The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAPC) No.05 of 2018 Snehalata Mohanty & Ors. …. Petitioners Mr. B.P. Das, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. S.K. Samal, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 13.12.2023 Order No 15. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. B.P. Das, learned counsel for the Petitioners and Mr. S.K. Samal, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. The Petitioners have filed the present writ petition inter alia with the following prayer:- “It is therefore humbly pray that your Lordship would graciously pleased to admit this Original Application, call for the LCR from the Finance Department, Govt. of Odisha and allow this Original Application by quashing Annexure- 3, 7 and 11 by directing the Respondents to release four outstanding increments and to pay the duty pay for the period of suspension and other consequential benefits as admissible to the applicant.” // 2 // 4. It is contended that the deceased employee while working as a Sr. Clerk, a proceeding was initiated against him under Rule 15 of OCS (CCA) Rules, 1962. It is contended that in the said proceeding Enquiry Officer after conducting the enquiry submitted the report vide Annexure-3 with the following conclusion:- “I have heard the delinquent most patently and examined the documents carefully with reference to prescribed procedures and codal provisions, in an open mind. I reasonably feel that owing to lack of proper scrutiny of the joining reports, attested specimen signatures, L.P.C. and the bills, the fraudulent drawal of such a huge amount could be possible. Had the omissions and commissions been pointed out in the initial checking an and bills returned with required objections, the fraud could have been prevented. The imposter Headmaster Sri Mohapatra joined on 8.11.96 F.N. being relieved from a distance place like Junagath on 31.10.96 A. N. Thus he did not avail admissible joining time in Full He has received the L.F.C. and got it countersigned by the 3.1. of School on 12.11.96 and presented first bill in the Sub Treasury on 11.11.96 which is very uncommon and unprecedented, usually L.P.C. is not received so quickly as in this case within a short an of 5 days, he has presented five bills which should have raised doubt. Besides, when the G.P.F. bill of the Headmaster himself involving Rs. 1, 20,000/- was presented, it should have been considered as to how could the D.P.I. office sanction the advance on 13.11.96 when Sri Mohapatra has joined on 8.11.96. Processing of an application of G.P.F. advance received from field must take 10-15 days, right form diarisation to issue even if the person concerned makes personal approach at the all levels and peruses the file. Further doubts should have been raised as to how the sanction order was received in the Sub- Treasury on 15.11.96 30 quickly. Although Sri Mohanty has taken Page 2 of 8 // 3 // contention that postal transit from Bhubaneswar. to Kakatpur take normally 2 days, I am sure from the facts and circumstances of the case that the delinquent has personally delivered the Treasury copy of the forged sanction order in Sub-Treasury which has been entertained. From the above sequence of events, and manner of presentation of bills in quick succession, which is very uncommon, the Treasury should have raised sufficient doubt and checked all aspect of the Rules before passing of the bills, particularly the G.F.F. bills involving huge sum. It is unfortunate that instead of thorough checking L and return of bills with objection, the Sub. Treasury has cleared the bills on the same day with utmost haste. Hence complicity, connivance of Sub-Treasury staff associated and involved in passing of bills, is not ruled out. This is an instance where the imposter drawing officer has acted most cautiously & the Treasury staff most negligently and superficially. Sri J.K. Mohanty, Sr. Clerk i.e. the delinquent and the Sub-Treasury Officer (Tanasilar, Kakatpur are found to be involved in the process and responsible for passing the bills. Since no accountant is posted at this Sub-Treasure and the Sub- Treasury Officer is in additional charge only, the responsibility of senior clerk is enough and most important. He is expected to be alert, vigilant, scrutinizing and put forth defects, omissions and commission in respect of each and every bill presented to Sub- Treasury before the officer concerned, as the later remains busy for his Tahasil work. In the instant case Sri Mohanty has not discharged his duties properly and effectively and misled the Sub Treasury Officer in passing of the bills. From the aforesaid analysis of the incidence, I am reasonably of the firm opinion that all charges are fully substantiated and the delinquent is proved guilty. Although he has pleaded innocence, good faith and purity of conduct, I am not inclined to accept the submissions. The undue interest shown and hurriedness in which he has passed the bills, and allowed the book of drawal to the imposter for entry of Page 3 of 8 // 4 // G.P.F. bills on 15.11.96 and subsequent manipulations of records to defend himself, are the positive evidences of his complicities and obligue motive. Due to his contributed insincerity, inefficiency and negligence, Government have suffered a loss of s. 1, 28, 225, which he is required to share the responsibility along with the Sub-Treasury Officer. A person with such doubtful integrity does not deserve to continue in Government job. However termination would be too harsh a punishment to the delinquent, considering his nos. of years service and serious distressing it on the family. However it may kindly be considered to award the punishments to the delinquent, taking a liberal view of the matter. a) He should not be given any further promotion; b) He should not be entrusted with bill passing work. c) He should not be posted in his nearby local area. d) The loss is to be recovered from him in due proportion after final investigation by police which is now in process in case the imposter is not detected and amount realised from him.” 4.1. Learned counsel for the Petitioner contended that on receipt of the enquiry report, Petitioner in terms of the provisions contained under the unamended provisions of Rule 10(1)(a) of OCS (CCA) Rules, 1962 issued the 1st show-cause on 16.05.1998 under Annexure-5. It is contended that in the 1st show-cause the Disciplinary Authority never indicated any disagreement note to the enquiry report or to the proposed punishment and simply permitted the Petitioner to file his representation against the finding of the Enquiry Officer. The deceased employee on receipt of the 1st show- cause under Annexure-5, submitted his reply under Annexure-6. However, while passing the impugned order on 09.08.1999 under Annexure-7, the Disciplinary Authority though accepted the punishment suggested by the Enquiry Officer, but in addition to the Page 4 of 8 // 5 // punishment so suggested imposed two other punishment i.e. stoppage of two consecutive increment with cumulative effect and not to consider the case of the deceased employee for promotion till end of his career. 4.2. Rule 10(1)(a) of OCS (CCA) Rules, 1962 is reproduced hereunder:- the inquiring authority and where “Furnish to the Government servant a copy of the report of the disciplinary authority is not the inquiring authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the inquiring authority and give him a notice stating the penalty proposed to be imposed on him and calling upon him to submit within a specified time such representation as he may wish to make against the proposed penalty: Provided that in every case in which it is necessary to consult the Commission under the provision of the Constitution of India and the Orissa Public Service Commission (Limitation of Functions) Regulations, the record of inquiry together with a copy of the notice given under Sub-clause (a) and the representation, if any, received within the specified time in response to such notice shall be forwarded by the disciplinary authority to the Commission for its advice.” 4.3. It is contended that since Petitioner while being issued with the 1st show-cause in terms of the unamended provisions of Rule 10(1)(a), no further punishment was suggested by giving a disagreement note as provided, the order of punishment imposed in addition to the suggested punishment vide the impugned order dtd.09.08.1999 under Annexure-7 is not sustainable in the eye of law and requires interference of this Court. Page 5 of 8 // 6 // 5. Mr. Samal, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that the Enquiry Officer after conducting the enquiry submitted the enquiry report vide Annexure-3 by proposing the following punishment:- “a) He should not be given any further promotion; b) He should not be entrusted with bill passing work. c) He should not be posted in his nearby local area. d) The loss is to be recovered from him in due proportion after final investigation by police which is now in process in case the imposter is not detected and amount realised from him.” But the Disciplinary Authority since found that the charges framed against the Petitioner is serious in nature, in addition to the punishment suggested by the Enquiry Officer, two other punishments were imposed rightly against the deceased employee. It is also contended that provisions of the unamended Rule 15 of OCS (CCA) Rules, 1962 was followed at every stage of the proceeding and the deceased employee at no point of time has raised an objection with regard to non-compliance of any such provision. Since the order of punishment was passed by giving due opportunity of hearing to the deceased employee, there is no illegality or irregularity with the order of punishment so imposed against the deceased employee under Annexure-7. 6. Having heard learned counsel for the Parties and after going through the materials available on record, this Court finds that in the proceeding initiated against the deceased employee, Enquiry Officer while submitting the report under Annexure-3, suggested to impose the following punishment:- “a) He should not be given any further promotion; Page 6 of 8 // 7 // b) He should not be entrusted with bill passing work. c) He should not be posted in his nearby local area. d) The loss is to be recovered from him in due proportion after final investigation by police which is now in process in case the imposter is not detected and amount realised from him.” 6.1. It is found that on receipt of the enquiry report, Petitioner in terms of the unamended provisions contained under Rule 10(1)(a) of 1962 Rules, was issued with the 1st show-cause vide letter dtd.16.05.1998 under Annexure-5. While issuing the 1st show-cause, the Disciplinary Authority never gave his disagreement note to the report of the Enquiry Officer by suggesting any other punishment. Not only that in the impugned order available under Annexure-7, the Disciplinary Authority while accepting the punishment so suggested by the Enquiry Officer went on to impose two other punishment i.e. stoppage of two consecutive increment with cumulative effect and not to consider the case of the deceased employee for promotion till end of his career. 6.2. This Court after going through the unamended provisions contained under Rule 10(1)(a), is of the view that since while issuing the 1st show-cause, the Disciplinary Authority never disagreed with the finding of the Enquiry Officer and in the impugned order the Disciplinary Authority accepted the punishment so suggested by the Enquiry Officer, the Disciplinary Authority in view of such action should not have imposed two other punishment in addition to the punishment suggested by the Enquiry Officer. 6.3. In view of the same, this Court is inclined to quash the impugned order dtd.09.08.1999 so far as it relates to imposition of two other punishments in addition to the punishment suggested by Page 7 of 8 // 8 // the Enquiry Officer. Therefore, while upholding the punishments so imposed basing on the suggestion of the Enquiry Officer, this Court quash the other two punishments imposed against the deceased employee so reflected in the impugned order under Annexure-7. While quashing both the punishments, this Court directs Opp. Party Nos. 1 & 2 to extend the benefit as due and admissible to the deceased employee by taking appropriate step within a period of three (3) months from the date of receipt of this order. 7. The writ petition is disposed of with the aforesaid observation and direction. (Biraja Prasanna Satapathy) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Dec-2023 19:39:40 Page 8 of 8