The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAC) No.661 of 2019 Sachidananda Mohanty …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY
Decision
ORDER 03.02.2023 Order No 04. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. Gopal Sinha, learned counsel for the Petitioner and Mr. A.P. Das, learned Addl. Standing Counsel appearing for the Opp. Parties. 3. This writ petition has been filed challenging the order of punishment passed against the Petitioner vide office order dtd.30.07.2015 under Annexure-11. 4. It is contended that just prior to the retirement of the Petitioner, which was due on 30.04.2011 a proceeding was initiated against the Petitioner under Rule 15 of the OCS (CCA) Rule, 1962 by the Industry Department of Govt. vide Memorandum NO. 3829 dtd.04.03.2011. It is contended that in the said proceeding the Petitioner not only filed his written statement, but also participated in the enquiry. // 2 // 5. After completion of the enquiry the Enquiry Officer submitted a report under Annexure-7 series inter alia suggesting to impose the following punishment:- “One Annual increment may be stopped with cumulative effect and the period of suspension may be treated as such.” 6. It is contended that on receipt of the enquiry report along with the 1st show-cause, the Petitioner submitted his reply under Annexure-8. But the Disciplinary Authority-O.P. No. 1 without considering the reply so submitted by the Petitioner issued the 2nd show-cause by proposing the following punishment:- “Thus in pursuance of rule 7(1) (2) (a) of OCS (Pension) Rules, 1992, 5% of pension of Sri Mohanty (D.O.) may be stopped for five years.” 7. It is contended that since initially the proceeding in question was initiated under Rule 15 of the OCS (CCA) Rules, 1962, but taking into account the fact that the Petitioner retired from his service just after initiation of the proceeding, after receipt of the enquiry report and the reply to the 1st show-cause the proceeding file was processes once again and view of the Law Department was taken. 8. When the Law Department advised to follow the procedure laid down under Rule 7(2)(a) of the OCS (Pension) Rules, 1992, the same was accepted by the Authority. Not only that in the said proceeding file the Additional Secretary to the Department after going through the enquiry report and the reply submitted by the Petitioner proposed to impose punishment of reduction of 2% of pension for 5 years and the Secretary of the Department also did not object to the said proposal. But the Chief Secretary proposed to Page 2 of 5 // 3 // reduction on5% of the pension and the concurrence of the Hon’ble Chief Minister was also taken in the proceeding file vide Annexure- 9 series. 9. It is contended that basing on such view of the Chief Secretary and the concurrence by the Hon’ble Chief Minister, the 2nd show- cause was issued on 17.01.2014 under Annexure-9 series by proposing to impose punishment of major penalty of withholding 5% of the pension for 5 years and to treat the period of suspension as such under Rule 7(1) (a) of OCS (Pension) Rules, 1992. It is contended that since the proceeding was initiated by the Govt. i.e. Principal Secretary to Govt., MSME Department vide Memorandum dtd.04.03.2011 under Annexure-5 and after obtaining concurrence of the Law Department, the Additional Secretary as well as the Principal Secretary proposed to impose punishment to the extent of 2% reduction of the pension, the Chief Secretary had no occasion and no role to deal with the same by proposing 5% reduction. However, in terms of such view expressed by the Chief Secretary, O.P. No. 1 issued the 2nd show-cause by proposing punishment of withholding of 5% of pension for 5 years. It is contended that the Petitioner even though gave a detailed reply to the 2nd show-cause issued on 17.01.2014 vide Annexure-10, but the O.P. No. 1 passed the impugned order of punishment on 30.07.2015 under Annexure-11 by imposing penalty of 5% reduction of the pension for 5 years and to treat the period of suspension as such. 10. Even though notice of the matter was issued by the Tribunal on 30.04.2019, but in spite of several opportunity no counter affidavit has been filed. However, it is contended that even though the proceeding initiated against the Petitioner was initiated while he Page 3 of 5 // 4 // was in service under Rule 15 of the OCS (CCA) Rules, 1962, but taking into account the fact that the Petitioner retired from his service on 30.04.2011, the proceeding was converted to the proceeding under Rule 7(2)(a) of the OCS (Pension) Rules, 1992 with due permission of the Law Department. 11. It is also contended that while taking such concurrence of the Law Department the Addl. Secretary to Govt. of the Department in his note sheet proposed to impose punishment to the extent of 2% reduction of the pension for a period of 5 years. 12. Having heard learned counsel for the Parties and taking into account the materials available on record, this Court finds that after conclusion of the enquiry, the Enquiry Officer proposed the punishment i.e. stoppage of one annual increment with cumulative effect and to treat the period of suspension as such. Since by the time the Petitioner had already retired from his service basing on the view expressed by the Law Department the proceeding was converted to a proceeding under Rule 7 of the OCS (Pension) Rules, 1992. After such conversion of the proceeding to a proceeding under Rule 7 and after going through the materials available against the Petitioner as well as the view of the Enquiry Officer, the Additional Secretary to the Department proposed to impose 2% reduction from the pension of the Petitioner for 5 years. The said view was also accepted by the Secretary to the Department. But the Chief Secretary proposed to impose reduction of 5% and the same was concurred by the Hon’ble Chief Minister as reflected vide Annexure-9 series. 13. It is the view of this Court that the proceeding was initiated by the Secretary of the Department-O.P. No. 1 and as reflected from Page 4 of 5 // 5 // Annexure-9 series he concurred with the view of the Additional Secretary to impose reduction of 2% of pension. Therefore, the Chief Secretary had no occasion to propose 5% reduction, which was ultimately imposed vide the impugned order under Annexure- 11. Therefore, in view of the finding of the O.P. No. 1 in concurring with the view of the Additional Secretary to impose 2% reduction of pension, this Court is inclined to interfere with the order of punishment. While interfering with the same, this Court modifies the order of punishment by holding that the punishment will be confined to reduction of 2% of pension for 5 years. Since it is contended that the reduction @ 5% has already been effected, the Opp. Parties are directed to refund the excess drawal amount from the pension of the Petitioner within a period of three (3) months from the date of receipt of this order. 14. The writ petition is disposed of. (Biraja Prasanna Satapathy) Judge Sneha Page 5 of 5