The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC (OAC) No.3616 of 2013 Minakshi Singh …. Petitioner Mr. S. Mallik, Advocate -versus- State of Odisha & Another …. Opp.Parties Mr. H.K. Panigrahi, ASC COROM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 19.07.2023 Order No 06. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. S. Mallik, learned counsel for the Petitioner and Mr. H.K.Panigrahi, learned Addl. Standing Counsel for the State. 3. Pursuant to the order passed by this Court on 24.04.2023, learned Addl. Standing Counsel produced before this Court the instruction provided by the Department vide letter dated 15.07.2023. The same be kept in record. 4. The present Writ Petition has been filed inter alia with the following prayer:- “ (I) Quash the impugned departmental proceeding as at Annexure-1, the enquiry report as at Annexure-8, the order dated 28.02.2008 proposing punishment as at Annexure- 10 and order of punishment dt.29.01.2009 as at Annexure-15 which was communicated on 25.09.2013 as at Annexure-14”. 5. It is contended that while the Petitioner was continuing as a Child Development Project Officer, the proceeding was initiated against him by the Government- // 2 // Opposite Party No.1 vide proceeding dated 30.04.1998. In the said proceeding, the Petitioner not only participated in the enquiry, but the enquiry officer also submitted his report on 20.07.2005. The Petitioner thereafter when was issued with the 1st show cause vide letter dated 20.08.2005, the Petitioner could not submit any reply to the same. However, subsequently vide letter dated 28.02.2008, the Petitioner when was issued with the 2nd show cause, she submitted her reply of the same on 31.10.2008. 5.1. It is contended that after submission of the reply to the 2nd show cause on 31.10.2008, when the proceeding was not disposed of for a pretty long period, the Petitioner approached the Tribunal in O.A No.303(C)/2011 with a prayer to quash the proceeding on the ground of inordinate delay in disposal. In the said O.A, the Opposite Parties though were noticed, but never filed any counter in spite of
Decision
several opportunities. The Tribunal accordingly disposed of O.A No.303(C)/2011 vide order dated 19.02.2013 under Annexure-13 with the following direction:- “ Considering the facts and circumstances of the case and on hearing the learned counsel for the applicant and the learned Govt. Advocate, the O.A is disposed of with a direction to the respondent no.1 to conclude the departmental proceeding by passing the final order, within a period of four months from the date of receipt of a copy of this order, failing which the disciplinary proceeding shall be deemed to have dropped”. 5.2. It is contended that on receipt of the order passed by the Tribunal on 19.02.2013, the Petitioner was communicated with the order of punishment so passed against her vide office order dated 29.01.2009 under Annexure-15 in the proceeding in question. Page 2 of 6 // 3 // 5.3. It is contended that the proceeding-in-question was initiated against the Petitioner on 30.04.1998 and the Petitioner submitted her reply to the 2nd show cause on 31.10.2008. After submission of the reply to the 2nd show cause when the proceeding was not finalized, for a pretty long time the Petitioner seeking quashing of the proceeding approached the Tribunal in O.A No.303(C)/2011. In the said O.A, the State never brought to the notice of the Tribunal that the proceeding has been finalized with passing of the final order on 29.01.2009. In absence of such material being produced by the Opposite Parties, the Tribunal disposed of the matter with a direction on the Opposite Party No.1 to conclude the proceeding within a period of four months, failing which the disciplinary proceeding shall be deemed to have been dropped. Only on receipt of the said order, the order of punishment so passed on 29.01.2009 when was communicated the Petitioner, challenging the initiation of the proceeding as well as the final order passed on 29.01.2009, the Petitioner is before this Court in the present writ petition. 5.4. It is contended that the Petitioner in the meantime has already retired from her service on attaining the age of superannuation on 30.04.2013. But due to pendency of the matter, Petitioner is not getting her retiral benefits. 6. A counter affidavit has been filed by the Opposite Party No.1 and Mr. Panigrahi, learned Addl. Standing Counsel while supporting the impugned order made his submission basing on the stand taken in the said counter. But this Court taking into account the submissions of the learned counsel for the Petitioner that the impugned order Page 3 of 6 // 4 // of punishment so passed on 29.01.2009 was never communicated to the Petitioner during her service career, this Court passed an order on 24.04.2023 to the following effect:- “2. Heard Mr.S. Mallik, learned counsel for the Petitioner and Mr. D.K. Mohanty, learned Addl. Standing Counsel for the State. 3. This Writ Petition has been filed challenging the order of punishment passed against the Petitioner on 29.01.2009 under Annexure-15 so communicated vide Office Order dated 25.09.2013 under Annexure-14. 4. Learned counsel for the Petitioner contended that in the proceeding initiated on 30.04.1998, after submission of the enquiry report on 20.07.2005, though a second show cause was issued to the Petitioner on 28.02.2008, but the proceeding was never finalized till the Petitioner approached the Tribunal in O.A No.3036(C) of 2011. 4.1. It is contended that in the said Original Application, the State never filed a counter and accordingly the Tribunal disposed of the matter with a direction to conclude the proceeding within a period of four months or else the disciplinary proceeding shall be deemed to have been dropped. It is contended that on receipt of the said order, the Petitioner was communicated with the order of punishment alleged to have been passed on 29.01.2009 vide order dated 25.09.2013 under Annexure-14. 4.2. It is also contended that the order of punishment so passed against the Petitioner on 29.01.2009 was never implemented by recovering the amount and by stopping the annual increment as directed and the Petitioner in the meantime retired from his service on 30.04.2013. Even though a counter affidavit has been filed, but nothing has been indicated as to whether the order of punishment passed in the proceeding on 29.01.2009, was implemented while the Petitioner was in service. 5. In view of the same, this Court directs Mr. D.K. Mohanty, learned Addl. Standing Counsel to obtain instruction on the said point. 6. 2023. As requested by him, list this matter on 8th of May, 7. Mohanty for compliance”. A free copy of this order be handed over to Mr.D.K. Page 4 of 6 // 5 // 6.1. Pursuant to the said order, learned Addl. Standing Counsel produced the instruction so issued by the Government vide letter dated 15.07.2023. In the said instruction, it has been clearly admitted that the order of punishment so passed on 29.01.2009 was never implemented and the Petitioner was allowed to retire from her service on 30.04.2013. Learned State Counsel also did not dispute that the disposal of the proceeding vide order dated 29.01.2009 was not brought to the notice of the Tribunal in O.A No.303(C) of 2011. 7. Having heard learned counsel for the Parties and taking into account the fact that the proceeding in question was initiated on 30.04.1998 and on the face of submission of the reply to the 2nd show cause submitted on 31.10.2008, the matter was kept pending. The order of punishment so passed on 29.01.2009 was also never communicated to the Petitioner and it was also not brought to the notice of the Tribunal in O.A No.303(C)/2011. The Tribunal in absence of such instruction being provided by the learned State Counsel, disposed of the matter with a direction to conclude the proceeding within a period of four months, failing which it shall be treated to have been dropped. Only after receipt of the order from the Tribunal, the order of punishment so passed on 29.01.2009 was communicated to the Petitioner and that too after the Petitioner was allowed to retire on 30.04.2013. 7.1. In view of such laxity on the part of the Opposite Parties, this Court is of the view that the order of punishment so passed against her is not sustainable in the eye of law so also the proceeding initiated on 30.04.1998. Page 5 of 6 // 6 // Therefore, this Court is inclined to quash the order of punishment so passed on 29.01.2009 under Annexure-15. While quashing the same, this Court directs Opposite Party No.1 to take all possible steps to release of the post retirement benefit of the Petitioner within a period of two (2) months from the date of receipt of this order. 8. With the aforesaid observations and directions, the Writ Petition stands disposed of. Judge (Biraja Prasanna Satapathy) Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: .. Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 14:03:20 Page 6 of 6