The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.19887 of 2022 ..... Niranjan Sutar Petitioner Mr. B.K. Mohapatra, Advocate -versus- ..... 1) State Of Odisha 2) Odisha University Of Technology 3) Biju Patnaik University of Technology Opposite Parties Mr. S. Rath, ASC Mr. S. Palit, Sr. Advocate along with Mr. A. Mishra, Advocate (Opp. Party No. 2) Mr. S. Tibrewal, Advocate on behalf of Mr. P.K. Parhi, Advocate (Opp. Party No. 3) THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY CORAM: ORDER 25.04.2024 Order No. 13 1. This matter is taken up through hybrid mode. 2. Heard Mr. B.K. Mohapatra, learned counsel appearing for the Petitioner, Mr. S. Rath, learned Addl. Standing Counsel appearing for the State, Mr. S. Palit, learned Sr. Counsel appearing for Opp.
Legal Reasoning
State of Odisha & Ors.). This Court in Para 14 of the said Judgment has held as follows:- “14. Applying the above principles, as laid down by the apex Court as well as this Court, to the present context, the disciplinary proceeding against the petitioner has been initiated, as it reveals from memo of charge under Annexure-1 series dated 13.09.2005, only on the basis of his involvement in Cuttack Vigilance P.S. Case No. 15 of 2004 registered under Section 13 (2) read with Section 13 (1) (e) of the Prevention of Corruption Act, 1988 and, as such, such vigilance case is pending since 2004. Whether the petitioner acquired disproportionate property or not. that will be decided by the appropriate forum, while trial in Vigilance Case No. 15 of 2004 will be concluded. If the memorandum of charges in Annexure-1 series dated 13.09.2005 itself indicates that because of pendency of such vigilance case the disciplinary proceeding was initiated against the petitioner and in the meantime fifteen years have passed and the petitioner, on attaining the age of superannuation, has already retired from service on 30.04.2020 and, as such, the petitioner has already submitted his list of defence witnesses on 01.10.2012, but, thereafter, no further progress has been made since last eight years in the departmental proceeding. as a result of which the petitioner has already sustained mental agony due to pendency of such departmental proceeding during his service career and if it is allowed to continue after retirement, the petitioner will again be prejudiced, when for the self same reason a vigilance case is Page 4 of 7. still pending before the appropriate criminal forum. As such, on careful consideration of memorandum of charges and the magnitude of misconduct, which has been alleged against the petitioner, this Court is of the considered view that the same is the subject matter of consideration by the trial Court in Vigilance P.S. Case No. 15 of 2004 registered under Section 13 (2) read with Section 13 (1) (e) of the Prevention of Corruption Act, 1988. As such, there has been inordinate delay in conclusion of disciplinary proceeding, as 15 years have already passed in the meantime, and the petitioner superannuated from service since 30.04.2020. Thereby, there is no valid and justifiable reason for continuance of the disciplinary proceeding after superannuation of the petitioner from service, even if the same was initiated during his service period.” 5. Even though notice of the writ petition has been issued since 12.08.2022, but no counter affidavit has been filed by Opp. Party No. 3. But Mr. Tibrewal appearing on behalf of Mr. Parhi, learned counsel appearing for Opp. Party No. 3 contended that even though the proceeding was initiated by BPUT on 24.04.2008 under Annexure-15, but it is Opp. Party No. 2, who is competent to dispose the same. It may be because of the latches of Opp. Party No.
Arguments
Party No. 2 along with Mr. A. Mishra and Mr. S. Tibrewal, learned counsel appearing for Opp. Party No. 3 on behalf of Mr. P.K. Parhi. 3. Petitioner has filed the present writ petition inter alia with the following prayer:- “Under the facts and circumstances stated above, it is therefore prayed that this Hon'ble Court may graciously be pleased to admit this case to be disposed of in the state of admission & after hearing both parties a writ in nature Mandamus may be issued thereby quashing the pending Page 1 of 7. disciplinary proceeding initiated against the petitioner vide BPUT Memorandum No.BPUT/754 dt.24.04.2008 filed under Annexure-15 on the ground of inordinate delay by applying the principles laid down by the Hon'ble Supreme Court and this Hon'ble Court in various similar nature of case and further be pleased to direct opp. parties to release all unpaid retirement benefits of the petitioner without further delay failing which they may be directed to pay interest on the amount which is due and admissible to the petitioner long back since he has retired from service on 30.04.2015. And further be pleased to pass any other orders, as would deem fit and proper in the given facts and circumstances of the case in order to give complete relief to the petitioner. And for this act of kindness, petitioner as duty bound shall ever pray.” 4. It is contended that Petitioner while continuing as a Reader in the Department of I & E, College of Engineering & Technology, Bhubaneswar, a proceeding was initiated against him by Opp. Party No. 3 vide Memorandum dtd.24.04.2008 under Annexure-15. It is contended that proceeding though was initiated in the year 2008 and Petitioner filed his written statement of defence, but no further progress was made to the proceeding in question with appointment of Enquiry Officer and conduct of enquiry as well as conclusion of the proceeding in accordance with law. 4.1. It is also contended that during pendency of the proceeding so initiated on 24.04.2008, Petitioner attained the age of superannuation having retired from service on 30.04.2015. It is contended that even though Petitioner has retired since 30.04.2015, but the proceeding is yet to be finalized and because of that Page 2 of 7. Petitioner is not getting his pension and other pensionary benefits as due and admissible. 4.2. Mr. Mohapatra, learned counsel for the Petitioner contended that since the proceeding is pending for the last 16 years and no progress has been made with appointment of Enquiry Officer after filing of the written statement of defence, the same is liable to be quashed on the ground on inordinate delay on the part of Opp. Party No. 3 in concluding the proceeding. In support of his aforesaid submission, Mr. Mohapatra relied on a decision of the Hon’ble Apex Court reported in (1998) 4 SCC 154 (State of Andhra Pradesh Vs. N. Radhakishan). Hon’ble Apex Court in Para 20 of the said Judgment has held as follows:- “20. In the present case we find that without any reference to records merely on the report of the Director General, Anti-Corruption Bureau, charges were framed against the respondent and ten others, all in verbatim and without particularising the role played by each of the officers charged. There were four charges against the respondent. With three of them he was not concerned. He offered explanation regarding the fourth charge but the disciplinary authority did not examine the same nor did it choose to appoint any enquiry officer even assuming that action was validly being initiated under the 1991 Rules. There is no explanation whatsoever for delay in concluding the enquiry proceedings all these years. The case depended on records of the Department only and the Director General, Anti-Corruption Bureau had pointed out that no witnesses had been examined before he gave his report. The Enquiry Officers who had been appointed one after the other had just to examine the records to see if the alleged deviations and constructions were illegal and unauthorised and then as to who was responsible for condoning or approving the same against the bye-laws. It is nobody's case that the respondent at any stage tried to obstruct or delay the enquiry proceedings. The Tribunal rightly did not accept the explanations of the State as to why delay occurred. In fact there was hardly any explanation worth Page 3 of 7. consideration. In the circumstances the Tribunal was justified in quashing the charge memo dated 31-7-1995 and directing the State to promote the respondent as per recommendation of the DPC ignoring memos dated 27-10- 1995 and 1-6-1996. The Tribunal rightly did not quash these two latter memos.” 4.3. Learned counsel for the Petitioner also relied on a decision of this Court reported in 2021 (II) OLR 719 (Dhiren Kumar Barik Vs.
Decision
2, the proceeding has not been disposed of. 6. Per contra, Mr. S. Palit, learned Sr. Counsel appearing for Opp. Party No. 2 contended that Opp. Party No. 2 is unable to take up the issue as Opp. Party No. 3 is not forwarding the enquiry report. In the alternate the following stand has been taken by Opp. Party No. 2 in Para 9, 10 & 11 of the counter affidavit. The same is reproduced hereunder:- “9. That, it is humbly and respectfully submitted here that the Opposite Party No. 2 has already sought for the State Page 5 of 7. Government's approval for release of the arrear provisional pension for the period from 25.01.1994 to 10.06.2006, as per the 2006 Revised pay-scale as well for the grant of provisional pension as per the revised payment under the 7th ORSP 2017. The said arrears and revisions may be granted in accordance with the approval by the State Government, as and when such approval is obtained. 10. That, it is humbly and respectfully submitted here that in respect to the relief seeking "Revised pension and regular pension to be paid for the period of 2006-2015 mentioned as medical leave period", the payment directly depends on the proceeding pending before the Government as presented by BPUT and such payment of the relief sought cannot be paid unless the final decision has been declared. (Copy of the letter dated 06.05.2022, 05.07.2022 & 08.07.2022 are annexed herewith as Annexure-B/2 series) 11. That, it is humbly and respectfully submitted here that the Opposite Party No.2 has been repeatedly sending reminder to BPUT regarding submission of Inquiry report for the disciplinary proceeding drawn against the petitioner. The enquiry report is still awaited from registrar BPUT Odisha, Rourkela.” 7. Having heard learned counsel appearing for the Parties and considering the submission made, this Court finds that Petitioner while continuing, the proceeding was initiated by Opp. Party No. 3 on 24.04.2008 under Annexure-15. Even though the proceeding was initiated in the year 2008, but neither any document has been filed by Opp. Party No. 3 in spite of being noticed since 12.08.2022 showing disposal of the proceeding in question nor the status of the proceeding. The stand taken by learned counsel appearing for Opp. Page 6 of 7. Party No. 3 that Opp. Party No. 2 is competent to take up the proceeding and finalize it in accordance with law is not acceptable in view of the submission made by the learned Sr. Counsel appearing for Opp. Party No. 2 and stand taken by Opp. Party No. 2 in its counter vide Para 9, 10 & 11. 7.1. Considering the submission made, this Court finds that the proceeding in question was initiated on 24.04.2008 under Annexure- 15. Since the proceeding has not yet been disposed of and plea taken by Opp. Party No. 3 is not accepted by Opp. Party No. 2, this Court on the ground of inordinate delay in concluding the proceeding and placing reliance on the decisions as cited supra, is inclined to quash the proceeding in question. While quashing the same, this Court directs Opp. Party Nos. 1 & 2 to take appropriate step for release of the retiral benefits as due and admissible in favour of the Petitioner within a period of three (3) months from the date of receipt of this order. 8. The writ petition is disposed of accordingly. Sneha (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-May-2024 11:49:42 Page 7 of 7.