Mohan Behera vs Managing Director, Odisha

S.K. Mishra, J

The Petitioner, who is working as Junior Engineer (Civil) in the Opposite Parties-Corporation i.e. Odisha Lift Irrigation Corporation Limited, shortly hereinafter, “OLIC Ltd.”, has preferred the present writ petition with a prayer to set aside office order dated 26.09.2018 (Annexure-6), so far as it relates to the Petitioner, and to pass further appropriate order, as deemed fit and proper, in the facts and circumstances of the case.

So far as Office Order dated 26.09.2018, it is a common order, vide which the Financial Advisor and Chief Accounts Officer, OLIC Ltd. (Opposite Party No.2) ordered to recover the alleged outstanding amount under Corporation H/A-18(03) from the existing employees of the Corporation, as per the list enclosed to the said order, including the present Petitioner, whose name finds place at Sl. No.24 of the said list.

The admitted facts on record, which compelled the Petitioner to knock the door of this Court, is that while the Petitioner was working as Junior Engineer, L.I. Division, Berhampur, repeated thefts occurred in the Central Store of the Corporation. Some materials were stolen from the said store on three occasions during the year 2004 & 2005, for which F.I.Rs. were lodged before the local Police Station by the Petitioner. The Executive Engineer, L.I. Division, Berhampur also informed the Managing Director of the Corporation (Opposite Party No.1) vide his letter dated 03.10.2007 regarding such theft of stock materials from the Central Store of the L.I. Division, Berhampur.

Pursuant to such communication of the Executive Engineer, L.I. Division, Berhampur dated 03.10.2007, the Superintending Engineer, Southern Circle, OLIC Ltd. Berhampur also wrote to the Director (Technical), OLIC Ltd., Bhubaneswar suggesting therein to drop the amount shown as outstanding against the Petitioner, who was the In-charge of the Central Store, Berhampur. The Petitioner also, on being asked by the Executive Engineer, L.I. Division, Berhampur, submitted a compliance report dated 21.10.2017, so far as a sum of Rs.1,24,774.20, which was booked against him towards shortage of stock materials in the Central Store due to thefts occurred during his incumbency, i.e., on 18.08.2004, 14.12.2004 and 27.11.2005. Such compliance report being forwarded to the Financial Advisor and Chief Accounts Officer (Opposite Party No.2), it was returned vide letter dated 04.12.2017 to the Executive Engineer, L.I. Division, Berhampur (Ganjam) advising to verify the same at his end and report to him immediately. Pursuant to such communication, the concerned Executive Engineer did the needful and reported to the Opposite Party No.2 vide letter dated 30.01.2018.

However, without considering the said communication made by the Executive Engineer, the Opposite Party No.2 issued the common Office Order dated 26.09.2018 (Annexure-6) for recovery of the outstanding amount from various employees/officers, including the Petitioner, without any prior communication, thereby giving him an opportunity to have his say in the said regard.

Though the writ petition was pending since 2018, after about six years, a Counter Affidavit was filed on behalf of the Opposite Parties in January, 2025, taking a stand therein that the concerned Executive Engineer, vide his communication dated 18.09.2018, proposed to recover the said amount from the Petitioner, as the said amount was shown as an outstanding amount against him. It has further been stated in the Counter Affidavit that the communications made by the Officers of the Corporation are not binding on the Head Office, as those communications are mere suggestions. That apart, it has been stated that, in the communication dated 30.01.2018 the concerned Executive Engineer had alternatively suggested to recover the said amount from the Petitioner, since such loss was caused to the Corporation because of the latches and negligence of the Petitioner. Hence, it being public money, the Corporation was justified to order to recover the said amount from the Petitioner and nothing wrong has been committed by passing such order of recovery.

Learned Counsel for the Petitioner, reiterating the facts detailed in the writ petition so also drawing attention of this Court to various communications/letters/office orders, as at Annexures-1 to 5 submitted that, the Petitioner could not have been blamed for the thefts occurred in the Central Store of L.I. Division, Berhampur of the Corporation. That apart, vide the communication made by the then Executive Engineer, L.I. Division, Berhampur dated 03.10.2007, it was brought to the notice of the Managing Director of the Corporation that as most of the staff have gone on VRS on 18.08.2004, due to lack of staff, even though a Home Guard has been engaged for watch and ward of the Central Store of the Division, still such thefts have occurred.

7.1 That apart, the Petitioner also promptly reported the said incidents to the Police and lodged F.I.Rs. and investigations were made by the Police in presence of the Petitioner, Division Officer and Division Staff. A recommendation was made by the then Executive Engineer, L.I. Division, Berhampur that as such materials cannot be realized because of the inaction of the Police, to treat the same as loss of Corporation property and take necessary action to waive out the cost of the materials. It was also requested to intimate the office of the Executive Engineer, L.I. Division, Berhampur to square up the 18’3’ Head of A/c in the name of J.E. and A.E. of Central Store. Despite such recommendation, action has been taken by the Opposite Party No.2 for recovery, which is legally unsustainable.

7.2. Learned Counsel for the Petitioner further submitted that, before taking such decision to recover the alleged outstanding amount because of the theft of materials from the Central Store of the L.I. Division, Berhampur, the Petitioner was neither asked to show cause as to why such amount shall not be recovered from him nor any responsibility was fixed on the Petitioner alleging therein that he is responsible for such theft repeatedly occurred in the Central Store of the L.I. Division, Berhampur during his incumbency. No enquiry was made to the said effect, giving due opportunity of hearing to the Petitioner so also determining the amount to be recoverable from the Petitioner. Hence, the entire action of the authority concerned to take a decision to recover the said amount from the salary of the Petitioner is illegal and unjustified.

7.3. Learned Counsel for the Petitioner submitted that, though the Petitioner has filed I.A. No.14738 of 2018 along with the writ petition praying therein to stay operation of the impugned order regarding recovery of Rs.20,000/- from his salary during pendency of the writ petition, instead of staying the said action of recovery of the Management, as an interim measure, it was ordered on 11.12.2018 that, any recovery made from the salary of the Petitioner shall abide by the result of the present writ petition. In the meantime, the entire amount has been recovered from the salary of the Petitioner and to the said effect an Affidavit has been filed, pursuant to order dated 19.08.2025 passed by this Court.

7.4 Accordingly, learned Counsel for the Petitioner submitted that the impugned order, so far as the present Petitioner is concerned, deserves to be set aside. That apart, direction be given to the Opposite Parties-Corporation to refund the said amount illegally deducted from the salary of the Petitioner with interest so also costs be imposed on the Opposite Parties-Corporation for harassing the Petitioner. To Substantiate his submission, learned Counsel for the Petitioner relied on the judgment of the Supreme Court reported in 2017 (II) OLR 503 SC (State of Punjab and others Vs. The Senior Vocational Staff Masters Association and others) and judgment of this Court reported in 2017 (I) OLR 922 (Sarat Chandra Dash Vs. Orissa State Cooperative Agricultural & Rural Development Bank Ltd. And others).

Per Contra, Mr. Sharma, learned Senior Counsel for the Opposite Parties-Corporation, drawing attention of this Court to the letter dated 18.09.2018 of the Executive Engineer, L.I. Division, Berhampur, as at Annexure-B/1 to the Counter Affidavit, submitted that it being so recommended by the concerned Executive Engineer, the Authority concerned took a decision to recover the said outstanding amount from the Petitioner, whose name finds place at Sl. No.24 of the enclosure of the said communication, as the Petitioner was the concerned Junior Engineer posted during the period on which repeated thefts occurred in the Central Store of the L.I. Division, Berhampur. Hence, such decision of the Authority concerned to recover the value of the stolen articles, which occurred during tenure of the Petitioner, is legally justified and deserves no interference by this Court.

As is revealed from the contents of the letters dated 03.10.2007 so also dated 30.01.2018 of the Executive Engineer, L.I. Division, Berhampur (Ganjam) and other correspondences on record, the alleged outstanding amounts shown against the Petitioner were admittedly towards value of materials stolen from the Central Store of the L.I. Division, Berhampur during the tenure of the Petitioner. The Executive Engineer in his letter dated 03.10.2007 also intimated to the Managing Director of the Corporation regarding such theft occurred due to lack/shortage of staff, which happened as most of the staff took VRS on 18.08.2004 and the watch and ward duty was assigned to a Home Guard. The contents of the said letter dated 03.10.2007, as at Annexure-1, being relevant for proper adjudication of the present lis, are extracted below:

“OFFICE OF THE EXECUTIVE ENGINEER: L.I.

DIVISION, BERHAMPUR

Letter No.4383                                                                                                               Dated 3.10.2007

To

Managing Director,

O.L.I.C. Ltd., Bhubaneswar

Sub: Theft of stock materials of Central Store of L.I.

Division, Berhampur

Sir,

In inviting a kind reference to the subject cited above it is to intimate you that an amount of Rs.1,15,333.20 has been booked in 18‟ 03‟ in the name of Central Store J.E(C) Sri Mohan Behera as the materials have been stolen from the Central Store of L.I. Divn., Berhampur. In this connection it is to intimate you that on 18.08.2004 theft had been occurred in Central Store of L.I. Divn., Berhampur by some miscreants. Even though a home Guard had been engaged for watch & ward of this division due to lack of staff as most of the staff have gone on Vrs on 18.08.04. The J.E. Central Store has reported to police vide Lr.No.82 dt. 19.08.2004. After lodging of F.I.R. the police has investigated the Central Store in presence of A.E.s Divisional Officer & Division staff. On 14.12.2004 again theft has been occurred in the same Central Store i.e. within one 'O' clock to four „O‟ clock. The J.E. Central Store has lodged FIR vide Lr.No.117 dt.14.12.04 at Bada Bazar Police Station, Berhampur and letter No. 81 dt. 28.11.05 and reminder No.32 Dt. 6.9.06 regarding loss of Central Store Materials. The Police has investigated the matter and has mentioned that this is under investigation. The undersigned has given a reminder to Bada Bazar Police Station vide Lr.No.4812 dt. 30.11.04 for realization of the materials and Investigation report about loss of materials of OLIC. Further above matters has been intimated to Superintendent of Police, Police Dist., Berhampur vide this Office Lr.No.146 dt. 24.01.2005. The Xerox copy of all the relevant papers are enclosed separately for your kind scrutiny. The details of loss of materials are enclosed separately for your kind verification.

When the shortage of materials are incorporated in the books of Account as loss in the stock register the above amount was booked under 18’ 03’ in the name of the concerned J.E. of Central Store. At present after several reminder when the A..E. and J.E. approached the concerned police station about the Docket No. of F.I.R. and the investigation report of the loss of materials, the police refused to give the investigation report as well as FIR number lodged by the concerned J.E. the undersigned has instructed the Asst. Executive Engineer (Elect) of this division to enquire on the theft of materials the concerned A.E.E. (Elect.) has investigated the matter and submitted report to the undersigned which is enclosed for your verification.

In this context I am to request you that the above materials cannot be realized at present and these materials may be treated as loss of Corporation property.

Necessary action may be taken to waive out the cost of the materials and intimate to this office to square up the 18’3’ Head of A/c. in the name of J.E. and A.E. of Central Store.

This is submitted for favour of kind information and perusal action.

Yours faithfully,

Sd/-

Executive Engineer

L.I. division, Berhampur”

(Emphasis supplied)

From the contents of the said letter, it is amply clear that despite the Central Store of the Corporation at Berhampur being guarded by a Home Guard, theft occurred repeatedly during the tenure of the Petitioner as Junior Engineer In-charge of the Central Store, L.I. Division, Berhampur. That apart, as is revealed from the correspondences made by the then Executive Engineer, so also the compliance report submitted by the Petitioner, the Petitioner did his duty by lodging F.I.Rs before the concerned Police Station and was pursuing the said matters with the Police to do the needful.

That apart, a report being submitted vide communication dated 21.10.2017 before the Executive Engineer, L.I. Division, Berhampur regarding the action taken by the Petitioner, a recommendation was made by the Executive Engineer, L.I. Division, Berhampur (Ganjam) vide letter dated 30.01.2018 to treat the said value of the stolen articles as loss to the Corporation and to drop the amount shown against the Petitioner to be outstanding. However, the Opposite Parties failed to act in terms of the said recommendation on the plea that such recommendation of the concerned Authority, i.e., Executive Engineer, L.I. Division, Berhampur, is not binding on them. The contents of the said recommendation submitted by the Executive Engineer, L.I. Division, Berhampur (Ganjam), being relevant, are extracted below.

“OFFICE OF THE EXECUTIVE ENGINEER: LIFT IRRIGATION DIVISION: BERHAMPUR (GANJAM)

Letter No:                                                                                                                                                              /OLIC Date:

To

The Financial Advisor &

Chief Accounts Officer,

Odisha Lift Irrigation Corporation Ltd.,

Plot No.17/2, Nayapalli,

Bhubaneswar-751012

Sub:- Submission of compliance report of Sri Mohan Behera, Ex-Junior Engineer (Civil), Central Store, Berhampur.

Ref:- Your Letter No.14483 dtd. 4.12.2017 & 236 dtd.10.01.2018 of the Deputy Chief Accounts Officer, OLIC Ltd., Bhubaneswar.

Madam,

With reference to the above cited subject and letter it is to inform you that the compliance submitted by Sri Mohan Behera, Ex-Junior Engineer (Civil) Central Store, Berhampur has been verified by the undersigned and I am to say that the theft case is true, FIR lodged to Police Station by the Junior Engineer, and Executive Engineer but final report of Police is not received till date. Superintending Engineer (S.C), OLIC Ltd., Berhampur had also communicated vide his No.1124(WE) dtd. 5.10.2007 to the Director (Tech.), OLIC Ltd., Bhubaneswar to drop the above amount. The Xerox copy the above Letter is enclosed for your reference. The Xerox copy of the E.I.R. of Junior Engineer and Executive Engineer also enclosed for your kind reference.

Hence, Head Office may kindly instruct to Division whether the amounting to Rs.1,24,774.20 will be dropped or recovered from Sri Mohan Behera, Ex-Junior Engineer(Civil), Central Store, Berhampur. Since Sri Behera has observed all official formalities to get recover the materials as it was theft, but it was in a vain. Hence the above cost is loss to the Corporation. Looking to the above circumstances the above amount, if desired may be treated as loss to the Corporation and suggestion may be issued for drop the amount 18(03) against Sri Mohan Behera.

Accounting adjustment may kindly be issued to this Division for settlement of his case.

This is for favour of your kind information and necessary action.

Yours faithfully,

Sd/-

Executive Engineer”

(Emphasis supplied)

A stand has been taken in the Counter Affidavit that such a decision to recover from the Petitioner was taken by the Authority concerned, based on the recommendation of the Executive Engineer, L.I. Division, Berhampur dated 18.09.2018. As is ascertained from the said communication made to the Managing Director of the Corporation by the then Executive Engineer, L.I. Division, Berhampur (Ganjam), he did not take note of the previous communications made by his predecessors to the Opposite Party Nos.1 & 2 in the said regard, which have been extracted above.

Further, the Opposite Parties have also failed to demonstrate before this Court that when a stand has been taken in the Counter that any recommendation made by the Executive Engineer is not binding on them, how they could act on the subsequent recommendation made by the succeeding Executive Engineer vide letter dated 18.9.2018, that too without making any communication to the said effect to the Petitioner, thereby giving him an opportunity to have his say in the said regard.

Law is well settled that fair play in action warrants that no such order, which has the effect of an employee suffering civil consequences, should be passed without putting the concerned to notice and giving him a hearing in the matter.

From the discussions made above, this Court is of the view that, responsibility could not have been fixed on the Petitioner for such thefts and no recovery should have been made from his salary showing the value of the stolen articles from the Central Store to be outstanding against the Petitioner, only on the ground that he was then working as the Junior Engineer, Central Store, L.I. Division, Berhampur.

This Court is of further view that the Authority concerned was not justified to recover the alleged outstanding from the Petitioner without fixing any responsibility on the Petitioner thereby asking him to show cause and making an enquiry to the said effect and in absence of any finding to the effect that the Petitioner was responsible for such repeated thefts occurred in the Central Store of the Corporation at Berhampur. Such unilateral action to deduct the outstanding amount

under 18’3’ Head of A/c to the tune of Rs.1,24,774.20 is illegal and unjustified, being hit by the principles of natural justice and deserves interference.

Accordingly, this Court is inclined to set aside the impugned order dated 26.09.2018, as at Annexure-6, so far as the Petitioner is concerned, whose name finds place at Sl. No.24 of the list appended to the said order.

Pursuant to the order dated 19.08.2025, since an Affidavit has been filed by the Petitioner on 8th September, 2025 before this Court that an amount of Rs,1,24,774.20 has already been deducted from his salary during pendency of the present writ petition, which was not disputed by the Corporation, the Opposite Parties are directed to refund the said amount to the Petitioner with 7% simple interest thereon from the date of last deduction made from the salary of the Petitioner till the date of actual payment. Refund shall be made within a period of four weeks from the date of production of the certified copy of this Judgment, failing which the Corporation shall be liable to pay 12% penal interest for the entire period.

The writ petition stands allowed and disposed of accordingly. No order as to costs.