Indrajit Mahanty, J.@mdashThe Petitioner Shri Sarat Chandra Mishra(A) has filed this writ application challenging the order dated 24.8.2006 passed by the Orissa Administrative Tribunal, Bhubaneswar in O.A. No. 2176 of 1989 of 1999, inter alia, on the ground that the departmental proceeding initiated against him after his retirement was not maintainable.
2. From the facts as pleaded in the writ application it appears that the Petitioner retired from service as Addl. Director of Agriculture on 30.11.1998 and thereafter, on 3.12.1998, a charge sheet was issued against the Petitioner under the Orissa Civil Service (CCA) Rules, 1962.
3. It is submitted by Mr. Mishra, learned Counsel for the Petitioner that the said charge is ab initio void and non-est in the eye of law since the OCS (CCA) Rules. 1962 is not applicable to retired employees. It appears that the Petitioner submitted his reply to the charges framed against him on 17.3.1999 raising all such issues and thereafter, on 25.9.1999 an order of amendment to the charge sheet under Annexure-1 was issued purportedly seeking to amend the original charge sheet dated 3.12.1998 by incorporating therein the proposal to take disciplinary action against the Petitioner in pursuance of Rule-15 of the OCS (CCA), Rule, 1962. Learned Counsel for the Petitioner submitted that since the original charge sheet itself was void ab initio, the attempt for amending the same was also not legally permissible.
Mr. Mishra submitted that in essence the allegation made in the charge sheet against the Petitioner pertains to the alleged "lack of supervision on the part of the Petitioner consequently leading to misappropriation by subordinate officers during the years 1989-90. 1993-94 and 1994-95", It is submitted that the alleged attempt to amend the charge sheet on 25.9.1999, was also beyond the period of four years prescribed under Rule-7(2)(b)(ii) of the Orissa Pension Rules, 1992. It is submitted that the period during which it is alleged that the Petitioner "lacked supervision" ended in the year 1994-95 i.e. the financial year ending on 31.3.1995 and therefore, the amendment having been directed on 25.9.1999 being beyond four years from the event, is not permissible in terms of the Pension Rules.
Mr. Mishra, learned Counsel for the Petitioner further submitted that the charge sheet issued to the Petitioner as well as the amendment thereto and the order dismissing the Petitioner''s Original Application by the Orissa Administrative Tribunal ought to be quashed and/or set aside. According to Mr. Mishra, it was on the initiative of the Petitioner, that misappropriation of funds in the Department was detected and the departmental proceedings were also initiated against the persons who had misappropriated Government funds. In this respect learned Counsel for the Petitioner placed reliance on Annexure-5 series to establish that actions have been initiated at the behest of the Petitioner against Sri Arakhita Behera, Agriculture Overseer and the said officer was suspended and a disciplinary proceeding was initiated against him for misappropriation of Government Stock and Cash as well as for disobedience of the orders of superior authorities. The said inquiry report indicates not only that Arakhita Behera was found guilty of such charges, but also takes note of the fact that the entire amount of Government dues have been recovered from Mr. Behera, Agriculture Overseer, Shri B.C. Nayak, J.A.O. and Shri B. Parida, V.A.W.
From the above facts, Mr. Mishra submitted that once the Government money has been recovered from the delinquent officers, there remains no charge against the present Petitioner fro recovery of any amount. Accordingly, he submitted that since there is no charge against the present Petitioner for making any recovery, the proceeding initiated against the Petitioner does not satisfy the recruitment of the provisions of Rule-7(2)(b)(ii) of the Pension Rules. It is further submitted that the self-same inquiry report against Arikhita Behera would also indicate that he was not only found guilty of temporary misappropriation of Government money, but was also found guilty of "disobedience of the orders of the superior authority and has been punished by way of censure. Accordingly he submitted that not only initiation of disciplinary proceeding against the Petitioner was without any authority of law, but recovery of the alleged misappropriated money from the delinquent officers, in course of disciplinary proceedings initiated by the Petitioner, leaves no scope for continuance of such a proceeding against the Petitioner.
4. Mr. Mohapatra, learned Addl. Government Advocate, on the other hand, strenuously supported the impugned order passed by the Tribunal and submitted that the entire defence on behalf of the Petitioner could be presented by him before the Inquiry Officer appointed by the State and it is premature even to consider the submission of the Petitioner for quashing of the proceeding.
5. At this stage, it is relevant to take note of various provisions of law which arise for consideration in the present case. Rule-15 of the O.C.S. (CCA) Rules, 1962 reads as follows:
15. Procedure for imposing penalties- (1) Without prejudice to the provisions of the Public Servant (Inquiry) Act, 1950, no order imposing on a Government servant any of the penalties specified in Clause (vi) to (ix) of Rule 13 shall be passed except after an inquiry held as far as may be in the manner hereinafter provided,
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Therefore, a departmental inquiry in terms of Rule-15 can only be imposed on a Government Servant. The term "Government Servant" has been defined under Rule-2(f) of the 1962 Rules as follows:
2(f). ''Government Servant'' means a person who is a member of a service or who holds a civil post under the State and includes any such person on foreign service or whose service are temporarily placed at the disposal of the Union Government or any other State Government or a local or other authority and also any person in the service of the Union Government or any other State Govt. or a local or other authority whose services are temporarily placed at the disposal of the State Government.
It is further relevant to take note of Rule-7 of the Orissa Civil Service (Pension) Rules, 1992 which reads as follows:
7. Right of Government to withhold or withdraw pension: (1) The Government reserve to themselves the right to withholding a pension or gratuity, or both either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period and of ordering recovery from a pension or gratuity of the whole ''or part of any pecuniary loss caused to the Government, if in any departmental or judicial proceedings, the pensioner found guilty of grave misconduct or negligence in duty during the period of his service including service rendered on re-employment after retirement.
Provided that the Orissa Public Service Commission shall be consulted before the final orders are passed:
Provided further that when a part of pension is withheld/ withdrawn, the amount of such pension shall not be reduced below the amount of minimum limit.
(2)(a) Such departmental proceedings referred to in Sub-rule (1), if instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, 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:
Provided that when the departmental proceedings are instituted by an authority, subordinate to Government that authority shall submit a report recording its finding to the Government.
(b) Such departmental proceedings as referred to in Sub-rule (1) if not instituted while the Government servant was in service, whether before his retirement or during his re-employment-
(i) shall not be instituted save with the sanction of Government;
(ii) shall not be in respect of any event which took place more than four years before such instruction; and
(iii) shall be conducted by such authority and in such place as the Government may, direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service.
(c) No judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution.
(d) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under Clauses (a) and (b), a provisional pension as provided in Rule 66 shall be sanctioned.
(e) Where the Government decide not to withhold or withdraw pension but order recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant.
6. On a conjoint reading of Rule-15 of 1962 Rules and Rule-7 of the Pension Rules, 1992, it is clear that if a departmental proceeding has not been instituted while the Govt. servant was in service, a proceeding can yet be initiated if it satisfies two conditions, namely, (i) sanction of the Government and (ii) in respect of any event which took place within four years before institution of such proceeding.
7. In the present case, it is clear that the Petitioner who retired on 30.11.1998 could not thereafter, be treated as a "Government servant" under Rule-7 of the O.C.S. (CCA.) Rules, 1962. Therefore, the original charge-sheet issued to the Petitioner on 3.12.1998, under Rule-15 of 1962 Rules, is clearly without jurisdiction. An amendment to the charge-sheet was attempted on 25.9.1999 and even though there is scope of argument that the said amendment is permissible, yet, such amendment can only be held to be taken effect on and from the date of issue of such amendment which is 25.9.1999. Therefore, since the Petitioner has been charged with the alleged lack of supervision for the years 1989-90, 1993-94 and 1994-95 which events admittedly took place for more than four years before the date of amendment, in view of Rule 7(2)(b)(ii) the said proceeding against the Petitioner is impermissible in law.
Apart from the aforesaid finding on the question of law as noted hereinabove, from the records of the proceedings and the documents appended to the Original Application, we find that Arakhita Behera, Agriculture Overseer, against whom a disciplinary proceeding has been initiated after his suspension has been found guilty not only for misappropriation of Govt. money but also for "disobedience of orders of superior authority". We also further take note of the fact that the Govt. has already effected recovery of the temporarily misappropriated amount from the concerned officers. Therefore, we fail to understand the purpose of initiation and continuance of disciplinary proceeding against the Petitioner, when no pecuniary loss is caused to the State and in separate disciplinary proceedings, the junior officers have been found guilty of disobedience of orders of superior authority.
8. In the light of the aforesaid findings, the writ application is allowed. The initiation of disciplinary proceeding against the Petitioner by issue of charge sheet dated 3.12.1998 to which amendment was effected on 25.9.1999, is quashed. The impugned order of the Tribunal dated 24.8.2006 is also similarly quashed without any order as to costs.
L. Mohapatra, J.
9. I agree.
