Conservator Of Forests vs Surendra Kumar Routray
2023 Latest Caselaw 10855 Ori

                   ORISSA HIGH COURT: CUTTACK

AFR                      W.P(C) NO. 26842 OF 2017

        In the matter of an application under Articles 226 and
        227 of the Constitution of India.
                              ---------------

Conservator of Forests, Cuttack Kendu Leaves Circle, Badambadi, Cuttack & Ors. ..... Petitioners

-Versus-

Surendra Kumar Routray & Anr. ..... Opp. Parties

For petitioners : Mr. A.K. Mishra, Addl. Govt. Advocate

For opp. parties : M/s. R.N. Nayak, N.K. Sen & S. Sahani, Advocates [O.P.1]

P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN

Date of Hearing : 01.09.2023 :: Date of Judgment: 05.09.2023

DR. B.R. SARANGI,J. The petitioners, who are functionaries of

the State, by means of this writ petition, seek to quash // 2 //

the order dated 27.01.2017 passed in O.A. No.1001(C)

of 2000 under Annexure-3, by which the Odisha

Administrative Tribunal, Cuttack Bench, Cuttack, has

held that the action of petitioner no.2 in disallowing the

vouchers and rejection of the appeal by petitioner no.1

is contrary to the provisions contained in Rule 346 of

the Odisha Forest Departmental Code, 1979.

2. The factual matrix of the case, in brief, is

that opposite party no.1, while working as Forest Range

Officer, Kantamal (KL) Range under the administrative

control of the D.F.O., Boudh (KL) Division, took some

advances during the kendu leaf crop year 1987 and

1988 to incur expenditure for procuring kendu leaves to

reach the prescribed target and submitted relevant

vouchers to cover up such forest advances through the

Sub-Divisional Forest Officer, Manamunda (KL) Sub-

Division under whose direct supervision the work was

being carried out. In the first part of 1989, opposite

party no.1 was transferred to Madhapur Kendu Leaf

Range under Athamallik (KL) Division. While he was

continuing at Madhapur (KL) Range, the DFO, // 3 //

Athamallik (KL) Division intimated him that the DFO,

Boudh (KL) Division had mentioned in the LPC for

recovery of Rs.236.24 towards management account

and Rs.87,236.15 towards PL account of Kantamal (KL)

Range up to February, 1988 of him. Against such

intimation of recovery, opposite party no.1 preferred

appeal under Rule 348 of the Odisha Forest

Departmental Code, 1979 before petitioner no.1 on

6.10.1990. He also approached the Odisha

Administrative Tribunal by filing 0.A. No.1640 of 1990

challenging the order for recovery of Rs.87,472.39 paise

and the Tribunal, vide order dated 05.03.1991,

disposed of the said O.A. directing petitioner no.1 to

dispose of the appeal within a period of three months,

pending which there would be no recovery as per the

disallowed vouchers from opposite party no.1. Pending

consideration of the appeal, petitioner no.2, vide memos

dated 28.03.1997 and 11.08.1998, which were filed as

Annexure-1 and Annexure-7 respectively to the O.A.,

directed opposite party no.1 to deposit Rs.1,04,533.75

in shape of bank draft.

// 4 //

2.1 Aggrieved by such memos at Annexures-1

and 7 to the O.A., opposite party no.1 filed O.A.

No.2314(C) of 1998 and the Tribunal, vide order dated

29.10.1998, directed petitioner no.1 to dispose of the

appeal preferred by opposite party no.1 within a period

of three months. In compliance of the same, petitioner

no.1, vide office order no.80 dated 30.04.1999 at

Annexure-13 to the said O.A., disposed of the appeal

with a direction to opposite party no.1 to deposit hard

cash of Rs.40.50 and also the disallowed vouchers'

amount of Rs.71,375/-, which was communicated to

opposite party no.1 by petitioner no.2, vide letter dated

22.05.1999 at Annexure-14 to the O.A.

2.2 Alleging the office order dated 30.04.1999

and the letter dated 22.05.1999 at Annexure-13 &

Annexure-14 respectively to the O.A. as illegal and

violative of codal provision contained in Rule 346 of

Odisha Forest Departmental Code, 1979, opposite party

no.1 again approached the Tribunal by filing O.A.

No.1001(C) of 2000 and the Tribunal, vide order dated // 5 //

27.01.2017, disposed of the said O.A., which is the

subject matter of challenge in this writ petition.

3. Mr. A.K. Mishra, learned Counsel appearing

for the petitioners contended that opposite party no.1

was in-charge of Kantamal (KL) Range of Boudh (KL)

Division from 30.08.1985 to 21.09.1988 and on his

transfer to Athamallik (KL) Division, he was relieved

from Boudh (KL) Division on 21.9.1988. His LPC was

sent to DFO, Athamallik (KL) Division, vide memo

no.521 dated 10.02.1999 of DFO, Boudh (KL) Division,

mentioning Rs.236.24 as outstanding under

management account and Rs.87,236.15 as outstanding

under P.L. account up to February,1988 for recovery

from opposite party no.1. Therefore, opposite party no.1

filed representation on 31.05.1997 requesting the DFO,

Boudh (KL) Division to supply the detailed list of

disallowed vouchers. But prior to receipt of his request,

the concerned records were sent to the Conservator of

Forest, KL Circle, Cuttack for finalization of appeal

preferred by him. It is further contended that opposite

party no.1 of his own, by letter dated 20.07.1997, // 6 //

stated that due to unavoidable circumstances he could

not attend the hearing on 17.06.1999 without

mentioning that the letter no.1976 dated 05.06.1997 of

the Conservator of Forests, Cuttack Kendu Leaves

Circle was received late. Therefore, opposite party no.1

deliberately and willfully avoided to appear before the

Conservator of Forests, Cuttack Kendu Leaves Circle to

defend his case. The Divisional Forest Officer, Boudh

(KL) Division has decided the vouchers diligently by

following the legal provisions. Thereby, there is no

question of violation of any of the provisions of the

Odisha Forest Departmental Code, 1979. As a

consequence thereof, the order of the Conservator of

Forests, Cuttack Kendu Leaves Circle is not illegal and

violative of executive instructions, rather opposite party

no.1 has avoided willfully to put forth his grievance

before the appellate authority, though he was given

sufficient opportunity to defend his case. Therefore, he

contended that the relief sought by opposite party no.1

before the Tribunal should not have been allowed.

// 7 //

4. Mr. R.N. Nayak, learned counsel appearing

for opposite party no.1 vehemently contended that

opposite party no.1 is not liable to pay the demand so

raised by the authority. Therefore, justifying the order

dated 27.01.2000 passed in O.A. No.1001(C) of 2000 by

the Tribunal quashing the office order dated 30.04.1991

and the memo dated 22.05.1999 at Annexures-13 & 14

to the O.A., he contended that as per the provisions

contained in Rule 346 of the Odisha Forest

Departmental Code, 1979, if no decision is taken on

withheld vouchers within a period of three months, the

withheld vouchers should be incorporated in the

Divisional Accounts. Since no decision on withheld

vouchers was taken within three months, opposite

party no.1 is not liable to pay the amount, as indicated

in Annexures-13 & 14 to the O.A. Thereby, it is

contended that the Tribunal has not committed any

illegality or irregularity in passing the order dated

27.01.2000 in O.A. No.1001(C) of 2000 so as to warrant

interference of this Court at this stage.

// 8 //

5. This Court heard Mr. A.K. Mishra, learned

Addl. Government Advocate appearing for the

petitioners and Mr. R.N. Nayak, learned counsel

appearing for opposite party no.1 in hybrid mode.

Pleadings have been exchanged between the parties and

with the consent of learned counsel for the parties, the

writ petition is being disposed of finally at the stage of

admission.

6. The factual matrix, as narrated above,

reveals that opposite party no.1, while continuing in

service at Kantamal (KL) Range of Boudh (KL) Division

under the administrative control of DFO, Boudh, on

being transferred to Madhapur Kenduleaf Range under

Athamallik (KL) Division, was issued with LPC vide

memo dated 10.02.1999 mentioning recovery of

Rs.236.24 as outstanding under management account

and Rs.87,236.15 as outstanding under P.L. account

up to February, 1988. Against such order of recovery,

opposite party no.1 preferred appeal under Rule 348 of

the Odisha Forest Developmental Code, 1979, before

petitioner no.1 on 06.10.1990. Due to inaction, he filed // 9 //

O.A. No.1640 of 1990, which was disposed of vide order

dated 05.03.1991 with a direction to petitioner no.1 to

dispose of the said appeal within a period of three

months, pending which there would be no recovery as

per the disallowed vouchers from opposite party no.1.

Pending consideration of the appeal, petitioner no.2,

vide memos dated 28.03.1997 and 11.08.1998, at

Annexure-1 & Annexure-7 respectively to the said O.A.,

directed opposite party no.1 to deposit Rs.1,04,533.75

in shape of bank draft. Against the said orders, opposite

party no.1 filed O.A. No.2314(C)/1998 and the

Tribunal, vide order dated 29.10.1998, directed

petitioner no.1 to dispose of the appeal preferred by

opposite party no.1 within a period of three months. In

compliance of the same, petitioner no.1, vide office

order no.80 dated 30.04.1999 at Annexure-13 to the

said O.A., disposed of the appeal with a direction to

opposite party no.1 to deposit hard cash of Rs.40.50 as

well as the amount of disallowed vouchers, i.e.,

Rs.71,375/-, which was communicated to opposite

party no.1 by petitioner no.2, vide letter dated // 10 //

22.05.1999 at Annexure-14 to the O.A. The same was

challenged by opposite party no.1 in O.A. No.1001(C) of

2000 alleging violation of the codal provisions contained

in Rule 346 of Odisha Forest Departmental Code, 1979.

7. For better appreciation, Rule 346 of Odisha

Forest Departmental Code, 1979 is quoted below:-

Withholding and disallowing of vouchers-

"346(1): If a voucher is withheld for incorporation in the Divisional Accounts on account of inaccuracies or owing to suspicion of fraud, the explanation of the Range Officer and the Officer who had disbursed the amount in the voucher should be obtained. The Divisional Forest Officer after due consideration of the explanation shall order about its incorporation in part or in full or he may order disallowing the vouchers. The disallowed amount shall then be recovered from the person disbursing the voucher. An appeal against the decision of the Divisional Forest Officer shall however be with the Conservator if this is preferred within thirty days. The decision of the Conservator shall be final. In the event of a fraudulent voucher been disallowed in part or in full, further disciplinary action may also be taken.

(2) Decision on withheld vouchers should be taken within 3 months, failing which all withheld vouchers shall be incorporated in the Accounts."

On perusal of the aforesaid provision, it is made clear

that if a voucher is withheld for incorporation in the

Divisional Accounts, on account of inaccuracies or

owing to suspicion of fraud, the explanation of the // 11 //

Range Officer and the Officer, who had disbursed the

amount in the voucher, should be obtained. The

Divisional Forest Officer, after due consideration of the

explanation, shall order about its incorporation in part

or in full or he may order disallowing the voucher. That

means, if the voucher is disallowed on account of

inaccuracies or owing to suspicion of fraud, then

explanation of the Range Officer and the Officer, who

has disbursed the amount in the voucher, shall be

obtained. As such, the requirements of Rule 346 of the

Odisha Forest Departmental Code, 1979 have not been

followed in the present case. It is for the first time,

when the LPC was sent, it was indicated that opposite

party no.1 is liable to pay the demand raised due to

disallowed vouchers. There is nothing on record to show

that an explanation was called for from opposite party

no.1 and on consideration of the same the Divisional

Forest Officer had passed order disallowing the

vouchers. In absence of the same, direction issued to

recover the amount from opposite party no.1 is not in

consonance with the provisions of Rule 346 of the // 12 //

Odisha Forest Departmental Code, 1979. Furthermore,

the order of the Divisional Forest Officer is appealable

before the Conservator of Forests, if it is preferred

within a period of 30 days, and the decision of the

Conservator of Forests shall be final. Though opposite

party no.1 preferred appeal, the appellate authority,

without considering the same in proper perspective,

directed to deposit hard cash of Rs.40.50 and

disallowed amount of Rs.71,375/- vide Annexure-13 to

the O.A. and communication thereof was made vide

letter dated 22.05.1999 at Annexure-14 to the O.A. It is

further provided under Rule 346 that decision on

withheld vouchers should be taken within three

months, failing which all withheld vouchers shall be

incorporated in the Accounts.

8. The Tribunal, while passing the order

impugned dated 27.01.2017, came to a finding that the

provisions of Rule 346 of the Odisha Forest

Developmental Code, 1979 have not been followed and

the appeal preferred by opposite party no.1 has been

disposed of mechanically without application of mind // 13 //

and direction to opposite party no.1 to deposit Rs.40.50

and also disallowed amount of Rs.71,375/- vide

Annexure-13 to the O.A. and communication made

thereof vide letter dated 22.05.1999 at Annexure-14 to

the O.A is contrary to the provisions of Rule 346 of the

Odisha Forest Developmental Code, 1979. The Tribunal,

as it seems, has committed gross error apparent on the

face of the record, having come to such a conclusion

without applying its mind to the provisions contained in

Rule 346 of Odisha Forest Developmental Code, 1979,

because if the vouchers were withheld for incorporation

in the Divisional Accounts on account of inaccuracies

or owing to suspicion of fraud, the explanation of the

Range Officer and the Officer, who had disbursed the

amount in the vouchers, should have been obtained.

But, as a matter of fact, no such explanation from

opposite party no.1 was obtained, rather, when opposite

party no.1 was transferred and his LPC was sent, for

the first time it was indicated that opposite party no.1 is

liable to pay Rs.236.24 towards management account

and Rs.87,236.15 towards PL account of Kantamal (KL) // 14 //

Range up to February, 1998. Such determination of

liability and communication thereof has been made

without adhering to the provisions of Rule 346 of the

Odisha Forest Developmental Code, 1979. If that be so,

the appellate authority could not have passed the order

impugned. Even if the appellate authority passed such

order, the Tribunal should have applied its mind and

remitted the matter to the Divisional Forest Officer to

act in consonance with the provisions of Rule 346(1) of

the Odisha Forest Developmental Code, 1979 to

determine the liability, which is appealable before the

Conservator of Forests within thirty days. Therefore, the

very initiation of demand raised by the Divisional Forest

Officer, without calling for explanation from opposite

party no.1, is not in consonance with the provisions of

Rule 346(1) of the Odisha Forest Developmental Code,

1979. As such, without calling for such explanation, the

demand raised by the Divisional Forest Officer against

opposite party no.1 cannot be sustained in the eye of

law and consequentially the appeal preferred by

opposite party no.1 and final order passed by the // 15 //

Conservator of Forest cannot be sustained in the eye of

law. The Tribunal, having failed to understand the

provisions contained in Rule 346 in proper perspective,

passed the order impugned, which cannot be sustained

in the eye of law.

9. When the basic rudiment of the orders

passed by the Divisional Forest Officer, as well as the

Conservator of Forests in appeal under Annexures-13

and 14 to the O.A. was under challenge, the Tribunal

ought to have set aside those orders and remitted the

matter to the Divisional Forest Officer for fresh

adjudication in terms of Rule 346(1) of the Odisha

Forest Developmental Code, 1979. But, instead of doing

so, the Tribunal quashed the orders challenged before it

as Annexures-13 and 14 and directed that the withheld

vouchers shall be incorporated in the Divisional

Account and opposite party no.1 shall not be liable to

pay the amount as indicated in Annexures-13 and 14.

Thereby, this Court is of the view that the Tribunal has

committed gross error apparent on the face of the

record and without applying its mind in proper // 16 //

perspective has passed the impugned order dated

27.01.2017, which cannot be sustained in the eye of

law.

10. In N.P.T. Co. V. N.S.T. Co, AIR 1957 SC 232,

the apex Court held that where the Administrative

Tribunal has committed an error of law apparent on the

face of the record, the Court can interfere with the

same.

The same view has also been taken by the

apex Court in Nagendra v. Commissioner, (1958) SCR

1240 and Govindrao v. State of M.P., AIR 1965 SC

1222.

11. In Union of India v. India Fisheries, AIR

1966 SC 35, the apex Court held that where the

Tribunal made a patent error in interpreting the

material statutory provision, the Court can interfere

with the same.

12. In view of the facts and law, as discussed

above, the order dated 27.01.2017 passed by the // 17 //

Tribunal in O.A. No.1001(C) of 2000 cannot be

sustained in the eye of law and the same is liable to be

quashed and is hereby quashed. Consequentially, the

action of petitioner no.2-Divisional Forest Officer in

disallowing the vouchers and rejection of appeal by

petitioner no.1-Conservator of Forests, Cuttack Kendu

Leaves Circle, Cuttack in Annexures-13 and 14

respectively to the O.A. also cannot be sustained and

are hereby quashed. The matter is remitted to the

Divisional Forest Officer-petitioner no.2 with a direction

to call for an explanation from opposite party no.1-

Range Officer, who had disbursed the amount in the

vouchers, and pass order with regard to incorporation

of the vouchers either in part or full, or pass order in

regard to disallowing the vouchers in terms of Rule

346(1) of the Odisha Forest Developmental Code, 1979.

13. In the result, therefore, the writ petition

stands allowed. But, however, under the circumstances

of the case, there shall be no order as to costs.

// 18 //

14. Consequentially, the interim order dated

02.05.2018 passed in Misc. Case No.23017 of 2017

stands vacated.

                                                                (DR. B.R. SARANGI)
                                                                     JUDGE


            M.S. RAMAN, J.            I agree.


                                                                  (M.S. RAMAN)
                                                                      JUDGE


                           Orissa High Court, Cuttack
                           The 5th September, 2023, Alok




Signature Not Verified
Digitally Signed
Signed by: ALOK RANJAN SETHY
Designation: Secretary
Reason: Authentication
Location: Orissa High Court
Date: 05-Sep-2023 16:30:25