NILAKANTHA MISHRA Vs. STATE OF ODISHA

JUDGEMENT

(1.) This writ petition is under Articles 226 and 227 of the Constitution of India assailing the order dated 5.9.2007 passed by the Orissa Administrative Tribunal, Bhubaneswar in O.A.No. 1333 of 2007 whereby and where under the order of punishment has been refused to be interfered with.

(2.) The brief facts of the case is that the petitioner while working as Assistant Teacher in a Tribal School run by the Harijan and Tribal Welfare Department of the Govt. of Odisha and while he was posted as the Headmaster in Dimiripalli Ashram School in Puri District, he was proceeded departmentally for various allegations of improper maintenance of cash book and other accounts including an allegation of financial irregularities to the tune of Rs.77,809/-The competent authority has appointed Enquiry Officer directing the petitioner to participate in the enquiry. The Enquiry Officer has concluded the enquiry on 25.7.1996 proving the charges levelled against the petitioner. The disciplinary authority after accepting the findings of the Enquiry Officer, has passed the order of punishment of dismissal and recovery of Rs.77,809.99. The petitioner has assailed the same before the appellate authority under the provisions of Rule 29 of the Orissa Civil Service (Classification, Control and Appeal) Rules, 1962. The appellate authority has considered the memorandum of appeal and without interfering with the order of dismissal, has reduced the quantum of amount to be recovered from the petitioner on the basis of proper assessment of the audit report, which comes to Rs.30,985.99. The petitioner being aggrieved with the order passed by the disciplinary authority and the appellate authority, is before this Court challenging the same on the ground that he has not been given proper and adequate opportunity to defend himself. The grounds raised by him is that the allegation is not so serious to impose major punishment of dismissal from service since a sum of Rs.30,985.99 has been found to be misappropriated by him. Apart from merit, it has been argued on behalf of the petitioner that since he has performed long service, the order of dismissal may be reversed to the order of compulsory retirement so that he may be able to get at least the pension.

(3.) Mr. M.S. Sahoo, learned Addl. Govt. Advocate representing the State of Orissa while refuting the ground of the petitioner, has submitted that this Court cannot exercise the power of the appellate court sitting under Article 226 of the Constitution of India, to re-appreciate the evidence in view of the two concurrent findings. So far as the contention that the order of dismissal be reversed to the order of compulsory retirement, it has been submitted that considering the nature of allegation, the petitioner does not deserve any sympathy and even on sympathy the order of dismissal cannot be reversed to the order of compulsory retirement since there is allegation of misappropriation of public money and as such, it is not a case where the quantum of punishment is to be looked into by this Court.