MALLIK NAJAR ALLI Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner's Original Application No.549 of 2000 filed before the Orissa Administrative Tribunal, Bhubaneswar having been dismissed by the judgment and order dated 19.7.2002, he has filed this writ application challenging the said judgment and order.

(2.) THE case of the petitioner is that while he was posted as Inspector -in -charge of Hirakud Police Station, a situation developed on account of which because of rivalry between the two groups of people, murder of one Surya Bohidar took place who was also a local Trade union leader and husband of the Chairperson of Hirakud NAC. Because of the above incident, a disciplinary proceeding was started against the petitioner on the charge that had the petitioner been alert, the murder of Surya Bohidar could have been avoided. But he did not take effective steps even though one platoon of O.S.A.P. had been stationed at Hirakud and he did not utilise the armed police around the clock. The enquiry into the charges was conducted by the S.P. and he found the charges to have been proved and recommended for imposition of punishment of a Black Mark. The disciplinary authority while accepting the finding of the Inquiry Officer, decided to impose higher punishment of reversion to the lower rank with concurrence of the P.S.C. and issued a notice to the petitioner to show cause. At this stage, the petitioner approached the Tribunal challenging the enquiry report on the ground that it is not based on any evidence. He also took a ground before the Tribunal that though the Inquiry Officer had recommended for only imposition of a Black Mark as punishment, the disciplinary authority proposed to impose higher punishment without recording any reason for such disagreement and that by the time the proceeding was initiated, the petitioner had become a Class II Officer and the proceeding against a Gazetted Officer is to be conducted in accordance with OCS (CCA) Rules.

(3.) SHRI A. K. Mishra, the learned senior counsel appearing for the petitioner assails the conduct of the department and the impugned order only on one ground. The learned senior counsel submitted that after submission of the enquiry report and before imposition of punishment, the petitioner was not given any opportunity to show cause and challenge the findings of the Inquiry Officer. The learned counsel drew attention of the Court to Annexure -11 of the original application and submitted that the disciplinary authority by the order dated 15.12.1998 though stated that notice be issued to the delinquent officer as to why the proposed punishment should not be inflicted on him, passed order of punishment and communicated the same along with the notice dated 15.12.98. The learned counsel for the State is not in a position to dispute the same in view of the existing documents. It is therefore, clear that while the disciplinary authority decided to impose a major punishment, though in the order dated 15.12.98 directed issuance of notice to show cause, as a matter of fact, the order of punishment was passed and the said punishment order was attached to the notice to show cause dated 15.12.98. It is therefore, evident that before the punishment order was passed by the disciplinary authority, a copy of the inquiry report had not been given to him and he had also not given any opportunity to meet the findings of the enquiry officer by way of filing a show cause reply. In this connection, reference may be made to a decision of the Apex Court in the case of M.D. ECIL v. B. Karunakaran, reported in AIR 1994 SC 1074. In the said decision it was held that the disciplinary authority, before drawing a conclusion regarding the guilt of the delinquent, has to supply him a copy of the enquiry report asking him to submit his representation on the said enquiry report and upon receipt of the same, the disciplinary authority, after considering the enquiry report and the submissions made by the delinquent on the enquiry report shall decide about the guilt of the delinquent. The CCA Rules also provide that on conclusion of enquiry and before imposition of punishment by the disciplinary authority, the delinquent officer has to be given copy of the enquiry report so as to enable him to meet the finding of the enquiry officer which has to be taken into consideration by the disciplinary authority before imposition of punishment. This having not done as admitted by the opposite parties in the present case, we are of the view that the order of punishment imposed by the disciplinary authority is liable to be quashed and the proceeding has to commence from that stage.