Orissa High Court
Basudev Chaterjee vs Grid Corporation Of Orissa And Others on 10 February, 2016
Author: S. N. Prasad
Bench: S. N. Prasad
ORISSA HIGH COURT: CUTTACK.
W.P.(C) No. 3434 of 2005
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Basudev Chaterjee ...... Petitioner
-Versus-
Grid Corporation of Orissa and others ....... Opp. Parties
For Petitioners : M/s. Mr. Jayant Ku. Rath, S.N. Rath,
P.K. Rout, S. Mishra, C.K. Rajguru & D.N. Rath.
For Opp. Parties : M/s. Mr. Pradipta Mohanty, G.S. Satpathy,
Smt. S. Mohanty. (for GRIDCO)
Mr. Manoj R. Dhal, D.N. Mahapatra,
Vijayshree.
(Caveator)
PRESENT :
THE HONOURABLE SHRI JUSTICE S. N. PRASAD
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Date of hearing and judgement :- 10.2.2016
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S.N. Prasad, J.This writ petition is for quashing of the order as contained in Annexure-8 which is the show cause notice with a drafted punishment of imposing penalty of reduction of 20% of pension on permanent basis and Rs.50,000/- to be deducted out of gratuity to be paid to the petitioner in exercise of power conferred under Rule-7 of the Orissa Pension Rules, 1992 read with Rule 6 (4) (a) of the Pension Rules 1992.
2. Case of the petitioner is that he was appointed as Civil Overseer by the Chairman of the Orissa State Electricity Board vide Memo No.1053 (2) dated 27.02.1964. After coming into effect Orissa Electricity 2 Reforms Act, 1995 which came into force on 10th January, 1996 all the employees of the State Electricity Board were brought into the control of establishment namely Hydro Power Corporation and Grid Corporation of Orissa Ltd., the petitioner was brought in as an employee of the Grid Corporation of Orissa which was created in pursuance of the provision as contained in Section 13 of the Orissa Electricity Reforms Act, 1995, the Grid Corporation of Orissa has formulated its own service regulations having the service conditions and discipline and appeal rule.
3. The petitioner being brought under the jurisdiction of GRIDCO the regulation formulated by the GRIDCO will also be applicable to him. After service of the petitioner having been placed under the control of the GRIDCO, the petitioner came under E-2 category since he was holding the post of Junior Manager at that time. According to the provision of Regulation 8(2), the appointing authority of Junior Manager is the Functional Director/Director (HR).
4. When the petitioner‟s service was under the Orissa State Electricity Board (hereinafter referred to as „OSEB‟), his appointing authority was Chief Engineer since he was holding the post of Junior Engineer but after service of the petitioner having been placed in the GRIDCO, the Functional Director/Director (HR) has become the authority and as such he became the disciplinary authority.
Accordingly, when the petitioner was in the service of OSEB the provision of Orissa Pension Rules and the CCA Rules, 1992 was applicable but after the service of the petitioner having been placed under GRIDCO, the provision of service regulation formulated by the GRIDCO has become applicable.
5. The petitioner after rendering service under the GRIDCO, has been superannuated from service w.e.f. 31.12.2001. According to the petitioner, while he was in service no departmental proceeding was 3 initiated and it is only after his superannuation i.e., w.e.f. 31.12.2001 a departmental proceeding has been initiated vide Departmental Proceeding No.263 dated 19.08.2002. However, while the petitioner was in service show cause notice was issued against him asking therein to give reply regarding misconduct alleged to have been committed and he has given due reply but for one reason or the other regular departmental proceeding has not been initiated during the course of his service tenure and it is only after his retirement departmental proceeding has been initiated vide letter dated 19.08.2002.
6. The petitioner although has participated in the enquiry proceeding but questioned the maintainability of the departmental proceeding by raising the issue that the departmental proceeding initiated against the petitioner vide order dated 19.08.2002 is contrary to the provision of Regulation 17(6) of GRIDCO Officers Service Regulation which provides that the company has right to initiate a departmental proceeding who has retired or even not in the list of Officers service but according to the petitioner he has been superannuated from service w.e.f. 31.12.2001 and during his service tenure, no departmental proceeding has been initiated, hence departmental proceeding should have been initiated only after superannuation if the cause of action will be for the period of four years from the date of service of the petitioner but according to the petitioner, the alleged offence has occurred in the year 1995 and as such this is barred by the provision of Regulation 17(6) of the GRIDCO Officers Service Regulation.
7. The GRIDCO has appeared and filed counter affidavit representing GRIDCO Mr. Pradipta Mohanty has stated that while the petitioner was in service, show cause notice was issued on 27.01.1998 which was replied by the petitioner but thereafter the competent authority has thought it proper to get more material by asking the audit team to conduct enquiry in this regard and accordingly audit was conducted and 4 submitted a report on 17.11.2001 and thereafter the departmental proceeding was initiated vide order dated 19.08.2002.
8. He submits that since show cause notice was issued on 27.01.1998 and the same has been stalled for some period waiting for the outcome of the audit report and after submission of audit report, the proceeding which has been initiated vide show cause notice dated 27.01.1998 has again been started vide order dated 19.08.2002 hence according to him, it is incorrect that the departmental proceeding has not been initiated while the petitioner was in service.
9. Heard learned counsel for the parties and after hearing rival submission, it is necessary to examine the relevant provision for the purpose of adjudicating the issue i.e., the provision of Rule 7 of the Orissa Pension Rules, 1992 and the provision of Rule 9 of Central Civil Services (Pension) Rules, 1972. For ready reference it is being reproduced:-
"Rule. 7 of the Orissa Pension Rules, 1992 - Right to Government to withhold or withdraw pension- (1) the Government reserve to themselves the right of withholding a pension or gratuity, or both either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if in any departmental or judicial proceedings, the pensioner found guilty of grave misconduct or negligence in duty during the period of his service including service rendered on re-employment after retirement.
Provided that the Orissa Public Service Commission shall be consulted before the final orders are passed:
Provided further that when a part of pension is withheld/withdrawn, the amount of such pension shall not be reduced below the amount of minimum limit.
(2)(a) Such departmental proceedings referred to in Sub-rule (1), if instituted while the Government servant was in service, whether before this retirement or during his re-employment, shall after the final retirement of 5 the Government servant, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service.
Provided that when the departmental proceedings are instituted by an authority, subordinate to Government that authority shall submit a report recording its finding to the Government.
(b) Such departmental proceedings as referred to in Sub-rule (1) if not instituted while the Government servant, whether before his retirement or during his re-employment -
(i) shall not be instituted save with the sanction of Government;
(ii) shall not be in respect of any event which took place more than four years before such instruction; and
(iii) shall be conducted by such authority and in such place as the Government may, direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service.
(c) No judicial proceedings, if not instituted while the Government servant was in service, whether before this retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution.
(d) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental proceedings are continued under Clauses (a) and (b), a provisional pension as provided in Rule 66 shall be sanctioned.
(e) Where the Government decide not to withhold or withdraw pension but order recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant."
Rule. 9 of CCS (Pension) Rules 1972 - Right of President to withhold or withdraw pension - (1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or 6 withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement:
Provided, that the Union Public Service Commission shall be consulted before any final orders are passed:
Provided, further that where a part of pension is withheld or withdrawn the amount of such pensions shall not be reduced below the amount of rupees three hundred and seventy-five per mensem.
(2) (a) The department proceedings referred to in Sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemd to be proceedings under this Rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service.
Provided, that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President.
(b) The departmental proceedings, is not instituted while the Government servant was in service, whether before his retirement, or during his re-employment-
(i) shall not be instituted save with the sanction of the President.
(ii) shall not be in respect of any event which took place more than four years before such institution; and
(iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in relation to the Government servant during his service.
(3) xxxx xxxx 7 (4) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against who any departmental or judicial proceedings are instituted or where departmental proceedings are continued under Sub-rule 92), a provisional pension as provided in Rule 59 shall be sanctioned.
(5) Where the President decides not to withhold or withdraw pension but order of recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant.
(6) For the purpose of this rule,-
(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date, and
(b) judicial proceedings shall be deemed to be instituted-
(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognisance is made, and
(ii) in the case of civil proceedings, on the date the plaint is presented in the Court."
10. Provision of Rule 9 of CCS (Pension) Rules, 1972 confers power to the President and one of the provision contained therein that the departmental proceeding is not instituted while the government servant was in service, whether before his retirement or during his re-employment
- (i) shall not be instituted save with the sanction of the President.
(ii) shall not be in respect of any event which took place more than four years before such institution; and (iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in relation to the Government servant during his service.
811. It further transpires from the said provision as would be evident from the Rule 9(6) of CCS (Pension) Rules 1972 that (a) departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or if the Government servant has been placed under suspension from an earlier date, on such date and (b) judicial proceedings shall be deemed to be instituted - (i) in the case of criminal proceedings, on the date on which complaint or report of a police officer, of which the Magistrate takes cognizance is made, and (ii) in the case of civil proceedings, on the date the plaint is presented in the Court.
12. Paramateria provision has been under the GRIDCO Officers Service Regulations as contained in Regulation 17(6) is being reproduced herein below:-
"17(6). Company may initiate disciplinary proceedings against officers who have retired or otherwise left the service for events occurring in the last four years of the officer's service.
Provided that such disciplinary proceedings shall be initiated within a period of two years from the date of the retirement or the Officer leaving the service and shall be completed within a period of three years from the date of such retirement or the Officer leaving the service."
Thus, the provision of Regulation 17(6) stipulates that if a departmental proceeding can be initiated against an employee who have retired or left service for events occurring in the last four years of the officer‟s service and said proceeding shall be initiated within a period of two years from the date of retirement or the officer leaving the service and shall be completed within a period of three years from the date of such retirement or the officer leaving the service.
In the light of these provisions, now the case of the petitioner needs to be examined.
13. Undisputedly, the petitioner has been superannuated from service w.e.f. 31.12.2001, show cause notice has been issued to him on 9 27.01.1998 along with the draft charges and thereafter the petitioner has given its reply on 9.2.1998. The authorities have not issued any communication regarding initiation of regular departmental proceeding since according to opposite parties, GRIDCO in order to ascertain some facts regarding the financial misappropriation of money have directed to conduct an audit to verify these aspect of the matter and accordingly audit report was submitted on 17.11.2001 and thereafter the Government has issued the order as contained in letter No. 269 dated 19.08.2002 (Annexure-6) stating therein that a regular departmental proceeding has been initiated against the petitioner.
14. According to opposite party-GRIDCO, proceeding will be said to be instituted the day when the show cause notice was issued to the petitioner which was on 27.01.1998 and on that date, the petitioner was in service and the order dated 19.08.2002 will only be said to be in furtherance of the decision of the authority, it was taken on 27.01.1998 since according to the learned senior counsel appearing for GRIDCO, the reference of the draft charges has been made in the show cause notice dated 27.01.1998 which otherwise the requirement as provided under the provision of Rule 17(6) of the GRIDCO Officers Service Regulations hence the proceeding cannot be said to be without any jurisdiction.
15. This submission of the learned counsel appearing for opposite parties has strongly been opposed by the learned counsel for the petitioner who has submitted that in the matter of initiation of departmental proceeding, first show cause issued to the employee cannot be said to be initiation of departmental proceeding because by way of first show cause notice, employee is asked to give reply and on being not satisfied with the reply, the authority cannot resort to a departmental proceeding and merely because of the reason that the word "draft charges" has been referred and the reference of the charge has been given, it cannot be misunderstood that the departmental proceeding will 10 be said to be initiated on the date when the first show cause notice was issued to the petitioner.
16. He submits that the departmental proceeding is the right of the appointing authority/disciplinary authority and in case of the petitioner, the appointing authority/disciplinary authority is the Functional Director or the Director. Hence, it suggests that since show cause notice dated 27.01.1998 has been issued under the signature of the Superintending Engineer (Civil), it cannot said to be initiation of departmental proceeding rather the departmental proceeding will only be said to be initiated w.e.f. 19.08.2002 as because memorandum of charge has been issued with reference to the departmental proceeding initiated by the Director-in-charge as would be evident from Annexure-5.
17. Learned senior counsel representing the petitioner further submits that since the departmental proceeding has been initiated only on 19.08.2002 and the alleged date of occurrence is of the year 1995 hence it is barred by the limitation of four years which is contrary to the provision of Regulation 17(6) of GRIDCO Officers Service Regulations which provides that no departmental proceeding can be initiated after retirement of an employee if the occurrence took place beyond the period of four years from the date of retirement from service.
He further submits that the Enquiry Officer was appointed vide Office Order dated 08.10.2002 in which the departmental proceeding has been shown to be initiated vide Proceeding No.263 dated 19.08.2002 and it is on the basis of the said office order, Enquiry Officer and Presiding Officer was appointed to probe into the charges and thereafter he had participated and the finding has been given by the Enquiry Officer.
18. After appreciating the arguments advanced by the learned senior counsel appearing for the petitioner, following facts is apparent from which it can be adjudicated regarding the issue involved in this case.
11(i) There is no dispute about the fact that a departmental proceeding will be said to be initiated by the authority who is the disciplinary authority, under the GRIDCO the Functional Director or the Director is the competent authority of the petitioner, meaning thereby the departmental proceeding has to be initiated by the Functional Director or the Director. From perusal of the show cause notice dated 27.01.1998, it is evident that the show cause notice has been issued against the petitioner under the signature of Superintending Engineer (Civil) who is not the competent authority to initiate a departmental proceeding against the petitioner, hence it cannot be said to be initiation of departmental proceeding.
(ii) Specific stand of the opposite party-GRIDCO is that a show cause notice was issued on 27.01.1998 by making reference of draft charges but the same was stalled awaiting for the audit report which was submitted on 17.11.2001 and thereafter the office order was issued on 19.08.2002 which also clarifies the position that the departmental proceeding cannot be said to be initiated from 27.01.1998 as because the GRIDCO was awaiting the evidence regarding show cause notice by calling upon the audit team and to conduct an audit in this regard and when the material has been collected and submitted before the competent authority, then the competent authority has passed the order on 19.08.2002, hence the departmental proceeding will be said to be initiated on or after 19.08.2002.
(iii) Similarly by making reference of draft charges in the first show cause notice, it cannot be said to be initiation of departmental proceeding because the process of imposing a punishment is by way of initiation of departmental proceeding and prior to that the authority after conducting preliminary enquiry and if anything comes against a delinquent employee, he will issue show cause notice which is said to be first show cause notice for providing an opportunity regarding show cause notice and after submission of 12 reply in this regard, the disciplinary authority if not being satisfied with the reply will take decision for initiation of regular departmental proceeding and then only it could be said to be initiation of departmental proceeding.
19. Thus, this is the process for initiation of departmental proceeding, but from the facts of this case, the show cause notice dated 27.01.1998 will be said to be a first show cause notice since it was issued by the Superintending Engineer (Civil) but when the authorities have found not themselves satisfied regarding the material available for issuing a definite charge, they have called upon the audit team to submit a report in this regard as such the report from 27.01.1998 till the issuance of the order dated 19.08.2002 will be said to be the period of fact finding and when the irregularities which was levelled against the petitioner was found to be substantiated in the audit report then the authorities have taken decision while issuing the order dated 19.08.2002 for initiation of departmental proceeding.
20. Here, the reference of Rule 15 of the Orissa Civil Services (C.C.A.) Rules, 1962 needs to be referred wherein as per the provision as contained in Rule 15 which is the procedure for imposing penalties is being reproduced:-
"15. Procedure for imposing penalties - (1) Without prejudice to the provisions of the Public Servant (Inquiry) Act, 1950, no order imposing on a Government servant any of the penalties specified in Clauses (vi) to (ix) of Rule 13 shall be passed except after an inquiry held as far as may be in the manner hereinafter provided.
(2) The disciplinary authority shall frame definite charges on the basis of the allegations on which the inquiry is to be held. Such charges, together with a statement of the allegations on which they are based, shall be communicated in writing to the Government servant and he shall be required to submit, within 13 such time as may be specified by the disciplinary authority, not ordinarily exceeding one month a written statement of his defence and also to state whether he desires to be heard in person."
From perusal of Rule 15 (2), the disciplinary authority shall impose definite charges on the basis of allegation on which the enquiry is to be held and such charges with a statement of the allegation shall be communicated in writing to the Government servant and who will be required to submit a defence reply, which means that before initiation of departmental proceeding, a definite charge has to be served upon the delinquent employee and in this case from perusal of show cause notice dated 27.01.1998, it is evident that there is reference of draft charges without any statement of allegation, hence on this pretext also it can be said that the departmental proceeding has not been initiated as on 27.01.1998.
21. On 19.08.2002 a definite charge has been supplied to the petitioner which is the requirement of the procedure laid down in the Rule 15(2) of framing of definite charge, hence the departmental proceeding will be said to be initiated from 19.08.2002.
22. This is being substantiated from the content of the audit report wherein even Director (Engineer) has expressed that draft charges could not have been served to the officers including the petitioner, relevant part is being quoted herein below:-
"Draft charges were framed against the following
persons;
1. Sri Mohadev Senapati, J.E. (Civil)
2. Sri B.D. Chatterjee, JE (C) retired on 31.12.2001 A.N.
3. Sri Gopinath Jota, JE(C)
4. Sri Shyam Sundar Jena, Divisional Accountant
5. Sri Dungei Mallia, LDC 14 Draft charges could not be served to the officers in Sl.1 to 4 as Director (Engineering) refused to serve the charge sheet before the detailed inquiry. But charge sheet was served to Sri D. Mallia, LDC and the inquiry is continuing and awaited for final report."
Thus, from its perusal, it is evident from this note of the Director that the fact finding enquiry was going on in between the period 31.12.2001 to 17.11.2001 i.e., the date of submission of audit report.
23. From perusal of the office order dated 8.10.2002, it is evident that Enquiry Officer was appointed for conclusion of the enquiry wherein also reference of the proceeding No.263 dated 19.08.2002 has been made in Annexure-D to the counter affidavit which also suggests that it is after the decision having been taken by the disciplinary authority on 19.08.2002.
24. In view of foregoing reasons as stated hereinabove, it is evident that the departmental proceeding against the petitioner will be said to be initiated from 19.08.2002 which is after retirement of the petitioner i.e., 31.12.2001 and the same was issued for the charges which was alleged to have been committed in the year 1995 which is beyond the period of four years from the date of institution of the departmental proceeding i.e., 19.08.2002 or from the date of superannuation of the petitioner i.e., 31.12.2001.
25. It is settled that imposing punishment by disciplinary authority depends upon the provision of discipline and appeal rule, the petitioner being an employee of GRIDCO as such the GRIDCO Officers Service Regulations is applicable wherein there is provision of Rule 17(6) which provides that the Company may initiate a departmental proceeding against Officers who retired otherwise left the service for events occurring in the last four years of the officer‟s service and in this case since the 15 petitioner ceased to be an employee of GRIDCO on 1.1.2002, hence four years period will cover up to 1.1.1998 and from the date of institution of the departmental proceeding, the four year period will come up to 19.08.1998 hence in both cases the departmental proceeding will be said to be without any jurisdiction because the allegation levelled against the petitioner was of the year 1995 as would be evident from the audit report and show cause notice dated 27.01.1998.
26. Hence, it is now admitted position that the allegation levelled against the petitioner is beyond the period of four years either from the date of retirement or from the institution of the departmental proceeding i.e., 31.12.2001 or 19.08.2002.
27. Now the second question which fell for consideration is that regarding the date of occurrence of the offence.
28. From perusal of the show cause notice dated 27.1.1998, it is evident that the petitioner while posted as Sectional Officer Major Building, Secion-2, Bhubaneswar on 18.08.1995 and while functioning as Junior Engineer (Civil) has committed some irregularities, thus the date of occurrence will be said to be of the year 1995.
29. Thus, further being corroborated from the audit report as contained in Annexure-C to the counter affidavit which pertains to the period from 1987 to 1991, it is further being gathered from the audit report that the occurrence took place beyond the period of 4 years from the date of institution of the departmental proceeding i.e., 19.08.2002 so if the occurrence took place in between 19.08.2002 and 19.08.1998, then the jurisdiction regarding initiation of departmental proceeding is exist but if it is beyond the period i.e., before 19.08.1998 then certainly it can be said that proceeding is barred by period of limitation as provided under the Regulation 17(6) of the GRIDCO Officers Service Regulations.
1630. From perusal of the audit report and the show cause notice dated 27.01.1998 and also from the enquiry report, it is evident that the occurrence took place beyond 18.08.1995 hence the proceeding will be said to be barred by limitation, hence the proviso to Regulation 17(6) of GRIDCO Officers Service Regulations will have no application also.
31. In the light of foregoing reasons and explanation, the departmental proceeding will be held to be without jurisdiction and accordingly the departmental proceeding is hereby quashed and in the result thereof, the writ petition is allowed with a direction to release all consequential benefit to the petitioner for which he is legally entitled to get within reasonable period preferably within ten weeks from the date of communication/receipt of this order.
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S. N. Prasad, J.
Orissa High Court, Cuttack.
Dated the 10th February, 2016/RRJena