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2012 DIGILAW 101 (ORI)

Rabinarayan Nayak v. State of Orissa

2012-02-23

D.K.SAHU

body2012
ORDER DR. D.K. SAHU, MEMBER (JUDICIAL) : The submission of the applicant, in brief, is that he retired from government service on 31.8.2003 while serving as Deputy Conservator of Forests. He was issued with a charge memo at Annexure-1 containing imputation stating that a departmental proceeding under Rule 15 of OCS (CC & A) Rule, 1962 read with Rule7 (2)(b) of OCS (Pension) Rule, 1992 was proposed to the held. Being aggrieved of non-finalization of pension and other retiral dues the applicant had filed an original application vide O.A. No.1359(c)/2004 claiming payment of pension and other retiral dues. By the time of filing of that O.A. the aforesaid proceeding was not instituted. The said O.A. was disposed of on 9.4.2009 with a direction to complete the proceeding within six months and if the said proceeding would not be completed, the applicant would have right to move this Tribunal. That proceeding has not been progressed much less concluded. So the applicant has again come to the Tribunal by filing this application with a prayer to quash the departmental proceeding at Annexure-3 and for any other relief, as deem fit. During the course of hearing the applicant submitted that he has not been paid final pension and final gratuity etc. 2. The applicant submits that the charges were vague. He has not committed any misconduct but in an arbitrary manner about two years after his retirement the proceeding has been initiated. 3. Respondents have filed a written counter stating therein that the applicant has committed misconduct during his incumbency as DFO, Athagarh. So after retirement a proceeding has been drawn against him. It is further submitted that the applicant did not co-operate with the department for disposal of the proceeding and so the same could not be disposed of in due time. The respondents take a plea that the present O.A. is barred by, application of principle of res-judicate. 4. We have heard the learned counsel for both sides. Perused the documents. 5. As regards the principle of res-judicata, it is found from the order passed in the previous O.A. dated 9.4.2009 at Annexure-4 that no issue has been decided in the said order. An innocuous order has been passed for disposal of the departmental proceeding within six months with a rider to approach this Tribunal again. Perused the documents. 5. As regards the principle of res-judicata, it is found from the order passed in the previous O.A. dated 9.4.2009 at Annexure-4 that no issue has been decided in the said order. An innocuous order has been passed for disposal of the departmental proceeding within six months with a rider to approach this Tribunal again. When no issue has been decided, the principle of res-judicata is not applicable for filing the subsequent. O.A., that too a rider has been given in the previous order for filing of another original application. 6. The applicant submits with vehemence that the charge memo at Annexure-3 is not sustainable and the same is to be quashed. We perused the charge memo and imputation annexed thereto, which reads as follows :- . "Sri Rabi Narayan Nayak, OFS (1), Ex-Divisional Forest Officer, Athagarh (T) Division has committed the irregularities during his tenure from 10.12.2002 to 31.8.2003 as reflected in the statement of imputation for which the following articles of charges are framed against him. i. Violation of Orissa Saw Pit (Control) Act, 1991 and connivance with Timber Traders. ii. Contravention of provisions of Section 56 of Orissa Forest Act, 1972 (Amended) and connivance with timber smugglers. iii. Connivance with Timber Traders by allowing large number of depots to operate. iv. Gross negligence in duty. v. Disobedience of Orders of Govt., higher authorities and misuse of power. vi. Suppression of facts and misconduct. vii. Purchase of uniform articles-violation of codal provision and instruction of superior authority. viii. Purchase of Fertilizer and misuse of power. ix. Non-submission of tour diary and advance tour programme, mis-utilization of Govt. vehicle making unnecessary visit to different places like Cuttack, Bhubaneswar without getting approval of next higher authority :- violation of codal provision. x. Mal-administration." 7. The charge has been framed under Rule-15 of OCS (CC & A) Rule, 1962 read with Rule-7(2)(b) of OCS (Pension) Rule, 1992. In accordance with Sub-rule-2 of Rule-15 definite charge on the basis of the allegations is to be framed on which enquiry is to be held. 8. It is explicit therefrom so also law has well been settled that the charge must be specific, it should not be vague or ambiguous. In accordance with Sub-rule-2 of Rule-15 definite charge on the basis of the allegations is to be framed on which enquiry is to be held. 8. It is explicit therefrom so also law has well been settled that the charge must be specific, it should not be vague or ambiguous. In the instant case the imputation, as cited above, reveals that the applicant is alleged to have violated Orissa Saw Mill & Saw Pit (Control) Act, 1991, contravened the provisions of Sec. 56 of Orissa Forest Act, 1972 had connived with the Timber Traders, disobeyed orders of higher authorities and misused the power etc. Those do not state as to what act has been committed by the applicant for which he is alleged to have violated the aforesaid Acts, which amounts to misconduct and misuse of power. Various imputations have been made but those do not contain as to when he committed the misconducts and what are those misconduct. Thus a bare reading of the imputation reveals that the charges are ambiguous, uncertain and omnibus in nature. 9. To reiterate the charges must be specific containing specific allegation so as to enable the charged officer to know what act has been committed by him amounting to misconduct. If the charge would not be specific then the charged officer would be debarred from submitting his written statement of defence and as such he would be debarred from getting reasonable opportunity of being heard, which is violative of fundamental principle of natural justice. As mentioned above, the impugned imputations and charge are vague, unambiguous and so are not sustainable and hence the charge memo at Annexure-3 including the annexed imputation stand quashed. Admittedly no departmental proceeding was pending against the applicant the date on which he retired from government service. In such cases there was no reason not to finalize his pension, gratuity and other retrial dues of the applicant. 10. Respondents are therefore directed to finalize the pension, admissible gratuity and other admissible retrial dues of the applicant within three month from communication of this order. The O.A. is accordingly disposed of. No order as to cost. O.A. disposed of.