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2013 DIGILAW 63 (ORI)

Laxman Prusty v. State of Orissa

2013-03-07

B.K.NAYAK

body2013
ORDER 07.03.2013 – Heard learned counsel for the petitioner and Mr. Zafrulla, learned Additional Standing Counsel. Perused the records. Order dated 03.09.2012 passed by the learned J.M.F.C., Balasore in C.T. No. 1505 of 2007 rejecting the application for discharge and framing charge against the petitioner under Sections 466, 467, 468, 471 of the Indian Penal Code has been challenged in this revision. It was urged in the petition and also argued before the learned Magistrate that the proceeding arising out of Balasore Town P.S.Case No. 402 of 2007 initiated on the basis of the FIR lodged by the Reserve Sub-Inspector, Reserve Office, Balasore was not maintainable/entertainable in view of the bar contained in Clause (c) of Sub-rule (2) of Rule 7 of the Orissa Civil Services (Pension) Rules, 1992 (in short 'the rules'). Learned J.M.F.C., Balasore rejected the contentions raised on behalf of the petitioner simply holding that since cognizance has already been taken the question of non-maintainability of the proceeding cannot be entertained at the stage of framing of charge. As per the FIR allegation the petitioner was a driver Havildar in the Police department and he entertained into service as a Constable on 21.12.1964 and in his service record his date of birth was mentioned as 01.07.1940. Subsequently the petitioner obtained a School Leaving Certificate from Sisua M.E.School, Banki on 13.12.1986 and on the basis of the said School Leaving Certificate he tampered the date of birth in service record and altered the same to 01.07.1945 in connivance with some other employees of the Reserve Sub-Inspector section and in the process he continued in service illegally from 01.07.1998 to 25.07.2002, as a result the Government sustained pecuniary loss of Rs. 3,55,669/-. Admittedly on the basis of the alleged manipulation, the petitioner retired from service on 25.07.2002 It is submitted by the learned counsel for the petitioner that clause (c) of Sub-rule (2) of Rule 7 of the Rules creates a specific bar for institution of a judicial proceeding in respect of a cause of action which arose in respect of an event taking place more than four years before such institution, if such institution is after retirement of the Government servant. For proper understanding of the submission, the relevant provision under Rule 7 of the Rules is extracted hereunder: "7. For proper understanding of the submission, the relevant provision under Rule 7 of the Rules is extracted hereunder: "7. Right of Government to withhold or withdraw pension - (1) The Government reserve to themselves the right of withholding a pension or gratuity, or both either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if in any departmental or judicial proceedings, the pensioner found guilty of grave misconduct or negligence in duty during the period of his service including service- rendered on re-employment after retirement: Provided that the Orissa Public Service Commission shall be consulted before the final orders are passed: Provided further that when a part of pension is withheld/withdrawn, the amount of such pension shall not be reduced below the amount of minimum limit. (2)(a) xx xx xx xx (b) xx xx xx xx (c) No judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution, (d) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under clauses (a) and (b), a provisional pension as provided in Rule 66 shall be sanctioned. (e) Where the Government decide not to withhold or withdraw pension but order recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant. (e) Where the Government decide not to withhold or withdraw pension but order recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant. Explanation - For the purpose of this rule - (a) Departmental proceedings shall be deemed to be instituted on the date on which the statement of charges are issued to the Government servant or pensioner, or if the government servant has been placed under suspension from the date of his suspension; and (b) Judicial proceedings shall be deemed to be instituted - (i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made; and (ii) in the case of Civil proceedings, on the date of presentation of the plaint in the Court," Sub-rule (1) of Rule 7 of the Rules, which is substantive in nature, confers right on the Government for withholding the pension or gratuity or withdrawing pension in respect of whole or part of the pecuniary loss caused to the Government if the petitioner has been found guilty of grave misconduct or negligence in duty during the period of his service in any departmental or judicial proceeding. Clause (c) of Sub-rule (2) bars institution of a judicial proceeding, if not so instituted while the Government servant was in service, more than four years after arising of the cause of action or taking place of the event. Explanation (b) to Rule 7 provides the manner to determine the date of institution of a judicial proceeding. According to the explanation a criminal proceeding shall be deemed to be instituted on the date on which the complaint or a police report was filed before the Magistrate. Admittedly the FIR in the present case has been lodged more than five years after the retirement of the present petitioner in relation to an event allegedly taking place in 1986 and therefore, such initiation of the criminal proceeding is definitely barred by clause (c) of Sub-rule (2) of Rule,7 of the Rules. Hence the criminal proceeding itself being not maintainable, no charge could have been framed against the petitioner even though cognizance has already taken. Hence the criminal proceeding itself being not maintainable, no charge could have been framed against the petitioner even though cognizance has already taken. Mere taking of cognizance does not debar the Court to consider the question of maintainability of the proceeding at the time of hearing on charge. In such circumstances, I allow the revision, set aside the impugned order and also quash the criminal proceeding in C.T. No. 1505 of 2007 pending on the file of the learned J.M.F.C., Balasore. Issue urgent certified copy. Revision allowed.