Sridhar Chand vs State of Orissa and Others

R.N. Misra, J.—This is an application for a writ of certiorari for quashing the punishment imposed in a disciplinary proceeding.

Petitioner was working as a Grade I stenographer in the Collectorate of Keonjhar when in March, 1968, a set of charges as per Annexure-I, was framed against him and he was called upon to submit his explanation to Sri B. K. Misra, Compensation Officer, Keonjhar, who has been appointed as the enquiring officer. Petitioner, offered his explanation and an enquiry followed in which he participated. The enquiring officer submitted his report dated 25-5-1968 holding that all the three charges had been established against the Petitioner. Petitioner was given a second notice and was reduced in rank by way of punishment. He preferred an appeal and a memorial but both of them were rejected.

At the hearing of this application, Petitioner�s counsel submitted a lone contention namely as along with the charges an enquiring officer had been appointed the proceeding is vitiated because the question of deciding whether an enquiry would continue should have been left, open till the explanation to the charges had been furnished. He placed reliance on a Bench decision of this Court in the case of Rabindranath Mohanty v. Government of Orissa and Anr. ILR 1975 Cutt 357.

The punishment imposed being one of reduction in rank is prescribed under Rule 13(vi) of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962. The procedure for imposing such a penalty is as provided in Rule 15 of the said Rules. Sub-rules (2) and (4) of Rule 15 which are relevant for the present purpose may be extracted:

(2) The disciplinary authority shall frame definite charges on the basis of the allegations on which the inquiry to be held. Such charges together with a statement of the allegations on which they are based, shall be communicated in writing to Government servant and he shall be required to submit within such time as may be specified by the disciplinary authority not ordinarily exceeding one month a written statement of his defence and also to state whether he desires to be heard in person.

Explanation -....

(4) On receipt of the written statement of defence, or if no such statement is received within the time specified, the disciplinary authority may itself inquire into such of the charges as are not admitted or, if it considers it necessary so to do, appoint a board of inquiry or an inquiring officer for the purpose.

The procedure provided by Rule 15 does contemplate that the charges have to be communicated to the delinquent officer requiring him to file his written statement of defence and on receipt of the written statement of defence, the disciplinary authority has to decide whether he would make the enquiry himself or appoint some other agency for making the enquiry of such of the charges which are not admitted. There may be instances where the charges would be admitted and no enquiry at all would be necessary. Similarly, the written statement of defence may indicate a set of facts which may lead the disciplinary authority to hold that the enquiry need not be conducted. Some charges may be admitted and some others may be refuted which may lead the disciplinary authority to decide that the enquiry need not be conducted by himself and may be entrusted to an enquiring officer. Similarly, the written statement of defence may indicate certain aspects which might persuade the disciplinary authority to handle the enquiry himself. Keeping these aspects of the aspects in view, the Rule has appropriately postponed the question of appointing an enquiring officer till the written statement of defence is filed.

In the reported decision relied upon by the Petitioner, the delinquent had objected to the direction to submit his written statement of defence to the charges to an enquiring officer as notified in the proceeding. He claimed that under Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969, which applied to the disciplinary proceeding against him, he was entitled to submit his written statement of defence to the disciplinary authority and after the written statement had been filed, it was still open to the disciplinary authority either to continue the proceeding or to drop it. Therefore, immediately after the charges had been communicated to him, he started disputing the direction to submit his written statement of defence to an enquiring officer and maintained that his written statement of defence would be presented to the disciplinary authority and not the enquiring officer. The Court on reading the provisions of Rule 8 which undoubtedly is in similar lines as Rule 15 of the Orissa Rules, held that the Petitioner�s contention was correct. Mohanti, J. spoke for the Division Bench thus:

The language of sub-rules (5) and (6) makes it sufficiently clear that before submission of the written statement of defence by the delinquent and consideration thereof by the disciplinary authority, the appointment of Inquiring Officer is not permissible. If the charges are admitted, there would be no necessity for appointment of an Inquiring Officer. If, however, the charges are denied, the disciplinary authority is to consider the written statement of defence and from an opinion that there are grounds for inquiring into the truth of the imputation of misconduct or misbehaviour. It is only at that stage that the question of appointment of Inquiring Officer would arise. Under the rules, the written statement of defence is to be submitted to the disciplinary authority. In the present case the appointment of the Inquiring Officer was made along with framing of the charges and the Petitioner was directed to submit his explanation to the Inquiring Officer vide Annexure-18. Thus, the impugned order has been passed in clear violation of the rules. In this view of the matter, the order of appointment of the Inquiring Officer and the direction for submission of explanation to the Inquiring Officer cannot be sustained in law.

As we have already pointed out, in the reported decision, the delinquent officer instead of acceding to the direction for submitting written statement of defence to the enquiring officer challenged it. There was, therefore, no acquiescence. In the present case, Petitioner submitted his written statement of defence; participated in the enquiry without any demur; in the show cause against the findings, he never disputed, this fact nor in his appeal and/or memorial did he raise such a contention. In the reported decision, it was nowhere said that appointment of an enquiring officer along with flaming of charges would vitiate the proceeding beyond repair. In the circumstances, we are not prepared to interfere in the matter on the basis of the ratio of the reported decision. The facts here are very different and the conduct of acquiescence in the absence of a finding that the mistake vitiated the proceeding to a point of nullity, we are not prepared to accept Mr. Rath�s contention that the punishment is liable to be quashed. On the other hand, we are inclined to agree with learned Government Advocate that finding no other tenable question to be raised and finding the reported decision which had been delivered soon before the writ application was filed, the Petitioner had for the first time raised this contention.

The writ application fails and is dismissed. We however, make no order for costs.

N.K. Das, J.

I agree.

Application dismissed.