Central Administrative Tribunal - Cuttack
Basant Kumar Mishra, J.F.S. (Retd.) vs Union Of India (Uoi) And Anr. on 4 November, 2004
Equivalent citations: 2005(2)SLJ161(CAT)
ORDER Manoranjan Mohanty, Member (J)
1. Applicant (having been selected, through the Union Public Service Commission, in the year 1967) joined the Indian Forest Service (beings allotted to the Orissa cadre) on 1.7.1968. During his said services he was posted as Managing Director of Orissa Forest Development Corporation Limited with effect from 24.10.1996 where he continued upto 24.8.1999 and, finally, superannuated from service (on reaching the age of retirement) on 31.8.2001. Two years thereafter, a memorandum of charges (under Annexure-1 dated 23.12.2003) was served on the applicant (by the Principal Chief Conservator of Forests of Govt. of Orissa, Bhubaneswar) under forwarding letter dated 31.12.2003; alleging commission of irregularities during the period from 24.10.1996 to 24.8.1999. Being aggrieved by the said action/inaction of the respondents, the applicant has filed this original application under Section 19 of the Administrative Tribunals Act, 1985 with a prayer to set-aside the disciplinary proceedings that has drawn up against him under Annexure-1 dated 23.12.2003.
2. The State Government of Orissa, by placing a counter have disclosed that though the alleged irregularities pertains to the period from 24.10.1996 to 24.8.1999, the said irregularities came to the notice only after receipt of the Audit Report from the Accountant General of Orissa vide I. R. No. 101/2000-2001. Secondly, it is the case of the respondents that since the charges are quite grave and involve a huge loss (to the Government owned Public Sector Undertaking) amounting to more than rupees one crore, disciplinary proceedings has been instituted against the applicant with due sanction (of the Government of India) in terms of Rule 6(1)(b)(i) of All India Services (Death Cum Retirement Benefit) Rules, 1958. By stating so, it has been submitted by the respondents that since there was no wrong in initiating the proceedings against the applicant, this Tribunal could not interfere, at this premature stage, in the matter.
3. Applicant has filed a rejoinder, to the counter filed by the State Government of Orissa by denying and clarifying the points raised by the respondents in their counter.
4. Government of India has, however, not filed any counter in this case.
5. Heard Mr. B.S. Mishra, learned Counsel appearing for the applicant, Mr. T. Dash, learned Government Advocate representing the State of Orissa and Mr. J.K. Nayak, learned Additional St. Counsel appearing for the union of India, also perused the materials placed on record.
6. Learned Counsel appearing for the applicant, relying on the decisions of the Hon'ble Supreme Court of India; as also of this Tribunal have stated that the respondents-Department is estopped under law, to initiated any proceedings pertaining to a cause of action that arose prior to four years of the retirement superannuation of the applicant. He also pointed out that Rule 6(b)(ii) of the All India Services (Death Cum Retirement Benefits) Rules, 1958 prohibits initiation of disciplinary proceedings pertaining to an incident that occurred four years prior to the retirement of an All India Service Officer. He further emphatically submitted that the charges as has been framed are also out come of total non-application of mind (of the respondents); as the periods mentioned in the charges covers prior to the joining of applicant in OFDC or the periods subsequent to relinquishment of the charges by the applicant of OFDC and that, therefore, the charges levelled against the applicant (under the impugned memorandum) is liable to be set-aside/quashed.
7. Learned Government Advocate appearing for the State of Orissa, while opposing the prayers made on behalf of the applicant, strenuously argued that since the gross irregularities (causing huge pecuniary loss of the Corporation) came to the notice only after the submission of Audit Report under IR No. 101/2000-2001, the State Govt. took immediate action (with approval of Government of India) to institute disciplinary proceedings against the applicant and, thus, the limitation are to be counted from the date of detection of the irregularities and not from the date of Commission of the alleged offences. It has, however, been admitted by the respondents that for obtaining due sanction from the Government of India, sometime was consumed and that, finally, proceeding was drawn up soon after grant of sanction by the Govt. of India, to initiate the disciplinary proceedings and that, therefore, initiation of disciplinary proceedings against the applicant is not only legal and justified but also without violation of any provisions contained in Rule 6(1)(b)(ii) of A.I.S. (Death-Cum-Retirement Benefits) Rules, 1958. Learned additional standing Counsel for the Government of India, during oral hearing has supported argument of the State Government of Orissa (basing on the counter filed by Govt. of Orissa) although no separate counter has been filed by the Govt. of India/Union of India.
8. Whole effort centres round the point as to whether the Government/Employer of the applicant has been bestowed with any power to initiate proceedings as against him (a Government servant) for an incident which occurred four years prior to his date of retirement. In order to reach an irressistible conclusion in the matter, it would be profitable to quote the Rule 6(1)(b)(ii) of the All India Services (Death-cum-Retirement Benefit) Rules, 1958:
"6. Recovery from pension--1 (the Central Government reserves to itself the right of withholding a pension or gratuity, or both, either 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 Central or a State Government, if the pensioner is found in a departmental or judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to the Central or a State Government by misconduct or negligence during his service, including service rendered on re-employment after retirement:
(Provided that no such order shall be passed without consulting the Union Public Service Commission) Provided further that :
(a) xxx xxx xxx
(b) Such departmental proceedings, if not instituted while the pensioner was in service, whether before his retirement or during his re-employment:
(i) shall not be instituted save with the sanction of the Central Government:
(ii) shall be in respect of an event which took place not more than four years before the institution of such proceeding:
And xxx xxx xxx"
(Emphasis supplied) The legality of initiation of disciplinary proceedings for an alleged incident that took place prior to four years of the retirement of an I.A.S. Officer on the face of the above rules, was under consideration before this Tribunal (at its Principal Bench) in the case of V.C. Pande, IAS (Retd.) and Ors. v. Union of India, 1996(3) SLJ (CAT) 104 and after analysing Rule 6(1)(b)(i)(ii) and (iii) it was held that the idea behind the rule was to ensure a peaceful life to a retired person after certain period, otherwise the occassion can happen at any time and, accordingly, this Tribunal quashed the proceedings initiated against said Shri Pande. The same view was also taken by the Principal Bench of this Tribunal in the case of K.C. Brahmachary v. Chief Secretary and Ors., 1998(1) SLJ (CAT) 383, and by the Hon'ble Supreme Court of India in the case of State of Bihar and Ors. v. Mohd. Idris Ansari, AIR 1995 SC 1853.
On examination it is seen that, in this instant case, the applicant has been chargesheeted for the alleged irregularities that occurred during his incumbency of Managing Director of Orissa Forest Development Corporation with effect from 24.10.1996 to 24.8.1999; whereas chargesheet was served on the applicant only on 23.12.2003 which is/was after a lapse of four years of the incident. Therefore, it can safely be held that as per the Rules and judgment-laws cited above, the proceedings initiated against the applicant is not available to be maintained.
9. That apart, in the statement of imputations to the charge memo, it has been mentioned that the Orissa Forest Development Corporation sustained loss; (a) due to payment of idle wages for the period from November, 1999 to May, 2000 and ;(b) due to payment of wages to surplus staff from January, 1997 to October, 1999. It has also been alleged that (c) no steps were taken to reduce the CD to 110 KV; which should have been done to avoid unnecessary extra expenditure towards electricity charges resulting payment of excess demand charges of Rs. 11.47 lakhs to the GRIDCO for the period from April, 1991 to July, 2000 and (d) the loss to the Corporation which amounted to negligence in due discharge of official administration by the applicant. This shows non-application of mind of the respondents/authorities; while deciding to proceed against the applicant. Incident took place before the applicant's joining and after the applicant's incumbency cannot be regarded as a fault of the applicant and as such covering those periods in the charge-sheet amounts to a clear case of non-application of mind.
10. Judging from both angles, we are obliged to hold that the departmental proceedings that was initiated against the applicant under Annexure-1 dated 23.12.2003 is not sustainable in the touch stone of judicial scrutiny and therefore, the same is hereby quashed. In the result, this original application is allowed. There shall be no order as to costs.