STATE OF ORISSA Vs. BIDYABHUSHAN MOHAPATRA

JUDGEMENT

(1.) Bidyabhushan Mohapatra - hereinafter called 'the respondent' was a permanent nongazetted employee of the State of Orissa in the Registration Department and was posted at the material time as a Sub-Registrar at Sambalpur. Information was received by the Government of the State of Orissa that the respondent was habitually receiving illegal gratification and that he was possessed of property totally disproportionate to his income. The case of the respondent was referred by order of the Governor of Orissa to the Administrative Tribunal constituted under R. 4 (1) of the Disciplinary Proceedings (Administrative Tribunal) Rules, 1951 framed in exercise of the powers conferred by Art. 309 of the Constitution. The Tribunal held an enquiry in the presence of the respondent on two charges - (1) relating to five specific heads charging the respondent with having received illegal gratification, and (2) relating to possession of means disproportionate to his income as a Sub-Registrar. The Tribunal held that there was reliable evidence to support four out of the five heads in the first charge 'of corruption' end also the charge relating to possession of means disproportionate to the income and recommended that the respondent be dismissed from service. The finding of the Tribunal was tentatively approved by the Governor Orissa and the respondent was called upon to show cause why he should not be dismissed from service as recommended. The respondent made a detailed submission in rejoinder and contended, inter alia, that the Tribunal held the enquiry in a manner contrary to rules of natural justice. After consulting the Public Service Commission the Governor of Orissa by order dated September 26, 1957 directed that the respondent be dismissed from service. The respondent then applied to the High Court of Orissa by petition under Arts. 226 and 227 of the Constitution, inter alia, for a writ quashing the entire proceedings before the Tribunal beginning from the charges and culminating in the order of dismissal and directing the State of Orissa to forbear from giving effect to the order of dismissal dated September 26, 1957 and for a declaration that he be deemed to have continued in his post as Sub-Registrar.

(2.) In support of his petition the respondent submitted that the order of dismissal was void because the rules relating to the holding of an enquiry against non-gazetted public servants, called the Disciplinary Proceedings (Administrative Tribunal) Rules, 1951 - were discriminatory, and that in holding the enquiry against him the Tribunal had violated the rules of natural justice. Following their view in Dhirendranath Das vs. State of Orissa, ILR (1958) Cut 11, the High Court held that the impugned rules were discriminatory and on that account void, and that the respondent was entitled to a writ declaring that the order of dismissal was inoperative. As, however, the case of Dhirendranath Das, ILR (1958) Cut 11, was carried in appeal to this Court, the High Court proceeded to deal with the second submission. The High Court held that the findings of the Tribunal on charges 1(a) and 1(e) were vitiated because it had failed to "observe the rules of natural justice", but they held that the findings on charges 1(c), 1(d) and charge (2) were supported by evidence and were not shown to be vitiated because of failure to observe the rules of natural justice. The High Court accordingly directed that if this Court disagreed with the view in Dhirendranath Das's case, ILR (1958), Cut 11 the findings in respect of charges 1 (a) and 1(e) be set aside as being opposed to the rules of natural justice but the findings in respect of charges 1 (c) and 1(d) and Charge (2) need not be disturbed", and "that it would then be left to the Government to decide whether, on the basis of those charges, the punishment of dismissal should be maintained or else whether a lesser punishment would suffice."

(3.) The State of Orissa has appealed to this Court with certificate of fitness granted by the High Court under Art. 132 of the Constitution The High Court in Dhirendranath Das's case, ILR (1958) Cut 11 had held that at the material time there were in operation two sets of rules governing enquiries against non-gazetted public servants:(i) the Disciplinary Proceedings (Administrative Tribunal) Rules, 1951 (called the Tribunal Rules) and (ii) the Civil Services (Classification, Control and Appeal) Rules, 1930 with the subsidiary rules framed thereunder such as the Bihar and Orissa Subordinate Service Discipline and Appeal Rules, 1935 (collectively called the Classification Rules), and these two sets of rules provided for different punishments and justified commencement of proceedings for different reasons, and whereas there was a right of appeal against the order of a departmental head imposing punishment, under the Classification Rules there was no right of appeal against the order of the Governor, imposing punishment, under the Tribunal Rules. The High Court observed