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2019 DIGILAW 293 (ORI)

Kailash Chandra Sahoo v. State Of Odisha

2019-04-09

B.R.SARANGI

body2019
JUDGMENT: B.R. Sarangi, J. The petitioner, by means of this writ application, craves the following reliefs: "(i) why the Opp.parties shall not be directed to drop the disciplinary proceeding which was initiated against the petitioner in the year 1994; AND (ii) why the Opp.Parties shall not be directed to fix the scale of pay of the petitioner as per ORSP Rules 1998 and 2008 respectively within stipulated period; AND (iii) why the Opposite Parties shall not be directed to provide annual increments right from 1994 in favour of the petitioner by regularizing his service; AND (iv) Why the Opp.Parties shall not be directed to calculate the arrear differential salary of the petitioner and to release the same in his favour within stipulate period; AND (v) why the opp.parties shall not be directed to release the post retiral benefits of the petitioner in his favour within stipulated period; AND (vi) Why the Opp.Parties shall not be directed to take steps for sanction of pension in favour of the petitioner within stipulated period; And if the Opp.Parties do not show cause or show insufficient cause then the rule be made absolute by issuing appropriate writ or writs/direction or directions and any other order as deem fit and proper may be passed.” 2. The factual matrix of the case, in hand, is that the petitioner had entered into service as a Lower Division Clerk on 25.11.1975. His appointment was approved by the competent authority on 17.09.1987 as a Junior Clerk. On 04.08.1994, he was placed under suspension pending contemplation of initiation of disciplinary proceeding on the allegation of misappropriation and misconduct. The opposite party no.3 Governing Body of Kendrapara Autonomous College, Kendrapara simultaneously lodged FIR against the petitioner on 04.08.1994 in Kendrapara P.S., pursuant to which G.R. Case No. 788 of 1994 under Sections 477(A)/408/34 I.P.C. was registered in the Court of learned S.D.J.M., Kendrapara. Consequentially, both departmental proceeding and criminal proceeding were initiated against the petitioner on the selfsame facts. Challenging the order of suspension dated 04.08.1994, the petitioner had approached this Court by filing OJC No. 7691 of 1995. During pendency of the said case, the order of suspension dated 04.08.1994 was revoked by opposite party no.3 and vide order dated 27.06.1996 the petitioner was reinstated in service. Consequentially, the writ petition bearing OJC No. 7691 of 1995 became infructuous and was disposed of as such on 22.01.2003. During pendency of the said case, the order of suspension dated 04.08.1994 was revoked by opposite party no.3 and vide order dated 27.06.1996 the petitioner was reinstated in service. Consequentially, the writ petition bearing OJC No. 7691 of 1995 became infructuous and was disposed of as such on 22.01.2003. 2.1 Thereafter, the petitioner was again placed under suspension on 19.09.1996 with effect from 20.09.1996. Challenging the said order of suspension, the petitioner again approached this Court by filing OJC No. 10321 of 1996, which was disposed of on 22.01.2003 by setting aside the order of suspension and direction was issued to the Management- opposite party no.3 to reinstate the petitioner forthwith in his former post. It was further directed that the disciplinary proceeding against the petitioner should be concluded as expeditiously as possible, preferably by the end of the year 2003, and that the Director, Higher Education, Orissa opposite party no.2 should take necessary steps in that regard. Consequentially, the petitioner was reinstated in service and accordingly he joined in his former post on 04.02.2003. The petitioner was acquitted of all the charges in the criminal case by judgment dated 31.01.2011 passed in G.R. Case No. 788 of 1994/Trial No. 1224 of 1996. 2.2 Subsequently, the petitioner retired from service on attaining the age of superannuation on 31.12.2011 and he was instructed to handover the charges of all files and documents with his custody to Sri Debasis Singh, Junior Clerk. Though the petitioner was reinstated in service, pursuant to order of this Court dated 22.01.2003 passed in OJC No. 10321 of 1996, he was paid his salary in old scale of pay till his retirement, including the period of suspension, but neither his annual increment nor his pay scale was fixed in terms of Orissa Revised Scale of Pay Rules, 1998 and Orissa Revised Scale of Pay Rules, 2008 respectively. The petitioner made several representations, but the same could not be considered. 2.3 Though this Court directed, vide order dated 22.01.2003 passed in OJC No. 10321 of 1996, to conclude the departmental proceedings by the end of the year, 2003, but the same has not been concluded and in the meantime more than 10 years have elapsed and, as such, the petitioner has already superannuated from service w.e.f. 31.12.2011. 2.3 Though this Court directed, vide order dated 22.01.2003 passed in OJC No. 10321 of 1996, to conclude the departmental proceedings by the end of the year, 2003, but the same has not been concluded and in the meantime more than 10 years have elapsed and, as such, the petitioner has already superannuated from service w.e.f. 31.12.2011. More so, in the criminal case, which was instituted against him on the identical facts, the petitioner has already been acquitted, but till date in the departmental proceedings no charge sheet has been served on the petitioner nor the enquiry commenced as yet. Thereby, the petitioner is continuing in agony since 1994, despite having been acquitted by the criminal court in the year 2011. Hence this application. 3. Mr. S.N. Sahoo, learned counsel for the petitioner contended that since there is delay in disposal of the disciplinary proceeding initiated against the petitioner, in which no charge sheet has been submitted as yet, therefore, the so called disciplinary proceeding, which is said to be continuing since more than 18 years, should be dropped/ quashed and the petitioner should be granted the revised scale of pay as per Orissa Revised Scale of Pay Rules, 1998 and Orissa Revised Scale of Pay Rules, 2008 with all annual increments as due and admissible from 1994 onwards. As the petitioner is entitled to get pension, his entire period of service should be regularized for release of the post retirement benefits and for sanction of the pension. To substantiate his contention he has relied upon the judgments in The State of Madhya Pradesh v. Bani Singh, (1990) AIR SC 1308 : 1990 (Supp) SCC 738; State of Andhra Pradesh v. N. Radhakishan, (1998) AIR SC 1833 : (1998) 4 SCC 154 ; P.V. Mahadevan v. M.D., Tamil Nadu Housing Board, (2006) AIR SC 207 : (2005) 6 SCC 636 ; G.M. Tank v. State of Gujarat, (2006) AIR SC 2129; UCO Bank v. Rajinder Lal Capoor, (2007) AIR SC 2129; Prabodh Chandra Paikray v. Orissa State Electricity Board (deleted) Grid Corporation of Orissa Ltd., (2016) 2 ILR(Cut) 188; and Bhimsen Routa v. State of Orissa,2018 2 ILR(Cut) 753. 4. Mr. A.K. Mishra, learned Addl. 4. Mr. A.K. Mishra, learned Addl. Government Advocate appearing for the State opposite parties contended that since opposite party no.3 has initiated disciplinary proceedings against the petitioner and in compliance of the direction given by this Court dated 22.01.2003 in OJC No. 10321 of 1996 the disciplinary proceedings against the petitioner should have been concluded as expeditiously as possible, preferably by the end of the year, 2003. Admittedly, the same has not been concluded and even no chargesheet has been submitted against the petitioner concerned and in the meantime the petitioner has also retired from service on 31.12.2011. Therefore, there is delay in conclusion of the disciplinary proceedings initiated against the petitioner, to which this opposite party has no role to play. 5. Pursuant to the notice issued by this Court on 10.12.2013, the opposite party no.3 entered appearance through its counsel Mr. D.P. Das and Associates, but none is present at the time of call nor any counter affidavit has been filed on its behalf. Since it is a matter of 2013 and the petitioner is suffering mental agony from 1994, this Court did not feel inclined to grant any further adjournment and proceeded to decide the matter on the basis of the materials available on record and applying doctrine of non-traverse against opposite party no.3. 6. This Court heard Mr. S.N. Sahoo, learned counsel for the petitioner and Mr. A.K. Mishra, learned Addl. Government Advocate appearing for the State opposite parties, and perused the record. On the basis of the materials available on record and with the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 7. There is no dispute with regard to the facts delineated above. A.K. Mishra, learned Addl. Government Advocate appearing for the State opposite parties, and perused the record. On the basis of the materials available on record and with the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 7. There is no dispute with regard to the facts delineated above. The only consideration which is to be made in this case is whether the disciplinary proceedings initiated against the petitioner, placing him under suspension, pursuant to order dated 04.08.1994, which was subsequently revoked and fresh order of suspension was passed on 19.09.1996, which has also been set aside by order dated 22.01.2003 passed in OJC No. 10321 of 1996 permitting the petitioner to be reinstated in service and directing opposite party no.3 to conclude the proceedings by the end of the year, 2003, which has not yet been concluded nor even charge-sheet filed, but in the criminal case, which was initiated against him for the selfsame facts, he has been acquitted, whether such proceedings can be allowed to continue for indefinite period or not. 8. The question, that delay in conclusion of the disciplinary proceedings is vitiated, no more remains res integra. 9. In the case of Bani Singh (supra), taking into consideration the fact of the said case wherein the irregularities which were the subject matter of enquiry is said to have been taken place in between the year 1975-77 and the authorities have came to know about the said irregularities in the month of April, 1977 but waiting for 12 years the departmental proceeding was initiated and the apex Court have been pleased to take into consideration that there is no satisfactory explanation for inordinate delay in issuing the charge memo and as such the departmental proceeding has been directed to be quashed. 10. In this respect, reference may be made to the judgment rendered by the apex Court in the case of Abdul Reheman Antulay v. V. R. S. Nayak, (1992) AIR (SC) 1701 wherein it has been held that right to speedy trial of an accused if infringed the departmental or judicial proceeding shall be quashed. 11. In the case of State of Andhra Pradesh v. N. Radhakrishna mentioned supra, wherein at paragraphs 19 and 20 it has been held as follows: "19. 11. In the case of State of Andhra Pradesh v. N. Radhakrishna mentioned supra, wherein at paragraphs 19 and 20 it has been held as follows: "19. It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to b e examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all relevant factors and to balance and weight them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. if the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse consideration." 20. In the present case we find that without any reference to records merely on the report of the Director General, Anti-Corruption Bureau, charges were framed against the respondent and ten others, and all in verbatim and without particularizing the role played by each of the officers charged. Ultimately, the court is to balance these two diverse consideration." 20. In the present case we find that without any reference to records merely on the report of the Director General, Anti-Corruption Bureau, charges were framed against the respondent and ten others, and all in verbatim and without particularizing the role played by each of the officers charged. There were four charges against the respondent. With three of them he was not concerned. He offered explanation regarding the fourth charge but the disciplinary authority did not examine the same nor did it choose to appoint any inquiry officer even assuming that action was validly being initiated under 1991 Rules. There is no explanation whatsoever for delay in concluding the inquiry proceedings all these years. The case depended on records of the Department only and Director General, Anti- Corruption Bureau had pointed out that no witnesses had been examined before he gave his report. The Inquiry Officers, who had been appointed one after the other, had just to examine the records to see if the alleged deviations and constructions were illegal and unauthorised and then as to who was responsible for condoning or approving the same against the bye-laws. It is nobody's case that respondent at any stage tried to obstruct or delay the inquiry proceedings. The Tribunal rightly did not accept the explanations of the State as to why delay occurred. In fact there was hardly any explanation worth consideration. In the circumstances the Tribunal was justified in quashing the charge memo dated July 31, 1995 and directing the State to promote the respondent as per recommendation of the DPC ignoring memos dated October 27, 1995 and June 1, 1996. The Tribunal rightly did not quash these two later memos." This settled proposition has again been reiterated by the apex Court in the case of P.V. Mahadevan (supra). In these two judgments facts related are with respect to delay in conclusion of departmental proceeding and Hon'ble Apex Court after taking into consideration the facts of those cases have been pleased to lay down a proposition of law that if there is inordinate delay in conclusion of departmental proceeding and the delay is not attributable to the delinquent employee, then the departmental proceeding has to be quashed, but if the delay in conclusion of departmental proceeding is attributable to the delinquent employee the departmental proceeding will not be vitiated. 12. 12. In the case of Food Corporation of India and Another v. V.P. Bhatia, (1998) 9 SCC 131 it has been held that undue delay in initiation of departmental proceeding may cause prejudice to the employee concerned in defending himself and, there, the courts insist that departmental proceeding should be initiated with promptitude and should be completed expeditiously. The question as to whether there is undue delay in initiation of disciplinary proceedings or whether they are being unnecessarily prolonged has to be considered in the light of the facts of the particular case. 13. Referring to the judgments noted above, a coordinate Bench of this Court in Pravod Ch. Paikray (supra) and also this Court in Bhimsen Routa (supra) have quashed the departmental proceedings on the ground of delay in their initiation. 14. In the case of G.M. Tank (supra), the apex Court held that departmental inquiry and criminal proceedings based on identical and similar set of facts and evidence if the delinquent employee is honourably acquitted in a criminal case, the findings to contrary recorded in the departmental proceedings are unfair or oppressive. The fact remains, in this case till date the departmental proceeding has not been initiated by framing charge. As such, no delay can be attributable to the petitioner. Therefore, this case is distinguishable to the extent that the departmental proceeding is pending long since, though the petitioner has been acquitted in the criminal case on the selfsame facts. 15. In the case of Rajindra Lal Capoor (supra), the apex Court, taking into consideration Section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 and Regulation 20(3) of UCO Bank Officer Employees' Service Regulations, 1979, held that the disciplinary proceedings against the retired officers cannot be initiated they can only be continued under Regulation 20. But, admittedly, in the present case, though the petitioner has been retired from service on 31.12.2011 and till date no charge-sheet has been submitted in a disciplinary proceeding, though on the selfsame facts the petitioner has been acquitted in the criminal case on 31.01.2011, the disciplinary proceeding cannot be allowed to continue against the petitioner. 16. But, admittedly, in the present case, though the petitioner has been retired from service on 31.12.2011 and till date no charge-sheet has been submitted in a disciplinary proceeding, though on the selfsame facts the petitioner has been acquitted in the criminal case on 31.01.2011, the disciplinary proceeding cannot be allowed to continue against the petitioner. 16. Taking into consideration the propositions of law laid down by the apex Court as discussed above, this Court is of the considered view that even though the petitioner was initially placed under suspension on 04.08.1994 and was reinstated in service on 12.06.1996, but again he was placed under suspension on 19.09.1996 and by virtue of the order dated 22.01.2003 passed in OJC No. 10321 of 1996 the order of suspension was set aside and consequentially he was reinstated in service on 04.02.2003 pending contemplation of the disciplinary proceedings, but till date no charge-sheet has been submitted against the petitioner, though he has been acquitted in the criminal case vide judgment dated 31.01.2011. Therefore, for the delay in initiation of the disciplinary proceedings against the petitioner, which is not attributable to him, the same cannot sustain and is hereby quashed. Consequentially, the opposite parties are directed to fix the scale of pay of the petitioner as per the Orissa Revised Scale of Pay Rules, 1998 and Orissa Revised Scale of Pay Rules, 2008 by granting him annual increments with effect from 1994. The opposite parties are also directed to regularize the services of the petitioner and pay him the arrear differential salary and also consequential post retiral benefits and take necessary steps for sanction of the pension in favour of the petitioner. The entire exercise shall be done within a period of three months from the date of communication of this judgment. 17. The writ application is accordingly allowed. No order to costs.