Orissa High Court

Dhaneswar Nayak vs State Of Odisha And Ors. .... Opposite ... on 30 January, 2025

Author: S.K. Panigrahi

Bench: S.K. Panigrahi

                                                               Signature Not Verified
                                                               Digitally Signed
                                                               Signed by: BHABAGRAHI JHANKAR
                                                               Designation: AR-CUM-SR. SECRETARY
                                                               Reason: Authentication
                                                               Location: ORISSA HIGH COURT, CUTTACK
                                                               Date: 03-Feb-2025 11:39:33



                   IN THE HIGH COURT OF ORISSA AT CUTTACK

                                 W.P.(C) No.4909 of 2024

        (In the matter of an application under Articles 226 and 227 of the
        Constitution of India, 1950).

        Dhaneswar Nayak                             ....               Petitioner(s)
                                         -versus-
        State of Odisha and Ors.                    ....        Opposite Party (s)


      Advocates appeared in the case throughHybrid Mode:

        For Petitioner(s)            :               Mr.Gyana Ranjan Sethi, Adv.

        For Opposite Party (s)       :                     Mr. S.N. Patnaik, AGA


                  CORAM:
                  DR. JUSTICE S.K. PANIGRAHI

                       DATE OF HEARING:-16.01.2025
                      DATE OF JUDGMENT:-30.01.2025
      Dr. S.K. Panigrahi, J.

1. The Petitioner has filed this Writ Petition challenging the legality of the

departmental proceeding initiated against him after this retirement

through Memorandum No.1956 dated 21.02.2024. He claims the

proceeding violates Rule 7 of the Orissa Civil Services (Pension) Rules,

1992.

I. FACTUAL MATRIX OF THE CASE:

2. The brief facts of the caseare asfollows:

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 03-Feb-2025 11:39:33

(i) The petitioner, while in service, was implicated in Cuttack Vigilance

P.S. Case No. 25 dated 13.04.2010 under Sections 13(2)/13(1)(d) of the

Prevention of Corruption Act, 1988, read with Section 420 and 120-B of

the Indian Penal Code. The case pertains to allegations of illegal

utilization of seized vehicles for transporting iron ore fines in violation

of Section 17(2) of the Orissa Motor Vehicles Taxation (OMVT) Act,

1975.

(ii) The petitioner retired on 31.10.2022. Four days before his retirement, on

26.10.2022, the Superintendent of Police (Vigilance Cell, Cuttack)

submitted a draft memorandum of charges against him. Accordingly,

the transport commissioner received the said draft memorandum on

16.11.2022 and forwarded it to the Department.

(iii) The disciplinary proceeding was initiated by Memorandum No. 1956

dated 21.02.2024 with government sanction under Rule 7 of the Orissa

Civil Services (Pension) Rules, 1992.

(iv) The petitioner was accused of gross misconduct, dereliction of duty,

failure to maintain integrity, and violation of the OMVT Act, 1975.

Allegations include misuse of his position as a public servant, which,

according to the opposite parties, amounts to grave moral turpitude.

(v) The petitioner was asked to submit a written statement of defense

within 30 days of receiving the memorandum. Failing to do so, an

inquiry officer was appointed on 04.09.2024 to investigate the charges

under Rule 15(4) of the Orissa Civil Services (Classification, Control,

and Appeal) Rules, 1962.

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 03-Feb-2025 11:39:33

(vi) The Department contends that the four-year limitation should be

counted from 16.11.2022, the date when the allegations were brought to

their attention. The disciplinary proceeding was thus initiated within

the permissible time limit after retirement.

(vii) The petitioner is also facing criminal prosecution in TR No. 53/2015,

pending before the Special Judge, Vigilance, Cuttack. Cognizance of the

offense was taken by the trial court on 06.11.2015.

II. SUBMISSIONS ON BEHALF OF THE PETITIONER:

3. Learned counsel for the Petitioner earnestly made the following

submissions in support of his contentions:

(i) Rule 7(b)(ii) explicitly prohibits the initiation of departmental

proceedings against a retired employee for events that occurred more

than four years prior.Since the alleged misconduct took place in January

2010 and the proceedings were initiated in February 2024, which is

statutorily embargoed for proceedings.

(ii) The alleged incident dated back 14 years ago, rendering it impractical

and unjust to proceed with the inquiry as evidence and witness

reliability may have significantly deteriorated and might have list its

integrity.

(iii) The petitioner relies on the ruling in Suchismita Mishra v. High Court

of Orissa and Others, where similar proceedings were quashed for

breaching Rule 7 of the OCS (Pension) Rules, 1992. The principle of law

established in this case mandates adherence to the statutory limitations.

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 03-Feb-2025 11:39:33

(iv) Since the petitioner has already retired and is no longer in service, the

continuation of the proceedings serves no purpose other than

penalizing him without basis. Continuing such time-barred proceedings

would cause unnecessary harassment, violating principles of natural

justice and equity.

III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:

4. The Learned Counsel for the Opposite Parties earnestly made the

following submissions in support of his contentions:

(i) The opposite parties contend that the writ petition is not maintainable

in law or on facts and is misconceived, as the disciplinary proceedings

were initiated in compliance with applicable rules.

(ii) The Department initiated the disciplinary proceedings within the four-

year limitation period stipulated under Rule 7(2)(b)(ii) of the OCS

(Pension) Rules, 1992. The relevant date for counting the limitation is

16.11.2022, when the Transport Commissioner forwarded the vigilance

report to the Department.

(iii) It is asserted that the disciplinary proceeding was initiated with proper

government sanction as required under Rule 7 of the OCS (Pension)

Rules, 1992.

(iv) The petitioner failed to submit his written statement of defense within

the stipulated time, necessitating the appointment of an inquiry officer.

(v) The allegations against the petitioner involve grave moral turpitude,

misuse of position, and violation of statutory provisions, which are

unbecoming of a public servant. Allowing the quashing of the

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 03-Feb-2025 11:39:33

disciplinary proceedings would undermine public interest, hinder

administrative transparency, and set a detrimental precedent.

(vi) The petitioner's alleged actions are also the subject of an ongoing

criminal trial (TR No. 53/2015), further underscoring the seriousness of

the charges.

IV. COURT'S REASONING AND ANALYSIS:

5. Heard Learned Counsel for parties and perused the documents placed

before this Court.

6. The crux of this matter rests on the initiation of disciplinary proceedings

against the petitioner, who retired from service on 31.10.2022. The

proceedings were formally issued on 21.02.2024, nearly a year and a half

after his retirement. While in service, the petitioner was implicated in

Cuttack Vigilance P.S. Case No. 25 dated 13.04.2010 under Sections 13(2)

and 13(1)(d) of the Prevention of Corruption Act, 1988, read with

Sections 420 and 120-B of the Indian Penal Code. The allegations center

on the unauthorized use of a seized vehicle for the illegal transportation

of iron ore, allegedly in contravention of Section 17(2) of the Orissa

Motor Vehicles Taxation (OMVT) Act, 1975.

7. Notably, four days prior to the petitioner's retirement, on 26.10.2022, the

Superintendent of Police (Vigilance Cell, Cuttack) submitted a draft

memorandum of charges, which was subsequently forwarded by the

Transport Commissioner to the Department on 16.11.2022. On the

strength of this draft memorandum, the Department initiated

disciplinary proceedings. The pivotal question before this Court is

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 03-Feb-2025 11:39:33

whether such disciplinary proceedings, initiated after the petitioner's

retirement, are legally tenable.

8. It is a well-established principle that the authority of an employer to

exercise disciplinary control over an employee ceases once the bond of

employment is severed, whether by retirement or by any other lawful

termination of service. As a general rule, disciplinary proceedings

cannot be initiated against an employee once he has retired, nor can

such proceedings, if already pending, be lawfully continued after his

departure from service. However, where the law, by express provision,

carves out an exception, such proceedings may be sustained, but only

within the strict confines of that authority.

9. The Supreme Court had an occasion to consider the question of

disciplinary proceedings post-retirement in Bhagirathi Jena v. Board of

Directors, O.F.S.C. &Ors1. , particularly in the context of the rights of an

employee of the Orissa State Financial Corporation, whose service

conditions were governed by the Orissa Financial State Corporation

Staff Regulations, 1975. In that case, the regulations did not contain any

provision for the continuance of disciplinary proceedings against an

employee after superannuation. While the proceedings had been

initiated during the employee's tenure through the issuance of a charge

sheet, they remained inconclusive at the time of his retirement. The

central question before the Court was whether such proceedings could

(1999) 3 JT 53 (SC).

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 03-Feb-2025 11:39:33

lawfully continue after the employee had retired from service. The

relevant excerpts of the judgment is produced below:

"In view of the absence of such a provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. 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 30-6-1995, 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."

10. Likewise, in State Bank of India &Ors. v. Navin Kumar Sinha2, the

Supreme Court, in its wisdom, struck down disciplinary proceedings

initiated against a bank employee after the conclusion of his extended

tenure of service. The Court reaffirmed the enduring principle that once

an employee steps beyond the bounds of active service, the employer's

disciplinary authority is extinguished unless expressly preserved by

law. The relevant excerpt of the judgment is produced below:

"As has been held by this Court on more than one occasion, a subsisting disciplinary proceeding i.e. one initiated before superannuation of the delinquent officer may be continued post superannuation by creating a legal fiction of continuance of service of the delinquent officer for the purpose of conclusion of the disciplinary proceeding (in this case as per Rule 19(3) of

2024 INSC 874.

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 03-Feb-2025 11:39:33

the Service Rules). But no disciplinary proceeding can be initiated after the delinquent employee or officer retires from service on attaining the age of superannuation or after the extended period of service"

11. To appropriately juxtapose the principles enshrined in the

aforementioned judicial precedents with the facts of the present case, it

is incumbent upon this Court to undertake a meticulous examination of

the governing statutory framework, particularly Rule 7 of the Orissa

Civil Services (Pension) Rules, 1992. The relevant excerpts of this

provision is provided below:

"(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)...(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 reemployment-

(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

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 03-Feb-2025 11:39:33

(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..."(Emphasis Supplied)

12. The interpretation of Rule 7 of the Orissa Civil Services (Pension) Rules,

1992, as extracted above, unequivocally establishes a dual threshold for

initiating departmental proceedings post-retirement: first, that such

proceedings must not pertain to events occurring more than four years

prior to their institution; and second, that proceedings initiated post-

retirement must have the sanction of the Government. From here, this

court shall seek answers to both the questions in the next paragraphs.

13. In the case at hand, the allegations levelled against the petitioner trace

their origin to events that transpired in the year 2010. Yet, it was not

initiated until October of 2022, mere days before the petitioner was to

lay down the burdens of office that the Superintendent of Police

(Vigilance Cell), Cuttack found it fit to submit the draft memorandum

detailing the accusations of gross misconduct. When the language of

Rule 7 is read with the discernment the law demands, the term event, as

employed therein, must be construed in its plain and ordinary sense to

refer to the incident itself, the occurrence in 2010 that gave rise to these

proceedings.

14. By the clear dictate of the Rules, the threshold of four years has long

since passed. The sands of time, unhalted by administrative inertia,

have rendered the initiation of proceedings not merely tardy but

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 03-Feb-2025 11:39:33

altogether impermissible. Not only had a full twelve years elapsed

before the machinery of discipline was belatedly set into motion, but, in

a further affront to established principles of law, this course of action

was embarked upon only after the petitioner had already crossed the

threshold into retirement.

15. At this juncture, the Court must pause to reflect upon the fundamental

character of disciplinary proceedings and the evidentiary burdens they

impose. Unlike a criminal prosecution, where guilt must be established

beyond a reasonable doubt, the edifice of a departmental inquiry rests

upon a less exacting, though no less principled, foundation, the

standard of preponderance of probability. It is a measure dictated not

by certitude, but by reasoned persuasion, requiring only that the scales

of evidence tip in favour of one conclusion over another. In elucidating

this principle, it is instructive to turn to the pronouncement of the

Supreme Court in Ajit Kumar Nag v. General Manager (PJ), Indian Oil

Corporation Ltd. &Ors.3 The relevant portions of the judgment are

produced below:

"The two proceedings criminal and departmental are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with service Rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of

AIR 2005 SUPREME COURT 4217.

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 03-Feb-2025 11:39:33

evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused 'beyond reasonable doubt', he cannot be convicted by a court of law. In departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of 'preponderance of probability'."

16. A careful study of this doctrine leaves no room for doubt, departmental

proceedings, by their very design, lean heavily in favour of the

employer. In such a scheme, where strict evidentiary safeguards are

relaxed, the difficulties of defense are already manifold. But when the

weight of time itself is added to the burden, when an employee is called

upon to answer charges after the passage of twelve long years, the

difficulty swells into near impossibility. Memory fades, records are lost,

and witnesses disappear into the mist of time. To demand of a man,

long after the fact, that he summons forth evidence to clear his name, is

not merely to impose hardship; it is to strip him of a fair chance at

justice.

17. In order to impose such a burden upon a man who has laid down his