SAILA BEHARI MOHANTY Vs. ORISSA STATE ROAD TRANSPORT

JUDGEMENT

(1.) THE petitioner was appointed as an Assistant Foreman in the Orissa State Road Transport Corporation ('the Corporation', for short) on 17 -4 -1980 which is a class III post. Subsequently he was promoted to the post of Assistant Works Engineer which is a class II post, having been selected by the Corporation Selection Board, and was appointed on 1 -5 -1986 on probation for a period of one year, After completion of the probation period while he was continuing in the said post as Assistant Works Engineer. For certain period he was directed to remain in charge of the post of D. T. M. (A) at Dhenkanal and was appointed as Drawing & Disbursing Officer by order dated 31 -10 -1986 of the Chairman of the Corporation. The Managing Director of the Corporation drew up a departmental proceeding against the petitioner while he was working as D.T.M, for certain alleged misconduct, in the month of November, 1988. The said order of the Managing Director was challenged by the petitioner in this Court in O.J.C. No. 2776 of 1989 on the ground that the Managing Director had no jurisdiction to initiate such proceeding and on the date of initiation of the proceeding he was not the appointing authority in respect of the petitioner. When the writ application was pending a memorandum was filed on behalf of the Corporation stating that the proceeding against the petitioner was dropped on 1 -1 -1990, In view of the memorandum filed on behalf of the Corporation, the writ application was disposed of as infructuous. After disposal of the aforesaid writ application, the Chairman of the Corporation again initiated a proceeding against the petitioner on the selfsame charges on 4 -6 -1990. After receipt of the charges petitioner submitted a representation on 10 -7 -1990 before the Managing Director who became the disciplinary authority after amendment of the Orissa State Road Transport Corporation Employees (Classification, Recruitment and Conditions of Service) Regulations, 1973, stating that the Chairman was not the disciplinary authority and that the second proceeding was based on the selfsame charges which had been dropped earlier. On the basis of the representation the Managing Director again decided to drop the proceeding and the same was dropped by order dated 16 -8 -1990 of the Managing Director. After dropping the proceeding, the Managing Director passed another order on 22 -8 -1990 directing that the period of suspension of the petitioner from 9 -3 -1988 to 31 -8 -1988 shall be treated as on duty. While the matter stood thus, the Chairman of the Corporation by way of review reopened the inquiry against the petitioner by recalling the order of the Managing Director in which the second proceeding was dropped and the petitioner was communicated about reopening of the inquiry by memorandum dated 14 -2 -1991. The said memorandum intimating the petitioner about reopening of the proceeding is challenged before this Court in the present writ application.

(2.) SHRI B. B. Mohanty, learned counsel appearing for the petitioner, has drawn the attention of this Court to Appendix 'X' of the Regulations formulated by the Corporation and submits that as per the amended provision, the Managing Director of the Corporation is the appointing authority. He further submits that the Chairman is the appellate authority and the Corporation is the reviewing authority. He has also drawn the attention of this Court to regulation 166 and submits that the authority as mentioned in Col. 6 of Appendix 'X' is the reviewing authority and according to Appendix 'X' it is only the Corporation which can review the order passed by the Managing Director and therefore, the Chairman had no jurisdiction to review the order. He has referred to the provisions contained in the Orissa State Road Transport Corporation 'Act, 1950 and submits that the 'Corporation' means the Board of Directors, and that in the present case the review of the order of the Managing Director could only have been done by the Board of Directors representing the Corporation and therefore, the order passed by the Chairman reviewing the order of the Managing Director is liable to be quashed.

(3.) THE second question raised by the learned counsel for petitioner is that once the proceeding is dropped it is deemed that the petitioner was exonerated from the charges and therefore, this proceeding on the selfsame charges is not maintainable. It appears from the records that the first proceeding was dropped on technical ground. The second proceeding was dropped by the Managing Director, even though the same was initiated by the Chairman on the ground that the charges against the petitioner were not likely to be substantiated in course of the inquiry. If the proceeding was initiated at the instance of the Chairman who is the higher authority, the Managing Director had no authority to issue a direction to drop the proceeding and therefore rightly the Chairman reviewed the order of the Managing Director. Here is a case where the proceeding had not at all been started and due to lack of authority the first proceeding was dropped and the second proceeding was also dropped by the Managing Director who had no authority to do so as the Chairman had initiated the proceeding being the higher authority. I, therefore, do not agree with the submission made by the learned counsel for petitioner that the proceeding initiated at the instance of the Chairman by reviewing the order of the Managing Director is not maintainable.