Sujit Narayan Prasad, J. � The writ petition is through the Director of Treasury, State of Odisha assailing the order dated 08.09.1989 passed in O.A. No. 1998 of 1998 whereby and where under the opposite party, applicant before the Tribunal, had been held entitled to get the arrears of salary and allowance for the period from 08.11.1995 up to the date of her retirement in the scale of pay of an Accountant by applying the provision of para 6.2 of office memorandum dated 01.11.1997.
2. The brief fact of the case is that the applicant, opposite party No. 1 here in, was serving as Sr. Clerk in the Special Treasury, Panpos, Rourkela, was proceeded under the provision of Odisha Civil Service (Classification, Control and Appeal) Rules, 1962, (hereinafter referred to as the Rules, 1962) on various charges, the said departmental proceeding was finalized with an order of punishment of recovery of Rs.10,949/-. The opposite party No.l, being aggrieved with the order of punishment, had approached the Tribunal by filing O.A. No. 1500 of 1998, the Tribunal vide order dated 28.10.1998, while allowing the original application, had quashed the order of punishment on the ground that the order of recovery of dues should have been passed by the Government in Finance Department and the Director is not competent to pass an order, when the order of punishment has been quashed the opposite party No. 1 has raised his grievance for grant of financial benefits in view of quashing of the order of punishment.
The tribunal has allowed the application by putting reliance upon the memorandum issued by the General Administration Department dated 01.11.1997 wherein a provision has been made under para 6.2 which provides that in case of complete exoneration, the officer will also be paid arrears of salary and allowances. The State of Orissa being aggrieved with the said order is before this court by way of this writ petition on the ground that the Tribunal has committed error in passing the order by putting reliance upon the provision of para 6.2 of the memorandum dated 01.11.1997.
It has been submitted that in the instant case the provision of para 6.3 of the resolution dated 01.11.197 will be applicable which is to be taken into consideration for grant of financial benefits, but instead of placing reliance upon para 6.3, the order has been passed placing reliance upon para 6.2, hence the order of Tribunal is improper and illegal.
3. learned counsel for opposite party No.l has appeared and has fairly submitted that in the instant case the provision of para 6.3 will be applicable for the reason that there is no complete exoneration in the departmental proceeding, rather the order of punishment has been quashed by the Orissa Administrative Tribunal on technicality and in that situation provision of para 6.3 will be applicable and not para 6.2.
4. We have heard the learned counsels for the parties and perused the documents available oh record.
The fact leading to filing of this case is that a departmental proceeding had been initiated against opposite party No.l, he had been punished with a diction to recover a sum of Rs. 10,000/- and some odd. He has challenged the order before the Orissa Administrative Tribunal in O.A. No. 1500 of 1998, the Tribunal after taking into consideration the fact that the order of punishment since has not been passed by the Government rather by the Director, Treasury who has got no jurisdiction to inflict any punishment, has quashed the punishment. The order passed in O.A. No. 1500 of 98 has not been challenged by the State of Orissa and as such attained its finality. The opposite party No.l had been granted promotion as Accountant with retrospective effect from 08.11.1995, he had retired from service w.e.f. 31.3.98 but without any financial benefit, part of the order of promotion by which the financial benefit has been declined, had been questioned by the opposite party No.l before the Orissa Administrative Tribunal in O.A. No. 1998 of 1998 and the Tribunal vide order dated 08.1.1999 has passed order, referring to the memorandum of General Administration Department dated 01.11.1997, putting reliance upon the provision as contained in para 6.2, has directed the authorities to release the entire financial benefits from 08.11.1995 up to the date of retirement in the scale of pay of an Accountant. The said order has been challenged by the State of Orissa in this writ petition.
The sole question which is to be decided in this case is the applicability of memorandum of General Administration Department dated 1.11.1997 as to whether the provision as contained in para 6.2 will be applicable or para 6.3 and for this purpose the provision of para 6.2 as well as para 6.3 needs to be quoted which is being reproduced herein below :�
''Para 6.2 - In case of complete exoneration, the officer will also be paid arrears of salaries and allowances. In other cases, the question of arrears will be decided by the State Government by taking into consideration all the facts and circumstances of the disciplinary / criminal proceedings, but where the Government denies arrears of salary or a part of it, the reasons for doing so shall be recorded.
para 6.3 In case where, after completion of the disciplinary proceedings an officer has been punished with the following minor penalties, he shall be given promotion considering the findings in the ''sealed cover� from the date his immediate junior has been given promotion and his pay will be notionally fixed in the time scale of the higher grade with effect from that date, but he will not be eligible for any arrear financial benefits for the period for which he has not actually worked in the higher grade post.
1. Fine, 2) Censure, 3) Withholding of increments and 4) Recovery of any pecuniary loss caused.''
We, after going through the relevant provisions, have found that para 6.2 speaks regarding disbursement of financial benefits in case of complete exoneration of the employee from the departmental proceeding while para 6.3 speaks regarding monetary benefit to be fixed notionally if the employee was punished with minor penalties like fine, censure, withholding of increments and recovery of any pecuniary loss caused.
The provision of para 6.2 contains the word ''complete exoneration� which means that if the Inquiring Officer found the charge levelled against a delinquent employee has not proved and if proved and not accepted by the disciplinary authority and in that situation if the delinquent employee is exonerated from the charge, it will be said to be complete exoneration and in that situation if the employee will be granted any promotion with retrospective effect, he will certainly be entitled to get the monetary benefit, i.e. under the principle of ''sealed cover� as has been held by Hon''ble Apex Court in the case of Union of India v. K.V. Jankiraman, reported in AIR 1991 SC 2010.
The provision of para 6.3 contains to fix the monetary benefit notionally in case of imposition of minor punishment like fine, censure, withholding of increments or recovery of any pecuniary loss caused.
Here, in the instant case it is not a case of complete exoneration as because on enquiry the charge has been found to be proved and the punishment of recovery of sum of Rs. 10,949/- had been inflicted by the order passed in this regard by Director, Treasury but however on the ground of competency the order passed by the Director has been quashed on the pretext that the Government is the competent authority to pass order of punishment against the petitioner being the disciplinary authority and as such it cannot be said to be complete exoneration rather the order of punishment has been passed on the ground of having no jurisdiction upon the authority who has passed the order of punishment, as such the provision as contained in para 6.2 will not be applicable since it is not a case of complete exoneration.
We are of the considered view that the minor punishment had been inflicted upon the opposite party No.1, i.e. for recovery of a sum of Rs. 10,949/- which is a minor punishment and since the order of punishment has been quashed on technicality, the provision as contained in para 6.3 will be applicable, hence the opposite party No.l will not be entitled for actual monetary benefit from the date of retrospective promotion, i.e. w.e.f. 08.11.1995, rather he will be entitled to notional benefit without any monetary benefit w.e.f. 08.11.1995 for the purpose of consequential benefits.
The tribunal, without appreciating this aspect of the matter, as has been discussed by us herein above, has passed the order, hence the same is not sustainable, accordingly we quash the order whereby and where under the tribunal has passed the order making the opposite party No.l entitled to get the arrears of salary and allowances for the period from 08.11.1995 in terms of para 6.2 of the office memorandum dated 01.11.1997 and the same is being replaced holding the opposite party No. 1 entitled to get the notional benefits of retrospective promotion given w.e.f. 08.11.1995 for the purpose of consequential benefits in view of the provision made in the office memorandum dated 01.11.1997 as per clause-6.3.
5. At this juncture it has been submitted by the learned counsel for opposite party No. 1 that the opposite party No. 1 is still getting provisional pension, if that is so, the State authority is directed to finalize the pension by counting the period from 08.11.1995 till the date of superannuation by fixing the pay scale notionally and disburse the arrears of difference of pensionary benefits within a period of 8 weeks from the date of receipt of copy of this order.
6. The writ petition is disposed of on the basis of observation and direction made herein above.
