The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OA) No.293 of 2011 Surendra Nath Panda …. Petitioner Mr. A. Rath, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. S.K. Samal, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 18.12.2023 Order No 11. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. A. Rath, learned counsel for the Petitioner and Mr. S.K. Samal, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. The Petitioner has filed the present writ petition inter alia challenging the order of punishment passed against him vide order dtd.11.11.2020 under Annexure-16. 4. Learned counsel for the Petitioner contended that Petitioner while continuing in service, a proceeding was initiated against him on 05.05.2004 under Annexure-1. In the said proceeding Petitioner duly participated in the enquiry after filing his written statement of defence. The Enquiry Officer after conducting the enquiry submitted the enquiry report under Annexure-10 inter alia with the following finding:- “The charges framed against both the D.Os are, thus, established. Bork of them were found to have neglected their // 2 // duties either knowingly or unknowingly, for which Government have sustained such huge loss. It is recommended that 5% pension of both the D.Os be held up for a period of five years.” 4.1. It is contended that on receipt of the enquiry report, Petitioner was issued with the 1st show-cause on 28.09.2006 under Annexure- 11. The Disciplinary Authority-Opp. Party No. 1 after considering the reply submitted to the 1st show-cause, issued the 2nd show-cause on 01.07.2009 under Annexure-13/1 inter alia proposing therein to impose the following punishment: “Pension be reduced by 25%.” 4.2. Learned counsel for the Petitioner contended that while issuing the 2nd show-cause by proposing the punishment of reduction of pension by 25% in terms of the provisions contained under Rule 15(10) of OCS (CCA) Rules, 1962, no disagreement note was given by the Disciplinary Authority, which is mandatory in nature. It is also contended that the proposed punishment was recommended to the OPSC in terms of the provisions contained under Rule 15(10) and OPSC after due consideration of the proposal, gave its advice under Annexure-15 to the following effect:- “I am directed to say that, after perusal of all the relevant records relating to the proceeding against Sri Prafulla Chandra Mohapatra, Ex-Executive Engineer, M.I. Division, Kalahandi (retired) and Sri Surendra Nath Panda, Ex-Executive Engineer, M.I. Division, Kalahandi (retired), the Commission is of the view that the proposed punishment to reduce the pension of both the delinquent officer by 25% permanently would be disproportionate to the quantum of delinquency committed including the amount of loss sustained by the Government. The Commission, to meet the ends of the justice, recommends for withholding 25% of the Page 2 of 5 // 3 // pension of both the delinquent officers for period of five years.” 4.3. It is contended that on the face of the advice given by the Commission and the recommendation made by the Enquiry Officer, the Disciplinary Authority while disposing the proceeding vide the impugned order dtd.11.11.2020 passed the order of punishment by reducing the pension of the Petitioner to the extent of 25% permanently. It is contended that since OPSC in its advice under Annexure-15 opined to reduce the pension of the Petitioner to the extent of 25% for a period of 5 years as provided under Rule 15(10)(2) of the Rules, the Disciplinary Authority while imposing the order of punishment contrary to the advice of the Commission has to assign reason for such disagreement with the advice of the Commission. 4.4. It is contended that in the impugned order of punishment passed against the Petitioner under Annexure-16, no disagreement note has been given by the Opp. Party No. 1 on the face of the advice given by the Commission. It is accordingly contended that since the provisions contained under Rule 15(10)(2) has not been followed while imposing the punishment against the Petitioner vide the impugned order under Annexure-16, the same is not sustainable in the eye of law. It is further contended that Petitioner if will be imposed with the punishment as advised by the Commission, Petitioner will have no grievance. 5. Mr. S.K. Samal, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that in the proceeding initiated against the Petitioner under Annexure-1, the Enquiry Officer while finding the Petitioner guilty of the charges, but recommended for reduction of Page 3 of 5 // 4 // pension to the extent of 25% for a period of 5 years. The Disciplinary Authority after giving opportunity to the Petitioner to file his reply to the enquiry report under Annexure-11 and in consideration of the reply submitted by the Petitioner, while issuing the 2nd show-cause on 01.07.2009 under Annexure-13/1, proposed therein to impose the punishment of reduction of pension to the extent of 25%. It is found that while issuing the 2nd show-cause under Annexure-13/1, the Disciplinary Authority gave his disagreement note to the recommendation made by the Enquiry Officer. 5.1. It is also contended that even though the Commission while submitting his advice under Annexure-15, recommended to impose the punishment of reduction of pension to the extent of 25% for the period of 5 years, but the Disciplinary Authority since found that the Petitioner has been held guilty of the charges by the Enquiry Officer, the said authority while disagreeing with the view of the Commission passed the impugned order of punishment by directing withholding 25% of pension permanently. It is accordingly contended that Opp. Party No. 1 has not committed any illegality or irregularity with regard to imposing the punishment against the Petitioner vide Annexure-16. 6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that in the proceeding initiated against the Petitioner under Annexure-1, the Enquiry Officer though found the Petitioner guilty of the charges, but recommended for reduction of 5% of pension for a period of 5 years. After considering the reply submitted by the Petitioner to the 1st show-cause, the Disciplinary Authority while issuing the 2nd show-cause under Annexure-13/1, proposed to Page 4 of 5 // 5 // impose punishment of reduction of 25% of pension permanently. It is found from the 2nd show-cause under Annexure-13/1 that the Disciplinary Authority while disagreeing with the view of the Enquiry Officer suggested such punishment. 6.1. As found from the record, the Commission on being referred with the proposed punishment gave its advice under Annexure-15 by advising the Disciplinary Authority to impose punishment of 25% of reduction of pension for a period of 5 years under Annexure-15. As found from the record while imposing the order of punishment vide order under Annexure-16, the provisions contained under Rule 15(10)(2) has not been followed as no disagreement note has been given by the Opp. Party No. 1 for disagreeing with the view of the Commission. 6.2. In view of such position, which is apparent on the face of the impugned order, this Court is inclined to interfere with the order of punishment so passed under Annexure-16. While interfering with the same, this Court directs Opp. Party No. 1 to withhold the pension of the Petitioner to the extent of 25% for a period of 5 years. This Court accordingly directs Opp. Party No. 1 to pass a fresh order to that effect within a period of four (4) weeks from the date of receipt of this order. On passing of such an order, recovery made beyond the period of 5(five) years be refunded to the Petitioner.
Decision
7. The writ petition is disposed of accordingly. Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-Dec-2023 12:46:28 Sneha (Biraja Prasanna Satapathy) Judge Page 5 of 5