Orissa High Court
Narayan Prusty vs State Of Odisha & Ors on 13 December, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC (OAC) No.2194 of 2002
Narayan Prusty .... Petitioner
-versus-
State of Odisha & Ors. .... Opposite Party(s)
For Petitioner : M/s.Srinivas Mishra-1,
S.N.Mishra-1, B.Dash,
B,N,Mishra & N,K,Das
For Opposite parties : Mr.U.K.Sahoo, Addl.
Standing Counsel
JUDGMENT
CORAM:
JUSTICE BISWANATH RATH
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Date of hearing and date of judgment: 13.12.2021
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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."
// 2 //
2. 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.
3. 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.
// 3 //
4. 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.
5. 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:
// 4 //
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 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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xxx xxx xxx
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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)
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx
6. 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
// 5 //
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.
7. With this observation and direction, the writ petition succeeds.
No order as to cost.
(Biswanath Rath)
Judge
Orissa High Court, Cuttack
The 13th day of December, 2021/sks.
