and eventually imposed the following penalty on 18.5.2009:

a) The period of absence (31.8.2006 to 11.12.2007) shall be treated as leave without pay without service benefit.

b) One annual increment be stopped without cumulative effects

(vi) Against the punishment order, the petitioner preferred an appeal before the appellate authority which was dismissed vide order dated 11.11.2011.

II. SUBMISSIONS ON BEHALF OF THE PETITIONER:

Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions.

(i) Punishment No.1 is not prescribed under Rune-13 of the C.C.A. Rules, 1962.

(ii) The Government, in General Administration Department vide letter No.26992 dated 16.9.1999 issued clarification that administrative action cannot be imposed as a measure of penalty if leave is available in the leave account of the concerned Government servant. The punishment, imposed by the Disciplinary authority against the period of absent shall be treated as leave without pay without service benefit (31.8.2006 to 11.12.2007) is not prescribed Under Rule-13 of the C.C.A, Rule-1962 and hence is unsustainable in law.

(iii) Therefore, the aforesaid period of leave should be decided on the basis of the order passed in the Writ Petition after hearing the parties in this case. But, it is surprising to note here that the Opp. Party Nos.2 and 3 have illegally held up the retiral dues of the petitioner on the wrong interpretation of law.

(iv) The petitioner has retired on 31.5.2013 from service on attaining the age of superannuation. After retirement, his arrear Grade Pay from 1.10.2012 to 31.5.2013 amounting to Rs 8,000/- arrear D. A. from 1.1.2011 to 31.5.2013 amounting to Rs 45,000/- Revised Gratuity on D.A and Grade Pay amounting to Rs 71,000/- and Revised unutilised leave salary on D.A. and Grade pay amounting to Rs. 37,000/- has not been paid by the Opp. Parties No.2 and 3 on the ground that the writ petition is pending and the same will be released after disposal of the writ petition..

(v) According to the Service Book, the petitioner has 563 days leave to his credit in the leave account. The disciplinary authority has passed the order as leave without pay without service benefit for the period from 31.08.2006 to 11.12.2007 which is in total 470 days. Since the petitioner has balance leave of 563 days to his credit in the leave account, the above period of 470 days can be adjusted from his leave account and the salary for the aforesaid period can be paid to the petitioner.

III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES :

In reply, learned counsel for the Opposite Parties earnestly made the following submissions in support of her contentions:

(i) CCA Rules, 1962 is not applicable for the employees of Opp. Party, Corporation. It is an admitted fact that petitioner is the employee of OFDC Ltd. which is a company registered under Companies Act. For the employees of the Corporation, it has framed its own service rule named as OFC Service Rules, 1986. The chapter VIII of the said service rule describes the Disciplinary Proceedings Rules. Accordingly, the Disciplinary Proceeding was drawn up against the petitioner and finalized following due procedure under the said rule.

(ii) Due to unauthorized absent from duty for a period with effect from 31.08.2006 to 11.12.2007, a departmental proceeding was initiated against him. After proper enquiry through an independent Enquiring Officer the charges of unauthorized absence was fully established for which the Disciplinary Authority finally passed an order to treat the unauthorized leave period as leave without pay as per Rule-81(XIX) of OFC Service Rule, 1986.

(iii) The petitioner filed the Misc. Case on 27.03.2014 i.e. after receiving the entire retiral benefits such as Gratuity and Unutilized Leave Salary. The petitioner is intentionally hiding the facts of receipt of retiral benefits before the Court by filling false affidavit. An amount of Rs.2,61,670/-towards gratuity has already been sanctioned vide O.O.No.1264 dated 15.11.2013 and disbursed to him through account payee cheque No. Bhubaneswar 511437 dated 16.11.2013 drawn on Canara Bank.

(iv) As per the Leave Account maintained in the Office, leave at his credit as on 31.12.2006 was 300 (Three Hundred) days. Since, the period of unauthorised absence was treated as “Leave without Pay/” the said period comes to 466 (Four Hundred Sixty-Six) days/ so against “Leave without Pay” as per Leave Rules 1/10th of the total unauthorised period i.e., 47 (Forty-Seven) days was deducted from his 300 (Three Hundred) days leave. Further, if it has been decided by this Court to modify the Leave without Pay then one Employee is eligible for sanction of 120 (One Hundred Twenty) days leave at a time as per prevailing Leave Rule. The said leave will automatically deducted from his leave at his credit at the appropriate time which may also affect the sanction of unutilised Leave Salary of 300 (Three Hundred) days. In view of the above, the decision of the Opposite Party, Corporation treating the period of unauthorised absence as "Leave without Pay" is just and proper in the eye of law.

(v) Further, an amount of Rs.1,19,340/- towards Unutilized Leave Salary (ULS) has also been sanctioned vide Office Order No.1265 dated 15.11.2013 and paid through an account payee cheque No. 018030 dated 06.12.2013 drawn on State Bank of Hyderabad, Bhubaneswar amounting to Rs.1,17,840/-, after adjustment of Rs.1500/- outstanding festival advance. Even the differential gratuity amounts to Rs.46,565/-and ULS amounting to Rs.21,240/- was sanctioned vide Office Order No.561 dated 02.05.2014 respectively and Office Order No.562 dated 02.05.2014, due to and enhancement of DA have also been disbursed to him. So, the allegation made against Opp. Party Nos.2 and 3 is purely  false and baseless. The petitioner is not entitled to get further retiral benefits unless and until the rate of DA for the Corporation employees is enhanced.

(vi) In view of the aforesaid facts and circumstances, the present Misc. Case as laid deserves rejection only and for hiding the fact of receipt of his retiral benefits the petitioner rather deserves to pay exemplary cost in the interest of justice.

IV. COURT’S REASONING AND ANALYSIS:

I have heard the submissions of the counsels appearing for the respective parties at length.

First of all, it is trite in law that the power of judicial review exercised by a Court or a Tribunal against the orders of a departmental inquiry committee is only limited to ensuring that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court.

In B.C. Chaturvedi vs. Union of India, (1995) 6 SCC 749 the Supreme Court also held that judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. The relevant excerpt is produced hereinbelow:

“12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel, this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.

xxx xxx xxx

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.”

(Emphasis supplied)

When an inquiry is conducted on the charges of misconduct by an employee of the state, the Court or Tribunal would be concerned only to the extent of determining whether the inquiry was held by a competent officer or whether the rules of natural justice and statutory rules were complied with.

In Om Kumar & Others vs. Union of India, (2001) 2 SCC 386 the Supreme Court had also after considering the Wednesbury Principles and the doctrine of proportionality held that the question of quantum of punishment in disciplinary matters is primarily for the disciplinary authority, and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or the other of the well-known principles known as “Wednesbury Principles” namely whether the order was contrary to law, or whether relevant factors were not considered, or whether irrelevant factors were considered or whether the decision was one which no reasonable person could have taken. The Apex held as following:

“In this context, we shall only refer to these cases. In Ranjit Thakur v. Union of India, [1987] 4 SCC 611, this Court referred to 'proportionality' in the quantum of punishment but the Court observed that the punishment was 'shockingly' disproportionate to the misconduct proved. In B.C. Chaturvedi v. Union of India, [1995] 6 SCC 749, this Court stated that the court will not interfere unless the punishment awards was one which shocked the conscience of the Court. Even then, the Court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the Court could award an alternative penalty. It was also so stated in Ganayutham.

Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as 'arbitrary' under Article 14, the Court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing Court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and such extreme or rare cases can the Court substitute its own view as to the quantum of punishment.”

(Emphasis supplied)

Now, with the above principles in mind, this Court shall consider the arguments of the counsel for the petitioners, one by one, against the arguments of the counsel for the Opp. Parties.

In the present case, the petitioner was imposed the penalty of treatment of absence (31.8.2006 to 11.12.2007) as “leave without pay without service benefit” after the charges leveled against him stood proved by the disciplinary authority in an enquiry held against him.

Now, the petitioner has not disputed the legitimacy of the disciplinary authority besides the argument about irregular application of CCA Rules in his case. However, the counsel for the Opp. Party has satisfactorily established that CCA rules are, anyway, not applicable in the case of the petitioner for the OFDC Ltd. is a company registered under Companies Act and has its own service rules.

The primary contention of the petitioner is that the penalty of leave without pay should be set off against his accrued leave to save him from financial loss in the post-retirement benefits. Regrettably, this matter  falls outside the purview of this court. This court does not possess the mandate to assume the roles of disciplinary or departmental authorities in determining the severity or nature of penalties, as this authority resides exclusively with the competent authority. Judicial review is limited and may only interfere in cases where the penalty imposed by the disciplinary authority is so disproportionate that it shocks the court's conscience.

In the case of Lucknow Kshetriya Gramin Bank v. Rajendra Singh, (2013) 12 SCC 372  the Supreme Court has observed that the Court cannot adjust/modify the award or its quantum which is in the exclusive power of the disciplinary authority. The relevant excerpt is produced as under:

“19. The principles discussed above can be summed up and summarised as follows:

19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities.

19.2. The courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority.

19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court.

19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case.

19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge-sheet in the two cases. If the co-delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable.”

From the aforementioned, it is clear that the hands of this Court is tied and would not be able to help the Petitioner for the Court has no power to substitute its own discretion for that of the disciplinary authority. The Court cannot sit in the arm chair of the Administrator to decide whether a more reasonable decision or course of action could have been taken in the circumstances. Accordingly, this Court accepts the arguments made by the learned counsel for the Opposite Parties.

V. CONCLUSION:

In view of the above and for the reasons stated above, the present Writ Petition fails and the same deserves to be dismissed and is, accordingly, dismissed.

However, in the facts and circumstances of the case, there shall be no order as to costs..

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