Prasanta Kumar Panda vs Central Electricity Supply Company and Others

P.K. Mohanty, J.—The petitioner seeks review of the judgment dated 8.4.2003 passed in O.J.C. No. 10880 of 2001 mainly on the ground that the petitioner having been acquitted in the criminal case instituted on the selfsame ground, in view of the judgment of the Apex Court in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, he could not have been found guilty in the Departmental Proceeding and that the enquiry report having not been supplied to the delinquent petitioner along with the second show cause notice, the entire departmental proceeding is vitiated, which the Court while considering the aforesaid writ application, has not taken note Of. Both the contentions of the learned Counsel are misconceived and otherwise not tenable in a review petition.

In Captain M. Paul Anthony case (supra), the Apex Court was considering a case where punishment was imposed on the basis of an ex-parte departmental proceeding and the charges both in the criminal proceeding as well as the departmental proceeding were based on a raid conducted by the police on seizure of some incriminating materials. The foundation of the criminal proceeding as well as the departmental proceeding was the seizure of incriminating materials of a raid conducted toy the police and as such, when the raid and seizure was disbelieved, the Apex Court observed that it would be unjust and unfair to allow the findings recorded by the ex-parte departmental proceeding to stand. In the case at hand, the departmental proceeding was initiated on the charges of negligence in duty and misconduct, violation of Board''s Rule causing unusual loss to O.S.E.B. revenue whereas the criminal proceeding was u/s 409, IPC on the alleged ground of committing criminal breach of trust in respect of revenue cash amounting to Rs. 67,219.35 paise which was alleged to have been entrusted to him while working as a Revenue Cashier. The departmental proceeding as well as the criminal proceeding are completely on a separate footing and as such, the judgment of the Apex Court referred to above has absolutely no application to the facts of the present case and the acquittal in the criminal case u/s 409, IPC is of no avail to the petitioner, who was charged for negligence in duties, violation of departmental rules causing unusual loss to the departmental revenue and misconduct under the service rules governing the petitioner.

The submission of the learned counsel that the report of enquiry having not been supplied to the petitioner along with the second show cause notice, the proceeding is vitiated also has no legs to stand. The petitioner has relied on the decision of the Apex Court in Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., The Constitution Bench of the Apex Court in ECIL case (supra) have laid down that an order passed in a disciplinary proceeding cannot ipso facto be quashed merely because a copy of the enquiry report has not been furnished to the delinquent officer, but he is obliged to show that by non-furnishing of such report, he has been prejudiced. The Apex Court in State of Uttar Pradesh v. Harendra Arora AIR 2001 SCW 2029, considering the judgment rendered by the Apex Court on the subject and taking note of the Constitution Bench decision in ECIL case (supra) in Paragraph-22 observed thus :

"Thus, from a conspectus of the aforesaid decision and different provisions of law noticed, we hold that provision in Rule 55-A of the Rules for furnishing copy of enquiry report is procedural one and of a mandatory character, but even then a delinquent has to show that he has been prejudiced by its non-observance and consequently the law laid down by the Constitution Bench in the case of ECIL, to the effect that an order passed in a disciplinary proceeding cannot ipso facto be quashed merely because a copy of the enquiry report has not been furnished to the delinquent officer, but he is obliged to show that by non-furnishing of such a report he has been prejudiced, would apply even to cases where there is requirement of furnishing copy of enquiry report under the statutory provisos and/or service rules.

The petitioner, nowhere even in this application, has pleaded that because of non-supply of such enquiry report; he has been prejudiced and was not in a position to file his reply effectively. The petitioner has himself annexed the report of the enquiry officer as Annexure- 7 without disclosing, as to if he was not supplied with the said report then the source from which he obtain the same. There is not a whisper, either in the writ petition or in this Civil Review petition that, non-supply of such report has in any way affected or prejudiced the delinquent officer in filing his show cause. In absence of proof of prejudice due to non-supply of such enquiry report, the Disciplinary Proceeding or the order of punishment does not get vitiated automatically. The petitioner himself, appears to have argued the writ petition and the Court, on consideration, found no merit in the writ application and dismissed it on elaborate consideration of the materials on record. Nothing has been brought on record to show that there has been error apparent on the face of the record to call for a review of the judgment rendered in the writ petition.

In that view of the matter, we do not find any merit in the review application which is accordingly dismissed.

B.P. Das, J.

I agree.