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2016 DIGILAW 380 (ORI)

STATE OF ODISHA v. SRI SRIKANTA PATTNAIK

2016-05-12

D.P.CHOUDHURY, I.MAHANTY

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JUDGMENT : Dr. D.P. Choudhury, J. - Challenge has been made to the order dated 08.08.2013 passed by the learned Odisha Administrative Tribunal, Bhubaneswar (hereinafter called "the Tribunal") in O.A. No.177 of 2011 by allowing the application filed by opp. Party no.1 before the Tribunal. FACTS : 2. The unshorn details of the facts are that opp. Party no.1, who was the applicant before the Tribunal was a Member of the Odisha Administrative Service having initially joined as Sub-Deputy Collector on 10.07.1966. Subsequently he was promoted to O.A.S. Class-I (Junior Branch) and continued as PA of ITDA (Project Administrator of ITDA) till 11.09.1995. Thereafter he was promoted to the post of O.A.S. Class-I (Super Time Scale) on 30.05.1998. 3. It is the further case of the opp. Party no.1, who was the applicant before the Tribunal that while opp. Party no.1 was working as PA ITDA for the period from 11.09.1994 to 11.09.1995, he along with one Santosh Kumar Mishra, Ex-Chairman of ITDA have taken pecuniary advantage towards purchase of Neem cake to the tune of Rs.4,14,640/-. It is alleged that opp. Party no.1 having fabricated false record pertaining to quotation and tribal beneficiaries had spent an excess amount of Rs.l,30,640/- causing loss to the Government. For that financial irregularity, two Vigilance Cases No.2 of 1998 and No.4 of 1998 were initiated against him and he was placed under suspension, but by virtue of an order passed in O.A. No.2245 of 1999 the Tribunal quashed the order of suspension of opp. Party no., but the Departmental Proceeding as stated above continued. 4. Copy of charge memo was issued against opp. Party no.1, but could not be served as opp. Party no.1 avoided to receive the same, for which the petitioner took step to appoint the Revenue Divisional Commissioner (S.D.), Berhampur as Enquiring Officer. The Enquiring Officer after making enquiry found that opp. party no.1 was guilty of procedural irregularity and finally submitted the enquiry report. The State Government after due consideration of the same passed order withholding 100/0 of pension of opp. Party no.1 for five years and such order was concurred by the Union Public Service Commission. 5. Opp. Party no.1 preferred O.A. No. 177 of 2011 before the Tribunal against the order of the State Government, but the Tribunal after discussing the case of opp. Party no.1 for five years and such order was concurred by the Union Public Service Commission. 5. Opp. Party no.1 preferred O.A. No. 177 of 2011 before the Tribunal against the order of the State Government, but the Tribunal after discussing the case of opp. party no.1 found that the punishment order at Annexure-8 and concurrence of OPSC at Annexure-9 were issued illegally and consequently quashed the same. Challenging such order the petitioner claims that the Tribunal acted illegality by quashing such Annexures-8 and 9. It is the case of the petitioner that the finding of the Enquiring Officer and the order of the State Government being legal and proper, the Tribunal again sat over same as appellate authority, for which the impugned order should be set aside. SUBMISSIONS : 6. It is submitted by learned Addl. Government Advocate that the learned Tribunal committed error by making independent re-appreciation of evidence and arrived at wrong conclusion. Such approach of the Tribunal is against the law laid down by the Hon'ble Apex Court in the case of Union of India v. Jugal Kishore Samal, reported in (2004) 13 SCC 15 . It is further submitted that the order of the learned Tribunal is bad in law as it is against the proposition of law with the proper perspective. The Tribunal committed error apparent on the face of record by disturbing the factual finding of the Enquiring Officer as it is the settled law that the finding of the enquiry cannot be challenged except the manner of enquiry being subject to challenge. 7. Mr. 5ahu, learned Addl. Government Advocate further submitted that the observation of the Tribunal that no pecuniary loss has been established and charge against the applicant has not been proved is beyond the purview of the Tribunal which is otherwise perverse and vulnerable. The Tribunal has erred in law by interfering with the quantum of punishment as has been laid down by Hon'ble Apex Court. 50 he submitted to set aside the impugned order passed by the Tribunal. POINT FOR CONSIDERATION : 8. The main point for consideration is whether the impugned order of the Tribunal is illegal, perverse and liable to be set aside. DISCUSSION : 9. At the admission stage the matter was taken up to find out whether the impugned order is liable to be interfered with. POINT FOR CONSIDERATION : 8. The main point for consideration is whether the impugned order of the Tribunal is illegal, perverse and liable to be set aside. DISCUSSION : 9. At the admission stage the matter was taken up to find out whether the impugned order is liable to be interfered with. The relevant portion of the impugned order is placed below : "8. We note here that Rule-9 in the order cited above is the Govt. of India provision corresponding to Rule-7(1) of the OCS (Pension) Rules, 1992. In this case, the charge sheet (Annexure-3) or the finding of the Enquiry Report (Annexure-6) the final punishment order (Annexure- 8) or concurrence of OPSC (Annexure-9) has any findings of any grave misconduct or negligence in duty against the applicant. The charge of loss of Govt. money has not been established in enquiry report. The only. irregularity established in "procedural irregularity", which by any stretch of imagination, cannot be termed as an act of grave misconduct or negligence of duty and findings of Enquiry report or punishment order or recommendations of OPSC have not termed it as such. Hence, we hold that conditions of Rule-7(J) precedent for imposition of penalty of withholding of 10% of pension for 5 years have not been satisfied and hence such order is, therefore, bad in law and liable to be set aside. 9. In view of above, the O.A. is allowed and the punishment order at Annexure-8 and concurrence of OPSC at Annexure-9, are quashed. The applicant will be eligible for consequential financial benefits, which may be disbursed to him within a period of two months from the date of receipt of a copy of this order." 10. From the above observation of the Tribunal it appears that the Tribunal has come to the conclusion that the charge of loss. of Government money has not been established and the ground on which opp. party no.1 was punished i.e. procedural irregularity, is not part and parcel of the charge. The Tribunal has also come to the conclusion that the finding of the Enquiring Officer cannot be termed as grave misconduct or negligence of duty, for which the punishment of opp. Party no.1 by withholding 10% of pension for five years under Rule 7(1) of the O.C.S. (Pension) Rules, 1992 is liable to be set aside. The Tribunal has also come to the conclusion that the finding of the Enquiring Officer cannot be termed as grave misconduct or negligence of duty, for which the punishment of opp. Party no.1 by withholding 10% of pension for five years under Rule 7(1) of the O.C.S. (Pension) Rules, 1992 is liable to be set aside. It is true that the Tribunal cannot interfere with the conclusion of the Enquiring Officer or the quantum of punishment, but the Tribunal can have the say on the manner of holding enquiry. The article of charge against opp. party no.1 is placed below : "Shri Srikanta Pattnaik was functioning as P.A. ITDA, Paralakhemundi during the period from 11.5.94 to 11.9.95. During his incumbency as such he along with Shri Santosh Kumar Mishra, Ex-Chairman' of the I.T.D.A. has taken pecuniary advantage in purchase of Neem cakes to the tune of Rs. 4,14,640/-. He in connivance with Shri Prasad Naik by fabricating false record pertaining to quotation and tribal beneficiaries, he had spent an excess amount of Rs.1,30,640/- causing loss to Government." 11. Basing on the above charge the enquiry proceeded and the conclusion of the Enquiring Officer at Annexure-6 is quoted below : "As there was no prescribed Govt. rate of neem cake for the year 1994-95 i.e. the year during which the impugned deal was made the exact amount of loss cannot be worked out. The statement of imputation at para-6 mentions that neem cake was available at Parlakhemundi in Gajapati district @Rs.250 per quintal during the relevant period. However, the statement has no reference or evidence to that effect. Secondly, the statement of imputation also refers to a report of Assistant Commissioner, Commercial Tax, Bolangir range, Bolangir. The said report, however, clearly mentions (in the form of N.B.) that "there is no transaction in neem oil cake since 1991-92". In view of this, the rates mentioned in the letter of the Asst. Commercial Tax Commissioner cannot be accepted as actual rates. Thirdly, the statement of imputation also refers to a rate of Rs.180 per quintal, that was prevailing in Vizianagaram of Andhra Pradesh during the time of the impugned transaction. But as per the statement of Sri T.V.V. Satyanarayana Murty, Commercial Tax Officer, Vizianagaram recorded by the vigilance inspector, the rates related to the year 1993-94, whereas the impugned transaction took place in 1994-95. But as per the statement of Sri T.V.V. Satyanarayana Murty, Commercial Tax Officer, Vizianagaram recorded by the vigilance inspector, the rates related to the year 1993-94, whereas the impugned transaction took place in 1994-95. Thus, these rates cannot be accepted as valid rates for the year 1994-95. Therefore, the imputation of exact amount of loss of Rs. 1,30,640/- is not established. In view of the above, the delinquent officer is found guilty of not following the prescribed procedure in the transaction." 12. From the above materials it appears that the Enquiring Officer did not find the exact amount of loss as imputed under the article of charge against opp. Party no.1, but found opp. Party no.1 guilty for not following procedure for correct transaction. The procedural irregularity is not part of the article of charge as described above. When article of charge does not contain procedural irregularity, certainly the delinquent is not aware of such charge' and consequently the finding of the Enquiring Officer is based on no charge against opp. party no.1. If the article of charge does not contain the finding arrived at by the Enquiring Officer, certainly opp. Party no.1 fails to receive the natural justice when the punishment is imposed basing on such finding which otherwise based on no charge framed against opp. party no.1. Be that as it may, there is procedural irregularity in conducting the enquiry giving rise to interference with the finding of the enquiry. Thus, in our opinion the order of the Tribunal cannot be said to be perverse, illegal and rightly it has interfered with the punishment awarded to opp. Party no.1. On the other hand we are of the view that the order of the Tribunal is correct, legal and valid. CONCLUSION : 13. In view of the aforesaid analysis, the submissions of the learned Addl. Government Advocate as raised before us, that impugned order suffers from illegality and sits upon the order of the Disciplinary authority as appellate authority is indefensible because the Tribunal has not exceeded its limit nor the order of the Tribunal is otherwise bad in law. We, therefore, of the view that the order of the Tribunal cannot be interfered with and as such the writ petition is dismissed being devoid of merit. I. Mahanty, J. - I agree. Final Result : Dismissed