NARAYANA MISRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) WHILE Petitioner was serving as a Forester, he was placed under suspension by the Divisional Forest Officer on 30 -5 -1950. The D.F.O. framed some charges against the Petitioner on 13 -1 -1951. Petitioner submitted his explanation to the charges. It is alleged that no enquiry was made and the explanation was sent for comments of the Range Officer and the Assistant Conservator of Forests. Thereafter, a notice to show cause against the proposed punishment of dismissal from service was issued to the Petitioner on 5 -2 -1951. Petitioner submitted his Explanation to the show -cause notice and thereafter he was removed from service. On appeal to the Conservator of Forests, the order of the D.F.O. was set aside and the matter was directed to reopen the proceeding from the stage where the irregularities crept in and to draw up fresh charges. In that order dated 15 -5 -1954 (Annexure -8), it was mentioned that the Petitioner was reinstated and placed under suspension with effect from the date of his removal from service. It is alleged that after that order no enquiry was conducted, nor any fresh charge was forwarded and no witnesses were examined to support the charge. The Petitioner was asked to produce defence witnesses and his statement was recorded. The D.F.O. submitted a report to the Conservator of Forests. The D.F.O. in his report stated that he found the Petitioner guilty of only one charge, i.e. charge No. 3. He relied upon the alleged depositions of one Balaram Mohapatra and Rusia Patra, the report of the Range Officer and the diary of the D.F.O. It is asserted that the depositions of the aforesaid two persons were recorded at the time of preliminary enquiry and the persons who made reports against the Petitioner were not produced for cross -examination. It was also not mentioned to the Petitioner that such report or diary would be taken into consideration. The Petitioner was intimated that the evidence of Balaram and that of Rusia were not available on records and the records were reconstructed. The D.F.O. in his report recommended to treat the period of suspension of the Petitioner as suspension and to reinstate him in service. The Conservator of Forests issued notice to show cause against the punishment of dismissal holding the Petitioner guilty of three charges. Ultimately, the Conservator passed order of dismissal. On appeal to the State Government, the order of dismissal was modified to that of discharge. The Petitioner filed O.J.C. No. 6 of 1963 against that order which was dismissed. Thereafter, the Petitioner filed Civil Appeal No. 54 of 1966 in the Supreme Court. The Supreme Court set aside the order and remitted the matter to the Conservator of Forests to deal with it in accordance, with law. The judgment of the Supreme Court was passed on 25 -3 -1969. By order dated 17 -2 -1970 the Petitioner was reinstated in service. He was served with a notice to show cause under Article 311(2) of the Constitution of India against the proposed punishment of discharge from service along with other punishments in respect, of charge No. 3 only. On the following date, i.e. 3 -9 -1970, an order was passed by the D.F.O. stating that the Petitioner was deemed to be under suspension from the date of the original order of dismissal. Again a notice was issued on 4 -3 -1971 purported to be under Article 311(2) of the Constitution of India treating the notice dated 2 -9 -1970 as provisional and asking the Petitioner to show cause against the punishment of discharge. The Petitioner submitted his explanation and pointed out that the evidence of Balaram as well as Rusia could not be taken into consideration; no enquiry had at all been held at any time and no, witnesses had been examined in support of the charges; and that the report of the Range Officer was prior w the framing of the charges. The order of discharge was passed on 18 -9 -1971 by the Conservator. The Petitioner preferred appeal before the Government. As the appeal was not decided, the Petitioner filed O.J.C. No. 521 of 1973 which was disposed of with a direction to the Government to dispose of the appeal within one month, giving opportunity to the Petitioner to file a fresh writ application if he was aggrieved by the decision in appeal. Since the appeal was not disposed of the Petitioner made a representation to the Government and thereafter also sent a reminder. The order was communicated to the Petitioner that his appeal had been disposed of and the appeal was dismissed. The Petitioner contends that no enquiry was actually conducted and no witnesses were examined; no opportunity was given to him to cross -examine the witnesses; documents were relied upon without notice to the Petitioner and without examining witnesses; no opportunity was given to cross -examine the persons who made the reports against the Petitioner; there was no application of mind by the disciplinary, authority; the appeal was mechanically rejected; and the period of retrospective suspension was bad;

(2.) IN the counter it has been stated that the Petitioner did not raise the questions canvassed in the writ petition in the O.J.C. as well as in the appeal before the Supreme Court and he is not entitled to challenge the said proceeding on those grounds. The Supreme Court, remitted the case back to the Conservator for dealing with it according to law. The Supreme Court took the view that Since the Petitioner was found not guilty of the first two charges by the enquiring officer, the punishing authority committed material irregularity in taking into consideration the said two charges along with charge No. 3 against the Petitioner in inflicting the punishment and held that if the punishing authority wanted to take the other two charges into account, he should have given proper notice to the Petitioner intimating him that those two charges would also be considered and having not done so, the Supreme Court set aside the order and remitted the case back for fresh disposal. The order of suspension was passed by the D.F.O. exercising his power under Rule 12(4) of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962. After the decision of the Supreme Court, the disciplinary authority did not consider to take into account the other two charges, but confined only to charge No. 3. Therefore, he issued a show -cause notice and after the order on the show -cause was passed, the Petitioner was intimated that he was deemed to be under suspension from the date of original order of dismissal under Rule 12(4) of the aforesaid Rules. In his reply dated 28 -9 -1970, the Petitioner did not offer any explanation against the proposed punishment. On the other hand, he contended that he should be presumed that the proceeding against him would be finalised as he had already joined his duty. This was not considered as sufficient compliance. Therefore, another opportunity was given. The explanation submitted by the Petitioner was duly considered. There has been no violation of rules of natural justice.

(3.) FURTHER , the Petitioner was placed under suspension with retrospective effect. His contention was that he was put under suspension retrospectively from 30 -5 -1950 and the order was passed on 3 -9 -1970 making the suspension retrospective. By the decision of the Supreme Court on 25 -3 -1969 the entire punishment was set aside and all orders of suspension before that date were obliterated. The Petitioner was reinstated in service on 17 -2 -1970 and on 3 -9 -1970 order was passed to the effect that the Petitioner was deemed to be under suspension from the date of the original order of dismissal. The Petitioner challenges this order of retrospective suspension as bad in law.