Orissa High Court
Union Of India & Ors vs Dr. Surendranath Behera & …. Opposite … on 10 December, 2024
Author: Chittaranjan Dash
Bench: S.K. Sahoo, Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No. 41573 of 2023
Union of India & Ors. .... Petitioners
Mr. Bhabani Shankar
Rayaguru, CGC
-versus-
Dr. Surendranath Behera & .... Opposite Parties
Ors.
Mr. S.S. Mohanty,
Advocate for O.P. No. 1
CORAM:
THE HON'BLE MR. JUSTICE S.K. SAHOO
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
Date of Judgment: 10.12.2024
Chittaranjan Dash, J.
1. Heard Mr. Bhabani Shankar Rayaguru, learned Central
Government Counsel appearing on behalf of the Petitioners and Mr.
S. S. Mohanty, learned counsel representing the Opposite Party
No.1.
2. By means of this writ petition, the Petitioners, the Union of
India challenged the order dated 11.05.2023 passed by the Learned
Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A.
No. 105 of 2015 under Annexure-5 on the ground that the
impugned order has been passed by the learned Tribunal without
WP(C) No. 41573 of 2023 Page 1 of 26
considering the materials available on record, so also without
appreciating the settled proposition of law governing the field.
3. The background facts of the case are that the O.P. No. 1, Dr.
Surendranath Behera, while serving as Senior Divisional Medical
Officer (Sr. DMO) with the East Coast Railway, Bandamunda,
faced allegations of misconduct. On 24.02.2008, based on a
complaint, the Central Bureau of Investigation (CBI) registered TR
Case No. 33 of 2008, alleging that O.P. No. 1 demanded and
accepted a bribe of ₹1000/- from a railway employee, Sri Uday
Singh Sawaiyan, who was working as a Safaiwala in South Eastern
(S.E.) Railway, for issuing a prescription. A trap was laid, during
which O.P. No. 1 was caught in the act of demanding and accepting
the illegal gratification. Following the arrest, the CBI registered
R.C. Case No. 3 of 2008, and O.P. No. 1 faced trial before the
Special Judge, CBI, Bhubaneswar, in TR No. 33 of 2008.
Simultaneously, disciplinary proceeding was initiated
against O. P. No. 1 by the General Manager, South Eastern (S.E.)
Railway, under the Railway Servants (Discipline and Appeal)
Rules, 1968. A memorandum of charges dated 09.01.2009 was
issued as under Annexure-A/2 series, accusing O.P. No. 1 of grave
misconduct by violating provisions under Para 602 and 633 of the
Indian Railway Medical Manual, Volume I, 3rd Edition, 2000,
which mandates free medical treatment for railway employees and
their dependents. The charges included failure to maintain integrity
and dedication to duty as per Rule 3(1)(i), (ii), and (iii) of the
Railway Services (Conduct) Rules, 1966. O.P. No. 1 responded
WP(C) No. 41573 of 2023 Page 2 of 26
with a written statement of defence dated 18.02.2009, denying all
charges.
The disciplinary authority appointed an Enquiry Officer,
who, in a report dated 03/16.08.2010, found the charges against
O.P. No. 1 as “proved”. The said enquiry report was supplied to the
Applicant/ O.P. No. l and thereafter, the O.P. No. l submitted his
representation dated 01.02.2011. The General Manager, observed
the charges leveled against the O.P. No. 1 and considering the
charges proven, referred the case to the Railway Board, Ministry of
Railways (Petitioner No. 2) as per Rule 10(3) of Railway Servants
(Discipline and Appeal) Rules, 1968 for taking necessary action, as
the intended penalty exceeded his authority. On O.P. No. 1’s
retirement, the proceedings were transferred under the Railway
Services (Pension) Rules, 1993, which permits the President of
India to withhold or withdraw pension if grave misconduct is
proven in departmental proceedings. The Union Public Service
Commission (UPSC) recommended withholding 100% of O.P. No.
1’s pension and forfeiting his gratuity vide their advice, to the
President, dated 19.03.2012, which was approved by the Ministry
of Railways and issued in an order dated 21.11.2012 withdrawing
100% monthly pension and permanently and forfeiting the entire
gratuity of the O.P. No. 1.
Being aggrieved, O.P. No. 1 filed an Original Application
vide O.A. No. 1710/2009 before the learned CAT, Calcutta Bench,
requesting therein to quash the charges levelled against him vide
charge sheet dated 09.11.2009 and in the alternative to keep the
departmental proceedings in abeyance till the decision of the
WP(C) No. 41573 of 2023 Page 3 of 26
criminal case instituted against him. However, the said OA was
dismissed by the learned Tribunal vide its order dated 02.08.2012.
Meanwhile, the Special Judge, CBI, Bhubaneswar, vide
judgment dated 22.12.2012 acquitted the O.P. No. l with the
following observations –
“The most disquieting aspect of the prosecution
evidence is that the whole Super structure of the
prosecution case on the foundation of prosecution
case has caved in because of the nature of the
evidence of the Complainant. As already pointed out
the Complainant has admitted very candidly that he
has no knowledge of the FIR for which the allegation
of prior demand, meeting with the accused on
23.02.2008 and asked the Complainant to come to his
resident on 24.02.2008 stands squarely falsified. The
contention of the learned Special Public Prosecutor
that the fact of demand and acceptance of illegal
gratification by the accused and recovery of the
tainted currency notes of Rs. 1000/- consisting of
Rs.500/- denomination from the accused have never
been disproved by the evidence of D.W.1 carries no
legal conviction on the face of serious infirmities and
deficiencies in the prosecution case. The very fact that
the FIR which is foundation of the prosecution case is
virtually weak clearly shows that the super structure
of the prosecution case is bound to collapse. The
learned Public Prosecutor appears to have lost sight
of the inherent deficiency of the prosecution case.
In ultimate appraisal of totality of evidence on record,
I hold that the prosecution has miserably failed to
prove its case against the accused beyond all
reasonable doubt. I, therefore, find the accused not
guilty of the offence under Section 13(l)(d) read with
Section 1392) and under Section 7 of the Prevention
of Corruption Act, and acquit him under Section
248(1) Cr.P.C.”
WP(C) No. 41573 of 2023 Page 4 of 26
Following this, O.P. No. 1 submitted a review petition
before the President of India on 18.02.2013, attaching a copy of the
CBI Court judgment, and sought a review of the disciplinary
authority’s order in the departmental proceedings. He also filed
Writ Petition W.P.(C) No. 22024/2013 before this Hon’ble Court,
which was disposed of vide order dated 02.01.2014, with a
direction to dispose of the Review Petition within two months. In
compliance, the Competent Authority reviewed the case records
and, through an order dated 19.03.2014, rejected the Review
Petition, which was communicated to the Applicant on 21.03.2014.
Dissatisfied by the same, O.P. No. l approached the Central
Administrative Tribunal (CAT) by filing OA No. 105 of 2015,
challenging the disciplinary authority’s decision and requesting to
quash the punishment order dated 21.11.2012 and restoring his
pension and other benefits. The O.P. No. 1 also prayed for interim
relief, including payment of pension during the pendency of case
and for the disciplinary proceeding records to be called for. The
Petitioners responded by filing a counter, contesting the O.P. No.1’s
claims and asserting that the Applicant had raised procedural
irregularities only on technical grounds, failing to show prejudice.
They emphasised that no complaints had been made about the
Enquiry Officer or procedural violations during the proceedings,
arguing that departmental proceedings with a lower evidentiary
standard than criminal trials could still justify the disciplinary
action. The CAT, after hearing both parties, dismissed the Original
Application on 30.07.2019, ruling it lacked merit.
O.P. No. 1 then challenged the CAT’s decision in W.P.(C).
No. 28791 of 2019 before this Hon’ble Court, seeking to overturn
WP(C) No. 41573 of 2023 Page 5 of 26
the CAT’s ruling and reinstate his benefits. This Court, through a
judgment dated 24.11.2022, quashed the CAT’s order and
remanded the matter to the CAT for re-adjudication, in compliance
with Rule 105 of the Central Administrative Tribunals Rules of
Practice, 1993, and urging resolution within three months given the
case’s prolonged nature. Following remand, the CAT reconsidered
the case and, despite previously dismissing the application, allowed
the OA on 11.05.2023. The Tribunal found that the disciplinary
actions had violated principles of natural justice, quashed the
previous orders of punishment, and directed the Petitioners to
release the Applicant’s pension and related dues within 60 days.
Aggrieved by the CAT’s order dated 11.05.2023, the Petitioners
have now approached this Court for the following relief:
(I) To admit the Writ Petition issue notice to the
Opposite Parties and call for the records from the
forum below
(II) Set aside/quash the impugned order dated 11.05.2023
passed by learned CAT, Cuttack Bench in O.A. No.
105/2015 under Annexure-5
(III) If the Opposite Parties fail to show cause or show
insufficient cause, then the Rule be made absolute
4. Mr. Rayaguru, the learned counsel appearing for the
Petitioners, interalia, submitted that the learned Tribunal has
committed an illegality by reversing its earlier findings wherein it
recorded the dismissal of the O.A on merit holding the action of the
Petitioners as justified whereas upon remand, subsequently, on the
self-same material it held the action of the Petitioners to be in
violation of principle of natural justice. According to Mr. Rayaguru,
the findings recorded by the self-same Tribunal reversing its earlier
findings is per se illegal and not sustainable in the eye of law.
WP(C) No. 41573 of 2023 Page 6 of 26
Elaborating his submissions, Mr. Rayaguru contended that while
remitting back the matter to the Tribunal in W.P.(C) No. 28791 of
2019, this Court had not expressed any opinion on the merits of the
case nor had allowed any party to add any other document and had
categorically held to decide the matter afresh on the material
available on record whereas the Tribunal reversed the findings
recorded earlier on its fresh assessment.
His further contention is that proceeding with Disciplinary
Enquiry during pendency of criminal proceeding is not barred and
as such the action of the Disciplinary Authority on the findings of
the Enquiry Officer holding the O.P.No.1 guilty of the charges
cannot be regarded illegal. Mr. Rayaguru cited several authorities of
the Hon’ble Apex Court in support of his contentions as referred to
in the matter of Capt. M.Paul Anthony vs. Bharat Gold Mines
Limited reported in AIR 1999 SC 1416. According to Mr.
Rayaguru, it is an admitted fact that at the time of imposition of
penalty in the disciplinary proceeding, the criminal proceeding in
T.R. No. 33 of 2008 was pending and had not reached its finality
and as such the imposition of penalty in disciplinary proceeding
cannot be held illegal more so when there is no bar in proceeding
with the disciplinary proceeding simultaneously during pendency of
a criminal proceeding on the self-same charge.
Other contentions of Mr. Rayaguru in assailing impugned
judgment of the learned CAT is that the O.P. No. 1 had never
pointed out any irregularities before the learned Tribunal for which
in its earlier findings the learned tribunal had held the disciplinary
proceeding to be free from procedural irregularities. Ironically, it is
argued that the findings recorded by the learned Tribunal after
WP(C) No. 41573 of 2023 Page 7 of 26
remand is based on no material and the being contrary to the
materials on record and not in consonance with law found. Learned
counsel relied upon the decision in the matter of State of UP vs.
Manbodhan Lal Srivastava reported in 1958 SCR 533 to
substantiate his above plea.
As regards the ground as to causing prejudice to the
O.P.No.1 for having not favoured with the advice of the CVC as
relied upon by the Disciplinary authority is concerned it is
submitted by Mr. Rayaguru that the same has been supplied to the
O.P.No.1 and it has not been relied upon by the authority except for
the purpose of quantum of punishment and as such the same would
no way abortive to the action of the Authority. According to Mr.
Rayaguru the Petitioners afforded a full-fledged opportunity to the
O.P.No.1 in the enquiry which is absolutely in tune with the
principle of natural justice and the findings recorded by the Enquiry
Officer being consistent to the materials recorded during Enquiry
no illegality has been committed to the O.P.No.1 in awarding the
punishment which is just and proper and further that there is
apparent error on the face of the impugned judgment which cannot
be allowed to sustain in the eye of law and liable to be set aside.
The learned counsel for the Petitioners has relied on the following
decisions –
Union of India & Another vs. T.V. Patel reported in
(2007) 4 SCC 785
Union of India & Anr. vs. Biswabijoyee Panigrahi Anr.,
& Batch matter, Common Judgment dated 15.07.2013
passed by the High Court of Delhi in W.P.(C). No.
4539/2012, W.P.(C). No. 6156/2012 & W.P.(C). No.
6157/2012,
WP(C) No. 41573 of 2023 Page 8 of 26
S.Murali Sundaram vs. Jothibai Kannan & Ors.,
(Reportable) Judgment dated 24.02.2023 passed in Civil
Appeal Nos. 1167-1170 of 2023
Sk. Akbar Alli vs. State of Odisha & Ors., (AFR)
Judgment dated 09.03.2022 passed by this Court in
W.P.(C). No. 10444 of 2009
The State of Orissa vs. Bidyabhushan Mohapatra
reported in AIR 1963 SC 779
Union of India & Ors. vs. Dalbir Singh reported in Live
Law 2021 SC 486
B. C. Chaturvedi vs. Union of India & Others reported in
AIR 2006 SC 1214
Kalakar Chakra vs. Orissa Gramya Bank & Ors.
reported in 2022 (III) ILR-CUT-670
The State of Rajasthan & Ors. vs. Heem Singh reported
in (2023) 5 SCC 569
State Bank of Patiala & Ors. vs. S.K. Sharma reported in
(1996) 3 SCC 364
Govt. of A.P and Ors. vs. Mohd. Narsullah Khan
reported in AIR 2006 SC 1214
Samar Bahadur Singh vs. State of U.P. & Others
reported in (2011) 9 SCC 94
Damoh Panna Sagar Rural Regional Bank & Another –
Vs. Munna Lal Jain reported in (2005) 10 SCC 84
5. Mr. S.S. Mohanty, learned counsel appearing for the O. P.
No. 1 on the other hand vehemently objected to the grounds
propounded by the Petitioners and urged that the same are vague
and extraneous to the ground on which the learned Tribunal
discarded the action of the Petitioners. Mr. Mohanty submitted that
the learned Tribunal held the action of the Petitioner not sustainable
and illegal for being not in conformity with the procedure and in
violation of the principle of natural justice. According to him, the
findings recorded by the Enquiry Officer in holding the O.P. No. 1
guilty of the charges are not based on record and evidence collected
during the enquiry proceeding. According to Mr. Mohanty, the
WP(C) No. 41573 of 2023 Page 9 of 26
action of the Enquiry Officer in outrightly rejecting the prayer of
the O.P. No. 1 who intended to bring on record his case through the
witnesses mentioned in his application besides the relevant
documents is in absolute violation of the principles of natural
justice. Mr. Mohanty argued that once the competent Court in the
self-same criminal charge held the O.P. No. 1 acquitted honourably,
the disciplinary authority ought to have considered the same while
awarding the punishment which is out and out disproportionate to
the alleged misconduct if at all held proved by the Petitioners vis-à-
vis the career antecedents and service rendered by the O.P. No. 1 to
the satisfaction of the Authority who awarded him the promotions
all through the service keeping in view his experience,
performance, dedication and integrity. Assailing the contentions
raised by the learned counsel for the Petitioners, it is submitted by
Mr. Mohanty that the law well settled in the matter of G.M. Tank
Vs. State of Gujarat & Others reported in (2006) 5 SCC 446, Ram
Lal Vs. State of Rajasthan reported in (2024) 1 SCC 175, and
others where the evidence in the departmental as well as Criminal
proceeding are the same without being any iota of difference, the
appellant should succeed. According to him, even though the
findings recorded in the domestic enquiry is found to be valid
where there is an honourable acquittal of the employee, the same
requires to be taken note of. According to Mr. Mohanty, in the case
in hand even though the charges in both the proceedings are the
same, the disciplinary authority having accepted the findings
recorded by the Enquiry Officer not being in consonance with the
evidence recorded in the proceeding has exceeded its authority and
considered the case in an extraneous ground and held the O.P. No.1
WP(C) No. 41573 of 2023 Page 10 of 26
guilty illegally and arbitrarily and as such the entire proceeding
being in complete violation of the principle of natural justice, more
so not in accordance with the evidence on record, has correctly been
held illegal by the learned Tribunal and justified in setting aside the
same and requires no interference and the O.P. No. 1 is entitled to
be released with the pension current as well as arrear and the other
retiral benefit. The learned counsel has relied on the following
decisions –
G.M Tank Vs. State of Gujarat & Ors. reported in (2006)
5 SCC 446
Ram Lal Vs. State of Rajasthan & Ors. reported in (2024)
1 SCC 175
Subal Makhal Vs. Indian Red Cross Society & Ors.
reported in (2024)SCC Onl Cal 7961
PV Rudrappa Vs. State of Karnataka reported in NC:
2024: KHC:4013-DB WP No.9642 of 2020
Chintamani Padhi Vs. Management of UCO Bank &
Ors. reported in 2017 SCC OnLine Ori 436
Subash Chandra Sahu Vs. Union of India & Ors.
reported in 2019 (III) ILR-CUT-673
Hardev Singh Vs. State of U.P & Ors. reported in 2015
SCC Online All 7299
Shankar Dass Vs. Union of India & Anr. reported in
(1985) 2 SCC 358
State of Rajasthan & Ors. Vs. Heem Singh reported in
(2021) 12 SCC 569
6. Keeping in view the submissions of the parties, it is
expedient for us to look into the whole aspect of the findings
rendered by the Tribunal, if the same stands the scrutiny of
correctness, legality and propriety. Before proceeding on this
aspect, it is worth to mention that the O.P. No. 1 moved the learned
Central Administrative Tribunal challenging the action of his
employer praying for the following reliefs: –
WP(C) No. 41573 of 2023 Page 11 of 26
“(I) The Hon’ble Tribunal may be graciously pleased
to declare that the order of Respondent No.3 imposing
punishment of withholding 100% monthly pension and
forfeiture of entire gratuity is arbitrary, illegal and not
supported by rule of law and be pleased to quash/set
aside the order dated. 21.11.2012 of the disciplinary
authority in annexure-10.
AND
(II) The Respondent be directed to release the monthly
pension, gratuity, provident fund and other monetary
benefit in favour of applicant with interest and within
such time that may be stipulated by the Hon’ble
Tribunal
AND
(III) Further be pleased to direct the Respondents to
allow all consequential benefits of promotion and
regularize the service at par with his juniors as the
applicant is lawfully entitled to with retrospective
effect.”
7. In his Original Application (O.A. No. 105 of 2015) before
the learned Tribunal, the O.P. No. 1 contended that while he was
continuing as Additional Divisional Medical Officer was posted at
Kharagpur Railway Hospital. He was promoted to the post of
Divisional Medical Officer during the year 1988. In the year 1992,
he got promoted to the post of Senior Divisional Medical Officer
and posted at Khurda Road Divisional Hospital of South Eastern
Railway. According to the O.P. No. 1, he discharged his duties
sincerely right from the date of inception of his service i.e. the year
1983 and had earned wide reputation as the Specialist in Medicine
and after rendering 24 years of flawless service was promoted to
selection grade and was posted to Bandamunda Railway Hospital.
According to him while he was continuing as such at Railway
Hospital, Bandamunda, the Central Bureau of Investigation
(C.B.I.), Rourkela unit registered a case against him under Section
WP(C) No. 41573 of 2023 Page 12 of 26
13(1)(d) read with Section 13(2) and section 7 of the P.C. Act,
purportedly on the basis of a trap in which he was allegedly caught
taking a sum of Rs.1000/- as illegal gratification for writing a
prescription for a railway employee. On the basis of a complaint,
the R.C. Case No.3 of 2008 was registered in the Court of the
Special Judge (C.B.I.), Bhubaneswar and being charge-sheeted, he
stood trial in T.R. Case No.33 of 2008 in the Court of the special
Judge (C.B.I), Bhubaneswar. He was simultaneously issued with a
memorandum of charges on 09.01.2009 and was proceeded with an
enquiry under Rule 9 of Railway Servants (Discipline and Appeal)
Rules, 1968.
8. It is the further case of the O.P. No. 1 that from the
Memorandum of Charges, it is evident that the Complainant who
allegedly to have given the bribe, namely, Udaya Singh Sawaiyan,
the purported pre-trap and post-trap memorandum and recovery of
the tainted notes in presence of witnesses form the basis of charges
and the department wanted to prove the charges on the basis of the
same documents and statements of the said witnesses on which the
prosecution too relied in the criminal proceeding. Very surprisingly
for the purpose of his defence, when the delinquent-O.P. No. 1
sought for same relevant documents to be produced in Enquiry
through his application dated 15.03.2009 such as the duty chart,
statement of the Complainant, copy of the written sanction for
conducting the raid, copy of the statement of witness from Railway
Muster roll of the Complainant etc. which are essential and vital
from the point of view of the delinquent to establish and justify the
alleged complaint to be a false one was not allowed to be brought
on record thereby preventing the O.P. No. 1 to put forth his case
WP(C) No. 41573 of 2023 Page 13 of 26
fairly and was thereby by discriminated in violation of principle of
natural justice. His further case is that the enquiry officer who
conducted enquiry having not adhered to the principle of natural
justice conducted the enquiry in complete violation of the rules
provided under the Railway Servant (Discipline and Appeal) Rules,
1968 ignoring the request of the O.P. No. 1 to call for the relevant
documents and to bring on record the witnesses for his defence
vitiates the entire disciplinary proceeding being not in conformity
with the principle of natural justice to his utmost prejudice. He,
therefore, challenged the entire proceeding including the findings of
the enquiry officer which was not in consonance with the evidence
recorded during the enquiry.
9. The Petitioners though justified the action of the
disciplinary authority to be in accordance with law and well in
conformity with the rules, the learned Tribunal while assessing the
case of the parties set aside the order imposing punishment on the
O.P.No.1 observing as follows:
“We have considered the rival submission of the
respective parties. It is seen that the allegation in the
CBI case was for demand and acceptance of illegal
gratification, which was also the subject matter of the
disciplinary proceedings. In the disciplinary
proceedings the applicant was imposed with the
punishment. In the CBI case the applicant was
exonerated from the charges on the very fact that the
FIR, which was the foundation of the prosecution,
was found to be weak. The relevant portion of the
order in the TR Case no. 33/2008 dated 27.12.2012 is
quoted herein below:
“The most disquieting aspect of the prosecution
evidence is that the whole Super structure of
the prosecution case on the foundation ofWP(C) No. 41573 of 2023 Page 14 of 26
prosecution case has caved in because of the
nature of the evidence of the Complainant. As
already pointed out the Complainant has
admitted very candidly that he has no
knowledge of the contents of the F.I.R. for
which the allegation of prior demand, meeting
with the accused on 23.2.2008 and asking the
Complainant to come to his residence on
24.2.2008 stands squarely falsified. The
contention of the learned Special Public
Prosecutor that the fact of demand and
acceptance of illegal gratification by the
accused and recovery of the tainted currency
notes of Rs.l000/- consisting of Rs.500/-
denomination from the accused have never
been disproved by the evidence of D.W. 1
carries no legal conviction on the face of
serious infirmities and deficiencies in the
prosecution case. The very fact that the F.I.R.
which is foundation of the prosecution case is
virtually weak clearly shows that the super
structure of the prosecution case is bound to
collapse. The learned Public Prosecutor appears
to have lost sight of the inherent deficiency of
the prosecution case.
11. In ultimate appraisal of totality of evidence
on record I hold that the prosecution has
miserably failed to prove its case against the
accused beyond all reasonable doubt. I,
therefore, find the accused not guilty of the
offence Under Section 13(1)(d) read with
Section 13(2) and under Section 7 of the
Prevention of Corruption Act, and acquit him
under Section 248(1) Cr.P.C….”
10. In the case of G.M.Tank Vs. State of Gujarat,
(2006) 5 SCC 446, the Hon’ble Apex Court has
interfered in the imposition of punishment in
disciplinary proceedings since the applicant therein
was exonerated in the criminal case, the allegation in
both the cases were being same. In the case of State
Bank of Indi & Ors. Vs. D.C.Aggarwal & Anr. 1993
SCC (L&S) 109, Hon’ble Apex Court observed that
WP(C) No. 41573 of 2023 Page 15 of 26
“non-supply of CVC recommendation which was
prepared behind the back of respondent without his
participation, and one does not know on what material
which was not only sent to the Disciplinary Authority
but was examined and relied, was certainly violative
of procedural safeguard and contrary to fair and just
inquiry, xxx xxx xxx. Taking action against as
employee on confidential document which is the
foundation of order exhibits complete
misapprehension about the procedure that is required
to be followed by the Disciplinary Authority. May be
that the Disciplinary Authority has recorded its own
findings and it may be coincidental that the reasoning
and basis of returning the finding of guilt are same as
in the CVC report but it being a material obtained
behind back of the respondent without his knowledge
or supplying of any copy to him the High Court in our
opinion did not commit any error in quashing the
order. No supply of the Vigilance report was one of
the ground taken in appeal. But that was so because
the respondent prior to service of the order passed by
the Disciplinary Authority did not have any occasion
to know that CVC had submitted some report against
him. The submission of the learned Addl. Solicitor
General that CVC recommendations are confidential
copy, of which, could not be supplied cannot be
accepted. Recommendations of Vigilance prior to
initiation of proceedings are different that CVC
recommendation which was the basis of the order
passed by the Disciplinary Authority. Further, in the
case of Union of India & Ors Vs. S.K.Kapoor, Civil
Appeal No. 5341 of 2006 dated 16.03.2011, the
Hon’ble Supreme Court opined that that although
Article 320(3)(c) is not mandatory, if the authorities
do consult the Union Public Service Commission and
rely on the report of the commission for taking
disciplinary action, then the principles of natural
justice require that a copy of the report must be
supplied in advance to the employee concerned so
that he may have an opportunity of rebuttal, xxx xxx
xxx. There may be a case where the report of the
Union Public Service Commission is not relied upon
WP(C) No. 41573 of 2023 Page 16 of 26
by the disciplinary authority and in that case it is
certainly not necessary to supply a copy of the same
to the concerned employee. However, if it is relied
upon, then a copy of the CIVIL APPEAL NO. 5341
OF 2006 same must be supplied in advance to the
concerned employee, otherwise, there will be
violation of the principles of natural justice. In the
case of Oriental Bank of Commerce and others Vs.
S.S.Sheokand & Anr, (2014) 2 SCC (L&S) 125, it
has been held by the Hon’ble Apex Court that “after
receipt of CVC report major penalty imposed – CVC
report not furnished to the delinquent – Any material,
which goes into the decision making process against
an employee, cannot be denied to him High Court has
rightly quashed the order of punishment, which needs
no interference.” Non-supply of UPSC advice before
imposition of penalty was held to be violative of
principles of natural justice in the case of S.N.NaruIa
(supra). In the instant case undisputedly the advice
tendered by UPSC was duly accepted by the
Disciplinary Authority and imposed the order of
punishment of 100% cut of pension and forfeiture of
gratuity and copy of the said UPSC advice was not
supplied to the Applicant along with the order of
punishment and, therefore, we find sufficient force on
the submission of learned counsel for the applicant
that in such an event gross injustice was caused in the
decision making process of the matter/gross violation
of principles of natural justice. The denial of
documents sought by the applicant, such as statement
of Complainant etc., is also found to be contrary to
law. It is seen from record that the applicant has
prayed before the IO to allow some witnesses on his
behalf, out of which some of them are doctors, staff
nurse of the dispensary/hospital and another
government employees besides some of his family
members. The IO rejected the prayer of the applicant
citing the grounds, which, in the peculiar facts and
circumstances of the case, do not appeal to judicial
conscience. Thus, the stand of the applicant that he
was highly prejudiced for such action of the IO is
found to be justified and is held to be in violation of
WP(C) No. 41573 of 2023 Page 17 of 26
the principles of natural justice. The compliance of
natural justice in domestic/disciplinary inquiry is
necessary has long been established. It is settled law
that even there are no specific statutory rule requiring
observance of natural justice, the compliance of
natural justice is necessary. Certain ingredients have
been held to be constituting integral part of holding of
an inquiry vide Chamoli District Co-operative Bank
Ltd. & Anr. vs. Raghunath Singh Rana & Ors., Civil
Appeal No. 2265 of 2011. Further, it is settled law
that natural justice generally requires that persons
liable to be directly affected by proposed
administrative acts, decisions or proceedings be given
adequate notice of what is proposed so that they may
be in a position (a) to make representation on their
own behalf; (b) or to appear at a hearing or enquiry (if
one is held); and (c) effectively to prepare their own
case and to answer the case (if any) they had to meet.
Even when a State agency acts administratively, rules
of natural justice would apply vide K.I. Shephard &
Ors. Etc. vs Union of India & Ors, 1988 AIR 686.
11. The discussion made above, conclusively
establishes that punishment imposed on the applicant
was in violation of the principles of natural justice
and law discussed above. Hence, impugned orders
dated 21.11.2012 and 19.03.2014 are hereby quashed.
In ordinary course, this matter would have been
remitted back to the Respondents for reconsideration
after complying with principles of natural justice but
taking into consideration the fact that this matter is
going on for last 14 years and that the age of the
applicant (71 years), we refrain from doing so and in
view of the quashing of the impugned order of
punishment, the Respondents are directed to release
and pensionary dues to the applicant within a period
of 60 (sixty) days from the date of receipt of a copy of
this order.
12. In the result this OA stands allowed. There shall
be no order as to costs.”
WP(C) No. 41573 of 2023 Page 18 of 26
10. Perusal of the Judgment passed by the learned Special
Judge, CBI, Bhubaneswar, referred to above, indicates a clean
acquittal of the O.P.No.1 in as much as the learned Court
emphasised that the Complainant’s testimony, which was central to
the prosecution’s narrative, was riddled with contradictions and
inconsistencies. The Complainant’s admission of having no
knowledge of the FIR, coupled with discrepancies in his account of
the alleged demand and acceptance of the bribe, rendered the
prosecution’s version untenable. Furthermore, the lack of
corroborative evidence to substantiate the allegations and the weak
foundation of the FIR dismantled the case. The recovery of tainted
money, unsupported by credible evidence linking it to the O.P. No.
1’s misconduct, further weakened the prosecution’s stance.
11. Further, perusal of the Judgment passed by the learned
Tribunal, agreeing with the conclusions of the CBI Court, noted that
the disciplinary authority had relied on the same set of evidence that
had been discredited during the criminal trial. The criminal case fell
apart due to unreliable testimony and procedural deficiencies, with
the CBI Court holding that the prosecution failed to establish guilt
beyond a reasonable doubt. Given these findings, the Tribunal
observed that the punishment imposed on the O.P. No. 1 lacked
justification. It highlighted that reliance on discredited evidence
from the criminal trial was not only contrary to established legal
principles but also in gross violation of natural justice. Additionally,
the Tribunal pointed out severe procedural lapses in the enquiry
proceedings. These included denial of access to crucial documents
and failure to allow the O.P. to present witnesses in his defence,
which violated principles of natural justice. Referring to Supreme
WP(C) No. 41573 of 2023 Page 19 of 26
Court precedents, the Tribunal reiterated that disciplinary
proceedings must adhere to standards of fairness and due process.
Consequently, it set aside the disciplinary action, holding that the
enquiry process was fundamentally flawed and that the punishment
imposed on O.P. No. 1 could not stand in light of his acquittal in the
criminal case.
12. We have given our thoughtful consideration to the
submissions made and the decisions cited by the learned counsels
on both side and have carefully gone through the impugned
Judgment so also the order of acquittal passed by the learned
Special Judge, CBI, Bhubaneswar in T.R. 33 of 2008 initiated under
the PC Act besides the proceedings of the Enquiry as well as the
findings of the Enquiry recorded by the Enquiry Officer, we found
that the charges of both the departmental proceeding and the
criminal proceeding are same and similar in both the proceeding
and it stems from same set of facts.
13. Considering the rival submissions of the parties and the
challenge raised by O.P. No. 1 regarding the findings of the
enquiry, specifically, that they were unsupported by evidence,
contrary to the record, it is necessary to examine whether the
Departmental Enquiry was conducted in accordance with the
principles of natural justice.
14. Before examining, it is made clear that the Tribunal, while
passing the order after the case was remanded by this Court, found
to have acted well within its jurisdiction and adhered to the scope of
the remand. The remand allowed was not only for rehearing but
also for reconsideration of the material pointed out during the
WP(C) No. 41573 of 2023 Page 20 of 26
arguments. The Tribunal’s authority to pass an order different from
its earlier decision cannot be viewed as abortive or improper.
Consequently, such an exercise of its discretion remains valid and
lawful, and the Petitioners’ criticism on this ground stand irrelevant.
15. As far as the Enquiry Proceeding is concerned, it is noted
that the Complainant, Udaya Singh Sawaiyan, presented a
testimony riddled with inconsistencies and contradictions. During
his examination-in-chief, the Complainant alleged that on
23.02.2008, while visiting his nephew in Bandamunda, he sought
treatment at the Bandamunda S.E. Railway Hospital. He claimed
that Dr. Behera demanded ₹1,000 as a bribe for providing proper
treatment and directed him to visit his residence near the hospital.
According to the Complainant, after informing his nephew, a
complaint was drafted, which ultimately led to a trap operation on
24.02.2008. However, his subsequent cross-examination revealed
several critical contradictions:
Contradictory Statements in Cross-Examination:
In response to Qs. No. 4, the Complainant stated he visited
Dr. Behera’s chamber on 23.02.2008 and his nephew paid
the money. However, in response to Qs. No. 43, he claimed
he personally paid the bribe at 10 a.m. on 23.02.2008.
Contrarily, in response to Qs. No. 55, he admitted there was
neither a demand for money nor any payment when he
collected medicines at 10 a.m. This contradiction directly
challenges the authenticity of his earlier statements.
Inconsistencies Regarding Prescription and Medicines:
In response to Qs. No. 6, he stated Dr. Behera issued a
prescription instructing him to bring medicines from theWP(C) No. 41573 of 2023 Page 21 of 26
hospital, but the documents shown to him were blank.
Similarly, in response to Qs. No. 28, he claimed that Dr.
Behera wrote and signed on the back of the prescription
memo, yet affirmed the same prescription was blank when
exhibited.
In responses to Qs. No. 25 and 27, he stated to have
received medicines using a memo issued by the hospital, but
there was no corroborative evidence to support this
assertion.
Shifting Narrative About the Trap Operation:
Initially, the Complainant alleged that ₹1,000 was
demanded on 23.02.2008 and that the trap operation was
planned for a subsequent visit. However, he admitted during
cross-examination that his nephew provided him with
₹1,000 and that he signed the complaint prepared by his
nephew’s friend without knowing its contents.
The Complainant acknowledged he was unaware of the
specifics of the complaint and admitted that Dr. Behera
refused to accept money. He also stated he placed the
tainted currency in the coat pocket of Dr. Behera himself,
contradicting the allegation of a bribe demand and
acceptance.
Doubts About the Complainant’s Credibility:
In responses to Qs. No. 73 and 74, he admitted meeting Dr.
Behera for the first time on 23.02.2008, creating doubt
about the authenticity of his claim of prior interactions or
treatment.
WP(C) No. 41573 of 2023 Page 22 of 26
His repeated references to his nephew’s involvement in
drafting the complaint and facilitating interactions with the
CBI suggest external influence, further questioning the
genuineness of the complaint.
16. Moreover, the testimony of D.W.1, a reliable defence
witness, provided a detailed account of the events on 24.02.2008.
He confirmed being present at O.P. No. 1’s residence when the
alleged bribe occurred. According to him, a visitor sought
treatment, which O.P. No. 1 reluctantly provided after initial
annoyance. The witness observed the visitor placing money in O.P.
No. 1’s coat pocket while the doctor was momentarily distracted.
This testimony aligns with the defence’s claim that the money was
planted without O.P. No. 1’s knowledge.
The cumulative effect of the Complainant’s contradictions
raises significant doubt about whether the Complainant was ever a
patient of O.P. No. 1 or whether the entire operation was
orchestrated for ulterior motives. The testimony of D.W.1
corroborates the testimony of the Complainant in his cross-
examination, establishing that no bribe was solicited or accepted.
The enquiry officer failed to critically evaluate these
inconsistencies, and the disciplinary authority relied on this flawed
testimony without addressing these glaring issues. The Enquiry
Officer’s conclusions are further tainted by the refusal to allow the
delinquent doctor to examine witnesses who could have
corroborated his defence, effectively denying him the opportunity
to prove his innocence. Additionally, the defence witness presented
by Dr. Behera provided a credible explanation for the recovery of
WP(C) No. 41573 of 2023 Page 23 of 26
the tainted money from his coat pocket, but this was not appreciated
in the enquiry report.
17. Furthermore, a glaring omission in the disciplinary
authority’s case was the absence of any evidence to suggest that
O.P. No. 1 had a history of dishonesty or a habit of taking illegal
gratification. On the contrary, his long service record was
exemplary, with no prior allegations of misconduct. This failure to
demonstrate a pattern of corrupt behaviour weakened the
justification for the imposition of a severe punishment, which
appeared disproportionate to the evidence presented. Such
omissions and procedural lapses, including the failure to address
contradictions in the Complainant’s testimony, violate principles of
natural justice and fair play.
18. In view of the above discussions, we find it imperative to
clarify that having regard to the principles enunciated by the
Hon’ble Apex Court in a catena of decisions, there is nothing to
quarrel that the High Court is not expected to act as an appellate
court sitting in appeal over factual findings in a disciplinary
proceeding, as the High Court’s role is limited to reviewing the
disciplinary proceeding. Such limitation, however, includes the
jurisdiction to examine whether there have been errors of law or
procedural lapses resulting in a miscarriage of justice, particularly,
when the authority has failed to consider relevant material touching
upon the genesis of the allegations. The same is fortified by the
Hon’ble Apex Court in the matter of Ram Lal vs. The State of
Rajasthan reported in (2024) 1 SCC 175, as follows:
“It is well settled that if the findings of the
disciplinary authorities are arrived at after ignoringWP(C) No. 41573 of 2023 Page 24 of 26
the relevant material the Court in judicial review can
interfere. It is only to satisfy ourselves to this extent,
that we have scrutinized the material to see as to what
was reflected in record. We are satisfied that
disciplinary proceedings are vitiated and deserved to
be quashed.”
In essence, the Court in judicial review can interfere when
the findings in a disciplinary enquiry is vitiated by procedural or
evidentiary lapses since the very inception, to ensure adherence to
the principles of natural justice.
19. Therefore, keeping in view the principles of natural justice,
this Court finds that the enquiry proceeding against O.P. No. 1 was
marred by significant procedural irregularities and violations of the
principles of natural justice. The denial of access to relevant
documents essential for preparing a defence, and the refusal to
summon key witnesses capable of corroborating the defence’s
claims, deprived O.P. No. 1 of a meaningful opportunity to present
his case and rebut the allegations effectively. Furthermore, the
Complainant’s testimony, which formed the crux of the charges,
was rife with contradictions, inconsistencies, and vagueness. It
failed to provide a coherent and credible basis for attributing any
wrongdoing to O.P. No.1, casting serious doubt on the legitimacy of
the findings of the Enquiry Officer.
20. Upon examining the case, it is evident that O.P. No. 1, is
governed by the Central Civil Services (Classification, Control, and
Appeal) Rules, 1965. These rules provide the framework for
disciplinary proceedings, emphasising procedural fairness and the
principles of natural justice. Rule 29 of the CCS (CCA) Rules, 1965
provides for revision of orders in disciplinary matters but does not
WP(C) No. 41573 of 2023 Page 25 of 26
extend to authorising a de novo hearing or initiating fresh
disciplinary proceedings. Moreover, considering the significant
passage of time i.e. more than 20 years since the proceedings were
initiated and the advanced age of O.P. No. 1 i.e. 72 years,
conducting a de novo hearing at this stage would neither be feasible
nor serve the ends of justice. In light of these considerations, it was
correctly held by the Tribunal that the impugned order of
punishment deserved to be quashed.
21. In the result, in our considered opinion, the order of the
learned Tribunal, warrants no interference. O.P. No. 1 is, hence,
entitled to the release of his current pension, arrears, and other retiral
benefits.
22. Accordingly, the WP(C) stands dismissed with the above
observations and direction. There shall be no order as to costs.
(Chittaranjan Dash)
Judge
(S.K.Sahoo)
Judge
A.K.Pradhan/Bijay
Signature Not Verified
Digitally Signed
Signed by: BIJAY KETAN SAHOO
Reason: Authentication
Location: HIGH COURT OF ORISSA
Date: 11-Dec-2024 17:34:13
WP(C) No. 41573 of 2023 Page 26 of 26