Subash Chandra Sahu vs State Of Odisha And Others
2023 Latest Caselaw 10554 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                 W.P.(C) No.28431 of 2023

                 Subash Chandra Sahu                   ....           Petitioner

                                                  Mr. L. Samantaray, Advocate
                                            -versus-
                 State of Odisha and others           ....     Opposite Parties

                                              Mr. P.K. Parhi, DSGI along with
                                                      Mr. D. Moharana, CGC


                                        CORAM:
                               JUSTICE A.K. MOHAPATRA

                                           ORDER

Order No.                                 01.09.2023
    01.

1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).

2. Heard Mr. L. Samantaray, learned counsel for the petitioner as well as Mr. D. Moharana, learned Central Government Counsel for the Union of India. Perused the writ application as well as documents annexed thereto.

3. The present writ petition has been filed by the petitioner with the following prayers:

"The petitioner, therefore, prays that this Hon'ble Court be graciously pleased to issue Rule Nisi calling upon the Opp. Parties to show cause as to why:-

i. A writ of mandamus or any other appropriate writ/writs shall not be issued // 2 //

quashing the de novo enquiry notice under Anenxure-4 and showing their cause allowed the writ application and quash the proceeding under Annexure-4 and further direct the Opp. Parties to pay pension as well other pensionary dues to the petitioner as is admissible with effect from 01.11.2017, in the facts and circumstances narrated above..

ii. If the Opp. Parties fail to show cause or show insufficient cause the said Rule be made absolute;

iii. And/or pass any other order(s)/Direction(s) as this Hon'ble Court thinks fit and proper;"

4. At the outset, Mr. Samantaray, learned counsel appearing for the petitioner submitted that the petitioner, who was working under the CISF as Havildar, was dismissed from service on 15.09.2009 on being found guilty in a disciplinary proceeding. Being aggrieved by the aforesaid orders, the petitioner has preferred an appeal before the Appellate Authority and the said Appellate Authority confirmed the order of dismissal passed by the disciplinary authority. Thereafter, the petitioner preferred a revision before the revisional authority-Opposite Party No.3 as per rules and the same was also rejected thereby confirming the order of dismissal passed by the disciplinary authority so also the appellate authority vide order dated 31.03.2010.

5. It is further contended by Mr. Samantaray, learned counsel for the petitioner that on the basis of allegation of theft, an F.I.R. was lodged, where the petitioner was made a co-accused. On the // 3 //

basis of such allegation in the criminal case, the above noted disciplinary proceeding was initiated against the petitioner wherein the disciplinary authority found the petitioner's guilty and he has been awarded punishment of dismissal from service.

6. So far as the criminal case is concerned, it is submitted by learned counsel for the petitioner that the petitioner faced trial along with other co-accused persons. Vide judgment of the learned J.M.F.C., Angul in C.T. Case No.2899 of 2009 / Trial No.69 of 2019 dated 17.03.2020 under Annexure-6 to the writ application, the petitioner along with other co-accused persons have been acquitted on the ground that the prosecution has failed to substantiate charges by adducing evidence and no case under Section 379, I.P.C. was made out beyond reasonable doubt.

7. Challenging the order passed by the appellate authority in the disciplinary proceeding, the petitioner had earlier approached this Court by filing a writ application bearing W.P.(C) No.8832 of 2010 and the coordinate Bench of this Court vide order dated 07.03.2019 while setting aside the order of punishment directed the disciplinary authority to initiate a de novo enquiry by providing an opportunity of hearing to the petitioner. Accordingly, the de novo enquiry has been commenced recently. Being aggrieved by initiation of such de novo enquiry, the petitioner has approached this Court by filing the present writ application.

8. Mr. Moharana, learned Central Government Counsel // 4 //

appearing for the Union of India, at the outset, submitted that the petitioner was found involved in the alleged commission of offence under Section 379, I.P.C. Accordingly, the charge in the disciplinary proceeding was prepared and served and an F.I.R. was lodged by NALCO for theft of some valuable articles from the NALCO premises where the petitioner was posted for security duty as a Havildar of CISF. On the allegation of gross negligence in duty, the disciplinary authority found the petitioner guilty and accordingly, imposed the punishment of dismissal from service by following the rules. He further contended that the order passed by the disciplinary authority as well as appellate and revisional authority have categorically held that the petitioner guilty of the charges leveled against the petitioner. Moreover the order passed by the disciplinary authority was scrutinized by the appellate authority as well as revisional authority. Thereafter, the petitioner filed a writ petition before the coordinate Bench of this Court as indicated in the preceding para which was also confirmed in W.A. No.407 of 2019 by the said division Bench of this Court by upholding the order setting aside the orders passed by the departmental authority and the matter has been remanded for de novo enquiry.

9. In course of argument, Mr. Moharana, learned counsel appearing for the Union of India submitted that the petitioner has been paid a sum of rupees nine lakhs approximately. Pursuant to the order of this Court. Such an amount of rupees nine lakhs has been paid towards dues on account of subsistence allowance // 5 //

amount payable to the petitioner. Accordingly, learned Central Government Counsel submitted that the petitioner may be directed to cooperate with the Opposite Parties for an early conclusion of the de novo enquiry and the disciplinary proceeding. He further contended that the payment of retiral and other benefits as is due and admissible to the petitioner can only be considered only after conclusion of the de novo enquiry as directed by this Court.

10. Having heard the learned counsels appearing for the parties, on a careful examination of the background facts of the case as well as materials on record, this Court finds that the present writ application has been filed challenging the de novo enquiry in the disciplinary proceeding initiated recently by the authority. On perusal of the order of this Court passed in the earlier writ application dated 07.03.2019, it is observed that this Court while setting aside the impugned order passed by the disciplinary authority as well as appellate authority and revisional authority on the ground of violation of principle of natural justice and while quashing the impugned orders, remanded the matter back to the disciplinary authority to conduct such de novo enquiry by providing an opportunity of hearing to the petitioner and in due compliance of natural justice. Accordingly, de novo enquiry has been initiated by issuing a fresh notice dated 11/12.10.2022 under Annexure-4 to the writ application.

11. In such view of the matter, this Court is not inclined to // 6 //

interfere with the initiation of de novo enquiry which has been carried out on the basis of the order passed by the coordinate Bench of this Court, which has already been confirmed by the division Bench of this Court. With regard to the payment of financial benefits, this Court observed that the Opposite Parties have paid a sum of rupees nine lakhs approximately on account of subsistence allowance pursuant to the order of this Court. Thus, this Court is also of the considered view that once termination has been set aside by this Court, such an order does not exist in the eye of law anymore and accordingly, it cannot be said the petitioner has been removed/terminated from service. Accordingly, it is to be presumed that the petitioner was continuing in service till his superannuation on 31.10.2017 and thereafter, the petitioner is entitled to the financial benefits.

12. Since the disciplinary proceeding is still pending against the petitioner and the enquiry is going on, the petitioner is not entitled to the final pension and pensionary benefits. However, in view of the rules, the petitioner is entitled to the provisional pension after his retirement from service till conclusion of the disciplinary proceeding. Thus, this Court deems it proper to dispose of the writ petition by directing the Opposite Parties to calculate the provisional pension dues in terms of the rules and the same is to be paid to the petitioner within a period of two months from the date of communication of the certified copy of this order. It is further made clear that for payment of provisional pension shall be subject to final outcome of the // 7 //

disciplinary proceeding against the petitioner.

13. The Opposite Parties are further directed to expedite the disciplinary proceeding and shall make every endeavour to dispose of the same within a period of four months from the date of communication of the certified copy of this order. This Court also directs the petitioner to cooperate with the disciplinary authority for an early conclusion of the said disciplinary proceeding, which is pending against him. The Opposite Parties are directed to act upon production of a certified copy of this order by the petitioner.

14. With the aforesaid observation/direction, the writ petition is disposed of.

Urgent certified copy of this order be granted on proper application.

( A.K. Mohapatra ) Judge

Jagabandhu

Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Secretary-in-Charge Reason: Authentication Location: OHC, CUTTACK Date: 01-Sep-2023 20:36:44