The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.6614 of 2022 Basanta Kumar Panigrahi Petitioner Mr. Karunakar Jena, Advocate …. -versus- Odisha Small Industries Corporation Ltd. and others …. Opposite Parties Mr. Jatindra Kumar Mohapatra, Advocate CORAM: HON’BLE MR. JUSTICE MURAHARI SRI RAMAN ORDER 18.06.2024 Order No. 06. This matter is taken up through Hybrid Mode. 2. The petitioner, Junior Assistant, suspended on 09.10.2001, faced disciplinary proceeding onduct in terms of Rules 48(2) and 48(5) of the Orissa Small Industries Corporation Employees Service Rules, 1979 (for short “the OSIC Rules, 1979”) for gross impropriety, dishonesty, negligence in duty, fraud and misappropriation in dealing with the properties of the Corporation while working as Depot-in-Charge of Raw Materials Depot, Keonjhar during the period from 13.12.1991 to 25.08.2001. As a result of enquiry, the proceeding culminated on 21.06.2003 and the petitioner was discharged from service, where direction was issued for recovery of misappropriated amount along with interest @18% per annum till the date of final recovery vide Office Order No.4038 dated 21.06.2003. Page 1 of 7 3. Being aggrieved by the said order dated 21.06.2003, the petitioner filed an appeal invoking provisions of Rule 55 of the OSIC Rules, 1979 before the Chairman of the Corporation on 11.12.2004. Since no order was passed by the Appellate Authority, the petitioner filed a writ petition bearing W.P.(C) No.6415 of 2005,
Decision
which came to be disposed of on 23.09.2005 with a direction to the Chairman of the Corporation for early disposal of the appeal. Ultimately, the petition succeeded in appeal, wherein the Chairman- cum-Appellate Authority set aside the order of punishment dated 21.06.2003 and remanded the matter to the Disciplinary Authority with a direction to consider and dispose of the matter afresh on the available records within one month. 4. The petitioner submitted his representation dated 10.02.2006 to ventilate his grievance before opposite party no.1 and requested to pay the subsistence allowance and salary as per the provisions of Rule 54 of the OSIC Rules, 1979. Since the Disciplinary Authority did not dispose of the matter within time stipulated, the petitioner approached the Chairman-cum-Appellate Authority. However, the Disciplinary Authority directed to frame charges relating to the alleged unauthorized credit sales and imposed punishment for recovery of shortage of raw material of Rs.7,26,289.48 from the petitioner. Against the said order dated 04.02.2006, the petitioner filed appeal on 10.03.2006, which was rejected by the Chairman- cum-Appellate Authority vide order dated 05.09.2006. The petitioner challenged the said order of rejection before this Court by filing writ petition being W.P.(C) No.15714 of 2007, praying therein to quash the order of suspension dated 09.10.2001 and the Page 2 of 7 charge sheet dated 01.11.2001 drawn by opposite party no.1 against the petitioner and order dated 05.09.2006 of the Appellate Authority and the additional charges framed against the petitioner vide order No.745 dated 04.02.2006. The said writ petition was disposed of by this Court vide order dated 09.11.2017 with a direction to the opposite parties to conclude the disciplinary proceeding within stipulated period. Accordingly, after filing of show-cause reply to the notice received from Disciplinary Authority, the disciplinary proceeding was concluded by Office order dated 12.09.2018 imposing certain punishments, which are as follows:- “(i) (ii) (iii) Outstanding amount towards unauthorized credit sale of Rs.78,76,116.00 shall be recovered from him under Rule 48(1)(d) of the OSIC Employees Service Rule, 1979. One increment of Sri Panigrahi be stopped with cumulative effect. Period of suspension of Sri Panigrahi for the period from 09.10.2001 to 03.05.2012 shall be treated as leave.” 5. Being aggrieved against the order of punishment dated 12.09.2018 passed by the Managing Director-cum-Disciplinary Authority, the appeal was filed under Rule 48(1)(d) of the OSIC Rules, 1979. The appeal was allowed in favour of the petitioner vide order No.1725/OSIC dated 27.05.2020, which is to the following effect:- that found impugned punishment dated “I 12.09.2018 passed by the Disciplinary Authority on the basis of the enquiry report dated 02.02.2014 is not justified and not sustainable and accordingly, I set aside the impugned punishment given by the Disciplinary Authority, and in the present facts and circumstances, I direct to reconcile the credit and Page 3 of 7 recovery registers relating to Raw Material Depot, Keonjhar at present Branch Office, Keonjhar for the alleged period in presence of the DO within a period of one month hence and till then no recovery will made the salary of Sri from Panigrahi.” 6. Learned counsel for the petitioner submitted that though an application for passing interim order of stay of operation of order of punishment dated 12.09.2018 was moved before the appellate authority, no order was passed. Therefore, the authority concerned started deducting a sum of Rs.4,379/- per month from the month of October, 2018 till the month of April, 2020. He submitted that since the appeal came to an end by setting aside the punishment with further direction for reconciliation of amount in the Chartered Accountant has intimated the General Manager (OSIC) as follows:- to above it was discussed letters, kindly ref. “Sir, to our Subsequent discussion with your learned officer GM (Finance) in presence of Manager (Finance) on 18/04/2022, Where in to ascertain possibility of reconciliation of the book of accounts & records to substance the charge of recovery framed & claims lodged on Mr. B.K. Panigrahi, Sr. Assistant, B.O., Keonjhar. On your advice, we have discussed with the accounts & finance division of HO, We also examined the availability of books of accounts & to form our opinion as to possibility of taking up the assignment of special audit for a purposeful conclusion, Now after checking of documents records (as follows), it is observed that I. Consolidated year wise customer ledger from 1991 to 2001 are available at HO. II. Customer ledger available only for six year (1993-94, 1994-95, 1995-96, 1999-2000, 2001- 02) Page 4 of 7 III. Customer ledger not available for FY 1990-91, 1991-92, 1992-93, 1996-97, 1997-98 & 1998- 99) Statement prepared by M/S OSIC only debit balance of party of Rs.88,27,424,47 & not considered credit balance of party of Rs.1,51,97,102.75 IV. Under the above circumstances to arrive at correct situation is not possible as relevant & important books of accounts & records are not available.” 7. He further submitted that the recovery of amount was not justified even while the petitioner moved a petition for not to deduct amount before the appellate authority. He also submitted that since the punishment was set aside by the appellate authority and reconciliation could not be possible for non-availability of record, the petitioner cannot be held responsible. Hence, he has prayed for a direction to refund the amount along with interest @12% per annum. 8. Learned counsel for the opposite parties fairly conceded that there is no dispute regarding aforesaid facts and affirmed that the petitioner is entitled for refund because the appellate authority’s order setting aside the punishment has been accepted by the Corporation. However, he has strong objection to grant of interest. 9. This Court has taken note of the aforesaid chronology of events as submitted by learned counsel for the petitioner that an amount of Rs.78,822/- has been due for refund to the petitioner. Learned counsel for the opposite parties submitted that since the conciliation proceeding was taken up expeditiously by the Corporation, this amount can be refunded within a stipulated period that may be directed by this Court. Therefore, it is a fact that even Page 5 of 7 after the order in appeal has attained finality the amount has not yet been refunded to the petitioner. 10. This Court passed an order dated 26.07.2021 in W.P.(C) No.20494 of 2021, which is quoted hereunder:- from the date his “Heard learned counsel for the petitioner. The petitioner has filed this writ petition seeking direction to the opposite parties to regularize his services and provide all service benefits and give promotion juniors have been promoted to the next higher post. He further seeks direction to the opposite parties to refund the amount deducted from his monthly salary from October, 2018 to April 2020 with interest @ 12% per annum. In course of hearing, learned counsel for the petitioner states that highlighting the grievances, the petitioner has made representation to opposite party no.2 vide Annexure-14 and the same may be directed to be considered within a stipulated time. Considering the limited grievance of the petitioner, this Court, without expressing any opinion on the merits of the case, disposes of the writ petition directing opposite party no.2 to consider the representation filed by the petitioner vide Annexure-14 and pass appropriate order in accordance with law within a period of three months of date the authenticated/certified copy this order.” production from of 11. Learned counsel for the parties conceded that after aforesaid order has been passed by this Court, a special audit was conducted, wherein the Chartered Accountants have submitted the audit report and issued letter to General Manager (Finance), OSIC Limited on 25.04.2022 stating that “under the above circumstances to provide correct situation is not possible as relevant and important books of accounts & records are not available”. 12. Considering the submissions made by the parties and after going through the records, this Court is of the opinion that in spite of such a fact has been recorded by the auditors, the Corporation Page 6 of 7 has not yet been refunded the aforesaid amount of Rs.78,822/-. Hence, this Court is inclined to accede to the contention of learned counsel for the petitioner that the petitioner is entitled to interest of such refundable amount which is not in dispute before this Court. 13. In the result, it is directed that the said amount of Rs.78,822/-shall be refunded to the petitioner within a period of two weeks along with interest @9% per annum from 25.04.2022 till its actual payment. 14. With the aforesaid observation and direction, the writ petition stands disposed of. Laxmikant (M.S. Raman) Judge Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: high court of orissa, cuttack Date: 18-Jun-2024 16:40:03 Page 7 of 7