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2021 DIGILAW 382 (ORI)

Dhiren Kumar Barik v. State Of Odisha

2021-09-01

B.R.SARANGI

body2021
JUDGMENT Dr. B.R. Sarangi, J. - The petitioner, who retired on attaining the age of superannuation as Registrar, Biju Patnaik State Police Academy, Bhubaneswar, has filed this writ petition seeking to quash the disciplinary proceeding initiated against him, pursuant to the charge framed on 13.09.2005 vide Annexure-1 series, on the ground of inordinate delay in its completion. 2. The factual matrix of the case, in brief, is that while the petitioner was working as Inspector, D.H.R.P. Cell, Cuttack, on 29.04.2004, his government quarter was searched on the strength of a search warrant by a team of officers in presence of official witnesses and the properties/documents found during search were seized. It is alleged that during the check period from 1999 to 29.04.2004 the petitioner had purchased certain properties, comprising of both movable and immovable, in his name and in the name of his family members without prior permission/intimation as required under Rule 21 of the Odisha Government Servant Conduct Rules, 1959 and, as such, he had not submitted any property statement, as required under the aforesaid rule. Thereby, he was called upon to show cause on 13.09.2005 by issuing charge, memo of evidence and copies of relevant documents directing to submit explanation by 07.10.2005 as to why disciplinary proceeding shall not be initiated against him. 2.1. The petitioner submitted his reply to the show cause refuting the allegations levelled against him. But on the basis of the instructions issued by the S.P. Hqrs., Cuttack, vide letter dated 13.10.2009, the Director, Biju Patnaik State Police Academy (BPSPA), Bhubaneswar, by its letter dated 19.10.2009, directed the petitioner to submit his preliminary explanation in the disciplinary proceeding drawn up against him for his involvement in Cuttack Vigilance P.S. Case No. 15 of 2004, by 20.10.2009. The copies of the documents cited as exhibits in the memo of evidence were not supplied to the petitioner despite the instruction given by the State Police Headquarter, vide memo dated 06.11.2009. Thereby, the petitioner submitted a representation dated 12.01.2010 before the DG & IG of Police, Odisha with a prayer to drop the disciplinary proceeding against him. 2.2 By letter dated 17.04.2010, the Director, BPSPA, Bhubaneswar supplied the documents as per letter dated 03.04.2010, pursuant to memo dated 06.11.2009, and also directed to submit his preliminary show cause/ explanation. Thereby, the petitioner submitted a representation dated 12.01.2010 before the DG & IG of Police, Odisha with a prayer to drop the disciplinary proceeding against him. 2.2 By letter dated 17.04.2010, the Director, BPSPA, Bhubaneswar supplied the documents as per letter dated 03.04.2010, pursuant to memo dated 06.11.2009, and also directed to submit his preliminary show cause/ explanation. The petitioner submitted his preliminary explanation on 10.05.2010 in connection with the disciplinary proceeding initiated against him in connection with Cuttack Vigilance P.S. Case No. 15 dated 07.05.2004 registered under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988. The authority, having not been satisfied with such explanation, entrusted the enquiry of the disciplinary proceeding to Smt. Rekha Lohani, IPS, the Additional Commissioner of Police, Bhubaneswar- Cuttack. After she was deputed to the Ministry of Home Affairs, Government of India, New Delhi, Sri A.N. Sinha, IPS, Commandant, S.O.G., Bhubaneswar was entrusted with the said inquiry and after his transfer, Sri Diptesh Kumar Pattnaik, IPS, DIG of Police, Computer, Bhubaneswar was entrusted with the enquiry in disciplinary proceeding. The petitioner, thereafter, submitted a representation on 24.08.2012 before the DIG & IG of Police, Odisha with a prayer to drop the disciplinary proceeding initiated against him and to consider him for promotion to the higher rank. When his representation was pending, after examination of the prosecution witnesses, the Enquiry Officer, by order dated 28.08.2012, directed the petitioner to submit his written defence or the list of defence witnesses. Pursuant to such order passed by the Enquiry Officer, the petitioner submitted the list of defence witnesses on 01.10.2012, but the disciplinary proceeding has not proceeded ahead till date. In the meantime, the petitioner, while being posted as the Registrar, BPSPA, Bhubanewar, retired on superannuation on 30.04.2020. As the petitioner has already retired from service on 30.04.2020, he claims that the disciplinary proceeding so initiated against him, pursuant to memorandum of charge dated 13.09.2005, may be dropped, as in the meantime more than 15 years have passed. 3. Mr. S.K. Dash, learned counsel for the petitioner contended that the petitioner, having been retired on 30.04.2020, disciplinary proceeding so pending against him w.e.f. 13.09.2005 by framing charges, has become redundant, inasmuch as neither the said enquiry can be conducted anymore under the provisions of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962 nor any punishment can be imposed on him. It is further contended that the proceeding so initiated did not involve any allegation that the petitioner had misappropriated or caused any loss to the State exchequer. The disciplinary proceeding has been initiated against the petitioner only due to institution of Cuttack Vigilance P.S. Case No. 15 dated 07.05.2004. It is further contended that the disciplinary proceeding is liable to be quashed for inordinate delay in its conclusion, inasmuch as not only more than 15 years have passed since its initiation but also it has not been proceeded ahead for almost eight years, since the petitioner submitted the list of defence witnesses, and thereby, the petitioner is grossly prejudiced. To substantiate his contention he has relied upon the judgments in Pratap Kishore Dash vs. High Court of Orissa and Ors., 2009 (Supp-II) OLR 377; Anant R. Kulkarni vs. Y.P. Education Society and Ors., AIR 2013 SC 2098 ; Prabodh Chandra Paikray vs. Orissa State Electricity Board and Ors., 2016 (II) ILR-CUT- 188; Kailash Chandra Sahoo vs. State of Odisha and Ors. 2019 (II) ILR-CUT-121; Sarat Chandra Das vs. Orissa State Warehousing Corporation, 2013 (I) OLR 769 ; and Bhagirathi Jena vs. Board of Directors, O.S.F.C. and Ors. AIR 1999 SC 1841 . 4. Mr. D.K. Mohanty, learned Addl. Standing Counsel for the State contended that merely because the petitioner has retired from service, disciplinary proceeding which was initiated against him while in service cannot be quashed in view of Sub-rule(2) of Rule 7 of Orissa Services (Pensions) Rules, 1992, which provides that such departmental proceedings instituted while the government servant was in service, shall, after his retirement, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the government servant had continued in service. It is further contended that the petitioner having not acted in accordance with Rule-21 of Odisha Government Servants Conduct Rules, 1959, which clearly envisages that no government servant shall except with the previous knowledge of the prescribed authority, acquire or dispose of any movable or immovable property either in his own name or in the name of any member of his family, the departmental proceeding initiated against him cannot be set aside. It is further contended that the Enquiry Officers were appointed from time to time and the last Enquiry Officer was Shri Diptesh Kumar Pattanayak, IPS, the then DIG of Police (Computer), Bhubaneswar and, as such, the proceeding is at prosecution stage and the Enquiry Officer has been instructed, vide D.O. letter dated 31.03.2021 of S.P. Hqrs., Cuttack, to submit its findings. He emphatically urged that in view of Rule 7(2)(a) of the Orissa Civil Services (Pension) Rules, 1992, which prescribes that a departmental proceeding initiated while the government servant was in service, may be continued even after his retirement on superannuation, the claim made by the petitioner to quash the departmental proceeding does not warrant interference of this Court and on that ground the writ petition should be dismissed. 5. This Court heard Mr. S.K. Dash, learned counsel for the petitioner and Mr. D.K. Mohanty, learned Addl. Standing Counsel for State-opposite parties by hybrid mode. Pleadings having been exchanged between the parties and with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 6. On the basis of the factual matrix delineated above, and the rival contentions raised by learned counsel for both the parties, the moot question which involved in this case is whether the disciplinary proceeding initiated against the petitioner while in service can continue after his retirement, when gross delay has been caused to conclude the same. 7. Admittedly, a proceeding was initiated against the petitioner vide Annexure-1 by submitting a charge memo on 13.09.2005 while he was in service. On 19.10.2009, the petitioner was directed to submit his preliminary explanation, pursuant to the instructions issued by the S.P. Hqrs., Cuttack in letter dated 13.10.2009. In compliance of the same, the petitioner submitted his explanation on 10.05.2010. Since no action was taken, the petitioner submitted his representation on 24.08.2012 before the DG & IG of Police, Odisha to drop the proceeding. But the Enquiry Officer, vide order dated 28.08.2012, directed the petitioner to submit his written defence and the list of defence witnesses, pursuant to which the petitioner submitted his list of defence witnesses on 01.10.2012. But, thereafter, the departmental proceeding could not progress further and in the meantime the petitioner superannuated from service on 30.04.2020. 8. But the Enquiry Officer, vide order dated 28.08.2012, directed the petitioner to submit his written defence and the list of defence witnesses, pursuant to which the petitioner submitted his list of defence witnesses on 01.10.2012. But, thereafter, the departmental proceeding could not progress further and in the meantime the petitioner superannuated from service on 30.04.2020. 8. As is evident from the record, the petitioner, while in service and even after retirement, has cooperated with the authorities for conclusion of the proceeding. As such, there is no interim order passed by any Court of law in staying the disciplinary proceeding. More so, with regard to memo of charges submitted in Annexure-1 dated 13.09.2005, the proceeding did not involve any allegation that the petitioner has misappropriated or caused any loss to the State exchequer. But the disciplinary proceeding has been initiated against the petitioner due to initiation of Cuttack Vigilance P.S. Case No. 15 dated 07.05.2004. In the said case, on the allegation of acquisition of disproportionate movable and immovable property, the petitioner is facing a charge under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988, which will be decided by the appropriate forum. 9. In Bhagirathi Jena, mentioned supra, while considering an identical issue under the regulations of the Orissa State Financial Corporation Employees Provident Fund Regulations, 1959, the apex Court held as follows: '4. Learned Senior Counsel for the respondent- Corporation invited our attention to Regulation 17 of the Orissa State Financial Corporation Employees' Provident Fund Regulations, 1959. It reads thus: 'The sum standing to the credit of a subscriber shall become payable on the termination of his/her service or on his/her death, provided that there may if the Board so directs the administrators, be deducted therefrom and paid to the Corporation- (a) any amount due under a liability incurred by the subscriber to the Corporation up to the total amount contributed by the Corporation to his/her account, including the interest credited in respect thereof:' 5. Learned Senior Counsel for the respondents also relied upon clause (3)(c) of Regulation 44 of the Orissa State Financial Corporation Staff Regulations, 1975. Learned Senior Counsel for the respondents also relied upon clause (3)(c) of Regulation 44 of the Orissa State Financial Corporation Staff Regulations, 1975. It reads thus: 'When the employee who has been dismissed, removed or suspended is reinstated, the Board shall consider and make a specific order: (i) Regarding the pay and allowances to be paid to the employee for the period of his absence from duty, and (ii) Whether or not the said period shall be treated as a period on duty.' 6. It will be noticed from the above said regulations that no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of the departmental enquiry after superannuation.' 10. In Anant R. Kulkarni (supra), the apex Court held that relevant service rules will determine whether enquiry can be continued against retired employee. The Court must examine the magnitude of misconduct alleged against the delinquent employee. It is the settled legal proposition that a departmental enquiry can be quashed on the ground of delay provided the charges are not very grave. 11. In Pratap Kishore Dash, mentioned supra, the moot question which fell for consideration by this Court was, whether a departmental proceeding initiated against the petitioner therein, while he was in government service, could be continued and punishment imposed for treating his period of suspension as such, after his retirement from service, in absence of any specific rule to that effect is legally tenable. Considering the same, this Court held that the provisions of the Orissa Civil Services (Pension) Rules, 1992 have no application to the case of the petitioner after his retirement from government service and imposition of punishment, was illegal and without jurisdiction and thereby, quashed the order of punishment imposed by the authority. 12. In Sarat Chandra Das (supra), this Court held that in absence of any specific rule, it would not be permissible to continue the disciplinary proceeding after superannuation, even if the same was initiated during the period of service. While quashing the disciplinary proceeding in its entirety, the Court directed that all retrial benefits should be paid to the petitioner forthwith. 13. In Prabodh Chandra Paikray (supra), this Court held that departmental proceeding was initiated in 1995. The petitioner is in agony of pendency of such proceeding. While quashing the disciplinary proceeding in its entirety, the Court directed that all retrial benefits should be paid to the petitioner forthwith. 13. In Prabodh Chandra Paikray (supra), this Court held that departmental proceeding was initiated in 1995. The petitioner is in agony of pendency of such proceeding. If it is allowed to continue after retirement, petitioner will be prejudiced and by holding so the departmental proceeding was quashed. 14. Applying the above principles, as laid down by the apex Court as well as this Court, to the present context, the disciplinary proceeding against the petitioner has been initiated, as it reveals from memo of charge under Annexure-1 series dated 13.09.2005, only on the basis of his involvement in Cuttack Vigilance P.S. Case No. 15 of 2004 registered under Section 13 (2) read with Section 13 (1) (e) of the Prevention of Corruption Act, 1988 and, as such, such vigilance case is pending since 2004. Whether the petitioner acquired disproportionate property or not, that will be decided by the appropriate forum, while trial in Vigilance Case No. 15 of 2004 will be concluded. If the memorandum of charges in Annexure-1 series dated 13.09.2005 itself indicates that because of pendency of such vigilance case the disciplinary proceeding was initiated against the petitioner and in the meantime fifteen years have passed and the petitioner, on attaining the age of superannuation, has already retired from service on 30.04.2020 and, as such, the petitioner has already submitted his list of defence witnesses on 01.10.2012, but, thereafter, no further progress has been made since last eight years in the departmental proceeding, as a result of which the petitioner has already sustained mental agony due to pendency of such departmental proceeding during his service career and if it is allowed to continue after retirement, the petitioner will again be prejudiced, when for the self same reason a vigilance case is still pending before the appropriate criminal forum. As such, on careful consideration of memorandum of charges and the magnitude of misconduct, which has been alleged against the petitioner, this Court is of the considered view that the same is the subject matter of consideration by the trial Court in Vigilance P.S. Case No. 15 of 2004 registered under Section 13 (2) read with Section 13 (1)(e) of the Prevention of Corruption Act, 1988. As such, there has been inordinate delay in conclusion of disciplinary proceeding, as 15 years have already passed in the meantime, and the petitioner superannuated from service since 30.04.2020. Thereby, there is no valid and justifiable reason for continuance of the disciplinary proceeding after superannuation of the petitioner from service, even if the same was initiated during his service period. 15. Consequentially, this Court is of the considered view that the disciplinary proceeding so initiated against the petitioner, pursuant to memorandum of charges dated 13.09.2005 under Annexure-1 series, cannot sustain in the eye of law on the ground of inordinate delay caused in conclusion of the departmental proceeding against the petitioner, and the same is liable to be quashed and hereby quashed and consequential service benefits, as due and admissible be extended to the petitioner in accordance with law, within a period of three months from the date of communication of this judgment. 16. The writ petition is allowed. No order to costs.