L.MOHAPATRA, J & ARUNA SURESH, J W.P.( C) NO.13332 OF 2008 (Decided on 17.2.2011) STATE OF ORISSA & ANR. ……… Petitioners. .Vrs. BIPIN BIHARI JENA & ANR. ……… Opp.Parties. For Petitioners - Addl. Govt. Advocate. For Opp.Parties - M/s. A.Ghose & S.K.Mohanty (for O.P.No.1) (Mr. G.P.Dutta) L.MOHAPATRA,J. This writ application is directed against the order of the State Administrative Tribunal, Bhubaneswar in O.A. No.1036 of 2004 at the Instance of the State authorities. Opposite Party No.1 was the applicant before the Tribunal. This case having a chequered carrier, it is necessary to refer the brief facts of the case before examining the legality of the impugned order. 2. Opposite party no.1 joined Orissa Administrative Service in the year 1981. It is alleged that while working as B,.D.O. at Gunupur in the erstwhile district of Koraput, he committed several serious irregularities during 1986 and a disciplinary proceeding bearing No.10028 dated 29.7.87 was initiated against him for such irregularities. Initially the memorandum of charges contained five different charges, but later on it was increased to s even. The inquiry was conducted and report submitted on 23.04.1990. The disciplinary authority accepted the report and in consultation with O.P.S.C. issued the order of punishment of dismissal from service. Opposite party no.1 challenged the order of punishment in O.A. No.1194 of 2004 before the Tribunal. The Tribunal after examination of the inquiry report found that the witnesses were examined ex parte, documents were admitted without giving opportunity to opposite party no.1 and an ex parte enquiry had been conducted. Accordingly, the Tribunal set aside the findings of the Inquiry Officer, the order of punishment by its judgment dated 27.03.1995 and remitted the matter back for fresh inquiry from the stage of recording of evidence. In terms of the order of the Tribunal in the said original application, the State Government by order dated 20th October, 1995 directed the same Inquiry Officer to proceed with the inquiry afresh from the stage as it stood on 30.05.1989. It was clarified in the said order that the Marshaling Officer will marshal the evidence during enquiry. After remand, the inquiry was conducted and report was submitted on 29.06.2001 and on receipt of the inquiry report, the first show cause notice along with the inquiry report was sent to opposite party no.1 for submitting his reply. The 2nd show cause notice was issued on 02.08.2002. Challenging the second show cause notice, opposite party no.1 again approached the Tribunal in O.A. No.1683 of 2002. The Tribunal disposed of the said original application on 21.4.2003 clarifying that as per Rule 15 (1) (i) (b) of the OCS (C.C.A) Rules, 1962 as amended in 2000, the disciplinary authority was required to furnish a statement of his findings with brief reasons of disagreement with the findings of the Inquiry Officer. Since the second show cause notice did not disclose the reasons of disagreement, the same was quashed and the disciplinary authority was directed to dispose of the proceeding after issuing fresh notice indicating the reasons for disagreement with the findings as well as the recommendation of the Inquiry Officer. In compliance of the order of the Tribunal, a second show cause notice was issued afresh and the opposite party no.1 submitted his reply to the same. On consideration of the reply, the disciplinary authority directed compulsory retirement of opposite party no.1 from service with immediate effect, recovery of Rs.21,500/- and the period of suspension was directed to be treated as such. Challenging the said order of the disciplinary authority, the present original application was filed before the Tribunal. 3. A counter affidavit was filed by the State before the Tribunal stating therein that all necessary procedures were followed by the Inquiry Officer and the second show cause notice was issued in terms of the amended Rule and considering the gravity of the charges, the order of punishment was rightly passed by the disciplinary authority and such punishment was also accepted by the OPSC. 4. The Tribunal in the impugned order found that there is no indication as to how the disciplinary authority came to the conclusion that charges 1 to 5 had been proved specially when the Inquiry Officer concluded that the Marshalling Officer had failed to prove the charges due to non-production of the material documents. It was also indicated in the impugned order that few of the charges are based on ex parte evidence that had been collected by the I.O. at the first instance and the disciplinary authority could not have taken those ex parte evidence into consideration, the same having been struck down by the Tribunal in the first original application filed by opposite party no.1. After the judgment was delivered by the Tribunal in O.A. No.1194 of 2004, the disciplinary authority should have directed the inquiry to be conducted afresh from the stage as it stood on 30.05.1989 by adducing oral and documentary evidence, but no such steps were taken. The Tribunal found that there being no scope of appeal, the disciplinary authority is required to be more careful specially when it differs with the findings of the Inquiry Officer. With these findings the Tribunal set aside the impugned order of punishment and directed reinstatement of opposite party no.1 in service. However, he directed as a measure punishment that an amount of Rs.21,500/- is to be recovered from the arrear salary of opposite party no.1 with simple interest at the rate of 12% per annum from the date of taking the advance till the date of realization. It was also directed that the lapses the opposite party no.1 committed at the initial stage of his service, an order of caution in the service record for the year 1986-87 would be sufficient. 5. Learned Additional Government Advocate challenging the said order of the Tribunal, submitted that the disciplinary authority had every right to differ with the findings of the Inquiry Officer with reference to the evidence adduced in course of inquiry. After disposal of O.A. No.1683 of 2002 the disciplinary authority issued a fresh second show cause notice indicating the reasons for disagreement and not being satisfied with the reply given by opposite party no.1 had passed the order of punishment. There being no procedural irregularity, it was not open for the Tribunal to sit in appeal over the order of the disciplinary authority and substitute a punishment in place of the punishment imposed by the disciplinary authority. The learned counsel appearing for opposite party no.1 submitted that the opposite party no.1 has been harassed continuously for more than twenty years and in spite of specific direction of the Tribunal in two original applications, the disciplinary authority did not follow the procedure, relied on materials on which he could not have relied upon and disagreed with the findings of the Inquiry Officer. For the above reasons, the Tribunal was justified in interfering with 2 the order of punishment and in order to bring an end to the litigation, substituted the punishment which according to the Tribunal was just and proper. 6. Admittedly, when the proceeding was initiated against opposite party no.1 in the year 1987, the said proceeding was concluded ex parte. The Tribunal in O.A. No. 1195 of 1994 set aside the order of punishment passed on such ex parte inquiry and remitted the matter back for fresh inquiry from the stage of recording of evidence and consideration of documents. In compliance of the said order, the inquiry started from the stage as it stood on 30.05.1989. On conclusion of inquiry, the Inquiry Officer exonerated opposite party no.1 from all the charges with the specific finding that the Marshaling Officer had failed to prove the charges by not producing the material documents. In the event, the disciplinary authority differed with the findings of the Inquiry officer, while issuing second show cause notice, he should have indicated the reasons for disagreement. No reason, having assigned in the second show cause notice, the same was challenged before the Tribunal in O.A. No.1683 of 2002. The Tribunal while disposing of the said original application again observed that in the event the disciplinary authority differs with the findings of the Inquiry Officer, he has to assign reasons for such disagreement. What the displinary authority did is that while differing with the findings of the Inquiry Officer, he referred to certain findings of the Inquiry Officer recorded at the first stage prior to filing of O.A. No.1194 of 2004. In O.A. No.1194 of 2004 the findings of the Inquiry Officer recorded ex-parte having been set aside by the Tribunal and fresh inquiry having been directed, there was no scope at all on the part of the disciplinary authority to refer to any of the findings recorded ex-parte by the Inquiry Officer, which had been set aside by the Tribunal in O.A. No.1194 of 2004. It also appears from the impugned order of the Tribunal that the disciplinary authority while issuing the second show cause notice differed with the findings of the Inquiry Officer on the basis of certain materials which had never been proved in course of inquiry and, therefore, the Tribunal was justified in not only setting aside the said second show cause notice issued by the disciplinary authority differing with the findings of the Inquiry Officer but also consequent punishment imposed by the disciplinary authority. It will not be out of place to mention that the opposite party no.1 had approached the Tribunal three times for the irregularities committed by the disciplinary authority and, therefore, considering the nature of the charges leveled against opposite party no.1, the Tribunal thought it proper to substitute the punishment instead of again remitting the matter back to the disciplinary authority which had acted in illegal manner twice earlier. We find no infirmity in the order of the Tribunal impugned before us either in setting aside the order of punishment or in substituting a punishment in the facts and circumstances of the case. 7. The writ application being devoid of merit is dismissed. Writ petition dismissed. 3