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S.H. Rahman Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 394 of 1978
Judge
Reported in1985(II)OLR162
ActsOrissa Civil Services (Classification, Control and Appeal) Rules, 1962 - Rule 15 and 15(12)
AppellantS.H. Rahman
RespondentState of Orissa and ors.
Appellant AdvocateP.V. Ramdas, Adv.
Respondent AdvocateAddl. Standing Counsel and ; Standing Counsel (C.T.)
Excerpt:
.....having been initiated under rule 15 of the orissa civil services (classification, control and appeal) rules, 1962, it was not open to the government to dispose of the proceeding under rule 16; thirdly, non-supply of a copy of the enquiry report was tantamount to denial of an opportunity to him to effectively exercise the right of appeal and fourthly, the disposal of the appeal and even the memorial by a non-speaking order was contrary to established canons of fair play and procedure. he did not fail to take into account the difficulties that the petitioner faced at the station. i feel that provisions of residential quartets is most urgent and immediate in a place like girisola if the duties and responsibilities of the check-gate personnel are to be rigidly enforced. ' the enquiring..........that the procedure prescribed in rule 15 of the orissa civil services (classification, control and appeal) rules, 1962 would be followed and the government would function as the disciplinary authority. a set of charges was framed and the charge-sheet was served on the petitioner. the petitioner showed cause. the enquiring officer took evidence and submitted report to the government. he exonerated the petitioner from seven charges. he found against him in respect of charge nos. 2, 5 and 6. the petitioner was released from suspension and reinstated with effect from november 10, 1976. on december 8, 1976, the government taking into account the enquiry report imposed the punishment of censure and directed that the period of suspension would be treated as such. the petitioner preferred an.....
Judgment:

R.C. Patnaik, J.

1. The petitioner has invoiced our extraordinary jurisdiction under Art. 226 of the Constitution of India for the quashing of the order, dated 8. 12. 1976 (Annexure-5) passed by the Government imposing penalty in a disciplinary proceeding; alternatively for the quashing of the appellate decision rejecting his appeal and for other reliefs.

2. The petitioner was the Assistant Commercial Tax Officer posted at the Girisola check-gate in the district of Ganjam. By order, dated 5. 4.1972 (Annexure-1) he was placed under suspension. After a preliminary enquiry into the allegations of negligence in the discharge of duties and recourse to malpractice, a disciplinary proceeding was initiated. Five others who were also involved faced a joint enquiry which was entrusted to the Special Additional Commissioner of Commercial-taxes. The Government issued an order dated July 7, 1972 (Annexure-2) that the procedure prescribed in Rule 15 of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 would be followed and the Government would function as the disciplinary authority. A set of charges was framed and the charge-sheet was served on the petitioner. The petitioner showed cause. The Enquiring Officer took evidence and submitted report to the Government. He exonerated the petitioner from seven charges. He found against him in respect of charge Nos. 2, 5 and 6. The petitioner was released from suspension and reinstated with effect from November 10, 1976. On December 8, 1976, the Government taking into account the enquiry report imposed the punishment of censure and directed that the period of suspension would be treated as such. The petitioner preferred an appeal to the Chief Minister. By order, dated May 18, 1977 (Annexure-7) he was informed that his, appeal was rejected. He submitted a memorial to the Governor. By Annexure-9 dated November 9, 1979 he was informed that his memorial was rejected.

3. The grievances of the petitioner are four-fold. Firstly, having regard to the stand taken by him and the findings of the Enquiring Officer, he should have been completely exonerated and inasmuch as he has been exonerated of the serious charges, for minor irregularities no penalty should have been imposed. Secondly, the disciplinary proceeding having been initiated under Rule 15 of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962, it was not open to the Government to dispose of the proceeding under Rule 16; thirdly, non-supply of a copy of the enquiry report was tantamount to denial of an opportunity to him to effectively exercise the right of appeal and fourthly, the disposal of the appeal and even the memorial by a non-speaking order was contrary to established canons of fair play and procedure.

4. In the return submitted, the opposite parties while admitting that a copy of the enquiry report was not supplied, refuted the other allegations.

5. We take up the contentions raised seriatim. Doubtless, the petitioner was exonerated of the serious allegations which were levelled against him. Nevertheless certain irregularities had been committed, certain infractions were admitted by him. He pleaded hardship and difficulties. He stated that he followed the practice which was being followed by his predecessors at the station. We have been taken through the enquiry report which has been annexed to the counter as Annexure-A. The Enquiring Officer considered the allegations with meticulous care, and the materials in great detail. He did not fail to take into account the difficulties that the petitioner faced at the station. We reproduce the following in paragraph 19 of the report.

'During the course of enquiry Sri Rahaman pressed to consider the practical difficulties encountered by the officer in charge of a check-gate especially at Girisola. He pointed out that certain basic facilities commensurate with the duties and responsibilities assigned to the check-gate officer are wanting at Girisola, Housing difficulty is main at Girisola as pointed out by him so much so that even the office is being located in two or three small sheds the roof of which is leaking during the rains and there is no other accommodation available in Girisola village for taking on rent as office. There is also no hotel at Girisola and no facility for education of the children. One has to go to Berhampur, 20 K. Ms. away from Girisola, to take his meal. Even if the officer wants to stay somehow in one of the thatched mud houses at Girisola village the difficulty of latrine and drinking water is acute. For this reason all his predecessors were staying at Berhampur. One cannot deny the practical difficulties the officer and staff of of the department have to face at Girisola and it is also a fact that no residential accommodation or office accommodation has yet been made available. In the circumstances, I feel that it would be unjust and improper to overlook the practical difficulties pointed out by the officer. The check-gate works round the clock without Sunday or holidays. I feel that provisions of residential quartets is most urgent and immediate in a place like Girisola if the duties and responsibilities of the check-gate personnel are to be rigidly enforced.'

The Enquiring Officer held that the petitioner committed certain procedural irregularities and recommended to the Government that the petitioner might be visited with punishment of censure and the period of suspension might be treated as 'on duty' for all purposes.

6. We have also considered the explanation of the petitioner. He has admitted violation of some instructions, deviation from certain procedure. We are not sitting in appeal nor has it been shown to us that the report is perverse, i. e., the conclusions are such which no reasonable man properly instructed could reach. This part of the argument, therefore, fails and we are of the opinion that there is no infirmity in the conclusion of the Enquiring Officer that three of the charges were established.

7. The second contention of the petitioner is also devoid of any force. No doubt, the Government while drawing up the proceeding as per Annexure-2 decided that the procedure prescribed in Rule J5 of the Orissa Civil Services (Classification, Control and Appeal) Rules would be followed. But nothing prevented the Government after considering the enquiry report to stop short at that stage and impose a minor penalty. It is not necessary, when the Government is of the opinion that a minor penalty is called for and would serve the ends of justice, to follow the procedure provided in Rule 15 in its entirety. The relevant provisions in Rule 15 as it stood at the time before it underwent a change by the Orissa Civil Services (Classification, Control and Appeal) {Amendment) Rules, 1982, are as follows :

(7) At the conclusion of the inquiry the inquiring authority shall prepare a report of the inquiry, recording its findings on each of the charges together with reasons therefor. If, in the opinion of such authority, the proceedings of the inquiry establish charges different from those originally framed, it may record its findings on such charges, provided that the findings on such charges shall not be recorded, unless the Government servant has admitted the facts constituting them or has had an opportunity of defending himself against them. The inquiring authority may recommend the punishment to be inflicted when the charges are established on the findings.

(8) The record of the inquiry shall include :-

(i) the charges framed against the Government servant and the statement of allegations furnished to him under Sub-rule (2) ;

(ii) his written statement of defence, if any ;

(iii) the oral evidence taken in the course of the inquiry ;

(iv) the documentary evidence considered in the course of the inquiry ;

(v) the orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry ;

(vi) a report setting out the findings on each charge and the reasons therefor ; and

(vii) the recommendation of the inquiring authority, if any, regarding the punishment to be inflicted.

(9) The disciplinary authority shall, if it is not the inquiring authority, consider the record of the enquiry and record its findings on each charge.

(10) (i) If the disciplinary authority, having regard to its findings on the charges, is of the opinion that any of the penalties specified in Clauses (vi) to (ix) of Rule 13 should be imposed, it shall-

(a) furnish to the Government servant 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 ; and

(b) give him a notice stating the penalty proposed to be imposed on him and calling upon him to submit within a specified time such representation as he may wish to make against the proposed penalty provided that such representation shall be based only on the evidence adduced during the enquiry.

(ii) (a) In every case in which it is necessary to consult the Commission under the provisions of the Constitution of India and the Orissa Public Service Commission (Limitation of Functions) Regulations, the record of the inquiry-together with a copy of the notice given under Clause (i) and the representation made in response to such notice, if any, shall be forwarded by the disciplinary authority to Commission for its advice.

(b) On receipt of the advice of the Commission, the disciplinary authority shall consider the representation, if any, made by the Government servant as aforesaid and the advice given by the Commission and determine what penalty, if any, should be imposed on the Government servant and pass appropriate orders on the case.

(iii) In any case in which it is not necessary to consult the Commission the disciplinary authority shall consider the representation, if any, made by the Government servant in response to the notice under Clause (i) and determine what penalty, if any, should be imposed on the Government servant and pass appropriate orders in the case.

(11) If the disciplinary authority, having regard to its findings, if of the opinion that any of the penalties specified in Clauses(i) to (v) of Rule 13 should be imposed, it shall pass appropriate orders in the case.

Sub-rule (11) of Rule 15 specifically authorised the course adopted by the disciplinary authority in this case. Hence, when the disciplinary authority after considering the enquiry report and other materials was of the opinion that a minor penalty was called for, it could impose a minor penalty without traversing the whole course prescribed by Rule 15. The second contention, therefore, fails.

8. The third contention of the petitioner is that he was denied an effective opportunity of exercising his right of appeal by denial of a copy of the enquiry report. Sub-rule (12) of Rule 15 reads as under :

'(12) 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 Las not accepted the advice of the Commission, a brief statement of the reasons for such non-acceptance. '

The petitioner has also submitted that a copy of the advice given by the Commission was not supplied to him. These allegations are admitted by the opposite parties. The requirement of the supply of a copy of the report has two-fold purposes. Firstly, the servant must know why he is being condemned, the reasons for the decision so that be does not nourish a grievance in his breast that a decision has been arbitrarily taken. Secondly, the appellate remedy to be meaningful, the appellant ought to know the reasons on which the decision is founded, the process of resuscitation followed and the materials taken into consideration and those ignored. He can demonstrate the errors, if a copy of the enquiry report is supplied. Furnishing a copy of the enquiry report is, therefore, a mandatory requirement. That is the purpose and object of Sub-rule (12). We are, therefore, of the view that an infirmity crept into the proceeding by violation of Sub-rule (12).

9. There is also force in the last contention of the petitioner, as urged ,by his learned counsel Mr. P. V. Ramdas. The appellate authority was exercising a quasi-judicial function while disposing of an appeal preferred by a servant on whom penalty has been imposed in a disciplinary proceeding. The penalty has far-reaching consequences so far as the servant is concerned. Therefore, it is now well-settled in law that the appellate authority should pass a speaking order while disposing of an appeal preferred by a servant who has been punished in a disciplinary proceeding. The appellate authority muse give reasons why it did not find any merit in the appeal. The reasons need not be lengthy or in great detail. But there ought to be the barest minimum to satisfy the requirement of just and fair play. The servant ought to know why his appeal is dismissed. Knowing the reasons he may plan his future course of action. The appellate order as per Annexure-7 does not furnish any reason. Therefore, it is not sustainable.

10. We have, however, already indicated that the infirmity crept in at the stage before the presentation of the appeal when the petitioner though entitled in law to copies of the enquiry report and the opinion of the Public Service Commission, was not furnished with the same.

11. We would, therefore, vacate the appellate order rejecting the petitioners appeal as per Annexure-7 and the order Annexure-9 rejecting the petitioner's memorial. The copy of the enquiry report which has been filed in this case as Annexure-A has been served on the counsel for the petitioner. No further copy need be served on the petitioner. But he should be supplied with a copy of the opinion of the Public Service Commission. The petitioner, may, within a fortnight of the receipt of the opinion, present an appeal to the Government.

12. At this stage, it would not be inappropriate to draw the attention of the Government to one aspect which has been strenuously urged on us by the counsel for the petitioner. The petitioner was placed under suspension with effect from 5. 4. 1972 and was released from suspension with effect from 10-11-1976. For about 4 years and a half he remained under suspension. The counsel has made a grievance that we should quash the punishment of suspension as arbitrary and grossly disproportionate to the delinquency found. He has also drawn our attention to the various aspects as recorded by the Enquiring Officer and especially his recommendation against the background of what he found in the enquiry. As the petitioner would be appealing to the Government, we express no opinion on the punishment imposed. But we trust that while disposing the appeal the Government should also consider if the punishment imposed has not been excessive and harsh in the facts and circumstances.

13. In the result, the writ application is allowed in part. The petitioner shall, if so advised, present the appeal within one month from today and the opposite party No. 1 would dispose of the appeal, if presented, within a period of four months from the date of presentation. There would be no order as to costs.

S.C. Mohapatra, J.

I agree.


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