The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.14288 of 2023 Bibhuti Bhusan Bhuyan …. Petitioner State of Odisha & others …. Opposite Parties Mr. K.K. Swain, Advocate -versus- Mr. Tarun Pattnaik, A.S.C. JUSTICE A.K. MOHAPATRA CORAM: Order No.
Decision
ORDER 09.05.2023 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned counsel for the State. Perused the writ petition as well as documents annexed thereto. 3. The present writ petition has been filed by the Petitioner with the following prayers: “Under the above circumstances, it is humbly prayed that the writ petition may be allowed; And (A) the very issued quashing a writ of mandamus or an appropriate writ may be initiation of disciplinary proceeding against the petitioner i.e. Memorandum of Charges dated 01.06.2011 under Annexure-3, second show cause notice dated 17.10.2013 under Annexue-7 and the final order of punishment dated 08.11.2021 passed by the Principal Secretary to Government of Odisha in Cooperation Department, Bhubaneswar under Annexure-12 and necessary direction may be // 2 // made to the opposite parties to release the final pension and other retirement benefits in favour of the petitioner, within a time to be stipulated by this Hon’ble Court. (B) any And or direction/directions may be issued so as to give complete relief to the petitioner.” order/orders other 4. It is submitted by the learned counsel for the Petitioner that the initially the Petitioner was appointed as Assistant Registrar of Cooperative Societies in the year 1977. Thereafter, he was promoted to the rank of Deputy Registrar. Then by virtue of Notification dated 24.07.2009, he was promoted to the rank of Additional Registrar of Cooperative Societies. While continuing as such, on attaining the age of superannuation w.e.f. 31.07.2010, he has retired from service. After retirement of the Petitioner from service, a Disciplinary Proceeding was initiated against him under Rule 15 of the O.C.S. (CCA) Rules, 1962 read with Rule 7(2) of the O.C.S. (Pension) Rules, 1992 vide Memorandum of Charges dated 01.06.2011. It is further contended by the leaned counsel for the Petitioner that in the aforesaid Disciplinary Proceeding which was initiated against the Petitioner after his retirement, he filed his written statement of defence denying all the charges leveled against him on 25.06.2011. In course of Disciplinary Proceeding, the Enquiring Officer conducted an enquiry and submitted his report on 10.04.2013 recommended for reduction of pension of the Petitioner by 20% for a period of three years under Rule 7(2) of the O.C.S. (Pension) Rules, 1992 as a measure punishment keeping in view the degrees of his irregularities committed by the Petitioner. While this was so, the Petitioner filed a representation against the report submitted by the Enquiring Officer on 18.05.2013. In the meantime, Disciplinary Authority issued a show cause notice dated 17.10.2013 proposing // 3 // withdrawal of 100% pension of the Petitioner under Rule-7(1) of the O.C.S. (Pension) Rules, 1992 as punishment. However, challenging the second show cause notice dated 17.10.2013, the Petitioner approached the Odisha Administrative Tribunal, Bhubaneswar by filing O.A. No.3239 of 2013. He was also challenged the Disciplinary Proceeding, which was initiated after retirement of the Petitioner. Learned counsel for the Petitioner further contended that vide order dated 15.11.2013 passed in the above noted O.A., learned Odisha Administrative Tribunal, Bhubaneswar was pleased to stay the further disciplinary proceeding. 5. While the matter was pending before the Odisha Administrative Tribunal, Bhubaneswar, the Odisha Administrative Tribunal, Bhubaneswar has been abolished and the O.A. has been transferred to this Court and it has been reregistered as WPC(OA) No.3239 of 2013. Initially the above noted WPC(OA) No.3239 of 2013 was disposed of by a coordinate Bench of this Court with a direction to consider the representation of the Petitioner under Annexure-8 vide order dated 17.08.2021. Thereafter, the Petitioner filed an interlocutory application bearing I.A. No.40 of 2021 for recalling the order dated 17.08.2021. Learned coordinate Bench of this Court after hearing the learned counsel for the parties vide order dated 22.09.2021 recalled the order dated 17.08.2021. Accordingly, the WPC(OA) No.3239 of 2013 was restored to file. Learned counsel for the Petitioner further contended that after passing of the order dated 17.08.2021, the Disciplinary Authority imposed a punishment vide order dated 08.11.2021 thereby a punishment of withdrawal of 100% pensionary benefit to the Petitioner as per Rule 7(1) of the O.C.S. (Pension) Rules, 1992. // 4 // 6. Learned counsel appearing for the Petitioner at this juncture contended that although the order dated 17.08.2021 was recalled vide order dated 22.09.2021, i..e, prior to the final order of punishment was passed on 08.11.2021, the authorities despite such information being provided by the Petitioner went ahead and pass the final order imposing punishment on the Petitioner. Learned counsel appearing for the Petitioner further contended that finally the above noted WPC(OA) No.3239 of 2013 was disposed of by another coordinate Bench with an observation that since the authorities have passed final order dated 08.11.2021, therefore, the prayer made in the said writ petition has become infructuous and, accordingly, the said writ petition was disposed of as infructuous vide order dated 29.03.2023. Challenging the final order dated 08.11.2021 on two grounds that by the time the said order was passed, WPC(OA) No.3239 of 2013 was restored to file and pending before this Court and that the order dated 08.11.2021 is a non-speaking order, the Petitioner has filed the present writ petition. 7. Learned Additional Standing Counsel appearing for the State- Opposite Parties, on the other hand, submitted that the authorities after taking into consideration the entire factual background of the case has passed the impugned order dated 08.11.2021 under Annexure-12. He further submitted that although WPC(OA) No.3239 of 2013 was restored, however, there is no specific order restoring the impugned order which was passed by the Tribunal earlier. In such view of the matter, the authorities proceeded with the matter and pass the final order on 08.11.2021. In such view of the matter, learned Additional Standing Counsel submitted that there was no bar to proceed with the disciplinary proceeding and pass the final order. Accordingly, it is submitted that the writ petition is devoid of merit // 5 // and the same is liable to be dismissed. 8. On a careful consideration of the contentions raised by the learned counsel appearing for the respective parties and on perusal of the documents filed with the writ petition, this Court is of the view that initially WPC(OA) No.3239 of 2013 was disposed of with a direction to consider the representation of the Petitioner, however, the same was restored subsequently to the file. It is also evident from the record that while restoring the WPC(OA) No.3239 of 2013, the interim order was not extended/restored. Therefore, technically there is no bar in proceeding with the Disciplinary Proceeding. Further, this Court is of the considered view that once the fact the WPC(OA) No.3239 of 2013 was restored by recalling the order dated 17.08.2021, the authority should have waited for final order to be passed in the said restored WPC(OA). Moreover, on perusal of the order dated 08.11.2021, this Court is also of the considered view that the same is a non-speaking order as the Disciplinary Authority has not discussed anything about the facts of the case. 9. On a close scrutiny of the order dated 08.11.2021 under Annexure-12, it appears that the authority reflected the aforesaid WPC(OA) matter in detail in the said order, however, nowhere there is any discussion on the merit of the matter. In such view of the mater, this Court is of the view that the order dated 08.11.2021 under Annexure-12 is unsustainable in law and, accordingly, the same deserves to be set aside and the same is hereby set aside. Further, the matter is remanded back to the Opposite Party No.1 to consider the matter afresh by providing an opportunity of hearing to the Petitioner and to dispose of the Disciplinary Proceeding in question by passing a reasoned and speaking order within a period of six weeks from the // 6 // date of communication of this order by the Petitioner. The Opposite Party No.1 shall act upon production of certified copy of this order by the Petitioner. 10. With the aforesaid observations/directions, the writ petition is disposed of. ( A.K. Mohapatra ) Judge Debasis Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Reason: Authentication Location: orissa high court Date: 15-May-2023 13:17:51