The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC (OAC) No.1935 of 2017 Asutosha Behera …. Petitioner Mr. B. Mansingh, Advocate State of Odisha & Others -versus- …. Opposite Parties Mr. C.K. Pradhan, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 04.03.2025 Order No. 15. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the Parties. 3. The Present Writ Petition has been filed inter alia challenging the order of punishment passed by Opposite Party No.1 vide order dtd.10.05.2017 under Annexure-7. Vide the said order, while disposing the proceeding initiated against the Petitioner vide Memorandum dtd.09.04.2015, the following punishment was imposed on him:- “1. Recovery of Rs.2,07,732/-. 2. Stoppage of cumulative effect”. two annual increments with 4. While assailing the order of punishment, learned counsel appearing for the Petitioner contended that the proceeding in question was initiated jointly against the present Petitioner and two other delinquent employees in terms of the provisions contained under Rule-15 and // 2 // 17 of the OCS (CC&A) Rules, 1962 (in short ‘Rules’). In the said proceeding the following charges were jointly framed against all the three delinquent employees, which includes the present Petitioner. “1. Gross misconduct; 2. Gross negligence and dereliction in Government duty; 3. Lack of supervision; 4. Misappropriate of Rs.2,54,969/-”. 4.1. It is contended that even though the proceeding was initiated under Rule-17 of the Rules, the Enquiry Officer with mala fide intention while holding the other two delinquent employees not guilty of the charges, held the present Petitioner guilty of the charges. Ultimate finding of the enquiry officer reads as follows:-
Legal Reasoning
“CONCLUSION In view of the above findings of the enquiry, it is concluded beyond reasonable doubt that Sri Asutosh Behera, AAE has neglected in his duty for which the excess payment for an amount of Rs.2, 07,732/- (Net) caused to Govt. Thereby he has made him liable to make good the loss caused to Govt. But the Delinquent Officer during the course of inquiry produced written consent of the executants in the form of undertaking to repay the excess paid amounts which are submitted as Annexure III, IV & V. Hence there may be no loss to the Government exchequer. In case the excess paid amount is not refunded by the executants the said amount may be recovered from Sri Asutosh Behera, AAE to make good the loss of Govt. Money. The charges against Sri Pradip Kumar Paikray, EE, Agrl. and Sri Guru Prasad Patnaik, AAE, Cuttack Range are not substantiated. It is therefore recommended to "exonerate" them for their lapses”. Page 2 of 10 // 3 // 4.2. It is contended that in course of hearing since nothing came out with regard to the alleged mis- appropriation against all the three delinquent employees while not holding the other two employees guilty of the charges, the Enquiry Officer intentionally and deliberately held the Petitioner liable to pay a sum of Rs.2,07,732/-. 4.3. It is contented that after receipt of the enquiry report, Petitioner was issued with the 1st and 2nd show cause in terms of the provisions contained under Rule- 15 of the Rules. In his reply submitted to the 2nd show cause, Petitioner though submitted the representation on 03.01.2017 inter alia contending the irregularities committed by the Enquiry Officer in holding the Petitioner only guilty of the charges with regard to the alleged mis-appropriation, but the disciplinary authority-Opposite Party No.1 without proper appreciation of the same imposed the punishment of recovery of Rs.2,07,732/- and stoppage of two annual increments with cumulative effect. 4.4. It is contended that since the Enquiry Officer did not find any material with regard to misappropriation while conducting the enquiry, Petitioner should not have been held guilty of the charges, while exonerating the other two employees. 4.5. It is also contended that the work in question for which Petitioner has been held liable to pay the amount Page 3 of 10 // 4 // was executed in the year 2008 and the same was executed in terms of the guidelines issued on 03.10.2008 under Annexure-1-Series. Much after the completion of work and basing on the verification made in the year 2011, the proceeding in question was initiated vide Memorandum dtd.09.04.2015 under Annexure-3-Series. 4.6. It is contended that since the work was executed in the year 2008, basing on the enquiry conducted in the year 2011, the proceedings could not have been initiated in the year 2015 with the charges as indicated hereinabove. 4.7. It is also contended that even though the contractors who executed all the three works gave undertakings to refund the excess payment, but without taking any step to recover the amount from them in terms of the said undertaking, Opposite Party No.1 completely saddled the liability on the Petitioner for recovery of Rs.2,07,732/- along with stoppage of two annual increments with cumulative effect. 5. Making all the submissions, learned counsel for
Decision
the Petitioner contended that the impugned order is not sustainable in the eye of law and requires interference of this Court. 6. Mr. C.K. Pradhan, learned Addl. Government Advocate for the State on the other hand made his Page 4 of 10 // 5 // submissions basing on the stand taken in the counter affidavit so filed by Opposite Party No.1. It is contended that though the work in question was executed under NFSM Scheme in the year 2008-09 and funds to the tune of Rs.28,84,000/- was released for construction of four nos. of threshing floor, but in the Vigilance enquiry conducted by the Department in the year 2011, it was found that the work has not been done in terms of the Scheme. In the vigilance enquiry when it came to the knowledge that excess payment to the tune of Rs.2,54,979/- has been made because of inflated measurement, basing on the letter issued by the Vigilance Department on 09.02.2015 under Annexure- A/1 to the counter affidavit, the proceeding in question was initiated against the Petitioner and two other employees vide Memorandum dtd.09.04.2015. 6.1. It is contended that since the inflated measurement was made by the Petitioner and the amount in question was released in excess, in favour of three contractors by the Petitioner itself, the Enquiry Officer only held the Petitioner guilty of the charges while exonerating the other two employees. 6.2. It is also contended that since by inflating the measurement excess payment was made in favour of the three contractors by the present Petitioner and there is a loss to the State Exchequer, basing on the report of the vigilance department so available under Page 5 of 10 // 6 // Annexure-A/1 and finding of the enquiry officer in his report under Annexure-6, the order of punishment was imposed after due compliance of the provisions contained under Rule-15 of the Rules and by giving due opportunity of hearing to the Petitioner. 6.3. It is accordingly contended that no illegality or irregularity can be found with the impugned order of punishment passed under Annexure-7. Such a punishment was also imposed by taking due concurrence of the Orissa Public Service Commission. 7. Considering the stand taken by the Petitioner that on the face of undertakings given by three contractors so available under Annexure-6 and instead of recovering the amount from the contractors in terms of such undertaking, the amount has been saddled on the Petitioner, this Court considering such stand passed the following order on 02.12.2024 and further order on 06.01.2025:- “02.12.2024 1. This matter is taken up through hybrid mode. 2. Pursuant to the order passed by this Court on 20.11.2024, learned Addl. Govt. Advocate basing on the instruction so provided contended that even though there is no interim order, but the amount in question which has been saddled on the Petitioner has not been recovered as yet. It is also contended that steps are being taken to recover the amount from the Petitioner. 3. However, this Court after going through the enquiry report so available under Annexure-6 finds that in course of enquiry the delinquent employee/Petitioner Page 6 of 10 // 7 // produced the written consent of the executants, who executed the work in question to repay the excess payment made to the tune of Rs.2,07,732/-. 4. In view of such finding given by the Enquiry Officer is so available under Annexure-6, directed to obtain instruction as to whether the amount in question has been recovered from those contractors who executed all the three (3) works basing on the undertaking given by them so produced by the Petitioner. learned AGA 5. As requested, commencing 6th January, 2025. list this matter in the week 06.01.2025 This matter 1. Arrangement (Virtual/Physical) Mode. taken up is through Hybrid 2. Heard learned counsel for the parties. 3. Pursuant to the order passed by this Court on 02.12.2024, instruction provided by the Department produced in Court be kept in record. 4. Considering the stand taken in the instruction, this Court directs learned Addl. Govt. Advocate to obtain further instruction with regard to date of release of the entitlements of the 3 (three) contractors who produced the undertaking before the Enquiry Officer through the petitioner for recovery of the amount in question. 5. As requested by learned Addl. Govt. Advocate, list this matter in the week commencing 27.01.2025. Free copy to Mr. C.K. Pradhan, learned Addl. Govt. Advocate for compliance”. 7.1. Pursuant to the orders passed by this Court on 02.12.2024 and 06.01.2025, the Department while providing the instruction vide letter dtd.24.01.2025 when contended that on the face of the undertaking given by the three contractors, Petitioner himself released the amount without deducting the same from Page 7 of 10 // 8 // their entitlement, the following order was passed by this Court on 28.01.2025. “28.01.2025 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing fort the Parties. 3. Pursuant to the order dtd.06.01.2025, learned Addl. Government Advocate produced further instruction provided by the Department vide letter dtd.24.01.2025. It is contended that on the face of the undertaking given by the the concerned contractor so produced by Petitioner, the Petitioner himself released the amount as due to all those three contractors on different dates. 4. Copy of the instruction is also provided to Mr. Mansingh, the Petitioner in Court today. learned counsel for 5. As requested by him, list this matter in the week commencing 24th February, 2025.” 8. I have heard Mr. B. Mansingh, learned counsel appearing for the Petitioner and Mr. C.K. Pradhan, learned Addl. Government Advocate for the State. On the comment of the Parties the matter was taken up at the stage of admission with due exchange of the pleadings for disposal. 9. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that the proceeding in question vide Page 8 of 10 // 9 // Memorandum dtd.09.04.2015 under Annexure-3- Series was initiated against the Petitioner and two other delinquent employees on various charges. Such a proceeding was initiated basing on the report submitted by the vigilance department in its letter dtd.09.02.2015 under Annexure-A/1 to the counter affidavit filed by the State. 9.1. As found, the Enquiry Officer while conducting the enquiry and submitting the report under Annexure- 6, held the Petitioner only guilty of the charges while exonerating the two other delinquent employees. Basing on such finding of the enquiry officer, Petitioner was issued with the 1st and 2nd show cause and in the 2nd show cause so issued, Opposite Party No.1 proposed to impose the punishment of recovery of an amount of Rs.2,07,732/- and stoppage of two annual increments with cumulative effect. 9.2. This Court after going through the materials available on record finds that on due consideration of the stand taken by the Petitioner in his written statement of the defence as well as the reply of the 1st and 2nd show cause, Opp. Party No.1 imposed the punishment so proposed in the 2nd show cause vide the impugned office order dtd.10.05.2017 under Annexure- 7. Taking into account the fact that on the face of the undertaking given by the three contractors, Petitioner has himself released their entitlement without Page 9 of 10 // 10 // recovering the same, the proceeding has been disposed of in accordance with law, this Court finds no illegality or irregularity with regard to the conduct of the proceeding or with regard to imposition of punishment in question vide the impugned order dtd.10.05.2017 under Annexure-7. 10. Accordingly, this Court is not inclined to interfere with the impugned order and dismiss the Writ Petition. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Mar-2025 10:52:49 Page 10 of 10