The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C(OA) No.2050 of 2016 Swayam Bikash Das ..... State of Odisha & others -versus- ..... Petitioner Mr. P.K. Mahapatra, Advocate Opp. Parties Mr. A. Tripathy, AGA Mr. T. Pattanaik, Adv. (for O.P. No.2) THE HON’BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY CORAM: ORDER 17.02.2025 Order No.7 1. 2. This matter is taken up through hybrid mode. Pursuant to order dated 28.01.2025, learned Additional Government Advocate produced the communication dtd. 07.11.2024 along with the note- sheet in Court. The same be kept on record. 3. 4. Heard learned counsel appearing for the Parties. The present Writ Petition has been filed inter alia with the following prayer: - In view of the facts mentioned in paragraph 6 herein above the applicant prays for the following relief(s); (i) (ii) The order at Annexure-14 along with the order at Annexure-9 may be set aside. The Hon’ble Tribunal may please to direct the State respondents to revise the pay of Page 1 of 10. the applicant under ORSP Rules, 2008 after regularising the period of suspension and thereafter fix the pay of the applicant in the promotional post of Assistant Director (Horticulture). The Hon’ble Tribunal may please to direct the respondents to extend the applicant 3rd upgradation under RACPS. The Hon’ble Tribunal may please to direct the respondents to extend the applicant all consequential financial benefits. (iii) (iv) 5. It is contended that in the proceeding initiated against the petitioner on 03.03.2003 under Annexure- 2, the order of punishment was finally passed by Opp. Party No.1 being the Disciplinary authority, vide order dated 12.12.2011 under Annexure-9 with imposition of the following punishments. (i) Stoppage of one annual increment with cumulative effect. (ii) Treating the period of suspension of such. 5.1. It is contended that against such an order, though Petitioner at no point of time filed any appeal, but while the matter stood thus, a notice was issued under Annexure-10 on 20.11.2013 purportedly in exercise of the power conferred under Rule 31 of the OCS(CC&A) Rules, 1962 (in short, “Rules”). In the said notice, the following additional penalty was proposed to be imposed against the Petitioner.
Legal Reasoning
1. To recover the balance outstanding amount of Rs.17,65,840/- from the D.O. Sri Das. 5.2. It is contended that on receipt of the notice under Anneuxre-10, Petitioner filed a detailed reply Page 2 of 10. under Annexure-11 and with regard to recovery of the amount in question, the following stand was taken by the Petitioner. “It is an admitted fact that the farmers have accepted the seed potatoes for the purpose of cultivation and utilised the same. Unfortunately instead of depositing the seed cost the farmers preferred an appeal before the Hon’ble High Court of Odisha in OJC No.11618 of 2001 to wave out the seed cost, but considering their writ petition on 17.06.09 Hon’ble High Court passed an order with direction to the Director of Horticulture, Odisha to take a decision on the representation of the farmers (copy of the court order is enclosed). The Director of Horticulture in obedience to the orders of the Hon’ble High Court passed an office order on 21.09.10 (copy enclosed) that the petitioner i.e. the farmers are bound the balance amount of Rs.17,65,840/- towards the cost of potato seeds in of Horticulturist Balasore. Accordingly, collection of seeds cost from the farmers was started and, in the meantime, DDH, Balasore has collected Rs.1,15,340/- from the the Director of farmers and deposited Horticulture in shape of Bank Draft on 20.09.2013. from this it is evident that I am no way responsible for any misappropriation of seed cost as alleged against me and punishment proposed to be imposed on me for recovery of the said amount of Rs.17,65,840/- appears to be not justified.” to deposit office the to 5.3. It is contended that with regard to the recovery of the amount in question, the farmers who were supplied with the potato seeds by the Petitioner while working as Horticulturist at Balasore, approached this Court seeking a waive off to pay the cost of the Potato seeds in OJC No.11618 of 2001. The said Writ Petition was disposed of vide order dated 17.06.2009 under Annexure-12 by giving liberty to the Petitioner therein Page 3 of 10. to approach the Director, Horticulture with regard to exemption from paying the cost of Potato Seeds. 5.4. It is contended that vide order dated 21.09.2010 under Annexure-13, Director, Horticulture-Opp. No.3 held that the farmers are liable to pay the cost of the potato seeds amounting to Rs.17,65,840/-. 5.5. It is contended that the Potato seeds in question was disbursed by the Petitioner while Petitioner was continuing as Horticulturist at Balasore. But by the time the Writ Petition was disposed of with passing of the order under Annexure-13, Petitioner was already transferred w.e.f 25.07.2000. Since because of the
Decision
pendency of the Writ Petition in OJC No.11618 of 2001, the farmers never paid the cost of the potato seeds and by the time the Writ Petition was disposed of by this Court vide order dated 17.06.2009 under Annexure-12 and consequential order passed by Opp. Party No.3 on 21.09.2010 under Annexure-13, Petitioner was no more at Balasore, no liability could have been fixed on the Petitioner with regard to non-realisation of the cost of the potato seeds. 5.6. It is further contended that on the face of such order passed by Opp. Party No.3 on 21.09.2010 under Annexure-13, the proceeding in question was disposed of vide order dated 12.12.2011 under Annexure-9 with imposition of the punishment of stoppage of one annual increment with cumulative effect and treating Page 4 of 10. the period of suspension as such. However, on the ground of review of the said order in exercise of the power conferred under Rule 31 of the Rules, notice under Annexure-10 was issued and without proper appreciation of the reply submitted by the Petitioner under Annexure-11, Opp. Party No.1 vide the impugned order dated 21.04.2022 under Annexure-14 imposed the following penalty. (a) The period of Suspension is treated as such. outstanding of Balance (b) Rs.13,58,230/- the retirement dues of delinquent officer, Sri Swayam Bikash Das. amount from recovered to be 5.7. Learned counsel for the Petitioner contended that since by the time the farmers were held liable to pay the cost of the Potato seeds amounting to Rs.17,65,840/-, vide order dated 21.09.2010 Petitioner was not there at Balasore and he cannot be held responsible for non-realisation of the said amount from the farmers in question. 5.8. It is contended that after disposal of the matter passed by this Court vide order under Annexure-9 and consequential order passed by Opp. Party No.3 on 21.09.2010 under Annexure-13, Petitioner was never given a show cause or a notice to take steps for recovery of the amount also by transferring him to Balasore. In absence of any such notice or information, no liability could have been fixed in purported exercise of the power conferred under Rule 31 of the Rules. It is Page 5 of 10. accordingly contended that since for no fault of the Petitioner, he has been held liable to refund a sum of Rs.13,58,230/- in terms of the fresh order passed on 21.04.2022 under Annexure-14, the said order is not sustainable in the eye of law along with order dt.12.12.2011 under Annexure-9. 5.9. It is also contended that even though Petitioner has retired on attaining the age of superannuation 30.06.2018, but save and except provisional pension, Petitioner has not yet been sanctioned with other Pensionary benefits as due to him. 6. Mr. A. Tripathy learned Additional Govt. Advocate on the other hand basing on the stand taken in the counter affidavit filed by Opp. Party No.1 and the instruction provided by the Department contended that after disposal of the Proceeding vide order dated 12.12.2011 under Annexure-9, the matter was reviewed by the Department and the Department taking into account the non-recovery of the cost of potato seeds amounting to Rs.17,65,840/- opined for review of the order dated 12.12.2011. The proposal made by the Department was duly approved by the Hon’ble the then Minister as well as Hon’ble the then Chief Minister and on such approval by the Hon’ble Minister as well as the Hon’ble Chief Minister as reflected in the note-sheet produced in Court along with letter dated 07.11.2024, Petitioner was issued with the notice on 20.11.2013 under Annexure-10 with Page 6 of 10. a proposal to recover the balance outstanding amount of Rs.17,65,840/-. 6.1. It is contended after due appreciation of the reply submitted by the Petitioner under Annexure-11, the impugned order was passed on 21.04.2022 under Annexure-14 by imposing the punishment of treating the period of suspension as such and to recover the balance outstanding amount of Rs.13,58,230/-, as in the meantime out of the outstanding amount is Rs.17,65,840/-, a sum of Rs.4,07,610/- was recovered from the farmers. 6.2. It is contended that out of the recoverable amount of Rs.17,65,840/-, since recovery of Rs.4,07,610/- was made from the farmers in question, for the balance outstanding amount of Rs.13,58,230/- Petitioner was held liable and accordingly the order dated 21.04.2022 has been passed. 6.3. It is contended that since for the latches on the part of the Petitioner, cost of the potato seeds could not be recovered from the farmers for which Government sustained loss to the tune of Rs.17,65,840/-, after recovery of Rs.4,07,610/-, the balance outstanding amount of Rs.13,58,230/- has been saddled on the Petitioner. It is accordingly contended that there is no illegality with regard to initiation of the review proceeding in exercise of the power conferred under Page 7 of 10. Rule -31 of the Rules nor the final order passed on 21.04.2022 under Annexure-14. 7. To the submission made by the learned counsel appearing for the State, Mr. P.K. Mohapatra, learned counsel appearing for the Petitioner contended that if this Court will upheld the order passed originally on 12.12.2011 under Annexure-9 while interfering with the order passed in review on 21.04.2022 under Annexure-14, Petitioner will have no grievance. 8. Having heard learned counsel for the Parties and considering the submission made, this Court finds that in the proceeding initiated against the Petitioner on 30.03.2003 under Annexure-1, final order of punishment was passed by Opp. Party No.1 vide order dated 12.12.2011 under Annexure-9 with imposition of the punishment of stoppage of one annual increment with cumulative effect and to treat the period of suspension as such. 8.1. As found the order passed on 12.12.2011 was never assailed by the Petitioner. However, while the matter stood thus, when Petitioner was issued with the notice on 20.11.2013 under Annexure-10 with regard to imposition of additional Penalty for recovery of the outstanding amount of Rs.17,65,840/- and a fresh order of punishment was passed on 21.04.2022 under Annexure-14, the present Writ Petition was filed in the year 2016 challenging the order at Annexure-9 as well Page 8 of 10. as the fresh order passed on 21.04.2022 under Annexure-14. 8.2. This Court after going through the materials placed finds that the amount in question i.e. Rs.17,65,840/- was required to be paid by the farmers who were disbursed with the Potato seeds by the present Petitioner while continuing at Balasore in the year 2000. As found, seeking exemption from making such payment of the cost of Potato seeds, the farmers approached this Court by filing OJC No.11618 of 2001. The said Writ Petition was finally disposed of by this Court vide order dated 17.06.2009 under Annexure-12. In terms of the said order, Opp. Party No.3 while rejecting the claim of the farmers, held the farmers liable to deposit the outstanding amount of Rs.17,65,840/- vide order dated 21.09.2010. 8.3. Since by the time such an order was passed by Opp Party No.3 on 21.09.2010 under Annexure-13, Petitioner was not there at Balasore where he had disbursed the Potato seeds in the year 2000, as per the considered view of this Court, on the face of such order passed under Annexure-13, Petitioner should have been given an opportunity to take step for recovery of the outstanding amount of Rs.17,65,840/-, by transferring him to Balasore. Since in the present case that has not been followed, as per the considered view of this Court, proposing imposition of additional punishment to recover an amount of Rs.17,65,840/- Page 9 of 10. from the Petitioner in exercise of the power under Rule- 31 of the Rules is not permissible, even though such a proceeding is maintainable. 8.4. Therefore, in view of such irregularities which is apparent on the face of the record, this Court is inclined to quash the fresh order passed by Opp. Party No.1 on 21.04.2022 under Annexure-14, while upholding the initial order of punishment passed on 12.12.2011 under Annexure-9. 8.5. This Court accordingly directs Opp. Party No.1 to take step for release of the Pension and other pensionary benefits as due and a dmissible by executing the order passed by him on 12.12.2011 under Annexure-9. The entire exercise as directed be completed within a period of 3 months from the date of receipt of this Order. The Writ Petition accordingly stands disposed of. sangita (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 20-Feb-2025 12:11:54 Page 10 of 10.