Orissa High Court
State Of Odisha And Others vs Braja Kishore Nayak And Others ..... ... on 24 April, 2024
Bench: B.R. Sarangi, G. Satapathy
IN THE HIGH COURT OF ORISSA, AT CUTTACK
W.P (C) No. 21068 of 2017
State of Odisha and others ..... Petitioner
Mr. B. Mohanty, AGA
Vs.
Braja Kishore Nayak and others ..... Opposite Parties
Mr. P.K. Mohapatra, Adv.[O.P.No.1]
Mr. S.K. Das, Adv. [O.P.No.4]
CORAM:
DR. JUSTICE B.R. SARANGI
MR. JUSTICE G. SATAPATHY
ORDER
24.04.2024 Order No. This matter is taken up through hybrid mode.
10.
2. Heard Mr. B. Mohanty, learned Addl. Government Advocate appearing for the State-Petitioners; Mr. P.K. Mohapatra, learned counsel for opposite party no.1; and Mr. S.K. Das, learned counsel for opposite party no.4.
3. The State and its functionaries have filed this writ petition challenging the order dated 26.10.2016 passed in O.A No. 1477 of 2013 and O.A. No.135 of 2015, by which the Orissa Administrative Tribunal, Bhubaneswar has disposed of the Original Applications analogously by quashing the order of punishment and directed to pay Rs.6,03,869.21 to the applicant.
4. Mr. B. Mohanty, learned Addl. Government Advocate appearing for the State-Petitioners contended that O.A. No. 135 of 2015 was filed against imposition of penalty of withholding of 5% of pension for five years from the date of retirement. So far as O.A. No. 1477 of 2013 is concerned, the same was filed challenging the order of punishment of recovery of Rs.6,03,869.21 on the ground that no witness was Page 1 of 5 examined during the inquiry and the Inquiry Officer submitted his report only by analyzing the written statement of defence. It is contended that so far as recovery part is concerned, direction has been given not to recover the same. Thereby, the order passed by the Tribunal so far as O.A. No. 135 of 2015 is concerned, has been complied with by releasing the same in favour of the opposite party no.1. So far as punishment part is concerned, the same has been quashed by the tribunal in O.A. No. 1477 of 2013, which is the subject matter of challenge. It is contended that the Tribunal has erroneously quashed the punishment imposed on the opposite party no.1.
5. Mr. P.K. Mohapatra, learned counsel appearing for the opposite party no.1 vehemently contended that after retirement of opposite party no.1 from service, the proceeding was initiated and direction has been given for recovery of withholding of five percent of pension for a period of five years from the date of retirement. But fact remains, such direction has been given without following due procedure and without examining the witnesses or without establishing the liability on the petitioner. Therefore, the Tribunal is well justified in passing the order impugned, which does not warrant interference of this Court.
6. Mr. S.K. Das, learned counsel for opposite party no.4 contended that since the order has been passed by the Tribunal, the same has to be complied with, but the same is depending upon the direction of this Court.
7. Having heard learned counsel for the parties and after going through the records, this Court finds that on being selected by the Odisha Public Service Commission (OPSC), opposite party no.1 was initially appointed as Asst. Director, Sericulture vide notification Page 2 of 5 dated 09.11.1983. Subsequently, he was promoted to the post of Deputy Director vide notification dated 19.07.2001, Joint Director, Sericulture Level-II, vide notification dated 16.06.2008, and Joint Director Sericulture Level-I, vide notification dated 07.12.2009. Thereafter, he was reverted back to his former post of Joint Director, Level-II, vide notification dated 13.08.2010. Aggrieved by such reversion, opposite party no.1 represented the authority for his voluntary retirement, which was allowed vide notification dated 12.11.2010. Shortly before his retirement, a disciplinary proceeding was initiated against him, vide memorandum of charges dated 06.10.2010. The Inquiring Officer and the Marshalling Officer were appointed to conduct the enquiry vide order dated 21.03.2011. The Inquiring Officer submitted his enquiry report, which was served on the opposite party no.1 vide letter dated 02.11.2012. On perusal of such enquiry report, it was found that no witness was examined during the enquiry to substantiate the charges levelled against the opposite party no.1-delinquent, even though in the memorandum of charges dated 06.10.2010, wherein it has been specifically mentioned that a list of documents by which, and a list of witness by whom, the articles of charges are proposed to be sustained are also enclosed. As such, the report is based on no evidence and is completely in violation of Rule 15 (6) of the OCS (CC&A) Rules. Further, though the OPSC was consulted before imposition of punishment and its advice was obtained by the disciplinary authority, but copy of such advice has not been served on the opposite party no.1 to have his say and, as such, copy of the advice of the OPSC is required to be served on opposite party no.1. As per Rule 15 (10) (ii) of the OCS (CC&A) Rules, supply of copy of advice of the OPSC is mandatory irrespective of difference of opinion or not, which has not been Page 3 of 5 complied in the present case. As such, the enquiry conducted by the inquiry officer being not held following due procedure of law and the copy of advice of OPSC having not been supplied to the opposite party no.1 before awarding punishment, the Tribunal held that the same cannot be sustained and by holding so quashed the same. Further, vide order dated 18.06.2012 passed in O.A. No. 616 of 2011, the tribunal directed to complete the disciplinary proceeding within a period of one year from the date of receipt of the order, failing which further enquiry into the proceeding shall not be taken without leave of the tribunal. Though the period of one year was completed on 26.06.2013, no extension of time was sought for by the department to proceed with the departmental proceeding and, therefore, the Tribunal held that the order of punishment passed on 02.07.2013 was beyond the time limit. So far as the order of recovery of amount of Rs.6,03,869.21, as impugned in O.A. No. 135 of 2015, is concerned, petitioner no.2 while submitting the pension papers of the opposite party no.1 to the Principal Accountant General (A&E), Odisha, vide letter dated 15.04.2014, intimated to recover an amount of Rs.6,03,869.21, as shown outstanding against the opposite party no.1 in the Special Audit Report No.15/1992-93 for the period of his incumbency as ADS, Baripada. Further, vide letter dated 20.05.2014, the AG, Odisha sought for a clarification as to whether proper procedure has been followed to establish the recoverable amount shown in the Special Audit Report. But the petitioner-authorities are completely silent about any procedure to have been followed for recovery of the amount shown in the Special Audit Report for the year 1992-93, which was communicated to the opposite party no.1, vide letter dated 02.02.2011, after his retirement. The AG Odisha in the counter affidavit filed in O.A. No. 135 of 2015 stated that vide Page 4 of 5 letter dated 20.05.2014 the Pension Payment Order (PPO) was issued in favour of opposite party no.1 and the Treasury Officer, Special Treasury No.1, Bhubaneswar was intimated to effect recovery of the outstanding dues as instructed by the PSA from the TI on pension of the opposite party no.1 as per letter dated 17.12.2014. Therefore, it emerges that to establish the charge of misappropriation/financial irregularities to the tune of Rs.9,60,439.21 shown in the Special Audit Report No.15/1992-93 of the office of ADS, Baripada during the incumbency of the opposite party no.1, no departmental proceeding was initiated against the opposite party no.1 either during tenure of his service or after his retirement. Therefore, the Tribunal set aside the order passed by the authority and directed to release full pension and other retiral benefits in favour of opposite party no.1 and that refund the amount already recovered from him within a period of four months.
8. In such view of the matter, this Court does not find any error apparent on the face of the order passed by the Tribunal so as to cause interference with the same. Consequentially, the order dated 26.10.2016 passed by the tribunal in O.A No. 1477 of 2013 and O.A. No.135 of 2015 is confirmed.
9. In the result, the writ petition stands dismissed.
(DR. B.R. SARANGI)
JUDGE
Signature Not Verified
Digitally Signed
Signed by: ASHOK Ashok
KUMAR JAGADEB MOHAPATRA (G. SATAPATHY)
Designation: Secretary
Reason: Authentication JUDGE
Location: HIGH COURT OF ORISSA
Date: 25-Apr-2024 16:54:37
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