RADHAKANTA PATNAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE plaintiff is the appellant--in this first appeal,--from a decision of the learned additional Subordinate Judge of Cuttack, whereby he dismissed the plaintiff's suit against the State of Orissa for a decree of Rs. 20. 000/- as damages for wrongful dismissal and other incidental reliefs in the circumstances hereinafter stated.

(2.) THE facts, shortly stated were these. The plaintiff (appellant herein) one radhakanta Patnaik was a temporary Overseer of the Public Works Department appointed on June, 1942. He was in charge of Manijanga Section under jagatsingpur Subdivision when on December 17, 1950 the Chief Engineer, defunct irrigation Department, Orissa intimated to the S. D. O. P. W. D. Jagatsingpur that he (the Chief Engineer) would tour in his area from 24th to 27th December, 1950 and desired that Anantapur-Paradwip service road was made motorable for the station-wagon; accordingly the S. D. O. , Jagatsingpur ordered the plaintiff,--who was the Sectional Officer then in charge of Manijanga Section,--that he should keep the canal embankment from Anantapur to Paradwip in motorable condition for the Chief Engineer's tour as aforesaid; in that connection the plaintiff had submitted a muster roll for payment) of Rs. 166/- to 81 labourers who were alleged to have been engaged on the work of repairing the road to make it motorable; the S. D. O. passed payment order thereon. Subsequently, however, it came to light oft enquiry that there was some falsification in the number roll; a charge sheet Was then drawn against the plaintiff overseer on May 19, 1951. The charges against him are as mentioned in the charge sheet Ext. 1 issued by Mr. J. Shaw the then Chief Engineer, Irrigation. On May 26, 1951, the plaintiff was dismissed, while a criminal case which in the meantime had also been filed against the plaintiff, was still then pending. On January 16, 1952 the plaintiff was acquitted by the Magistrate. On July, 23 1953 the said dismissal order was set aside by the Government on a memorial filed by the plaintiff as appears from the letter of the Secretary, Works department, to the Chief Engineer P. W. P. ('ext. 6') on the ground if irregularity of procedure in dismissing the plaintiff, in that the plaintiff was not given the opportunity to show cause within a reasonable time against the punishment of dismissal which was provisionally decided nor was, he asked whether he wanted a personal hearing in the matter; the said letter from the Government indicated the manner and procedure to be adopted for enquiry into the charge and final decision accordingly, which was directed to be communicated to the Public Works department for information of Government. On October, 9, 1953, the Government Appeal which the State had filed from the said order of acquittal passed by the Magistrate was dismissed by the High Court; and it was held that the accused should be given the benefit of doubt for reasons stated in the judgment, and that the plaintiff had been rightly acquitted. On February 12, 1954 Mr. C. M. Bennet, the then Chief Engineer, Public Works department, Orissa, sent to the plaintiff a letter (Ext. 4), calling upon him, to intimate in writing if the plaintiff had anything to add to his previous statement, whether he desired to be heard in person and whether he wished to call any witness. In reply to the said letter of Mr. Bennet, the plaintiff added to his previous written statement that he had already been acquitted of the criminal charge by the high Court and he prayed for being reinstated; further that if he is not reinstated, he may be given personal hearing. Thereafter, as record shows, the plaintiff was given opportunity for personal nearing which was ultimately availed of by the plaintiff, as hereinafter fully discussed. On May 28, 1954 the Chief Engineer M. R. Bennet again sent him second notice by letter Ext. B calling upon the plaintiff to show cause against the order of dismissal to be passed against him, as he had come to the provisional conclusion, that the plaintiff is guilty of the offence. On July 9, 1954 by an order made by the Chief Engineer, Public Works (Mr. Bennet), the plaintiff was dismissed from Government Service with effect from the date of the said order. An appeal stated to have been filed by the plaintiff to the government was also rejected on December 7, 1954. Thereafter on March 16, 1955 the plaintiff filed the suit against the State of Orissa for damages as stated above, after serving notice under Section 80, Civil Procedure Code as required by law. The trial Court dismissed the plaintiffs suit. Hence this first appeal.

(3.) THE main points,--for consideration, in this appeal, are whether the procedure adopted by the Government for the dismissal of the plaintiff was regular and whether the plaintiff had reasonable opportunities of submitting his defence before the authorities before his dismissal. In this context, Bihar and Orissa Boards miscellaneous Rules, 1928 (published under the authority of Government of orissa) as applicable to the plaintiff have to be kept in view in deciding this case. Rule 172 provides for the procedure in cases of dismissal or removal. Rule 173 provides for procedure in Departmental enquiries and Rule 174 provides for procedure when orders of punishment are passed by an authority other than enquiring authority. Rule 170 (which applies to the facts of the case) provides as follows :