The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAC) No.2092 of 2016 Rajakishore Rout …. Petitioner Mr. S. Mallik, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. S.K. Samal, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 18.12.2023 Order No 06. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Instruction provided by Mr. S.K. Samal, learned Addl. Govt. Advocate be kept in record.
Legal Reasoning
3. Heard Mr. S. Mallik, learned counsel for the Petitioner and Mr. S.K. Samal, learned Addl. Govt. Advocate appearing for the Opp. Parties. 4. The Petitioner has filed the present writ petition inter alia challenging the punishment imposed against him in the proceeding initiated on 14.08.2008 under Annexure-2. It is contended that in the proceeding initiated against the Petitioner under Annexure2, the following article of charges were framed:- “1. Misconduct. 2. Negligence in duty.” // 2 // 5. It is contended that Petitioner participated in the proceeding by filing his written statement of defence and also participated in the enquiry. The Enquiry Officer after conducting the enquiry submitted the report under Annexure-5 with the following finding: “These pension cases were pending by Sri. R.K. Rout, Sr. Clerk, for about one year, Two years and 3 years which had not been brought to the notice of Treasury Officer, for disposal although there is exclusive instruction from the Director for quick and timely disposal of pension cases. 334518 Sri R.K. Rout Sr. Clerk had kept pending of the Civil Pension and cases PPO No P.PO.No.116082 for more than three years after receipt from the A. G. (ASE) Orissa, Bhubaneswar. No steps have been taken for returning of the 2 P.P.O's since payment has not been made as par provision under S.R (II) of SR 317 of O.T.C.Vol-I The statement of defence is that the same are kept pending by over sight clearly indicates that he was not sincere in his duties. As every Govt. servant shall be more vigilant and take utmost care while discharging his duties, the delinquent while working in pension section harassed the pensioners, demanding money for disposal of pension cases and not attending to work sincerely with due diligent that is expected from him. It is observed that the delinquent is a cause of forged payment to someone other than Smt. Sarat Kumari Behera and he has neglected in his duties as exhibited above. In my opinion, the disciplinary authority may consider the case of Sri R.K. Rout, Ex. Sr. Clerk and the following punishment may kindly be inflicted under Rule-13 of C.C.A. Rules (1) He may be censured, barred from the future promotion (2) Withholding of one increment with cumulative effect.” 5.1. It is contended that the Petitioner was issued with the 1st & 2nd show-cause and imposed with the punishment vide order Page 2 of 9 // 3 // dtd.31.07.2015 under Annexure-10, Petitioner was imposed with the following punishment:- “1. Withholding of one increment with cumulative effect. 2. Barred from future promotion. 3. Recovery of Rs. 2,55,203/- from him.” 5.2. It is contended that Petitioner though preferred an appeal against the order of punishment before the Opp. Party No. 1, but the Appellate Authority vide order dtd.26.05.2016 under Annexure-12 while rejecting the appeal confirmed the order of punishment so passed against the Petitioner. 5.3. It is the case of the Petitioner that Petitioner at the relevant point of time was working as a Sr. Clerk in the district Treasury, Kendrapara. It is contended that Petitioner with regard to the charges framed against him is no way liable as the payment made on the ground of impersonation was committed by the then Treasury Officer and the then Accountant namely Sri B.K. Marandi. It is contended that since the Petitioner had no role with regard to the payment made because of impersonation amounting to Rs. 2,55,203/-, no order of punishment could have been imposed against the Petitioner, instead of imposing appropriate punishment against the then Treasury Officer and Accountant, who were responsible for the alleged misconduct. 5.4. It is contended that even though all through Petitioner took similar stand regarding the payment made because of the alleged negligence of the Treasury Officer and Accountant, but the said fact was never taken into consideration either by the Enquiry Officer or by the Disciplinary Authority and the Appellate Authority. It is Page 3 of 9 // 4 // accordingly contended that the impugned order of punishment passed against the Petitioner under Annexure-10 so confirmed by the Appellate Authority vide order under Annexure-12 are not sustainable in the eye of law. 6. Even though learned Addl. Govt. Advocate made his submission basing on the stand taken in the counter affidavit and supported the impugned order passed against the Petitioner, but this Court considering the submission of learned counsel for the Petitioner that Petitioner is no way responsible and the payment in question was made because of the negligence of the Treasury Officer and Accountant namely Sri B.K. Marandi, passed the following order on 06.12.2023:- “Considering the stand taken in the counter affidavit, learned Addl. Govt. Advocate is directed to obtain instruction as to whether for the alleged latches of the Treasury Officer and Accountant Sri B.K. Marandi any proceeding was initiated against them. Such instruction be provided on the next date.” 6.1. Pursuant to the said order learned Addl. Govt. Advocate produced the instruction so provided to him by the Directorate of Treasury & Inspection vide letter dtd.14.12.2023. From the said instruction it is found that the Accountant Sri B.K. Marandi was also proceeded with in a Departmental Proceeding for the alleged payment and in the said proceeding Sri Marandi was imposed with the following punishment:- “1. Withholding of one increment with cumulative effect. 2. Recovery of Rs. 2,55,203/- from him.” Page 4 of 9 // 5 // 6.2. From the instruction it is also found that even though for initiation of a proceeding against the Treasury Officer, Govt. in the Dept. of Finance moved the Department of Revenue & Disaster Management vide letter dtd.08.11.2007, but no proceeding has been initiated as yet against the Treasure Officer Sri K.N. Mohanty. It is accordingly contended that since the Accountant Sri B.K. Marandi, who was also responsible for the alleged payment, has been imposed with the punishment of withholding of one increment with cumulative effect and recovery of Rs. 2,55,203/-, Petitioner being similarly situated, he has been rightly imposed with the punishment under Annexure-10 and confirmed under Annexure-12. 6.3. It is also contended that the Petitioner was given due opportunity of hearing in the proceeding in question and there is no allegation of non-compliance of any of the provisions contained under Rule 15 of OCS (CCA) Rules, 1962 nor there is any allegation regarding non-compliance of the principle of natural justice. It is accordingly contended that the impugned order has been rightly passed and it requires no interference. 7. Having heard learned counsel apeparing for the Parties and after going through the materials available on record as well as the instruction provided to the Court today, this Court finds that in the counter so filed by Opp. Party Nos. 1 & 2, it has been clearly indicated that the Accountant Sri B.K. Marandi and the Treasury Officer Sri H.N. Mohanty are responsible for payment of the amount in question because of impersonation, instead in favour of Smt. Sarata Kumari Behera. The stand taken by the Opp. Party Nos.
Decision
1 & 2 in the counter in reply to Para 6.2 to 6.10 of the writ petition is quoted hereunder:- Page 5 of 9 // 6 // “Para Nos. 6.2 to 6.10 That in reply to the averments made in para 6.2 to 6.10, it is humbly submitted that the applicant Sri Rajkishore Rout, while working as Senior Clerk in the Dist.-Treasury, Kendrapada, was entrusted with the work of pension section during the period from 01.03.2005 to 30.04.2007. He received the family pension payment order bearing No. 4649-S(F)/TBS of Smt. Sarata Kumari Behera, w/o Late Jagannath Behera, a retired Teacher from the A.G, Odisha, Bhubaneswar in the month of May, 2006 for payment in the Treasury. On receipt of the said authority, the applicant didn't enter it in the P.P.O register as required under S.R-284 of O.T.C Vol. 1 nor did he process the file for making payment to the family pension holder. In fact, there was apparent mistake with regard to the place of payment as the A.G, Odisha in its intimation letter at Page 2 Para (b) had mentioned that the pensioner should appear before the Treasury Officer, Dist.-Treasury, Kendrapada to receive payment whereas in disburser's half of the R... was that the tamly pension is payable at tuh Treasury, Marshagian As such, was the day of the applicant to return the said authority to the All Christia protid out the above discrepancies for rectification but, he didn't bring the said mistake to the notice of the Treasury Officer nor did he process the for issuance of an intimation to the pensioner to appear before the Treasury Officer in person as per the Director of Treasuries Circular No. Pen-215/2000- 12995 dated 11.07.2000 and kept the Authority pending with him without any action for more than 6(Six) months. He handed over the said authority to the Accountant Sri Bijaya Kumar Marandi as per the direction of the Treasury Officer on 13.03.2007 when an impersonator in the guise of Smt. Sarata Kumari Behera appeared before the Treasury Officer to receive payment without passing on any information to Sri Marandi. As a result, an amount of Rs. 2, 55,203/- was drawn and paid to the impersonator instead of Page 6 of 9 // 7 // Smt. Sarat Kumari Behera, who had already expired much before such payment. Although, the Treasury Officer, Kendrapada, who failed to identify the pensioner and the Accountant Sri Marandi, who processed the file and prepared pension bill for payment, were directly responsible for the fraudulent drawal of Rs. 2,55,203/-.The applicant's carelessness and negligence in duty led to such fraudulent drawal. Subsequently, when it was detected that the fraudulent payment was made to an impersonator, the Additional Director, O/o D.T & I (O). Bhubaneswar (Respondents conducted a preliminary enquiry in the matter and found that the applicant not only neglected in his duty in the instant case but also in as many as 7(Seven) pension cases where the authorities were kept with him ranging from more than 6(Six) months to 3(three) years without taking any action. Even the applicant had failed to return the authorities to the A.G, Odisha in cases where the authorities remained undrawn for more than 3 years as per the Codal provision. Considering the above facts, Departmental Proceedings were drawn up against the applicant U/R-15 of the O.C.S(C.C.A) Rules-1962 on the charges of 1) Misconduct 2) Negligence in Duty vide this Office Order No. 13751 dated 14.08.2008 as at Annexure-2 to the Original Application. The Treasury Officer, Dist.-Treasury, Jagatsinghpur was appointed as Enquiring Officer and Treasury Officer, Dist.-Treasury, Kendrapada as Marshalling Officer in due consideration of the statement of defence of the applicant as at Annexure -3 to the O.A as his statement of defence failed to convince and satisfy the Disciplinary Authority i.e. Respondent No. 2. The Enquiring Officer submitted his complete enquiry report on 02.11.2011 holding the applicant guilty of all charges after Respondent No. 2 did not accept his preliminary enquiry report and asked him to submit a complete enquiry report as there were some deficiencies in the preliminary enquiry report submitted by him Page 7 of 9 // 8 // on 19.06.2009. The applicant was supplied with the enquiry report along with other documents as requested by him in his representation dated 19.12.2014 for 63 against the findings of the Enquiring Officer The applicant suited to test show-cause reply refuting the charges established against him by the Officer and second show cause reply praying not to award the proposed punishment against him in response to the first and second show cause notices issued to him by the Disciplinary Authority, which were found not convincing and reasonable. Accordingly, the departmental proceedings were finalized vide Order No. 11067 dated 31.07.2015 as at Annexure -10 to the OA and the following punishments imposed on him I. Withholding of one increment with cumulative effect. 11. Barred from future promotion. Ⅲ. Recovery of Rs. 2,55,203/- from him. The applicant, being aggrieved with the Orders of punishment, filed an appeal (Annexure-11 to the O.A) before the Appellate Authority i.e. Respondent No.1 challenging the order of the Respondent No. 2 and praying for exoneration from the charges as well as punishment, which was rejected by the Respondent No.1 being devoid of merit as at Annexure-12 to the O.A..” 7.1. It is also found from the instruction that in the proceeding initiated against the Accountant while imposing the punishment of withholding of one increment with cumulative effect, recovery of Rs. 2,55,203/- was also made against him. But with regard to initiation of the proceeding against the Treasury Officer, no proceeding as yet has been initiated by the Department of Revenue & Disaster Management on the face of the request made by the Directorate of Treasury & Inspection vide letter dtd.08.11.2007. Page 8 of 9 // 9 // 7.2. Considering the stand taken in the counter affidavit that the Accountant and Treasury Officer are solely responsible for the payment made because of impersonation of Smt. Sarata Kumari Behera, this Court is of the view that the Petitioner cannot be imposed with the punishment so imposed against him vide order at Annexure-10 and so confirmed under Annexure-12. However, considering the fact that the Petitioner was also working in the Treasury at the relevant point of time and he did not take any step to stop such payment because of impersonation, this Court is of the view that the punishment imposed so far as it relates to withholding of one increment with cumulative effect should remain for his negligence in duty. While holding the punishment of withholding of one increment, this Court is inclined to quash the other two punishments so reflected in the impugned order under Annexure-10 and confirmed under Annexure-12. 8. With the aforesaid modification of the impugned order, the writ petition is disposed of. (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: 22-Dec-2023 16:53:22 Page 9 of 9