The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.3410 of 2024 Pravakar Swain ..... Petitioner Represented By Adv. - Manas Pati -versus- ..... Opposite Parties Represented By Adv. – Mr.Saswat Das, AGA 1) State Of Odisha 2) Secretary To Govt., P.r. And D.w. Dept., Odisha 3) Engineer-in-chief, Rural Water Supply And Sanitation Division, Orissa 4) Executive Enginieer, Rural Water Supply And Sanitation Division, Malkangiri THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA CORAM: Order No.
Decision
ORDER 18.04.2024 04. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as the learned Additional Government Advocate. Perused the Writ Petition as well as the documents annexed thereto. 3. The Petitioner has filed the aforesaid Writ Petition with the following prayer: “ The Petitioner therefore prays that your Lordships may graciously be pleased to quash the memorandum of charge, enquiry report & 1st show cause notice dated 31.10.2018, 30.10.2023 & 11.01.2024 under Annexures-3,6 & 7, as it violates the Rule 7(2)(b)(ii) of OCS(Pension) Page 1 of 5. Rules, 1992 & decision of the Hon’ble Apex Court reported in 2023 Live law (SC) 477 and direct the Opp.Paties to release all consequential service and financial benefits. And pass such order/directions as this Hon’ble Court may deem fit and proper.” 4. It is submitted by the learned counsel for the Petitioner that while working as Assistant Executive Engineer, RWSS Division, Nabarangpur, which is under the Engineer-in-Chief, Rural Water Supply & Sanitation Division has retired from service on attaining the age of superannuation with effect from 30.09.2017 pursuant to Office Oder No.2364 dated 26.09.2017. He further contended that a Vigilance case was initiated on 10.01.2011 under Annexure-2 to the Writ Petition, wherein the Petitioner has been shown as Accused No.2. Although the said vigilance case was pending, the Petitioner was permitted to retire from service. He further contended that after retirement from service, a Disciplinary Proceeding was initiated against the Petitioner vide Memorandum No.20751 dated 31.10.2018 under Annexure-3 to the Writ Petition. It is also contended that the Articles of Charges attached to the Memorandum under Annexure-3 reveals that the proceeding was initiated on the allegation of misconduct for the period from 20.08.2005 to 9/2008. In the aforesaid Disciplinary Proceeding the Petitioner has already submitted his written statement of defence on 28.02.2019 under Annexure-5 to the Writ Petition. The Enquiry Officer conducted the enquiry and submitted his report on 26.10.2023 under Annexure-6 to the Writ Petition. Further referring to the enquiry report under Annexure-6, learned counsel for the Petitioner submitted that the Enquiry Officer has held the present Petitioner responsible for procuring 20 nos. of chlorinators. However, it has also been observed that the Petitioner stated before the Enquiry Officer that he is not responsible for finalization of rates of Chlorinators so Page 2 of 5. procured. Although the same was however not accepted as a ground to absolve him from the responsibility and it was also concluded that the Petitioner has accepted the quotation at a inflated price. The responsibility has also been fixed on the Ex-Executive Engineer on the ground that he has to issue orders for multiple chlorinators and that the Executive Engineer has played a key role in procuring a total 45 nos.of Chlorinators based on the quotation call notice floated by the present Petitioner. While holding the Petitioner guilty of the allegation the Enquiry Officer has also stated that the responsibility is solely attributed to the Ex-Executive Engineer, RWSS Division, Malkangiri. On the basis of the aforesaid finding of the Enquiry Officer, the first show cause notice was issued on 11.01.2024 under Annexure-7 to the Writ Petition. Being aggrieved by such show cause notice dated 11.01.2024 under Annexure-7 the Petitioner has approached this Court by filing the present Writ Petition. 5. In course of his argument, learned counsel for the Petitioner contended that the proceeding which has been initiated against the Petitioner was admittedly initiated after the retirement of the Petitioner and pursuant to memo under Annexure-3 to the Writ Petition dated 31.10.2018. In the aforesaid context, learned counsel for the Petitioner referring to Rule 7 of OCS(Pension) Rules, 1992 submitted that no proceeding can be initiated against the Petitioner for any alleged misconduct which had taken place four years prior to initiation of such proceeding. In the aforesaid context, learned counsel for the Petitioner also refers to the judgment of the Hon’ble Supreme Court in Suchismita Mishra-v.-High Court of Orissa and others decided in W.P.(C) No.1042 of 2021 disposed of on 17.05.2023. Referring to the aforesaid judgment, learned counsel for the Petitioner further contended that the Hon’ble Supreme Court while considering the case of the Petitioner in Page 3 of 5. the aforesaid case had taken into consideration Rule 7(2) of OCS(Pension) Rule, 1992 and has categorically held that under Rule 7 of OCS (Pension) Rule, 1992 a proceeding although can be initiated after retirement, the same can be only in respect of any alleged misconduct during the period of four years before such initiation. On such ground, learned counsel for the Petitioner submitted that in the present case the proceeding having been initiated after retirement of the Petitioner and in respect of an alleged misconduct which had taken place prior to four years of the proceeding, therefore, the same is contrary to the observation of the Hon’ble Supreme Court in Suchismita Mishra’s case (supra). 6. Learned Additional Government Advocate on the other hand contended that prior to the retirement of the Petitioner, allegations were made against the present Petitioner and a vigilance case was initiated in which the Petitioner has been arrayed as an accused. On the basis of such allegation a Disciplinary Proceeding was initiated against the present Petitioner although, the same was initiated after the retirement of the Petitioner from service. He further contended that in the aforesaid Disciplinary Proceeding the Petitioner has already submitted his written statement of defence and participated in the enquiry. He further contended that the written statement of defence was in fact submitted on 30.04.2019 and 20.08.2019 as alleged by the present Petitioner. It is also contended by the learned Additional Government Advocate that in the event the Petitioner claims benefit of Rule 7 of OCS(Pension) Rule, 1992 he can raise the same before the Disciplinary Authority in course of final hearing of such proceeding. In such view of the matter, learned Additional Government Advocate submitted that the Writ Petition is devoid of merit and the same is liable to be dismissed. 7. Having heard learned counsels for the respective parties, on Page 4 of 5. careful examination of the materials on record, further taking into consideration the fact that the Disciplinary Proceeding which was initiated against the Petitioner after his retirement from service and as it appears from the memo of Charge that the alleged misconduct relates to a period prior to four years from the date of initiation of such proceeding and further keeping in view the judgment of the Hon’ble Supreme Court in Suchismita Mishra’s case (supra), this Court deems it proper to dispose of the Writ Petition at the stage of admission by directing the Disciplinary Authority (Opposite Party No.2) to conclude the Disciplinary Proceeding within a period of two months by taking into consideration the aforesaid observation made by this Court as well as the provisions contained in Rule-7 of OCS(Pension) Rule, 1992 and the judgment of the Hon’ble Supreme Court in Suchismita Mishra’s case (supra) by passing a final speaking and reasoned order. Final order so passed be communicated to the Petitioner within two weeks from the date of passing final order. 5. Accordingly, the Writ Petition is disposed of. Issue urgent certified copy of this order as per Rules. ( A.K. Mohapatra ) Judge RKS Page 5 of 5. Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Reason: Authentication Location: High Court of Orissa Date: 19-Apr-2024 14:19:28