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2013 DIGILAW 288 (ORI)

State of Orissa v. Prabodh Kumar Pal

2013-08-08

A.K.RATH, M.M.DAS

body2013
JUDGMENT Dr. A.K. RATH, J. – The seminal question that hinges for our consideration is as to whether disciplinary proceeding can be initiated against the opposite party, a retired Government employee, two years after his retirement. 2. The opposite party had filed an original application being O.A. No.1511 of 2010 before the Orissa Administrative Tribunal, Bhubaneswar praying therein to quash the Memorandum dated 11.11.2010 along with Article of charges and Statement of imputation vide Annexure-9 to the O.A. Adumbrated in brief the case of the opposite party is that while he was functioning as Chief Electrical Inspector (T&D), Orissa, Bhubaneswar, he retired from service on 31.10.2008 on attaining the age of superannuation. Thereafter he had submitted his pension papers before the Chief Electrical Inspector (T&D), Orissa, Bhubaneswar, petitioner no.2, who forwarded the same on 11.11.2008 to the Commissioner-cum-Secretary to Government of Orissa, Energy Department, Orissa, Bhubaneswar, petitioner no.1 for necessary sanction and transmission to the Accountant General, Orissa. When petitioner no.1 did not sanction the pensionary benefits to him, he submitted a representation on 2.3.2009 to the petitioner no.1 through the petitioner no.2. Thereafter petitioner no.2 in his letter dated 4.3.2009 forwarded the representation along with his service book and other relevant papers to petitioner no.1 with a request to sanction the provisional pension and commuted value of pension in favour of the opposite party. While the matter stood thus, petitioner no.1 in its order no. 3463 dated 24.3.2009 sanctioned the provisional commuted value of pension and provisional pension to the opposite party. The further case of the opposite party is that petitioner no.1 in its letter dated 25.3.2009 vide Annexure-7 to the O.A. cancelled the sanction of provisional commuted value of pension. When all the persuasions ended in a fiasco, he approached the learned Orissa Administrative Tribunal, Bhubaneswar Bench, Bhubaneswar. During pendency of the O.A., by order dated 26.8.2010, learned Tribunal, as an interim measure passed an order to the effect that pendency of the original application shall not be a bar for the authority to finalize and pay the pension and retiral benefits to the opposite party. 3. The further case of the opposite party is that after getting notice from the learned Tribunal, petitioner no. 3. The further case of the opposite party is that after getting notice from the learned Tribunal, petitioner no. 1 initiated a disciplinary proceeding against him in respect of the events, which took place more than nine years before institution of the proceeding and communicated the memorandum along with articles of charges and statement of imputation vide memo No. 151(2) dated 11.11.2010 made Annexure-9 to the O.A. It is further submitted that the initiation of departmental proceeding against him for the events, which took place during the financial years 2001-02 and 2002-03 is bad in law, inasmuch as the same was initiated after lapse of nine years of the date of event, more so, two years after his retirement. Since his case does not come under the ambit of Rule 7(2)(b)(ii) of the Orissa Civil Services (Pension) Rules, 1992 (hereinafter referred to as “Pension Rules”), the departmental proceeding initiated against him is liable to be quashed. 4. Pursuant to issuance of notice by the learned Tribunal, petitioner no.1 entered appearance and filed a counter.The case of petitioner no.1 is that the pension papers of the opposite party were received by the Department of Energy and it was found that the services of the opposite party from 1.1.1997 to 30.11.2000 had not been entered in his service book. The said fact was neither pointed out by the opposite party, nor by his appointing authority-petitioner no.2. Furthermore, in course of sanction of pension to the opposite party, it came to the notice of the Government that the opposite party was involved in a vigilance case for which a departmental proceeding had been contemplated. After receipt of the required information from the vigilance authority, the charge sheet was prepared and served on the opposite party. Approval of the Government was obtained for the charge sheet and drawal of disciplinary proceeding. In the circumstances, the Government in exercise of its power conferred under Rule 66 & Rule 7(2) of the Pension Rules withheld the final pensionary benefits like commuted value of pension and gratuity etc. The further case of the petitioner no.1 is that the irregularity committed by the opposite party came to the notice of the Government in the Department of Energy on 31.7.2007, when the opposite party was in Government service. The further case of the petitioner no.1 is that the irregularity committed by the opposite party came to the notice of the Government in the Department of Energy on 31.7.2007, when the opposite party was in Government service. After correspondence with the vigilance authority and examination of papers, complete set of charges in respect of all the six officers, who were involved in the vigilance case, the matter was processed for Government approval for initiation of disciplinary proceedings against the said officers. It is further stated that these six officers were involved in vigilance case, out of which three including the opposite party had retired during the course of finalization of charges. Furthermore, the disciplinary authority of the Junior Engineers is the Engineer-in-Chief-cum-PCEI, Orissa, Bhubaneswar, who had to be consulted for service of the charge sheet. All these process took considerable time before service of charge sheet in 2010. Hence, it cannot be said that the event took place more than four years of initiation of the disciplinary proceeding. 5. Learned Tribunal after hearing the matter at length, in a well discussed judgment dated 19.7.2012 allowed the O.A. and quashed the memorandum dated 11.11.2010, articles of charges and statement of imputation(Annexure-9)to the O.A. Being dissatisfied with the judgment of the learned Tribunal, the State of Orissa and others filed the present writ application. 6. We have heard Mr. Sangram Das, learned Additional Standing Counsel for the State and the opposite party, who appeared in person. Assailing the tenability and defensibility of the judgment of the learned tribunal Mr. Das argued with vehemence that the opposite party during his incumbency as Executive Engineer, RW Electrical Division, Bhubaneswar had committed several irregularities as set out in articles of charges and statement of imputation. He further submitted that while the opposite party was functioning as Executive Engineer, RW Electrical Division from 20.4.2004 to 6.10.2006 during 2001-02 and 2002-03, all total, 1048(482 + 566) repair and maintenance of electrical installations in Government buildings were taken up by the Junior Engineers of Electrical Sections in respect of Keonjhar, Baripada and Balasore. The same were done under the direct supervision of the Assistant Engineer of Electrical Sub-division, Baripada, who was working under his control as well as his direct supervision. The works were executed through different contractors, who had executed agreements. The contractors executed the work during the specified time. The same were done under the direct supervision of the Assistant Engineer of Electrical Sub-division, Baripada, who was working under his control as well as his direct supervision. The works were executed through different contractors, who had executed agreements. The contractors executed the work during the specified time. The Junior Engineers measured the works but did not prepare the final bills and just paid some amount and kept the bills pending deliberately with mala fide intention. The Assistant Engineer, Electrical Sub-Division also did not check-measure the bills deliberately. As Executive Engineer, as soon as the works were completed, the same should have been check-measured by the opposite party, but he did not check-measure the work immediately, which amounts to deliberate negligence in his duty. Mr. Das further referred to Articles 2, 3 and 4 of the statement of imputation and submitted that the vigilance took up the investigation of these works. Referring to Rule 7(2)(b)(ii) of the Pension Rules, Mr. Das submitted that the malfeasance and misfeasance committed by the opposite party during the financial years 2001-02 and 2002-03 came to the notice of the Government on 31.7.2007 and, as such, it cannot be said that the event took place more than four years of initiation of the disciplinary proceeding. 7. The opposite party, who appeared in person supported the judgment of the learned tribunal. He submitted that he was not the Executive Engineer, RW Electrical Division, Bhubaneswar at the relevant point of time. Furthermore the alleged event took place during 2001-02 and 2002-03 i.e., more than nine years before such initiation of the disciplinary proceeding and two years after his retirement. Thus, the initiation of departmental proceeding is bad in law. 8. The State of Orissa promulgated the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962(“OCS (CCA) Rules” for the sake of brevity) in exercise of its power conferred by proviso to Article 309 of the Constitution of India. Rule 14 of Chapter-V of the said Rules deals with ‘Disciplinary authorities’, which reads as follows:- “14. Disciplinary authorities-(1) The Government may impose any of the penalties specified in Rule 13 on any Government servant. Rule 14 of Chapter-V of the said Rules deals with ‘Disciplinary authorities’, which reads as follows:- “14. Disciplinary authorities-(1) The Government may impose any of the penalties specified in Rule 13 on any Government servant. (2) Without prejudice to the provisions of the Sub-rule (4), any of the penalties specified in Rule 13 may be imposed on a member of a civil service or a person appointed to a civil post by the appointing authority or the authority specified in schedule or by any other authority empowered in this behalf by a general or special order of the Governor. (3) Subject to the provisions of Sub-rule (4), the power to impose any of the penalties specified in Rule 13 may also be exercised in the case of a member of a Civil Service, (Group-C) or Civil Service, (Group-D) (a) if he is serving in Department of the Government, by the Secretary to the Government of Orissa in that Department. (b) if he is serving in any other office, by the head of the office, except where the head of that office is lower in rank than the authority competent to impose the penalty under Sub-rule(2). (4) Not withstanding anything contained in this Rule- (a) no penalty specified in Clauses (vi) to (ix) of Rule shall be imposed by any authority lower than the appointing authority; (b) where a Government servant, who is a member of a service or is substantially appointed to any Civil Post, is temporarily appointed to any other service or post and the authority which would have been competent under Sub-rule(2) to impose upon him any of the penalties specified in Clauses (vi) to (ix) of Rule 13 had he not been so appointed to such other service or post is not subordinate to the authority competent to impose any of the said penalties after such appointment, the latter authority shall not impose any such penalty except after consultation with the former authority.” 9. On conspectus of the rule, it is evident that no period of limitation is prescribed for initiation of a departmental proceeding against a Government employee. Rule-7(2)(b)(ii) of the Pension Rules on which much reliance has been placed by Mr. Das, is quoted hereunder: “7. Right of Government to withhold or withdraw pension (1) xx xx xx xx. 2(a) xx xx xx. Rule-7(2)(b)(ii) of the Pension Rules on which much reliance has been placed by Mr. Das, is quoted hereunder: “7. Right of Government to withhold or withdraw pension (1) xx xx xx xx. 2(a) xx xx xx. 2(b) such departmental proceedings as referred to in Sub-rule(1) if not instituted while the Government servant was in service, whether before his retirement or during his reemployment- (i) shall not be instituted save with sanction of Government; (ii) shall not be in respect of any event which took place more than four years before such instruction; (iii) xx xx xx.” 10. On cursory perusal of the Rule-7(2)(b)(ii) of the Pension Rules, it is crystal clear that the departmental proceeding as referred in Sub-rule(1), if not instituted while the Government servant was in service, whether before his retirement or during his reemployment, shall not be instituted in respect of any event which took place more than four years before such institution. In Noida Entrepreneurs Association V. Noida, AIR 2011 SC 2112 , the Hon’ble apex Court held that the competence of an authority to hold an enquiry against an employee who has retired, depends upon the statutory rules which govern the terms and conditions of his service. The Hon’ble apex Court in the case of Bhagirathi Jenva V. Board of Directors, O.S.F.C., AIR 1999 SC 1841 in paragraph-7 held as follows: “7. xxxxxx. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retrial benefits. Once the appellant had retired from service on 30.6.1995, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retrial benefits payable to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retrial benefits on retirement.” 11. After survey of all the decisions, the Hon’ble apex Court in the case of Anant R.Kulkarni V. Y.P. Education Society and others, (2013) 6 SCC 515 speaking through Hon’ble Dr. Justice B.S.Chauhan for the Bench, in paragraph-24 of the report held as follows: “24. After survey of all the decisions, the Hon’ble apex Court in the case of Anant R.Kulkarni V. Y.P. Education Society and others, (2013) 6 SCC 515 speaking through Hon’ble Dr. Justice B.S.Chauhan for the Bench, in paragraph-24 of the report held as follows: “24. Thus, it is evident from the above, that the relevant rules governing the service conditions of an employee are the determining factors as to whether and in what manner the domestic enquiry can be held against an employee who stood retired after reaching the age of superannuation. Generally, if the enquiry has been initiated while the delinquent employee was in service, it would continue even after his retirement, but nature of punishment would change. The punishment of dismissal/removal from service would not be imposed.” 12. No period of limitation has been prescribed for initiation of a departmental proceeding against a Government servant in OCS(CCA) Rules and the rule is silent in this respect. Thus, the case is required to be examined in the light of the aforesaid Pension Rules. On a conspectus of Rule 7(2)(b)(ii) of the Pension Rules, it is evident that a departmental proceeding cannot be initiated against a Government servant in respect of any event which took place more than four years before such institution. Article (1) of the statement of imputation would, inter alia, show that the opposite party was working as Executive Engineer, RW Electrical Division, Bhubaneswar from 20.4.2004 to 6.10.2006 and during 2001-02 and 200203 repair and maintenance of electrical installations in Government buildings in three different districts were taken up by the Junior Engineer. As the Executive Engineer would have to check-measure as soon as works were completed but he did not do the same intentionally. Thus, the event relates back to the financial years 2001-02 and 2002-03. The disciplinary proceeding was initiated on 11.11.2010 by the Government of Orissa and, accordingly, a memorandum was issued to the opposite party along with articles of charges and statement of imputation. The opposite party had retired from services on 31.10.2008. In view of the fact that the event took place before four years from the date of institution of the departmental proceeding, we are of the opinion that the initiation of such departmental proceeding is not sustainable in the eye of law. The learned tribunal is quite justified in quashing the departmental proceeding. 13. In view of the fact that the event took place before four years from the date of institution of the departmental proceeding, we are of the opinion that the initiation of such departmental proceeding is not sustainable in the eye of law. The learned tribunal is quite justified in quashing the departmental proceeding. 13. The next question for our consideration is about the vigilance case. It be noted that a criminal case and a departmental proceeding stand on different footing. A criminal case is to be proved beyond all reasonable doubt, where as in a departmental proceeding, charges are to be proved on preponderance of probability. In Captain M.Paul Anthony V. Bharat Gold Mines Ltd and another, AIR 1999 SC 1416 , the Hon’ble apex Court in no uncertain terns held as under:- “xx xx xx As we understand, the basis for the proposition is that proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the disciplinary authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in those proceedings is also different than that required in a criminal case. While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubts.” 14. Considering the present case on the anvil of the decisions cited supra, we are of the view that since the departmental proceeding has been quashed on a technical ground, the criminal proceeding, if any, which was initiated against the opposite party will continue. As a corollary, the petitioners are directed to pay the pension and other retiral benefits of the opposite party within a period of two months from the date of passing of the order. With the aforesaid observation and findings the writ petition is disposed of. M.M. DAS, J. I agree. Petition disposed of.