Rajkishore Parida vs Additional Director of Industries and Another

R.N. Misra, J.—Petitioner, an employee under the State Government, was attached to the Berhampur Engineering School as a Senior Instructor (Motor Mechanic) in 1975. He was implicated in a criminal charge of attempting to commit theft and G. R. Case No. 648 of 1975 was registered against him. On 4-9-1975, he was placed under suspension as per the order under Annexure-1 on the ground that he had been arrested by the police. During the pendency of the criminal case, a disciplinary proceeding was initiated against him and in March, 1976, a set of four charges were framed and the Petitioner was called upon to show cause against discharge or dismissal from service or imposition of other suitable punishment. The four charges were: (I) Petitioner was found on 2-9-1975 to have concealed himself in the workshop with an intention of stealing valuable materials from the stores; (ii) 10 kgs. of copper wire in charge of the Petitioner were found missing and since the Petitioner was the custodian, he was liable to compensate for the loss; (iii) On verification of the stocks of which Petitioner was in charge, a shortage of mercury worth about Rs. 1294/- was noticed for which Petitioner was also liable; and (iv) Three self-starters and some other materials were found missing from the stores of which Petitioner was in charge.

The Deputy Director of Industries. Southern Zone, was appointed as the Inquiring Officer. Petitioner submitted his explanation indicating that the first charge was the subject matter of the pending criminal case. He pointed out that the subject matter of the second charge had already been inquired into and he had furnished an explanation and a decision had been taken for recovery of half of the price of the materials. Petitioner claimed the third charge and pleaded that there was no shortage of mercury in his charge. With reference to the last charge, he had already been placed under suspension and the police case had already been initiated and he had no occasion to verify the stocks item by item particularly with reference to the nons-serviceable articles in respect of which the charge had been framed. He claimed that if there was a proper verification, these articles would have been actually found.

Petitioner was acquitted of the criminal charge. The Inquiring Officer by his report dated 6-9-1976 came to hold that the first and third charges had not been established; in regard to the second charge, on his own showing the Petitioner was liable to the tune of 50 per cent of the loss and in regard to the fourth charge, it was not necessary to make any inquiry as the articles, were unserviceable as indicated in the charge itself. He ultimately recommended that a sum of Rs. 129.06 being the price of 50 per cent of the missing copper wire should be recovered from the Petitioner and for the other 50 per cent, the Junior Instructor and the Peon would be liable as already suggested by the Principal of the School. The disciplinary authority, i. e. opposite party No. 1, however, did not accept the report of inquiry and held that the Petitioner was guilty of second, third and fourth charges and accordingly the fun amount of Rs. 258.12 representing the price of the missing copper wire, Rs. 1294/- representing the price of the shortage of mercury and Rs. 35/- being the price of the missing articles, totalling Rs. 1587.12/- should be recovered from the Petitioner and two increments of his without cumulative effect should be stopped. The period of suspension should be treated as such (Annexure-5). Petitioner preferred an appeal but failing to obtain any relief has approached this Court for quashing the order of punishment.

According to Mr. Patnaik for the Petitioner, if the disciplinary authority disagreed with the findings of the Inquiring Officer, he was required to give a brief statement of the reasons for non-acceptance. As in Annexure-5 no reason had been given, the order finding the Petitioner guilty of the charges is not sustainable. It is next contended that the Petitioner had not admitted his guilt in regard to the second charge. According to counsel, there is no evidence at all to support any of the charges and, therefore, the order imposing punishment is vitiated. It is also maintained that there was no order of suspension in the disciplinary proceeding and, therefore, Rule 91 of the Orissa Service Code had no application and it was not open to the disciplinary authority to give the direction that the period of suspension should be treated as such.

Rule 15(12) of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 (hereinafter referred to as the ''Rules of 1962'') provides:

Orders passed by the disciplinary authority shall be communicated to the Government servant who shall also be supplied with a copy of the report of the inquiring authority and where the disciplinary authority is not the inquiring authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the inquiring authority unless they have already been supplied to him and also a copy of the advice, if any, given by the Commission and, where the disciplinary authority has not accepted the advice of the Commission, a brief statement of the reasons for such nonacceptance.

Relying on this provision, learned Counsel for the Petitioner has taken the stand that when the disciplinary authority did not accept the inquiry report, he was obliged to assign reasons. That reasons had not been given by the disciplinary authority is not disputed by learned Standing Counsel. In fact, in the counter affidavit it has been conceded that reasons do not appear in the order of the disciplinary authority. Learned Standing Counsel, however, contends that Sub-section (12) appearing in Rule 15 of the Rules of 1962 lays down the procedure for imposing major penalties and, therefore, where a minor penalty as in the instant case has been imposed, reliance cannot be placed on Sub-rule (12) for claiming that reasons should have been given. Rule 15(1) specifically provides:

Without prejudice to the provisions of the Public Servants (Inquiry) Act, 1850, no order imposing on a Government servant any of the penalties specified in Clauses (vi) to (ix) of rule (13) shall be passed .except after an inquiry held as far as may be in the manner hereinafter provided.

It is conceded that the punishment in question is not one provided for in Clauses (vi) to (ix) of Rule 13. We are, therefore, prepared to accept the contention of learned Counsel for the Petitioner that Sub-rule (12) is not applicable.

Even if Sub-rule (12) is not applicable, it was appropriate for the disciplinary authority to indicate reasons for differing from the Inquiring Officer. Undoubtedly, the proceeding is quasi-judicial inasmuch as a set of charges are framed against an officer, he is given an opportunity of offering an explanation and on the basis of an objective assessment of the materials, a conclusion is required to be reached culminating in imposition of a penalty. In the circumstances, if reasons be not required to be furnished, the action of the disciplinary authority is likely to be arbitrary and since an appeal is provided and the matter is justiciable otherwise, the superior forums would not be in a position to know the basis for reversal of the findings of the Inquiring Officer in hands of the disciplinary authority. Thus even though Sub-rule (12) of Rule 15 may not be applicable, in all fairness the delinquent public officer should have been provided with the reasons for non-acceptance of the findings of the Inquiring Officer.

In the instant case, at the time the charges were framed the disciplinary authority had the intention of major punishment in view. In the direction for offering an explanation (Annexure-2) it has been specifically indicated:

He is, therefore, called upon to show cause within a month from the date of issue of this order as to why disciplinary action should not be taken against him and he should not be discharged/dismissed or otherwise suitably punished for such misconduct....

In the explanation given by the Petitioner (Annexure-3), the charges were essentially denied. Even when the charges were denied, no oral evidence appears to have been taken in proof of the charges. Certain documents were, however, taken into consideration. The disciplinary authority has not deal with the first charge. Therefore, the first charge is no more under consideration. We propose to deal with the second charge later. The third charge was relating to shortage of mercury. The disciplinary authority has stated In his order under Annexure-5;

2ndly, he was also responsible for shortage of mercury weighing 3 kgs. 422 grams costing Rs. 1294.00 which was noticed during handing over charge to Sri P. C. Moharana, Sr. Inspector (Instructor).

Detailed reasons had been given by the Inquiring Officer as to why this charge was not accepted as proved. The reversal of the findings by the disciplinary authority in the absence of any supporting material cannot be accepted. In regard to the 4th charge, the disciplinary authority has stated:

I also found him responsible for shortage of one number of self-starter and 2 Nos. connecting rods costing Rs. 35.00, the shortage of which was noticed while handing over charges to Sri A. N. Satapathy after his suspension.

The Inquiring Officer had not inquired into the charge and had not recorded a finding. In the circumstances, the observation of the disciplinary authority, if accepted, is bound to prejudice the Petitioner. The correctness of the stand taken by the Petitioner in regard to the 4th charge has never been taken into consideration. We are, therefore, inclined to agree with Mr. Patnaik for the Petitioner that so far as the third and 4th charges are concerned, the findings of the disciplinary authority cannot be accepted.

We now come to consider the second charge. This related to the loss of 10 kgs. of copper wire. The Inquiring Officer clearly indicated in his report that the delinquent Petitioner had accepted his liability to the tune of a moiety of the price. This could only be on the footing that he was guilty in respect of this charge. The disciplinary authority has accepted the finding of the Inquiring Officer in regard to the second charge but in stead of fixing Petitioner''s liability at 50 per cent of the loss, he has come to hold that he is squarely liable for the entire loss of Rs. 258.12. During hearing of this application Petitioner''s counsel has relied upon the relevant portion of the inquiry report where it has been stated.

However, in course of enquiry Sri Parida, the delinquent, has reluctantly agreed to pay 50% of the cost of the copper wire amounting to Rs. 129.06..." and has made an attempt to impress upon us that there was no acceptance of the charge because the Petitioner is said to have reluctantly agreed. We are not inclined to accept this submission. If the delinquent had no liability at all in regard to the loss of the copper wire, there was no occasion for hi 11 to accept the liability to some extent. Petitioner has, in our view, rightly been held guilty of the second charge.

Mr. Patnaik for the Petitioner maintained that even if the second charge is sustained, the punishment is very disproportionate and if the disciplinary authority was going to punish the Petitioner for the second charge only, it would be reasonable to expect that he would have directed recovery of the price and would not have imposed any other punishment. Accordingly, we should vacate the punishment and require the disciplinary authority to re-consider the matter and impose some punishment commensurate to the guilt. Learned Standing Counsel meets this argument by placing reliance on a decision of the Supreme Court in the case of State of Orissa Vs. Bidyabhushan Mohapatra, . That was a matter which went from this Court in appeal and the Supreme Court took the view that if some charges were ultimately sustained, it was not for the Court in its extra-ordinary jurisdiction to hold that the punishment imposed in considering the cumulative effect of the charged required re-consideration inasmuch as several charges were no more being accepted and it was not known as to what would have been the punishment imposed if the punishing authority was called upon to impose the punishment with reference to the sustained charge only. Mr. Patnaik has sought to distinguish the decision by contending that in the decision before the Supreme Court the charges that were sustained were serious enough to justify the punishment imposed and keeping that in view the observation had been made by the Court. He places reliance on a decision of the Madras High Court in the case of The State of Madras Vs. A.R. Srinivasan, , and a case of this Court in the case of Superintendent, Mines and Quarries, Bisra Stono Lime Co. Ltd. Vs. Presiding Officer, Industrial Tribunal and Another, , as also a later decision of the Supreme Court in the case of Binny Ltd. Vs. Their Workmen, to support the distinction drawn by him. We are not Inclined to agree with the contention particularly when the punishment imposed is a minor one and even with reference to the second charge, imposition of such a punishment may not be said to be disproportionate.

There is force in Mr. Patnaik''s contention, however, that it would be open to us to vacate the direction for recovery of the loss which would actually be a punishment in terms of Rule 13(iv) of the Rules of 1962 when it is found that pecuniary loss caused to Government is not established. That would not be a matter covered by the principle laid down by the Supreme Court in the case of State of Orissa v. Bidyabhushan1. We would accordingly accept the submission of Mr. Patnaik that the direction for recovery of Rs. 1294/- ana. Rs 35/- as mentioned in Annexure-5 cannot be sustained and the direction in that regard has to be quashed. To make it clear, we indicate that the punishment in regard to stoppage of two increments without commutative effect as also the direction for recovery of Rs. 258.12 which was co-relatable to charge No. 2 remained unaffected by our order.

We shall now deal with the direction 10 Annexure-5 that the period of suspension may be treated as such. It is conceded in the counter affidavit that there was no order of suspension in the disciplinary proceeding and as would appear from Annexure-1 Petitioner was suspended as a result of his arrest in the criminal case. Rule 12(6) of the Rules of 1962 provides:

The disciplinary authority, while passing the final order of punishment or of release in the disciplinary proceedings against the Government servant, shall give directions about the treatment of the period of suspension, which is passed not as a measure of substantive punishment but as suspension pending inquiry, and indicate whether the suspension would be a punishment or not.

Rule 91 of the Orissa Service Code has also a similar provision. As the Petitioner was not suspended in the disciplinary proceeding and no order has ever been passed continuing the suspension after his acquittal in the criminal case on account of the pendency of the disciplinary proceeding, we are not inclined to accept the stand taken in the counter affidavit that the disciplinary authority had intended to make an order to that effect. The direction that suspension shall be treated as such can in the circumstances, not be accepted. The same is also quashed.

The writ application is allowed in part and to the extent specifically indicated above. We make no order for costs.

B.K. Ray, J.

I agree.

Writ application partly allowed.