WP(C)/25305/2011 of BAISHNAB CHARAN MOHANTY Vs O.A.T., BHUBANESWAR on 3 July 2026

1. By means of the present writ petition, the Petitioner seeks to assail the order dated 20.05.2011 passed by the Orissa Administrative Tribunal, Bhubaneswar in O.A. No. 1670 of 1998, whereby the challenge to Departmental Proceeding No. 1023 dated 07.01.1986, the enquiry report dated 29.04.1995 and the consequential order dated 03.06.1998 directing recovery of Rs.1,30,600/- from the Petitioner’s gratuity and pension was rejected.

2. Mr. Pradhan, learned counsel for the Petitioner contended that the Tribunal erred in sustaining the departmental proceeding and the consequential recovery order despite there being no material to establish the charges. It was submitted that the amounts alleged to have been paid as advances to contractors were, in fact, part-payments released against duly executed works and measured bills. Owing to insufficiency of Letter of Credit at the close of the financial year 1981- 82, full payment of the bills could not be made and, therefore, part- payments were released. The disciplinary authorities, however, erroneously treated such payments as advances and proceeded against the Petitioner. It was further contended that the enquiry was vitiated by serious procedural irregularities. According to the Petitioner, the charges were vague, relevant documents and particulars were not furnished, no material evidence was adduced, and the findings of the Inquiry Officer were based on conjectures rather than evidence. Learned counsel emphasized that the Inquiry Officer himself recorded that in several cases the relevant records were unavailable and that part-payments against legitimate bills could be accepted, yet proceeded to recommend recovery of Rs.1,30,600/-. It was argued that such findings were inherently contradictory and perverse. It was also urged that the disciplinary authority mechanically accepted the enquiry report without properly considering the Petitioner’s explanation or the statement furnished by the Executive Engineer, Prachi Division, which allegedly demonstrated that the disputed payments were made against measured bills. On such premises, it was submitted that the enquiry report, the recovery order dated 03.06.1998 and the Tribunal’s order affirming the same are unsustainable in law.

3. Per contra, Mr. Behera, learned Additional Government Advocate, on the other hand, supported the impugned order and submitted that the charges stood duly established in the departmental proceeding. It was contended that the disciplinary authority had considered the materials on record and rightly directed recovery from the Petitioner’s retiral dues. According to the State, no procedural infirmity or perversity had been demonstrated warranting interference in exercise of judicial review, particularly when the Tribunal had already examined and affirmed the validity of the proceeding.

4. At the outset, it is necessary to bear in mind the settled principle that in matters arising out of departmental proceedings, the writ court does not sit as an appellate authority over the findings recorded by the disciplinary authority. Interference is ordinarily confined to cases where the findings are unsupported by any evidence, are perverse, or where the enquiry is vitiated by violation of statutory procedure or principles of natural justice. The sufficiency or adequacy of evidence is not a matter for judicial review. However, where the decision-making process itself is fundamentally flawed, the Court would be justified in exercising its constitutional jurisdiction. Tested on the aforesaid touchstone, we find considerable substance in the grievance raised by the Petitioner.

5. Since one of the principal grounds of challenge pertains to the legality of the disciplinary enquiry itself, it would be apposite to first advert to Rule 15 of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962, which prescribes the procedure for imposing a major penalty, as reproduced below: Section 15 in The Orissa Civil Services (Classification, Control & Appeal) Rules, 1962

15. Procedure for imposing penalties.

(1) Without prejudice to the provisions of the Public Servant (Inquiry) Act, 1950, no order imposing on a Government servant any of the penalties specified in Clauses (vi) to (ix) of Rule 13 shall be passed except after an inquiry held as far as may be in the manner hereinafter provided.

(2) The disciplinary authority shall frame definite charges on the basis of the allegations on which the inquiry is to be held. Such charges, together with a statement of the allegations on which they are based, shall be communicated in writing to the Government servant and he shall be required to submit, within such time as may be specified by the disciplinary authority, not ordinarily exceeding one month a written statement of his defence and also to state whether he desires to be heard in person. Explanation - In this Sub-rule and in Sub-rule (3) the expression Disciplinary authority shall include the authority competent under these rules to impose upon the Government servant of the penalties specified in Clauses (i) to (v) of Rule

13.

(3) The Government servant shall, for the purpose of preparing his defence, be supplied with all the records on which the allegations are based. He shall also be permitted to inspect and take extracts from such other official records as he may specify, provided that such permission may be refused if, for reasons to be recorded in writing in the opinion of the disciplinary authority such records are not relevant for the purpose or it is against interest of the public to allow him access thereto.

(4) On receipt of the written statement of defence or if no such statement is received within the time specified, the disciplinary authority may itself enquire into such of the charges as are not admitted or, if it considers it necessary so to do, appoint a board of inquiry or an enquiring officer for the purpose. [Provided that if, after considering the written statement of defence, the disciplinary authority is of the view that the facts of the case do not justify the award of a major penalty, it shall determine after recording reasons thereof, what other penalty or penalties, if any, as specified in Clauses (i) to (v) of Rule 13 should be imposed and shall after consulting the Commission, where such consultation is necessary, pass appropriate order.]

(5) The disciplinary authority may nominate any person to present the case in support of the charges before the authority inquiring into the charges (hereinafter referred to as the ‘inquiring authority’). The Government servant shall have the right to engage a legal practitioner to present his case if the person nominated by the disciplinary authority, as aforesaid, is a legal practitioner. The inquiring authority may also having regard to the circumstances of the case, permit the Government servant to be represented by a legal practitioner.

(6) The inquiring authority shall, in the course of the inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. The Government servant shall be entitled to cross- examine witnesses examined in support of the charges and to give evidence in person. The person presenting the case in support of the charges shall be entitled to cross-examine the Government servant and the witnesses examined in his defence. If the inquiring authority declines to examine any witness on the ground that his evidence is not relevant or material, it shall record its reason in writing.

(7) At the conclusion of the inquiry the inquiring authority shall prepare a report of the inquiry, recording its findings on each of the charges together with reasons thereof. If, in the opinion of such authority, the proceedings of the inquiry establish charges different from those originally framed, it may record its findings on such charges, provided that the findings on such charges shall not be recorded, unless the Government servant has admitted the facts constituting them or has had an opportunity of defending himself against them. The inquiring authority may recommend the punishment to be inflicted when the charges are establishment on the findings.

(8) The record of inquiry shall include-

(i) the charges framed against the Government servant and the statement of allegations furnished to him under Sub-rule (2)

(ii) his written statement of defence, if any;

(iii) the oral evidence taken in the course of the inquiry;

(iv) the documentary evidence considered in the course of the inquiry;

(v) the orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry;

(vi) a report setting out the findings on each charge and the reasons therefor; and

(vii) the recommendations of the inquiring authority, if any, regarding the punishment to be inflicted.

(9) The disciplinary authority shall, if it is not the inquiring authority, consider the record of the inquiry and record its findings on each charge.

6. Further, it is also apposite to refer to the decision of the Supreme Court in State of Uttaranchal & Ors. vs. Kharak Singh, (2008) 8 SCC 236, wherein the Court, while delineating the minimum safeguards required in a departmental enquiry, held as follows: “11) From the above decisions, the following principles would emerge:

i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.

ii) If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.

iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged, give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.

iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.”

7. The principles enunciated in the aforesaid decision leave little room for doubt that a departmental enquiry cannot be reduced to an empty formality. The burden lies upon the employer to first establish the charges through legally admissible evidence, whereafter the delinquent employee must be afforded an effective opportunity to test such evidence through cross-examination and to present his defence. Equally, the disciplinary authority is under an obligation to furnish the enquiry report and independently consider the explanation offered by the delinquent before recording its conclusions.

8. Keeping the aforesaid statutory framework and the law enunciated in Kharak Singh (supra), in view, we proceed to examine whether the departmental proceeding in the present case satisfies the requirements of Rule 15 of the OCS (CCA) Rules, 1962.

9. A perusal of the record reveals that the proceeding suffers from multiple infirmities. Rule 15(2) mandates that definite charges together with a statement of allegations forming the foundation thereof must be communicated to the delinquent employee. Rule 15(3) further requires supply of the records on which the allegations are based so as to enable the delinquent to effectively prepare his defence. Rule 15(6) contemplates consideration of relevant documentary and oral evidence and expressly confers upon the delinquent the right to cross-examine witnesses examined in support of the charges. Rule 15(7) obliges the Inquiry Officer to record findings on each charge together with reasons therefor, while Rule 15(8) requires the enquiry record to contain the oral and documentary evidence considered during the enquiry. Finally,

Rule 15(9) casts a duty upon the disciplinary authority to independently consider the record of enquiry and record its findings on each charge.

10. In the present case, the materials placed before us do not disclose compliance with the aforesaid safeguards. The record does not indicate that any witness was examined in support of the charges or that any oral evidence was led by the Department, as contemplated under Rule 15(6). Consequently, the Petitioner was deprived of the valuable right of cross-examination recognised both under the Rules and in Kharak Singh (supra). Moreover, there is nothing to indicate that the explanation of the Petitioner was recorded and considered in the manner envisaged by the Rules. The enquiry report is also conspicuously silent as regards the evidentiary basis upon which the findings ultimately came to be recorded.

11. The procedural deficiencies noticed above are not merely technical in nature. They go to the root of the disciplinary proceeding and assume greater significance when the findings recorded by the Inquiry Officer are examined in light of the materials available on record.

12. The gravamen of the charge against the Petitioner was that, while functioning as Executive Engineer, Munduli Division, he had released unauthorised advances to contractors in violation of codal provisions and departmental instructions. However, from the very inception, the Petitioner consistently maintained that the amounts in question did not constitute advances at all, but represented part- payments made against duly executed works and bills already received in the Division Office. This stand was specifically taken in the

Petitioner’s written explanation dated 08.01.1987 (Annexure-1 to the O.A.), wherein it was asserted that there was not a single instance of advance payment being made before completion of the work or before receipt of the relevant bills. The explanation further disclosed that owing to insufficiency of Letter of Credit at the close of the financial year 1981-82, full payment of the bills could not be released and, therefore, part-payments were made against such bills.

13. Significantly, the enquiry report itself (Annexure-3 to the O.A.) does not conclusively establish that the disputed payments were advances. On the contrary, the Inquiry Officer recorded that the charge- sheet did not contain concrete particulars regarding the alleged advances and further noticed that in several cases the connected records were unavailable. The report also records that part-payments against legitimate bills could be accepted. Yet, notwithstanding such observations, the Inquiry Officer proceeded to recommend recovery of Rs.1,30,600/- from the Petitioner. The contradiction is apparent on the face of the record. Once the Inquiry Officer found that the foundational records were unavailable and acknowledged the possibility that the payments represented part-payments against legitimate bills, the burden remained upon the Department to affirmatively establish that the payments were in fact advances. The finding of guilt could not have been founded upon assumptions arising from absence of records.

14. What further assumes importance is the Petitioner’s reply to the second show-cause notice dated 19.07.1997, wherein reliance was placed upon the statement furnished by the Executive Engineer, Prachi Division. The said statement, according to the Petitioner, contained particulars relating to the amount of bills, measurement books, completion of works and payments released thereagainst. The defence sought to demonstrate that the disputed amounts represented payments against executed works and not advances simpliciter. However, neither the enquiry report nor the order of the disciplinary authority dated 03.06.1998 reflects any meaningful consideration of this material. Rather, the disciplinary authority appears to have mechanically accepted the recommendation of the Inquiry Officer and directed recovery of Rs.1,30,600/- from the Petitioner’s gratuity and pension.

15. The approach adopted by the disciplinary authority is also difficult to reconcile with Rule 15(9) of the Rules. The said provision obliges the disciplinary authority to independently consider the record of enquiry and record its findings on each charge. The requirement is not an empty ritual. Where serious objections are raised by the delinquent employee and material is placed in support of his defence, the disciplinary authority is expected to deal with the same by assigning reasons. A bare acceptance of the conclusions of the Inquiry Officer without independent evaluation of the defence set up by the delinquent does not satisfy the mandate of Rule 15(9).

16. Viewed from another angle, the very findings recorded in the enquiry report reveal the absence of a legally sustainable evidentiary foundation. The Inquiry Officer noted that in respect of several transactions, details regarding commencement of work, completion of work and preparation of bills were unavailable. The report further observed that in a number of cases no records were available to determine whether the plea of part-payment could be accepted. Such observations, far from proving the charge, demonstrate the inability of the Department to establish it. It is trite that the burden of proving the charge rests upon the employer. A delinquent employee cannot be held guilty merely because certain records are unavailable or because he was unable to produce materials decades after the transactions in question. The absence of evidence cannot be converted into evidence of misconduct.

17. The Supreme Court in Kharak Singh (supra) has unequivocally held that the employer must first lead evidence in support of the charges and afford the delinquent an opportunity to test such evidence before calling upon him to enter his defence. The same principle was reiterated in Roop Singh Negi vs. Punjab National Bank, (2009) 2 SCC 570, wherein it was held that findings in a departmental proceeding must be based on some evidence and cannot rest on conjectures or surmises. Similarly, in State of Uttar Pradesh vs. Saroj Kumar Sinha, (2010) 2 SCC 772, the Hon’ble Supreme Court emphasised that a departmental enquiry is a quasi-judicial proceeding and cannot be treated as an empty formality. Akin approach is also taken in the recent decision of the Hon’ble Supreme Court in State of Uttar Pradesh through Principal Secretary, Department of Panchayati Raj, Lucknow vs. Ram Prakash Singh, 2025 INSC 555

18. Applying the aforesaid principles to the facts of the present case, we are unable to persuade ourselves that the charge against the Petitioner stood established in the manner known to law. The record discloses neither compliance with the mandatory safeguards embodied in Rule 15 of the OCS (CCA) Rules, 1962 nor existence of cogent evidence demonstrating that the payments in question were unauthorised advances. On the contrary, the materials on record, including the Petitioner’s explanation and the observations recorded by the Inquiry Officer himself, lend support to the defence that the disputed payments were part-payments against bills relating to works already executed.

19. The cumulative effect of the aforesaid circumstances leaves little room for doubt that the disciplinary proceeding was conducted in derogation of the safeguards embodied in Rule 15 of the OCS (CCA) Rules, 1962 and the principles of natural justice. The record does not disclose compliance with the statutory requirement of proving the charge through relevant oral and documentary evidence, nor does it demonstrate that the Petitioner was afforded an effective opportunity to test the case set up against him. Equally, the disciplinary authority failed to discharge its obligation under Rule 15(9) of independently considering the record and the defence raised by the Petitioner.

20. What further renders the impugned action unsustainable is that the very enquiry report, while noticing the absence of material records and observing that part-payments against legitimate bills could be accepted, nevertheless proceeded to recommend recovery from the Petitioner. The charge against the Petitioner was founded on the allegation that unauthorised advances had been paid to contractors. Yet, the materials relied upon in the enquiry fall short of establishing such allegation. The finding ultimately recorded is, therefore, not supported by the evidentiary foundation required in law. In that view of the matter, we are unable to sustain either the enquiry report dated

29.04.1995, the consequential order dated 03.06.1998 directing recovery of Rs.1,30,600/- from the Petitioner’s gratuity and pension, or the order dated 20.05.2011 passed by the Tribunal in O.A. No.1670 of 1998 affirming the same.

21. Ordinarily, upon setting aside a disciplinary proceeding, the matter may be remitted to the disciplinary authority for fresh consideration. However, such a course would be unwarranted in the facts of the present case. The allegations pertain to the period 1979- 1982; the proceeding was initiated in 1986; the Petitioner retired from service in August, 1994; and the dispute has remained pending for nearly four decades. The enquiry report itself records non-availability of relevant records. In such circumstances, a direction for a de novo enquiry would serve no useful purpose and would only prolong a controversy which ought to have attained finality long ago.

22. Accordingly, the Writ Petition is allowed. The order dated 20.05.2011 passed by the Orissa Administrative Tribunal, Bhubaneswar in O.A. No.1670 of 1998, the enquiry report dated 29.04.1995 and the consequential order dated 03.06.1998 are hereby quashed.

23. The Opposite Parties are directed to disburse all financial benefits that have accrued to the Petitioner but remained withheld owing to the impugned disciplinary proceedings. The Opposite Parties shall further ensure release of all remaining retiral and pensionary benefits lawfully due and admissible to the Petitioner.

24. The aforesaid exercise shall be completed within an outer limit of sixty (60) days from the date of communication of this judgment, without compelling the Petitioner to undertake any further round of litigation or for non-compliance of the present order, more so when the Petitioner is a nonagenarian and has been pursuing his claim for several decades and is entitled to some measure of tranquillity in the evening of his life.

(Chittaranjan Dash)

Judge

(Krishna S. Dixit)

Judge

Bijay/Sarbani

Digitally Signed Signed by: SARBANI DASH Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 07-Jul-2026 13:46:12 Signature Not Verified