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The Governing Council of Institute of Physics, Bhubaneswar & Others v/s Chandrabhanu Mishra

    Writ Appeal No. 434 of 2019

    Decided On, 24 August 2021

    At, High Court of Orissa


    For the Appellants: Aurobinda Mohanty, Central Government Counsel. For the Respondents: None.

Judgment Text

Dr. S. Muralidhar, CJ.

I.A. No.689 of 2019

1. For the reasons stated in the application, the delay of 163 days in preferring the present appeal is condoned.

2. The I.A. is disposed of.

W.A. No.434 of 2019

1. This writ appeal is directed against the order dated 1st August, 2019 passed by the learned Single Judge in Writ Petition (Civil) No.23137 of 2014.

2. By the said impugned judgment the learned Single Judge held the entire disciplinary proceedings initiated against the Respondent by the present Appellants as vitiated due to non- compliance with the principles of natural justice. The consequential penalty imposed on him by the order dated 5th November, 2014 was quashed. It was held that the Respondent will be entitled to get all service and financial benefits admissible to him in accordance with law. It was directed to be paid to him within four months from the date of the judgment.

3. This Court has heard the submissions of Mr. Aurovinda Mohanty, learned Central Government Counsel appearing for the Appellants.

4. The background facts are that the Respondent was serving as the Registrar of the Institute of Physics (IOP), Bhubaneswar which is an autonomous research institute under the Department of Atomic Energy (DAE), Government of India.

5. The Respondent was issued with an offer of appointment as a Registrar of the IOP by a letter dated 11th/12th July, 2001. Since he was already working as an Engineer in Paradeep Phosphates Limited (PPL), he requested the Director of IOP to consider his appointment on deputation basis since the offer of appointment was on contractual basis for five years. By a letter dated 28th July, 2001 the Director, IOP informed the Respondent that he should take up the matter with PPL and get relief from his post so that he could join with IOP. Consequent thereto the Management of PPL permitted the Respondent on 31st July, 2001 to go on deputation for a period of five years subject to the conditions that the borrowing organization i.e. the IOP would take approval of the Secretary of the DAE for the fourth year and an approval of the Ministry for the fifth year of deputation. The Respondent joined the post of Registrar on 1st August, 2001 and his joining report was accepted on 8th August, 2001.

6. Meanwhile, PPL was taken over by a private management. It wrote a letter to the Director, IOP on 15th April, 2002 asking the Respondent be relieved latest by 30th April, 2002 so that he could join PPL on 1st May, 2002. Another reminder was issued on 30th April, 2002. The IOP however did not relieve the Respondent. On 28th May, 2002 PPL intimated the Respondent that his name would be struck off from the roll of PPL with effect from 21st May, 2002.

7. The Governing Council of IOP on 20th June, 2002 resolved to continue the Respondent on probation for a period of six months with effect from 21st May, 2002.

8. The Respondent was placed under suspension on 24th December, 2012 on the basis of a preliminary enquiry conducted by two officers of the DAE, Mumbai. The Respondent asked for a copy of the said report which was declined. On 18th March, 2013 the Governing Council of IOP extended the period of suspension for further 90 days. On 25th March, 2013 the Respondent was served with a memorandum containing the article of charges. The Respondent then requested the Director of IOP by emails dated 30th March, 1st April and 4th April, 2013 to provide him with a photocopy of the documents to enable him to furnish statement of defence against the article of charges which had been supplied to him on 4th April, 2013. On 8th April, 2013 the Director, IOP expressed his inability to supply the documents stating that they were not relevant except a copy of a voucher in the sum of Rs.670/- and offered that the log book of staff car which was voluminous to be inspected during the course of inquiry.

9. The Chairman of the Governing Council appointed an inquiry officer on 29th May, 2013. On 3rd August, 2013 the Respondent against requested the inquiry officer (IO) to provide documents. On 23rd/24th August, 2013 the Director, IOP provided a document withholding three relevant and significant documents. The inquiry was held on 30th August, 2013 as regards charges under Articles 1, 2 and 3 and on 15th September, 2013 as regards the charges under Articles 4 and 5. On 19th November, 2013 the Accounts Officer, IOP as well as the Respondent were examined.

10. On 30th January, 2014 the IO submitted his report to the Disciplinary Authority. The Governing Council accepted the report on 19th February, 2013 and resolved that it should be sent to the Respondent for his response. It was also decided that the enquiry report should be supplied to the Central Vigilance Commission (CVC) for their views. On 4th March, 2013 the Respondent submitted his representation on the report pointing out that none of the five charges were proved. On 13th March, 2014 he was asked to appear before the Governing Council.

11. On 10th April, 2014 the Respondent was subjected to further cross-examination. On 12th August, 2014 the Director, IOP enclosed a copy of office memorandum dated 30th July 2014 of the CVC wherein the CVC agreed with the recommendation of the Governing Council and Disciplinary Authority as far as the Central Vigilance Officer (CVO) proposing imposition of major penalty on the Respondent. He was asked to make a representation to the DA within 15 days of the said OM.

12. On 12th October, 2014 the Respondent submitted a representation to the Chairman of the Governing Council and on 19th October, 2014 to the DA. He appeared before the Governing Council/DA at its meeting on 27th October, 2014. On 5th November, 2014 the final order imposing the punishment of compulsory retirement was passed with a further direction to the Respondent to refund a sum of Rs.5,00,510/- and Rs.6000/- in lumpsum within fifteen days.

13. The learned Single Judge noted in the impugned judgment that the report the I.O. concluded that Article I of the charge was largely (not wholly or fully) proved, Article II was not proved, Article III "at the maximum, partially proved", Article IV proved and Article V partially proved. After examining in detail the said report the learned Single Judge noted that despite the fact that an inquiry was conducted on 13th November, 2013 and a report had been submitted on 13th January, 2014 on 10th April, 2014 when the Respondent appeared in person before the Governing Council at New Delhi he was confronted with two additional statements received from the staff nurse dated 7th April, 2014 and the PA to the Registrar dated 8th April, 2014 along with a copy of the "so-called medicine issue register". It was noted that the said materials were accepted and utilized by the Governing Council in respect of the charge of Article I without affording an opportunity to the Respondent to test their veracity. Neither the staff nurse nor the PA to the Registrar were examined in chief or cross-examined by the Respondent. The IO being Ex-Officio member of the Governing Council "participated in the said proceedings and cross-examined" the Respondent. The learned Single Judge concluded that this itself indicated the bias against the Respondent.

14. The learned Single Judge then discussed the manner in which the advice of the CVC was sought by the Governing Council after the report of the I.O. when that had to be actually done before issuing of the memorandum of charges. To overcome this lapse, the Governing Council resolved that the report should be forwarded to the Respondent for his representation even while simultaneously seeking advice of the CVC. The learned Single Judge concluded as under:

"The sum total of the procedure adopted in the enquiry proceedings, as discussed above, clearly indicates that such procedure is not known to law.

Meaning thereby, the inquiry officer, who conducted the enquiry and submitted his report on 30.01.2014, having being inducted as member of the governing council, which is the disciplinary authority, cannot and could not have been a party to the fresh enquiry conducted by such governing council/disciplinary authority, and as such, he is biased."

15. On the above conclusion, learned counsel for the Appellants sought to contend that the IO was part of the Governing Council between 23rd July, 2013 and 15th September, 2014 and therefore not at the time when the Governing Council conducted the further enquiry on 27th October, 2014.

16. The fact of the matter was that the IO was part of the Governing Council when it cross-examined the Respondent on 10th April, 2014. It is not denied that he himself cross-examined the Respondent. This was much after he had submitted his final report on 30th January, 2014. That apart there is no denial that two new statements were suddenly introduced on 10th April, 2014 to confront the Respondent on the charges in Article I without producing the makers of those statements as witnesses and offering the Respondent the chance to cross-examine them. This indeed was an unheard of procedure and plainly violative of natural justice.

17. The Appellants are not able to explain the non-supply of vital documents to the Respondent as pointed by the learned Single Judge. While contending that these had no nexus or reasonable relation to the article of charges, the Appellants are unable to explain why they are not related to the charges.

18. Another important finding recorded in the impugned judgment of the learned Single Judge as under:

"It has also been made clear that the CVO, namely, Dr. B.R. Sekhar, who was the complainant and also a witness to the charge under Article -IV of the memorandum of charge framed against the petitioner, wrote to CVC for imposing major penalty. On 12.08.2014, the Director communicated, vide memorandum No.IOP/ADMN/ 2914/1852 dated 12.08.2014, enclosing copy of the Office Memorandum no.12/ATM.004 dated 30.07.2014 of CVC, wherein CVC agrees with recommendation of Governing Counsel/disciplinary authority and CVO to impose major penalty on the petitioner. This shows that the Disciplinary Authority, along with CVO, had premeditated to impose major penalty but their intention remained undisclosed to the petitioner till issuance of the Final Order. More particularly, the CVC has committed illegalities in regard to obtaining views of the CVO. As has been discussed above, before framing charge, permission from CVC was not obtained, and further the inquiry report with CVC views had to be forwarded to the charged officer. The same was not duly followed in order to hastily impose the punishment on the petitioner. Therefore, it violates the principles of natural justice."

19. On this aspect again the contention of the Appellants in the memorandum of appeal is that the observation is "not a correct appreciation; rather it can be termed as error apparent on record". This is hardly a satisfactory explanation for what appears to be a plain violation of the principles of a just and fair enquiry. If the CVC's views had to be obtained bef

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ore drawing up the memorandum of charges and serving them on the Respondent, it is not explained how this requirement could be overcome by supplying a copy of the IO's report to the CVC after conclusion of the enquiry. 20. The learned Single Judge has discussed in detail the finding in relation to other articles of charge and has concluded that the enquiry did not adopt the due procedure in accordance with law. 21. It is then sought to be contended that during the pendency of the writ petition the Respondent was as Senior Consultant with the Council of Architecture and that implementation of the impugned judgment of the learned Single Judge would mean that the Respondent would earn 'two salaries'. This, if true, will at best constitute a separate cause of action arising at the stage of implementation of the impugned judgment. This is not a ground on which the impugned judgment requires to be set aside. 22. Accordingly, this Court is unable to find any grounds made out for interference with the impugned judgment of the learned Single Judge. The writ appeal is accordingly dismissed, but in the circumstances, with no order as to costs. 23. An urgent certified copy of this order be issued as per rules.