J. Sameswar Rao vs State Of Orissa & Others
2023 Latest Caselaw 10140 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                WPC(OAC) No.1536 of 2015
        In the matter of an application under Section 19
                 of the Administrative Tribunal Act.

      J. Sameswar Rao                      ....                 Petitioner


                                    -versus-


      State of Orissa & Others             ....         Opposite Parties


               For Petitioner           :M/s. B. Routray, Sr.Advocate
                                        along with Mr. J. Biswal,Adv.

               For Opp. Parties         :M/s. S.K. Samal,
                                         Addl. Govt. Advocate
       PRESENT:


        THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
     -----------------------------------------------------------------------------
      Date of Hearing: 10.07.2023 and Date of Judgment: 28.08.2023
     -----------------------------------------------------------------------------


Biraja Prasanna Satapathy, J.

The Petitioner has filed the Present Writ Petition

inter alia challenging the impugned order dt.24.03.2015 so

passed by the Opp. Party No.1 under Annexure-14 and with

a further prayer to direct the Opp. Parties to regularize the

services of the Petitioner for the period he remained under

suspension and to give all service benefits for the said

period.

// 2 //

2. The factual matrix giving rise to filing of the present

Writ Petition is that the Petitioner while working as a

Medical Officer in PHC, Kundra in the district of Koraput,

he was conferred with the power of drawing and

disbursement authority. The Petitioner after assuming the

charge of D.D.O brought to the notice of the CDMO,

Koraput as well as Director, Health Services, Bhubaneswar

about mis-appropriation and overdraft of the Government

money by one Venkateswar Das, Jr. Clerk working in the

said PHC on 01.09.1989 under Annexure-1. Accordingly,

preliminary enquiry was held and in course of the enquiry,

Sri Venkateswar Das agreed to refund the over-draft

amount to the Government.

2.1. On the face of such admission, Petitioner was placed

under suspension vide order dt.26.12.1989 and an FIR was

also lodged on 26.12.1989 giving rise to Kundra P.S. Case

No.46 of 1989 corresponding to G.R. Case No.816 of 1989

in the file of Chief Judicial Magistrate, Jeypore for the

offences under Section 409/477-A of the Indian Penal Code.

The aforesaid Criminal Proceeding was initiated against the

present Petitioner along with other persons. However, in the

// 3 //

meantime, a proceeding was initiated against the Petitioner

under Annexure-3 with the following charges:

CHARGE

<Dr. J. Someswar Rao, Assistant Surgeon (under suspension) during his incumbency as Medical Officer, P.H.C, Kundra in the district of Koraput from 1.8.88 to 7.8.89 along with Sri Venkateswar Dash Junior Clerk-cum-Store Keeper (under suspension) of the P.H.C., Kudnra in the district of Koraput Committed the following improper acts and omissions-

1. Committed severe irregularities mentioned in the statement of allegations regarding drawal and disbursement of claims and custody of Govt. cash and misappropriated closing balance of cash of Rs.2564.00 as on 7.8.89 of the P.H.C., Kundra.

2. Adopted various fraudulent methods outlined in the statement of allegations and made fraudulent drawals of Rs.8,12,477.00 and misappropriated the same.

3. Made server omissions and commissions enumerated in the statement of allegations in contravention of provisions of the Orissa Treasury Code, Orissa General Financial Rules No.I and other instructions and orders in the matter of drawl and disbursmene of claims and custody of Govt. cash.

4. Made excess payment of Rs.215/- to himself in respect of Bill NO.59 dt.5.8.89.

The aforesaid acts and omissionis amount to failure-

          (i)       To discharge duties properly,
          (ii)      to maintain devotion to duty and
          (iii)     to maintain absolute integrity in contravention of

provisions of Rule 3 of the Orissa Govt. Servants' Conduct Rules, 1959.=

2.2. In the proceeding, the Petitioner submitted his written

statement of defence on 19.09.1991 and initially one

Ramesh Chandra Mis``hra was appointed as Inquiry Officer

to enquire into the charges. The Inquiry Officer when could

not complete the enquiry during his tenure and retired on

31.01.1997, another Inquiry Officer was appointed and the

said Inquiry Officer submitted the enquiry report on

08.10.1999 under Annexure-4. Even though the enquiry

report was submitted on 08.10.1999, but Petitioner was

// 4 //

issued with the 1st show-cause along with the enquiry

report only vide notice dt.19.01.2012 under Annexure-4

series. However, in the enquiry report so submitted on

08.10.1999, the Inquiry Officer clearly indicated about the

admission made by Sri Venkateswar Das with regard to

misappropriation towards fraudulent drawal of money

amounting to Rs.6,61,205/- and mis-appropriation of

Rs.25,439/-, in total, mis-appropriation of Rs.6,86,644/-.

2.3. After submission of the inquiry report and prior to

issuance of the 1st show-cause on 19.01.2012, Petitioner

was re-instated in his service vide order dt.24.02.2001

under Annexure-5. However, after receipt of the 1st show-

cause on 19.01.2012, Petitioner submitted his reply before

Opp. Party No.1 on 10.09.2012 under Annexure-6. But

Opp. Party No.1 even after supply of the inquiry report vide

notice dt.19.01.2012 under Annexure-4 and submission of

the reply by the Petitioner under Annexure-6, directed for

de novo enquiry vide his order dt.22.03.2013.

2.4. The Inquiry Officer appointed vide order dt.22.03.2013

when submitted the inquiry report on 06.08.2013,

Petitioner was once again issued with another show-cause

in the nature of 1st show-cause vide notice dt.24.09.2013

// 5 //

under Annexure-7. The Inquiry Officer while submitting the

report on 06.08.2013 came to the following conclusion:

CONCLUSION-

From the above observations the Enquiring Officer is of the opinion that the during the period from01-08-88 to 07-08-89 there is misappropriation of Rs.8,15,256/0 which includes Rs.8,12,477+Rs.2564/-+Rs.215/- and the main culprit Sri V. Ds the Junior Clerk has admitted the fact that he had manipulated the entire amount, Govt. is requested to take expeditious step to finalize the case to award some punishment at the earliest by stopping 3 annual increments with cumulative effect and to regularize the entire period as leave due. The total period of Suspension is 11 years. It is requested to finalize the case on humanitarian poiont of view but the recovery of misappropriated money is in question as the main accused Mr. V Das is No More. As the matter is subjudice Govt may wait till final disposal of the case, but Govt. is requested to regularize the period at an early date.

2.5. It is contended that the Inquiry Officer in its report

dt.06.08.2013 taking into account the admission by Sri

Venkateswar Das, Jr. Clerk of the PHC who have

manipulated the entire amount, suggested the Government

to take expeditious steps to finalise the proceeding by

awarding punishment of stoppage of three annual

increments with cumulative effect and to regularise the

entire period of suspension as <Leave Due=. The Enquiry

Officer also opined that since the total period of suspension

is 11 years, the case be finalised by taking a humanitarian

point of view. But the recovery of misappropriated amount

// 6 //

in question, in view of the admission by the main accused,

Sri Venkateswar Das, who is no more, Government, may

wait till final disposal of the criminal case.

2.6. The Petitioner on receipt of the 2nd enquiry report

along with the 1st show-cause vide notice dt.24.09.2013

under Annexure-7 submitted his reply on 04.11.2013 under

Annexure-8 with the prayer to exonerate him from the

charges. But on the face of such reply and the inquiry

report so provided vide Annexure-7, Opp. Party No.1 issued

the 2nd show-cause vide notice dt.09.10.2014. In the said

notice, Opp. Party No.1 without giving a disagreement note

to the punishment suggested by the Inquiry Officer as

provided under Rule 15(10)(i) (b) of the OCS (CC&A) Rules,

1962, proposed to impose the following punishment against

the Petitioner.

<As regards the other delinquent officer namely Sri V. Das, Junior Clerk, he is dead and he has also not submitted his written statement of defence. Hence no punishment can be awarded to him. But the balance misappropriated amount can be recovered from him in pursuance of G.A Deptt. Guidelines contained in Letter NO.19806 dated 21.08.2012. Whereas all the charges have been established against Dr. Rao, the following penalities are proposed to be awarded.

(i) Recovery of fifty percent of the misappropriated of Rs.8,12,477/- i.e. Rs.4,06,239 and Rs.2564/- from Dr. Rao.

// 7 //

(ii) Withholding of two increments with cumulative effect.

(iii) The period of suspension will be treated as such Now, therefore, in accordance with Clause (i)(b) of Sub-Rule 10 of Rule 15 of OCS (CC& A) Rules, 1962, Dr. Rao is called upon to submit such representation as he may wish to make against the proposed penalty within 30 days from the date of receipt of this notice failing which the matter may be decided on its own merit.=

2.7. It is further contended that while issuing the 2nd show-

cause vide notice dt.09.10.2014, Opp. Party No.1 did not

take into consideration the order of punishment imposed

against Sri Venkateswar Das, Jr. Clerk of the PHC so

passed on dt.19.10.2001 under Annexure-10. In the

proceeding initiated against Sri Venkateswar Das, Opp.

Party No.1 after due consideration of the inquiry report so

submitted against Sri Das, awarded the following

punishment.

1. Sri Venkateswar Das may be reinstated in service in a post where he would not have to handle cash and may be kept under the strict vigil of C.D.M.O/S.D.M.O.

2. His suspension period be treated as such

3. The entire misappropriated amount of Rs.1706661.05 (Rupees Seventeen lakh six thousand six hundred sixty one and paisa five), be recovered fro his salary and other dues in suitable monthly instalements not later than his date of retirement.

4. Two of his annual increment be withheld with cumulative effect.=

// 8 //

2.8. Learned Sr. Counsel appearing for the Petitioner

accordingly contended on the face of the punishment

imposed against Sri Venkateswar Das wherein he was held

liable for the entire mis-appropriated amount of

Rs.17,06,661.05, the Petitioner should not have been held

liable for recovery of 50% of the mis-appropriated amount of

Rs.8,12,477/-. It is also contended that the proposed

punishment indicated by Opp. Party No.1 in the 2nd show-

cause dt.09.10.2014 is not in accordance with the provision

contained under Rule 15(10)(i)(b) of OCS(CCA) Rules, 1962,

which mandates for giving a disagreement note if the

disciplinary authority does not agree with the findings of the

enquiry officer.

2.9. Be that as it may, the Petitioner on receipt of the 2nd

show-cause vide notice dt.09.10.2014 submitted his reply

on 12.11.2014 under Annexure-12 again praying therein

exonerate him from the charges. But it is contended that

without considering the admission made by Sri

Venkateswar Das and the order of punishment passed

against him on 19.10.2001 under Annexure-10 and without

following the guideline issued by the G.A Deptt on

21.08.2012 so reflected in the 2nd show-cause notice

dt.09.10.2014, Opp. Party No.1 after taking concurrence of

// 9 //

the Orissa Public Service Commission passed the impugned

order of punishment against the Petitioner vide order

dt.24.03.2015 under Annexure-14. Opp. Party No.1 passed

the following punishment against the Petitioner.

          1.     Recovery of fifty percent of the
          misappropriated           amount           of
          Rs.8,12,477/-    i.e.   Rs.4,06,239/-    and
          Rs.2564     from Dr. Rao.

2. The Period of suspension be treated as such.

2.10. Learned Sr. Counsel appearing for the Petitioner

accordingly contended that the impugned order of

punishment so passed against the Petitioner under

Annexure-15 is not sustainable on the following grounds.

(i) The admission of the entire mis-

appropriation by Sri Venkateswar Das,Jr. Clerk of the PHC.

(ii) The order of punishment passed against Sri Venketeswar Das vide order dt.19.10.2010 under Annexure-10 wherein he was held liable for the entire mis-

appropriated amount of Rs.17,06,661.05.

(iii)the 2nd Show cause issued on 09.10.2014 under Annexure-9 without having a dis-agreement note to the finding of the Inquiry Officer is contrary to the provisions contained under Rule 15 (10()i)(b) of the OCS(CC&A) Rules, 1962.

2.11. Mr. B. Routray, learned Sr. Counsel in support of

his submission relied on the decision of this Court rendered

on 08.12.2017 in the case of Gobinda Sahoo Vs.

Managing Director, OFDC Limited and others passed in

// 10 //

W.P.(C ) No.9214 of 2008. This Court in Paragraph 6 & 11

of the judgment has held as follows:

"6. This Court carefully perused the enquiry report submitted by the enquiry officer, as well as the orders passed by the disciplinary authority and the appellate authority. As it appears, the disciplinary authority, while imposing punishment disagreeing with the recommendation made by the enquiry officer, has not assigned any reason whatsoever, least to say any plausible reason. The law is fairly settled that after receiving enquiry report, the disciplinary authority may find it difficult to agree with the finding in the enquiry report. But the rules generally provide that in case of such disagreement he must record his reasons and also record his own findings, if the evidence already on record is sufficient for that purpose, or remit the case to the enquiry authority for further enquiry and report.

11. In view of the above settled position of law, which is squarely application to the present context; since the disciplinary authority has not assigned any reason, while differing with the finding of the enquiry officer and imposing penalty for recovery of Rs.62,821/- and the appellate authority has upheld the same also without assigning any reason, the order dated 27.09.2007 ini Annexure-1 passed by the disciplinary authority and the order dated 03.10.2008 in Annexure-8 passed by the appellate authority are liable to be quashed and are accordingly quashed.=

2.12. Learned Sr. Counsel appearing for the Petitioner

also relied on another decision of this Court rendered in the

case of Narottam Pati Vs. NESCO and others vide

judgment dt. 03.05.2017, passed in W.P.(C) No.5092 of

2008. This Court in paragraph 8 of the said judgment has

held as follows:

<8. In Travancore Rayons Ltd. V. The Union of India, MANU/SC/0280/1969: AIR 1971 SC 862

// 11 //

the apex Court observed that the necessity to give sufficient reasons which disclose proper appreciation of the problem to be solved, and the menta process by which the conclusion is reached in cases where a non-judicial authority exercises judicial functions is obvious. When judicial power is exercised by an authority normally performing executive or administrative functions, the Supreme Court would require to be satisfied that the decision has been reached after due consideration of the merits of the dispute uninfluenced by extraneous considerations of policy or expediency. The Court insists upon disclosure of reasons in support of the order on two grounds: one that the party aggrieved in a proceeding before the Court has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case where erroneous; the other, that the obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with the judicial power.=

2.13. Similarly, learned Sr. Counsel relied on another

decision of this Court rendered in the case of Anita Kumar

Das Vs. State of Odisha and others vide judgment

dt.25.07.2022 passed in W.P.(C ) No.6703 of 2023. This

Court in paragraph 8 of the said judgment has held as

follows:

<8. The above mentioned position does not reflect with regard to reasons assigned by the Disciplinary Authority to impose the penalty on the Petitioner. More so, against the said Order, when the Petitioner preferred an appeal, the Appellate Authority also passed the order on 02.01.2015, under Annexure-11, to the following effect:

<xxxx After careful consideration of the charges in the proceeding and punishment imposed by the Disciplinary Authority and the appeal petition, filed by

// 12 //

the D.O., the Appellate Authority has been pleased to dispose of the appeal with the following orders.

1. Stoppage of one increment with cumulative effect.

2. Warning not to repeat in future.

3. Censure=

2.14. Making all such submissions, learned Sr.

Counsel contended that the impugned order of punishment

so passed against the Petitioner under Annexure-14 is not

sustainable in the eye of law and liable to be quashed by

this Court.

3. Mr. S.K. Samal, learned Additional Government

Advocate on the other hand made his submission basing on

the stand taken in the counter affidavit so filed by Opp.

Party No.1 and the counter filed to the rejoinder of the

Petitioner.

3.1. Mr. Samal though does not dispute with regard to the

conduct of the proceeding against the Petitioner, but

contended that in spite of the admission made by Sri

Venkateswar Das, Jr. Clerk-cum-Store Keeper, Kundra

PHC, the Petitioner since was the drawing and disbursing

Officer during the relevant point of time and the cash book

of the PHC since was not maintained properly, nor verified

by the Petitioner resulting such misappropriation of the

// 13 //

amount by the Jr. Clerk, the Petitioner in view of the non-

compliance of the provision of S.R-37(III) of OTC Vol.-I is

squarely liable for the mis-appropriation of Government

money amounting to Rs.17,06,661.05. It is accordingly

contended that since the Petitioner as the drawing and

disbursing Officer of the PHC did not follow the guideline so

prescribed in the aforesaid S.R and thereby giving a hand to

the Jr. Clerk to manage such mis-appropriation of

Government money, in spite of the admission made by Sri

Das, the Petitioner cannot be made scot-free from the mis-

appropriation.

3.2. It is also contended that basing on the admission

made by Sri Venkateswar Das, though certain recovery was

made from his salary but since he died prematurely and no

further recovery was made from his salary, the Opp. Party

No.1 taking into account the non-recoverable amount, held

the petitioner liable to the extent of 50% while imposing the

order of punishment vide order under Annexure-14. It is

accordingly contended that since the Petitioner because of

his latches in not taking required step as provided under

SR-37 and 225 of O.T.C Vol-I, Petitioner cannot be

discharged of the charges and Opp. Party No.1 taking

everything into account rightly held the Petitioner liable to

// 14 //

pay 50% of the mis-appropriated amount of Rs.8,12,477/-

and to treat the period of suspension as such.

3.3. However, learned Addl. Govt. Advocate contended that

in terms of the G.A Deptt. Resolution dt.21.08.2012 vide

Annexure-H to the counter, the balance mis-appropriated

amount can be recovered from the legal heirs of the

deceased Venkateswar Das. It is also contended that while

issuing the 2nd show-cause by proposing the punishment

under Annexure-9 dt.09.10.2014 though the Opp. Party

No.1 did not give his dis-agreement note as provided under

Rule 15(10)(i)(b) of the Rules, but taking into account the

nature of charges and the finding of the Inquiry Officer,

Opp. Party No.1 proposed such punishment against the

Petitioner and imposed the same while disposing the

proceeding vide order under Annexure-14. It is accordingly

contended that taking into account the negligence of the

Petitioner in not taking steps as provided under S.R-37 and

S.R-235 of O.T.C Vol. I vide Annexures-D and E to the

Counter affidavit, no illegality or irregularity can be found

with the impugned order.

4. To the submission of the learned Additional

Government Advocate, learned Sr. Counsel for the Petitioner

contended that since for the self-same charges, the

// 15 //

Petitioner has been acquitted in the Criminal Proceeding in

G.R. Case No.816 of 1989 vide judgment dt.10.10.2021

under Annexure-15 and the Criminal Court has clearly held

that the Petitioner is no way responsible for the alleged mis-

appropriation, the impugned order of punishment so passed

against the Petitioner under Annexure-14 is not sustainable

in the eye of law.

5. I have heard Mr. B. Routray, learned Sr. Counsel along

with Mr. J. Biswal, learned Counsel appearing for the

Petitioner and Mr. S.K. Samal, learned Additional

Government Advocate for the Opp. Parties.

On the consent of the learned counsels appearing for

the parties, the matter was heard at the stage of admission

and disposed of by the present order.

6. Having heard learned counsel for the parties and after

going through the materials available on record, this Court

finds that with regard to the alleged mis-appropriation of

Government money when the preliminary enquiry was

initially conducted basing on the complaint made by the

Petitioner, as reflected in Annexure-1, Sri Venkateswar Das,

Jr. Clerk of the PHC clearly admitted that he has

misappropriated the Government money and will refund

the amount. On the face of such admission by Sri Das, the

// 16 //

Petitioner was implicated in Kundra P.S. Case No.46 of

26.12.1989 corresponding to G.R. Case No.816 of 1989 in

the file of C.J.M, Jeypore for the offences under Section

409/477-A of the Indian Penal Code. Along with initiation of

the criminal proceeding, the Petitioner and Sri Venkateswar

Das were also proceeded with in the Disciplinary

proceeding. In the proceeding initiated against Sri

Venkateswar Das, Opp. Party No.1 vide his order

dt.19.10.2001 under Annexure-10, held Sri Das responsible

for the mis-appropriation and directed for recovery of the

entire mis-appropriated amount of Rs.17,06,661.05.

6.1. Taking into account the admission made by Sri

Venkateswar Das, as reflected in Annexure-1 and the order

of punishment so passed against Sri Das under Annexure-

10, the Inquiry officer in the de-novo enquiry conducted by

him while submitting the enquiry report on 06.08.2013,

suggested therein that since Sri Das, Jr. Clerk has admitted

the entire mis-appropriation, punishment of stoppage of

three annual increment with cumulative effect be passed

against the Petitioner. The Inquiry officer taking into

account the long period of suspension of 11 years also

suggested to regularize the said period of suspension as

<Leave Due=. The Inquiry Officer also suggested that with

// 17 //

regard to the recovery of the mis-appropriated amount,

Government may wait till final disposal of the Criminal

case.

6.2. On the face of such finding of the Inquiry officer, this

Court finds that while issuing the 2nd show-cause vide

notice dt.09.10.l2014 under Annexure-9, Opp. Party No.1

as provided under Rule 15(10(i)(b) of the Rules has not

given his disagreement note and the reason for not agreeing

with the finding of the Inquiry Officer.

In view of such non-compliance of the statutory

provision and the order of punishment passed against Sri

Venkateswar Das under Annexure-10 as well as placing

reliance on the decisions so cited (supra) and the order of

acquittal passed against the Petitioner in the Criminal

Proceeding, this Court is inclined to interfere with the

impugned order of punishment so passed on 24.03.2015

under Annexure-14. While interfering with the same, this

Court is of the view that no recovery can be effected from

the Petitioner for the alleged mis-appropriation in view of

the admission made by the other employee and the order

passed against him under Annexure-10. This Court further

directs Opp. Party No.1 to treat the period of suspension as

<Leave Due= and pass a fresh order to that effect.

// 18 //

The Writ Petition is accordingly disposed of.

(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 28th August,2023/sangita

Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: High Court of Orissa, Cuttack Date: 28-Aug-2023 17:19:17