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2008 DIGILAW 930 (ORI)

BRAHMANANDA MOHANTY v. STATE OF ORISSA

2008-10-20

I.MAHANTY, L.MOHAPATRA

body2008
JUDGMENT : Indrajit Mahanty, J. - The Petitioner Brahmananda Mohanty, a retired Principal of S.C.S. College, Puri, in this writ application, has sought to challenge the order dated 8.12.2005 passed by the Orissa Administrative Tribunal, Bhubaneswar in O.A. No. 1125 of 2004 dismissing the Petitioner's challenge to an order imposing punishment pursuant to a disciplinary proceeding. 2. The Petitioner retired from Government service as the Principal of S.C.S. College, Puri on 30.4.1999 on reaching the age of superannuation. After fifteen months of retirement a disciplinary proceeding was initiated against the Petitioner on eight number of charges. The said disciplinary proceeding culminated in submission of inquiry report by the Enquiring Officer holding the Petitioner not to be guilty of any of the charges apart from Charge No. 3. In so far as Charge No. 3 is concerned, the Enquiring Officer's finding is quoted herein below: Regarding excess payment of Rs. 9,988/ - to M/s. Moharana Engineering Works he has stated that this expenditure has been held under objection and auditors have suggested for recovery of the same amount from Mr. S. Muduli, a member of the Construction Committee who has checked the bill and certified for payment. This payment has been made by the Drawing and Disbursing Officer (Mr. P.M. Mohanty, Vice-Principal). As such he was not connected with Execution, Supervision and Payment to any Firm. XXXX So he should not be held responsible as far as the work is executed by the construction committee as per the decision of the Governing Body. 3. The Enquiring Officer in conclusion of his report taking into consideration the fact that the Petitioner had retired from Govt. Service, suggested levy of censure as punishment. The disciplinary authority on receipt of the inquiry report considered the same and disagreed with the punishment suggested by the Enquiring Officer and instead of censure, the disciplinary authority was of the view that the punishment should be withholding of 5% of the commuted pension payable to the delinquent officer for a period of one year and recovery of Rs. 5,000/ - from him. The Petitioner filed his reply to the proposed enhanced punishment, but the same having not been found favour, ultimately resulted in levy of punishment of recovery of Rs. 5,000/ - from his pension in twelve equal instalments vide order dated 5.4.2003. 4. 5,000/ - from him. The Petitioner filed his reply to the proposed enhanced punishment, but the same having not been found favour, ultimately resulted in levy of punishment of recovery of Rs. 5,000/ - from his pension in twelve equal instalments vide order dated 5.4.2003. 4. Being aggrieved by the aforesaid order of punishment, the Petitioner filed O.A. No. 1125 of 2004 before the Orissa Administrative Tribunal, Bhubaneswar and the same came to be dismissed by the order dated 8.12.2005 on the ground that the Petitioner as the head of the office, could not absolve himself of the responsibility of proper utilization of funds even though the bill in question was certified by Mr. S. Muduli, Reader in Psychology and Member, Building Committee and Rs. 9,988/ - was drawn by the D.D.O. having been delegated with the power and paid to the firm. Therefore, the Tribunal was of the view that although the Petitioner was the D.D.O. and that the Petitioner had no role in certifying the bill amount nor effecting payment, yet, since the Petitioner lacked supervision and excess payment has been established, the disciplinary authority as well as the appellate authority committed no illegality in punishing the applicant and rejecting his appeal. 5. Learned Counsel for the Petitioner laid stress on the finding of the Enquiring Officer regarding Charge No. 3 which is quoted herein below: Charge No. 3: Regarding payment of Rs. 9,990/ - to M/s. Maharana Engineering Works, he has stated tha this expenditure has been held under objection and auditors have suggested for recovery of the same amount from Mrs. S. Muduli, a Member of Construction Committee who has checked the bill and certified for payment. This payment has been made by the Drawing and Disbursing Officer (Mr. P.M. Mohanty, Vice-Principal). As such, he was not connected with execution, supervision and payment to any firm. This objection has been complied and the said firm has given in writing that he has wrongly written in the bill namely "Profit and labour charges". For the execution of work headed by Sri Muduli, a senior member of the faculty was entrusted for closely monitoring the work. So he should not be held responsible as far as the work is executed by the Construction Committee as per the decision of the Governing Body. For the execution of work headed by Sri Muduli, a senior member of the faculty was entrusted for closely monitoring the work. So he should not be held responsible as far as the work is executed by the Construction Committee as per the decision of the Governing Body. Relying on the aforesaid finding, learned Counsel for the Petitioner submitted that the Petitioner had no role whatsoever to play in the matter of payment made to M/s. Maharana Engineering Works. He submitted that the Governing Body had constituted a Construction Committee and therefore, Mr. S. Muduli, Reader in Psychology was given the responsibility for checking the bills and certifying payment and the actual payment was made by the D.D.O.-Mr. P.M. Mohanty, Vice-Principal. According to him, the present Petitioner-Brahmananda Mohanty, the Principal, had no role to play in transaction and therefore, no allegation of lack of supervision on his part would arise. 6. Learned Addl. Government Advocate appearing for the State, on the other hand, supported the order of the Tribunal and stated that the Petitioner was the Principal of the College and therefore, he being the head of the office, cannot absolve himself of the responsibility of ensuring proper utilization of funds. 7. We have perused the impugned orders passed by the Disciplinary Authority, Appellate Authority as well as by the Tribunal. From the findings arrived at by the Enquiring Officer, we are of the view that in so far as Charge No. 3 is concerned, Mr. P.N. Mohanty, Vice-Principal was the drawing and disbursing officer who effected payment in favour of M/s. Maharana Engineering Works. We further find that Mr. S. Muduli, Reader in Psychology was entrusted with the monitoring work by the Governing Body. We also find that in so far as the transaction is concerned, it is Mr. Muduli who was required to check the bills and certify payments. In view of the aforesaid findings, the Enquiring Officer recommended for taking steps to recover the amount from Mr. S. Muduli, Reader in Psychology and had recommended censure against the Petitioner for his lack of supervision of the work. The Enquiring Officer had noted that even though action has been taken for recovery of the excess payment of Rs. 9980/ - from Mr. S. Muduli, the Delinquent Officer should have checked the work and payment as per the decision of the Governing Body. The Enquiring Officer had noted that even though action has been taken for recovery of the excess payment of Rs. 9980/ - from Mr. S. Muduli, the Delinquent Officer should have checked the work and payment as per the decision of the Governing Body. From the discussions made above, we come to the conclusion that the Petitioner Brahmananda Mohanty, the Principal had no role to play in transaction whatsoever. Although no doubt the Petitioner was the Principal and was the head of the office, he should generally be held responsible, but when the Governing Body has created a "Building Committee" and has vested power on the D.D.O.- Mr. P.M. Mohanty, Vice-Principal and authorized Mr. S. Muduli, Reader in psychology, to supervise the work and certify payment, in such circumstances when excess payment was made, we are of the view that the authorities concerned had acted correctly in initiating action for recovery of the amount from Mr. S. Muduli, but we are unable to sustain the view of the Disciplinary Authority Appellate Authority and the Tribunal in so far as levy of penalty of Rs. 5000/ - on the present Petitioner. 8. Accordingly, the writ application is allowed and the orders of the disciplinary authority and the appellate authority imposing punishment of recovery of Rs. 5,000/ - from the pension of the Petitioner and confirmation thereof by the Orissa Administrative Tribunal by its order dated 8.12.2005 passed in O.A. No. 1125 of 2004 are quashed. The amount, if any, collected from the pension of the Petitioner be released in his favour within a period of six weeks from today failing which interest at the rate of 10% per annum shall be payable to the Petitioner on the unrefunded amount, if any, and such interest, if becomes payable, shall be recovered from the concerned officer who is required to comply with the directions contained in this judgment. L. Mohapatra, J. 9. I agree. Final Result : Allowed