Orissa High Court
Unknown vs Union Of India And Others on 19 June, 2025
Author: M.S. Sahoo
Bench: M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A.NO.2720 OF 2024
An appeal arising out W.P.(C) No.18538 of 2021 disposed of on
31.07.2024
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Dharmapada Ghadai ...... Appellant
-Versus-
Union of India and Others ...... Respondents
Advocate(s) appeared in this case:-
_______________________________________________________
For Appellant : M/s. A.K.Pandey, L.Pradhan,
D.Pradhan, R.K.Mishra, D.P.Das &
S.K.Mandal, Advocates
For Respondents: Mr. M.K.Pati,
Senior Panel Counsel
_______________________________________________________
CORAM:
HON'BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD
AND
HON'BLE MR. JUSTICE M.S. SAHOO
JUDGMENT
19.06.2025
PER DIXIT KRISHNA SHRIPAD,J.
An employee of respondent organization, who has
suffered removal from service on account of proven
misconduct of bribery is invoking intra-Court appellate
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jurisdiction for laying a challenge to a learned Single Judge’s
order dated 31.07.2024 whereby his following two writ
petitions have been negatived:
(i) In W.P.(C) No.17035 of 2016 he had called in
question the punishment order dated 19.12.2014 as
affirmed in departmental appeal dismissed on 30.08.2016;
(ii) in W.P.(C) No. 18538 of 2021 he had laid a
challenge to the management’s order dated 09.04.2021
whereby his representation for reinstatement after acquittal
in the criminal appeal was dismissed.
2. FOUNDATIONAL FACTS:
(a) The delinquent employee gained entry into service of
respondent organization as Accounts Officer with effect from
23.12.2006. He earned promotion as Assistant Manager
(Finance) in due course. In a CBI Raid he was found red
handed on 28.08.2012 whilst accepting a bribe of
Rs.20,000/- from a person, namely, Sugris Singh associated
with the tender in question. Appellant happened to be one of
the members of the Tender Committee.
(b) Appellant was served with a Charge Memo on
26.03.2013 in relation to the misconduct in question. A
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disciplinary inquiry was held at the hands of a retired
official of the organization and he was found guilty. A copy
of Inquiry Report dated 14.08.2014 was served on him and
he submitted his representation against the same on
27.09.2014. The Disciplinary Authority passed the
punishment order of removal from service on 23.12.2014.
Appellant’s departmental appeal also came to be disfavoured
vide order dated 30.08.2016. This he had challenged in
W.P.(C) No. 17035 of 2016, which is not the subject-matter
of this appeal.
(c) Above apart, appellant was prosecuted for the
offences punishable inter alia under the provisions of the
Prevention of Corruption Act, 1988 in R.C. No. 19A of 2012.
The Special CBI Court at Dhanbad vide order dated
21.01.1019 had entered conviction and sentenced him to
undergo a simple imprisonment for two years coupled with
levy of fine of Rs.50,000/-. However, a learned Single Judge
of Jharkhand High Court vide order 29.09.2020 allowed his
Criminal Appeal (SJ) No. 138 of 2019 and set aside order of
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conviction & sentence. Thus, he was acquitted of the
criminal charges.
(d) Appellant made a representation seeking his
reinstatement in service on the basis of acquittal order
contending that his was a case of honourable acquittal. The
same having been rejected by the Management, W.P.(C) No.
18538 of 2021 came to be filed. As already mentioned above,
both the writ petitions were heard together and came to be
dismissed by the learned Single Judge of this Court. We
repeat that the order in WP(C) No. 18538 of 2021 alone is
put in challenge before us.
3. Learned counsel appearing for the delinquent-
employee urged the following grounds for the invalidation of
impugned order:
(a) The entire disciplinary proceedings are vitiated
inasmuch as under the extant Conduct Rules, it was not
open to the Management to appoint an ex-employee of the
organization as the Inquiry Officer and therefore, everything
would fall down on the principle of ex nihilo nihil fit meaning
nothing comes out from nothing.
(b) The Management ought to have examined the
complainant (Shri Sugriw Singh) as a witness to provePage 4 of 18
demand & acceptance of bribe and that having not been
done, the finding of guilt is vitiated. Similarly, all the
persons associated with the trap event ought to have been
examined; no explanation is offered for their non-
examination.
(c) Second show cause notice after the acceptance of
the recommendation of Inquiry Officer is a sine qua non for
passing the punishment order. No opportunity of hearing
was given to the delinquent before passing the major penalty
of removal from service. Thus, the decision to remove him
from service is unsustainable.
(d) In criminal proceedings, although trial ended in the
conviction & sentencing of appellant, he came to be
acquitted by the Jharkhand High Court honourably and
therefore he ought to have been reinstated in service,
disregarding the subject removal order.
(e) Lastly, the punishment is disproportionate to the
gravity of charges even if the finding of guilt is sustained
and therefore, the impugned order of termination is liable to
be set aside on the doctrine of proportionality.
In support of theses contentions, learned counsel
representing the appellant banked upon certain rulings.
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4. After service of notice, Respondent No.1-Union of
India has entered appearance through its Senior Panel
Counsel, Mr. M.K.Pati. However, no formal notice was
served on the employer-organizations since requisites were
not complied and that would not come in the way of
disposing of this appeal on merits, since these organizations
are under the aegis of Central Government.
5. Learned Senior Panel Counsel made the following
submission in justification of the impugned orders:
(a) that there is absolutely no warrant for the
indulgence of this Court in the appeal, since the findings
therein operate as res judicata;
(b) that the challenge to punishment order in the
departmental appeal and subsequently in W.P.(C) No. 17035
of 2016 has been negatived and the same has attained
finality, there being no further challenge to the same;
(c) that once a finding of guilt is recorded in a properly
constituted inquiry, after full opportunity to the delinquent,
and punishment is upheld in the departmental appeal and
further in writ petition, this Court may not undertake a
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deeper examination of the matter, even if there are somearguable errors;
(d) that the subject Conduct Rules do not prohibit the
appointment of an ex-employee as Inquiry Officer. Even
otherwise, no prejudice is shown to have been thereby
caused; and
(e) that there is no need of issuing a second show
cause notice to the delinquent who had already submitted
his representation to the Inquiry Report. The punishment
awarded is not dismissal but only removal from service.
6. Having heard the learned counsel appearing for the
parties and having perused the appeal papers, we decline
indulgence in the matter for the following reasons:-
6.1. The first submission of learned counsel for the
appellant that the entire disciplinary proceeding is vitiated
inasmuch as there is no scope in the CIL Conduct,
Discipline & Appeal Rules, 1978 (as amended in 2006) to
appoint an ex-employee of the organization as the Inquiry
Officer, does not impress us even in the least. Reasons for
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this are not far to seek: Firstly, a Conduct Rule promulgatedby the Employer Organization like the one herein is not
under any statute as such. It is a product of exercise of
employer’s prerogative and more in the nature of contract.
Therefore, it cannot be construed as being literally
mandatory. Obviously, it mentions “any officials of the
company” and this phrase has to be liberally construed to
include ex-officials as well. What we are construing is, a
bye-law like thing and not a statute of Westminster Abbey.
Secondly, the delinquent employee ought to have taken
objection at the earliest point of time, which he did not.
Having consciously participated in the disciplinary
proceedings without raising a little finger, he cannot now
turn around to find fault with the same. In a way, he is
estopped from taking such a contention appears to be an
afterthought. Thirdly, what prejudice has been caused to
him by virtue of an ex-employee of the organization holding
the inquiry proceedings, remains unsubstantiated.
6.2. The second submission of learned counsel that non-
examination of alleged bribe giver i.e the complainant is
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fatal to the case of Management, is difficult to agree with, for
more than one reason:
i) It is a CBI trap case wherein the appellant
was caught red handed and admittedly the phenolphthalein
test proved positive, the sparkling lotion turning pink.
Added, he himself admitted the receipt of Rs.20,000/- from
the complainant. The norm that admitted facts need not be
proved, is as old as mountains. Of course, admission is not
a conclusive piece of evidence, is true. However, it is
sacrosanct unless a plausible explanation rebutting the
same is offered.
ii) Appellant had pleaded that this amount was
not the bribe but it was taken for some other purpose.
What was that other purpose, was never spelt out by him.
Employer cannot fathom out what lurked in the mind of his
delinquent employee. The so called ‘other purpose’ was
‘especially within the knowledge’ of employee himself and
therefore he ought to have put the same across in the
disciplinary inquiry on the general principle akin to the one
enacted in Section 106 of the Evidence Act, 1872.
iii) It is for the management to decide as to who
should be examined as its witness, and a delinquent
employee cannot dictate terms, in matters like this. In our
considered view, the Management cannot be faltered in not
calling the complainant as a witness, when there was other
abundant evidentiary material on record. It is not that
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invariably all persons named in the Charge Memo or in the
list of witnesses should be examined. It all depends upon a
host of factors that essentially lie within the wisdom of
parties.
iv) Added lastly, what prejudice is caused to the
appellant by employer not examining the complainant is not
forthcoming. In disciplinary proceedings ordinarily the
provisions of the Evidence Act, 1872 are not invokable,
although general principles of evidence do apply. In all
fairness, opponent could have asked the management to
examine the complainant so that he could elicit something
in his favour in the cross-examination. That fairness having
not been shown, he cannot complained of unfair treatment.
6.3. Appellant’s contention that subsequently on the
same set of facts he has been honourably acquitted by the
Jharkhand High Court and therefore he ought to have been
reinstated in service in the light of Apex Court decision in
Ram Lal v. State of Rajasthan,1, cannot be countenanced
because:
(i) The incident of bribery happened on
28.08.2012; the Charge Memo was served 23.06.2013;
appellant filed his reply on 10.04.2013; inquiry proceedings
were accomplished vide report dated 14.08.2014; appellant
1
(2024) 1 SCC 175
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sent his representation against the report on 27.09.2014.
The punishment order of removal was passed on
23.12.2014; departmental appeal against the same was
negatived on 30.08.2016. Challenge was laid to the same in
WP(C) No. 17035 of 2016 and no interim order of any kind
was granted to him. He could have sought for stay of
disciplinary proceedings pending disposal of criminal case
vide Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.,2.
However, that endeavor does not appear to have been
undertaken.
ii) The case in WP(C) No.17035 of 2016 was
heard, along with WP(C) No. 18538 of 2021 (this was filed
subsequent to Jharkhand High Court order of acquittal).
Both the writ petitions came to be rejected by the learned
Single Judge of this Court. However, what is challenged
before us is only the order made in WP(C) No.18538 of 2021.
In other words, no grievance is made out against the order
concerning WP(C) No.17035 of 2016 and thus the lis in that
writ petition is laid to rest once for all. The findings recorded
therein have attained finality, regardless of they being right
or wrong and they bind the parties vide State of Punjab v.
Gurdev Singh3.
(iii) In the CBI criminal case (RC No.19A of
2012), the appellant was tried for the offence of bribery. The
Criminal Court vide order dated 21.01.2019 had convicted
2
AIR 1999 SC 1416
3 AIR 1992 SC 111 (Paras 5 & 6)
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and sentenced him to undergo two year imprisonment,
apart from levying a fine of Rs.50,000/-. The Jharkhand
High Court, on 29.09.2020, favoured appellant’s Criminal
Appeal No. 138 of 2019 and acquitted him of the charges.
That would not liquidate the punishment order of removal
from service that was made long before such acquittal and
findings as to its regularity entered by the learned Single
Judge having attained finality.
(iv) If delinquent employee was removed from
service only on the ground of conviction & sentencing in a
criminal case involving moral turpitude, we would have
straightway directed reinstatement on the strength of
acquittal order secured in criminal appeal, regardless of
such acquittal being honourable or otherwise. However, that
is not the case before us. It hardly needs to be stated that a
same set of facts can be a subject matter of a criminal case
and a disciplinary proceeding; even if a criminal case
against an accused employee fails, a disciplinary proceeding
may culminate into an order of punishment against a
delinquent employee.
(v) We carefully perused the copy of Jharkhand
High Court order supplied to us at the Bar and it availed in
the original record of writ petition too, which we had
secured from the Registry. In Ram Lal supra it is broadly
delineated as to when an acquittal is said to be honourable,
is true. Whether a case is of honourable acquittal has to be
ascertained from discerning the substance of the judgment
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and not just by its terminology. The acquittal granted by
the said High Court is on the benefit of doubt and paucity of
evidence. Contra submission therefore does not merit
acceptance.
6.4. Since the ground of honourable acquittal was
passionately pressed into service, a little more deliberation
in this regard is undertaken. The concept of ‘honourable
acquittal’ is easy to say, but difficult to employ, there being
no statutory definition thereof, more particularly in the IPC,
CrPC & Indian Evidence Act. Lord Williams, J. in ROBERT
STUART WAUCHOPE v. EMPEROR,4 observed:
“The expression ‘honourably acquitted’ is one
which is unknown to court of justice. Apparently
it is a form of order used in courts martial and
other extra judicial tribunals….”
The idea of ‘honourable acquittal’ is not easy to define
although it can be illustrated, vide Karnataka High Court
decision in P.V. Rudrappa v. State of Karnataka,5. If an
accused is discharged at pre-trial stage or the criminal
proceeding launched against him is quashed, there is no
difficulty in treating the same as the cases of ‘honourable
acquittal’ for the limited purpose of disciplinary enquiry. A
case of ‘honourable acquittal’ may arise when, after trial the
4
(1934) 61 ILR Cal.168
5
2024 SCC Online Kar 10628
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Criminal Court orders acquittal with any of nearly following
observations:
(i) that accused is falsely prosecuted to seek
vengeance or for such other ulterior motive;
(ii) that there is absolutely no evidence or very little
evidence on record to implicate the accused in the
criminal case;
(iii) that the prosecution has miserably failed to prove
the charges against the accused;
(v) that the prosecution witnesses are unworthy of
any credence and their version does not generate
any confidence.
Applying these parameters, we are of the considered opinion
that the case of appellant herein is not one of ‘honourable
acquittal’.
6.5. The next contention of learned counsel that after
the disciplinary authority accepted the recommendation of
Inquiry Officer, the appellant ought to have been granted a
second show cause notice before awarding the punishment
of removal from service, is unworthy of acceptance. Article
311(2) of the Constitution, as amended, dispenses with such
a second show cause notice. The principle enacted in this
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provision can be extended to the case of appellant, although
he was not a ‘civil servant’ stricto sensu, inasmuch as, he
was given full opportunity by providing a copy of the Inquiry
Report and he had submitted an elaborate representation
against the same. Added, never he had sought for any
opportunity of hearing on the punishment aspect. Further,
he is not telling us as to how he would have been benefited,
had a second show cause notice been issued. The principles
of natural justice cannot be chanted like vedic mantr or
hymns. A plea of breach principles of natural justice per se
would not suffice; one has to demonstrate consequent
prejudice due to such breach, in a cognizable measure. That
is lacking in this case.
6.6. The last contention of the appellant that the
award of punishment of removal from service is
disproportionate to the gravity of charge, does not gain
acceptance. Ordinarily, once the guilt is proved in a properly
constituted disciplinary inquiry, what punishment should
be awarded to a delinquent employee, belongs to the domain
of the Disciplinary Authority, of course subject to all just
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exceptions into which argued case of the appellant does not
fit in. Appellant was in a higher rank of service (Assistant
Manager, Finance), and not a Clerk or Group-C employee.
He was a member of Tender Committee too, and had taken
bribes in connection with the very tender in question.
Bribery, corruption & misappropriation of funds are treated
in any civilized jurisdiction as serious acts of misconduct
involving high moral turpitude. It is more so, when such
acts are committed by the employees in the higher rung of
service associated with Finance Department. Such acts
obviously shake public confidence and the trust of the
employer. Therefore, it cannot be gainfully argued that the
punishment of removal from service, as distinguished from
dismissal, is disproportionate to the proven guilt. Thus there
is no scope for invoking the principle of proportionality. It is
not argued at the Bar that the punishment awarded to the
appellant shocks the conscience of the Court, because it
does not.
6.7. Several rulings were cited before us.
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(a) We have reproduced the script of the appellant as
it is:
“1999 (8) SCC 582 Hardwari Lal vs State of U.P. and
ors Para 3
On the point that if the complainant not examined
then the enquiry not proper.
2011 (6) SCC 376 Para 16 Commissioner of police Vs
Jai Bhagwan
On the point that non examination of material witness
is fatal.
1999 (2) SCC 10 Kuldeep Singh VS Commissioner of
police
Court can interfere with conclusion reached if there
was no evidence to support finding or finding is
perverse.
2009 Suppl 1 OLR 1096 Duryodhan Lenka vs
Chairman of Board of Director Kalinga Gramya Bank
and others
Second show cause is mandatory before major
punishment.”
(b) We are of the considered view that the case of
appellant fits into the foundational principles of service
jurisprudence. We have no quarrel with the broad
propositions emerging from the above rulings. However,
case of the appellant being bit different and peculiar, the
said rulings cannot be readily imported disregarding the
variables apparent from the record. It hardly needs to be
stated that a case is an authority for the proposition laid
down in a given fact matrix and not for all that, that logically
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follows from what has been so laid down, said Lord
Halsbury more than a century ago in Quinn v. Leathem6,.
Much in this regard is not necessary to deliberate.
In the above circumstances, this appeal being
devoid of merits is liable to be dismissed, and accordingly it
is, costs having been made easy.
………………………………
Dixit Krishna Shripad,
Judge
………………………………
M.S.Sahoo,
Judge
Orissa High Court, Cuttack,
The 19th June, 2025/Manoj
Signature Not Verified
Digitally Signed
Signed by: MANOJ ROUT K
Reason: Authentication
Location: ORISSA HIGH
6 COURT
[1901] UKHL 2
Date: 24-Jun-2025 14:18:15
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