L.MOHAPATRA, J & C.R.DASH, J. W.P. ( C) NO.15607 OF 2005 (Decided on 09.11.2010) RAMAKANTA RATH ………….. Petitioner. .Vrs . HIGH COURT OF ORISSA ……….. Opp.Parties. & ANR. . CONSTITUTION OF INDIA, 1950 – ART.311 (2). For Petitioner - M/s. Chiranjib Mohapatra, Mrs. Madhusmita , Abhiram Swain, M/s. Ashok Mohanty, Hrusikesh Tripathy, B.Panigrahi, P.K.Mohanty & P.K.Sahu, Dr.Manoranjan Panda, Mr. P.K.Nanda. For Opp.Parties - Addl. Govt. Advocate L. MOHAPATRA, J. The petitioner faced a departmental proceeding while working as Senior Assistant-cum-Peskar in this Court and was found guilty of the charge. As a major punishment, he was reduced to the lower post i.e. Junior Assistant on time scale with seniority above all the incumbents in that time scale and the period of suspension was treated as such. The appeal preferred against the order of punishment having been rejected, he has filed this writ application challenging initiation of departmental proceeding, the order of punishment as well as the order of appellate authority. The facts leading to initiation of departmental proceeding against the petitioner are that in June, 1999, the petitioner was working as Peskar in the Court of one of the Hon’ble Judges. During Summer Vacation, O.J.C.No.6526 of 1999 was taken up for admission along with Misc.Case No.6053 of 1999. This case was taken up by the Hon’ble Judge during vacation in whose Court the petitioner was working as Peskar. In the said Misc.Case, an interim order was passed directing the petitioner therein to deposit a sum of Rs.4,50,000/- against Bill No.1860 dated 4.5.1999. The said order was subsequently tampered by erasing the digit ‘4’ and inserting the digit ‘2’ in its place. The first certified copy of the order was granted to the advocate’s clerk on 4.6.1999 and the second certified copy thereof was granted on 8.6.1999. The record in question was sent to the copying Section for issuance of both the certified copies and on 5.6.1999, it is alleged that the petitioner personally brought back the record from the copying department by endorsing his signature on the register meant for receipt of Court’s order. The documents for preparation of certified copies were sent by the petitioner to the copying department on 4.6.1999 and 7.6.1999. On 22.6.1999, the petitioner is alleged to have taken the said register from the copying department and returned the same sometime thereafter and it was noticed that the portion carrying the signature of the petitioner in the said register had been torn away and, accordingly, the petitioner was charged for interpolation of the orders of the Court. He was also charged for having deliberately refused to receive the order of suspension even though he was present in the Court premises on 20.7.1999. On the above allegations, Departmental Proceeding No.2 of 1999 was initiated against the petitioner and he was served with a copy of charge memo. 2. The petitioner submitted his reply to the said allegations stating therein that the dictation was taken by the Stenographer and as an abundant caution he made a note with regard to the amount directed to be deposited in the cause list. As per usual practice, on an application being made by the petitioner in the writ petition, the record of the concerned case was sent to the copying department along with a Court Transit Register by the Bench Peon for grant of certified copy of the order. On 3.6.1999 the order was passed in the aforesaid writ application and on 4.6.1999 the record had been given to the copying department along with the copy application and Bench Transit Register. He further stated in his reply that he had no occasion to take the records of the said case from the copying department nor had he received the same at any time after certified copy of the order was granted on 4.6.1999. On 22.6.1999 only during lunch hour he came to know that the figure Rs.4,50,000/- appearing in the order dated 3.6.1999 had been tampered to read as Rs.2,50,000/-. According to the petitioner, when the record was sent to the copying department for grant of certified copy, the figure Rs.4,50,000/- was appearing in the order. He basically denied any knowledge regarding tampering of the said order. 3. After submission of reply, an Inquiry Officer was appointed and inquiry was conducted. Some witnesses were examined in course of inquiry and several documents were also exhibited. The Inquiry Officer found that record in the said case had been supplied by the petitioner through P.W.4 to the copying department and there is no doubt that the petitioner was the custodian of the record as on and from it was listed, but there was nothing to show that the record was handed over to the Section at any time before Summer Vacation. During this period, the record moved from the petitioner to the copying section from where the petitioner himself collected the record and reliance in this regard was placed by the Inquiry Officer on the evidence of P.Ws.2 and 3. The Inquiry Officer further found that there is no direct evidence to show that the petitioner had torn the relevant portion of the record bearing his signature or tampering of the record but the circumstances as appeared from the evidence clearly indicate that the petitioner had torn the relevant portion. The Inquiry Officer further came to a conclusion that the petitioner was the custodian of the record at the time application for certified copy was filed and he asked P.W.4 to obtain the copy application from the copying section and thereafter handed over the record to him. On 22.6.1999 he took away the register from the copying department outside the copying section and returned sometime thereafter as stated by P.Ws.2 and 6. The Inquiry Officer further found that there is no evidence to show that the record was dealt with by any person otherwise than the petitioner before such manipulation was detected except that the record had been sent for preparation of certified copy which was handed over to the applicant in the writ application on 4.6.1999 and 8.6.1999 respectively. The petitioner having found to be in custody of the record, a presumption was drawn by the Inquiry Officer that it is the petitioner, who must have interpolated the order when the record was in his custody and, accordingly, found him guilty of the charge. So far as second charge is concerned, the Inquiry Officer also held that the petitioner deliberately refused to receive the suspension order. 2 4. On the basis of such inquiry report, the petitioner was called upon to show cause as to why major penalty shall not be imposed on him and after receipt of his reply, order of punishment was passed reducing him to the lower post i.e. the Junior Assistant and treating the period of suspension as such. The appeal preferred by the petitioner against the order of punishment was also rejected and hence this writ application. 5. Learned counsel appearing for the petitioner assails the order of punishment as well as the order of the appellate authority solely on the ground that the documents on the basis of which charges were framed were never produced before the Inquiry Officer and, therefore there was no basis for the Inquiry Officer to hold the petitioner guilty of the charges regarding interpolation of the orders. It was contended by the learned counsel for the petitioner that the entire allegation against the petitioner as revealed from the charge memo is that he was working as a Peskar at the relevant time and after the order was signed, the record had been sent to the copying section for grant of certified copy. The further allegation against the petitioner is that he brought the record from the copying section by signing the register marked as Exbit-B and again returned it to the copying Section. Two certified copies are alleged to have been granted to the applicant in the said writ application but none of the certified copies were produced in course of the inquiry. Therefore, there was no material on record before the Inquiry Officer to show that at any point of time the order had been interpolated and the digit ‘4’ appearing in the said order had been replaced by digit ‘2’. Learned counsel for the State defending the order of punishment submitted that after the record had been sent to the copying section, it is the petitioner who brought back the record form the copying section and was in custody of the record before it was sent back to the copying section. The record having not been handled by anybody else, the Inquiry Officer was justified in drawing a presumption that interpolation must have been done by the petitioner. 6. Undisputedly, on 3.6.1999 the petitioner was working as a Peskar in the Court in which O.J.C.No.6526 of 1999 along with Misc.Case No.6053 of 1999 had been taken up for admission. Undisputedly, an interim order was passed by the Court directing the applicant of the said writ application to deposit a sum of Rs.4,50,000/- against Bill No.1860 dated 4.5.1999. The original record was perused by us and the order dated 3.6.1999 passed in the aforesaid Misc. Case clearly indicates the figure Rs.4,50,000/-. The allegation is that when the first certified copy of the order was granted, the order had been interpolated and the digit ‘4’ has been replaced by digit ‘2’ but when the second certified copy was granted, interpolation earlier made had already been corrected and the second certified copy reflected the figure Rs.4,50,000/-. Though the entire charge in this regard is based on these two certified copies alleged to have been granted by the copying section, they were never produced before the Inquiry Officer and on the other hand, the stand taken by the counsel appearing for the applicant in the said writ application that the first certified copy granted by the copying section had been eaten away by a bull. It is, therefore clear that the certified copy of the order indicating the figure Rs.2,50,000/- had never been produced before the Inquiry Officer. Surprisingly, the second certified copy was also not produced before the Inquiry Officer. Therefore, these two documents which formed the basis of charge relating to interpolation were not made available to the Inquiry Officer. The further allegation is that the petitioner obtained the record from the copying section by signing on the register marked as Exbit -B and 3 after returning the record to the copying section, it was found that portion of the register in which his signature was appearing had been torn away. It is, therefore, clear that there is no documentary evidence to show that the petitioner had taken the record of the said case from the copying section and returned it sometime thereafter. However, the Inquiry Officer has come to a conclusion that the petitioner had taken the record from the copying section basing on evidence of two witnesses. Even if the evidence of these two witnesses is accepted to the extent that the petitioner had obtained the record from the copying section and returned the same after sometime, in absence of any other material, no presumption can be drawn to the effect that merely because the petitioner had taken custody of the record for some time, he must have interpolated the order. There may be cases where direct evidence is not available but circumstantial evidence should be such that no other presumption can be drawn except that the petitioner must have interpolated the order. There is no dispute in this case that the dictation was taken by the Stenographer, record of the case was taken to the copying section by the Peon and the record had already been handed over to the copying section for the purpose of grant of certified copy. Therefore, it can never be said that it is the petitioner alone, who was in custody of the record all through. Accordingly, we are of the view that the Inquiry Officer committed an illegality by drawing a presumption that the petitioner must have interpolated the order having remained in custody of the record for some time. For the reasons stated above, we set aside the said finding of the Inquiry Officer being based on no evidence. So far as second charge is concerned, it relates to non receipt of the order of suspension by the petitioner even though he was present in the Court premises. On perusal of the evidence in this regard and the finding of the Inquiry Officer, we find that there are materials available on record to show that the petitioner deliberately avoided to receive the order of suspension and, accordingly, we find no justification to disturb the said finding of the Inquiry Officer. 7. In view of the above discussion, while we find that the petitioner is guilty of the second charge, he is not guilty of the first charge relating to interpolation of the orders. So far as question of punishment is concerned, having found that the first charge relating to interpolation of the Court’s record has not been proved against the petitioner, order of punishment imposed by the disciplinary authority appears to be disproportionate. Accordingly, we also set aside the order of punishment as well as the appellate order and remit the matter back to the disciplinary authority to impose appropriate punishment only considering the fact that the petitioner is found guilty of the second charge i.e. for deliberately avoiding to receive the order of punishment. The disciplinary authority is further directed to pass necessary orders regarding punishment within two months from the date of communication of this order. The writ application is disposed of. Writ petition disposed of. 4