Orissa High Court
Bijay Dandasena vs State Of Odisha And on 8 January, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.33593 of 2023
Bijay Dandasena .... Petitioner
Mr. P.K. Nayak, Advocate
-versus-
State of Odisha and
Others .... Opposite Parties
Mr. S.K. Samal, AGA
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
08.01.2024
Order No.
05. 1. This matter is taken up through Hybrid
Arrangement (Virtual/Physical) Mode.
2. Heard Mr. P.K. Nayak, learned counsel for the
Petitioner and Mr. S.K. Samal, learned Addl. Govt.
Advocate for the State.
3. The Petitioner has filed the present Writ Petition
with the following prayer: -
<It is therefore humbly prayed that your
Lordships may graciously be pleased to
admit this case, call for the records and
after hearing from both sides appropriate
order may kindly be passed by directing to:-
i) set aside/quash the order
dtd.16.08.1988, vide Departmental
proceeding vide office order No.281,
dt.31.08.1988, as reflected in the Service
Book recordings of the petitioner as already
annexed as per Annexure-1 and
Memorandum of charges as given to the
petitioner vide office order No.301/
dt.16.09.1988 as per Annexure-2 and
// 2 //
(ii) Appropriate order may kindly be
passed to regularize the entire period of
service of the petitioner and all the arrear
salary from the date of suspension i.e.
dt.16.08.1988, with revision of pay,
increments etc, up to the date of retirement
i.e. 31.01.2016, may kindly be released,
(iii) Also appropriate order be passed to
release all the retirement benefits with al
the arrears, of the petitioner, within a
stipulated time, due to above said facts and
circumstances for the protection law and
also for the protection of natural justice.=
4. It is the case of the petitioner that the petitioner
while continuing as a Night Watchman-cum-Sweeper in
the office of Opp. Party No.4, he was placed under
suspension vide order dated 16.09.1988 and
subsequently a proceeding was also initiated against
the petitioner vide office order No.281 dated
31.08.1988 under Annexure-1.
4.1. It is contended that the proceeding against the
petitioner was initiated under Annexure-1 and
petitioner was placed under suspension w.e.f.
16.09.1988 because of his involvement in G.R. Case
No.219 of 1987 corresponding to Sessions Case
No.18/7 of 1988 in the file of learned Addl. Sessions
Judge, Bolangir.
4.2. It is contended that even though the proceeding
was initiated on 31.08.1988 under Annexure-1 and
petitioner was convicted by the learned Addl.
Sessions Judge, Bolangir in Sessions Case No.18/7
of 1988 vide judgment dated 16.08.1998, but the
// 3 //
petitioner at no point of time even after his conviction
was terminated from his service, nor the proceeding
in question was disposed of with passing of an
appropriate order. In the alternate, petitioner till
attaining age of superannuation on 31.01.2016 was
allowed to continue under suspension and he was
also paid with his Subsistence Allowance as due and
admissible.
4.3. It is accordingly contended that since the proceeding
initiated in the year 1988 was never disposed of till the
petitioner retired from service on 31.01.2016, because of
such inordinate delay in concluding the proceeding; the
proceeding is liable to be quashed. In support of his
aforesaid submission, learned counsel for the Petitioner
relied on the decision of the Hon'ble Apex Court in the case
of State of Andhra Pradesh vrs. N. Radhakishan, reported
in AIR 1998 SC 1833. The Hon'ble Apex Court in Para-19 &
20 has held as follows:-
"19. It is not possible to lay down any pre-determined
principles applicable to all cases and in all situations where
there is delay in concluding the disciplinary proceedings.
Whether on that ground the disciplinary proceedings are to
be terminated each case has to be examined on the facts
and circumstances in that case. The essence of the matter is
that the court has to take into consideration all relevant
factors and to balance and weight them to determine if it is
in the interest of clean and honest administration that the
disciplinary proceedings should be allowed to terminate
after delay particularly when delay is abnormal and there is
no explanation for the delay. The delinquent employee has a
right that disciplinary proceedings against him are
concluded expeditiously and he is not made to undergo
mental agony and also monetary loss when these are
unnecessarily prolonged without any fault on his part in
delaying the proceedings. In considering whether delay has
// 4 //
vitiated the disciplinary proceedings the Court has to
consider the nature of charge, its complexity and on what
account the delay has occurred. if the delay is unexplained
prejudice to the delinquent employee is writ large on the
face of it. It could also be seen as to how much disciplinary
authority is serious in pursuing the charges against its
employee. It is the basic principle of administrative justice
that an officer entrusted with a particular job has to
perform his duties honestly, efficiently and in accordance
with the rules. If he deviates from this path he is to suffer a
penalty prescribed. Normally, disciplinary proceedings
should be allowed to take its course as per relevant rules
but then delay defeats justice. Delay causes prejudice to the
charged officer unless it can be shown that he is to or when
there is proper explanation for the delay in conducting the
disciplinary proceedings. Ultimately, the court is to balance
these two diverse consideration".
20. In the present case we find that without any
reference to records merely on the report of the Director
General, Anti-Corruption Bureau, charges were framed
against the respondent and ten others, all in verbatim and
without particularizing the role played by each of the
officers charged. There were four charges against the
respondent. With three of them he was not concerned. He
offered explanation regarding the fourth charge but the
disciplinary authority did not examine the same nor did it
choose to appoint any inquiry officer even assuming that
action was validly being initiated under 1991 Rules. There
is no explanation whatsoever for delay in concluding the
inquiry proceedings all these years. The case depended on
records of the Department only and Director General, Anti
Corruption bureau had pointed out that no witnesses had
been examined before he gave his report. The Inquiry
Officers, who had been appointed on after the other, had
just to examine the records to see if the alleged deviations
and constructions were illegal and unauthorised and then
as to who was responsible for condoning or approving the
same against the bye-laws. It is nobody's case that
respondent at any stage tried to obstruct or delay the
inquiry proceedings. The Tribunal rightly did not accept the
explanations of the state as to why delay occurred. In fact
there was hardly any explanation worth consideration. In
the circumstances the Tribunal was justified in quashing the
charge memo dated July 31, 1995 and directing the state to
promote the respondent as per recommendation of the DPC
ignoring memos dated October 27, 1995 and June 1, 1996.
The Tribunal rightly did not quash these two later memos".
// 5 //
4.4. It is accordingly contended that the proceeding
is not only liable to be quashed but also the
petitioner is eligible and entitled to get all retiral
benefits as due and admissible on his retirement
from service w.e.f. 31.01.2016.
5. Mr. S.K. Samal, learned Addl. Govt. Advocate on
the other hand on instruction contended that even
though the proceeding was initiated against the
petitioner on 31.08.1988, but the same could not be
disposed of till petitioner attained the age of
superannuation on 31.01.2016, as in the meantime,
petitioner in the criminal case was convicted vide
judgment dated 16.08.1998 in Sessions Case
No.18/7 of 1988 by the learned Addl. Sessions
Judge, Bolangir. Not only that against such order of
conviction and sentence, though the petitioner
approached this Court in Criminal Appeal No.206 of
1988, but this Court vide its judgment dated
21.09.2007 allowed the appeal in part while
upholding the order of conviction and sentence
passed against the petitioner for the offences under
Section-148, 323/149 & 325/149 of the Indian Penal
Code.
5.1. It is contended that since petitioner was not
acquitted even by the Appellate Court vide its
judgment dated 21.09.2007, petitioner is to be
treated as a convicted employee and in view of the
provisions contained under Rule-6 & 7 of the OCS
// 6 //
(Pension) Rules, 1992, petitioner is not eligible and
entitled to get pension and other pensionary benefits.
Rule 6 & 7 of the OCS (Pension) Rules, 1992 fix as
follows:-
"6. Pension Subject to Future Good Conduct-
(1) Future good conduct shall be an implied condition
of every grant of pension and its continuance under
these rules.
(2) The pension sanctioning authority may by
order in writing, withhold or withdraw a pension or
part thereof, whether permanently or for a specified
period, if the pensioner is convicted of a serious crime
or is found guilty of grave misconduct;
Provided that no such order shall be passed by
an authority subordinate to the authority competent to
make an appointment to the post held by the
pensioner immediately before his retirement from
service:
Provided further that where a part of pension is
withheld or withdrawn, the amount of such pension
shall not be reduced below the amount of minimum
limit.
(3) Where a pensioner is convicted of a serious
crime by a Court of Law, action under sub-rule (1) shall
be taken in the light of the judgment of the Court
relating to such conviction.
(4) In a case not falling under sub-rule (3), if the
authority referred to in sub-rule (2), considers that the
pensioner is prima facie guilty of grave misconduct, it
shall before passing an order under such rule (2)-
(a) serve upon the pensioner a notice
specifying the action proposed to be taken
against him and the ground on which it is
proposed to be taken and calling upon him
to submit, within fifteen days of the receipt
of the notice or such further time as may be
allowed by the pension sanctioning
authority, such representation as he may
wish to make against the proposal; and
(b) take into consideration the
representation, if any, submitted by the
pensioner under clause (3)
// 7 //
(5) Where the authority competent to pass an order
under sub-rule (2) is the Government, the Odisha
Public Service Commission shall be consulted before
the order is passed.
(6) An appeal against an order under sub-rule (2),
passed by any authority other than the Governor shall
lie to the Governor and the Governor shall, in
consultation with the Odisha Public Service
Commission, pass such orders on the appeal as he
deems fit.
Explanation-In this rule-
(a) the expression 8serious crime9 includes a crime
involving an offence under the Official Secret Act,
1923 (19 of 1923),
(b) the expression 'grave misconduct' includes the
communication or disclosure of any secret official
code or pass-word of any sketch, plan, model,
articles, notes document or information such as is
mentioned in Section 5 of the Official Secret Act,
1923 (19 of 1923) (which was obtained while
holding office under the Government) so as to
prejudicially affect the interests of the General
Public or the security of the State.
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 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 is found guilty of grave
misconduct or negligence in duty during the period of
his service including service rendered on re-
employment after retirement:
Provided that the Odisha Public Service
Commission shall be consulted before any final orders
are passed:
Provided further that when a part of pension is
withheld / withdrawn, the amount of such pension
shall not be reduced below the amount of minimum
limit.
(2) (a) Such departmental proceedings referred to
in sub-rule (1), if instituted while the Government
servant was in service, whether before his retirement
or during his re-employment, shall, after the final
retirement of the Government servant, be deemed to be
// 8 //
a proceedings under this rule and shall be continued
and concluded by the authority by which they were
commenced in the same manner as if the Government
servant had continued in service:
Provided that when the departmental
proceedings are instituted by an authority,
subordinate to Government that authority shall submit
a report recording its findings to the Government.
(b) such departmental proceedings 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 the
sanction of Government;
(ii) shall not be in respect of any event which
took place more than four years before such
institution ; and
(iii) shall be conducted by such authority and
in such place as the Government may, direct and
in accordance with the procedure applicable to
departmental proceedings in which an order of
dismissal from service could be made in relation
to the Government servant during his service;
(c) No judicial proceedings, if not instituted while the
Government servant was in service, whether before his
retirement or during his re-employment, shall be
instituted in respect of a cause of action which arose or
in respect of an event which took place, more than four
years before such institution.
(d) In the case of Government servant who has
retired on attaining the age of superannuation or
otherwise and against whom any departmental or
judicial proceedings are instituted or where
departmental proceeding are instituted or where
departmental proceedings are continued under clauses
(a) and (b), a provisional pension as provided in rule
66 shall be sanctioned.
(e) Where the Government decide not to withhold
or withdraw pension but order recovery of pecuniary
loss from pension, the recovery shall not ordinarily be
made at a rate exceeding one-third of the pension
admissible on the date of retirement of a Government
servant.
Explanation-For the purpose of this rule,-
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(a) Departmental proceedings shall be deemed to
be instituted on the date on which the statement of
charges are issued to the Government servant or
pensioner, or if the Government servant has been
placed under suspension from the date of his
suspension; and
(b) judicial proceedings shall be deemed to be
instituted,-
(i) in the case of criminal proceedings, on
the date on which the complaint or report
of a Police Officer, of which the Magistrate
takes cognizance, is made; and
(ii) in the case of civil proceedings, on the
date of presentation of the plaint in the
Court.=
6. To the submission made by the learned State
Counsel, learned counsel for the Petitioner contended
that since at no point of time even after disposal of the
appeal by this Court on 21.09.2007, no order was
passed against the petitioner and no such order has
also been passed as on date, petitioner since while
under suspension was allowed to retire on attaining the
age of superannuation on 31.01.2016, petitioner is
eligible and entitled to get all his retiral dues as due
and admissible with regularization of the period of
suspension.
7. Having heard learned counsel for the parties and
after going through the materials available on record,
this Court finds that the petitioner while continuing in
the office of Opp. Party No.4, he was placed under
suspension on 16.09.1988 and the proceeding in
question was initiated against him on 31.08.1988 vide
Annexure-1. Since from the instruction, it is admitted
that the proceeding was never finalized till the
// 10 //
petitioner attained the age of superannuation on
31.01.2016, placing reliance on the decisions of the
Hon'ble Apex Court in the case of N. Radhakishan as
cited (supra), this Court on the ground of inordinate
delay in not disposing the proceeding is inclined to
quash the proceeding dtd.31.08.1988. While quashing
the proceeding in question, this Court dispose of the
Writ Petition by directing Opp. Party No.3 to regularize
the period of suspension from 16.09.1988 to
31.01.2016 as due and admissible and take effective
step for sanction and release of the retiral benefits as
due and admissible to the petitioner, within a period of
3 (three) months from the date of receipt of this order.
8. The Writ Petition is accordingly disposed of.
However, benefit of the order with regard to sanction
of pension shall be subject to any order that may be
passed by the Competent Authority taking recourse
to the provisions contained under Rule-6 and 7 of the
OCS (Pension) Rules, 1992.
(Biraja Prasanna Satapathy)
Judge
Basudev
Reason: Authentication of order
Location: High Court of Orissa, Cuttack
