Narayan Prusty vs State Of Odisha & Ors

Biswanath Rath, J

This is a proceeding taken up by High Court on being transferred from the Orissa Administrative Tribunal on being closure of the establishment.

Originally the proceeding was registered as O.A. No. 2194 (C) of 2002 and on being transferred it is registered as WPC (OAC) No.2194 of 2002.

The application involves the following relief:

“In view of para-6 above the applicant prays that this Hon’ble Tribunal be pleased to:

(i) Quash the order under Annexure-4 so far it relates to charge No.3 and the impugned disciplinary order dated 4.4.2002 under Annexure-7 and Annexure-8 so far it

relates to the aforesaid amount of Rs.31,804/- and

(ii) Further direct the Respondents to refund the amount if any deducted from the Gratuity of the applicant pursuant to the impugned order under Annexure-8.

And the applicant as in duty bound shall ever pray.â€​

Factual background involving the case is that the applicant, who was working as Junior Store Keeper in the Office of the District Information and

Public Relation Officer, Kalahandi got superannuated on premature retirement on 3.7.1995. It is alleged that since complete bills could not be shown to

the Audit party during departmental audit in the year 1995-96 and for the petitioner unable to bring such disclosures vide Annexure-1 , an outstanding

of Rs.1,76,519/- was shown against the petitioner. In the meantime petitioner volunteered to search and found out number of vouchers covering at

least Rs.1,43,860/- resultantly the petitioner vide his letter dated 2.11.1996 intimated the respondent no.2 about tracing out of the said vouchers and

expressing his inability to trace the rest of the vouchers. In the meantime, the petitioner was proceeded in a Disciplinary Proceeding on 10.6.1999 by

memo No.16841/I & PR. The Disciplinary Proceeding appears to have been concluded on participation of the petitioner and in the net result, by order

dated 29.9.2001 the Deputy Secretary, Information & Public Relation Department, Orissa communicated the proposal of punishment of the

Disciplinary Authority for recovery of a sum of Rs.31,804/- from the petitioner. Petitioner being asked to show cause against proposal of punishment

of the Disciplinary Authority, the petitioner represented vide Annexure-6. Finally, the Disciplinary Authority imposed punishment on the petitioner for

recovery of an amount of Rs.31,804 by way of DCRG resulting filing of the application.

Assailing the impugned order at Annexure-7 learned counsel appearing for the petitioner in reference to the provision 7(2) (b) ii of the Orissa Civil

Services (Pension) Rules, 1992 contended that for the detection involving 1989 to 1993 the audit taking place in 1995 is remaining immaterial. It is also

contended that for the above provision prescribing initiation of recovery proceeding, at least within four years from the date of event, the disciplinary

proceeding involving the petitioner initiated in 1999 became illegal.

Mr.U.K.Sahoo, learned Additional Standing Counsel appearing for the State in his opposition, taking this Court to the counter response and the

additional counter response attempted to submit that for the petitioner retiring in 1995 and the proceeding initiated in 1999, particularly 3.7.1995 and

10.6.1999 respectively, the Disciplinary Proceeding initiated was within four years of the detection of the audit report in 1995. Mr.Sahoo also taking

this Court to the pleading of the petitioner contended that for the petitioner’s admission that he could not able to trace to balance bill, it is a case of

admission. Therefore, there is no illegality in award of the punishment. Mr.Sahoo, learned Additional Standing Counsel therefore contested the case on

the premises that there is no illegality in the initiation of disciplinary proceeding in 1999, which is clearly within the domen of Rule 7(2) (b) (ii) of the

Orissa Civil Services (Pension) Rules, 1992. In the circumstance, Mr.Sahoo, learned Additional Standing Counsel prays for dismissal of the

application.

Considering the rival contentions of the parties, this Court finds undisputedly the period of recovery remaining 1989 to 1993 as clearly reveals from

Annexure-1. Thus, the event period is from 1989 to 1993. There is also no dispute that the petitioner was superannuated on permanent invalidation

ground on 3.7.1995. Further, there is also no dispute that the Disciplinary Proceeding for such recovery was also initiated on 10.6.1999. This Court

here takes into account that when event involved in between 1989 to 1993, the recovery proceeding by way of Disciplinary Proceeding was initiated in

the year 1999. Both parties also referred to Rule 7(2) (b) (ii) of the Orissa Civil Services (Pension) Rules, 1992. This Court takes into account the

provision under Rule 7(2) (b) (ii) of the Orissa Civil Services (Pension) Rules, 1992 operating in the field, which reads as follows:

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 a 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 found guilty of grave misconduct or

negligence in duty during the period of his service including service rendered on re-employment after retirement;

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(ii) shall not be in respect of any event which took place more than four years before such institution; and

(Emphasis supplied)

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Reading the aforesaid provision and taking into account the consideration, this Court finds for the clear provision hereinabove, institution of recovery

proceeding cannot be beyond four years of such event. Event having taken place in between 1989 to 1993, initiation of the proceeding in 1999 was

undisputedly four years after. For the restriction in the rule referred to hereinabove, the proceeding initiated in 1999 is not sustainable in the eye of

law. As a consequence any development involving such proceeding is also not sustainable. In the result, while declaring Disciplinary Proceeding

involving the petitioner becomes bad, this Court sets aside the order at Annexure-9. However, finding considerable time has been passed in the

meantime and the petitioner is in enjoyment of an interim order, this Court observes in the event the amount sought to be recovered has been withheld

by the employer, keeping in view the interim protection in favour of the petitioner and the final order herein, the same may be released in favour of the

petitioner at least @ 5% interest per annum allthrough by undertaking the complete exercise within a period of one month from the date of

communication of this order. Failure of release of the amount under detention along with interest as awarded within the stipulated period, petitioner

shall be entitled to interest @ 9% per annum from the ate of default.

With this observation and direction, the writ petition succeeds. No order as to cost.

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