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2018 DIGILAW 534 (ORI)

Madhuri Das v. State of Orissa

2018-05-10

BISWANATH RATH

body2018
JUDGMENT BISWANATH RATH, J. - This petition involves a challenge to a part of the order of the Disciplinary Authority directing for recovery of a sum of Rs.60,000/- from the delinquent on the basis of the findings of the Enquiry Officer. 2. Short background involved in the case is that the delinquent-Madan Mohan Das was appointed as the Sub-Divisional Manager in the year 1965. In course of time he was promoted to the post of Deputy Divisional Manager on 11.1.1988. Thereafter, Madan Mohan Das was transferred to Sambalpur Division and posted at Remade Sawmill. It is claimed by the petitioner that though Madan Mohan Das submitted his joining report but did not take the charge of the timber on the premises of no physical verification of the stock at that point of time was undertaken. Ultimately at the time of physical verification of the stock, it was found, there is shortage of stock of 772.2899 cu.m. of timber. The delinquent was asked to show cause on 24.7.1988 for the shortage in the stock. In spite of the delinquent’s objection that he could not take the possession of the stock for no physical verification by that time and that the delinquent was nowhere connected with the transaction during his incumbency as Deputy Divisional Manager involving the timbers of the Sawmill, placing the petitioner on suspension the charge-sheet was submitted on specific grounds, and was served on the delinquent on 31.8.1989. On appointment of the officer on the Special Duty as Enquiry Officer, the enquiry was conducted involving the charges against the delinquent. On conclusion of the enquiry, the Enquiry Officer submitted his report on 27.7.1991 with the observation that the delinquent officer is the only officer to be held responsible for the cumulative loss. On being asked for his response, the petitioner filed his response to the enquiry report 9.06.1992. Personal hearing in the matter was made on 30.08.1993 and in the meantime, the delinquent died in the year 1996 i.e. on 6.3.1995. Fact of death of the delinquent was informed to the employer by his wife the petitioner No.1 on 22.3.1995. On being asked for his response, the petitioner filed his response to the enquiry report 9.06.1992. Personal hearing in the matter was made on 30.08.1993 and in the meantime, the delinquent died in the year 1996 i.e. on 6.3.1995. Fact of death of the delinquent was informed to the employer by his wife the petitioner No.1 on 22.3.1995. The enquiry report was submitted on 27.7.1991, but by communication dated 21.12.1995 i.e. much after the death of the delinquent, the disciplinary authority passed the final order in the departmental proceeding involving late M.M. Das, thereby, directing to treat the period of suspension as of duty, secondly, since the delinquent officer had already expired directed for no punishment and thirdly, all the outstanding dues and loss caused to the Orissa Forest Development Corporation Limited as indicated by the B.O. amounting to Rs.60,000/- should be recovered from the final benefits accrued to the delinquent. It was also directed therein to obtain an undertaking from the legal heirs of the delinquent to the effect that the outstanding dues should be paid by the legal heirs of the delinquent before the final settlement of the dues, are settled as appearing at Annexure-17. It is upon service of the copy of the order of punishment by the employer wife of the delinquent filed an appeal and the appeal was rejected by the Chairman of the O.F.D.C. at Annexure-B. 3. Restricting his submission Shri S.C.Dash, learned counsel for the petitioners to the extent of award of recovery of the amount indicated hereinabove, on reiteration of the pleadings in the writ petition submitted that the enquiry report was submitted by the Enquiry Officer on 27.7.1991, the delinquent submitted his response to the enquiry report pursuant to a direction of the employer dated 7.3.1992, consequently, the delinquent late Das breathed his last on 6.3.1995. It is only after the death of the delinquent, the final order of punishment was passed on 21.12.1995. It is on the premises that the final order of punishment having been passed against a dead person, Shri Das, learned Counsel for the legal heirs of the delinquent i.e. the petitioners submitted that the impugned order at Annexure-17 so far it relates to recovery of a sum of Rs.60,000/- is concerned, remains void. It is on the premises that the final order of punishment having been passed against a dead person, Shri Das, learned Counsel for the legal heirs of the delinquent i.e. the petitioners submitted that the impugned order at Annexure-17 so far it relates to recovery of a sum of Rs.60,000/- is concerned, remains void. Shri Das, taking help of some judgments in the case of Manoj Kumar, Petitioner versus Central Coal Field Limited, Ranchi & others, Opposite Parties involving W.P. (S) No.2991 of 2014 disposed of on 29th January, 2016, in another decision in the case of Hira Bai Vs. State of Maharashtra as reported in 1986 Lab. I.C. 248, in another case Jayanti Devi versus State of Bihar & others as reported in (2001) 2 J.C.R. 165 submitted that for the support of the decisions indicated hereinabove to the case of the petitioners, the impugned order should be interfered with and set aside on the principle of abetment of the disciplinary proceeding on account of death of the delinquent before passing of the final order by the disciplinary authority. Shri Dash, also relying another decision in the case of Gulam Gausul Azam & others versus State of U.P. & others decided on 12th May, 2014 in Writ Appeal No.18653 of 2012 prayed this Court for interfering in the impugned order at Annexure-17 and setting aside the same. 4. Shri S.K. Patnaik, learned Senior Advocate for the Orissa Forest Development Corporation Ltd. in his attempt to justify the order of the Disciplinary Authority and in answering the questions raised by the learned Counsel for the petitioner representing the claim of the delinquent, submitted that the report of the Enquiry Officer is based on the findings of facts and after giving opportunity of defending to the delinquent. The order of the Disciplinary Authority since based on the report already submitted during the lifetime of the delinquent and taking into account the response of the delinquent pursuant to the service of copy of enquiry report, death of delinquent before the date of order being passed by the disciplinary authority becomes immaterial. It is on the application of the provisions contained in the Order 22 Rule 4 of C.P.C., Shri Patnaik, learned Senior Advocate also contended that for the above provision, the disciplinary proceeding cannot abate. It is on the application of the provisions contained in the Order 22 Rule 4 of C.P.C., Shri Patnaik, learned Senior Advocate also contended that for the above provision, the disciplinary proceeding cannot abate. Placing reliance of a decision in the case of Rameshwar Manjhi (Deceased) through his son Lakhiram Manjhi versus Management of Sangramgarh Collery and other as reported in 1993 STPL 8807 SC and taking support of the same to the case of the Corporation Shri Patnaik, learned Senior Advocate contended that for the support of the above decision to the case of the Corporation, the claim of the petitioners is unsustainable. In the above premises, Shri Patnaik, learned Senior Advocate for the opposite parties submitted that there is no infirmity in the impugned order requiring no interference of this Court in the same. 5. Considering the rival contentions of the parties and leaving the other details involving the disciplinary proceeding as not relevant for this purpose, this Court finds, the delinquent the husband of the petitioner No.1 involved in a disciplinary proceeding. After his suspension the delinquent was served with charge-sheet based on the audit report on 31.8.1989 vide Annexure-5. The delinquent submitted his explanation on 29.1.1990 and the Enquiry Officer was appointed on 12.04.1990. The delinquent was in the meantime reinstated in the service pending disposal of the enquiry on 3.6.1991. The Enquiry Officer submitted his report on 27.7.1991 as appearing at Annexure-8. In the meantime, the delinquent was asked by the disciplinary authority to file written submission on the enquiry report. Pursuant to which the delinquent submitted a written submission on 9.6.1992. It is thereafter seen that the delinquent had expired on 6.3.1995 while in service and ultimately, the order of recovery vide Annexure-17 was passed on 12.12.1995. This Court, therefore, observes that admittedly, the order of recovery by the disciplinary authority was passed after the death of the delinquent. There is also no dispute that the enquiry was concluded in the year 1991 and the final order of the Disciplinary Authority came on 21.12.1995 after almost four years and after death of the delinquent. Question here falls for determination is, for the death of the delinquent prior to date of passing of the order by the Disciplinary Authority, if the proceeding abates? Question here falls for determination is, for the death of the delinquent prior to date of passing of the order by the Disciplinary Authority, if the proceeding abates? It is, here taking into consideration the contentions raised by the rival parties, this Court considering the decision cited at Bar in the case of Manoj Kumar, Petitioner versus Central Coal Field Limited, Ranchi & others, Opposite Parties involving W.P. (S) No.2991 of 2014 disposed of on 20th January, 2016, finds, the Hon’ble Jharkhand High Court considering the allegation involved therein finding that the delinquent involved therein died on 16.08.2013 much before the submission of the report of the Enquiry Officer on 10.10.2013, so in the above peculiar circumstances the Hon’ble Jharkhand High Court held that the enquiry proceeding got vitiated for the death of the delinquent taking place prior to submission of the report. The Hon’ble Bombay High Court in the case of Hira Bai Vs. State of Maharashtra as reported in 1986 Lab.I.C. 248 has observed that for the death of the delinquent taking place before conclusion of the disciplinary proceeding, the proceeding be terminated and abated. Fact involved herein is that delinquent involved therein died on 10.09.1978 whereas the report of the enquiry was submitted on 4.6.1979 much after the death of the delinquent. In another case the Hon’ble Jharkhand High Court in another decision Jayanti Devi versus State of Bihar & others as reported in (2001) 2 J.C.R. 165 considering the fact that the disciplinary proceeding involved therein was initiated against the delinquent on 14.7.1995, Enquiry Officer was appointed on 27.7.1998 and the enquiry proceeding did not take effect till death of the delinquent on 24.3.1994 and the proceeding was decided ex parte after death of the delinquent thus the Hon’ble Jharkhand High Court observed that, the departmental proceeding could not have continued against the dead employee. In the case of Basudeo Tiwary v. Sido Kanhu University and others as reported in (1998) 8 SCC 194 the Hon’ble Apex Court considering the fate of the disciplinary proceeding involving a terminated employee dying during pendency of the appeal, came to the conclusion that for the death of the delinquent during pendency of the proceedings, no further direction either as to further enquiry or reinstatement can be given. The case involves death of the person in the pendency of appeal and after finding that the person involved therein though not given notice but under the compelling situation of death of the person in the meantime, granted suitable relief after observing that there is no further scope to reopen the proceeding. This Court from another decision in the case of Gulam Gausul Azam & others versus State of U.P. & others decided on 12th May, 2014 in Writ Appeal No.18653 of 2012 finds that once the delinquent died, the department proceeding automatically abates. The facts involved herein is that the delinquent involved therein died on 15.7.2011, whereas the report in the enquiry was submitted on 30.6.2011 and the order of the disciplinary authority proceeded to pass order of punishment on 3.07.2011. But on the premises that the impugned order therein withholding the retiral and other dues of late Abdul Kareem having been passed on 21.11.2011, which ruder having been surfaced after the death of the delinquent, the proceeding abated. This judgment did not involve the order in the disciplinary proceeding. 6. It is here considering the decision vide AIR 1994 (S.C.) 1176 placed reliance by Shri Pattnaik, the learned Senior Counsel appearing for the opposite parties, for the difference in the facts and situation involved therein, this Court finds, the decision referred to hereinabove has no application to the case at hand. So far Shri Pattnaik’s claim for application of the provision at Order 22 Rule 4 of C.P.C. is concerned, for no continuance of the liability of delinquent on the legal heirs of the delinquent, this Court observes that the provision at Order 22 Rule 4 of C.P.C. has absolutely no application to the case at hand. It is here considering that all the High Court cases cited involving case of death of delinquent prior to submission of report by the Enquiry Officer none of the decision has any application to the case of the petitioner. Similarly, coming to consider the decision involving (1998) 8 S.C.C. 194 for the difference in the facts of the case involved therein, this Court also finds this decision has no application to the case at hand. 7. Similarly, coming to consider the decision involving (1998) 8 S.C.C. 194 for the difference in the facts of the case involved therein, this Court also finds this decision has no application to the case at hand. 7. For the enquiry report already submitted much prior to the death of the delinquent, even response of the delinquent to such report having been submitted much prior to passing of final order of the Disciplinary Authority and during lifetime of the delinquent, this Court, thus, finds no force in the submission of Shri Dash, learned Counsel for the petitioner. Accordingly, this Court while observing that the disciplinary proceeding cannot abate for the death of the delinquent after the submission of the enquiry report. This Court here also perused the explanation to the enquiry report submitted by the delinquent and finds, there is no allegation of violation of principle of natural justice. Thus, this Court finds, there is otherwise also no scope for interfering in the impugned order at Annexure-17 as it does not suffer from any infirmity. 8. The writ petition thus stands dismissed for having no merit. However, in the circumstances, there is no order as to cost. Petition dismissed.