Orissa High Court
Banambar Parida vs Orissa Forest Development Corporation ... on 6 January, 2017
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C). NO. 14163 OF 2009
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Banambar Parida ... Petitioner
-versus-
Orissa Forest Development Corporation ... Opp. Parties
Limited and others.
For petitioner : M/s Manoranjan Mishra and
R.B.Sinha, Advocates.
For opp. parties : M/s. B.K. Sharma,
K.K. Mohapatra and
B. Panda, Advocates.
(O.P. No.1)
PRESENT:
THE HON'BLE DR. JUSTICE B.R.SARANGI
Decided on : 06.01.2017
DR. B.R.SARANGI, J.The petitioner, who was working as a Sectional Supervisor under the Orissa Forest Development Corporation and retired as Deputy Vigilance Officer on 31.05.2006, has filed this application seeking following reliefs:
"a) why the order of recovery dated 4.2.2008 and 11.3.2008 vide Annexure-3 issued by the opposite party no.1 against the petitioner will not be declared illegal, arbitrary and the same will not be quashed and, 2
b) why the deduction of Rs.96,638.00 vide Annexure-2 out of sanctioned amount towards unutilized leave salary of Rs.1,15,456.00 in favour of the petitioner will not be declared illegal, arbitrary and the same will not be quashed and,
c) why a direction will not be given to opposite parties to refund the deducted amount i.e. 96,638.00 including the interest accrued thereon till the date of payment within a stipulated period.
d) why the order dated 26.08.2008 vide Annexure-14 rejecting the appeal of the petitioner will not be declared illegal and the same will not be quashed.
And if the opposite parties do not show cause then the rule be made absolute by issuing appropriate writ/order/direction to the opposite parties and any other order as deem fit be passed."
2. The factual matrix of the case in hand is that after retirement of the petitioner, an amount of Rs.1,15,456/- was sanctioned by Orissa Forest Development Corporation Ltd. (OFDC) vide letter dated 11.03.2008 in lieu of his salary for unutilized earned leave of 289 days standing at his credit subject to recovery of dues of the corporation outstanding against him. An amount of Rs.96,638/- was deducted towards the dues of the corporation stated to have been outstanding against the petitioner from out of Rs.1,15,456/-, which was sanctioned towards unutilized salary. It is pertinent to mention here, prior to his retirement though several requests were made by the petitioner for grant of no due certificate, no action was taken by the authority, and finally the petitioner was extended with all the financial benefits admissible to him after retirement, except Rs.96,638/- which was already deducted from the unutilized salary. The said amount has been calculated on different heads, but the findings in audit report dated 02.05.2002 do not impose any liability on the employee concerned 3 unless the same is established in a departmental proceeding initiated against the employee under the concerned rules. In the office memorandum dated 22.08.1991, the procedure for recovery of dues arising out of non-settlement of audit objections has been mentioned. Without following the same, direction for recovery was given and an amount of Rs.96,638/- was recovered. As against the said order though the petitioner preferred appeal, the same was rejected by the appellate authority by passing a cryptic order on 26.08.2008 vide Annexure-14. Hence, this application.
3. Mr. M.R. Mishra, learned counsel appearing for the petitioner states that, while considering the appeal, the appellate authority has not applied its mind and by a cryptic order dated 26.08.2008 has rejected the same. It is further contended that the recovery is said to have been made on the basis of the report of the Triangular Committee, but under the Rules of the Corporation no such committee has been authorized to recommend such recovery. As such, the recovery so made on the basis of the so called report of the Triangular Committee cannot be sustained in the eye of law.
4. Mr. B.K. Sharma, learned counsel for the opposite party no.1, per contra, justifying the order passed by the appellate authority states that the amount recovered is wholly and fully justified and, as such, the authority has not committed any 4 illegality in recovering the amount of Rs.96,638/- from the unutilized salary sanctioned by the authority in favour of the petitioner.
5. Having heard learned counsel for the parties and after going through the records, with the consent of learned counsel for the parties, this matter is being disposed of finally at the stage of admission.
6. It is not disputed at the Bar that after retirement, all retiral benefits have been released in favour of the petitioner, save and except a sum of Rs.96,638/-, which is stated to have been recovered from the unutilized salary sanctioned by the authority. Therefore, only question to be considered is that whether the amount of Rs.96,638/- which has been deducted from the petitioner is legally tenable and whether the authority is competent to do so without following due procedure of law. The admitted fact being that even though the petitioner, while continuing in service, was found liable for shortage of the total amount calculated to be Rs.96,638/- on different heads, but the petitioner has not been given any opportunity to justify the shortage alleged to have been done during his tenure of service.
7. In order to regulate the service conditions of the employees of the Orissa Forest Development Corporation, the 5 OFDC Service Rules, 1986 have been enacted. Rule 121 deals with "penalty" and clause (iv) of Rule 121 deals with recovery from pay, which has been categorized as "minor penalty". For imposition of "minor penalty", procedure has been envisaged under Rule-125 of Rules, 1986, which is as follows:
"Rule 125 - Procedure for imposing minor penalty.
1. No order imposing any of the minor penalties specified in Clauses (i) to (vi) of Rule-121 shall be imposed except after
a) The employee/workman is informed in writing of the proposal to take action against him and of the allegation on which it is proposed to be taken and given an opportunity to make any representation he may wish to make within a time limit as may be specified:
b) Such representation, if any, is taken into consideration by the disciplinary authority.
2. The record of proceedings in such cases shall include:-
i) a copy of the intimation to the employee/workman of the proposal to take action against him;
ii) a copy of the statement of allegation communicated to him;
iii) his representation, if any, and
iv) the orders on the case together with the reasons thereof.
NOTE: 1. No oral enquiry is necessary where the punishment proposed is a minor one.
2. Where two or more employees/workman are concerned in any case, the authority empowered to impose the penalty on all such employees/workmen may make an order directing that the disciplinary action against all of them may be taken in any common proceeding."
8. Applying the above Rules to the present context, it is seen that without following due procedure, as envisaged above, the recovery has been made to a tune of Rs.96,638/- on account of alleged irregularity without initiating any proceeding against the petitioner. Even, after recovery, the petitioner 6 preferred an appeal challenging such arbitrary deduction of pay, but the appellate authority without application of mind by a cryptic order dated 26.08.2008 in Annexure-14 rejected the claim of the petitioner without assigning any reason.
Franz Schubert said-
"Reason is nothing but analysis of belief."
In Black's Law Dictionary, reason has been defined as a-
"faculty of the mind by which it distinguishes truth from falsehood, good from evil, and which enables the possessor to deduce inferences from facts or from propositions."
It means the faculty of rational thought rather than some abstract relationship between propositions and by this faculty, it is meant the capacity to make correct inferences from propositions, to size up facts for what they are and what they imply, and to identify the best means to some end, and, in general, to distinguish what we should believe from what we merely do believe.
In Union of India v. Mohan Lal Capoor, AIR 1974 SC 87 it has been held that reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject- matter for a decision whether it is purely administrative or quasi- judicial and reveal a rational nexus between the facts considered and conclusions reached. The reasons assure an inbuilt support to 7 the conclusion and decision 8 reached. Recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record. It is vital for the purpose of showing a person that he is receiving justice.
Similar view has also been taken in Uma Charan v. State of Madhya Pradesh, AIR 1981 SC 1915.
Reasons being a necessary concomitant to passing an order, the appellate authority can thus discharge its duty in a meaningful manner either by furnishing the same expressly or by necessary reference to those given by the original authority.
Similar view has also been taken in Patitapaban Pala v. Orissa Forest Development Corporation Ltd. & another, 2017 (I) OLR 5.
9. A perusal of the impugned order in Annexure- 14 would show that the appellate authority has passed a cryptic order by simply stating that the appeal is rejected, without assigning any reason. Consequentially, the order dated 26.08.2008 in Annexure-14 passed by the appellate authority is hereby quashed and the matter is remitted back to the said authority to consider the appeal of the petitioner afresh and dispose of the same in accordance with law by passing a reasoned and speaking order after affording opportunity of hearing to the petitioner as expeditiously as possible.
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10. The writ petition is allowed to the extent indicated above. No order to cost.
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(DR. B.R. SARANGI) JUDGE Orissa High Court, Cuttack The 6th January, 2017/Ashok/GDS