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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.32321 of 2024 In the matter of an application under Articles 226 & 227 of the Constitution of India. ……………… Narasingha Sahu …. Petitioner -versus- State of Odisha and Others …. Opposite Parties For Petitioner : Mr. B. Mohanty, Advocate For Opp. Parties : Mr. S.P. Das, AGA PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------- Date of Hearing:10.12.2025 and Date of Judgment:10.12.2025 -------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. Heard Mr. B. Mohanty, learned counsel for the
Legal Reasoning
matter was carried to this Court in W.P.C(OAC) No.1852 of
Arguments
petitioner and Mr. S.P. Das, learned Addl. Standing Counsel for the State. 2. The present Writ Petition has been filed inter alia challenging order dated 29.11.2024, so issued by Opp. Party No.2 under Annexure-13. Vide the said order, while // 2 // disposing the proceeding, Opp. Party No.2 being the disciplinary authority, passed the order of punishment by directing recovery of a sum of Rs.6,51,039.13/- along with simple interest @ 18%. 3. Learned counsel for the petitioner contended that the proceeding in question was initiated vide Memorandum dated 04.11.1994 under Annexure-2. Initially without supplying the enquiry report, when the proceeding was disposed of, with passing of an order of punishment, the
Decision
2009. The said Writ Petition was disposed of by this Court on 06.03.2023 inter alia considering the submission of the learned Addl. Govt. Advocate that, the order of punishment has been passed without supplying copy of the Enquiry Report. 3.1. Accordingly, basing on such submission made by the learned Addl. Govt. Advocate, while quashing the order of punishment so passed, this Court directed O.P. No.2 to dispose of the proceeding in accordance with law. It is contended that by the time such an order was passed by this Court, petitioner had already retired from service on attaining the age of superannuation on 30.04.2017. Page 2 of 11 // 3 // 3.2. It is contended that since the proceeding could not be disposed of prior to retirement of the petitioner, the proceeding should have been disposed of in accordance with Rule-7 of the OCS(Pension) Rules, 1992 (in short Rules) and such order of punishment can only be passed by the Govt.-O.P. No.1. But on the face of the order passed by this Court on 06.03.2023 under Annexure-4, Opp. Party No.2 without taking step to convert the proceeding to a Rule-7 proceeding, passed an order of punishment vide the impugned order dated 29.11.2024 under Annexure-13 and that too in terms of the provisions contained under Rule-15 of the OCS(CCA) Rules, 1962. Rule-7 of the Rules reads as follows:- “7.Right of Government to Withhold or Withdraw Pension- (1) The Government reserve to themselves 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 judicial Government, proceedings, the pensioner is found guilty of grave misconduct or negligence in duty during the period of his service re- employment after retirement: in any departmental or including service rendered on if 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 11 // 4 // (2) (a) Such departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service, whether before his retirement or during his reemployment, shall, after the final retirement of the Government servant, be deemed to be a proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service: Provided that when the departmental proceedings are instituted by an authority, subordinate to Government that authority shall submit a report recording its findings to the Government. (b) such departmental proceedings as referred to in sub-rule (1) if not instituted while the Government servant was in service, whether before his retirement or during his reemployment- (i) shall not be instituted save with the sanction of Government; (ii) shall not be in respect of any event which took place more than four years before such institution ; and the Government may, direct and the procedure applicable (iii) shall be conducted by such authority and in such in place as accordance with to in which an order of departmental proceedings dismissal from service could be made in relation to the Government servant during his service; (c) [deleted] Vide Finance Department Notification No.33464/F., dtd.04.08.2006 (d) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceeding are instituted or where departmental proceedings are continued under clauses (a) and (b), a provisional pension as provided in rule 66 shall be sanctioned. (e) Where the Government decide not to withhold or withdraw pension but order recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant.” Page 4 of 11 // 5 // 3.3. It is contended that since petitioner during pendency of the proceeding retired on 30.04.2017, the proceeding could not have been disposed of in terms of the provision contained under Rule-15 of the OCS(CCA) Rules, 1962 and instead the same should have been disposed of in terms of the provision contained under Rule-7 of the Rules. Since the statutory provision was never followed, the impugned order is not sustainable in the eye of law and requires interference of this Court. 3.4. It is also contended that petitioner is suffering from cancer and on the face of his retirement on 30.04.2017 because of the pendency of the proceeding, petitioner has not yet got his retiral benefits save and except, provisional pension. It is also contended that initially the proceeding though was initiated with regard to mis-utilisation of a sum of Rs.2,64,264.66/- by the petitioner, but in the impugned order, the amount has been enhanced to Rs.6,51,039.13/- and that too along with interest @ 18%, which is not at all permissible. 4. Learned Addl. Standing Counsel on the other hand while supporting the impugned order, made his submission basing on the stand taken in the counter affidavit so filed Page 5 of 11 // 6 // by Opp. Party Nos.1 and 2. It is contended that pursuant to the earlier order passed by this Court in W.P.C(OAC) No.1852 of 2009, after causing de-novo enquiry with submission of the report on 07.03.2024, petitioner after being issued with the 1st show-cause along with the Enquiry Report, the proceeding was disposed of vide the impugned order dated 29.11.2024 under Annexure-13. Stand taken in Para-12 and 17 of the counter affidavit reads as follows:- “12. That, in reply to the averments made in paragraph No.10 of the Writ Petition, it is humbly submitted that, it is a fact that, a re-inquiry order was issued to the Inquiring Officer vide Letter No.950 dtd.05.02.2024 of the Disciplinary Authority and the Inquiry Officer was directed to cause a inquiry and inquiry report with supporting comprehensive documents. After completion of enquiry the enquiring Officer vide letter No. 707 dtd. 7.3.2024 submitted the enquiry report to the Director of Industry, Odisha, Cuttack. detailed submit issued to Further it is humbly submitted that after getting enquiry report a show cause notice has the petitioner on 13.3.2024 been requesting him to submit representation, if he so wished against the findings within a period of 15 days. Thereafter the petitioner on 29.3.2024 submitted his reply to the show cause notice. After getting all the reports from the inquiring officer, the Disciplinary Authority concluded the Departmental Proceeding 9526/lnd dtd.29.11.2024 stating therein that the Delinquent Officer of Government money and therefore, impose the recovery order of principal of Rs. 6,5 1,039.13 (Rupees six lakhs fifty one thousand thirty nine and of misappropriated Government money from the pensionary benefit of the Delinquent Officer along with simple interest at of Mis-appropriation thirteen paisa) guilty order vide No. is Page 6 of 11 // 7 // the rate of 18% per annum as per the Odisha Cooperative Societies Act, 1962. Hence, is no fault in doing so, as the Disciplinary Authority reserves his right to that as per OCS (CCA) Rules, 1962. xxxx xxxx xxxx 17. That, in reply to the averments made in paragraph-I5 of the Writ Petition, it is humbly submitted that, by initiating the Departmental Proceeding under Rule-l5 of OCS (CCA) Rules, 1962, the Disciplinary Authority has made no mistake as Government Rules, recommends that, any financial irregularities/ recovery is to be made from a Govt. servant only after it is established comprehensive departmental inquiry.” through a 4.1. It is accordingly contended that since in terms of the earlier order, the proceeding was disposed of with passing of the impugned order, no illegality or irregularity can be found with the same. 5. To the stand taken in the counter, learned counsel for the petitioner made further submission basing on the available materials, contending inter alia that after de- novo enquiry with submission of the Enquiry Report on 07.03.2024 under Annexure-9, petitioner though was issued with the 1st show-cause, but no 2nd show-cause was ever issued proposing the punishment. 5.1. In absence of issuance of the 2nd show-cause, which is a mandatory requirement under Rule- 15(10)(i)(b) of the OCS(CCA) Rules, 1962, the proceeding Page 7 of 11 // 8 // was disposed of vide the impugned order and that too without converting the same to a Rule-7 of the proceeding. Rule-15(10)(i)(b) of the Rules reads as follows:- “(b) On receipt of the representation referred to in Sub- clause (a) the disciplinary authority having regard to the findings on the charges, is of the opinion that any of the penalties specified in Clauses (vi) to (ix) of Rule imposed, he shall furnish to the 13 should be delinquent Government servant a statement of its findings along with brief reasons for disagreement, if any, with the findings of the inquiring officer and give him a notice by Registered post or otherwise stating the penalty proposed to be imposed on him and calling upon him to submit within a specified time such representation as he may wish to make against the proposed penalty:” 5.2. It is also contended that after remand of the matter even though fresh enquiry was directed to be conducted vide letter dated 18.10.2023 under Annexure-6 and report was submitted on 10.11.2023 under Annexure-7, but disciplinary authority-O.P. No.2 when directed for de-novo enquiry, another enquiry report was submitted on 07.03.2024 under Annexure-9, without causing any further enquiry and by giving opportunity of hearing to the petitioner to participate in the same. 5.3. It is accordingly contended that the finding of the enquiry officer in his report under Annexure-9, is also not sustainable in the eye of law. Page 8 of 11 // 9 // 6. Having heard learned counsel for the parties and considering the submissions made, this Court finds that petitioner while in service, a proceeding in question was initiated vide Memorandum dated 04.11.1994 under Annexure-2. In the said proceeding, when punishment was imposed without following the statutory provision as contained under Rule-15, the same was assailed before the Tribunal in O.A. No.1852(C) of 2009. Subsequently, the matter on being transferred to this Court, was disposed of vide order dated 06.03.2023 under Annexure-4. Vide the said order, while quashing the impugned order of punishment so imposed, the disciplinary authority was directed to dispose of the proceeding in accordance with law. As further found, after such remand of the matter, fresh enquiry was conducted with submission of a report on 10.11.2023 under Annexure-7. But without accepting the report, de- novo enquiry was conducted with submission of a report on dated 07.03.2024 under Annexure-9. 6.1. After receipt of the Enquiry report dated 07.03.2024 under Annexure-9, petitioner was issued with the 1st show-cause vide notice dated 13.03.2024 Page 9 of 11 // 10 // under Annexure-10. However, without issuing the 2nd show-cause which is a mandatory requirement, order of punishment was passed vide the impugned order dated 29.11.2024 under Annexure-13. It is also found that the proceeding has been disposed of in terms of the provisions contained under Rule-15 of the OCS(CCA) Rules, 1962. 6.2. Since during pendency of the proceeding, petitioner retired on attaining the age of superannuation on 30.04.2017, in terms of the earlier order passed by this Court in W.P.C(OAC) No.1852 of 2009, the proceeding should have been disposed of in accordance with the provisions contained under Rule-7 of the OCS(Pension) Rules, 1992 and such order of punishment could have been passed by the Govt.-Opp. Party No.1 only. 6.3. Since in terms of the earlier order, the proceeding was never converted to a Rule-7 proceeding and disposed of in accordance with law and that too without issuing the 2nd show-cause, this Court considering the stand taken in the Writ Petition, is inclined to quash order dated 29.11.2024 so issued under Annexure-13. While quashing the said order, this Court remits the matter to Page 10 of 11 // 11 // O.P. No.1 to take-up of the proceeding from the stage of enquiry and dispose of the proceeding in accordance with Rule-7 of the OCS(Pension) Rules, 1992. 6.4. Since the proceeding is of the year 1994, this Court directs O.P. No.1 to dispose of the proceeding as expeditiously as possible preferably by the end of April, 2026. If the proceeding will not be disposed of with the aforesaid time period, the proceeding be treated as dropped. 7. The Writ Petition stands disposed of with the aforesaid observation and direction. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 10th December, 2025/Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Dec-2025 14:21:21 Page 11 of 11