BIPIN KUMAR MOHAPATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) This Writ Petition was originally filed on the Board of the Orissa Administrative Tribunal, Bhubaneswar Bench. On abolition of the Tribunal, the Petition is transferred to this Court for being decided under the provision of Article 226 of the Constitution of India.

(2.) This Petition involves a challenge to the enquiry report, vide Annexure-6, the show cause notice, vide Annexure-8 and the final order of punishment, vide Annexure-11 respectively. Undisputedly, for the order of punishment being passed by the Hon'ble Governor, there was no scope for Appeal involving such order and straightway, an Application was filed before the Tribunal to consider the punishment imposed on the Delinquent-Petitioner while considering the validity of the enquiry report as well as show cause notice referred to hereinabove. Background involving the case is that the Petitioner made an entry to the State Government Service, as a Specialist in Orthopedic on 16/1/1970. During course of his employment, the Petitioner was promoted to the post of Senior Class-I Post during 2002 and retired while working as Superintendent, T.B. Hospital (Basant Manjari Swastya Nivas), Tangi in the district of Khurda. It reveals from the disclosure in the Petition involved that during incumbency of the Petitioner, as a Specialist in Orthopedic at the District Head-Quarter Hospital in the district of Keonjhar, one Rabindra Nath Dehuri was admitted in Hospital at 4 p.m. on 10/1/2001 in the Surgical Ward on apprehension that he was suffering from Diabetics and Septicemia. Initially he was under the treatment of Surgical Specialist but later on he was referred to the Orthopedic Ward on 14/2/2001. It is while the Patient was under the treatment in the Orthopedic Ward, he succumbed to the disease finally on 23/2/2001. It appears, one Sudhansu Behera lodged a complain before the Vigilance Police alleging that the present Petitioner demanded illegal gratification of Rs.5000.00 for better treatment to the Patient. Based on such complain, the Vigilance Police laid a trap on 20/2/2001 and in the process, the Petitioner was caught in accepting the said amount, as illegal gratification leading to initiation of a Vigilance Police Case being registered as Vigilance P.S. Case No.9/2001 under Sec. 13(2) read with Sec. 13(1)(d) of Prevention of Corruption Act, 1988 (herein after called as "Act, 1988"). This Proceeding was closed on acceptance of final report, vide No.33/21/9/2001 submitted by the Vigilance Police, Balasore. This Criminal Case resulted in closure of the case on the ground of insufficient evidence. The Petitioner pleaded that it is after closure of the Vigilance Proceeding, a Departmental Proceeding was drawn, vide Charge-Sheet dtd. 11/4/2004 under the charges of gross misconduct, dereliction of Government duty, failure to maintain absolute integrity and to discharge duties properly, as a Government Servant in violation of Rule-3 of the Orissa Government Servants Conduct Rules,1964. The Petitioner filed his response to the Charge-Sheet, vide Annexure-2. It is needless to indicate here that the Petitioner was placed under suspension on 2/8/2001 and after the criminal proceeding was dropped, he was reinstated on 2/10/2001. In the Disciplinary Proceeding conducted by the Commissioner for Departmental Inquiries, vide CDI Case No.7/2003, there has been oral and documental evidence. The Presenting Officer examined six witnesses and exhibited four documents to support the case of the Department, whereas the Petitioner submitted nine documents but did not examine any defence witness. The Petitioner filed here Written Statement of defence and the copy of deposition, as Annexure-3, 3A and 4 series. The Petitioner even submitted a written brief on 7/10/2004, vide Annexure-5. The Petitioner alleged, even though there was no credible evidence yet the enquiry report was submitted establishing charges against the Petitioner, suggesting punishment of censure and to disallow 50% of his pension. Copy of enquiry report is available at Annexure-6. The Petitioner's objection to the enquiry report finds place at Annexure-7. It is based on the submission of enquiry report, the Petitioner was asked to show cause, vide notice dtd. 26/10/2006 proposing deduction of 50% of pension for two years. Upon receipt of such show cause notice, the Petitioner submitted his objection explaining his innocence and thereby objected the proposed punishment. Notice to show cause on the proposed punishment appearing at Annexure-8, whereas the objection of the Petitioner to the proposed punishment appears at Annexure-10. It is being dissatisfied with the response of the Petitioner to the show cause notice of punishment, vide Annexure-11, the communication dtd. 21/7/2007 final order of punishment was issued against the Petitioner resulting filing the present Petition involved herein.

(3.) Mr.K.C.Kanungo, learned counsel for the Petitioner taking this Court to the grounds of challenge involved herein and as disclosed in the Petition contended that once there is already appreciation on the basis of evidence laid before the Criminal Court, it is no further available to be re-appreciated or deciding otherwise by the Commissioner of Departmental Enquiries. Mr.Kanungo, learned counsel for the Petitioner also alleged, the Disciplinary Authority has not followed the norms involving an enquiry report. Further the enquiry has been made based on conjectures and surmises and on hypothetical proposition. There has been no taking into account the deposition of P.Ws.1 to 3 in submitting to such report. It is claimed that it is only gathering of some materials here and there in the Vigilance Case Record, the Enquiring Officer made an attempt to re-appreciate the evidence. Even the I.O. has resorted to falsehood in the matter of interpretation to the leave application of the Petitioner. Mr.Kanungo, learned counsel for the Petitioner giving stress on the approach of the Enquiring Officer in the matter of evidence and alleged, the Enquiring Officer has not taken into account at all the deposition of P.W.3, the brother of the deceased and there is no appreciation of evidence of P.W.2, the wife of the deceased deposed before the C.D.I. There is also allegation of non-consideration of reply of the Petitioner, vide Annexure-7. Sri Kanungo also alleged, when the Enquiring Officer suggested punishment of censure and disallowed 50% of his pension, response of the Petitioner was asked involving such proposed punishment and the show cause notice, vide Annexure-8, as an Indicator of imposition of punishment, punishment to the extent of deduction of 50% of pension for two years in the final punishment, vide Annexure-11 there is illegal imposition of punishment remaining contrary to the proposed punishment particularly by penalizing the Petitioner with punishment to the extent that the period of suspension treated as such. It is in the circumstance, Mr.Kanungo, learned counsel for the Petitioner contended that there has been mechanical disposal of the Disciplinary Proceeding by the Disciplinary Authority and the order at Annexure-11 is there not sustainable in the eye of law.