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Orissa High Court · body

2017 DIGILAW 82 (ORI)

Nata Kishore Behera v. State of Odisha

2017-01-17

M.M.PRAHARAJ

body2017
ORDER 17.1.2017. As the facts and grievances of the applicant in O.A. No.2793 (c)/2013 is different from other O.As. and has no nexus with O.A. No.2793 (c)/2013, the said O.A. be delinked from other batch of cases and be listed separately for hearing. 2. Since the applicants in all these cases are similarly situated and the relief sought for is one and same, all these O.As. are taken up together for the sake of convenience and a common order is passed and O.A. No.2447 (c)/2013 is taken as a lead case. 3. Heard Mr. R.N. Nayak, learned Counsel for the applicants and Mr. H.K. Panigrahi, learned Addl. Standing Counsel. 4. The applicant in O.A. No.2447 (c)/2013, who is a retired ACF, has prayed to quash the order of recovery of Rs.70,320/- passed by respondent No.3 dated 10.4.2013 at Annexure-1 read with decision of joint verification committee ( in short JVC ) report dated 11.12.2012. 5. In O.A. No.2448 (c)/2013, the applicant who is a retired ACF, has prayed for quashing of order of recovery of Rs.80,224/- passed by respondent no.3 at Annexure-1 on the basis of the audit report read with decision of joint verification committee (in short JVC) report dated 11.12.2012. 6. In O.A. No.2449 (c)/2013 the applicant who was working as Range Officer, has impugned the order of recovery of Rs.5,21,772.30 at Annexure-1 passed by respondent No.3 on the basis of the Audit Report read with the decision of the JVC reported dated 11.12.2012. 7. Similarly the applicant in O.A. No.2520 (c)/2013, who was a Range Officer, has prayed for quashing of order of recovery of Rs.2o,476/- at Annexure-1 which is based on the basis of the Audit Report as well as report of the JVC. 8. The applicant in O.A. No.2930 (c)/2014, who is a retired Forest Ranger, has also impugned the order of recovery of Rs.34,213.22 dated 4.1.2013 at Annexure-2 sought to be made in accordance with the letter issued by respondent no.5 to respondent No. 4. 9. The case of the applicants in nutshell is that the recoveries in the above noted O.As. have been ordered to be recovered from their regular salaries on the basis of the Audit Report, which is said to have been directed to be recovered, which was duly approved by the JVC. 10. 9. The case of the applicants in nutshell is that the recoveries in the above noted O.As. have been ordered to be recovered from their regular salaries on the basis of the Audit Report, which is said to have been directed to be recovered, which was duly approved by the JVC. 10. Learned Counsel for the applicants argued that as per the Finance Department Office Memorandum No.31741 dated 22.8.1991, the Government has taken the following decision. “While taking up pension cases in the pension Adalat for finalisation, it has come to the notice that in some cases D.C.R. Gratuity etc. have been held up pending settlement of audit objections. It has to be borne in mind that the findings in an audit report/para do not impose any liability on the Government servant concerned unless the same is established in a Departmental proceedings initiated against him under the Orissa Civil Service (Classification, Control and Appeal) Rules, 1962. Such liability does not come under the purview of Government dues. It is mandatory that Government dues are required to be cleared by the retiring Government Servant before the date of his retirement. The existing provisions of Rule 157 and 158 of the O.P.R. 197 do not define the term of Government dues. The expression “Government dues” includes only arrears of rent and other charges pertaining to occupation of Government accommodation, balance of house building or conveyance advance, over payment of pay and allowances or leave salary and arrears or Income Tax deductible at source under the Income Tax Act, 1961, As such the amount arising out of Audit report/para which has not been termed as “Government dues” can not be recovered from D.C.R. Gratuity. Such dues can, however, be realized provided the responsibility is fixed by following the appropriate procedure”. 11. Hence, it has to be borne in mind that the findings in an Audit Report/para do not impose any liability on the Government Servant concern unless the same is established in a departmental proceeding initiated against him under CCA Rule 62 and such liability does not come under the purview of Government dues. Besides, while ordering the recovery, which is a penalty, no chance has been given to the applicant to putforth their grievances which are violation of natural justice. On account of this, the order of recovery can not sustain in the eye of law. 12. Besides, while ordering the recovery, which is a penalty, no chance has been given to the applicant to putforth their grievances which are violation of natural justice. On account of this, the order of recovery can not sustain in the eye of law. 12. Respondents have filed counter in the above noted O.As. separately. 13. Learned Standing Counsel, on the other hand, adopting the counter filed by respondents, submitted that at the time of retirement, the Government dues pending against an employee is required to be settled as per Rule 68 (1) of the OCS (Pension) Rule, 1992 it is the duty of the Head of Office to ascertain and assess Government dues payable by Government servant due for retirement. Accordingly being the Head of Office of the applicant all the Heads of Offices where the applicant was working during his entire period of service have been asked to issue No dues certificate. The applicants including those who retired, while in service, are required to pay the loss caused to the Government on account of commission of acts and omission during their service, which has been examined and brought out by the audit report and accordingly recovery has been ordered. Referring to para-6 of the counter filed in O.A. No.2447 (c)/2013, learned Standing Counsel submitted that a departmental proceeding shall be initiated if the applicant does not deposit the objected amount of public after receipt of the memo of respondent indicated in Annexure-A in the stipulated period of 15 days of receipt of the same. Further in the said counter it has been mentioned that “the observation made by the above committed on 11.12.2012 i.e. extract of JVC for finalisation of Audit paras for the 2009-10 for Keonjhar (KL) Division annexed herewith as Annexure-A, Thereafter the Government of Odisha in Forest and Environment Department vide their letter No.III-Audit 20/2012-7533/F & E, dated 9.4.2013 addressing the respondent No.2 here in called as Principal Chief Conservator of Forests, KL, Odisha, Bhubaneswar under intimation to the respondent No.3 vide their next Memo No.7535 of even date copy of which is annexed herewith as Annexure-B to submit the approval of JVC proceeding. On receipt of approval of the Government, the respondent No.3 issued a Memo No.1046 dated 10.4.2013 to the applicant for liability of deposit of Rs.70, 320/- briefing the description of Audit Objection. 14. On receipt of approval of the Government, the respondent No.3 issued a Memo No.1046 dated 10.4.2013 to the applicant for liability of deposit of Rs.70, 320/- briefing the description of Audit Objection. 14. On receipt of the aforesaid Memo of the respondent no.3, the applicant sent an application dated 21.5.2013 for supplying the copy of IAR No.18 of 10-11 and Parawise Comment report. The respondent No.3 on receipt of the application of the applicant supplied the detail Audit Observation vide his Memo No.2240 dated 19.7.2013, copy is annexed herewith as Annexure-C”. 15. It is the settled position of law that any order of recovery on the basis of audit report is a penalty, which can be ordered only after drawing a departmental proceeding in terms of relevant rules under OCS (CC&A) Rules, 1962. This has also been brought out in F.D. O.M. dated 22.8.1991 at Annexure-2 in O.A. No.2447 (c) of 2013, wherein it has been made clear that audit report showing loss does not amount to Government dues. The G.A. Department after careful consideration issued circular dated 21.5.2004 at Annexure-3 holding that the officers who are held responsible in the audit report for acts of omission or commission, be given an opportunity to clarify the position to the departmental authority, only after that draft charges against them be submitted as it is not desirable to hold them responsible merely on the audit observations.” 16. In this view of the matter, it will not be possible on the part of the concerned authority to order for recovery of the amount without initiation of departmental proceeding against the applicants in accordance with the OCS (CC &A) Rules, 1962. Further it is seen that orders of recoveries in the above noted O.As. have been stayed by this Tribunal which presume that the same has not been acted upon. 17. On hearing the learned Counsel for the applicants as well as learned Standing Counsel all the O.As. are allowed. The order of recoveries, pursuant to annexures, noted in para-4 to 8 above, are accordingly quashed. 18. All the O.As. are accordingly disposed of. O.As. disposed of.