The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAC) No.369 of 2013 G.V.S. Prasad & Ors. …. Petitioners Mr. A.K. Pattnaik, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. S.K. Samal, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 23.02.2024 Order No 13. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
dismissal was set aside by this Court in its order dtd.11.10.2006 in OJC No. 7298 of 2001. It is accordingly contended that since the Officer-in-charge of the P.S., who was also proceeded with along Page 2 of 6 // 3 // with the deceased Petitioner with similar nature of charges and the order of punishment so imposed was set aside by this Court in its order dtd.11.10.2006, the deceased Petitioner being similarly situated, he is also eligible and entitled to get similar benefit and the order of punishment so passed against him is required to be interfered with by this Court. 4.3. In support of his submission, learned counsel for the Petitioners relied on an order passed by this Court on 16.01.2024 in W.P.C.(OAC) No. 3186 of 2014. This Court placing reliance on the decision of the Hon’ble Apex Court in the case of Rajendra Yadav Vs. State of M.P. & Ors., (2013(3) SCC 73, Umesh Kumar Pahwa Vs. The Board of Directors, Uttarakhand Gramin Bank & Ors., (2022) 4 SCC 385, Man Singh Vs. State of Haryana & Ors., (2008) 12 SCC 331 and State of Utter Pradesh & Ors. Vs. Raj Pal Singh, (2010) 5 SCC 783 has held as follows in Para 9 & 9.1 of the said order: “9. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that for the self charges, Petitioner along with the Tahasildar, Padampur and Ex-Head Clerk, Padampur Tahasil were proceeded with. Since with self same charges Tahasildar, Padampur has been exonerated from the charges as found from the instruction provided by the Collector vide his letter dtd.06.01.2024 and the proceeding against the Head Clerk has not yet been finalized, placing reliance on the decisions as cited supra, this Court is of the view that the order of dismissal passed against the Petitioner on the face of exoneration of the Tahasildar and non-finalization of the proceeding against the Ex-Head Clerk is not just and proper and it is hit by Art-14 of the Constitution of India. Since Petitioner and the other two employees are facing certificate cases for recovery of 1/3rd of the misappropriate amount i.e. 7,19,863/- each, this Court is of the view that no order of dismissal could have been passed dismissing the Petitioner from his services. Page 3 of 6 // 4 // 9.1. Therefore, while maintaining parity, this Court is inclined to interfere with the order of dismissal so passed against the petitioner vide order dated 08.04.2008 under Annexure-1 and confirmed vide order dt.12.08.2013 under Annexure-12. While interfering with the order of dismissal, so confirmed vide order dated 12.08.2013 under Annexure-12, this Court is inclined to modify the order of punishment to a punishment of compulsory retirement. By taking the date of dismissal as the date of compulsory retirement, O.P. Nos.1 and 2 are directed to extend all benefits as due and admissible in favour of the petitioner within a period of 3(three) months from the date of receipt of this order.” 4.4. It I accordingly contended that since for the self same charges, the Officer-in-charge of Burla, P.S. has been exonerated by this Court, the deceased Petitioner being similarly situated, he is also eligible and entitled to get similar benefit. 5. Learned State Counsel on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opp. Party Nos. 1 & 2. It is contended that taking into account the nature of charges framed against the deceased Petitioner and on the face of the report submitted by the Enquiry Officer exonerating the Petitioner from the charges, Opp. Party No. 1 issued the disagreement note under Annexure-4. Thereafter, on due consideration of the reply to the 1st show-cause, the Disciplinary Authority though proposed to reduce the pension of the deceased Petitioner to the extent of 65% for a period of 10 years, but taking into account the opinion rendered by the OPSC under Annexure-8, the deceased Petitioner was imposed with the punishment of withholding of 30% pension for a period of 3 years. 5.1. It is also contended that the order of punishment so imposed has already been implemented as the decased Petitioner after his retirement on 30.06.2000 has been released with pension by withholding 30% of the same for a period of 3 years. However, Page 4 of 6 // 5 // learned AGA does not dispute the benefit extended in favour of the other charged employee by this Court in its order dtd.11.10.2006 in W.P.(C) No. 7298 of 2001. 6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that the deceased Petitioner was proceeded with in the proceeding initiated under Annexure-1. The Enquiry Officer in its report under Annexure-3 though held the deceased Petitioner not guilty of the charges, but the Disciplinary Authority by disagreeing with the view of the Enquiry Officer, issued the 1st show-cause under Annexure-4. Even though the Disciplinary Authority while issuing the 2nd show-cause proposed to impose reduction of pension to the extent of 65% for a period of 10 years, but OPSC while giving its opinion under Annexure-8 opined that pension of the deceased Petitioner be reduced to the extent of 30% for a period of 3 years. 6.1. Basing on such opinion of the Commission, Opp. party No. 1 while disposing the proceeding, passed the impugned order under Annexure-8 by withholding 30% pension for a period of 3 years. But it is found that the Officer-in-charge of Burla P.S. was also proceeded with in the proceeding on similar charges. Even though the said Officer was imposed with the punishment of dismissal from service, but this Court vide its order dtd.11.10.2006 in OJC No. 7298 of 2001 quashed the proceeding against the said delinquent employee. Since similarly situated employee proceeded with, has been exonerated by this Court in its order dt.11.10.2006, placing reliance on the order passed by this Court on 16.01.2024 in W.P.C.(OAC) No. 3186 of 2014, this Court is also of the view that the present Petitioner is entitled to get similar benefit. In view of the same, this Court is inclined to quash office order dtd.08.02.2012 so Page 5 of 6 // 6 // passed by Opp. Party No. 1 under Annexure-8. While quashing the same, this Court directs Opp. Party No. 1 to release the pension as deducted from the Petitioner’s pension in terms of the order dtd.08.02.2012 in favour of the Petitioner Nos. 1(a) to 1(d) within a period of three (3) months from the date of receipt of this order.
Arguments
2. Heard Mr. A.K. Pattnaik, learned counsel for the Petitioners and Mr. S.K. Samal, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. The deceased Petitioner has filed the present writ petition inter alia challenging the order of punishment passed against him by Opp. Party No. 1 vide order dtd.08.02.2012 under Annexure-8. Vide the said order 30% of the pension of the deceased Petitioner for a period of 3 years was withheld. 4. It is the case of the deceased Petitioner that with regard to death of some students at Burla, a proceeding was initiated against the deceased Petitioner in the year 1986 under Annexure-1. In the said proceeding the deceased Petitioner not only filed his written statement of defence but also participated in the enquiry. The Enquiry Officer after completing the enquiry submitted the report // 2 // on 09.08.1992 under Annexure-3 by exonerating the deceased Petitioner from the charges. The finding of the Enquiry Officer is quoted hereunder:- “Thus from the above statements and exhibits I do not hold the charged Officer guility of the charges levelled against him.” 4.1. It is contended that on the face of such report submitted by the Enquiry Officer, Opp. Party No. 1 while disagreeing with the view of the Enquiry Officer, issued the memorandum on 23.08.1993 under Annexure-4. The deceased Petitioner on receipt of the said disagreement note along with the show-cause, submitted his reply under Annexure-5. But without proper appreciation of the reply so submitted, the deceased Petitioner was issued with the 2nd show- cause on 27.06.2011 under Annexure-6, wherein proposal was made to reduce the pension of the Petitioner to the extent of 65% for a period of 10 years. The deceased Petitioner on receipt of the 2nd show-cause submitted his reply under Annexure-7. But basing on the opinion rendered by the Odisha Public Service Commission in its letter dtd.14.12.2011 under Annexure-8, the deceased Petitioner was imposed with the punishment of withholding of 30% of pension for a period of 3 years vide the impugned order dtd.08.02.2012 under Annexure-8. 4.2. Learned counsel for the Petitioners contended that for the self same charges, the then Officer-in-charge, Burla P.S. was also proceeded with in another disciplinary proceeding. In the said proceeding, the said delinquent employee though was imposed with the punishment of dismissal from services, but such order of
Decision
7. The writ petition is disposed of accordingly. (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: 28-Feb-2024 14:59:11 Page 6 of 6