The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C(OA) No.2656 of 2018 Nalinikanta Mohapatra …. Petitioner Mr. R. Rath, Advocate -versus- State of Odisha and Others …. Opposite Parties Mr. M.K. Balabantaray, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No.
Decision
ORDER 24.07.2024 0 02. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. At the outset, Mr. Rajib Rath, learned counsel for petitioner filed a memo inter alia stating therein that he may be allowed to appear before this Court as before and with a prayer to reconsider the order passed by this Court on 06.01.2024 in CONTC No.10826 of 2023. Considering the request made by Mr. R. Rath, learned counsel for the petitioner this Court allows him to appear before this Court from today itself. Memo so filed be kept in record. 3. Heard learned counsel for the parties. 4. Petitioner has filed the present Writ Petition inter alia challenging the initiation of the proceeding vide Memorandum dated 26.07.2018 under Annexure-5. Learned counsel for the Petitioner contended that // 2 // impugned proceeding so initiated, is not maintainable in view of the clear provisions contained under Rule 7(2)(b) of the OCS(Pension) Rules, 1992. Rule 7(2) of the Rules reads as follows:- “(2) (a) Such departmental proceedings referred in sub- rule (1) if instituted while the Government servant was in service, whether before his retirement or during his re- employment, shall, after the final retirement of the Government servant, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service: Provided that when the departmental proceedings are to instituted by an authority, subordinate Government that authority shall submit a report recording its finding to the Government. "(b) Such departmental proceedings as referred to in sub- rule (1) if not instituted while the Government servant was in service, whether before his retirement or during his re- employment – (i) Shall not be instituted save with the sanction of Government. (ii) Shall not be in respect of any event which took place more than four years before such institution; and the Government may direct and the procedure applicable (iii) Shall be conducted by such authority and in such in place as to accordance with departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service”. 4.1. It is contended that since petitioner retired from his service on attaining the age of superannuation on 31.05.2011 and the proceeding was initiated only on 26.07.2018 in respect of certain irregularities which had happened way back in the year 2001 to 2006, the proceeding in question could not have been initiated in Page 2 of 6 // 3 // view of the clear bar contained under Rule 7(2)(b)(ii) of the Rules. 4.2. It is also contended that the Tribunal while issuing notice of the matter vide order dated 27.11.2018 stayed the operation of both initiation of the proceeding under Annexure-5 and the sanction order issued by the Govt. under Annexure-4. It is accordingly contended that the proceeding and so also the sanction order issued by the Govt. under Annexure-4 and 5 are required to be quashed by this Court on the ground that the proceeding is not maintainable. 4.3. Mr. R. Rath, learned counsel for the petitioner in support of his submission relied on the decision of this Court in the case of Prasanta Kumar Barik Vrs. State of Odisha and Others (W.P.C(OA) No.3132 of 2018). This Court in Para 10 to 12 of order dated 17.10.2022 has held as follows:- “10. As counter to the submission of Mr. Babu, Mr. Rath, learned counsel for the Petitioner relied on the decision of this Court in the case of Sri P. Satyanarayan Patro vs. Orissa Power Transmission Corporation Ltd., Bhubaneswar reported in 2009(I) OLR 989, this Court in Para-10 of the said judgment has held as follows:- “10. As per the above provision of the Pension Rules, departmental proceedings, if not instituted while the government servant was in service, whether before his retirement or during his re-employment, shall not be instituted for any event (emphasis supplied) which took place more than four years before such institution. The charge framed against the petitioner was that due to his negligence in duty and lack of proper supervision, the two towers in questions which were constructed during the period 27.3.1987 to 30.3.1987 got uprooted. By the departmental proceeding was instituted against the petitioner, sixteen years had already elapsed from time the Page 3 of 6 // 4 // the event which took place in that year 1987. The submission of learned counsel for the opp. party that the period of four years would be counted from 2.6.2003, when the two towers got uprooted cannot be accepted. Because the misconduct for which the departmental proceeding was initiated was with regard to lack of supervision etc, while the towers in question were erected. No doubt, the inferior quality of the work could be known only after the towers got uprooted in the year 2003 and the opp. party had no knowledge about such bad workmanship prior to that. But there is nothing to show in the Pension Rules that the period of four years as envisaged in Rule 7 can also be counted from the date of knowledge. So, we are in agreement with the view of the learned counsel for the petitioner that the very initiation of the departmental proceeding is bad in law”. 11. Having heard learned counsel for the Parties and after going through the materials available on record, this Court finds that the proceeding has been initiated against the Petitioner in respect of an occurrence which takes place in between the period from 01.06.2001 to 29.02.2004. Therefore, the proceeding initiated against the Petitioner is contrary to the provision contained under Rule-7(2)(b) of the OCS (Pension), Rules, 1992. 12. Hence, in view of such clear provision contained under Rule-7(2)(b) of the OCS (Pension), Rules, 1992 and the decision governing in the field as cited (supra), this Court is inclined to quash the proceeding so initiated against the Petitioner under Annexure-2 and quash the same accordingly.” 5. Learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit so filed by O.P. No.1. The relevant stand taken in the counter reads as follows:- “That, before initiation disciplinary proceeding against the present applicant, the considered views of GA Department was ascertained as to whether departmental proceedings can be initiated against the applicant under Rule-7 of OCS (Pension) Rules, 1992 r/w Rule-15 of OCS (CC&A) Rules, 1962. The GA Department views (Annexure-A) opined that the findings of the special audit came to the knowledge of the disciplinary authority on 29.01.2016. As such, the date of ’event’ prescribed u/r-7 (2) (b) (ii) of the OCS (Pension) Rules, 1992 shall be construed as dtd.29.01.2016 considered their in Page 4 of 6 // 5 // in their for the purpose of counting the required four years of limitation of departmental proceeding against the retired employees. The GA Department have also advised to seek the considered views of Law Department in the matter prior to initiation of departmental proceedings against the erring retired employees. That,, the matter was also referred to the Law Department for their considered views for initiation of disciplinary proceedings against the applicant along with other three retired Govt. employees. The considered views Law Department (Annexure-B) have opined that the alleged mischief committed by the retired Engineers carry criminal as well as Civil liability, even at this stage, notwithstanding the bar contained in Rule 7 (2) (b) (ii) of OCS (Pension) Rules, 1992. That, it is humbly submitted that in a similar case, the Law Department clarified (Annexure-C) that limitation of four years as provided under sub- clause (2) (b) (ii) of Rule-7 of OCS (Pension) Rules, 1992 refers to event which come to the knowledge of the authority, but not actual date of happening of that event. The cause of action always arises when it is brought to the knowledge or implied knowledge of the person or the authority who is to take action.. involved mis- the delinquencies That, since utilisation of huge sum of Govt. money and the irregularities came to the notice of the disciplinary authority on 29.01.2016 and accepting this date as the date of instance and as per kind advice of GA Department and Law Department, the disciplinary proceeding under Rule-7 (2) (b) of OCS (Pension) Rules, 1992 r/w Rule-15 of OCS (CC&A) Rules, the 1962 has rightly been applicant No.1452 dtd.26.07.2018 as at Annexure-5 of the OA.. That, in reply to averments made in Para 6.9 of the OA, it is humbly submitted that before initiation of disciplinary proceedings against the applicant, a preliminary enquiry was the allegation of corruption in Potteru Irrigation Project. The Chief Engineer, UIIP, Khaliguda.” initiated against conducted on Memorandum vide 6. Having heard learned counsel for the parties and considering the submissions made, this Court finds that the petitioner retired from service on attaining the age of superannuation on 31.05.2011 and the proceeding in question was initiated vide Memorandum dated Page 5 of 6 // 6 // 26.07.2018 under Annexure-5 basing on the sanction order issued by the Govt.-O.P. No.1 on 26.07.2018 under Annexure-4. 6.1. It is found from the record that the proceeding so initiated is in respect of the certain events, which have taken place during the period from 22.10.2001 to 25.05.2006. This Court after going through the provisions contained under Rule7(2)(b)(ii) of the Rules is of the view that no proceeding can be initiated in respect of any event which had taken place prior to 4 (four) years of the retirement of the petitioner. Hence in view of such irregularity which is apparent on the face of the record with regard to the initiation of the proceeding, this Court is inclined to quash the order of sanction issued by the Govt. on 26.07.2018 under Annexure-4 and so also initiation of the proceeding against the petitioner vide Memorandum dated 26.07.2018 under Annexure-5. While quashing both the order and the Memorandum under Annexure-4 and 5, this Court allows the Writ Petition. 7. The Writ Petition is accordingly disposed of. (Biraja Prasanna Satapathy) Judge Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 26-Jul-2024 13:26:45 Page 6 of 6