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2008 DIGILAW 686 (ORI)

Sukadev Behera v. M. D. , OFDC Ltd

2008-08-12

B.P.DAS, R.N.BISWAL

body2008
ORDER 12.08.2008 — Heard Mr. B. K. Kar, learned counsel for the petitioner and learned counsel for the opp.parties. The petitioner has filed this writ application with a prayer to quash the office order dated 22.7.2003 issued by the Division¬al Manager, Orissa Forest Development Corporation Ltd., Jeypore (C. KL) Division vide Annexure-2, initiating disciplinary pro¬ceeding against him on certain alleged irregularities committed while working in different posts in the Corporation. The disci¬plinary proceeding was initiated on 12.7.2003, after the peti¬tioner retired from service on attaining the age of superannua¬tion on 31.3.1999. The said disciplinary proceeding was started on 22.7.2003. The undisputed facts are as follows : (1) The petitioner is governed by “The Orissa Forest Corpo¬ration Service Rules, 1986”. (2) No proceeding was initiated during the tenure of his service. (3) The Rules 1986 underwent an amendment in the year 2004 (29.1.2004) incorporating a new Rule as Rule-123-A. (4) There was no provision before the amendment of the said Rules for initiation of any disciplinary proceeding against the employees after their superannuation. The provisions of Rule 123 are as follows : “123. Authority to institute proceedings: 1. The Chairman/Managing Director or any other authority duly empowered by general or special order may : (a) institute disciplinary proceedings against any employee/workman for specific lapses, dereliction of duties, misconduct, etc. (b) direct the disciplinary authority to institute disciplinary proceedings against any employee/workman on whom that discipli¬nary authority is competent to impose any of the penalties under these Rules. 2. The disciplinary authority competent under these Rules to impose any of the minor penalties specified under Clauses (1) to (VI) of Rule-121 may initiate disciplinary proceedings against the employee/workman for the imposition of any of the major penalties specified in Clauses (VII to X) of Rule-121 notwith¬standing that such disciplinary authority is not competent under these Rules to impose any of the major penalties.” With the aforesaid undisputed facts, the disciplinary pro¬ceeding is challenged in the writ application on the ground that there is no provision under the Rules to initiate departmental proceedings four years after the superannuation of the petition¬er. A prayer has been made to quash the same as the opp.parties have no jurisdiction to initiate such a proceeding. A prayer has been made to quash the same as the opp.parties have no jurisdiction to initiate such a proceeding. A counter affidavit has been filed on 27.09.2004 indicating therein that on 29.01.2004 the Corporation incorporated and adopted a new Rule being Rule 123-A in OFC Service Rules, 1986 which empowers and authorizes the authority to initiate and continue proceedings after superannuation/retirement/termination of service. The writ application was filed in the year 2004. It is worthwhile to mention here that a new provision, i.e., Rule 123-A has been incorporated in the Rule, which reads as follows: “Authority to initiate and continue proceedings after super¬annuation/retirement/termination of service. 1. (a) Competent disciplinary authority as enumerated in Rule 123 may institute disciplinary proceedings against any employee after superannuation for his misconduct and for whole or part of any pecuniary loss caused to the Corporation if he is found prima facie responsible for such misconduct or negligence in duty during the period of his service including the service rendered on re-employment after retirement. Such departmental proceedings shall be deemed to be proceed¬ing under this Rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Corporation employees had continued in service. Such departmental proceedings referred to above if not instituted while the employees was in service, whether before his retirement or during his re-employment. (iii) shall not be instituted save with sanction of Board of Directors, if the C.M.D. is the disciplinary Authority and of the C.M.D. if the disciplinary authority is subordinate to C.M.D. (iv) shall be conducted by such authority and at such place as the disciplinary authority may direct & in accordance with the procedure applicable to disciplinary proceedings in which an order of dismissal from service could be made in relation to the Corporation employee during his service. 1 (b) Disciplinary proceedings instituted while the employee/workman was in service, whether before his retirement or during his re-employment, shall be continued and concluded by the authority by which they were commenced in the same manner as if the employee/workman had continued in service. 1 (b) Disciplinary proceedings instituted while the employee/workman was in service, whether before his retirement or during his re-employment, shall be continued and concluded by the authority by which they were commenced in the same manner as if the employee/workman had continued in service. 1 (d) In the case of Corporation employee/workman, who has retired on attaining the age of superannuation or otherwise and against whom any disciplinary or judicial proceedings are insti¬tuted or were disciplinary proceedings continued under clause (a) and (b).” Learned counsel for the opp.parties makes a submission that by virtue of the amended provision, opp.parties could initiate the proceeding against the petitioner at any time after his re¬tirement. Though the petitioner does not challenge the vires of the Rule, his case is that the Rule that existed on the date of his superannuation would apply to his case and not the Rule incorporated thereafter by way of amendment during pendency of the writ application. In this regard our attention is drawn to the decision of the Apex Court in AIR 1999, Supreme Court 1841 (Bhagirathi Jena v. Board of Directors, O.S.F.C. and others) wherein in such a simi¬lar situation the Apex Court held as follows : “In view of the absence of such provision in the above said regulations, it must be held that the Corporation had no legal authority to make any reduction in the retrial benefits of the appellant. There is also no provision for conducting a discipli¬nary enquiry after retirement of the appellant and nor any provi¬sion stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30.6.95, 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 authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.” That apart, the amendment of the Rules being prospective, cannot take away the rights already accrued to the petitioner by virtue of the Rules that existed on the date of his superannu¬ation. In the absence of such authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.” That apart, the amendment of the Rules being prospective, cannot take away the rights already accrued to the petitioner by virtue of the Rules that existed on the date of his superannu¬ation. So, the Rules amended and incorporated on 23rd February, 2004 were no way applicable to the case of the petitioner and as there was no provision in the pre-amended Rules to initiate such a proceeding, the proceeding that has been initiated against the petitioner vide Annexure-2 cannot be said to be legal. According¬ly, Annexure-2 is quashed and the writ application is allowed. The opp.parties are directed to release the retrial benefit of the petitioner, if any. Learned counsel for the opp.parties submits that the opp.parties may be given liberty to recover the dues of the Corporation, if any, from the petitioner in conso¬nance with law. No liberty is required in this regard, but the same shall be subject to the law of limitation. Before parting, we deprecate the manner in which the author¬ity of opp.parties-Corporation acted by not initiating appropri¬ate proceeding against the petitioner during his continuance in service. We are shocked to note that how no step was taken to initi¬ate proceeding against the corrupt officers during their service tenure. Not a scrap of paper is there to show that the petitioner was involved in misappropriation of any amount. Therefore, we direct the Corporation to enquire into the matter by their vigi¬lance wing and fix liability on the officer who is responsible for not taking appropriate action at appropriate time. Application allowed.