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2014 Supreme(Ori) 401
HIGH COURT OF ORISSA, CUTTACK
B.R. SARANGI, J.
Padmanabha Gouda – Petitioner
Versus
Orissa Forest Corporation and Others – Opposite Parties
W.P. (C) No. 3594 of 2002
Decided On : 04.12.2014
For Petitioner: M/s. Manoj Misha, P.K. Das, S.K. Pradhan, B.K. Mishra, Mr. T. Mishra.
For Opposite Parties: M/s. S.K. Das, B.C. Pradhan, M.K. Das, K. Pattnaik.
Headnote:1. ORISSA FOREST CORPORATION SERVICE RULES, 1986 - Rule 134 - As per Sub-rule (2) of Rule 134 in case of an appeal against any order specified in Rule 131, the appellate authority shall consider all the circumstances of the case and pass such orders as it deems just and equitable whereas Rules 136 deals with review - In the present case, since the disciplinary authority relying upon the enquiry report imposed penalty, the same could not have been enhanced by the appellate authority without following due procedure of law as envisaged in 1986 Rules - Held, enhancement of punishment imposed by the appellate authority imposing major penalty by retiring the petitioner compulsorily from service amounted to premature retirement as per Rule 121 (ix) of the Rules, 1986 - Matter remanded back to the appellate authority to reconsider the question of enhancement of punishment which has been done without following due procedure of law and also contrary to Rule 134 of 1986 Rules.
What is the appropriate quantum of punishment to be awarded to a delinquent is a matter that primarily rests at the discretion of the disciplinary authority. An authority sitting in appeal over any such order of punishment is by all means entitled to examine the issue regarding the quantum of punishment inasmuch as it is entitled to examine whether the charges have been satisfactorily proved. But when any such order is challenged before a Service Tribunal or the High Court the exercise of discretion by the competent authority in determining and awarding punishment is generally respected except where the same is found to be so outrageously disproportionate to the charge of misconduct and the Court considers it to be arbitrary and wholly unreasonable. The superior Courts and the Tribunal invoke the doctrine of proportionality which has been gradually accepted as one of the facets of judicial review. Where punishment is excessive or disproportionate to the offence so as to shock the conscience of the Court and is unacceptable even then Courts should be slow and generally reluctant to interfere the quantum of punishment. The law on the subject is well settled by a series of decisions rendered by this Court. (Paras 9 to 28)
2. CONSTITUTION OF INDIA, 1950 - Art. 226 - While exercising power of judicial review under the Article, the Court shall not normally interfere with the punishment imposed by the authority nor shall interfere with the quantum of punishment imposed by the authority - It is within the domain of the authority to interfere with such quantum of punishment but not a Court or Tribunal. (Para 16)
3. DISCIPLINARY PROCEEDING - Judicial review - Scope of - In the matter of imposition of penalty as a result of disciplinary proceeding is very limited - Court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges proved - In such a case, Court is to remit the matter back to the disciplinary authority for reconsideration of punishment - In appropriate cases, in order to avoid delay the Court can itself impose lesser punishment. (Para - 17)
JUDGMENT
B.R. Sarangi, J.
1. The petitioner, who was working as a Mate (now as a Field Assistant) under the Orissa Forest Corporation Ltd. has filed this application assailing the order passed by the Disciplinary Authority imposing punishment vide order dated 31.07.2001, Annexure-7 and enhancement thereof in appeal by the appellate authority, vide order dated 29.08.2002, Annexure-11 giving compulsory retirement to the petitioner from service.
2. The factual matrix of the case in hand is that the petitioner while working as a Mate (now as a Field Assistant) was in-charge of Jagannath Saw Mill Rayagada from January, 1983 to May 1984. The said saw mill was taken on contract basis at Rayagada and corporation timbers were being sawn there and it was functioning under Rayagada Sub-Division of Muniguda Division. On 2.5.1984 the petitioner passed 292 bundles of reapers of different length classes and entered the contents of passing particulars into passing register page no.22. But the allegation was that the petitioner has only entered 105 bundles in the stock register and thereafter the S.D.M. instructed him to submit the lot list on the same date. The petitioner did not submit the lot list in spite of the instruction and left the saw mill. There is allegation against the petitioner that he forced the watcher on duty to open the gate and allowed the truck bearing No. ORL-524 to enter into the premises of the saw mill by loading 187 bundles of reapers and allowed one Jagannath Jena to leave the depot premises at 1.30 A.M. on 3.5.1984 along with the truck. On the next morning, the petitioner informed the S.D.M. that 187 bundles were stolen away from the depot, basing upon which, the S.D.M. conducted an inquiry and reported the matter to the Divisional Manager fixing responsibility on the petitioner. The Divisional Manager ordered for an enquiry and to submit a report fixing responsibility specifically for illegal removal of reapers in the dead of night. Consequence thereof, an inquiry was conducted by the Deputy Divisional Manager and statements were recorded. Thereafter the petitioner was terminated from service by order of the opposite party no.2 on 16.05.1984. Aggrieved by the said order, the All Orissa Forest Corporation Karmachari Sangha, Muniguda on 6.8.1984 moved opposite party no.1 protesting such termination of the petitioner. On consideration of the same, opposite party no.1 vide order dated 20.04.1985, Annexure-1 set aside the order of termination passed by opposite party no.2 and directed that the petitioner is allowed to join as Mate at Muniguda Division with immediate effect and the period from the date of termination till the date of his joining be treated as leave. After the petitioner was allowed to continue in service, a denovo proceeding was initiated on the basis of the inquiry report submitted by the Deputy Divisional Manager. Charges were framed against the petitioner vide letter dated 28.1.1987, Annexure-2 which reads as follows:-
“1. Not taken into the stock of 197 bundles of reapers.
2. Illegal disposal of 197 bundles of different sizes in night hours without issuing cash memo or challans and loss of corporation revenue.
3. Disobedience of orders.”
The petitioner was called upon to file his explanation within a period of 15 days. In compliance to the same, the petitioner submitted his explanation on 25.4.1987 vide Annexure-4. Without considering the same, the final inquiry report was submitted on 27.12.2000 vide Annexure-6 and basing upon such inquiry report, opposite party no.3, the disciplinary authority passed order on 31.07.2001 vide Annexure-7 awarding the following punishment, which read as follows:
“1. The cost of 197 bdls. of reapers amounting to Rs.2,158.70 should be recovered from Sri Gouda at the present valuation from his pay bill in 7 (seven) instalments @ Rs.300/- P.M. and Rs.58.70 in last instalment.
2. Three number of increments be stopped without cummulation effect.
3. He should not be taken in
