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2013 DIGILAW 196 (ORI)

Anangamohan Dwibedy v. State of Orissa

2013-07-09

M.P.MISRA, S.N.DASH

body2013
ORDER Heard learned counsel for the applicant and learned Government advocate at length. 2. The applicant has challenged the impugned order of punishment dated 26.11.2009 at Annexure-12, withholding two annual increments of the applicant with cumulative effect and treating the period of unauthorized absence from 30.3.1997 to 23.3.2004 as extraordinary leave, without financial benefits. 3. The grievance of the applicant is that a major punishment has been awarded against him in the departmental proceeding without serving a copy of the enquiry report so also without serving the second show cause notice on him. It is also submitted by the learned counsel for the applicant that before imposition of punishment, the matter was not referred to the apse and their views were not obtained. 4. Learned Government advocate relies on the counter and submits that the copy of the enquiry report was served on the application on 7.6.2007. Though the counter reveals that a copy of the service report is annexed to it as Annexure A/1, no such annexure is available with the counter. Learned Government Advocate is also unable to supply a copy of any such service report. Respondents have been repeatedly granted time to supply a copy of such service report in order to enable the Court to know if actually the copy of enquiry report was served on the applicant. Learned Government Advocate further submits that the impugned order of punishment was passed basing on the findings recorded by the Inquiring Officer in the enquiry report. 5. The claim of the respondents that they served a copy of the enquiry report on 7.6.2007 appears to be incorrect on very face of it. Respondents have pleaded in their counter that the copies of enquiry report and second show cause notice were served on the applicant on the very same date i.e. on 7.6.2007. This assertion of the respondents, even if accepted to be correct for the sake of argument, does not help him, in any way. 6. Respondents have pleaded in their counter that the copies of enquiry report and second show cause notice were served on the applicant on the very same date i.e. on 7.6.2007. This assertion of the respondents, even if accepted to be correct for the sake of argument, does not help him, in any way. 6. Rule 15(10)(i)(a) of Orissa Civil Services (CC & A) Rules, 1962 lays down that if the Inquiring Officer is not the disciplinary authority, the disciplinary authority shall furnish to the delinquent government servant a copy of the report of the inquiring officer and give him notice by registered post or otherwise calling upon him to submit within a period of fifteen days such representation as he may wish to make against findings of the Inquiring Authority. Rule 15(10)((i)(b) lays down that on receipt of the representation referred to in Sub-clause (a) the disciplinary authority having regard to the findings on the charges, is of the opinion that any of the penalties specified in Clauses (vi) to (ix) of Rule 13 should be imposed, he shall furnish to the delinquent Government servant a statement of its findings along with brief reasons for disagreement, if any, with the findings of the inquiring officer and give him a notice by Registered post or otherwise stating the penalty proposed to be imposed on him. 7. Both the provisions, if read together, makes it crystal clear that the date of service of the copy of inquiry report and the date of service of the second show-cause notice can never be the same. The occasion for issuance of second show-cause notice arises only after consideration of the representation filed by the delinquent officer in response to the notice annexing the inquiry report. We are therefore of the opinion that the impugned order of punishment was passed without complying with the mandatory provisions of OCS (CC & A) Rules and therefore, bad in law. 8. Since the applicant has already retired from Govt. Service, we are not inclined to remit the matter for fresh inquiry and no major penalty can now be imposed on him after his retirement under Rule 15 of OCS (CC & A) Rules. 9. In the result, the O.A. is allowed. The impugned order of punishment dated 26.11.2009 at Annexure-12 stands quashed. Service, we are not inclined to remit the matter for fresh inquiry and no major penalty can now be imposed on him after his retirement under Rule 15 of OCS (CC & A) Rules. 9. In the result, the O.A. is allowed. The impugned order of punishment dated 26.11.2009 at Annexure-12 stands quashed. All the retiral dues of the applicant including the arrears be finalized and disbursed to him, within a period of six months from the data of receipt of copy of this order. Respondents shall also be at liberty to pass appropriate orders regarding the period of absence of the applicant from duty. The O.A. is accordingly disposed of. O.A. disposed of.