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2013 DIGILAW 14 (ORI)

Braja Gopal Das v. State of Orissa

2013-01-11

A.PATTANAYAK

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ORDER A. PATTANAYAK, ADMINISTRATIVE MEMBER 1. Facts of the O.A. bereft of unnecessary details, are that the applicant who was an Assistant Sub-Inspector of Police in Bhadrak district retired on superannuation on 31.1.09 (Annexure-1). His provisional pension was fixed on 13.3.09 (Annexure-2). While the applicant was waiting for his final pension, Memo No. 626/RO dated 25.4.09, (Annexure-3 series) and Memo No. 629/RO dated 25.4.09 were communicated to the applicant threatening withdrawal of pension as per Rule 7(1) of the OCS (Pension) Rules, 1992, as two departmental proceeding vide No.12 dated 27.9.02 and No.13 dated 31.10.02 had been initiated against him allegedly on the same cause of action i.e. absence from duty and failure to submit case diaries in some cases investigated by him, and findings submitted. Final punishment could not be imposed as the applicant retired on 31.1.09 before finalization of the aforesaid Disciplinary Proceedings. He accordingly filed his show cause reply at Annexure-5 and 7. In this O.A. he has mainly prayed for setting aside Memos No. 626/RO dated 25.4.09 and 629/RO dated 25.4.09, and releasing his final pension. 2. Counter dated 7.7.10 has been filed in this case stating that Bhadrak dist proceedings No.12 of 2002 and No.13 of 2002 were pending against the applicant at the time of his retirement on 11.11.2009. After retirement of the applicant, show cause notices with copies of findings were sent to the applicant, and after receipt of his reply, the matter was referred to the State Police Headquarters as the Disciplinary Authority, i.e. S.P. Bhadrak, does not. have the power to pass orders against a retired Govt. servant It is also clarified that whereas Bhadrak Disciplinary Proceedings No.12/02 was drawn up for not making over charge of pending cases and case diaries and charge of Moto Police Out Post, the second Disciplinary Proceeding i.e. Bhadrak district Disciplinary Proceeding No. 13/2002 was drawn up for unauthorized absence. It is also clarified that the applicant was placed under suspension with effect from 10.6.2002 and consequent upon such suspension Bhadrak, district proceeding No.13/02 drawn up against him. 3. A rejoinder has been filed claiming higher pay and provisional pension due to enhancement of pay as per ORSP Rules, 2008. It is also clarified that the applicant was placed under suspension with effect from 10.6.2002 and consequent upon such suspension Bhadrak, district proceeding No.13/02 drawn up against him. 3. A rejoinder has been filed claiming higher pay and provisional pension due to enhancement of pay as per ORSP Rules, 2008. It is also pointed out that Rule 6(2) 5 of the OCS (Pension) Rules, 1992 has not been followed, and that double jeopardy has been caused as both the departmental proceedings are allegedly based on the same set of facts. 4. A counter to rejoinder has .also been filed mainly reiterating the points already raised, particularly about delay in investigation of several cognizable cases on the part of the applicant and his failure to submit case diaries. 5. It is now to be decided if there are reasonable grounds for allowing finalization of the departmental proceeding by the competent authority, i.e. the State Govt., who have already taken more than adequate time for finalizing the long pending departmental proceedings against the applicant and for allowing held up reitrial benefits to the applicant who retired on 31.1.09. 6. Heard learned counsel for the applicant. He submits that despite repeated directions from this Tribunal on the prayer of the applicant, the respondents have not taken measure to finalize the departmental proceeding against the applicant. He also submits that the said departmental proceedings are not likely to be valid on merit as per Rule 6 and 7 of the O.C.S. (Pension) Rules, 1992, particularly as these relate to absence from duty and do not constitute any grave misconduct nor have resulted in any pecuniary loss to the Govt. Moreover pendency or delay in submission of case Diaries should be dealt with as per P.M. Appendix 50 only i.e., entries in the conduct book. Hence, he submits that due to such abnormally long pendency of the departmental proceedings and as the pension of the applicant has not been finalized till date though the applicant retired on 31.1.09, the said departmental proceedings pending against the applicant since 2002 should be quashed. 7. Heard learned Standing Counsel. He submits that it has already been decided by the Hon'ble Apex Court that each case is to be dealt with on its merit and there is no hard and fast rule about quashing of disciplinary proceeding Inquiries on grounds of delay only. 8. 7. Heard learned Standing Counsel. He submits that it has already been decided by the Hon'ble Apex Court that each case is to be dealt with on its merit and there is no hard and fast rule about quashing of disciplinary proceeding Inquiries on grounds of delay only. 8. A note of arguments in favour has been filed on behalf of the applicant reiterating the earlier contentions and mainly emphasizing that no grave misconduct as defined in Rule 7 of the OCS (Pension) Rules, 1992 is involved. It is also stated that these departmental proceedings do not attract the provisions of Rule 7 of the OCS (Pension) Rules, 1992. It is also stated that the applicant is entitled to interest on his pensionary dues due to such delay in settlement of his pensionary claims. 9. After hearing both parties, it is apparent that the applicant is mainly charged with unauthorised absence and non-submission of case diaries. Non-submission of case diaries is a misdemeanour specifically proposed to be dealt with by making entries in the conduct book only as per P.M. Rule 838 and P.M. Appendix 50. Moreover, both the proceeding inquiries have been kept pending without adequate reason despite repeated directions of this Tribunal to the respondents to complete the proceeding inquiries, but they have not co-operated with the Tribunal. 9. In view of the said position and as no major charge of corruption or moral turpitude is involved in these pending departmental proceedings drawn up in 2002 and not completed till retirement of the applicant on 31.1.09, these cannot be allowed to continue indefinitely even after ten years. Hence, both the proceedings i.e. Bhadrak district proceeding No.12 and 13 of 2002 stand quashed in accordance with the decision of the Hon'ble Apex Court in the case of P.V. Mahadevan vs. T.N. Housing Board, (2005) SCC (L & S) 861. Processing of all consequential benefits, particularly settlement of final pension, be completed within a period of two month's from the date of receipt of these orders. No interest can be allowed for delay in release of final pension, as no such prayer has been made in the O.A., more particularly in view of the fact that Rule 49(5) of the OCS (Pension) Rules, 1992 are not be applicable till quashing of these departmental proceedings. With these orders, the O.A. is disposed of. O.A. disposed of.