SANTOSH KUMAR MOHANTY Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner, who was working as a driver under the Bhubaneswar Development Authority, has files this application challenging the order of dismissal passed by the disciplinary authority vide Annexure-6 dated 9.8.1989 and confirmation thereof by the appellate authority vide Annexure-8 dated 2.6.2001 alleging that the procedure as envisaged under the Orissa Civil Services (Classification, Control and Appeal) 1962 Rules (hereinafter referred to as "the 1962 Rules") have not been followed. Thereby seeks for quashing of the same.

(2.) The short fact of the case in hand is that the petitioner initially joined as driver in the year 1978 under the Bhubaneswar Regional Improvement Trust, which has been converted to BDA where the services of petitioner was transferred and he was continued therein w.e.f. 1.9.1983. The petitioner while continuing in service was placed under suspension on 19.2.1988 vide Annexure-1 pending framing of draft charges against him. The draft charges were framed against the petitioner vide Annexure-2 dated 2.4.1998, namely, (1) disobedience of lawful orders of the authority (2) misconduct and forgery of documents and he was called upon to give show cause reply on the allegations that he was asked to drive the Diesel Jeep bearing Registration No. OSX 6803 by the Planning Member and maintain log book, but he did not maintain the same after 4.1.1988 onwards in spite of repeated orders of the Planning Member. In addition to that he had issued credit requisition slips for diesel and lubricants of M/s Joy Auto Centre by forging the signature of the Planning Member on different dates. The petitioner filed his written explanation on 4.6.1988 vide Annexure-C/2 along with medical certificate denying the charges levelled against him and qualifying his legitimate claim for reinstatement in service with all consequential service benefits. The petitioner was examined by the inquiry officer vide Annexure-D/2 on 4.6.1988 and such examination has been done in absence of Marshalling Officer. The inquiry officer submitted his report on 23.6.1989 vide Annexure-3, wherein he recommended for dismissal of the petitioner basing upon the solitary evidence of the Planning Member. Thereafter, the disciplinary authority called upon the petitioner to file his show cause within a period of seven days vide Annexure-4 dated 27.6.1989, to which the petitioner submitted his show cause reply on 3.7.1989 vide Annexure-5. On consideration of the same, the disciplinary authority imposed the punishment of dismissal from service on the ground of deliberate negligence in duty and forging the signature of the Planning Member for illegal drawal of diesel and lubricants which amounts to forgery of the signature and misappropriation of the amount. Against such dismissal dated 9.8.1989, the petitioner preferred an appeal before the appellate authority on 10.4.1990 vide Annexure-7 but the appellate authority did not dispose of the said appeal. Therefore, the petitioner approached this Court by filing OJC No. 8023 of 1993 which was disposed of by this Court on 16.12.1993 directing the authority to dispose of the appeal within a period of eight weeks. But the same was not disposed of. Therefore, the petitioner again approached this Court by filing OJC No. 5297 of 1994, which was disposed of by this Court on 7.7.1999 directing the authorities to dispose of the appeal within six weeks. But when the said orders of this Court was not complied with, the petitioner filed CRLMC No. 633 of 1999 and on receipt of the contempt notice, the appellate authority disposed of the said appeal vide Annexure-8 dated 2.6.2001 confirming the order of dismissal passed by the disciplinary authority. Hence this application.

(3.) Mr. S.C. Acharya, learned counsel for the petitioner strenuously urged that the petitioner has not been given reasonable opportunity by providing statement of allegations along with draft charges and also he has not been provided with records of the statement of allegations. More so, the proceeding initiated against the petitioner is vitiated due to non-appointment of Marshaling Officer and no opportunity has been given to the petitioner to cross-examine the Planning Member as prayed for by him. It is further urged that the inquiry officer suggested the punishment, which has been accepted by the disciplinary authority, therefore there is a bar under Rule 15 (10) of the 1962 Rules and the inquiry officer has conducted the inquiry without following due procedure as envisaged under the rules. In addition to that, it is stated that the appellate authority without application of mind has passed the cryptic order confirming the order of punishment imposed by the disciplinary authority. Thereby, Rule 29 of the OCS (CCA) Rules has not been complied with. Hence, he seeks for quashing of imposition of punishment by the disciplinary authority as well as confirmation thereof by the appellate authority. In order to substantiate his contention, he relied upon the judgments in Khem Chand v. Union of India and others, 1958 AIR(SC) 300, State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan, 1961 AIR(SC) 1623, Surath Chandra Chakravarty v. The State of West Bengal, 1971 AIR(SC) 752, State of U.P. v. Shatrughan Lal and another, 1998 AIR(SC) 3038, Brahma Chandra Gupta v. Union of India, 1984 AIR(SC) 380, Union of India and another v. Sri Babu Ram Lalla, 1988 AIR(SC) 344