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2019 DIGILAW 159 (ORI)

Prafulla Kumar Mishra v. State Of Odisha

2019-02-26

M.M.PRAHARAJ

body2019
JUDGMENT : M.M. Praharaj, Acting Chairman The applicant, who is a retired Deputy Conservator of Forest in O.F.S. Class-1 cadre has filed this original application, praying for quashing of departmental proceeding initiated against him vide Annexure-3 so also the penalty order dated 1.11.2016 at Annexure-26 i.e. withholding of 3% pension for two years. 2. The facts brought out in the original application are as follows: Initially the applicant was appointed as an Assistant Conservator of Forest in Odisha Forest Services Class-1 (Junior) in the year 1982 and retired from Government service on attaining the age of superannuation on 31.1.2014 while working as Deputy Conservator of Forests. In the-year 2000, while he was working as a Sub-Divisional Forest Officer, Deogarh K.L. Sub-Division, as per the report of the Divisional Manager, Sambalpur K.L. Division, he was directed to take up enquiry in Badakudar Central Godown on the allegation of exchange of KDB passed Kendu Leaf bags as per Memo No. 1710 dated 1.6.2006 of the DFO, Deogarh Kendu Leaf Division. Upon receipt of the above instruction, he enquired into the allegation of exchange of K.L. bags in the Central Godown at Badakudra and found that though K.L.bags and bundles were inside, but the OFDC staffs were not available there. Finally he submitted the enquiry report to the DFO on 29.7.2000 vide Annexure-2 series suggesting for further investigation by any specialized agency, as the matter was a complicated one. While the matter stood thus, all on a sudden after lapse of about five years, respondent no.1 initiated a departmental proceeding against the applicant vide Memorandum of charge dated 28.6.2005 (Annexure-3) on the allegation of (i) dereliction of duty and (ii) submission of misleading enquiry report, upon receipt of which, he filed written statement of defence dated 11.7.2005 denying all charges at Annexure-4 series. Upon receipt of explanation of the applicant, respondent no.1 appointed the Conservator of Forests, Sambalpur (KL) Circle as the Enquiring Officer vide order dated 21.12.2005 at Annexure-5, who after conducting enquiry submitted his report dated 28.6.2006 at Annexure-6 series exonerating the applicant from all charges. Upon receipt of explanation of the applicant, respondent no.1 appointed the Conservator of Forests, Sambalpur (KL) Circle as the Enquiring Officer vide order dated 21.12.2005 at Annexure-5, who after conducting enquiry submitted his report dated 28.6.2006 at Annexure-6 series exonerating the applicant from all charges. However, after six months of submission of enquiry report, respondent no 1 in order dated 11.12.2006 at Annexure-7, appointed another Enquiring Officer i.e. Conservator of Forests, Rourkela to enquire into the matter afresh, but no reason was assigned for such appointment, through there is no provision in OCS (CC&A) Rules, 1962 for fresh enquiry after submission of enquiry report on the selfsame charges. Pursuant to order at annexure-7 the Second Enquiring Officer conducted the enquiry afresh and submitted his report on 30.11.2007 at Annexure-8 holding the applicant guilty of charge "dereliction of duty" and exonerating him from other charge i.e. "submission of misleading enquiry report on exchange of Kendu Leaf bags supplied to KDB during 1999 Crop year". By that time the applicant was selected and his name was included in a list for promotion to IFS cadre. Apprehending impediments to his promotion, he made a representation to respondent no.1 at Annexure-10 requesting to dispose of the departmental proceeding, resulting issuance of a second show cause notice dated 21.5.2009 (Annexure-11), proposing a major penalty i.e withholding of two annual increments with cumulative effect as per the provisions of OCS (CC&A) Rules, 1962. Upon receipt of 2nd show cause notice, the applicant submitted representation dated 1.6.2009 at Annexure-12 series. The applicant submitted that the so called 2nd show cause notice is required to be issued only after receipt of representation on the findings of the Enquiring Officer as per provisions of Rule 10(i)(a)(b) of the OCS (CC&A) Rules, 1962, but in this case the same has not been issued. The applicant submitted that after submission of enquiry report by the 1st Enquiring Officer and after being not satisfied with the said report, the action of respondent no.1 in appointing 2nd Enquiring Officer for fresh or denovo enquiry is ab-initio void and is not permissible as per the provisions of OCS (CC&A) Rules, 1962. The applicant submitted that after submission of enquiry report by the 1st Enquiring Officer and after being not satisfied with the said report, the action of respondent no.1 in appointing 2nd Enquiring Officer for fresh or denovo enquiry is ab-initio void and is not permissible as per the provisions of OCS (CC&A) Rules, 1962. Challenging the said illegal action of respondent no.1, the applicant approached the Tribunal in O.A. No. 1662(c)/2009 and the Tribunal in order dated 8.10.2009 at Annexure-13 directed respondent no.1 to issue appropriate orders keeping in view the decision of the Hon'ble Apex Court in the case of K.R Dev vs. Collector of Central Excise. However, respondent no. 1 without complying the order of the Tribunal, took a decision on the report submitted by the 2nd E.O. and proposed the penalty of withholding two increments with cumulative effect and sent it for concurrence of the OPSC vide letter dated 21.12.2009 at Annexure-14. Respondent no.1 did not respond to the clarification of OPSC vide Annexure-15 and its reminder at Annexure-16 and in order dated 19.8.2010 at Annexure-17, revoked the order of appointment of 2nd Enquiring Officer along with 2nd enquiry report at annexure-6 and 7 and basing on the 1st enquiry report, the applicant was called upon to.submit his representation within 15 days. The applicant submitted that though he was exonerated from-all the charges at Annexure-6, respondent no.1 in letter dated 30.8.2010 at Annexure-18, communicated his adverse findings under the provisions of Rule 15(10)(i)(a) of the CCA Rules. Neither the findings of the disciplinary authority or the proposed penalty is supposed to be communicated to the delinquent at the stage before receipt of any representation from him. As per provisions of Rule 15(10)(i)(b) of the CCA Rules, after receipt of the representation in Sub-Clause (a) if the disciplinary authority having regard to the findings on the charges, is of the opinion that any of the penalties specified in Clause (vi) to (ix) of Rule 13 should be imposed, he shall furnish to the delinquent Government servant a statement of its findings along with brief reasons for disagreement, if any, with the findings of the Enquiring Officer and give him a notice: stating the penalty proposed to be imposed on him and calling upon him to submit within a specified time such representation as he may wish to make against the proposed penalty". But in this case the action of respondent no.1 to impose penalty without giving a show cause notice and awaiting the representation against the findings of the E.O. is violative of the statutory provision of Rule 15(10)(i)(a). However, the applicant submitted his representation dated 11.10.2010 at Annexure-19 series against the findings and the penalty proposed by respondent no. 1 indicating arbitrariness and violation of statutory rules and after receipt of the same, respondent no.1 in order dated 29.7.2011 at Annexure-21, imposed the penalty of "withholding of two increments without cumulative effect, after obtaining the advice of the OPSC as at Annexure-20. The applicant submitted that as per provision of Clause (ii) of Rule 15(10) of CCA Rules, the disciplinary authority shall supply the copy of enquiry report, reasons of disagreement with the findings of the E.O.as well as copy of advice of OPSC, but he has not been supplied with any such document. Challenging the punishment order at Annexure-21, the applicant preferred an appeal before the Governor of Odisha i.e. Appellate Authority dated 12.8.2011 at Annexure-22 Since no action was taken on his appeal memo, the applicant being aggrieve with the arbitrary, unlawful of respondent no.1, he filed O.A. No. 3638(c)/2011 in the Tribunal which was disposed of on 19.12.2011 (Annexure-23) directing respondent no.1 to issue appropriate orders on the pending appeal at annexure-22 within a month and since no such order has been issued, the applicant filed another O.A: No.847(c)/2012 before the Tribunal and in order dated 24.7.2013 (Annexure-24) the Tribunal held as follows "In view of the aforesaid position, the Government-respondents are directed to complete the aforesaid disciplinary proceeding against the applicant in all respect prior to his retirement i.e. at the latest by 31.8.2013, failing which the said disciplinary proceeding shall be deemed to have been quashed". Pursuant to order of the Tribunal, the applicant filed O.A. No. 725/2013"before the Central Administrative Tribunal praying for his promotion to IFS, which was disposed of on 2.1.2014 directing respondents to take decision on his representation within three months. Since no decision was taken by respondent no.1, the applicant filed C.P. No. 12/2014, after which respondent no.1 filed W.P.(c) No 9040/2014 praying for six months time to comply the order of the Tribunal dated 24.7.2013. Since no decision was taken by respondent no.1, the applicant filed C.P. No. 12/2014, after which respondent no.1 filed W.P.(c) No 9040/2014 praying for six months time to comply the order of the Tribunal dated 24.7.2013. Thereafter the applicant had also filed W.P.(c) No. 2628/2015 before the High Court against the order of CAT and after hearing both the writ petitions, the High Court in order dated 21.6.2015 (Annexure-25) directed the State respondents to conclude the proceeding in terms of order of the OAT dated 24.7.2013 passed in O.A. No. 847 (c)/2012 within a period of one, and half months and also imposed a fine of Rs. 5,000/- on the respondents, to be paid to the applicant. However, respondents after violating all the administrative and judicial norms, issued order dated 1.11.2016 at Annexure-26 by withholding 3% of his pension for two years, which is arbitrary, illegal, unlawful and violation of order passed by the Tribunal as well as Hon'ble High Court. 3. Respondent no.1 has filed counter indicating that since the issues involved in the departmental proceeding is sensitive and caused loss of huge revenue to the Government, the DFO, Deogarh K.L. Division in his memo dated 1.6.2006 directed the applicant to take up an enquiry in Badakudar Central godown, but as no action was taken by the applicant, which clearly indicates that he tried to escape the responsibility, which amounts to dereliction of duty, the disciplinary authority initiated a proceeding on 28.6.2005. The Conservator of Forest, Sambalpur KL Division was appointed as the Enquiring Officer vide order dated 28.6.2005 of respondent no 1. Subsequently a 2nd Inquiring Officer was appointed. However, as per the direction of the Tribunal in O.A. No. 1662(c)/2002 dated 8.10.2009, the appointment of 2nd Enquiring Officer and Marshaling Officer has been revoked vide order dated 19.8.2010 at Annexure-A. Further the Second Enquiring Officer after due enquiry submitted his report on 30.11.2007 proposing the punishment of "Censure" in respect of charge no.1 holding the applicant guilty of charge of "dereliction in duty" basing on which the applicant was asked to submit his representation and on receipt of his representation dated 1.6.2009, second show cause notice was issued, which is within law. The submission of the applicant that he apprised about the fact to the DFO, Deogarh KL Division from time to time is not correct and hence initiation of the departmental proceeding against him was neither due to delayed submission of enquiry report. However, the order of punishment has been issued and communicated to the applicant dated 29.7.2011 after due consultation with the OPSC. It has been averred in the counter that as per the OCS (CC&A) Rules, 1962 the views of the Enquiring Officer is not binding on the disciplinary authority who is rather the Accepting authority, can disagree with the finding of Enquiring Officer. As regards violation of statutory provisions, "it may be stated that deviation occurs, at times, in view of urgency or otherwise which may not be construed as intentional and prejudiced to implicate the delinquent. The facts contained in the enquiry report may/ may not provide the edifice for the disciplinary authority and the disciplinary authority if convinced may like to impose the punishment commensuration the wrongs committed or having found the semblance thereof. Further the punishment imposed "is minor as per rules, which is not resultant outcome of any arbitrary decision or maligned design". Respondent submitted that since the time limit for one and half months fixed by the Hon'ble High Court to finalise the proceeding could not be materialized, respondent authority sought for extension of time, which was extended up to 5.9.2015 and in order to implement the order passed by the OAT and Hon'ble High Court, appropriate action has been taken and accordingly order has been passed vide order dated 1.11.2016 and since the applicant retired during pendency of this case, punishment of withholding of 3% of the pension for two years under Rule 7 of the OCS (Pension) Rules 1992 was passed. It is accordingly submitted that since the prayer of the applicant has no merit, the O.A. may be dismissed being devoid of merit. 4. Heard learned Counsel for the applicant and learned Standing Counsel at length. Perused the pleadings of the parties and the documents annexed thereto. 5. It is accordingly submitted that since the prayer of the applicant has no merit, the O.A. may be dismissed being devoid of merit. 4. Heard learned Counsel for the applicant and learned Standing Counsel at length. Perused the pleadings of the parties and the documents annexed thereto. 5. During course of argument, learned counsel for the applicant' contended that as per the instruction of the DFO, KL Division, Deogarh, he enquired into the matter and suggested for vigilance enquiry as the higher authorities were found involved in the scam vide report at Annexure-2 and after a lapse of about five years, a departmental proceeding was initiated against him for dereliction of duty while initiating the enquiry at Annexure-3. The Conservator of Forest, Sambalpur KL Circle was appointed to enquire into the matter, who upon enquiry submitted his report (Annexure-6) by exonerating the applicant from the charges. Thereafter, respondent no.1 appointed another Inquiring Officer i.e. Conservator of Forest, Rourkela Circle to conduct de novo enquiry as the enquiry report of 1st E.O. did not suit the desirer of respondent no. 1. The 2nd Inquiring Officer submitted his report finding the applicant guilty of charge of dereliction of duty but exonerated him from other charges. Basing on this report, respondent no.1 issued 2nd show cause notice, proposing penalty of withholding of two increments with cumulative effect. Learned counsel for the applicant submitted that after submission of enquiry report by the 1st E.O., the appointment of 2nd E.O. is not permissible in law and the 1st show cause notice (stated as 2nd show cause notice) by respondent no.1 proposing imposition of penalty, could not have been done under the provisions of CC & A Rules, which are serious violation of CCA Rules. Further initiation of departmental enquiry after lapse of about five years, is arbitrary and despotic action of the authority. It is accordingly submitted that when the appointment of 2nd E.O. at Annexure-7 along-with the 2nd enquiry report dated 30.11.2007 at Annexure-8 was revoked and after such revocation, the communication of enquiry report of the 151 E.O. by respondent no. Further initiation of departmental enquiry after lapse of about five years, is arbitrary and despotic action of the authority. It is accordingly submitted that when the appointment of 2nd E.O. at Annexure-7 along-with the 2nd enquiry report dated 30.11.2007 at Annexure-8 was revoked and after such revocation, the communication of enquiry report of the 151 E.O. by respondent no. 1, is violative of statutory provisions of Rule 15(10)(i)(a) of the OCS (CC&A) Rules, 1962 pursuant to which the applicant submitted his representation indicating that since he has been exonerated from all the charges, he has nothing to represent against the findings of the 1st E.O. Hence, the order passed by respondent no 1 imposing penalty of withholding of two increments without cumulative effect, ignoring the findings of the 1st E.O., is violative of statutory provision, besides he has not been supplied with the copy of enquiry report along with the copy of advice of the OPSC. However, as per the direction of the Hon'ble High Court in W.P.(c) No. 9040/2014 and W.P.(c) No. 2628/2015 as well as the Tribunal in O.A. No. 847(c)/2012, respondent no.1 in an arbitrary manner imposed penalty of withholding of 3% of Pension for two years, which is illegal, unlawful and is violation of order dated 24.7.2013 passed by the Tribunal dated 24.7.2013 followed by the order dated 21.7.2015 of the Hon'ble High Court. 6. In support of his contention, learned counsel for the applicant relied on the decision of this Tribunal in O.A. No. 206/2003, reported in the case of Promothnath Mishra vs. State of Orissa and others, (2006) 1 OLR (CSR) 64 wherein it has been held that "Inquiry Officer submitted his report exonerating the applicant of all charges -Disciplinary authority differing with the Enquiry Officer issued show cause notice-Order for withdrawal of one-third pension of the applicant - Order challenged is communicated to the applicant by 30.6.2002, the proceeding shall be deemed to have been quashed -Not the case of the respondents if the order of the Tribunal dated 8.2.2002 passed in earlier O.A. was challenged in higher forum - Nothing on record to show that respondent no.1 sought for extension of time to communicate the decision after 30.6.2002 - No reason to continue the proceeding after 30.6.2002 and to finalise the same contrary to the direction of the Tribunal in the earlier case - Proceeding quashed - Punishment order quashed". In the case of Haryana Financial Corporation vs. Kailash Ch. Ahuja, (2008) 2 SCC (L & S) 789 the Apex Court held that failure to supply a report of the enquiring officer to the delinquent employee would not ipso facto result in the proceeding being declared null and void and the order of punishment nonest and ineffective. It is the delinquent employee to plead and prove that such non-supply has caused prejudice to him. This decision has been followed with approval in the decision of Sarua U.P. Gramm Bank vs. Manoj Kumar Sinha, (2010) 1 SCC (L&S) 861. 7. Sub-Rule 10(i) (a) provides that the delinquent Government employee should be furnished with a copy of the enquiry report to have his representation thereon. In the instant case the enquiry report was annexed with the order of penalty at Annexure-3. The applicant preferred an appeal before the appellate authority. The question thus arises as to whether for non-furnishing of enquiry report before imposition of penalty, the order of penalty consequently the proceeding stand vitiated? Law is well settled that unless prejudice is caused to the applicant for non-submission of such enquiry report or document, the Tribunal shall not interfere with the order of penalty. In such cases the applicant is to establish that he has really been prejudiced thereby. Suffice it is if the decision of the Hon'ble Apex Court in the case of Union of India and others vs. Satrughana Pal reported in (2010) 2 SCC (L&S)-22 is relied upon. In the case at hand, respondent no.1 did not supply the copy of enquiry report so also reason of disagreement with the findings of the E.O. and also did not supply the advice of the OPSC which is in violation of Rule 15(10)(ii) of CC&A Rules. 8. It is an admitted fact that since the applicant could not find any conclusive truth on the allegation of exchange of Kendu Leaf bags in the Central Godown, he apprised the said fact to the DFO, Deogarh K.L. Division from time to time and for which a departmental proceeding has been initiated against him, by appointing the Conservator of Forests, Sambalpur KL to enquire into the matter. After due enquiry he submitted his findings by exonerating the applicant from all charges. After due enquiry he submitted his findings by exonerating the applicant from all charges. Being not satisfied with such findings of 1st E.O., respondent no.1 appointed the Conservator of Forests, Rourkela Circle to enquire into the matter afresh, who after due enquiry submitted his report dated 30.11.2007 hold the applicant guilty of charge of "Dereliction of duty" and exonerated him from the charge of "submission of misleading enquiry report on exchange of Kendu Leaf bags supplied to K.D.B. during 1999 Crop year". Thereafter, basing on the enquiry report of 2nd E.O., respondent no.1 issued only 2nd show cause notice vide Annexure-11 and upon receipt of the said show cause, the applicant submitted his representation clarifying the detailed facts. However, upon receipt of the order of the Tribunal in O.A. No. 1662(c) of 2009 dated 8.10.2009, respondent no.1 instead of complying the same, recommended the matter to OPSC for concurrence (Annexure-14) on the proposed penalty of withholding of two increments. Thereafter OPSC sought for clarification (Annexure-15) from respondent no.1 questioning about appointment of 2nd E.O. but respondent no.1 thereafter revoked the order of appointment of 2nd E.O. so also 2nd enquiry report vide order at Annexure-17, which is violation of statutory provision of Rule 15(10)(i)(a) of the OCS (CC&A) Rules, 1962. It is also brought out that since the applicant has been exonerated from all charges as per the enquiry report submitted by 1st Inquiring Officer, he had nothing to represent. However, without recording the reasons for disagreement and without obtaining concurrence from the OPSC, suggestion of proposed penalty of withholding two increments with cumulative effect by respondent no. 1, ignoring the findings of the 1st E.O., is also a violation of Rule 15(10)(i)(b) of the CC&A Rule. When the disciplinary proceeding was not completed and as the applicant was on the verge of promotion to IFS cadre, he approached the Tribunal in O.A. No.847(c)/2012, wherein respondents were directed to complete the proceeding in all respect prior to retirement of the applicant i.e. at least by 31.8.2013, failing which the disciplinary proceedings shall be deemed to have been dropped. Subsequently, W.P.(c) No.9040/2014 filed by respondent no.1 before the Hon'ble High Court seeking six months time and W.P.(c) No. 2628/2015 filed by the applicant challenging the order of CAT, were disposed of imposing find of Rs. Subsequently, W.P.(c) No.9040/2014 filed by respondent no.1 before the Hon'ble High Court seeking six months time and W.P.(c) No. 2628/2015 filed by the applicant challenging the order of CAT, were disposed of imposing find of Rs. 5,000/- to be paid by respondent no.1 to the applicant with further direction to conclude the proceeding as per order dated 24.7.2014 of the Tribunal within a period of one and half months, failing which the proceeding has to be deemed to have been quashed, resulting imposition of penalty of withholding of 3% of pension for two years, which is arbitrary, illegal, unlawful and violation of statutory rules. 9. In view of the above discussion, the irresistible conclusion is that there is no provision under Rule 15 of the OCS (CC&A) Rules, 1962, prescribing for any denovo enquiry. However, the punishment awarded by respondent no.1, without obtaining the concurrence of OPSC and without assigning any reason for disagreement with the findings of the 1st Inquiring Officer, is also a nullity in the eye of law and hence the impugned order dated 1.11.2016 at Annexure-26 i.e. withholding of 3% pension for two years is liable to be quashed. Further, the order directing for fresh enquiry at Annexure-7 is also liable to be quashed. Accordingly, we do not find any merit on the contention raised by respondents so also argument advanced by learned Standing Counsel. 10. Keeping in mind the ratio decided by the Hon'ble Apex Court so also this Tribunal in many case, the order of initiation of proceeding against the applicant as at Annexure-3 as well as the impugned order dated 1.11.2016 at Annexure-26 i.e. withholding of 3% of pension for two years as per Rule 7 of the OCS (Pension) Rules, 1992 are quashed. With these orders, the O.A. is disposed of. Send copies.