The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No. 3264 of 2024 Arising out of judgment dated 08.11.2024 passed by a learned Single Judge in W.P.(C) No. 20444 pf 2019. Swayam Bikash Das State of Odisha and others -Versus- …. …. Appellant Respondents Advocates appeared in this case: For Appellant : M/s. Sidheswar Mallik, P.C.Das, M. Mallik & S.Mallick, Advocates For Respondents : Mr. Satyabrata Mohanty, Additional Government Advocate CORAM:
Legal Reasoning
submission he relies upon a Coordinate Bench decision of this Court in Pratap Kishore Dash v. High Court of Orissa,1. (ii) There was a coordinate proceeding taken at the hands of learned Single Judge in W.P.(C) No. 4062 of 2018 wherein vide order dated 12.04.2018 a direction was issued to accomplish the disciplinary proceedings in a time bound manner and further application of the other side seeking extension of period was rejected; that being the position after the lapse of said period prescribed by the Court, further proceedings could not have been held at all. (iii) The disciplinary proceedings were initiated after a long lapse of time and therefore in the light of Apex Court decision in M.V. Bijlani v. Union of India (UOI),2 the same was hit by the doctrine of latches which aspect learned Single Judge has lost sight of. (iv) Lastly, the appellant has not committed any misconduct inasmuch as he had only carried out the instructions of his superior and further that he had not scripted PAR (Performance Appraisal Report) as sought to be made out by the other side but had only placed the service record on the table of jurisdictional authority. 1 2009 (Supp.-II) OLR 377 (paras 15 & 16). 2 AIR 2006 SC 3475 Page 2 of 8 3. Learned counsel appearing for the respondents resists the appeal making submission in justification of the impugned order and the reasons on which it has been structured. Learned counsel controverted both the propositions of lawand the factual statement made from the side of petitioner-appellant. He tells that the scope of intra-Court appeal in general and writ jurisdiction in particular, is very restrictive and therefore this Court should not approach the matter as if it is a regular appeal. 4. Having heard the learned counsel for the parties and having perused the appeal papers, we decline indulgence in the matter for the following reasons: 4.1. The first submission that under Rule 7(1) of 1992 Rules there could not have been punishment of withholding of increment for any period in the absence of proven loss to the Government, is difficult to countenance. Reasons for this are not far to seek: (a) The said provision reads as under: “7. Right of Government to Withhold or Withdraw Pension- to themselves (1) The Government reserve the right of withholding a pension or gratuity, or both either in full or in part, or withdrawing a pension in full or in part. whether permanently or for specified period and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence in duty during the period of his service including service rendered on re-employment after retirement: Provided that the Odisha Public Service Commission shall be consulted before any final orders are passed: Provided further that when a part of pension is withheld/withdrawn, the amount of such pension shall not be reduced below the amount of minimum limit.” Page 3 of 8 (b) The language of Sub-Rule (1) of Rule 7 is as clear as Gangetic waters. It is easily discernible that the said Rule contemplates two classes of cases, viz., (i) the cases where misconduct is generally committed, and (ii) the cases where the misconduct committed occasions loss to the Public Exchequer. In the former, any punishment including withholding of pension, in part or in full, can be ordered, and that there is no limit as to how long such withholding should enure. In the latter, the total amount to be recovered by way of withholding of pension shall be limited to the loss occasioned to the State. This subtle difference emerging from the text of the Rule, justifies our view. (c) The reliance placed by learned counsel for the appellant on Pratap Kishore Dash supra would not come to his aid. Paragraphs 15 & 16 of the said decision read as under: “15. On a perusal of the provisions of Rule 7 of the Orissa Civil Services (Pension) Rules, 1992, it is seen that the said provisions protects the right of the Government to withhold a pension or a gratuity, or both, either in full or in part or withdraw the pension, in full or in part and ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence in duty during the period of his service. Sub-Rule (2) provides that such departmental proceeding instituted while the Government servant was in service, shall, after his retirement, be deemed to be a proceeding under the said Rules and shall be continued and concluded by the authority by which such proceedings were commenced, in the same manner as if the Government servant had continued in service. 16. In the present case, the departmental proceeding in D.P. No.4 of 1993 had been initiated against the petitioner under the provisions of the Orissa Civil Services (Classification, Control and Appeal) Rules 1962. The order of punishment passed against the petitioner is only to the effect that his period of suspension shall be treated as such. There is no order of the disciplinary authority i.e. the High Court, holding the petitioner guilty of any grave misconduct or negligence in duty during the period of his service, thereby causing any pecuniary loss to the Government. Moreover, no recovery has Page 4 of 8 been directed to be made from the petitioner for causing any such pecuniary loss to the Government during his service, which is to be recovered from his pension or gratuity. Hence, the provisions of the Orissa Civil Services (Pension) Rules, 1992, have no application to the case of the petitioner.” (d) There is much scope for the clarity of law declared in the above decision, cannot be much disputed. Be that as it may; the above paragraphs cannot be construed to mean that in the cases not involving pecuniary loss but involving some other misconduct would not attract the provisions of Rule 7(1). Any other construction if placed on the Rule would render the first part of it otiose. The writings of sages of law, such as Crawford, Sutherland & Justice G.P. Singh frowned upon “otiose construction”. Secondly the observations in the above two paragraphs appear to be more case specific than laying a wide proposition of law. It hardly needs to be stated that a case is an authority for the proposition that is laid down in its given fact matrix and not for all that which would logically follow from what has been so laid down vide Quinn v. Leathem,3. 4.2. The next contention of learned counsel for the appellant that the time limit prescribed by a learned Single Judge in the cognate case having expired, and the request for its elongation having been negatived, the entire disciplinary proceeding is liable to be fall down to the ground, is difficult to subscribe with. True it is that time limit was prescribed for accomplishing the disciplinary proceedings and a formal request for extension of the period was not acceded to. However, violation of prescribed timelines cannot be construed as invariably being mandatory. 3 [1901] UKHL 2 Page 5 of 8 What we are reading is the judgment of learned Single Judge in
Arguments
THE HON’BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD AND THE HON’BLE MR. JUSTICE MRUGANKA SEKHAR SAHOO J U D G M E N T -------------------------------------------------------------------------------------- Decided on: 07.07.2025 -------------------------------------------------------------------------------------- PER DIXIT KRISHNA SHRIPAD, J. This intra-court appeal seeks to call in question a learned Single Judge’s order dated 8th November, 2024 whereby appellant’s W.P.(C) No. 20444 of 2019 has been negatived. In the said writ petition appellant-employee now a pensioner had called in question the order of punishment in a disciplinary proceeding whereby five per cent withholding of pension for a period of one year was directed. Page 1 of 8 2. Learned counsel appearing for the appellant urged the following points for consideration for the invalidation of impugned order: (i) Under Rule 7(1) of Odisha Civil Services (Pension) Rules, 1992 awarding of punishment of withholding of pension in the absence of proven loss to the Government is impermissive. In support of this
Decision
appellant’s WP(C) No. 4062 of 2018 disposed of on 12.04.2018 and not the statute of Westminster Abbey or Euclid’s Theorem. The principles that govern construing of a Court judgment are much different from the principles of interpretation of statute vide Aswini Kumar Singh v. U.P. Public Service Commission,4. If intention of learned Single Judge was to the contrary, he would have interdicted continuation of the proceedings after the expiry of the timeline. However, such observations are not brought to our notice and therefore whatever timeline prescribed has to be construed as directory, more particularly when prejudice is not demonstrated as arising from continuation of the proceedings. 4.3. The submission on behalf of the appellant that the very initiation of disciplinary proceedings is struck by doctrine of delay & laches, is liable to be rejected, regard being had to the very nature of proceedings. Such a contention ought to have been hard pressed in the earlier round of litigation itself. In fact, such a contention appears to have been taken there. Therefore, its re-agitation needs to be resjudicated inasmuch as the doctrine of res judicata applies to writ proceedings as well, regardless of applicability of Section 11 of CPC, 1908 stricto sensu. In any circumstance, constructive res judicata comes in the way of appellant tapping the writ jurisdiction on this ground. The reliance placed by the counsel on Bijlani supra would not further his case, either. There is no hard & fast rule of limitation for initiation & accomplishment of disciplinary inquiry, there cannot be in any circumstance a mandatory rule. As already mentioned above, whether there are delay & laches have to be ascertained from facts & circumstances of individual case. It is on 4 (2003) 11 SCC 584 Page 6 of 8 record that even this point was urged in his earlier round of litigation or at least could have been urged. At this point of time, we do not allow the arguable benefit of the doctrine of delay & laches, more particularly in the absence of demonstrable prejudice. We hasten to add that proceedings of the nature should be initiated & accomplished, ideally speaking, “Before The Memory Fades”. 4.4. Next contention of the appellant that his client did not commit any misconduct and therefore the other side ought to have examined the cited witnesses to prove the guilt to the hilt, again is liable to be rejected. Appellant in so many words had taken up a stand before disciplinary authority that he had accomplished the alleged act only on instructions of higher up and therefore he ought to have proved such assertion to be true & correct. It hardly needs to be stated that the asserter of fact suffers the burden of proof inasmuch as the negative cannot be easily proved by the other side. No explanation is offered by the appellant as to why he did not call for the record or statement of the higher official, who had allegedly instructed him to do the task in question. Absolutely no evidentiary material was placed before disciplinary authority to vouch the assertion. That apart, whether there was such an instruction being a question of fact, a writ court cannot undertake a deeper examination and therefore we too have the same constraint, the proceedings at our hand being the continuation of the original ones. Matter essentially belongs to the domain of the disciplinary authority, who, acting on the enquiry report, has formed an opinion. 4.5. The related contention that the disciplinary authority ought to have examined the witnesses cited in the proceedings, does not merit Page 7 of 8 consideration, there being specific admission on the part of the appellant as to he having done the alleged act on the instructions higher ups in the hierarchy. An admitted position does not require any evidence, oral or documentary. This proposition is as old as the mountains. Further, it is for the Management to decide as to whether and which witnesses should be examined on its behalf, subject to all just exceptions. It hardly needs to be stated that in matters like this a writ courts cannot run a race of opinions with the Executive, there being traditional constraints with which they operate. In the above circumstances, this appeal, being devoid of merits, is liable to be dismissed and accordingly it is, costs having been made easy. The observations hereinabove being confined to disposal of the appeal shall not cast their light or shadow on any other proceedings, pending or contemplated. (Dixit Krishna Shripad) Judge Judge (M.S. Sahoo) Orissa High Court, Cuttack The 7th day of July, 2025/Dutta Signature Not Verified Digitally Signed Signed by: AJIT KUMAR DUTTA Reason: Authentication Location: ohc Date: 10-Jul-2025 22:03:00 Page 8 of 8