The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) No.1801 of 2014 Harikrishna Mohapatra …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 10.01.2023 Order No 05. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. J.K. Mishra-2, learned counsel for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Govt. Advocate appearing for the State-Opp. Parties. 3. This writ petition has been filed challenging the initiation of the proceeding against the Petitioner vide memorandum dtd.09.07.2013 under Annexure-5 as well as the order issued on 02.07.2013 under Annexure-4. 4.1. Learned counsel for the Petitioner contended that the Petitioner while working as a Junior Clerk in N.H. Division, Dhenkanal, he retired from his service on attaining the age of superannuation on 31.01.2011. Much after his retirement when a communication was issued by the Superintendent of Police (Vigilance), Cuttack Division, Cuttack vide letter dtd.12.03.2013 under Annexure-1 requesting the Executive Engineer, N.H. Division, Dhenkanal to initiate a proceeding under Rule 15 of the OCS (CCA) Rules, 1962, O.P. No. 3 initiated a proceeding vide memorandum dtd.03.05.2013 // 2 // under Annexure-2. It is also contended that subsequent to such initiation of the proceeding and basing on an order passed by the Govt.-O.P. No. 1 on 02.07.2013 under Annexure-4, a fresh proceeding was initiated with self same charges vide memorandum dtd.09.07.2013 under Annexure-5. 4.2. It is the main contention of the learned counsel appearing for the Petitioner that the proceeding in question has been initiated under Rule 15 of the OCS (CCA) Rules, 1962 (in short Rules) under Annexure-5 and the said initiation under Rule 15 of the Rule is not permissible as the Petitioner has already retired from his service on 31.01.2011 and no proceeding under Rule 15 of the Rules can be initiated against him. It is also contended that since the charges framed against the Petitioner relates to an occurrence which had taken place on 17.03.1998, the proceeding even under Rule 7(2)(b) of the OCS (Pension) Rules, 1992 is not permissible as the said incident relates to 4 years prior to the date of retirement of the Petitioner i.e.31.01.2011. 4.3. It is further contended that even though the proceeding has been initiated vide memorandum dtd.09.07.2013 and there is no restrain order passed by the Tribunal while issuing notice of the matter, but no progress has been made to the proceeding and no enquiry has been conducted till date. Due to pendency of the proceeding, Petitioner has not yet been sanctioned with the retiral benefits. Accordingly, Mr. Mishra, learned counsel for the Petitioner contended that the proceeding initiated against the Petitioner on 09.07.2013 vide Annexure-5 be quashed along with the order at Annexure-4. Page 2 of 5 // 3 // 5.1. Mr. Balabantaray, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit filed by O.P. Nos. 1 to 4 and a further counter filed by O.P. No. 5. It is the main contention of the learned AGA that even though basing on Annexure-1 a proceeding was initiated against the Petitioner vide memorandum dtd.03.05.2013 under Annexure-2, but basing on the order passed by the Govt. under Annexure-4 and in supersession of the earlier proceeding the proceeding under Annexure-5 was initiated against the Petitioner. Since the proceeding initiated under Annexure-2 has been superseded with initiation of a fresh proceeding pursuant to the order issued under Annexure-4 no illegality has been committed by the O.P. No. 3 in initiating such a proceeding. 5.2. It is also contended that since the Petitioner was deployed to the Vigilance Department on 17.03.1998, on the request made by the Vigilance for performing his duty and during his continuance under the Vigilance Department the alleged occurrence took place, Annexure-1 was issued by the Superintendent of Police (Vigilance) with a request to the O.P. No. 4 to initiate the proceeding. Accordingly, it is contended that the proceeding under Annexure-2 was not only initiated basing on the request made by the Vigilance Department, but also the subsequent proceeding under Annexure-5 was issued in terms of the order passed by the Govt. It is also contended that since the Petitioner is an eyewitness in Samabalpur Vigilance P.S. Case No. 9 dtd.16.03.1998 and while giving his evidence he retracted from his earlier statement and adduced evidence in favour of the accused person, the proceeding has been rightly initiated against him. Accordingly, it is contended that the prayer made by the Petitioner is liable for rejection. Page 3 of 5 // 4 // 6. I have heard Mr. J.K. Mishra-2 and Mr. M.K. Balabantaray, learned counsel appearing for the Parties. On their consent, the
Decision
matter was taken up at the stage of admission and disposed of with the present order. 7. Having heard learned counsel for the Parties and after going through the materials available on record, this Court finds that the Petitioner while working in the establishment of O.P. No. 4, he retired from his service on 31.01.2011 and after his retirement basing on the communication issued by the O.P. No. 5 on 12.03.2013 the proceeding was initiated against the Petitioner vide memorandum dtd.03.05.2013 under Annexure-2. Subsequently, basing on the order passed by the Govt. under Annexure-4 and in supersession of the earlier proceeding initiated under Annexure-2, a fresh proceeding under Annexure-5 was initiated. But this Court after going through the memorandum dtd.09.07.2013 under Annexure-5 finds that the proceeding was initiated in terms of the provision contained under Rule 15 of the OCS (CCA) Rules, 1962. Since the Petitioner is a retired employee having retired on 31.01.2011, no proceeding under Rule 15 of the OCS (CCA) Rules, 1962 can be initiated against him. 7.1. Considering the submission that the Govt.-O.P. No. 4 accorded permission to initiate the proceeding under sub-rule 2(b)(i) of Rule 7 of OCS (Pension) Rules, 1992, this Court finds that the charge against the Petitioner relates to an incident which had occurred on 17.03.1998. Therefore, in view of the limitation prescribed under Rule 7(2)(b) with regard to initiation of any proceeding in respect of an incident which had occurred prior to 4 years of the date of retirement of the Petitioner, the proceeding under Rule 7(2)(b) even Page 4 of 5 // 5 // if would have been initiated is also not maintainable. This Court further finds that even though the proceeding has been initiated in the year 2013, but no progress has been made to the same, even though the Petitioner has retired since 2011. Therefore, on the ground of inordinate delay in` concluding the proceeding, the same is also liable to be quashed. 7.2. In view of the aforesaid analysis this Court is inclined to quash the proceeding initiated against the Petitioner under Annexure-5 as well as the order at Annexure-4. While quashing the same, this Court directs O.P. Nos. 3 & 4 to release all the retirement benefits of the Petitioner as due and admissible within a period of two (2) months from the date of receipt of this order. 8. The writ petition is disposed of with the aforesaid observation and direction. (Biraja Prasanna Satapathy) Judge Sneha Page 5 of 5