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Agadhu Charan Giri Vs. the Commercial Manager, Indian Airlines and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtOrissa High Court
Decided On
Case NumberOriginal Jurisdiction Case No. 1017 of 1983
Judge
Reported in1985(II)OLR513
ActsConstitution of India - Articles 226 and 227
AppellantAgadhu Charan Giri
RespondentThe Commercial Manager, Indian Airlines and anr.
Appellant AdvocateRanjit Mohanty, Adv.
Respondent AdvocateL. Rath, Adv.
Cases ReferredS. Jagadeesan v. Ayya Nadar Janaki Ammal College and
Excerpt:
.....justly and reasonably- surely, the constitution does not contemplate that a government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. 17 provides for other punishments as well short of removal and dismissal, any one of which, could be imposed commensurate with the gravity of the charges......the fate of the two criminal cases which could not bring about the conviction of the petitioner on criminal charges almost identical to the charges brought in the disciplinary proceeding, and for the further facts that the petitioner had rendered service under the indian airlines corporation for three decades and was to retire within three to four years, time; the punishment of removal from service was heavy and disproportionate. in support of his contention he relied on 1982(1) scale 529, nityananda naik v. paradip port trust and anr., a. i, r. 1984 s. c. 626, corporation of the city of nagpur civil lines, nagpur and anr. v. ramachandra g. modak and ors., and a. i. r. 1985 s. g. 772, shankar dass v. union of india and anr., in the case of nityananda naik (supra) the supreme court did.....
Judgment:

K.P. Mohapatra, J.

1. The petitioner has challenged the order dated 11. 3. 1983 passed by opposite party No. 2 in Annexura 1 removing him from service.

2. The case of the petitioner in brief is that he was serving as a Porter of the Indian Airlines Corporation in the eastern region and was posted to Bhubaneswar Airport. On the allegations that on 10. 9. 1981 alongwith some other persons he trespassed into the house of Shri S. K. Choudhury, Senior Traffic Assistant, abused and manhandled him and further trespassed into the house of Shri A. R. Sen, Traffic Assistant and abused and assaulted him, a disciplinary proceeding was started against him, he was placed under suspension and charges were framed against him. Simultaneously, Shri S. K. Choudhury lodged F. I. R. on allegations of assault at Bhubaneswar Police Station on the basis of which G. R. Case No. 2009 of 1981 was initiated in the Court of the Sub-Divisional Judicial Magistrate, Bhubaneswar. After investigation, the Investigating Officer found that the F, I. R. related to a non-copnizable offence under Section 323 of the Indian Penal Code and so he submitted final report on 4. 3. 1982 recommending that the petitioner be discharged from bail bond. The Sub-Divisional Judicial Magistrate on receipt of the final report did not proceed any further and presumably the case came to an end. Shri A. R. Sen submitted F. I. R. at Bhubaneswar Police Station which culminated in submission of a charge-sheet against the petitioner- for offences under Sections. 448, 341 and 323 read with Section 34 of the Indian Penal Code. The case was tried in the Court of the Judicial Magistrate of the First Class at Bhubaneswar who, by order dated 30. 7 184, acquitted the petitioner of all the charges. The petirirner himself filed a criminal case against Shri S K. Choudhury and Shri A. R. Sen for assault on him which was registered as I. C. C Case No 116 of 1981 in the Court of the Sub-Divisional Judicial Magistrate, Bhubaneswar. The case ended in acquittal. Against the order of acquittal the petitioner appealed to this Court under Section 378 of the Code of Criminal Procedure and the said appeal has been registered as Criminal Appeal No. 430 of 1982 While the Criminal cases referred to above were sub-judice and without waiting for the results thereof, the disciplinary proceeding continued. The evidence recorded by the Enquiring Officer did not warrant a finding that the charges against the petitioner were established. Despite the aforesaid facts, the petitioner who had rendered more than 31 years of service was awarded a severe punishment of removal from service. Accordingly the petitioner has prayed for issuance of a writ of certiorari for quashing of Annexure-1.

3. The opposite parties have stated in their counter that the disciplinary proceeding was initiated and disposed of according to law after complying with the rules of natural justice. The petitioner had abused and mercilessly assaulted Shri S. K. Choudhury and Shri A. R. Sen employees of the Indian Airlines Corporation, Bhubaneswar along with his associates. There was believable and acceptable evidence to warrant a finding that the charges brought against the petitioner had been established. Because the petitioner was acquitted in G. R. Case No. 2004 of 1981 it cannot be concluded that the charges brought against him were not proved inasmuch as, criminal cases and disciplinary proceeding according to law can continue against the same person on the same set of allegations. The criminal case brought by the petitioner against Shri S K. Choudhury and Shri A. R. Sen had no bearing on the disciplinary proceeding. The petitioner had an alternative remedy by way of preferring an appeal against the punishment imposed on him which he did not exhaust. It is, therefore, not a fit case in which this Court should exercise certiorari jurisdiction for quashing Annexure-1.

4. Mr. Ranjit Mohanty, learned counsel appearing for the petitioner contended that the Commercial Manager who passed the order of removal (Annexure-1) was not the competent authority to impose the punishment of removal on the petitioner for which Annexure- 1 is liable to be quashed. This contention was disputed by Mr. L. Rath, learned Standing Counsel appearing for the opposite parties on the basis of the latest amendments to the Standing Orders (Regulations) concerning Discipline and Appeals in respect of the employees of the Indian Airlines Corporation. The latest amendment was by notification No. MPDO 2/4502/2/73 which was published in the Gazette of India dated 7 12 1974 The amendment was to Schedule-I of the Standing Orders (Regulations) concerning Discipline and Appeals in respect of the employees of the Indian Airlines Corporation framed by notification No. GS-35/160 and published in the Gazette of India dated 25. 11. 1961. According to the Standing Order 17(g), punishment of removal from the service of the Corporation can be imposed on an employee. According to Schedule-I, as amended in 1974, in respect of employees of Grades 1 to 6, the Regional Departmental Head is the authority competent to impose punishment of removal from the service of the Corporation. In para 9 of the proviso below Schedule-I it has been explained that in the regions of Bombay, Calcutta, Delhi and Madras, the Commercial Manager is one of the Regional Departmental Heads. Therefore, it is amplyclear that the Commercial Manager being a Regional Departmental Head, was competent to impose the punishment of removal from the service of the Corporation in respect of employees of Grades 1 to 6. It was not disputed that the petitioner being a Porter was an employee within Grades 1 to 6 and so the Commercial Manager being the Regional Departmental Head was competent to pass the order of removal (Annexure-1). On this point there seems to have been no illegality and so the contention of Mr. Ranjit Mohanty on this score is not tenable.

5. The next contention of Mr. Ranjit Mohanty was that the petitioner had rendered service under the Indian Airlines Corporation for about 31 years and was to retire within 3 to 4 years time. He was not convicted nor punished by the criminal Court. For the self-same charges, however, the Enquiring Officer believed the statements of witnesses and found them established. In a case of this nature, according to him, the severe punishment of removal from service was disproportionate and unwarranted.

6. It is to be recalled that on the basis of the F. I. R. lodged by Shri S. K, Choudhury. G. R. Case No. 2009 of 1981 was initiated, but on the report that the offence under Section 323 of the Indian Penal Code was not cognizable no further action was taken. Thus this case ended with a final report, On the basis of the F. I. R of Sri A. R. Sen, G. R. Case No 2004 of 1981 was initiated and after trial the petitioner was acquitted. It was not disputed that the charges brought against the petitioner in the aforesaid cases and the charges for which the disciplinary proceeding was initiated and concluded were almost identical.

7. Law is settled by a series of derisions and there is consensus of judicial opinion that on the self-same allegations a disciplinary proceeding and a criminal case against the same person can continue. The disciplinary authority is competent to draw its own conclusion on the basis of the evidence adduced before it, in support of the charges. The criminal Court on the other hand will record its own findings in respect of the charges on the basis of the evidence adduced before it in support thereof. It cannot be stated as a proposition of law that an employee against whom a disciplinary proceeding has been initiated cannot be proceeded with in the criminal Court. Even an acquittal in the criminal Court does not bar a disciplinary proceeding on the self-same charges. The principle was not disputed during hearing and is supported by the following decisions reported in A. I. R. 1963 S. C. 1723, State of Andhra Pradesh and Ors. v. Sree Rama Rao, AIR 1964 S. C. 72, S. Pratap Singh v. State of Punjab, 1980(2) S. L. R. 724, Champaklal Bhudarlal v. J. B. Jhala, and 1930(3) S. L. R. 371, Mandal Dutt v. Rajasthan State Road Transport Corporation and Anr. to name a few.

G. R. Case No. 2009 of 1981 initiated at the instance of Shri S. K. Choudhury was a non-starter. G R Case No. 2004 of 1981 initiated at the instance of Shri A. R. Sen ended in acquittal of the petitioner. The sequence of events will show that the departmental proceeding was concluded earlier than G. R. Case No. 2004 of 1981. It cannot therefore, in the facts and circumstances of the case, be held that the disciplinary proceeding was incompetent, unwarranted and vitiated.

8. Mr. Ranjit Mohanty did not contend that there was absolutely no trustworthy evidence before the Enquiring Officer to warrant a conclusion that the charges brought against the petitioner were proved in the departmental proceeding. He also did not point out that the Enquiring Officer acted on evidence which was legally inadmissible or refused to accept admissible evidence. On the other hand, the finding of the Enquiring Officer (Annexure-2/A) is elaborate dealing with the evidence adduced by the Department, as well as, by the petitioner. Adequate reasons have been assigned in the report of enquiry. Opportunity was given to the petitioner to defend himself and the rules of naturals justice were complied with. The disciplinary authority took a very serious view, because, the acts of the petitioner were subversive of discipline. Therefore, by Annexure-1 the disciplinary authority imposed the punishment of removal from the service of the Corporation Mr. L- Rath, learned Standing Counsel urged that in a certiorari proceeding, this Court should not act as a Court of appeal and after reappraisal and preponderance of evidence disturb the finding of the disciplinary authority in any manner. His contention is well-founded. It is settled law that certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by the inferior Courts or Tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate Court This Innitation necessarily means that findings of fact reached by the inferior Courts of Tribunals, as a result of the appreciation of evidence, cannot be re-opened or questioned in the proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. The above proposition is supported by authorities such as, A. I. R. 1964 S. C. 477, Syed Yakoob v. K. S. Radhakrishnan and Ors., A. I. R. 1976 S. C. 232, Swam Singh and another v. State of Punjab and Ors., and A. I. R. 1985 Ori. 187 Satyapriya Mohapatra v. Ashok Pandit and Ors. to name a few. The settled-principle of law being as above, we hardly find any grounds to interfere with the findings of fact recorded by the Enquiring Officer and accepted by the disciplinary authority.

9. Mr. Ranjit Mohanty lastly contended that in view of the fate of the two criminal cases which could not bring about the conviction of the petitioner on criminal charges almost identical to the charges brought in the disciplinary proceeding, and for the further facts that the petitioner had rendered service under the Indian Airlines Corporation for three decades and was to retire within three to four years, time; the punishment of removal from service was heavy and disproportionate. In support of his contention he relied on 1982(1) SCALE 529, Nityananda Naik v. Paradip Port Trust and Anr., A. I, R. 1984 S. C. 626, Corporation of the City of Nagpur Civil Lines, Nagpur and Anr. v. Ramachandra G. Modak and Ors., and A. I. R. 1985 S. G. 772, Shankar Dass v. Union of India and Anr., In the case of Nityananda Naik (supra) the Supreme Court did not go behind the finding of the disciplinary authority to the effect that the charge was ' established. Nevertheless, it was found that the punishment imposed was wholly disproportionate to the charge. In the case of Corporation of Nagpur {supra) Fazal AH., J. speaking for the Court held :

' The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue. This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal Court. Normally where the accused is acquitted honourably and combletely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its direction (discretion) in any way fettered.

The import of this decision seems to be that though there is no legal bar to continue a departmental enquiry on the self-same charges after acquittal in a criminal Court, the departmental enquiry loses much of its importance and expediency and a light view of the matter is permissible. In the case of Skankar Dass (supra) Chandrachud, C. J, in the facts and circumstances of the case held as follows :

' It is to be lamented that despite these observations of the learned Magistrate the Government chose to dismiss the appellant in a huff without applying its mind to the penalty which could appropriately be imposed, upon him in so far as his service career was concerned. Clause (a) of the second proviso to, Article 311(2) of the Constitution confers on the Government the power to dismiss a person from service on the ground of conduct which has led to his conviction on a criminal charge. But that power like every other power has to be exercised fairly, justly and reasonably- Surely, the Constitution does not contemplate that a Government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may perhaps not be entitled to be heard on the question of penalty since Clause (a) of the second proviso to Article 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly. Considering the facts of this case, there can be no two opinions that the penalty of dismissal from service imposed upon the appellant is whimsical.'

The ratio decidendi of these three cases appears to be that while awarding punishment to an employee in a disciplinary proceeding, it is the duty of the disciplinary authority to act fairly, justly and reasonably so that the punishment so imposed shall not be disproportionate to the nature of the charge established. In this case the petitioner was almost at the fag end of the service. But for the disciplinary proceeding, he would have perhaps been retired by now. Removal brought an end to his service career which may have serious repercussions on pensionary benefits rendering his long service fruitless. In the above background and in the facts and circumstances of the case, we are inclined to agree with Mr. Ranjit Mohanty that the punishment imposed on the petitioner was severe and disproportionate. For having arrived at the above conclusion, we do not at all mean that the petitioner shall not be visited with punishment. Standing Order No. 17 provides for other punishments as well short of removal and dismissal, any one of which, could be imposed commensurate with the gravity of the charges. We further notice that after the order of removal (Annexure-1) was passed on 11 3. 1983, the petitioner has not continued in service In view of the order which we are going to pass, the period from 11.3. 1983 till the fresh order that the disciplinary authority will pass shall be treated as shall be directed by the disciplinary authority.

10. Mr. L. Rath, learned Standing Counsel pointed out that in Standing Order No. 35 an appeal forum has been provided. Instead of preferring an appeal to the appropriate authority, the petitioner filed the writ petition which deserves dismissal. In support of his contention he relied on 1983(I) S.LR. 776, S. Jagadeesan v. Ayya Nadar Janaki Ammal College and another. In the said decision opportunity was given to respondent No. 1 to prefer an appeal to the prescribed authority with a further direction that the prescribed authority shall entertain and decide the appeal on merits without raising objection to limitation. This decision in our view, does not support the contention of Mr. L. Rath, in any manner. Standing Order No. 35 gives a right of appeal to the specified authority within one month of service of the punishment order. In the present case the period of limitation is long over. In view of the order that we are going to pass, we do not consider it necessary to give a similar direction, because, the petitioner may get a fresh opportunity of taking advantage of Standing Order No. 35.

11. For the reasons stated above, the writ petition succeeds in part: Annexure-1 is quashed. The disciplinary authority shall be free to impose any other punishment provided in Standing Order No. 17 except removal and dismissal of the petitioner in accordance with law. Parties to bear their own costs.

J.K. Mohanty, J.

12. I agree.


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