The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C.(OAC) No.1379 of 2018 Bhanja Kishore Patnaik …. Petitioner Mr. R.N. Nayak, Adv. -versus- State of Odisha and Others …. Opposite Parties Mr. B. Mohanty, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY
Decision
ORDER 24.07.2024 Order No 03. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel for the parties. 3. Petitioner has filed the present Writ Petition inter alia challenging initiation of the proceeding vide Memorandum dated 16.08.2017 under Annexure-6. Learned counsel for the Petitioner contended that the proceeding in question could not have been initiated against the petitioner after his retirement on 31.08.2016 in view of the Bar contained under Rule- 7(2) of the OCS(Pension) Rules, 1992. 3.1. It is contended that the charge framed against the petitioner relates to an event of the year 2005 and in // 2 // view of the provisions contained under Rule 7(2) of the Rules in respect of such an event of the year 2005, no proceeding could have been initiated against the petitioner 4 (four) years after the retirement of the petitioner. Rule 7(2) of the Rules reads as follows:- “(2) (a) Such departmental proceedings referred in sub- rule (1) if instituted while the Government in service, whether before his servant was 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 instituted by an authority, subordinate to Government that authority shall submit a report recording its finding to the Government. "(b) Such departmental proceedings as referred to in sub- rule instituted while the Government servant was in service, whether before his retirement or during his re- employment – if not (1) (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 (iii) Shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service”. 3.2. In support of his submission, learned counsel for the petitioner relied on the decision of this Court in the case of Prasanta Kumar Barik Vrs. State of Odisha Page 2 of 5 // 3 // and Others in W.P.C(OA) No.3132 of 2018. This Court in Para 10 to 12 has held as follows:- “10. As counter to the submission of Mr. Babu, Mr. Rath, learned counsel for the Petitioner relied on the the case of Sri P. decision of in Satyanarayan Power Transmission Corporation Ltd., Bhubaneswar reported in 2009(I) OLR 989, this Court in Para-10 of the said judgment has held as follows:- this Court Patro Orissa vs. the two time towers the period 27.3.1987 “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, in questions which were the to constructed during 30.3.1987 got uprooted. By the departmental proceeding was instituted against the petitioner, sixteen years had already elapsed from 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 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”. for which the 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. Page 3 of 5 // 4 // 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.” 4. Learned Addl. Govt. Advocate on the other hand contended that challenging the order of recovery, petitioner had earlier approached the Tribunal in O.A. No.2987(C) of 2016. The Tribunal vide order dated 10.04.2017 under Annexure-2, while quashing the order of recovery observed that respondents shall be at liberty to proceed in the matter as per settled position of law before taking any further decision in the matter, if so desire. 4.1. Learned Addl. Govt. Advocate contended that in terms of the liberty granted by the Tribunal the proceeding was initiated on 16.08.2017 vide Annexure- 6. 5. Having heard learned counsel for the parties and considering the submissions made, this Court finds that the proceeding in question has been initiated against the petitioner after his retirement on 31.08.2016 in respect of the event which had taken place during the year 2004-05. In view of the clear provision contained under Rule 7(2)(b)(ii) of the Rules and the decision relied on by the learned counsel for the petitioner, this Court is of the view that in respect Page 4 of 5 // 5 // of the event of the year 2004-05, no proceeding could have been initiated against the petitioner four years after his retirement. The liberty granted by the Tribunal can be of no help as the Tribunal only observed that further action can be taken as per the settled position of law. Since the law is very clear in terms of the provisions contained under Rule-7(2)(b)(ii), the proceeding could not have been initiated in terms of the liberty so granted by the Tribunal. Therefore, this Court is inclined to quash the proceeding initiated against the petitioner on 16.08.2017 under Annexure-6 and quash the same accordingly. 6. 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 13:26:44 Page 5 of 5