Orissa High Court

Akshaya Kumar Sahu vs State Of Odisha on 24 March, 2023

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                             W.P.(C) No.27396 of 2022

     (This is an application under Article 226 and 227 of the Constitution
     of India)


        Akshaya Kumar Sahu                         ....           Petitioner

                                       -versus-

        State of Odisha                            ....      Opposite Party

            For Petitioner         :            M/s. Prasanta Ku. Mishra,
                                              K.L.Kar, S.Mishra, J.Mishra.
                                                                 Advocate

            For Opp. Party         :                        Mr. Saswat Das,
                                                  Additional Govt. Advocate


                                       CORAM:

                    JUSTICE A.K. MOHAPATRA
                                  JUDGMENT

Date of hearing : 09.03.2023 | Date of Judgment : 24.03.2023

A.K. Mohapatra, J.

1. This matter is taken up through Hybrid Arrangement (Virtual

/Physical Mode).

2. Heard learned counsel for the Petitioner as well as the learned

Additional Government Advocate. Perused the pleadings of the respective

parties as well as the materials placed before this Court for consideration.

// 2 //

3. The present Writ Petition has been filed by the Petitioner with a

prayer to quash the Departmental Proceeding vide Memorandum

No.375/WR(C) dated 19.05.2022 under Annexure-2 and order vide

No.366/WR© dated 19.05.2022 under Annexure-3.

4. The factual background of the present case, in nutshell, is that while

the Petitioner was working as Executive Engineer (M.I.) D & Q.C.,

Northern Minor Irrigation Circle, Sambalpur, has retired from Government

service on attaining the age of superannuation on 3108.2017. No criminal or

departmental proceeding was pending against the Petitioner at the time of

his retirement from service. Accordingly, his retirement benefits were duly

sanctioned and disbursed in favour of the Petitioner. However, five years

after his retirement, when the Petitioner is leading a peaceful retired life and

when the employer and employee relationship has ceased to exist with

effect from 31.08.2017, a Departmental Proceeding has been initiated

against the Petitioner on the basis of an audit report relating to a period

which is four years prior to the institution of the proceeding. Accordingly,

the Petitioner has approached this Court by filing the present Writ Petition

for quashing the aforesaid Departmental Proceeding bearing Memorandum

No.375/WR(C) dated 19.05.2022 and for quashing the order No.366/WR(C)

dated 19.05.2022 granting sanction for initiation of such a Departmental

Proceeding against the Petitioner in respect of an event which took place

during the year 2011-12 to 2015-16.

// 3 //

5. It is submitted by the learned counsel for the Petitioner that the

Petitioner has retired from service with effect from 31.08.2017 on attaining

the age of superannuation. He further contended that the authorities allowed

the Petitioner to retire peacefully and he was paid all his retiral dues after

his retirement. Since no criminal or departmental proceeding was pending

against the Petitioner on the date when the Petitioner has attained the age of

superannuation, all financial benefits were sanctioned and disbursed in

favour of the Petitioner without any legal hurdles.

6. He further contended that recently the Opposite Party has initiated a

proceeding against the Petitioner. The said proceeding is based on an audit

report which was prepared during the year 2018-19 and the finding of the

audit came to the notice of Disciplinary Authority on 07.01.2022, The

charges in the memorandum relates to the period from 2011-12 to 2015-16.

Therefore, learned counsel for the Petitioner referring to the provisions of

Rule 7(2)(b)(ii) of OCS (Pension) Rule, 1992 submitted that there is a clear

bar in law to initiate such a proceeding after retirement of the Government

employee and after cessation of the employer and employee relationship

that too in respect of a period which is beyond four years from the date of

institution of such proceeding. In such view of the matter, learned counsel

for the Petitioner submitted that the proceeding initiated against the

Petitioner is not maintainable in law and accordingly, the same should be

quashed.

// 4 //

7. Learned counsel for the Petitioner referring to the provisions

contained in Rule 7(2)(b)(ii) of OCSW (Pension) Rule, 1992 contended that

in view of the specific provision in the said Rules, the present proceeding is

not maintainable in law. For better appreciation, the provisions contained in

Rule 7(2) (b)(ii) of OCS (Pension) Rules, 1992 is quoted herein below :

"7. Right of Government to withhold or withdraw pension:

1. xx xx xx.

2. (a) xx xx xx

(b) Such departmental proceeding as referred to in Sub- rule(1) if not instituted while the Government servant in service whether before his retirement or during his re- employment;

(i) xx xx xx

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

8. While analyzing the interpretation of Rule 7(2)(b)(ii) of OCS (Pension) Rules, 1992 learned counsel for the Petitioner referred to a judgment reported in 2009(1) OLR 989, in the matter of Sri P.Satyanarayan Patro decided on 26.02.2009 by a Division Bench of this Court. While interpreting the Rule 7(2)(b)(ii) of OCS (Pension) Rules, 1992 the Division Bench in Paragraphs-9 & 10 has categorically held as follows:

"9. At the outset, learned counsel for the Petitioner submitted that as per Rule 7(2)(b)(ii) of the Orissa Civil Services (Pension) Rules, 1992 (hereinafter referred to as "the Pension Rules), no departmental proceeding shall be initiated against a retired Government servant, in respect of any misconduct which took place more than four years before institution of the proceeding. In the present case, the Petitioner retired from service on attaining the age of superannuation on 31.03.2003. It took four days to complete the erection of two towers in question and the work was // 5 //

completed on 30.03.1987, whereas, the proceeding was initiated on 06.08.2003. So, the very initiation of the proceeding is illegal. On the contrary, learned counsel for the Opp.Party contended that the two towers got uprooted on 02.06.2003, so, the proceeding was initiated within time.

10. As per the above provision of the Pension Rules, departmental proceedings, if not instituted while the government servant was in service, whether before his retirement or during his re-employment, shall not be instituted for any event (emphasis supplied) which took place more than four years before such institution. The charge framed against the Petitioner was that due to his negligence in duty and lack of proper supervision, the two towers in questions which were constructed during the period 27.03.1987 to 30.03.1987 got uprooted. By the time the departmental proceeding was instituted against the Petitioner, sixteen years had already elapsed from the event which took place in that year 1987. The submission of learned counsel for the Opp.Party that the period of four years would be counted from 02.06.2003, when the two towers got uprooted cannot be accepted. Because the misconduct for which the departmental proceeding was initiated was with regard to lack of supervision etc. while the towers in question were erected. No doubt, the inferior quality of the work could be known only after the towers got uprooted in the year 2003 and the opp.party had no knowledge about such bad workmanship prior to that. But there is nothing to show in the Pension Rules that the period of four years as envisaged in Rule 7 can also be counted from the date of knowledge. So, we are in agreement with the view of the learned counsel for the Petitioner that the very initiation of the departmental proceeding is bad in law."

9. Learned counsel for the Petitioner also referred to the judgment of the Division Bench of this Court in State of Orissa and others-v. Prabodh Kumar Pal, 2013(II) OLR 513 decided on 08.08.2013. In course of his argument learned counsel for the Petitioner emphatically refers to Paragraphs 9 & 10 of the judgment which has been quoted herein below.

"9. On conspectus of the rule, it is evident that no period of limitation is prescribed for initiation of a departmental proceeding against a Government employee. Rule 7(2)(b)(ii) of the Pension Rules on which much reliance has been placed by Mr.Das,, is quoted hereunder:

// 6 //

"7. Right of Government to withhold or withdraw pension:

1. xx xx xx.

2. (a) xx xx xx

(b) Such departmental proceeding as referred to in Sub- rule(1) if not instituted while the Government servant was in service, whether before his retirement or during his re- employment;

(i) shall not be instituted save with sanction of Government;

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

(iii) xx xx xx"

10. On cursory perusal of the Rule 7(2)(b)(ii) of the Pension Rules, it is crystal clear that the departmental proceeding as referred in Sub- Rule(1), if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall not be instituted in respect of any event which took place more than four years before such institution. In Noida Enterpreneurs Association v. Noida, AIR 2011 SC 2112, the Hon'ble apex Court held that the competence of an authority to hold an enquiry against an employee who has retired, depends upon the statutory rules which govern the terms and conditions of his service. The Hon'ble Apex Court in the case of Bhagirathi Jena v. Board of Directors, O.S.F.C., AIR 1999 SC 1841 in paragraph-7 held as follows:

"7. Xx xx xx There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30.06.1995, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement."

// 7 //

After analyzing the factual position as well as the legal position, the

Division Bench in Prabodh Kumar Pal case (supra) in Paragraph-12 of the

judgment has come to a conclusion that no period of limitation has been

prescribed for initiation of a departmental proceeding against a Government

servant in OCS (CCA) Rules and the Rule is completely silent in this

regard. Thus, the case is required to be examined in the light of the

provisions contained in OCS (Pension) Rules, 1992. On a conspectus of

Rule 7(2)(b)(ii) of the Pension Rules, it is evident that a departmental

proceeding cannot be initiated against a Government servant in respect of

any event which took place more than four years before such institution.

Therefore, applying the aforesaid ratio to the fact of the present case,

learned counsel for the Petitioner would argue that in the present case, the

charges brought against the Petitioner to initiate a proceeding in the year

2022 was grossly barred by limitation. As such he would argue that the

present case is covered by the ratio laid down by the two judgment of this

Court in Sri P.Satyanarayan Patro and Prabodh Kumar Pal case (supra).

10. Learned Additional Government Advocate on the other hand

referring to the Counter Affidavit, submitted that it is not disputed that the

Petitioner had retired from service on attaining the age of superannuation

with effect from 31.08.2017. However, allegation made in the memorandum

were detected only after an audit was conducted in the year 2018-19.

Further, referring to Paragaphs-5 & 6 of the Counter Affidavit, learned // 8 //

Additional Government Advocate submitted that the finding of the audit

came to the notice of the Disciplinary Authority only on 07.01.2022.

Therefore, the Departmental Proceeding was initiated in the year 2022 only

after the audit report came to the notice of the Disciplinary Authority.

Therefore, the limitation as prescribed under Rule 7(2)(b)(ii) of

OCS(Pension) Rule is not applicable to the present case. Learned

Additional Government Advocate further contended that the period of

limitation as provided under Rule 7(2)(b)(ii) of 1992 Rules would start

from the date of knowledge. Therefore, the Opposite Parties were well

within their authority and within the scope and ambit of the Rules in

initiating a Departmental Proceeding in the year 2022. In the said context

learned Additional Government Advocate also referred the view of the GA

& PG and Law department in identical cases. Referring to the views of the

GA & PG and Law department, learned Additional Government Advocate

submitted that both the departments have clarified that the limitation would

start from the date of knowledge. Accordingly the present proceeding has

been initiated against the Petitioner by applying the views expressed by the

aforesaid both departments of Government of Odisha.

11. In reply to the contentions raised by the learned Additional

Government Advocate, learned counsel for the Petitioner submitted that the

views of the GA & PG as well as Law department are expressed in other

identical cases in a different factual scenario, therefore, the same is not // 9 //

applicable to the facts of the case of the Petitioner. He further submitted

that the case of the Petitioner is to be considered in the light of the Rule

7(2)(b)(ii) of OCS (Pension) Rules which have been interpreted by two

different Division Benches of this Court in the judgment referred to

hereinabove. Therefore, there is no ambiguity with regard to the

applicability of the Rules. Accordingly, learned counsel for the Petitioner

submitted that the initiation of the proceeding is clearly barred by limitation.

12. Having heard learned counsel for the parties and upon a careful

consideration of the factual background of the present case, this Court is of

the considered view that the only question that is to be adjudicated in the

present case is whether the case of the Petitioner would be governed by

Rule 7(2)(b)(ii) of OCS(Pension) Rules, 1992 and if so whether the

initiation of the Departmental Proceeding against the Petitioner in the year

2022, as has been done in the present case, is within the period of limitation

as prescribed in the aforesaid Rules ? While analyzing the factual position

of the present case, this Court is required to keep in view certain factual

aspects like the Petitioner has retired from service on attaining the age of

superannuation with effect from 31.08.2017. Further, the memorandum of

charges dated 19.05.2022 which was received by the Petitioner under

Annexure-2 to the Writ Petition reveals that the article of charges contains

the allegation pertaining to the period from June, 2010 to July, 2015. Taking

into consideration these facts, this Court has no hesitation to come to a // 10 //

conclusion that the proceeding which was initiated in the year 2022 is in

respect of allegation pertaining to a period i.e. from June, 2010 to July,

2015, which is beyond the four years limitation period as prescribed under

Rule 7(2)(b)(ii) of OCS (Pension) Rules, 1992. In absence of any provision

in the Rule with regard to the starting date of the period of limitation and

while interpreting the period of limitation, the contention of the Opposite

Partiers that the same shall be calculated from the date of knowledge

would be a wrong interpretation of law keeping in view the provisions

contained in Rule-7 of OCS (Pension) Rules, 1992. In this context, this

Court would like to refer to Paragraph-10 of the judgment in

P.Satyanarayan Patro case (supra) and the relevant portion is quoted herein

below :

"xx xx xx But there is nothing to show in the Pension Rules that the period of four years as envisaged in Rule 7 can also be counted from the date of knowledge. So, we are in agreement with the view of the learned counsel for the Petitioner that the very initiation of the departmental proceeding is bad in law."

In view of the aforesaid categorical pronouncement by a Division

Bench of this Court in P.Satyanarayan Patro's case, this Court has no

hesitation in accepting such view expressed in the aforesaid judgment.

Otherwise also the judgment in P.Satyanarayan Patro (supra) having been

rendered by a Division Bench is binding on a single Judge Bench.

// 11 //

13. In view of the aforesaid analysis of law and factual position as

narrated herein above, the Writ Petition is bound to succeed and

accordingly, this Court has no hesitation in coming to a conclusion that the

proceeding was initiated beyond the period of imitation as prescribed under

Rule 7(2)(b)(ii) of OCS(Pension) Rules, 1992 and accordingly the

disciplinary proceeding under Annexure-2 is liable to be quashed, and is