DINESH KUMAR PATRA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has prayed for a writ in the nature of mandamus quashing the order of the Managing Director, Orissa Drugs and Chemicals Limited-opposite party No. 2 directing a fresh enquiry into the misconduct while setting aside the order of dismissal passed against the petitioner. The further prayer is for quashing the order of suspension and for granting arrear salary with interest.

(2.) The brief facts of the case is that the petitioner while working as a Junior Scientific Officer in the Orissa Drugs and Chemicals Limited by order dated 27.12.1999 was placed under suspension and a departmental proceeding was initiated against him. Ultimately the petitioner filed his replay to the show cause and after completion of the enquiry, he was dismissed from service. The petitioner filed an appeal against the order of dismissal dated 4.7.2000. The appellate authority-Board of Directors in order dated 26.3.2001 decided that a fresh enquiry by the parent company i.e. IDPL be conducted to enquire into the charges levelled against the petitioner. The petitioner was directed to remain under suspension till completion of the enquiry and result thereof. The petitioner was allowed subsistence allowance for the current period only. Pursuant to the decision of the Board of Directors by order dated 10.9.2001 the petitioner was informed that the order of dismissal passed against him was set aside with effect from 26.3.2001 and he would remain under suspension and would be entitled to subsistence allowance for the current period but a fresh enquiry would be conducted by the IDPL. This order dated 10.9.2001, copy of which is Annexure, 5 is assailed in this writ petition.

(3.) Learned counsel for the petitioner submits that the initiation of the enquiry is vitiated because of mala fides inasmuch as the appellate authority having no power to ask for a fresh enquiry after it sets aside the order do dismissal, a fresh enquiry is impermissible under law. It is his submission that once the appellate authority sets aside the order of dismissal; it is not vested with the powers under ODCL (Conduct, Discipline and Appeal) Rules (hereinafter called the 'Conduct Rules') to direct for a fresh enquiry. Learned counsel has relied on Rule 32 of the aforesaid Conduct Rules. On a reading of Rule 32 it is manifestly clear that the appellate authority has power to confirm, enhance, reduce or set aside the penalty imposed by the disciplinary authority to remit the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case. In view of Rule 32 of the Conduct Rules, the appellate authority has the power and is legally competent to direct for a fresh enquiry while setting aside the order of the disciplinary authority and as such, the contention of the learned counsel that a fresh enquiry is not contemplated under the rules and as such the appellate authority could not direct for a fresh enquiry has to be rejected. Learned counsel then submits that the fresh enquiry having been conducted by enquiry officer not authorised under the rules to enquire, the enquiry is also vitiated and is no consequence. Learned counsel has referred to Rule 25 of the Conduct Rules in support of his contention. Sub-rule (2) of Rule 25 of the Conduct Rules reads thus: