The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) No.1165 of 2017 Prasanta Kumar Panigrahi ..... State of Odisha & Ors. -versus- ..... Petitioner Mr. K.P. Mishra, Sr. Advocate along with Mr. A. Mishra, Advocate Opposite Parties Mr. S. Jena, AGA Mr. G.P. Dutta, Advocate (Opp. Party No. 3) THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY CORAM: ORDER 25.06.2024 Order No. 06 1. This matter is taken up through hybrid mode.
Legal Reasoning
2. Heard Mr. K.P. Mishra, learned Sr. Counsel appearing for the Petitioner along with Mr. A. Mishra, Mr. S. Jena, learned Addl. Govt. Advocate appearing for the State and Mr. G.P. Dutta, leraned counsel appearing for Opp. Party No. 3. 3. Petitioner has filed the present writ petition inter alia with the following prayer:- “In view of the facts mentioned in Para- 6 above, the applicants pray for the following relief(s): (i) Quash the order, dated 19.04.2017 under Annexure-7 as the same is not sustainable and/or maintainable in the Page 1 of 7. (ii) eye of law as fare as it relates to the applicant; Pass such other order(s) or issue direction (s) as may be deemed fit and proper in the bona fide interest of justice.” 4. Learned counsel for the Petitioner contended that Petitioner while continuing in the establishment of Odisha Police vide office order dtd.21.07.2010 under Annexure-2, he was deputed to Odisha State Police Housing And Welfare Corporation Ltd., Bhubaneswar (in short Corporation). 4.1. It is contended that while so continuing in the establishment of Opp. Party No. 3, Petitioner was issued with the show-causes for recovery of losses towards deficit of materials vide letters issued on 31.01.2017 under Annexure-3. It is contended that on receipt of the show-causes issued under Annexure-3 Petitioner vide his letter dtd.09.02.2017 under Annexure-4, requested Opp. Party No. 2 to provide him the details basing upon which losses have been arrived at and thereafter allow him 15 days’ time to submit his reply to the show-causes. In terms of the request made by the Petitioner under Annexure-4, Petitioner though was permitted to peruse the documents vide letter dtd.02.03.2017 under Annexure-5, but Petitioner when was not provided with the documents on his appearance, Petitioner vide letter dtd.08.03.2017 under Annexure-6 requested Opp. Party No. 2 to provide him the documents/records in order to defend himself. 4.2. It is contended that without complying the request made by the Petitioner vide Annexure-6 and without initiation of any proceeding to determine the liability of the Petitioner towards the loss in Page 2 of 7. question as indicated in the show-causes issued under Annexure-1, the impugned order was passed by Opp. Party No. 1 on 19.04.2017 under Annexure-7 by holding the Petitioner responsible and for recovery of an amount to the tune of Rs.43,20,895/-. 4.3. Learned counsel for the Petitioner contended that since the amount in question was never determined with due initiation of any proceeding and by following the principle of natural justice, the impugned order so far as it relates to the Petitioner is not sustainable in the eye of law. It is also contended that the Tribunal vide order dtd.11.05.2017 while directing the State Counsel to obtain instruction, passed an interim order to the effect that no action pursuant to the impugned order to be taken against the Petitioner. 4.4. It is contended that since the amount in question for which the Petitioner has been held liable vide the impugned order dtd.19.04.2017 was never determined with initiation of any proceeding and by following the principle of natural justice, Petitioner should not have been held liable to pay back the amount. It is accordingly contended that the impugned order so far as it relates to the petitioner is not sustainable in the eye of law. 5. Mr. G.P. Dutta, learned counsel appearing for Opp. Party No. 3 on the other hand contended that Petitioner after being deputed to the Corporation in terms of Office order dtd.21.07.2010, he was allowed to officiate as Deputy Manager vide office order dtd.06.12.2010 under Annexure-B/3. It is contended that while so continuing under the Corporation basing on the allegation made with regard to execution of different projects under Bhawanipatna Page 3 of 7. Division of the Corporation, Vigilance Cell, Cuttack registered Vigilance Cell P.S. Case No. 11 to 17 dtd.30.06.2015 against the Petitioner under Sec. 13(2) r.w. 13(1)(c)(d) fo the P.C. Act, 1988 r.w. Sec. 409/120-B of the Indian Penal Code. Thereafter, Petitioner was issued with the show-cause on 31.01.2017 vide Annexure-3 and after receipt of the show-cause, when Petitioner made an application to allow him to peruse the documents in order to enable him to submit his reply on 09.02.2017 under Annexure-4, he was allowed to peruse the documents vide letter dtd.02.03.2017 under Annexure-5. But Petitioner after perusing the documents, never filed his explanation and accordingly, Opp. Party No. 3 passed the impugned order dtd.19.04.2017 under Annexure-7 and held the Petitioner responsible to the extent of Rs.43,20,895/-. 5.1. It is contended that such an order was passed in terms of the provisions contained in the Amended Bye-law of the Corporation, more particularly under Rule 9(c) & (d) of the said Bye-law. Rule 9(c) & (d) of the Bye-law reads as follows:- “9(C) PUNISHMENT: i) The appointing authority dismiss/remove/discharge/reduce is competent rank to and in compulsorily retires any subordinate employee of the corporation other than those on deputation to this corporation. ii) A temporary sub-ordinate or sub-ordinate officer who has not been declared permanent or who has served the Corporation for less than 3 years can be discharged by the appointing authority without showing any reason. iii) The following punishments can be awarded by the competent officers explained below a) Dismissal, removal Page 4 of 7. b) Censure in the service book c) Warning in the service book d) Forfeiture of increment with or without cumulative effect e) Reduction in rank f) Monetary penalty g) Recovery for loss, dues, damage caused to the Government properties h) Compulsory retirement. D) A regular enquiry with reasonable opportunities within the meaning of the principles of natural justice shall be afforded while penalties specified at (a), (d), (e) and (h) of Rule 9(C) (iii) are imposed on the delinquent by the Chairman-cum-Managing Director, being the appointing authority. All other penalties as at (b), (c), (f) and (g) of Rule 9(C) (iii) are imposable by the CMD or Managing Director of the Corporation or by any other authority as may be specified in writing by the CMD in that behalf." 5.2. It is contended that in view of the provisions contained under the Bye-law vide Rule 9(c) & (d), Petitioner was issued with the show-causes under Annexure-3. But since Petitioner never filed any reply to the show-causes even after perusing the documents, Petitioner was held liable for recovery of the amount in question and accordingly, the order under Annexure-7 was passed. It is accordingly contended that the impugned order has been rightly passed and it requires no interference. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioner was deputed to work under the Corporation vide order dtd.21.07.2010 under Annexure-2. Pursuant to the said order, Petitioner was allowed to officiate as Deputy Manager in the Page 5 of 7. Corporation vide order dtd.06.12.2010 under Annexure-B/3. Alleging loss towards deficit materials, Petitioner though was issued with various show-causes on 31.01.2017 under Annexure-3, but no document has been filed by the Opp. Party-Corporation showing that Petitioner was provided with the documents, basing on which allegation of loss was raised vide Annexure-3. No document has been filed by the Corporation showing that the Petitioner was provided with the records/documents relating to different projects during his incumbency, basing on which the show-causes were issued after issuance of letter dtd.08.03.2017 under Annexure-6. 6.1. Not only that since the amount in question is very substantial, it is the view of this Court that Petitioner could not have been held liable for refund of the amount so indicated in the impugned order without initiation of a properly constituted proceeding with disposal of the same in accordance with law. The manner in which Petitioner has been saddled with the liability, as per the considered view of this Court is not just and proper. 6.2. In view of the aforesaid analysis, this Court is inclined to quash office order dtd.19.04.2017 so passed by Opp. Party No. 3 under Annexure-7 so far as it relates to the Petitioner. However, quashing of the order will not preclude Opp. Party No. 3 to determine the liability against the Petitioner by initiating a properly constituted proceeding in accordance with law. Since it is contended that in the meantime Petitioner has been reverted back to his parent Department, Opp. Party No. 3 will also be at liberty to move Opp. Party No. 1 for recovery of the amount for which show-causes were Page 6 of 7. issued to the Petitioner vide letter dtd.31.01.2017 under Annexure- 3. 7. The writ petition is disposed of with the aforesaid observation and direction. Sneha (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 28-Jun-2024 18:46:07 Page 7 of 7.