The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAC) No.1437 of 2009 Maheswar Nanda …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY
Decision
ORDER 09.03.2023 Order No 03. 1.This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. A.K. Mishra (2), learned counsel for the Petitioner and Mr. D.K. Mohanty, learned Addl. Standing Counsel appearing for the Opp. Parties. 3. The Petitioner has filed the present writ petition challenging the order of punishment passed under Annexure-8 and confirmed by the Appellate Authority vide his order under Annexure-12. 4. It is contended that just prior to his retirement a proceeding was initiated against the Petitioner vide Annexure-3 on 20.03.2002 under Rule 15 of the OCS (CCA) Rules, 1962. In the said proceeding the Petitioner duly participated in the enquiry even after his retirement on 31.03.2002. It is contended that after concluding the enquiry the Enquiry Officer submitted his report under Annexure-5 inter alia with the following finding:- “(b) As regards, shortage of the Gunny bags, it is mentioned that, there is vast transaction of seeds through Sadar Godown, // 2 // Jagatpur in busy seasons. The accounts of Gunny bags should have been properly maintained by the Agril Overseer (Sr Nanda). In course of inquiry, Sri Nanda, Ex-Agril. Overseer (Sri Nanda). In course of inquiry Sri Nanda, Ex-Agril. Overseer could not adduce any evidence/satisfactory statement about the reasons of the shortage of the Gunny bags. It is convinced that due to lack of his personal supervision the gunny bag account could not be maintained for which Sri Nanda, Ex-Agril. Overseer is responsible. As such, Rs.4914.00 towards cost of 273 nos. of Gunny bags and Rs. 3373.78 towards cost of 294 Gunny bags should be recovered from the D.C.R.G. of Sri Nanda, Ex-Agril. Overseer.” 5. Learned counsel for the Petitioner contended that even though the Enquiry Officer held the Petitioner liable to pay a sum of Rs. 4,914/- and Rs. 3,373/- towards the cost of 273 and 294 nos. of gunny bags, but the Disciplinary Authority while issuing the 2nd show-cause on 25.05.2004 under Annexure-6 without any reason or basis, held the Petitioner liable to pay a sum of Rs.38, 800/-. It is contended that since the Enquiry Officer held the Petitioner liable to an extent of Rs.8,287/-, but the Disciplinary Authority without differing with the finding of the Enquiry Officer issued the impugned show-cause under Annexure-6. It is contended that since no note was annexed to the 2nd show-cause citing the reason for differing with the finding of the Enquiry Officer, the said show- cause is a nullity in the eye of law due to non-compliance of the provision contained under Rule 15 of the OCS (CCA) Rules, 1962. 6. It is contended that even though the Petitioner gave a detailed reply to the 2nd show-cause under Annexure-7, but the Disciplinary Authority-O.P. No. 2 passed the order of punishment by holding the Page 2 of 4 // 3 // Petitioner liable to pay a sum of Rs. 38,000/-, which is to be recovered from his retirement gratuity vide order dtd.19.02.2008. It is further contended that even though the Petitioner preferred an appeal before the Govt.-O.P. No. 1 under Annexure-9, but the Opp. Party No. 1 confirmed the order by rejecting the appeal vide order dtd.25.10.2008 under Annexure-12. 7. Mr. Mishra, learned counsel for the Petitioner contended that basing on the order passed under Annexure-8 and confirmed under Annexure-12, a sum of Rs. 38,000/- has been recovered from the retirement gratuity of the Petitioner. It is further contended that since no disagreement note is there while issuing the 2nd show- cause under Annexure-6, the order of punishment passed basing on the said show-cause is not sustainable in the eye of law. 8. Mr. D.K. Mohanty, learned ASC on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that even though the proceeding was initiated under Rule 15 of the OCS (CCA) Rules, 1962, but since in the meantime the Petitioner retired from his service on 31.03.2002, the proceeding was converted to a proceeding under Rule 7 of the OCS (Pension) Rules, 1992 vide letter No. 1493 dtd.19.07.2005. Subsequently, basing on the order passed by the Govt. an amount of Rs.38,000/- was directed to be recovered from the retirement gratuity of the Petitioner. Accordingly, it is contended that the proceeding has been conducted strictly in accordance with law and there is no illegality or irregularity with the same. 9. Having heard learned counsel appearing for the Parties and after going through the materials available on record, it is found that the Page 3 of 4 // 4 // proceeding against the Petitioner under Annexure-3 was initiated under Rule 15 and the 2nd show-cause was issued on 25.05.2004 prior to conversion of the proceeding to a proceeding under Rule 7 of the OCS (Pension) Rules, 1992. It is also found that while issuing the 2nd show-cause under Annexure-6, the Disciplinary Authority never gave his disagreement note for not agreeing with the finding of the Enquiry Officer. Since no disagreement note is given while issuing the 2nd show-cause, the same amounts to non- compliance of the provision contained under Rule 15 of OCS (CCA) Rules, 1962. Accordingly, the punishment imposed on the Petitioner to an extent of Rs.38,000/- as per the considered view of this Court is not sustainable in the eye of law. Due to such non- compliance of the statutory provision, this Court is inclined to interfere with the impugned order at Annxure-8 and confirmed by the Appellate Authority under Annexure-12. While interfering with both the orders, this Court is inclined to quash the same. 10. While quashing both the orders, this Court directs Opp. Party No. 1 to release the recovered amount of Rs. 38,000/- in favour of the Petitioner along with the interest @ 6% per annum all through within a period of one (1) month from the date of receipt of this order. 11. The writ petition is disposed of accordingly. (Biraja Prasanna Satapathy) Judge Sneha Page 4 of 4