ORISSA HIGH COURT: CUTTACK W.P.(C) No.3594 of 2002 In the matter of an application under Articles 226 & 227 of the Constitution of India. ---------- Padmanabha Gouda ……… Petitioner -versusOrissa Forest Corporation and others ……… Opp. Parties For Petitioner : M/s MaNo.Misha, P.K.Das, S.K.Pradhan, B.K.Mishra Mr. T. Mishra. For Opp.Parties : M/s. S.K. Das, B.C.Pradhan, M.K.Das, K.Pattnaik. PRESENT: THE HONOURABLE DR. JUSTICE B.R.SARANGI Date of hearing: 21.11.2014 | Date of judgment: 04.12.2014 Dr. B.R.Sarangi, J.The petitioner, who was working as a Mate (No.as a Field Assistant) under the Orissa Forest Corporation Ltd. has filed this application assailing the order passed by the Disciplinary Authority imposing punishment vide order dated 31.07.2001, Annexure-7 and enhancement thereof in appeal by the appellate authority, vide order dated 29.08.2002, Annexure-11 giving compulsory retirement to the petitioner from service. 2 2. The factual matrix of the case in hand is that the petitioner while working as a Mate (No.as a Field Assistant) was incharge of Jagannath Saw Mill Rayagada from January, 1983 to May 1984. The said saw mill was taken on contract basis at Rayagada and corporation timbers were being sawn there and it was functioning under Rayagada Sub-Division of Muniguda Division. On 2.5.1984 the petitioner passed 292 bundles of reapers of different length classes and entered the contents of passing particulars into passing register page no.22. But the allegation was that the petitioner has only entered 105 bundles in the stock register and thereafter the S.D.M. instructed him to submit the lot list on the same date. The petitioner did No.submit the lot list in spite of the instruction and left the saw mill. There is allegation against the petitioner that he forced the watcher on duty to open the gate and allowed the truck bearing NO.ORL-524 to enter into the premises of the saw mill by loading 187 bundles of reapers and allowed one Jagannath Jena to leave the depot premises at 1.30 A.M. on 3.5.1984 along with the truck. On the next morning, the petitioner informed the S.D.M. that 187 bundles were stolen away from the depot, basing upon which, the S.D.M. conducted an inquiry and reported the matter to the Divisional Manager fixing responsibility on the petitioner. The Divisional Manager ordered for an enquiry and to submit a report fixing responsibility specifically for illegal removal of reapers in the dead of night. Consequence thereof, an inquiry was conducted by the Deputy Divisional Manager and 3 statements were recorded. Thereafter the petitioner was terminated from service by order of the opposite party no.2 on 16.05.1984. Aggrieved by the said order, the All Orissa Forest Corporation Karmachari Sangha, Muniguda on 6.8.1984 moved opposite party no.1 protesting such termination of the petitioner. On consideration of the same, opposite party no.1 vide order dated 20.04.1985, Annexure-1 set aside the order of termination passed by opposite party no.2 and directed that the petitioner is allowed to join as Mate at Muniguda Division with immediate effect and the period from the date of termination till the date of his joining be treated as leave. After the petitioner was allowed to continue in service, a denovo proceeding was initiated on the basis of the inquiry report submitted by the Deputy Divisional Manager. Charges were framed against the petitioner vide letter dated 28.1.1987, Annexure-2 which reads as follows:“1. No.taken into the stock of 197 bundles of reapers.
2. Illegal disposal of 197 bundles of different sizes in night hours without issuing cash memo or challans and loss of corporation revenue.
3. Disobedience of orders.”
. The petitioner was called upon to file his explanation within a period of 15 days. In compliance to the same, the petitioner submitted his explanation on 25.4.1987 vide Annexure-4. Without 4 considering the same, the final inquiry report was submitted on 27.12.2000 vide Annexure-6 and basing upon such inquiry report, opposite party no.3, the disciplinary authority passed order on 31.07.2001 vide Annexure-7 awarding the following punishment, which read as follows: 3. “1. The cost of 197 bdls. of reapers amounting to Rs.2,158.70 should be recovered from Sri Gouda at the present valuation from his pay bill in 7 (seven) instalments @Rs.300/- P.M. and Rs.58.70 in last instalment.
2. 3 (three) number of increments be stopped without cummulation effect.
3. He should No.be taken into consideration for promotion for at least 5 years.
4. Heavily censured.”
. Against the said order of punishment vide Annexure-7, the petitioner preferred appeal before opposite party no.2 on 19.11.2001 vide Annexure-8. The appellate authority without application of mind mechanically enhanced the punishment imposed by the disciplinary authority to compulsory retirement and dismissed the appeal vide Annexure-11, which reads as follows:“ORDER
: The Appellant Sri Padma Nabha Gouda, Field Assistant is compulsorily retired amounting to premature retirement. Appeal is dismissed.”
. Hence this Writ Petition. 5 4. Senior Mr. T, Mishra, on behalf of Mr. MaNo.Mishra, learned Counsel for the petitioner, strenuously urged that the impugned orders passed by the disciplinary authority in Annexure-7 and enhancement thereof by the appellate authority in Annexure-11 have been passed without complying with due provisions of law inasmuch as the appellate authority passed the order enhancing punishment without assigning any reasons. Thereby he seeks for quashing of the same.
5. Per contra, Mr. S.K. Das, learned counsel for the Corporation, relying upon the preliminary counter affidavit, supported the action taken by the authorities against the petitioner and contended that imposition of punishment is wholly and fully justified, therefore this Court may No.interfere with the same. He further submitted that there is an alternative remedy available under the statute for preferring review under Rule-136, but without availing that remedy the petitioner has directly approached this Court by filing the present writ application. Therefore this Court should No.entertain this application and dismiss the same.
6. In order to regulate the service condition of the employees of Forest Corporation, a set up rule has been framed called “The Orissa Forest Corporation Service Rules, 1986 (hereinafter referred to as the „1986 Rules‟). Chapter-VIII deals with disciplinary rules which starts with Rule-120 with provision for suspension. Rule 121 deals with penalties wherein it is stated that for good and 6 sufficient reasons and as hereinafter provided be imposed on an employee/workman, namely, miNo.penalties and major penalties. MiNo.penalties have been specified in clause-(i) to (vi) whereas major penalties have been enumerated in clause-(vii) to clause-(x). Rules 122 deals with disciplinary authorities whereas Rule 123 empowers the authority to institute proceedings. Rule 124 deals with procedure for imposing major penalties. Sub-rule 1 of Rule-124 specifically states that no order imposing any major penalties specified in clauses (VII) to (X) of Rule 121 shall be made except after inquiry held as far as may be, in the manner hereinafter provided. Adherering the procedure envisaged under Rule 124, the punishment has to be imposed on the employee. Rule 130 deals with appeal against orders imposing penalties, wherein it is specifically stated that an employee/workman may appeal against an order imposing upon him any of the penalties specified in Rule-121 to the authority specially empowered by an order made by the Board of Directors/Chairman in that behalf or in absence of any such order to the authority specified in the schedule or where no such authority is specified to the authority to which the authority imposing the penalty is immediately subordinate. Rule 131 deals with appeal against other orders. Rules 132 deals with period of Limitation for appeals whereas Rule-133 deals with form and contents of appeal. But consideration of the appeal has to be made in consonance with the provisions made under Rule-134. For better appreciation, Rule-134 is quoted below: 7 “134. Consideration of appeal: 1. In case of an appeal against an order imposing any of the penalty specified in Rule-121 or enhancing any penalty imposed under the said Rule, the appellate authority shall consider:a) whether the procedure laid down in these Rules has been complied with and if not, whether such noncompliance has resulted in failure of justice; b) whether the findings of the disciplinary authority are warranted by the evidence on records, and c) whether the penalty or the enhanced penalty imposed is excessive, adequate or inadequate; and pass orders:i) confirming, enhancing, reducing setting aside the penalty; or or ii) remanding the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case; Provided that : i) the appellate authority shall No.impose any enhanced penalty which neither such authority No.the authority which made the order appealed against, is competent in the case to impose; ii) no order imposing an enhanced penalty shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against such enhanced penalty; and iii) if the enhanced penalty which the appellate authority proposes to impose is one of the major penalties specified in Clauses- (vii) to (x) of Rule121 and an inquiry under Rule-126 has No.already been held, in that case the appellate authority shall, subject to the provision of Rule-126, itself hold such inquiry or direct that such inquiry be held, and thereafter, on consideration of the proceeding of such inquiry and after giving the 8 appellant an opportunity of making any representation which he may whish to make against such penalty, pass such orders as it may deem fit.
2. In case of an appeal against any order specified in Rule-131, the appellate authority shall consider all the circumstances of the case and pass such orders as it deems just and equitable.
3. Copies of the orders passed by the appellate authority shall be supplied to the appellant free of cost.”
7. Mr. Mishra, learned counsel for the petitioner strenuously urged that the appellate authority while enhancing the punishment has No.taken into consideration the provisions of Rule-134 of 1986 Rules inasmuch as while imposing an enhanced penalties the duty cast on the appellate authority is to provide an opportunity to the appellant by making any representation which he may wish to make against such enhanced penalty. Apart from the same, if the enhanced penalty which the appellate authority proposes to impose is one of the major penalties specified in clauses (vii) to (x) of Rule-121 and an inquiry under Rule-126 has No.already been held, in that case the appellate authority shall, subject to the provision of Rule-126, itself hold such inquiry or direct that such inquiry be held, and thereafter, on consideration of the proceeding of such inquiry and after giving the appellant an opportunity of making any representation which he may whish to make against such penalty, pass such orders as it may deem fit. 9 8. Sub-Rule 2 of Rule-134 states that in case of an appeal against any order specified in Rule-131, the appellate authority shall consider all the circumstances of the case and pass such orders as it deems just and equitable whereas Rules 136 deals with review 9. In view of such provisions available under the 1986 Rules, Mr. T Mishra, learned counsel for the petitioner submits that the same has No.been adhered to and as such while passing the impugned appellate order under Annexure-11, the appellate authority has No.assigned any reason No.has he given any opportunity to the petitioner of making representation which he may wish to make against such enhancement of penalty. Without doing so, he has passed the order as per his whims and caprice, thereby the same is contrary to the provisions contained in the 1986 Rules.
10. On perusal of the appellate order, it appears that as per the enquiry report reasonable opportunity was given to the petitioner to defend the case under natural law of justice but when the appellate authority proposed to enhance the punishment, requirement of provisions contained in Rule-134 has No.been complied with. The appellate authority formulated three questions which are quoted below: “(1) Whether the charges framed against the delinquent was proved or not?. (2) Whether the delinquent was provided with reasonable opportunity under the 10 law of natural justice or not, for the proposed enhanced punishment. (3) Whether the appellate authority is competent enough to award enhanced penalty like, compulsory retirement from services”.?. The appellate authority answered the same in following manner: 1. The charges framed against the delinquent has since been proved and established by Enquiring Officer and agreed to by the disciplinary authority.
2. The delinquent has been given the opportunity to make any representation against the proposed enhanced punishments followed by “personal hearing”. on dtd. 27.8.2002 as per Rule 134 of the OFC Service Rules, 1986.
3. The Appellate Authroity is competent to impose major penalty of compulsory retirement from service, as per Rule 121 (IX) of the OFC Service Rules, 1986.
11. While coming to such conclusion, it is stated that the procedure laid down in 1986 Rules has been properly followed to meet the ends of justice. Therefore, the appellate authority has opined to enhance the punishment by imposing major penalty by retiring the petitioner compulsorily which amounted to premature retirement as per Rule 121 (ix) of the O.F.C. Service Rules, 1986. Assailing such orders of disciplinary authority as well as that of the appellate authority the petitioner has filed this application. 11 12. While entertaining this application, this Court by order dated 11.10.2002 in Misc. Case No.2572 of 2002 passed an interim order staying the impugned order of the appellate authority under Annexure-11 imposing punishment of dismissal from service on the petitioner. 10.02.2003 But, the said order was modified by order dated in Misc. Case No.4406 of 2002 to the extent that the impugned order of the appellate authority under Annexure-11 compulsorily retiring the petitioner shall remain stayed and directed the Sub-Divisional Manager, Orissa Forest Development Corporation, Kothagarh Sub-Division, Kothagarh to forthwith accept the joining report of the petitioner and allow him to work until further orders. By virtue of this order, the petitioner is still continuing in his service. So far as interference in the quantum of punishment awarded by the disciplinary authority as well as the appellate authority is concerned in exercise of judicial review, the Court shall No.normally interfere with the punishment imposed by the authority.
13. In U.P. State Road Transport Corporation and others v. A.K. Parul, AIR 1999 SC 1552, the apex Court in paragraph-3 held as follows:“3. ………… This Court consistently has taken the view that while exercising judicial review the Courts shall No.normally interfere with the punishment imposed by the authorities and this will be more so when the Court finds the charges were proved. The interference with the punishment on the facts of this case canNo.be sustained. In State Bank of India v. Samarendra Kishore Endow (1994) 2 SCC 537 : (1994 AIR SCW 1465), this Court held that imposition of proper punishment is within the discretion and 12 judgment of the disciplinary authority. It may be open to the appellate authority to interfere with it, but No.to the High Court or to the Administrative Tribunal for the reasons that the jurisdiction of the Tribunal is similar to the powers of the High Court under Article 226.”
14. Reference was made to an unreported judgment of this Court in Srikanta Das v. Inspector General of Police, CRPF (OJ.No.2655 of 1997 disposed of on 24.04.2006). That case related to a „more heinous offence‟ while here is a case where it canNo.be construed that the allegation made against the petitioner was within the purview of „more heinous offence‟. This decision is therefore No.applicable to the present case.
15. The reference made to U.P. State Road Transport Corporation v. Subash Chandra Sharma and others, AIR 2000 SC 1163 by learned counsel for the opposite party is yet disputed as the principle settled therein related to punishment awarded in a way shockingly disproportionate to the nature of the charge found proved against the delinquent in which event the High Court should No.exercise its power under article 226 of the Constitution of India.
16. In view of the decision referred to above, there is no iota of doubt that while exercising power of judicial review under Article 226, the Court shall No.normally interfere with the punishment imposed by the authority No.shall interfere with the quantum of punishment imposed by the authority. It is within the domain of the authority to interfere with such quantum of punishment but No.a court or tribunal. 13 17. The scope of judicial review in the matter of imposition of penalty as a result of disciplinary proceeding is very limited. This Court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges proved. In such a case, the Court is to remit the matter back to the disciplinary authority for reconsideration of punishment. Of course in appropriate cases, in order to avoid delay the Court can itself impose lesser punishment. (See AIR 2007 SC 2954: You One Maharia-J.through You One Engineering and Construction Company Ltd. and another v. National Highways Authority of India).
18. The question of interference with the quantum of punishment has been considered by the Supreme Court in catena of judgments, and it was held that if the punishment awarded is disproportionate to the charge of misconduct, it would be arbitrary and thus, would violate the mandate of Article 14 of the Constitution (See- Bhagat Ram v. State of Himachal Pradesh & others, AIR 1983 SC 454, Ranjit Thakur v. Union of India and others, AIR 1987 SC 2386, Union of India and others v. Giriraj Sharma, AIR 1994 SC 215, B.C. Chaturvedi v. Union of India and others, AIR 1996 SC 484.
19. In the case of Ranjit Thakur (supra), the Apex Court observed as under:“But the sentence has to suit the offence and the offender. It should No.be vindictive or unduly harsh. It 14 should No.be disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect, which is otherwise, within the exclusive province of the Court Martial, if the decision of the Court even as to sentence is an out ranges defiance of logic, then the sentence would No.be immune from correction. Irrationality and perversity are recognized grounds of judicial review.”
20. In the case of B.C. Chaturvedi (supra), after examining earlier decisions, the Supreme Court observed that in exercise of the powers of judicial review, the Court canNo.“normally”. substitute its own conclusion or penalty. However, if the penalty imposed by an authority “shocks the conscience”. of the Court, it would appropriately mould the relief either directing the authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself impose appropriate punishment with cogent reasons in support thereof.
21. In the case of Union of India and others v. G. Ganayutham, AIR 1997 SC 3387, the Supreme Court considered the entire law on the subject and observed: “In such association, unless the Court/Tribunal opines in its secondary role, that the administrator was, on the material before him, irrational according to Wednesbury or CCSU then, the matter has to be remitted back to the appropriate authority for reconsideration. It is only in very rare cases as pointed out in B.C. Chaturvedi‟s case that the Court might, to shorten litigation think of substituting its own view as to the quantum of punishment in the place of the punishment awarded by the competent authority. 15 22. What is the appropriate quantum of punishment to be awarded to a delinquent is a matter that primarily rests at the discretion of the disciplinary authority. An authority sitting in appeal over any such order of punishment is by all means entitled to examine the issue regarding the quantum of punishment inasmuch as it is entitled to examine whether the charges have been satisfactorily proved. But when any such order is challenged before a Service Tribunal or the High Court the exercise of discretion by the competent authority in determining and awarding punishment is generally respected except where the same is found to be so outrageously disproportionate to the charge of misconduct and the Court considers it to be arbitrary and wholly unreasonable. The superior Courts and the Tribunal invoke the doctrine of proportionality which has been gradually accepted as one of the facets of judicial review. Where punishment is excessive or disproportionate to the offence so as to shock the conscience of the Court and is unacceptable even then Courts should be slow and generally reluctant to interfere with the quantum of punishment. The law on the subject is well settled by a series of decisions rendered by this Court. We remain content with reference to only some of them.
23. In Ranjit Thakur v. Union of India (1987) 4 SCC 611 : (AIR 1987 SC 2386), the apex Court held that the doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive 16 province of the Court-Martial, if the decision even as to the sentence is in defiance of logic, then the sentence would No.be immune from correction. Irrationality and perversity, observed the Court, are recognized grounds of judicial review. The following passage is apposite in this regard: "the doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision even as to sentence is an in defiance of logic, then the quantum of sentence would No.be immune from correction. Irrationality and perversity are recognized grounds of judicial review".
24. Similarly, in Dev Singh v. Punjab Tourism Development Corporation Limited (2003) 8 SCC 9 : (AIR 2003 SC 3712 : 2003 AIR SCW 4222), the Supreme Court, following Ranjit Thakur's case (supra) held: "...a court sitting in an appeal against a punishment imposed in the disciplinary proceedings will No.normally substitute its own conclusion on penalty. However, if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court then the court would appropriately mould the relief either by directing the disciplinary/ appropriate authority to reconsider the penalty imposed or to shorten the litigation it may make an exception in rare cases and impose appropriate punishment with cogent reasons in support thereof. It is also clear from the above noted judgments of this court, if the punishment imposed by the disciplinary authority is totally disproportionate to the misconduct proved against the delinquent officer, then the court would interfere in such a case."
25. Reference may also be made to the decisions of the Supreme Court in Union of India v. Ganayutham (1997) 7 SCC 463 17 : (AIR 1997 SC 3387 : 1997 AIR SCW 3464), Ex-Naik Sardar Singh v. Union of India (1991) 3 SCC 213 : (AIR 1992 SC 417 : 1992 AIR SCW
4) and Om Kumar v. Union of India (2001) 2 SCC 386 : (AIR 2000 SC 3689 : 2000 AIR SCW 4361), which reiterate the same proposition.
26. The above view of the apex Court was referred to by this Court in Sudarsan Giri case (supra) and by the apex Court in Jai Bhagwan case mentioned (supra).
27. Applying the said principle to the present case, it appears that for self-same cause of action when the authority dismissed the petitioner from service and on request being made by the All Orissa Forest Corporation Karmachari Sangha, he has been allowed to join as Mate at Muniguda Division with immediate effect and the period from the date of work termination till the date of joining was treated as leave pursuant to Annexure-1, therefore for the self-same cause of action the petitioner should No.have been prosecuted by the disciplinary authority. Since the disciplinary authority relying upon the enquiry report imposed penalty, the same could No.have been enhanced by the appellate authority without following due procedure of law as envisaged in 1986 Rules. In the fitness of things, taking the totality of the circumstances into account, this Court is of the view that the enhancement of punishment imposed by the appellate authority in Annexure-11 imposing major penalty by retiring the petitioner compulsorily from service amounted to 18 premature retirement as per Rule-121 (ix) of OFC Service Rules 1986. The said order of punishment could be substituted by order of the appellate authority considering the allegations made by imposing other suitable penalties as contemplated under 1986 Rules.
28. Therefore, this Court is of the considered opinion that the matter be remanded back to the appellate authority to reconsider the question of enhancement of punishment which has been done without following due procedure of law and also contrary to Rules 134 of 1986 Rules. Consequently, the order passed by the appellate authority under Annexure-11 is set aside and the matter is remitted back to the said forum for adjudication of the same in conformity with the provisions of law.
29. With the above observation and direction, the writ petition is disposed of. No order to costs. ……………………………… Dr.B.R.Sarangi, J.Orissa High Court, Cuttack The 4th December, 2014/Jagdev