The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C(OA) No.422 of 2016 In the matter of an application under Section 19 of the Administrative Tribunal’s Act, 1985. ……………… Amar Kumar Behera …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner : Mr. Baidhar Sahoo, Advocate For Opp. Parties : Mr. M.K. Balabantaray, AGA PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- ---- Date of Hearing:11.03.2024 and Date of Order: 23.04.2024 ----------------------------------------------------------------------------- --- Biraja Prasanna Satapathy, J. 1. Heard Mr. B. Sahoo, learned counsel for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Govt. Advocate for the State. 2. The Petitioner has filed the present Writ Petition inter alia with the following prayer: - “In view of the facts stated as above the applicant prays in paragraph-6, following reliefs:- // 2 // (i) Admit and allow the Original Application. (ii) After hearing the parties, to quash office order No.27, dated 13.02.2015 of Respondent No.3 under Annexure-15. (iii) To quash the Memo No.2265, dated 11.04.2014 of Respondent No.4 under Annexure-11 and also to quash the Memo No.2267, dated 11.04.2014 of Respondent No.4 under Annexure-12; (iv) The Hon’ble Tribunal may be pleased to exonerate the applicant as by recoverable Respondent No.4 in his Memos under Annexure-11 and 12 and upheld by the Respondent No.3 in appeals of applicant under Annexure-15. amount shown (v) To pass any order as this Hon’ble Tribunal deem fit and proper.”
Legal Reasoning
3. Learned counsel for the Petitioner contended that the petitioner while continuing as Forest Ranger vide order under Annexure-1, he was directed to take over the complete charge of Borigumma Range by 09.02.2012. Subsequently, vide notification dated 06.12.2013 under Annexure-2 and consequential order issued on 23.12.2013 under Annexure-3, petitioner was directed to hand over the charge of both Jeypore and Borigumma Range. After such transfer from Borigumma Range, petitioner for the first time was issued with a notice on 18.01.2014 under Annexure-4 by O.P. No.4 under Annexure-4. Vide the said notice, objection on cash Page 2 of 19 // 3 // Account under CAMPA (APO-2012-13) for the month of August, 2013 was issued to him. 3.1. It is contended that on receipt of the notice on 18.01.2014 under Annexure-4, petitioner made a compliance with submission of his reply vide letter dated 05.04.2014 under Annexure-6. But prior to submission of his reply under Annexure-6, petitioner was issued with another letter on 18.03.2014 under Annexure-7 by O.P. No.4, raising objection on cash Account under CAMPA (APO-2012-13) for the month of August, 2013 and October, 2013. Petitioner also submitted his reply/compliance to Annexure-7 vide his reply dated 05.04.2014 under Annexure-8. 3.2. It is contended that without proper appreciation of the compliance made to the objection so raised on 18.01.2014 under Annexure-4 and 18.03.2014 under Annexure-7, petitioner vide order dated 11.04.2014 under Annexure-11 and 12 when was held liable to pay a sum of Rs.16 lakhs and Rs.12,70,000/- respectively towards disallowed vouchers, petitioner preferred separate appeals against such fixation of liability on account of disallowed voucher before O.P. No.3 under Annexure-13 and 14. Page 3 of 19 // 4 // 3.3. It is contended that without proper appreciation of the stand taken in the appeal filed under Annexure- 13 and 14, O.P. No.2 as the Appellate Authority, passed a common impugned order on 13.02.2015 under Annexure-15 by upholding the liability fixed on the petitioner vide orders issued under Annexure-11 and 12. 3.4. It is the case of the petitioner that during his continuance as Range Officer, Borigumma Range, though petitioner received the amount in question towards CAMPA (APO-2012-13) but since he transferred the entire amount to the account of the Forester-in- Charge, B. Singhpur Section on different dates for its utilization for the purpose it was so sanctioned and necessary vouchers showing utilization of the entire amount though were submitted by the Forester in question, there was no occasion on the part of Opp. Party No.4 to fix the liability on the petitioner vide Annexure-11 to the extent of Rs.16 lakhs and to the extent of Rs.12,70,000/- vide Annexure-12. Page 4 of 19 // 5 // 3.5. It is further contended that since the amount so received by the petitioner for utilization under CAMPA (APO-2012-13) while continuing in Borigumma Range under Jeypore Forest Division, was transferred to the account of the Forester in question for plantation work under CAMPA and after utilization and return of the balance amount, no liability can be fixed on the petitioner by disallowing the vouchers in question. 3.6. It is contended that out of the amount received to the extent of Rs.16 lakhs, the Forester in question to whose account the entire amount was transferred, utilized a sum of Rs.14,28,540/- for plantation work under CAMPA and balance amount of Rs.1,71,460/- was transferred to the account of O.P. No.4 on 21.06.2013. The amount so released to the account of the Forester, vouchers showing utilization of entire amount of Rs.16 lakhs were duly submitted. It is also contended that the Forester who executed the work after transfer of the amount, made payments to the workers engaged in the field and the Forester attached the Bank receipt in the Original voucher towards payment as per the work done. Page 5 of 19 // 6 // 3.7. Similarly, with regard to the utilization of Rs.12,70,000/-, the amount after being transferred to the account of the Forester in question, he utilized the same with due transfer to the workers account, who do the work in the field. The Forester also attached the vouchers, showing the payments as per the work done. But without proper appreciation of the fact that the entire amount so received by the petitioner in his capacity as Forest Ranger, Borigumma Range after being transferred to the account of the Forester in question, was completely utilized with submission of the required vouchers, without proper appreciation of the same, O.P. No.4 while disallowing the vouchers, held the petitioner liable vide Annexure-11 and 12 for the entire amount in question. 3.8. Petitioner though preferred separate appeal against the demand vide Annexure-11 and 12, by filing appeals under Annexure-13 and 14, but O.P. No.3 without proper appreciation of the grounds taken in the appeal, passed a common impugned order on 13.02.2015 under Annexure-15 by upholding the liability so fixed on the petitioner under Annexure-11 and 12. Page 6 of 19 // 7 // 3.9. It is also contended that in view of the provisions contained under Rule-346 of the Odisha Forest Department Code, 1979, petitioner cannot be held liable by disallowing the vouchers in question. Rule-346 (1) of the Code reads as follows:- “Withholding and disallowing of vouchers- “346(1): If a voucher is withheld for incorporation in the Divisional Accounts on account of inaccuracies or owing to suspicion of fraud, the explanation of the Range Officer and the Officer who had disbursed the amount in the voucher should be obtained. The Divisional Forest Officer after due consideration of the explanation shall order about its incorporation in part or in full or he may order disallowing the vouchers. The disallowed amount shall then be recovered from the voucher. An appeal against the decision of the Divisional Forest Officer shall however be with the Conservator if this is preferred within thirty days. The decision of the Conservator shall be final. In the event of a fraudulent voucher been disallowed in part or in full, further disciplinary action may also be taken. the person disbursing (2) Decision on withheld vouchers should be taken within 3 months, failing which all withheld vouchers shall be incorporated in the Accounts.” 3.10. In support of his stand that in view of the provisions contained under Rule-346 of the Code, petitioner is not liable to pay the amount towards disallowed vouchers, learned counsel for the Petitioner relied on a decision of this Court reported in 2023 SCC OnLine Ori 5573 in the case of Conservator of Page 7 of 19 // 8 // Forests and Others Vrs. Surendra Kumar Routray and Another. This Court in Para-10 of the said judgment has held as follows:- “10. On perusal of the aforesaid provision, it is made clear that if a voucher is withheld for incorporation in the Divisional Accounts, on account of inaccuracies or owing to suspicion of fraud, the explanation of the Range Officer and the Officer, who had disbursed the amount in the voucher, should be obtained. The Divisional Forest Officer, after due consideration of the explanation, shall order about its incorporation in part or in full or he may order disallowing the voucher. That means, if the voucher is disallowed on account of inaccuracies or owing to suspicion of fraud, then explanation of the Range Officer and the Officer, who has disbursed the amount in the voucher, shall be obtained. As such, the requirements of Rule 346 of the Odisha Forest Departmental Code, 1979 have not been followed in the present case. It is for the first time, when the LPC was sent, it was indicated that opposite party no.1 is liable to pay the demand raised due to disallowed vouchers. There is nothing on record to show that an explanation was called for from opposite party no.1 and on consideration of the same the Divisional Forest Officer had passed order disallowing the vouchers. In absence of the same, direction issued to recover the amount from opposite party no.1 is not in consonance with the provisions of Rule 346 of the Odisha Forest Departmental Code, 1979. Furthermore, the order of the Divisional Forest Officer the Conservator of Forests, if it is preferred within a period of 30 days, and the decision of the Conservator of Forests shall be final. Though opposite party no.1 preferred appeal, the appellate authority, without considering the same in proper perspective, directed to deposit hard cash of Rs.40.50 and disallowed amount of Rs.71,375/- vide Annexure-13 to the O.A. and communication thereof was made vide letter dated 22.05.1999 at Annexure-14 to the O.A. It is further provided under Rule 346 that decision on withheld vouchers should be taken within three months, failing which all is appealable before Page 8 of 19 // 9 // withheld vouchers shall be incorporated in the Accounts.” 4. Mr. M.K. Balabantaray, learned Addl. Govt. Advocate for the State on the other hand while supporting the impugned order dated 13.02.2015 under Annexure-15, made his submissions basing on the stand taken in the counter affidavit so filed by the opposite parties. It is contended that as provided under Rule-331 (6)(iii) of the Odisha Forest Department Code, the Range Officer is fully responsible for the expenditure of his Range and should take every precaution to get the work done for the amount spent and in no case the Govt. money shall be wasted. It is also contended that as provided under Rule-309(10) of the Code, every officer is to prepare and render any account or returns in respect of public money or stores and is personally responsible for their completeness and strict accuracy and their dispatch within the prescribed date (OGFR-14). But petitioner never followed the provisions contained under Rule 331(6)(iii) & Rule 309 (10) of the Code. Page 9 of 19 // 10 // 4.1. It is also contended that as per CAMPA guideline issued on 04.02.2010 vide Annexure-VI to the counter, payment of wages to the labourers out of the funds received from Adhoc-CAMPA for execution of Annual Plan of Operation in the State, shall be made through Savings Account in Bank or Post Office as the case may be. But petitioner failed to follow the guideline so issued on 04.02.2010 under Annexure-VI. 4.2. It is also contended that as provided under Rule- 28(iii) of the Code, “the Range Officer is absolutely responsible for all cash disbursement and expenditure within his Range”. Similarly as provided under Rule 28 (V) of the Code, “the Range Officer is to check and control all work within his range and also to see that the work is carried out as per programme of work approved by the Divisional Forest Officer and ensure that the govt. funds are used in the most economical and efficient way”. But in the present case, petitioner simply transferred the funds to the Account of the Forester for the purpose of execution of the work and incorporated the vouchers in the books of accounts Page 10 of 19 // 11 // without supervising the work. Petitioner prior to incorporating the account in the cash book never supervised the assigned work to ascertain the progress of the work. 4.3. It is also contended that as provided under Rule- 329(5) of the Code, the Range Officer should re-check the Muster Roll and sign with date and should check not less than 25% of his Range Muster Rolls and make final payment personally of at least 30% of the Muster Rolls. But in the case in hand, there is no recording of quantity of work checked or measured by the Range Officer though it involved 55 no. of vouchers amounting to Rs.28,70,000/-. 4.4. It is also contended that in view of the provisions contained Rule 309 (10) of the Code, mere plea of payment of the amount to the Forester will not exonerate the petitioner from his duty and responsibility. Rule 309(10) of the Code reads as under:- “10. Every officer whose duty is to prepare and render any accounts or returns in respect of public money or stores is personally responsible for their completeness and strict accuracy and their dispatch within the prescribed dates.” Page 11 of 19 // 12 // 4.5. It is also contended that in terms of the provisions contained under Rule-346 of the Code, the vouchers in question were disallowed by giving due opportunity to the petitioner. As provided under the aforesaid provision, Divisional Forest Officer after due consideration of the explanation shall either order about the incorporation of the vouchers in part or in full or may order disallowing the vouchers and disallowed amount shall be recovered from the person disbursing the voucher. 4.6. In the present case, after due consideration of the reply submitted by the petitioner under Annexure-6 and 8, Opp. Party No.4 disallowed the vouchers in question and held the petitioner liable to pay the amount towards disallowed vouchers which comes to Rs.28,70,000/-. 4.7. It is also contended that the Appellate Authority after due consideration of the ground taken in the Appeal passed a common order on 13.02.2015 under Annexure-15 by holding the petitioner liable to pay the Page 12 of 19 // 13 // entire amount in question towards disallowed vouchers. 4.8. It is contended that the Appellate Authority while considering the vouchers, so submitted by the Forester in question, found that the entire amount has been transferred to the account of one person and no details of other labourers engaged for the work has been provided for in the vouchers. It is contended that since as per the guideline issued for execution of the work under CAMPA, the amount is required to be transferred to the personal Savings Bank Account of the workers in question, who executed the work, the amount should not have been transferred to the account of one person. It is contended that because of such irregularity committed by the Forester while executing the work, the voucher so submitted by him were disallowed with fixation of the liability on the petitioner under Annexure-11 and 12, being the Range Officer. 4.9. Making all these submissions, learned Addl. Govt. Advocate contended that since liability has been fixed on the petitioner in accordance with the provisions Page 13 of 19 // 14 // contained under Rule-346 of the Code and by giving due opportunity of hearing at every stage, no illegality or irregularity can be found with the impugned order passed under Annexure-15. 5. In course of hearing of the matter, when a plea was made that the Appellate Authority without giving due opportunity of hearing decided the appeal with passing of the impugned order, this Court passed the following order on 31.01.2024 :- “1. This matter is taken up through Hybird Arrangement (Virtual/Physical) Mode. 2. parties. Heard learned counsel appearing for the Since in course of hearing, learned 3. counsel appearing for the Petitioner contended that appellate authority without providing due opportunity of hearing suo moto decided the matter and dismissed the appeal vide order under Annexure-15, learned Addl. Govt. Advocate is directed to obtain instruction as to whether Petitioner was given an opportunity of hearing by the appellate authority prior to deciding both the appeals so filed by the Petitioner under Annexure- 13 & 14. Such instruction be provided on the next date. 5. 16.02.2024. As requested, list this matter on 6. continue till the next date.” Interim order passed earlier shall 5.1. Pursuant to the said order, learned Addl. Govt. Advocate produced copy of the notices issued to the Page 14 of 19 // 15 // petitioner by O.P. NO.3, for hearing of the appeal so provided by the O.P. No.3 vide his letter dated 17.02.2024. Basing on the instruction so provided by the O.P. No.3 vide letter dated 17.02.2024, learned Addl. Govt. Advocate contended that after receipt of the Appeal, petitioner vide letter dated 05.09.2014 was intimated about the hearing of the appeal by fixing the same to 19.09.2014. But on receipt of the notice dated 05.09.2014, when petitioner vide his letter dated 17.09.2014, indicated that he is unable to appear on the date fixed because of some medical problem, a fresh notice was issued to the petitioner on 22.09.2014 by fixing the date of hearing of the matter to 15.11.2014. Thereafter, vide notice dated 08.01.2015, the date of hearing of the appeal was against fixed to 19.01.2015
Decision
and after hearing the appeal, the same was disposed of vide order dated 13.02.2015 under Annexure-15. 5.2. It is accordingly contended that the Appellate Authority by giving due opportunity of hearing to the petitioner decided the appeal with passing of the order in question under Annexure-15. Page 15 of 19 // 16 // 6. To the submissions made by the learned Addl. Govt. Advocate, learned counsel for the petitioner made further submission basing on the stand taken in the rejoinder affidavit so filed by him. It is contended that since the entire amount so received by the petitioner amounting to Rs.28,70,000/-, was transferred to the account of the Forester and after due utilization of the entire amount, required vouchers showing utilization of the amount in question were submitted by the Forester, there was no occasion to disallow the vouchers in question by holding the petitioner liable to pay the amount. 6.1. It is contended that since the amount was transferred and utilized by the Forester in question in view of the provision contained under Rule 346 of the Code, said Forester should have been noticed along with the petitioner by O.P. No.4, while disallowing the vouchers in question. Since the vouchers submitted by the Forester were disallowed by O.P. No.4, the said Forester should have been held liable to pay the entire amount instead of fixing the liability on the petitioner. Page 16 of 19 // 17 // It is accordingly contended that the impugned order passed by the Appellate Authority under Annexure-15 is not sustainable in the eye of law. 7. I have heard Mr. B. Sahoo, learned counsel for the petitioner and Mr. M.K. Balabantaray, learned Addl. Govt. Advocate for the State. On the consent of the learned counsels appearing for the parties and with due consent, matter was heard at the stage of admission and disposed of by the present order. 8. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that petitioner while continuing as Range Officer, Borigumma Range, an amount of Rs.28,70,000/- was transferred for execution of work under CAMPA (APO-2012-13). As found from Annexure-4 & 7, after due verification of the vouchers objection was made by the Opp. Party No.4 with regard to the entire amount in question. Even though compliance to the objection was not made within the prescribed time period as provided under Rule-346 of the Code, but O.P. NO.4 after due consideration of the objection to the disallowed Page 17 of 19 // 18 // vouchers, so submitted by the petitioner under Annexure- 6 and 8, held the petitioner liable to pay the entire amount vide his order under Annexure-11 and 12. Petitioner challenging the liability so fixed against him under Annexure-11 and 12, preferred appeal before O.P. No.3 under Annexure-13 and 14. 8.1. As found from the record, petitioner transferred the entire amount so received to the account of the Forester for its utilization which is not disputed and the Forester also submitted required vouchers in support of such utilization of the amount in question. Therefore, in view of the provisions contained under Rule-346(1) of the Code, the concerned Forester should also have been noticed to submit his explanation. Since no explanation was ever called for from the Forester in question who had disbursed the amount, it is the view of this Court that the matter requires fresh adjudication by O.P. No.4. 8.2. In view of the same, this Court is inclined to quash order dated 13.02.2015 so passed by the O.P. No.3 under Annexure-15 so also order dated 11.04.2024 passed by the O.P. No.4 under Annexure-11 and 12. While quashing the orders issued under Annnexure-11, 12 & 15, this Page 18 of 19 // 19 // Court remits the matter to O.P. No.4 to take a fresh decision by calling for an explanation from the Forester in question, who had disbursed the amount after such transfer being made by the petitioner. Since the dispute is of the year 2013 and substantial amount is involved, this Court directs O.P. No.4 to take a fresh decision within a period of 3 (three) months from the date of receipt of this order. Petitioner is directed to provide a copy of this order before O.P. No.4 within a period of seven (7) days from the date of receipt of this order. Learned Addl. Govt. Advocate is also directed to intimate the order to O.P.No.4 for compliance. 9. The Writ Petition is accordingly disposed of. Orissa High Court, Cuttack Dated the 23rd April, 2024/Basudev (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Reason: Authentication of order Location: High Court of Orissa, Cuttack Date: 25-Apr-2024 18:53:01 Page 19 of 19