Orissa High CourtGirish Mohanty vs Union Of India Represented Through Its ... on 3 March, 2015Author:B.R.SarangiBench:B.R.SarangiORISSA HIGH COURT: CUTTACK

                             OJC No. 2607 of 2001

         In the matter of an application underArticles 226& 227of the
         Constitution of India.
                                  ----------



         Girish Mohanty                      .........           Petitioner


                                           -versus-

         Union of India                .........                Opp. Parties
         Represented through its Secretary
         in Home Department, New Delhi
         and others.


           For Petitioner             :       M/s. K.K.Swain,
                                              P.N.Mohanty, S.C.Dash,
                                              B. Jena.


           For Opp.Parties             :      Mr. S.K. Patra
                                              (Central Govt. Counsel)




         PRESENT:

               THE HONOURABLE DR. JUSTICE B.R.SARANGI

          Date of hearing: 13.02.2015| Date of judgment : 03.03.2015

Dr. B.R.Sarangi, J.The petitioner, who is working as a Constable

         under   the   Central   Industrial    Security   Force   (hereinafter

         referred to as „the C.I.S.F.‟) has filed this application seeking

         to quash the order of punishment imposed by the disciplinary

         authority vide Annexure-3 dated 27.06.1996 by reducing the2scale of pay to two stages from Rs.885/- to Rs.855/- in the

time scale of pay for the period of one year with effect from

04.07.1996 and also directed that he will not earn increment

of pay during the period of reduction and that on expiry of the

said period, the reduction will not have effect of postponing his

future increment of pay and consequential order dated

03.11.1999 passed by the appellate authority in appeal vide

Annexure-9 confirming the order passed by the disciplinary

authority.2.             The factual matrix of the case in hand is that

pursuant to a recruitment test held by the CISF, the petitioner

was selected for the post of Constable and accordingly he was

issued with an appointment order on 13.05.1994, pursuant to

which, he reported for duty before the Commandant, CISF

Unit, Eastern Coal Field Ltd., Seetalpur in the district of

Burdwan (West Bengal) on 28.5.1994. The petitioner took

leave for 25 days for the purpose of repairing his house, which

was duly sanctioned by the authority. Due to his sister‟s

marriage, the said period of leave was extended for another

period of ten days by virtue of the communication through

registered letter to the Commandant. While he was on leave,

he was implicated in a criminal case and arrested by local

police on 20.06.1995 and was taken to custody. Since the

leave period expired and the petitioner over-stayed the leave3period as he was taken to custody, he could not join in his

post,   as    a    result   he      sent   a   registered    letter   to   the

Commandant on 13.7.1995 requesting him to extend the leave

period. Thereafter, he joined in the post on 28.11.1995 and

the same was accepted. Thereafter, he was allowed to work in

his post as before. The petitioner made a request to the

authorities       to   regularize    his   leave   period,     but    without

considering the same, he was sent for basic training at Vilai for

a period of three months by virtue of the order dated

6.12.1995. On completion of his training, he joined in his post

at Seetalpur on 26.2.1996 and discharged his duty peacefully.

While continuing as such, the Commandant issued a charge-

sheet calling upon him to explain as to why he over-stayed his

leave period. On receipt of the same, the petitioner submitted

his explanation and on consideration of the said explanation,

punishment was inflicted by reducing the scale of pay to two

stages from Rs.885/- to Rs.855/- in the time scale of pay for

the period of one year with effect from 04.07.1996 vide

Annexure-3. It was further clarified that the petitioner will not

earn increment of pay during the period of reduction and that

on expiry of the said period, the reduction will not affect

postponing his future increment of pay. It is stated that the

inquiry which has been caused is not in conformity with the

provisions of law and there is non-compliance of principles of4natural justice. It is stated that against the said order of

imposition of penalty, the petitioner preferred an appeal, but

the appellate authority rejected the appeal vide order dated

03.09.1999 in Annexure-9 confirming the order passed by the

disciplinary authority vide Annexure-3. Hence, this application.3.             Mr.   K.K.   Swain,   learned   counsel   for   the

petitioner strenuously urged that the charges were issued

against the petitioner on 31.12.1998 alleging misconduct for

suppressing the criminal proceeding dated 20.06.1995 undersection 302/201/34IPC registered against him in Motanga

Police Station in the district of Dhenkanal, to which the

petitioner filed written statement of defence on 8.1.1999

denying such allegation levelled against him and explaining the

situation under which he could not intimate the aforesaid facts

basing upon which an inquiry was conducted by the inquiry

officer under Rule-34 of CISF Rules, 1969. It is stated that

such inquiry has been conducted in a perverse manner without

complying with the principles of natural justice and without

giving opportunity of being heard to the petitioner. More so,

the petitioner has not been given any opportunity to examine

or cross examine the witnesses, who deposed against him and

no materials and documents which were utilized against him

were given to him. Therefore, the inquiry is completely

vitiated. It is further stated that the inquiry having been5conducted in a mechanical manner without application of mind

and on the basis of such inquiry report since the punishment

has been imposed, the same is also passed without non-

application of mind. It is stated that even if such point has

been raised before the appellate authority, the appellate

authority without considering the same in proper perspective

has confirmed the order passed by the disciplinary authority.

Therefore, he seeks for interference of this Court.In order to

substantiate his contention, he relied upon the judgments inJagdish Singh v. Punjab Engineering College and others,

(2009)   2    SCC     (L&S)    569,       Chairman-cum-Managing

Director,    Coal    India    Ltd.    &   Anr.   v.   Mukul     Kumar

Choudhuri & Ors., AIR 2010 SC 75, P.Areya Reddy v.

Presiding    Officer,   Labour        Court,     Bhubaneswar       and

another, 2011 (Supp.-1) OLR 238, Chandrama Bhusan

Sarangi v. Union of India and others, 2011 (I) ILR-CUT

398, Padnav Gouda v. Orissa Forest Corporation and

others, 2015 (I) OLR 54.4.             Mr.    Sudhir    Kumar       Patra,    learned   Central

Government Counsel raised preliminary objection with regard

to maintainability of the writ application before this Court and

stated that this Court has lacked territorial jurisdiction to hear

the matter. In addition to the same, it is urged that there is

availability of alternative remedy under the relevant service6rules against the order passed by the appellate authority.

Therefore, due to availability of alternative remedy, this writ

application cannot be sustained before this Court. It is stated

that on merit also the imposition of penalty having been done

in conformity with the provisions of law and the appellate

authority having confirmed the same, the writ petition is

devoid of any merit and accordingly he seeks for dismissal of

the writ application. It is further urged that the petitioner

misguided the disciplinary authority by taking three different

reasons on different occasion to cover up his 159 days OSL

period by suppressing his involvement in the criminal case

registered against him. Therefore, the action taken by the

authorities is well within its competence and the same is in

conformity with provisions of law. Therefore, this Court should

not interfere with the same.In order to substantiate his

contention, he relied upon the judgment inOil and Natural

Gas Commission v. Utpal Kumar Basu and others, (1994)

4 SCC 711, Gopal Krishna Behera v. Union of India and

others, 2014 (II) OLR 540.5.             In     view    of   the    aforesaid    facts   and

circumstances of the case, it is to be decided:-1)     Whether this Court has got jurisdiction
                    to interfere with the order passed by the
                    disciplinary authority as well as the appellate
                    authority.72)     Whether in view of the availability of
                   alternative remedy, this Court exercise the
                   jurisdiction underArticle 226of the
                   Constitution of India or not.3)    Whether the petitioner is entitled to
                   any relief claimed by him in the writ
                   application.6.              With regard to the lack of territorial jurisdiction

of this Court to interfere with the order of punishment imposed

by the competent authority, Mr. Patra,            learned Central

Government Counsel relied upon the judgment inOil and

Natural Gas Commission(supra) and stated that mere

service of the appellate order on the petitioner cannot form

part of cause      of action.   Therefore, this Court      has no

jurisdiction to interfere with the matter.7.              In order to have the territorial jurisdiction, it is

to be seen whether any part of cause of action has arisen

within the State of Orissa. The cause of action has been

defined to mean every fact, if traversed, it would be necessary

for the plaintiff to prove in order to support his right to a

judgment of the Court. The service of appellate order on the

petitioner at his permanent residence in the state of Orissa will

give rise to cause of action within the territory of the State.

Therefore the service of the said order was an integral part of

cause of action.8.              On perusal of Annexure-9, the appellate order

dated 3.11.1999, it appears that the said order has been8served on the petitioner at his native address i.e. Village-

Odapada,    Post-Hindol   Road,    PS-Motanga,    Dist-Dhenkanal

(Orissa). Therefore, the communication of the order affecting

the service of an individual is necessary and order takes effect

against the individual employee after its communication. The

appellate order being communicated in the present native

address of the petitioner, it forms part of cause of action.9.              Right to invokeArticle 226of the Constitution

of India to enforce Fundamental rights and other legal rights

against the State or authority or its agency is a constitutional

right. Such right should not be made illusory or unenforceable

upon narrow construction of the concept of cause of action. In

the present case, the petitioner was a member of the CISF, an

All India Organisation. CISF has admittedly its network of

offices and establishments in different parts of India including

the State of Orissa. The petitioner is an employee removed

from service and in usual course, he had come back to the

place of his permanent residence in Orissa to take shelter after

he had been removed from service. It is not possible for him, a

jobless employee, to come to the State where he was last

posted to avail of his right underArticle 226of the Constitution

of India. CISF with its net-work of offices and establishments is

not likely to suffer any irreparable prejudice in meeting legal

challenge of the petitioner in this Court.910.             In Chandrama Bhusan Sarangi (supra), this

Court also held that High Court can exercise power to issue

writ, direction or order for enforcement of any of fundamental

rights conferred by Part-III of Constitution or for any other

purpose, if cause of action wholly or in part has arisen within

the territorial jurisdiction of High Court. The expression „cause

of action‟ means bundle of facts which petitioner must prove, if

traversed, to entitle him to a judgment in his favour by Court.

Therefore, question of territorial jurisdiction must be decided

on facts pleaded in petition. Since the appellate order was

served on the petitioner at his native address, part of cause of

the action arises for writ petition within the jurisdiction of this

Court.11.             Considering all these aspects including the

interest of justice, this Court is of the view that a part of the

cause of action has arisen within the territorial jurisdiction of

this Court enabling it to entertain this writ application.12.             Mr.    K.K.        Swain,   learned   counsel   for   the

petitioner relies upon the judgment inJagdish Singh(supra),

wherein the apex Court considering the jurisdiction of the

Court in a judicial review so far as disciplinary matter is

concerned    held     that    in    case    of   habitual   absenteeism,

misconduct and willful absence, the petitioner is entitled to get

the punishment as envisaged under rules. This Court has no10jurisdiction to interfere with the quantum of punishment unless

it is held disproportionate shockingly to conscience. The ratio

of the said case is not applicable to the present context.Similarly in P. Areya Reddy (supra), similar view has also

been taken by the apex Court.13.            In Chairman-cum-Managing Director, Coal

India Ltd. and another (supra), the delinquent admitted the

charge in the departmental proceeding. The inquiry officer

arrived at a conclusion about the proof of charges, the apex

Court held that in absence of any procedural illegality or

irregularity in conduct of departmental enquiry, it has to be

held that the charges against the delinquent stood proved and

warranted no interference. The ratio of the said case is not

applicable to the present context. Therefore, the same is

distinguishable.14.            Now    coming    to   the   question   of   awarding

punishment on the delinquent officer on the basis of the

alleged facts it is well within the complete domain of the

disciplinary authority. Whether on the basis of facts alleged the

punishment    imposed     by   the    disciplinary    authority   is

proportionate or not or it is required to be reduced that can be

considered at the discretion of the disciplinary authority.

Therefore, what is appropriate quantum of punishment to be

awarded to a delinquent is a matter that primarily rests at the11discretion 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 with the quantum of

punishment. The law on the subject is well settled by a series

of decision rendered by the superior Court. This view has also

been taken inRanjit Thakur v. Union of India, (1987) 4

SCC 611 : AIR 1987 SC 2386, Dev Singh v. Punjab Tourism

Development Corporation Limited, (2003) 8 SCC 9 :AIR

2003 3712, Union of India v. Ganayutham, (1997) 7 SCC

463 :AIR 1997 SC 3387, Ex-Naik Sardar Singh v. Union of12India, (1991) 3 SCC 213 :AIR 1992 SC 417, Om Kumar v.

Union of India, (2001) 2 SCC 386 : AIR 2000 SC 3689.15.               The context in which the above mentioned case

has been dealt with is not applicable to the present case. Now

come to the question of applicability of alternative remedy. As

per the provisions contained under Rule 54 of the CISF Rules,

revision forum has been prescribed under the statute against

the order passed by the appellate authority. In Gopal Krishna

Behera (supra), this Court in paragraphs-8 and 9 held as

follows:-"8.        In view of the above provision, it appears
            that that there is availability of alternative remedy
            under the law and alternative remedy may be
            statutory, non-statutory or constitutional where a
            right is created by a statute. The statute itself may
            provide a remedy for violation of such rights. Where
            a statute creates a right or liability and also
            prescribes a remedy or procedure for enforcement of
            that right or liability, resort must be had to that
            remedy before invoking the extraordinary and
            prerogative writ jurisdiction of the High Court underArticle 226.Hence, where statutory remedy is
            available, petition underArticle 226is not generally
            entertained sinceArticle 226is not intended to
            circumvent statutory procedures. This provision of
            law has been settled by the apex Court inDanda
            Rajeshwari v. Bodavula Hanumayamma, AIR
            1997 SC 1541 and Shivgonda Anna Patil v. State
            of Maharashtra, AIR 1999 SC 2281.9.        In view of the aforesaid law laid down by
            the apex Court mentioned supra where the party had
            a statutory remedy available under the relevant
            statute, he cannot bypass the said remedy and file a
            writ petition underArticle 226.It was held that if
            such a procedure is allowed, it may enable the
            litigant to defeat the provisions of the statute. The
            normal rule is that a writ petition should not be
            entertained when statutory remedy is available13under the concerned legislation unless exceptional
         cases are made out in view of the ratio decided by
         the apex Court in Premier Automobiles Ltd. Vs.
         Kamlekar Shantaram Wadke, (1976) 1 SCC 496,
         Rajasthan SRTC v. Krishna Kant, AIR 1995 SC
         1715, Scooters India v. Vijai E.V.Eldred, (1998) 6
         SCC 549, Chndrakant Tukaram Nikam v.Municipal Corpn. of Ahmedabad, (2002) 2 SCC
         542, Seth Chand Ratan v. Pandit Durga Prasad,
         AIR 2003 SC 2736 U.P. State Bridge Corpn. Ltd.
         v. U.P.Rajya Setu Nigam S.Karmachari Sangh,
         (2004) 4 SCC 268, U.P. State Spinning Co. Ltd. v.R.S.Pandey and another, 101(2006) CLT 160(SC)
         and     Uttaranchal      Forest     Development
         Corporation v. Jabar Singh, (2007) 2 SCC 112."16.            Therefore,    in   view   of   the   availability   of

alternative remedy, this Court is not inclined to interfere with

writ application. However, liberty is granted to the petitioner to

move the revisional authority in accordance with law.17.            With the aforesaid liberty, the writ application is

disposed of. No order to costs..............................Dr.B.R.Sarangi, J.Orissa High Court, Cuttack
The 3rd March,2015/Jagdev