Dr. Narayan Prasad Behera vs State Of Odisha & Others

Biraja Prasanna Satapathy, J

Heard Mr. A.K. Chhatoi, learned counsel for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Govt. Advocate for the State.

Petitioner has filed the present Writ Petition inter alia challenging order dated 25.05.2018, so passed by Govt.-O.P. No.1 under Annexure-13. Vide the said order, while disposing the proceeding initiated against the petitioner vide Memorandum dated 25.03.2017, the following punishment was imposed:-

“i. Censure.

ii. Withholding of one annual increment with cumulative effect.

iii. The period of absence from 01.12.2010 to 04.12.2013 be treated as EOL.”

2.1. Learned counsel for the Petitioner contended that petitioner while in service, a proceeding in question was initiated against him on 25.03.2017 vide Annexure-6 inter alia with the following charges:-

“Article of Charges:-

Whereas, Dr. Narayan Prasad Behera, ADMO(M), Khordha has committed such gross irregularities as stated in the statement of imputations (Annexure-II).

Therefore, he is charged as under.

Unauthorized and willful absence from Govt. Duty.

Disobedience of the orders of higher authority.

Negligence in duty.

Misconduct.”

2.2. It is contended that petitioner not only filed his written statement of defence under Annexure-7 but also participated in the Enquiry so conducted by the Joint Director, Health Services (Leprosy), Odisha. It is contended that the Enquiry Officer after conducting the Enquiry submitted the Enquiry Report on 20.10.2017 inter alia with the following finding:-

“Basing on the Medical certificate issued by Prof and HoD, Neurology, SCB Medical College and Hospital, Cuttack on referral by Dr. L.D. Sahu, Orthopaedic Specialist, Capital Hospital, Bhubaneswar to consult Neurology, it is evident that Dr. Behera was suffering and under treatment. Hence, he was compelled to continue on leave due to his illness. Hence, it is suggested that Govt. may take lenient views to regularize the period of absence as leave.”

2.3. It is contended that the petitioner was issued with the 1st show-cause as provided under Rule-15(10) of the OCS (CCA) Rules, 1962 on 07.11.2017 under Annexure-9 along with the report of the Enquiry Officer. Petitioner though submitted his reply under Annexure-10, but on the face of the finding of the Enquiry Officer and without giving a disagreement note assigning the reason for differing with the view of the Enquiry Officer, the 2nd show-cause was issued on 29.01.2018 under Annexure-11 proposing therein the following punishment:-

“ i. Censure.

ii. Withholding of one annual increment with cumulative effect.

iii. The period of absence from 01.12.2010 to 04.12.2013 be treated as EOL.”

2.4. Learned counsel for the petitioner contended that since the Enquiry Officer while submitting the report held that petitioner during the period in question was under treatment and accordingly continued as leave and suggested to take a lenient view to regularize the period of absence as leave, but the Disciplinary Authority who happens to be the O.P. No.1, without giving a disagreement note as provided under Rule-15(10) of the Rules proposed the punishment in question while issuing the 2nd show-cause under Annexure-11.

2.5. It is contended that since statutory provisions as contained under Rule-15(10) of the Rules was never followed by the Disciplinary Authority by giving a disagreement note while issuing the 2nd show-cause under Annexure-11, the impugned order passed by O.P. No.1 on 25.05.2018 under Annexure-13 is not sustainable in the eye of law.

2.6. In support of his submission learned counsel for the Petitioner relied on various decisions of the Hon’ble Apex Court in the case of:-

i) State of Andhra Pradesh & Ors. Vs. S. Sree Rama Rao reported in 1963 SCC On Line SC 6

ii) Union of India & Ors. Vs. Mohd. Ramzan Khan reported in (1991) 1 SCC 588

iii) B.C. Chaturvedi Vs. Union of India & Ors. reported in (1995) 6 SCC 749

iv) State Bank of Patiala & Ors. Vs. S.K. Sharma reported in (1996) 3 SCC 364

v) High Court of Judicature At Bombay through its Registrar Vs. Shashikant S. Patil & Anr. reported in (2000) 1 SCC 416

vi) Deputy General Manager (Appellate Authority) & Ors. Vs. Ajai Kumar Srivastava reported in (2021) 2 SCC 612

vii) State Bank of India & Anr. Vs. K.S. Vishwanath reported in (2022) 15 SCC 190

Mr. Chhatoi, learned counsel for the Petitioner also relied on a decision of this Court passed in the case of Raj Kishore Sahu Vs. Government of Orissa & Ors.  (W.P.(C) No. 4416 of 2002) decided on 10.03.2006.

2.7. Hon’ble Apex Court in the case of S. Sree Rama Rao in Para 7 has held as follows:-

“7. There is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied, and if that rule be not applied, the High Court in a petition I …under Article 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant : it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution.”

2.8. Hon’ble Apex Court in the case of Mohd. Ramzan Khan in Para 15 & 18 has held as follows:-

“15. Deletion of the second opportunity from the scheme of Article 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Article 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the Forty-second Amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendation, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-second Amendment has not brought about any change in this position.

xxx xxx xxx

We make it clear that wherever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter.”

2.9.  Hon’ble  Apex  Court  in  the  case  of  B.C. Chaturvedi in Para 12 has held as follows:-

“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 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.”

2.10. Hon’ble Apex Court in the case of S.K. Sharma in Para 33(1) & 33(2) has held as follows:-

“33. We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee):

(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or

(b) whether it is procedural in character.

(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.

2.11. Hon’ble Apex Court in the case of High Court of Judicature At Bombay in Para 16 has held as follows:-

“16. The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution.”

2.12. Hon’ble Apex Court in the case of Ajai Kumar Srivastava in Para 24 has held as follows:-

“24. It is thus settled that the power of judicial review, of the constitutional courts, is an evaluation of the decision-making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry 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 or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.”

2.13.  Hon’ble  Apex  Court  in  the  case  of  K.S. Vishwanath in Para 18 has held as follows:-

“18. Recently in N. Gangaraj [State of Karnataka v. N. Gangaraj, (2020) 3 SCC 423 : (2020) 1 SCC (L&S) 547] after considering other decisions of this Court on judicial review and the power of the High Court in a departmental enquiry and interference with the findings recorded in the departmental enquiry, it is observed and held that the High Court is not a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant. It is further observed and held that the High Court is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. It is further observed that if there is some evidence, that the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition under Article 226 of the Constitution of India to review/reappreciate the evidence and to arrive at an independent finding on the evidence.

2.14. This Court in the case of Raj Kishore Sahu in Para 10, 11, 12 & 13 has held as follows:-

“10. The C.C.A. Rules are the statutory rules and departure from the same would definitely be an illegality.

Apart from the statutory provision, is the common law that according to the principle of natural justice an employee should at least know the tentative reasons for disagreement with the report of the enquiry officer before inflicting punishment upon him so that he may be able to make a representation to satisfy the punishing authority by way of his explanation to the tentative reasons which are formed by the punishing authority to its mind.

In the case of Joginath D. Badge v. State of Maharashtra and Anr. reported in MANU/SC/0583/1999: AIR1999SC3734 the Apex Court held that:

it was open to the Disciplinary Authority either to agree, with the findings recorded by the enquiring authority or disagree with those findings. If it does not agree with the findings of the enquiring authority, it may record its own findings. Where the enquiring authority has found the delinquent officer guilty of the charges framed against him and the Disciplinary Authority agrees with hose findings, there would arise no difficulty. So also if the enquiring authority has held the charges proved, but the Disciplinary Authority disagrees and records a finding that the charges were not established, there would arise no difficulty. Difficulties have arisen in all those cases in which the enquiring authority has recorded a positive findings that the charges were not established and the delinquent officer was recommended to be exonerated, but the Disciplinary Authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officers was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent office at that stage. Such an opportunity may either be provided specifically by the rules made under Article 309 of the Constitution or the Disciplinary Authority may, of its own, provide such an opportunity. Where the rules are in this regard silent and the Disciplinary Authority also does not give an opportunity, of hearing to the delinquent officer and records findings different from those of the enquiring authority that the chargers were established, "an opportunity of hearing" may have to be read into the rule by which the procedure for dealing with the enquiring authority's report is provided principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be "not guilty" by the enquiring authority, is found "guilty without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of "not" guilty" has already been recorded.

Similar view has been expressed by the apex Court in the cases reported in MANU/SC/0263/1963: (1963)ILLJ295SC (The State of Assam and Anr. v. Bimal Kumar Pandit MANU/SC/0531/1998 (1998)IILLJ809SC (Punjab National Bank and Ors. v Kunj Behari Misra) MANU/SC/0788/1998: (1999) ILLJ432SC (Radhe Shyam Gupta v U.P. State Agro Industries Corporation Ltd. and Anr.), MANU/SC/0101/1999: [1999]1SCR532 (Dipti Prakash Banerjee v. Satvehdra Nath Bose National Centre for Basis Sciences, Calcutta and Ors.) & MANU/SC/0285/1984 (1984) IILLJ517S( (Rajinder Kumar Kindra v. Delhi Administration through Secretary (Labour) and Ors..”

Learned Addl. Govt. Advocate on the other hand while supporting the impugned order contended that since the petitioner all through was provided due opportunity of hearing and the proceeding was conducted in accordance with Rule-15 of the Rules, no illegality or irregularity can be found with the impugned order in question. The stand taken in Para-5 & 7 of the counter reads as follows:-

“5. That, as per the provision of rule the proposed penalties were referred to Odisha Public Service Commission. The Commissioner while upholding the proposed punishment as Serial No. 1 & 3 recommended to enhance the proposed punishment at Serial No.2 as "withholding of one annual increment with cumulative effect". In this backdrop, the State Government awarded the punishment to the applicant as per Annexure-13 in accordance with the recommendation of OPSC. Thus, there was no scope to differ from the findings of I.O..

That, accepting the findings/recommendation of I.O. and views of OPSC, State Respondent awarded punishment upon applicant and therefore there was no reason to differ from the findings/recommendation of the I.O.. Hence prayer of the applicant to drop the proceeding, to exonerate him from all charges and to regularize the period of leave as commuted leave, earned leave, half pay leave etc. and to grant him promotion with retrospective effect from the date of his juniors are devoid of any merit. Therefore, Hon'ble OAT may graciously be pleased to dismiss the original application in the fitness of Justice.”

Having heard learned counsel for the parties and considering the submissions made, this Court finds that the proceeding was initiated against the petitioner under Rule 15 of the Rules vide memorandum dated 25.03.2017 under Annexure-6. The petitioner after filing his written statement of defence participated in the enquiry. Enquiry Officer while submitting the report on 20.10.2017 under Annexure-9 clearly opined that because of the suffering and treatment, petitioner continued on leave. While taking such a view, enquiry officer suggested that Govt. may take a lenient view to regularize the period of absence as leave.

4.1. On the face of the such finding of the Enquiry Officer, this Court finds that while issuing the 2nd show-cause by differing with the finding of the Enquiry Officer no disagreement note was enclosed to the 2nd show-cause so issued on 29.01.2018 under Annexure-11 in terms of the provisions contained under Rule-15(10) of the Rules. Since no disagreement note was enclosed to the 2nd show-cause notice issued under Annexure-11, which amounts to non-compliance of the statutory provisions, placing reliance on the decisions of the Hon’ble Apex Court as cited supra as well as of this Court, this Court is inclined to quash the order of punishment so passed against the petitioner vide the impugned order dated 25.05.2018 under Annexure-13. While quashing the same, this Court allows the Writ Petition.

The Writ Petition is accordingly disposed of.

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