Muralidhar Mishra vs District Judge

R.N. Misra, J.—Petitioner joined service in the Collectorate at Dhenkanal as a lower division clerk in the year 1960. In the following year, he came to serve in the Office of the Sub-Divisional Magistrate at Dhenkanal on deputation and in course of time was absorbed in the said office. By 1971, he was working as Nazir in the office of the Additional Munsif and Sub-Divisional Magistrate at Athmalik within the district of Dhenkanal. While so working, a disciplinary proceeding was initiated against him on the following charges:

(1) That while working as the Nazir of the Court of the S.D.M.-Additional Munsif, Athmallik, and also while in charge of the office of Additional Munsif, Athmalik from 2-8-1971 till 8.8.1971 during the absence of Sri S.P. Acharya, S.D.M.. Additional Munsif, on casual leave left the head quarters from 6-8-1971 without obtaining prior permission of the S.D.M.-Additional Munsif or the District Judge and sent the keys of the iron safe of the Nizarat and Almirahs containing the case records by insured parcel to Sri S.P. Acharya, S.D.M.-Additional Munsif on 5-8-1971 knowing full well that he was on leave.

(2) That you are in unauthorised occupation of the Night Watchman''s shed of the Court at Athmalik.

(3) That you have not furnished the required security for working as the Nazir of the Court of the S.D.M.-Additional Munsif, Athmallik, though called upon to do so by the authorities.

(4) That it is revealed from the report of the S.D.M.. Additional Munsif, Athmallik that you did not carry out his orders for preparing the monthly returns of the Court for the month of July, 1971, and for the payment of witness batta which amounts to negligence of duty and disobedience of orders of the superior authority.

(5) That it is revealed from the report of the S D.M.. Additional Munsif, Athmallik that when he questioned you about your unauthorised occupation of the Night-Watchman''s shed of the Court, you misbehaved and insulted him saying that the Night-Watchman''s shed did not belong to his father and when he asked you as to why you had not furnished the required security for working as the Nazir of the Court you offended him by stating that you had not seen such a mad, Judicial Officer during eleven years of your service career. This amounts to gross misbehaviour and misdemeanour on your part.

The Additional District Magistrate (judicial) was appointed as the Enquiring Officer. Petitioner filed his statement in defence and while denying the charges claimed that Shri Acharya had persona I grudge against the Petitioner which has led to initiation of the proceeding. The Enquiring Officer reported that all the

five charges had been established. Petitioner was then called upon to show cause against punishment of removal from service and after cause was shown the disciplinary authority the District Judge of Cuttack passed an order removing Petitioner from service. Petitioner preferred an appeal to this Court which was rejected. Petitioner made several other'' attempts to obtain relief by representation and memorial and, having failed ultimately made this application for a writ of certiorari to quash the punishment.

The Registrar of the Civil Court, Cuttack has filed a counter affidavit wherein the proceeding and the punishment have been justified. Petitioner has filed a rejoinder thereafter.

At the hearing, Mr. Rath for the Petitioner mainly contended that the finding of the Enquiring officer and the disciplinary authority that the charges have been established is contrary to law and'' the evidence placed in the disciplinary proceeding did not at all justify the said conclusion. It was pointed out by a Constitution Bench of the Supreme Court in the case of State of Orissa v. Murlidhar AIR 1968 S.C. 404, that in a proceeding under Articles 226 and 227 of the Constitution, the High Court is not to sit in appeal over the findings recorded by a competent Tribunal in a depart mental enquiry. If the High Court purports to re-appreciate the evidence for itself that would be outside its justification. If, however, it is shown that the findings recorded by the, Tribunal are not Supported by any evidence, the High Court would be justified in setting aside the findings.

According to Petitioner''s counsel, the factual conclusions are erroneous as not supported, by evidence and are also contrary to law. It is pointed out that Petitioner attempted to obtain leave when he received telegraphic intimation about his father''s serious illness. When the Additional Munsif was not prepared to entertain his application on the ground that he himself was on casual leave, Petitioner was obliged to apply to the District Judge and in anticipation of grant of leave, Petitioner availed the casual leave. Rules 3(a) and 4(vi) of the Orissa Service Code which admittedly apply to Petitioner make provision for casual leave. Mr. Rath relies upon the practice of proceeding on leave in anticipation of its grant when the situation is emergent and it is not possible to defer going on leave until sanction is obtained. There is some evidence on record to show that Petitioner did attempt to obtain sanction of casual leave before proceeding to his village and the Additional Munsif having refused to entertain his application, Petitioner was obliged to go home. There is no material on record to show that Petitioner''s father was not seriously ill. In fact, it has been claimed on his behalf and not disputed by the other side that his father died a few weeks after.

So far as Petitioners Occupation of the Night-watchman''s shed is concerned, there is evidence to show that Petitioner had been put there by the Additional Munsif himself. In that view of the matter, it is difficult to comprehend how Petitioner could be charged for being, in unauthorised occupation of the shed. Undoubtedly, the Night- Watchman''s shed was not meant to be occupied by the Nazir and Petitioner should not have been in occupation thereof, but in the fact of the evidence it is indeed difficult to see how the charge could be taken as established.

There is no dispute that Petitioner had not furnished the security for working as Nazir. It is, however, claimed that the quantum of security was to be fixed by the authorities and Petitioner could furnish the security only when the quantum had been indicated and Petitioner was notified about it. It is stated that there is no material on record to hold that there was such a determination to the knowledge of the Petitioner. Here again, there seems to be some infirmity in the conclusion.

So far as the other two charges are concerned, namely Petitioner''s refusal to carry out the orders for preparation of the, monthly return for July, 1971, as also payment of witness batta and his misbehaviour, there is clear evidence. The Additional Munsif himself has supported the allegations. Petitioner has also not disputed the position that these matters had become issues and according to him it is the Additional Munsif who is at fault. There is no evidence to support the allegation of bias or prejudice. The direction given by the presiding officer of the Court should not have been flouted by the Petitioner and the normal discipline which prevails in the offices of the Courts should not have been disturbed by Petitioner''s defiant attitude to obey the instructions. The challenging attitude with which Petitioner has met the direction of his superior is patent from the materials placed on the record and we have no doubts in our mind that the conclusion reached about these charges is well-founded.

Petitioner''s counsel takes the stand that when some of the charges have not been established he should not have been visited with such a serious and disproportionate punishment as removal from service. Petitioner had put in only eleven years of service and had a long career. Many of the charges having not been established, the punishing authority should reconsider the nature and quantum of punishment which would be adequate in the light of the charged position. We do not think, such a submission is tenable. In the case of State of Orissa v. Bidyabhushun AIR 1965 S.C. 779, the Supreme Court while reversing a decision of this Court stated:

.... If the High Court is satisfied that if some but not all of the findings of the Tribunal were unassailable the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed, was final, and the High Court had no jurisdiction to direct the Governor to review the penalty for as we have already observed the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, is not justiciable. Therefore if the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the enquiry officer or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice. The High Court was, in our judgment in error in directing the Governor of Orissa to reconsider the question.

In view of this dictum, we do not think, there is force in Petitioners contention that the matter should be considered by the disciplinary authority.

The writ application must accordingly fail and we direct it to be dismissed. There would, however, be no direction for costs.

N.K. Das, J.

I agree.