IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.41695 of 2023 In the matter of an application under Article 226 and 227 of the Constitution of India, 1950. ……………… Niranjan Khatua …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner : M/s. B. Routray, Sr. Adv. along with Mr. S. Sekhar, J. Biswal, A.K. Das and M. Panda, Adv. For Opp. Parties : M/s. P.K. Panda, Addl. Standing Counsel PRESENT: THE HONBLE MR.JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------- Date of Hearing:15.04.2026 and Date of Judgment:15.04.2026 -------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Mode. 2. Pursuant to order dt.12.03.2026, learned Addl. Standing Counsel produced the instruction so provided by the Excise Directorate, Odisha vide letter p. 2 p. 2 dt.13.04.2026 with service of copy on the learned counsel appearing for the Petitioner. The same be kept on record. 3. Heard learned counsel appearing for the parties. 4. The present Writ Petition has been filed inter alia with the following prayer: It is therefore, most humbly prayed that this Hon'ble Court be graciously pleased to: i) Admit the writ application. ii) Call for the record. iii) Issue rule nisi calling upon the Opp. parties more particularly opposite party No. 2 to show cause as to why the office order No.11499 dtd.03.11.2023 Annexure-10 shall not be quashed. iv) If the Opp. Parties more particularly Opp. party No.2 fails to show cause or show insufficient cause issue a writ in the nature of certiorari or any other writ/ writs, order/ orders, direction/ directions by quashing the office order No.11499 dtd.03.11.2023 Annexure-10. v) Issue a writ in the nature of mandamus or any other writ/writs, direction/directions directing the Opp. Parties more particularly Opp. Party No.2 & 3 to reinstate the present petitioner along with all consequential service benefit within a time period to be stipulated by this Hon'ble Court. vi) And/or pass any other order/orders, direction/directions as this Hon'ble Court deems fit and proper for the ends of justice. And for the said act of kindness, the petitioner as in duty bound shall ever pray. p. 3 p. 3 5. It is contended that Petitioner was appointed as an Excise Constable and posted to the Office of Superintendent of Excise, Cuttack where he joined on 22.07.2009. While so continuing, Petitioner was promoted to the rank of ASI, Excise vide order dt.21.8.2022. However, while so continuing as an ASI of Excise, a show-cause was issued to the Petitioner by Opp. Party No.4 on 15.07.2023 under Anexure-3, with regard to a complaint received that the Petitioner was consuming liquor with another person in Foreign Liquor ON-Shop. 5.1. It is contended that Petitioner though submitted his reply under Annexure-5, but Petitioner was placed under suspension vide Office Order dt.19.07.2023 under Annexure-6. Not only that, a proceeding was also initiated vide Memorandum dt.07.09.2023 under Annexure-7, in terms of the provisions contained under Rule-16 of the OCS (CCA ) Rules, 1962. 5.2. It is contended that Petitioner after receipt of the Memorandum dt.07.09.2023 under Annexure-7, made an p. 4 p. 4 application with a request to provide him the documents so that he can file his written Statement of defence on 12.09.2023 under Annexure-8. However, without providing the documents so applied for, vide order dt.19.10.2023 under Annexure-9, Opp. Party No.3 appointed the Inquiry Officer to conduct the inquiry. 5.3. It is contended that while the matter stood thus, the impugned order dt.03.11.2023 under Anexure-10 was passed, wherein Petitioner was dismissed from his services and such an order was passed by Opp. Party No.2, in exercise of the powers conferred under Article 311(2)(b) of the Constitution of India. Article 311(2) of the Constitution of India reads as follows: 311. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against hi m and given a reasonable opportunity of being heard in respect of those charges; Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: p. 5 p. 5 Provided further that this clause shall not apply— (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to hi s conviction on a criminal charge; or (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry. 5.4. Learned Sr.Counsel appearing for the Petitioner while assailing the impugned order, vehemently contended that since while exercising the power under Article 311(2)(b) of the Constitution of India, no reason was assigned as to why it is not practicable on the part of the authority to dispense with the inquiry, the impugned order is not sustainable in the eye of law. 5.5. In support of his submission, reliance was placed to a Constitution Bench decision of the Apex Court in the case of Union of India and Another Vs. Tulsiram Patel. Hon’ble Apex Court in Para-133 & 138 of the said decision has held as follows: 133. The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable p. 6 p. 6 to hold the Inquiry contemplated by Article 311(2). This is a Constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be vold and unconstitutional. 138. Where a government servant is dismissed, removed or reduced in rank by applying clause (b) or an analogous provision of the service rules and the approaches either the High Court under Article 226 or this Court under Article 32, the court will interfere on grounds well established in law for the exercise of power of judicial review in matters where administrative discretion is exercised. It will consider whether clause (b) or an analogous provision in the service rules was properly applied or not.... Xxx xxx xxx 5.6 Similarly, reliance was placed to a recent decision of the Hon’ble Apex Court in the case of Manohar Lal Vs. Commissioner of Police and Others. Hon’ble Apex Court in the said decision in Paragraphs-40,41 & 42 has held as follows: 40. On overall analysis of the intent of Article 311(2), it is vivid that an employee holding a post in Union or State ought not to be dismissed or removed by an authority subordinate to the one by which he was appointed. It is further specified that a person shall be dismissed or removed or reduced in rank after an inquiry supplying the charges if any against him and giving a reasonable opportunity of being heard in respect of those charges. The applicability of the said clause is restricted in a situation wherein his conduct led to his conviction of criminal charges or where the authority empowered who dismissed, removed or reduced in rank records reason in writing upon satisfaction that it is not 'reasonably practicable to hold an enquiry against him. In addition, where such power has been exercised by the President or the Governor it may be in the interest of security of the State or if not expedient to hold such an enquiry, then exceptional power under clause (c) of second proviso to Article 311 ought to be exercised. p. 7 p. 7 41. In case such a decision invoking the extraordinary power is taken by the competent authority in light of the judgment Tulsiram Patel (Supra) within the parameter as discussed, the scope of judicial review is available to the Constitutional Courts wherein the reasons as assigned for satisfaction of the authority must be reasonable, valid, Justified and in writing. In addition, the satisfaction as recorded must be the objective satisfaction on the basis of material brought on record which ordinarily the disciplinary authority may take as a prudent person. Otherwise, dispensing with the enquiry is not permissible in law. In the present case, Section 21 of the 1978 Act confers power of punishment and Section 22 prescribes the procedure for awarding such punishment. The procedure as contemplated has been elaborated under the 1980 Rules. In the present case, in our view, the power exercised by the authority is completely without application of mind, thus, the question of recording of satisfaction as affirmed by the appellate authority, the CAT and the High Court does not arise. Therefore, we can hold that the order dispensing with the regular procedure of inquiry is arbitrary and consequently the order of dismissal of the appellant is liable to be quashed and the orders of the CAT and the High Court affirming the said dismissal order stand set aside. 42. In light of the above discussion, the irresistible conclusion is to set aside the order passed by the CAT and the High Court and to quash the order of dismissal passed by the DCP and confirmed by the appellate authority. In consequence, the appellant shall forthwith be reinstated with continuity of service. He shall be entitled for all consequential benefits notionally. Since, the appellant is found involved in a criminal case, therefore, in the facts of the case, back wages from the date of dismissal till reinstatement are restricted to 50%. 5.7. Making all these submissions, and placing reliance on the aforesaid two decisions, learned Sr. Counsel appearing for the Petitioner contended that since while exercising the power conferred under Article 311 (2)(b) of the Constitution of India , no reason has been assigned as to why it is not practicable on the part of p. 8 p. 8 Opp. Party No.2 to dispense with the inquiry, the impugned order requires interference of this Court. 6. Learned Addl. Standing Counsel on the other hand while supporting the impugned order, when made his submission basing on the counter affidavit so filed by Opp. Party No.2, this Court passed the following order on 12.03.2026. “1. This matter is taken up through hybrid mode. 2. Heard learned counsel appearing for the Parties. 3. While reiterating the view expressed by this Court in order did.22.01.2026, learned Sr. Counsel appearing for the Petitioner made further contention contending inter alia that since in the impugned order while exercising the power under Art. 311(2)(b) of the Constitution of India, no reason has been assigned as to why no enquiry is possible, the impugned order is not sustainable in the eye of law 4. In support of his submission, learned Sr. Counsel appearing for the Petitioner relied on a decision of this Court in the case of Dharanidhar Behera Vs. State of Odisha & Ors. (W.P.C.(OAC) No. 4133 of 2013). 5. Learned Addl. Standing Counsel is directed to obtain instruction with regard to the order passed on 22.01.2026 and so also the stand taken that no reason has been assigned by Opp. Party No.2 while exercising the power under Article 311(2)(b) of the Constitution of India. 6. As requested, list this matter on 7thApril, 2026.” 7. Pursuant to the aforesaid order, instruction was provided by the Excise Directorate and basing on the p. 9 p. 9 instruction, learned Addl Standing contended that Opp. party No.2 being the competent authority, in view of the resolution issued by the Government in the Excise Department on 08.06.2023 is competent to pass the impugned order in question. 7.1. It is further contended that in the impugned order so passed by Opp. Party No.2 under Annexure-10, since it has been clearly indicated that it is not practicable to hold the inquiry against the Petitioner, that amounts to compliance the provision contained under Article 311(2)(b) of the Constitution of India. It is contended that since while passing the impugned order, Opp. Party No.2 came to a conclusion that it is not practicable on his part to hold the inquiry, no illegality or irregularity can be found with the impugned order. 8. Having heard learned counsel appearing for the parties and considering the submission made, this Court finds that Petitioner while continuing as an ASI, Excise in the establishment of Opp. Party No.4,a show cause was issued to him vide letter dt.15.07.2023 under Annexure- p. 10 p. 10 3. Thereafter, Petitioner was placed under suspension even after receipt of the reply to the show-cause, vide order dt.19.07.2023 under Annexure-6 and subsequently, a proceeding was initiated vide Memorandum dt.07.09.2023 under Annexure-7. 8.1. Even though as found from Annexure-7, the proceeding was initiated under Rule-16 of the OCS (CC & A) Rules, 1962, but while appointing the Inquiry Officer as well as Marshalling Officer vide order dt.19.10.2023, Opp. Party No.3 being the Disciplinary Authority reflected the proceeding to have been initiated under Rule-15 of the Rules. 8.2. It is also found that Petitioner though made an application to provide him the documents vide letter dt.12.09.2023 under Annexure-8, but prior to providing him the documents, the Inquiry Officer and Marshalling Officer were appointed vide order dt.19.10.2023 under Annexur-9. Thereafter, the impugned order was passed by Opp. Party No.2 on 03.11.2023 under Annexure-9 whereby Petitioner was dismissed from his services and p. 11 p. 11 such an order was passed in exercise of power under Article -311 (2)(b) of the Constitution of India. 8.3. This Court after going through the provisions contained under Article 311 (2)(b) of the Constitution of India and the decisions as cited supra, is of the view that since while exercising such power, no reason has been assigned as to why it is not practicable on the part of Opp. Party No.2 to hold an inquiry. Since no such reason has been assigned save and except the stand that it is not practicable to hold the inquiry, it is the view of this Court that stipulation contained under Article 311(2)(b) of the Constitution of India has not been complied with. 8.4. In view of the aforesaid analysis, this Court is inclined to quash the impugned order dt.03.11.2023. While quashing order dt.03.11.2023 under Annexure-10, this Court permits Opp. Party No.3 to proceed with the proceeding so initiated against the Petitioner vide Memorandum dt.07.09.2023 in accordance with law. This Court also permits Opp. Party No.3 to issue a p. 12 p. 12 corrigendum by holding that the proceeding has been initiated under Rule 15 instead of Rule 16 of the Rules. 8.5. This Court further directs Opp. Party No.3 to provide the documents so required for the purpose of filing of written statement of defence to the Petitioner within a period of 4(four) weeks hence. On being provided with the documents, Petitioner be allowed 4(four) weeks time to file his written statement of defence. On such filing of the written statement of defence, the Inquiry Officer and the Marshalling Officer so appointed vide order under Annexure-9 may continue with the inquiry , if available at present, or else Opp. Party No.3 shall appoint a fresh Inquiry Officer and Marshalling Officer for the purpose of inquiry with passing of a fresh order. This Court permits Opp. Party No.3 to proceed with the proceeding in accordance with law and in which case this Court expresses no opinion and conclude the same as expeditiously as possible preferably within a period of 8(eight) months from the date of receipt of the written statement of defence. p. 13 p. 13 8.6. However, since by the time Petitioner was so terminated vide the impugned order, he was under suspension as per order dt.19.07.2023 under Annexure- 6, this Court directs Opp. Party No.2 to allow the Petitioner to continue under suspension and pay the subsistence allowance as due and admissible for the period Petitioner remained out of employment and future subsistence allowance till conclusion of the proceeding. 8.7. This Court further directs Opp. Party No.2 to conclude the proceeding as expeditiously as possible preferably by the end of this year. 9. The Writ Petition accordingly stands disposed of with the aforesaid observation and direction. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 15th April, 2026 /Sangita