IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.26815 of 2021 Bijaya Kumar Sethi …. Petitioner Mr. S.K. Das, Adv. -versus- State of Odisha & Others …. Opp. Parties Mr. P.P. Behera, ASC CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No ORDER 12.01.2026 06. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel for the Parties. 3. Petitioner has filed the present Writ Petition inter alia with the following prayer:- “It is, therefore prayed that, this Hon’ble Court may graciously be pleased to admit this Writ petition, issue notice to the opp. parties and after hearing” from the parties, issue a Writ in the nature of mandamus or any suitable form of writ and this Hon’ble Court may kindly set-aside both the Final Order passed by the Disciplinary Authority-Opp. Party No.3 & order of Appellate Authority under Annexure-10 & Annexure-12 respectively for the interest of Justice.” 4. It is contended that a proceeding was initiated against the petitioner vide charge memo dated 23.10.2014 under Annexure-3. It is contended that in the said proceeding, p. 2 p. 2 petitioner not only filed his written reply but also participated in the enquiry. The Enquiry Officer after conducting the enquiry, submitted a report on 30.03.2018 under Annexure-6. In the said report, the Enquiry officer did not held the petitioner guilty of the charges framed against him. Finding of the Enquiry Officer so reflected under Annexure-6 reads as follows:- “After careful consideration I am in opinion that the point of determination i.e. gross negligent conduct and dereliction of duty as the charged officer kept pending the alleged cases of Khandagri P.S unnecessarily and disobeyed the orders of superior officer could not be stand proved. Hence he is found not guilty of the charges framed against him.” 4.1. Learned counsel for the petitioner contended that even though the Enquiry Officer did not find the petitioner guilty of the charges but in terms of the provisions contained under Clause-10 of Appendix 49 read with Rule-828 of the PMR, the Disciplinary Authority-Opp. Party No.3 without giving a dis- agreement note, issued the 2nd show-cause on 22.04.2018 under Annexure-7 and by simply indicating that he does not agree with the finding of the Enquiry Officer. 4.2. Learned counsel for the petitioner contended that in view of the provisions contained under Clause-10 of Appendix 49 read with Rule-828 of the PMR, the Disciplinary Authority was required to give a dis-agreement note if he does not agree with the finding of the Enquiry Officer. Clause-10 of Appendix 49 and PMR 828 reads as follows:- “10. At the conclusion of the enquiry, the enquiring authority shall prepare a report of the enquiry, recording reasoned findings on each charge separately taking into account the evidence on both sides and shall submit the record of proceedings with his findings to the authority competent to pass final orders (when he is not competent to dos so). The disciplinary authority shall, if it is not the enquiring authority, p. 3 p. 3 consider the records of proceedings and record its findings on each charge. If it is found that the enquiry has not been properly conducted, the punishing authority may order for a fresh enquiry on the point or points suggested. Orders passed by the disciplinary authority shall be communicated to the charged officer with a full copy of his findings and when the disciplinary authority is other than the enquiring authority, the findings of the enquiring authority in addition shall also be supplied to the charged officer. Remarks:- Second show cause notice against dismissal, removal and reduction in rank has been omitted in view of Government orders communicated in General Administration Department Notification No. 13644-Gen. Dtd. 16.6.1982 (Copy enclosed). xxxx xxxxx xxxxx 828 (a) Without prejudice to the provisions of the Police Servants Inquiries Act, 1850, no order of dismissal, removal or reduction shall be passed on any police officer (other than an order based on facts which have led to his conviction in a Criminal Court) unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself. (b) In other cases, the punishments mentioned above may be inflicted after a less formal enquiry, but every proceeding shall state clearly: first the charge against the defaulted then his answers to each charge, one by one and lastly, the finding upon each charge of the officer inflicting the punishment. In such cases, the Superintendent need not hold the enquiry himself nor shall be delinquent have the right to appear before him, but he has the right to appear before the officer deputed to record the evidence and to take his defence: and such officer, who shall not be below the rank of Inspector, shall come to a clear finding on each charge and shall submit the record with his recommendations to the Superintendent.” 4.3. It is contended that since no dis-agreement note was given along with 2nd show-cause issued on 22.04.2018 under Annexure-7, punishment proposed while issuing such show- cause, is not sustainable in the eye of law. It is further contended that, even though petitioner submitted his reply to the 2nd show-cause under Annexure-8, but without proper appreciation of the same and the provisions contained under Clause-10 of Appendix 49, the proceeding was disposed of by p. 4 p. 4 Opp. Party No.3 by imposing the following punishment vide his order dated 05.07.2019 under Annexure-10:- “Hence, taking the totally of the facts and circumstances into account, I impose the proposed punishment of “Two Black Marks” on Inspector Bijay Kumar Sethi for his gross negligent conduct and dereliction of duty.” 4.4. Appeal filed by the petitioner against such order was also rejected by the Govt. vide order dated 03.05.2022 under Annexure-12. 4.5. It is contended that since the proceeding was never conducted in accordance with the provisions contained under PMR and while issuing the 2nd show-cause, Clause-10 of Appendix 49 was never followed, not only the impugned order of punishment is bad in the eye of law but also rejection of the appeal vide order dated 03.05.2022 under Annexure-12. 4.6. In support of his submission, reliance was placed to a decision of this Court in W.P.(C) No.10910 of 2021 (Hrudananda Behera Vs. State of Odisha and Others) disposed of on 16.12.2024. This Court in Para-9 of the said judgment has held as follows:- “9. In the case at hand, Clause-10 of Appendix 49, read with Rule 828 postulates that the disciplinary authority has to give its reasons for disagreement on such suggested points. Such provisions recorded in those procedures do not speak for recording of the word disagreement only for such purpose by the disciplinary authority. What the provisions contemplate is that, the reasons of disagreement must be clear and distinctive. As stated in the present case that the exhibits have been brought on record to show non-compliance of the instructions imparted by the supervising officer, would not satisfy the requirement of reasons contemplated in the provisions of the Odisha Police Manual. Therefore the order of disagreement passed by the disciplinary authority under Annexure-4 is not p. 5 p. 5 satisfying the requirement of procedures given in the provisions of the Police Manual Rules.” 5. Learned Addl. Standing Counsel on the other hand while supporting the impugned order made his submission basing on the stand taken in the counter affidavit so filed by Opp. Party No.3. Stand taken in Para-8 and 9 of the counter affidavit reads as follows:- “8. That it is humbly submitted that, even though there was sufficient evidence brought out during the proceeding inquiry, the Enquiring Officer concluded and opined that, the charged officer was not guilty. Hence, the charged officer was called upon to submit his explanation/representation if any, on the findings of the Enquiring Officer and the observation of the Disciplinary Authority. It Is pertinent to mention here that, after examining the inquiry report and reviewing the evidence available on record as well as considering both the explanations submitted by the charged officer to the first show-cause &. second show-cause respectively together with the reason thereof, the Disciplinary Authority-D.G. & I.G. of Police, Odisha, Cuttack has imposed the proposed punishment of "Two Black Mark" vide order dated 08.07.2019 to the petitioner for his gross negligence and dereliction of duty. The delinquent is a Police Officer who has failed to maintain the absolute integrity in discharge of his Police duties." Against the order of the major punishment of “Two Black mark", the petitioner preferred an appeal before the Principal Secretary to Govt, with a request to exonerate him from all the charges and expunction of major punishment of "Two Black Mark" imposed by the Disciplinary Authority vide order dated 08.07.2019. 9. That it is humbly submitted that, after careful consideration of the gravity of charges, the Government have been pleased to reject the appeal petition on the punishment of “Two Black Marks” order dated 20.09.2018 passed by D.G and I.G of Police, Proceeding No. 18/2014, and the same has been communicated to this Hdqrs. vide Home Department Letter No. 17600/FSSIE, dtd.03.05.2021.” 5.1. Placing reliance on the aforesaid stand, learned Addl. Standing Counsel contended that since the Disciplinary p. 6 p. 6 Authority did not agree with the finding of the Enquiry Officer, 2nd show-cause was issued under Annexure-7. In the said show-cause, it was clearly indicated that the Disciplinary Authority did not agree with the finding of the Enquiry Officer. 5.2. It is accordingly contended that in view of such thing indicated in the 2nd show-cause, it is to be held that Clause-10 of Appendix 49 and PMR 828 was duly followed. It is also contended that order of punishment since has been confirmed by the Appellate Authority vide order under Annexure-12, no illegality or irregularity can be found with the impugned order so imposed. 6. Having heard learned counsel for the parties and considering the submissions made, this Court finds that the proceeding in question was initiated against the petitioner vide Charge Memo dated 23.10.2014 under Annexure-3. The Enquiry Officer after conducting the enquiry, submitted the report on 30.03.2018 under Annexure-6. While submitting the said report, the Enquiry Officer held the petitioner not guilty of the charges. 6.1. Placing reliance on the provisions contained under Clause-10 of Appendix 49 and PMR-828, it is the view of this Court that if the Disciplinary Authority-Opp. Party No.3 did not agree with the finding of the Enquiry Officer, then while proposing the punishment with issuance of the 2nd show-cause on 22.04.2018 under Annexure-7, O.P. No.3 should have given a dis-agreement note. 6.2. Since no such dis-agreement note is enclosed to the 2nd show-cause and it has only been indicated that Disciplinary p. 7 p. 7 Authority-O.P. No.3 did not agree with the finding, it is the view of this Court that such a dis-agreement without assigning any reason is not in accordance with Clause-10 of Appendix 49 and the provision contained under PMR 828. 6.3. Since no dis-agreement note in terms of the aforesaid provision was enclosed to the 2nd show-cause, it is the view of this Court that the order of punishment passed vide the impugned order dated 05.07.2019 under Annexure-10, confirmed by the Appellate Authority vide order dated 03.05.2022 under Annexure-12 are not sustainable in the eye of law. 6.4. Placing reliance on the decision so cited (supra) and the clear provision contained under Clause-10 of Appendix 49, this Court is inclined to quash the order of punishment passed by O.P. No.3 on 05.07.2019 under Annexure-10, further confirmed by Opp. Party No.1 vide order dated 03.05.2022 under Annexure-12. While quashing both the orders, the Writ Petition stands allowed. 7. The Writ Petition stands disposed of accordingly. (Biraja Prasanna Satapathy) Judge Basudev