The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.32059 of 2021 Santosh Kumar Kalet State of Odisha and others -versus- …. Petitioner Mr S. Mohanty, Advocate …. Opp. Parties Mr. T.K. Pattnaik, ASC CORAM: JUSTICE A.K. MOHAPATRA Order No. ORDER 06.02.2023 02. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel appearing for the Petitioner as well as learned Additional Standing Counsel appearing for the State- Opposite Parties. Perused the writ petition as well as the documents annexed thereto. 3. The present writ petition has been filed by the Petitioner challenging the order dated 02.09.2021 passed by the Opposite Party No.3-The Collector, Bargarh under Annexure-2 and further to direct the Opposite Party No.4 to refund the amount of Rs.1,93,667/- recovered from the his salary within a stipulated period of time. // 2 // 4. It is submitted by the learned counsel for the Petitioner that the Petitioner was posted as the Block Development Officer, Jharbandh, District-Bargarh. While working as such, he has retired from service on attaining the age of superannuation w.e.f. 30.09.2018. After retirement, although the Petitioner is eligible to get all service benefits including pensionary benefits as there is no departmental/judicial proceeding pending against him, the Opposite Parties while releasing his financial benefits have deducted a sum of Rs.1,93,667/- from the Petitioner’s account and the balance amount of Rs.1,48,000/- was paid to the Petitioner. So far the deduction is concerned, it is submitted by the learned counsel for the Petitioner that no intimation whatsoever was given to the Petitioner with regard to the head of deduction and no opportunity whatsoever was provided to the Petitioner to file his show cause reply or to explain his stand with regard to the deduction. 5. It is further contended by the learned counsel for the Petitioner that looking upon a local fund audit report, the aforesaid amount has been deducted from the financial benefits payable to the Petitioner post dated retirement. // 3 // 6. It is also contended by the learned counsel for the Petitioner that the grounds of the finance of the local fund audit report was never intimated to the Petitioner and he was given no opportunity whatsoever to put-forth his case in reply to the finance arrived at the local fund Auditor. Earlier the Petitioner had earlier approached this Court vide W.P.(C) No.5417 of 2021. This Court vide order dated 15.02.2021 disposed of the writ petition with a direction that since the complaint of the Petitioner is pending before the Collector & District Magistrate, Bargarh, Opposite Party No.3, therefore, the Opposite Party No.3 was directed to decide the issue and dispose of the complaint within a period of two months from the date of communication of the order. 7. After disposal of the aforesaid writ application, the Petitioner approach the Collector & District Magistrate, Bargarh along with the certified copy of the order dated 15.02.2021. The authorities after reconsidering his case passed order dated 02.09.2021 thereby rejecting the complaint petition of the Petitioner on the ground that the Audit has ordered for recovery from Government employee for illegal appointment and, as // 4 // such, the provisions of Rule-70(A) is not applicable to the facts of the Petitioner’s case. Further, the authority in the impugned order has also stated that once A.G. Odisha agrees with the finding of the Audit, it should be recovered from the gratuity of the delinquent officer. 8. In course of his argument, learned counsel for the Petitioner draws the attention of this Court to the letter dated 24.08.2007 under Annexure-3 wherein it has been mentioned that the Block Development Officer on being authorized by the Deputy Collector, Bargarh can appoint the persons on temporary basis (for 44 days) against the sanctioned post directly. Further, by referring to the guidelines for abolition of sanctioned post carrying scale of pay on contractual appointment dated
Legal Reasoning
dated 26.07.2018 passed by this Court in W.P.(C) Nos.4696 and 4697 of 2012 and specifically referred to the following paragraphs of the said judgments “It is settled as per Public Enquiries Act, 1950 that any public servant, if dealt with for imposing punishment, he has a right to be heard in his // 7 // defence. If the nature of punishment is to be imposed which is major punishment, certainly the process will be of initiation of a regular departmental proceeding, i.e., by framing a specific charge to be served to the delinquent employee after serving relevant documents and thereafter enquiry officer is to be appointed who will provide opportunity to the delinquent employee and thereafter after conclusion of enquiry, enquiry report would be submitted before the disciplinary authority and if the enquiry office and the disciplinary authority, if both are two different identity. Thereafter the stage of 2nd show- cause will come.” “It is settled position of law that merely on the basis of audit report no order of recovery can be passed, that is for the reason that before the concerned Auditor the incumbent against whom any liability is being casted upon, is not being provided opportunity to defend himself and that is the reason report of auditor cannot be said to be conclusive evidence for commission of any irregularity in the the financial nature of concerned employee the aforesaid amount.” irregularities asking to deposit 12. Finally, learned counsel for the Petitioner referring to the appointment letter dated 30.03.2018 under Annexure-E/4 to the counter affidavit submitted that the appointments which are made during the incumbency of the present Petitioner were strictly in terms of the Finance Department Circular and the rules and regulation. The appointment letter under Annexure-E/4 reveals that a person was regularized in the post of Peon and appointed temporarily as a Peon w.e.f. 01.07.2018 on contractual // 8 // basis with consolidated remuneration of Rs.8070/- as per the ORSP Rule 2017 subject to the terms and conditions mentioned in the said letter. In such view of the matter, learned counsel for the Petitioner further submits that the Petitioner has not committed any illegality at all. Therefore, the recovery of the amount from the retiral dues of the Petitioner unilaterally by the Opposite Parties is unsustainable in the eye of law. 13. Learned Additional Standing Counsel appearing for the State-Opposite Parties submitted that the Opposite Parties have taken action on the basis of the local fund audit report. In course of his argument, learned Additional Standing Counsel referred to the local fund audit report extensively to impress upon this Court that certain adverse findings are there in the report against the present Petitioner and further because of illegal action of the Petitioner, the Government has sustained some financial loss. Accordingly, the authorities have taken action of recovery and the same from the retiral dues. In such view of the matter, learned Additional Standing Counsel submitted that the Opposite Parties-authorities are not committed any illegality at all. He further contended that after deducting the amount as has been // 9 // pointed out in the local fund audit report under Annexure-A/4 to the counter affidavit, the Petitioner has been paid the balance amount as due and admissible to him as per law. Accordingly, Additional Standing Counsel submitted that the writ petition is devoid of merit and the same should be dismissed. 14. After hearing the learned counsels for the respective parties and upon a careful consideration of the rival contentions and on a conspectus of the materials placed before this Court, this Court is of the view that no proceeding has been initiated against the Petitioner be it the departmental or judicial. On attaining the age of superannuation, the Opposite Parties have allowed the Petitioner to retire from service. Thereafter, the retiral dues were sanctioned and have been paid to the Petitioner. The Original impugned order dated 5.6.2020 passed by the B.D.O., Bargarh is unsustainable in the eye of law as neither the Petitioner was given any opportunity before passing any such order nor the B.D.O., Bargarh is the competent authority to deduct such amount from the retiral dues as due and admissible to the Petitioner. Further, the order dated 2.9.2021 passed by the Collector, Bargarh pursuant to order passed by this Court on // 10 // 15.02.2021 in W.P.(C) No.5417 of 2021 is also unsustainable in the eye of law inasmuch as while passing such order, the Collector, Bargarh has not considered the entire issue in proper perspective and has not examined the scope and authority of the B.D.O. to deduct such amount from the retiral dues of the present Petitioner. 15. In view of the aforesaid analysis, this Court is of the considered view that merely basing upon an audit report, a recovery cannot be made directly from the delinquent officer. The principle of natural justice demands that the persons who is likely to be affected is to be given an opportunity to put-forth of his case before the authority, failing which, the entire proceeding would be vitiated. In the present case, the original impugned order was passed on the basis of the local fund audit report. Therefore, the same was reaffirmed and by the order of the Collector under Annexure-2. Furthermore, this Court also observed that the Opposite Parties have not taken into consideration the Finance Department Circular on the issue and factual background of the present case, they should taken note of all those Finance Department Circular before coming to a // 11 // conclusion that whether any illegality have been committed by the Petitioner while he was in service. On the contrary, learned counsel for the Petitioner referring to those circulars demonstrated that the Petitioner while giving appointment to the Peons was well within his jurisdiction and the conduct of the present Petitioner was inconsonance with the guidelines of the Finance Department Circulars. 16. In view of the aforesaid factual analysis as well as analysis of law, this Court has no hesitation to set aside the impugned rejection order under Annexure-2 dated 2.9.2021 and, accordingly, the same is set aside. Further, the matter is remanded back to the Collector, Bargarh, Opposite Party No.3 to reconsider the matter and pass necessary orders by taking into consideration the grounds raised by the Petitioner and disposed of the matter by passing speaking and reasoned order within six weeks from the date of production of certified copy of this order. In the event Opposite Party No.3 come to a conclusion that the impugned order passed by the B.D.O. on 5.6.2020 is illegal and unsustainable in law, then the amount which has been deducted from the retiral dues of the Petitioner shall be paid to him within // 12 // a period of four weeks from the date of taking such decision. 17. With the aforesaid observations and directions, this writ
Arguments
8.11.2006, learned counsel for the Petitioner submits that there is no such stipulation of appointment a person on contractual basis for 44 days. Rather, on a close scrutiny of the aforesaid guidelines, it reveals that the Finance Department letter dated 31.12.2004 shall be made applicable to all cases of contractual appointment on consolidated remuneration basis against sanctioned posts by the respective appointing authority directly. // 5 // Therefore, it was contended that there was no concept of appointment for 44 days basis. The Finance Department Circular is very clear on the aforesaid point. 9. Referring to the counter affidavit filed by the Opposite Parties, learned counsel for the Petitioner further submitted that the local fund audit report which has been filed as Annexure- A/4, although has pointed out certain discrepancies, has also mentioned that the total process is suspicious and not admitted in audit. While coming to such conclusion, the audit report has taken note of certain circulars of the Government and they have also stated that the Circulars/Guidelines referred to by the Petitioner at the time of giving appointment were not available on record. Therefore, by referring to the District Office letter dated 24.08.2007, they have come to a conclusion that the authority may appoint temporary appointment for 44 days against the sanctioned post directly and, accordingly, the local fund auditors have come to a conclusion that the Petitioner has deviated the same in giving appointment and as a result of which Peons were appointed without any break after 44 days against the sanctioned posts and, as such, sanctioned posts were // 6 // abolished contrary to the Government Circular. 10. Learned counsel for the Petitioner further referred to the guidelines for abolition of sanctioned post issued by the Finance Department, Government of Odisha under Annexure-C/4 to the counter affidavit and in course of his argument much emphasis is made on the following paragraphs:- consolidated “With a view to bring uniformity in government policy it is now decided that the guideline contained in finance department letter no.55764/F dated 31.12.2004 will be made applicable to all cases of contractual appointment on remuneration made against sanctioned posts by the appointing in authority directly. Wherever services have been the the vacant posts should also be outsourced administrative all abolished. departments the abolish required corresponding sanctioned posts carrying regular scale of pay with effect from the date of joining of the respective contractual employee on consolidated remuneration in all cases where such appointment has not been effected.” Accordingly are to 11. Learned counsel for the Petitioner relied upon the order
Decision
petition stands disposed of. Urgent certified copy of this order be granted on proper application. Debasis ( A.K. Mohapatra) Judge