JUDGMENT L. Mohapatra, J.
1. The petitioner in this writ application assails the legality of the order passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in Original Application No. 453 (C) of 1995 which he had filed challenging his dismissal from service pursuant to a disciplinary proceeding.
2. The petitioner was appointed as Constable under the Orissa Police and was posted in the district of Koraput. In the month of February, 1987 he was transferred to Balasore district and while working at Balasore, he became the President of Orissa Police Havildar and Constable Association, Balasore branch. On the eve of New Year, 1991 the petitioner brought out a New Year Greeting in the form of a booklet wherein he had summerised various works and deeds of the association, the problems faced by the association as well as the work to be undertaken by the association. According to the petitioner, the said booklet was a message and exchange of ideas rather than allegations as alleged by the department. However, on the basis of the alleged publication of such booklet, a departmental proceeding was initiated on the charge that without any permission or authority the petitioner published and distributed a booklet titled Barta among members of the police force on 1.1.91 at Balasore and at Bhadrak in contravention of Government Servants Conduct Rules and thereby created disaffection amongst the force. After receipt of the said charge, the petitioner made a representation to the disciplinary authority i.e. Superintendent of Police, Balasore requesting him for supply of particulars such as the rule contained in Government Servants Conduct Rules contravened by him, time of distribution of the booklet at Balasore as well as Bhadrak, source of information from which the disciplinary authority was satisfied that there was disaffection created amongst the force and particular portion of the booklet which had created such disaffection. There was no reply to the said representation and even a copy of the preliminary inquiry report was not given to him. During inquiry also the petitioner was not given those information and after submission of inquiry report, finding him guilty, the disciplinary authority imposed punishment of dismissal from service. The appeal preferred by the petitioner being rejected, he approached the Orissa Administrative Tribunal challenging the order of dismissal and the Original Application filed before the Administrative Tribunal having been dismissed, the present writ application has been filed.
3. The petitioner appeared in person and submitted that the booklet in Annexure-1 alleged to have been published and distributed by him does not contain any material which could create disaffection among the force. According to the petitioner, the booklet only contains the achievements of the association during the tenure of the petitioner as President and the works that could not be done and there is absolutely nothing in the booklet which could create disaffection among the force and, therefore, the departmental proceeding was uncalled for. The petitioner also submitted that he has violated no such rule of the Government Servants Conduct Rules, and, therefore, could not be punished for violation of any rule. It was also contended by him that even if the Court accepts the contention of the department that there are one or two sentence which may be interpreted against the department, such a major punishment was not called for as the petitioner had no intention of causing disaffection among the force and issuance of such a booklet was with the intention of making the members of the association aware of the achievements of the association during the tenure of the petitioner and the works that could not be done and the reasons thereof.
4. The learned Additional Government Advocate, on the other hand, submitted that there are some comments in the booklet which would indicate that the allegations were made indirectly against some Police Officers without naming them and in a disciplined organisation like police department, such type of indiscipline may create disaffection among the members of the force. Since in a disciplined department, like police department, no such indiscipline can be tolerated, punishment of dismissal from service was appropriate.
5. From the record, it appears that a disciplinary proceeding was initiated against the petitioner on the following charge :
"He while attached to Headquarters A. P. R. without any permission or authority published and distributed a booklet titled 'Barta' among members of the police force on 1.1.91 at Balasore and at Bhadrak in contravention of Government Servant's Conduct Rules and thereby, created disaffection amongst the force."
It also appears that during the proceeding 10 witnesses were examined on behalf of the department and 4 witnesses were examined on behalf of the petitioner. The Inquiry Officer though found the petitioner guilty of the charge, in the report submitted before the disciplinary authority he observed as follows :
xx xx xx "Though the prosecution has not succeeded in proving that members of the force among whom the booklet 'Barta' was circulated at Bhadrak and Balasore had as a result of the circulation either withhold their services or given any threat to do so, the prosecution has been able to prove that there was breach of discipline among the members of the force as a result of the circulation of 'Barta'. Some members of the force had found some lines objectionable but the whole question is the desirability of one constable sharing some ideas in a booklet form with other members of the constabulary in order to arouse their sentiments of feelings. It cannot be said that those who read 'Barta' just ignored it or in other words reacted to it only in rational, neutral manner and hence it produced no effect what so ever, as the delinquent would like others to believe or if some effect was produced the delinquent cannot be held in any way responsible because he had not written anything false and he had not written anything against the department and Senior Officers. The delinquent as a result of the circulation of 'Barta' had produced breach of discipline among members of the force and hence the charge of creating disaffection stands as per the definition of disaffection given in the Police (Incitement to Disaffection) Act, 1922.
xx xx xx The following facts have been proved by the prosecution : (i) The delinquent C/689 Kamal Lochan Nayak was posted in the Head quarters A. P. R. on 1.1.91. (ii) The delinquent authored a booklet titled 'Barta'. (iii) The delinquent got the booklet 'Barta' printed. (iv) The printed booklet 'Barta' was distributed among members of the force on 1.1.91 by the delinquent. (v) The booklet 'Barta' published and distributed by the delinquent is about the Balasore District. Police Force and is neither literary nor artistic in nature nor is on any subject of science and was also not written in the normal course of his official duty. (vi) The delinquent had not taken the permission of any competent authority before getting the booklet published and distributed among members of the force. (vii) As a result of the distribution of the booklet 'Barta' there was breach of discipline among members of the force or other words caused disaffection among member of the force. (viii) This amounted to gross misconduct."
6. On the basis of such finding of the Inquiry Officer, after due procedure, the disciplinary authority decided to dismiss the petitioner from service by order dated 3.7.94 and the appeal preferred by the petitioner was also rejected by order dated 8.3.95. Thereafter, the petitioner approached the Orissa Administrative Tribunal challenging the order of dismissal as well as the order passed by the disciplinary authority. The Tribunal in its judgment and order dated 25.11.98 dismissed the application on the ground that even accepting, for the sake of argument, that there was no indiscipline among the force as a result of distribution of the pamphlet and the petitioner could have proved it by effective cross-examination had he been supplied with report of the R.I. before the enquiry started, the findings admitted by him such as findings (i) to (vi) also constituted serious misconduct on the part of the petitioner and as such, the Tribunal declined to interfere with the order. However, in the concluding paragraph it was observed by the Tribunal that the petitioner should file a review petition before the Government under Rule 31 of the C.C.A, Rules, if so advised or for disposal of the review petition by modifying the penalty of dismissal to that of removal which will not be a disqualification for future employment. From the documents such as the charge sheet and the inquiry report it is not clear as to which rule of the Government Servants' Conduct Rules has been violated by the petitioner by publishing such a booklet. Initially it was contended by the learned counsel for the State that the petitioner violated the Rule 6(i) of the Government Servants' Conduct Rules, 1959. Rule 6 (i) as stated above is quoted below :
"6. Connection with Press or Radio :
(i) No Government servant shall, except with the previous sanction of the Government, own wholly or in part, or conduct or participate in editing or managing of any newspaper or other periodical publication."
7. On perusal of the aforesaid rule, it appears that no Government servant shall, except with the previous sanction of the Government, own wholly or in part or conduct or participate in editing or managing of any newspaper or other periodical publication. Admittedly, the booklet published by the petitioner is neither a newspaper nor a periodical publication. In view of the above, it cannot be said that there has been contravention of the aforesaid rule. Confronted with the aforesaid position, the learned Addl. Government Advocate stated that there has also been contravention of Section 3 of the Police (Incitement to Disaffection) Act, 1922. The said provision is quoted below :
"3. Penalty for causing disaffection, etc. - Whoever intentionally causes or attempts to cause or does any act which he knows is likely to cause, disaffection towards the Government established by law in India amongst the members of a police-force, or induces or attempts to induce, or does any act which he knows is likely to induce, any member of a police-force to withhold his services or to commit a breach of discipline shall be punished with imprisonment which may extend to six months, or with fine which may extend to two hundred rupees, or with both."
8. The aforesaid provision contained in the Act prescribes that whoever intentionally causes or attempts to cause or does any act which he knows is likely to cause disaffection amongst the members of the police force shall be punished with imprisonment as prescribed. The learned Additional Government could not place any material before the Court to show that the petitioner had ever been charged for the aforesaid offence in any Court of law. Only at the time of hearing he referred to the provision. In support of the argument advanced by the learned additional Government Advocate some statements made in the booklet were referred to. The learned Additional Government Advocate drew attention of the Court to one such statement where it is stated that unless the association is in a position to please the Director General of Police, certain demands cannot be fulfilled. We fail to understand how this statement made in the booklet can be said to be a statement which caused disaffection among the members of the police force. It must be borne in mind that this booklet was published by the petitioner when he was President of the Association and all that has been stated in the booklet is with regard to the works done by the association during the tenure of the petitioner and the works that could not be done.
9. From the findings of the Tribunal, we find that the Tribunal proceeded on the footing that out of the eight findings arrived at by the Inquiry Officer, the petitioner admitted the findings from (i) to (vi). Findings (i) to (vi) relate to posting of the petitioner at Balasore, publication of the booklet 'Barta', distribution of the same and publication of the booklet without permission of the competent authority. The Tribunal on the basis of such findings arrived at dismissed the original application with observation as stated earlier. We fail to understand as to how, even admitting such findings, can result in dismissal from service. To us, it appears to be highly disproportionate. As stated earlier, we do not find any material on record to show or support the findings of the Inquiry Officer that publication of such a booklet caused indiscipline among the members of the force or caused disaffection among the members of the force. Even if the findings (i) to (vi) arrived at by the Inquiry Officer are accepted by the petitioner, the punishment of dismissal from service is uncalled for, as it is highly disproportionate.
10. Since this Court has no jurisdiction to substitute a punishment, we allow the writ application to the extent directing the opposite parties to reconsider the question of punishment on acceptance of the findings arrived at by the Inquiry Officer and impose such punishment which will commensurate with guilt of the petitioner found by the Inquiry Officer and admitted by the petitioner before the Tribunal.
Sujit Barman Roy, C.J.
11. I agree,