SUBASH CHANDRA PANDA Vs. STATE OF ODISHA

JUDGEMENT

(1.) This Writ Petition has been filed by the petitioner with a prayer to quash the order of his removal from service dated 30.6.2011 under Annexure-1 passed by the Chairman-cum-Managing Director, The Odisha State Police Housing and Welfare Corporation Ltd., Bhubaneswar and to direct opposite party Nos. 1 to 3 of the Corporation to pay the salary and other allowances admissible from time to time from the date of suspension till the date of reinstatement of the petitioner with all consequential and financial benefits. The case of the petitioner is that he was initially appointed as a Junior Engineer (Civil) by the Managing Director of Odisha State Police Housing and Welfare Corporation Ltd., Bhubaneswar-opposite party No. 2 vide order dated 23.1.1989 on ad hoc basis for a period of 44 days only on a consolidated pay of Rs. 900/- with site allowance of Rs. 150/- per month. His services were regularized w.e.f. 23.9.1991 and he was posted as an Asst. Project Manager (Civil). Being aggrieved by the action of the opposite party-Corporation is not considering the case of the petitioner for promotion to the post of D.P.M., he had approached this Court in W.P. (C) No. 10388 of 2007 challenging promotion of two persons from the post of Asst. Project Manager (Civil) to the post of D.P.M. The main ground of challenge in the said Writ Petition was that the said two persons had only about six months of regular service, whereas the petitioner had more than 21/2 years of regular service and therefore, their promotion was made arbitrarily and on extraneous consideration. There was some allegation with regard to corruption and misappropriation of funds against opposite party Nos. 2, 3 and 4 respectively, which was published in various newspapers both in Odia and English. Assuming that the paper publications were made at the instance of the petitioner and the fact that the petitioner had filed a Writ Petition before this Court against the Corporation, a charge-sheet was issued on 1.12.2010 by opposite party No. 2 against the petitioner. The petitioner had filed his explanation against the charges vide letter dated 14.12.2010 under Annexure-17 series. Prior to issuance of charge-sheet against the petitioner, he was placed under suspension vide order dated 2.9.2010 under Annexure-5 while working as Dy. Manager in Solara in the district of Jaipur and a Departmental Proceeding bearing No. 2 of 2010 was initiated against him. During the suspension period the headquarters of the petitioner was fixed at Rayagada, which is about 400 Kms. away from his place of working. An employee is entitled to get subsistence allowance during his suspension period but as the said benefit was not extended to the petitioner during his suspension period, he had approached this Court in W.P. (C) No. 15285 of 2010 : (2012 Lab IC (NOC) 29 (Ori). The said Writ Petition was disposed of by this Court directing the Corporation to fix the headquarters of the petitioner at either Cuttack or Bhubaneswar Head Office of the Corporation and release the subsistence allowance in favour of the petitioner. In the Departmental Proceeding the Chairman-cum-Managing Director of the Corporation passed an order on 23.4.2011 that it is proposed to remove the petitioner from employment and treat the period of suspension as such in calculation of financial dues and directed the petitioner to show-cause before 10.5.2011. Pursuant to the said letter, the petitioner filed his show-cause reply to the proposed punishment on 31.5.2011. The petitioner vide letter dated 7.3.2011 under Annexure-19 requested opposite party No. 2 to change the Enquiry Officer as he was not expecting a fair enquiry from the said Enquiry Officer. The opposite party No. 2 vide order dated 14.3.2011 under Annexure-10 rejected the request of the petitioner with regard to change of Enquiry Officer. The Enquiry Officer after careful examination of the evidence on record and written statement of witnesses came to the conclusion under Annexure-22 that the charge of gross misconduct, dereliction of duty and disobedience of orders against the petitioner in Departmental Proceeding No. 2 of 2010 have been proved and submitted the report to the Disciplinary Authority for necessary action. The Chairman-cum-Managing Director of the Corporation after careful examination of the show-cause submitted by the Charged Officer and other connected records, passed an order on 30.6.2011 under Annexure-1 removing the petitioner from service and also held that the period of suspension from 2.9.2010 to 30.6.2011 is to be treated as such. The said order is challenged in this Writ Petition on the ground that the same is highly illegal, arbitrary, prejudged, without having competency to do the same and also in gross violation of the principles of natural justice as well as tainted with mala fide, legal malice and also violation of both the Service Rules and the provisions prescribed under Article 311 of the Constitution of India.

(2.) Mr. Jayant Das, learned Senior Advocate appearing for the petitioner placing reliance on the charge memo dated 1.12.2010 under Annexure-4 series submitted that it, is alleged that while the petitioner was posted at Police Training College, Solara, he was allowed to remain in-charge of construction but he was frequently found absent, did not show any interest in the work, did not go to the site for supervision and also did not listen to the instructions of the superiors, which amounted to negligence in duty, whereas in the statement of imputation there is no mention of any advise/instruction nor is there any letter whatsoever containing any advise/instruction alleged to have not been listened. He further submits that as per letter dated 26.3.2010 under Annexure-7 issued by opposite party No. 2 the petitioner was required to report day-to-day progress to opposite party No. 3, the Chief Engineer of the Corporation and pursuant to the said letter the petitioner joined and submitted his joining report on 30.3.2010 under Annexure-8 before opposite party No. 3. Thereafter as per instruction of opposite party No. 2 the petitioner submitted his joining report to opposite party No. 4, the Joint Manager of Cuttack Division of the Corporation on 26.5.2010 under Annexure-9 and reported the progress of work with a request to provide adequate manpower and official instruments i.e. estimates, drawing designs, agreements for smooth progress of the work. The petitioner vide letter dated 2.7.2010 informed opposite party No. 3 that at the instance of opposite party No. 4 one B.R. Bhola, A.P.M. (Civil) ad hoc bypassing the petitioner, submitted bills to opposite party No. 4 which was passed by the said opposite party. Thereafter the petitioner was placed under suspension on 2.9.2010. It is submitted that whenever opposite party Nos. 2 and 3 visited the spot found the petitioner present. The petitioner has received full pay and allowances from the date he was posted at Solara till the date of suspension which proves that the petitioner has shown interest in his work and took the responsibility of supervising the construction and as such the allegations in support of the charge are deliberately false. The petitioner was not permitted to engage an Advocate to defend his case which is in violation of the principles of natural justice. Mr. Das, further submits that the charges levelled against the petitioner are not so grave and hardly there is any loss of image or any pecuniary loss so also any damage to the name and fame of the Corporation for which the charge cannot be accepted as so grave which may warrant dismissal or removal from service. The punishment so imposed against the petitioner considering the charges are shockingly disproportionate and not in commensuration of the alleged act or omission on the part of the petitioner. Opposite party No. 2 who has already predetermined the issue and prejudged it, has specifically observed that 'the conduct of the petitioner is an example of irresponsibility, contemptuous nonchalance of accountability and total negligence in duty besides an extremely high degree of insubordination' which is neither the part of the charge nor the conclusion of the enquiry. It is also evident that opposite party No. 2, who had bent upon to punish the petitioner at any cost before framing the charge even has misused his power and imposed the punishment of removal from service against the petitioner. Hence the punishment imposed against the petitioner is not in proportion to the charges alleged to have been proved. That apart the Managing Director of the Corporation is the Disciplinary Authority and Chairman is the appellate authority. Before any amendment of bye-law, the Chairman-cum-Managing Director cannot act as the Disciplinary Authority irrespective of the incumbents carrying the post with a maximum scale of Rs. 500/- of corresponding pay during 1981 or the scale above to the same. Further the Managing Director has been declared as the Disciplinary Authority of the employees and the Chairman has been declared as the appellate authority of the employees against the order of the Managing Director. That being the position, after declaring the post as Chairman-cum-Managing Director, the right to appeal against the order of the Disciplinary Authority has been denied inasmuch as the order of punishment in respect of the petitioner has been passed by the appellate authority, which is per se illegal in view of settled position as decided by the Hon'ble Apex Court in the case of Surjit Ghosh v. Chairman and Managing Director, United Commercial Bank and others, 1995 2 SCC 474. It is further stated that the impugned order of punishment under Annexure-1 is arbitrary, discriminatory, illegal, mala fide and disproportionate to the charges levelled against the petitioner and as such the same is liable to be quashed.

(3.) A counter-affidavit has been filed by opposite party Nos. 2 to 5 denying the allegations levelled in the Writ Petition. Relying on the counter-affidavit Mr. Palit, learned counsel appearing for opposite party Nos. 2 to 5 submits that generally the conduct of the petitioner is extremely subversive of discipline and hence, in contemplation of initiation of Disciplinary Proceedings, he was placed under suspension. He further submits that instead of doing the duty assigned to the petitioner, he was keeping himself engaged in all other activities and was in a habit of sulking and shirking the responsibilities whatever responsibilities had been assigned to him besides using foul and abusive languages against the superiors and colleagues. It is stated that this Court while disposing of W.P. (C) No. 15285 of 2010 vide order dated 8.3.2011 (2012 Lab IC (NOC) 29 (Ori) did not incline to interfere with the order of suspension of the petitioner. Against the said order the petitioner approached the Supreme Court in S.L.P. (Civil) No. 13969 of 2011, which was dismissed at the stage of admission. It is further stated that the petitioner was assigned enough work commensurate to his status as a Deputy Manager keeping him in exclusive charge of the new Solara Project and instead of carrying out his responsibility, the petitioner did not visit the work site which is highly negative and unprofessional approach for undertaking work by a public servant and also quite irresponsible raising further frivolous demand regarding drawings, estimates, grant etc. without reporting to the site. It is stated that the order of removal from service passed by opposite party No. 2, was purely based on evidence on record, far from being biased and enquiry had been conducted in an extremely fair manner strictly adhering to the principles of natural justice where fullest opportunity was given to the petitioner to present his case and the Enquiry Officer has given clear, cogent, valid and genuine reasons for disallowing the prayer of the petitioner to engage an Advocate of his choice to defend his case in the enquiry proceeding. Relying on several judgments of different Courts including Supreme Court Mr. Palit, learned counsel appearing for opposite party Nos. 2 to 5 submits that as the order of removal from service passed against the petitioner is proportionate to the charges levelled against him, this Court may not interfere with the same.