Sangram Kumar Nayak Vs State of Odisha

3. The present Writ Petition has been filed inter alia challenging the order issued by the Government-Opposite Party No.2 under Annexure-8. Vide the said order, Petitioner was imposed with the punishment of 5 % cut in pension for 3(three) years and recovery of Rs.11,44,265.00 from the pension / gratuity.

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4. Learned counsel appearing for the Petitioner while assailing the impugned order dtd.27.10.2021, contended that while in service, Petitioner was proceeded with in a proceeding vide Memorandum dtd.09.12.2016 under Annexure-1. In the said proceeding, Petitioner not only participated but also participated in the enquiry and the enquiry officer after

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completion of the enquiry submitted the report with the following findings:-

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It is a fact that the Sub-jail, Malkangiri is heavily populated Jall. Being Jailor-Cum-Superintendent, he has to strive hard for smooth running of the jail administration. He has rectified most of his wrong accounting. Previously P.D.S rice was being supplied to Jails. Abruptly the same was stopped. So, the rice cost suddenly swelled-up. However, he has exceeded the diet cost fixed by Government He appears to have imperfect knowledge in accounts matter. So, he has committed some financial impropriety. However, the shortage of stock and excess payment to contractor have been recovered and accounted for. Hence, lenient view may be taken against him”.

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4.1 . It is contented that after receipt of the enquiry report, Petitioner was issued with the 1^st show cause and Petitioner while submitting the reply, accepted the finding of the enquiry officer. However, as provided under Rule-15(10)(i)(b) of the OCS (CCA) Rules, 1962 (in short’ Rules’) and without giving a disagreement note, Opposite Party No.2 issued the 2^nd show cause on 08.10.2020 under Annexure-4, by proposing the punishment of reduction in rank to the post of Asst. Jailor.

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4.2 . Even though Petitioner submitted a reply to the 2nd show cause on 23.10.2020 under Annexure-5, but in the meantime Petitioner was given premature retirement vide order dtd.05.01.2021 under Annexure-6 which is the subject matter of challenge in connected W.P.(C) No.10427 of 2021.

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4.3 . It is contended that after giving premature retirement to the Petitioner vide order dtd.05.01.2021 and by converting the proceeding to a proceeding under Rule-7 of the OCS (Pension) Rules, 1992, (in short 1992 Rules), the impugned order of punishment was passed vide order dtd.27.02.2021 under Annexure-8.

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4.4. It is contended that after conversion of the proceeding to a proceeding under Rule-7 of the 1992 Rules since punishment prescribed under Rule-13 of the Rules is not permissible to be imposed, Petitioner should have been issued with a 2^nd show cause by proposing the punishment afresh. Since Petitioner was never issued with the 2^nd show cause after conversion of the proceeding under Rule-7 of 1992 Rules, the punishment imposed vide the impugned order dtd.27.02.2021 is not sustainable in the eye of law. It is accordingly contended that the impugned order of punishment requires interference of this Court.

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4.5 . However, it is fairly contended that since during pendency of the writ petition, Petitioner has attained the age of superannuation on 28.02.2024, Opposite Party No.2 be directed to issue a fresh show cause in terms of the provisions contained under Rule-7 of the 1992 Rules, and decide the proceeding in accordance with law.

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5. Learned Addl. Standing Counsel for the State basing on the stand taken in the counter affidavit on the other hand contended that, Petitioner in the proceeding in question after issuance of the 2^nd show cause on 08.10.2020, since was given premature retirement vide order dtd.05.01.2021 under Annexure-6, by treating the Petitioner as a retired employee, the proceeding initiated vide Memorandum dtd.09.12.2016 was converted to a proceeding under Rule-7 of the 1992 Rules. Since penalty prescribed under Rule-13 of the OCS (CCA) Rules, 1962 cannot be imposed against a retired employee, after such conversion of the proceeding under Rule7, the order of punishment was passed by Opposite Party No.2

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on 27.02.2021 under Annexure-8. The stand taken in Para-9

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of the counter affidavit reads as follows:-

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“9. That in reply to the averments made in para-11 of the writ petition, it is humbly submitted that while the matter stood thus, the petitioner was retired from Government service with effect from 5.01.2021 by the State Government in exercise of the powers conferred under of Rule-71(a) of the Odisha Service Code for completing 30 years of qualifying service. As mentioned herein before, this order of the State Government has been challenged by the petitioner in a separate writ petition and the State Opp. Parties have already filed their counter thereto. As provided in Rule-7 (2)(a) of the Odisha Civil Service(Pension) Rules, 1992, such departmental proceedings, which was instituted while the Government servant was in service; shall, after the final retirement of the Government servant, be deemed to be a proceedings 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 findings to the Government. In accordance with the aforesaid provision of rule; the Home Department was moved vide letter No. 17544 dated 30.09.2021 of the Prisons Directorate, Odisha for imposition of the following penalty on the charged officer/ petitioner for the proven charges against him in the aforesaid disciplinary proceeding.

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1. 5% cut in pension for 3(three) years.

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2. Recovery of Rs. 11,44,265.00 from the pension/ gratuity of the petitioner towards pecuniary loss to Government caused due to negligence on the part Jailor of the petitioner while the petitioner was serving as Superintendent of Malkangiri Sub Jail.

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The Home Department as the competent authority had vide their letter No. 37215 dated 25.10.2021 intimated that after careful consideration Government had been pleased to impose the following punishment on the Charged Officer/ petitioner.

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1. 5% cut in pension for 3(three) years.

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2. Recovery of Rs. 11,44,265.00 from the pension/ gratuity of Shri Nayak/petitioner/charged officer.

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The Home Department further instructed to issue show-cause notice accordingly to the charged officer/ petitioner and furnish his statement of defence and form of reference.

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Copy of letter No. 17544 dated 30.09.2021 of the Prisons Directorate, Odisha and Home Department letter No. 37215 dated 25.10.2021, respectively are annexed herewith as Annexure-G/2 & H/2 for kind perusal of the Hon'ble Court.

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According to the aforesaid instructions of the Home Department, show-cause notice on the proposed punishment was issued vide the Prisons Directorate, Odisha office order No. 18810 dated 27.10.2021; directing therein the petitioner to show-cause as to why this punishment should not be imposed on him and he was given 15 days’ time for submitting his reply thereto. He did not submit any reply however and the Home Department have been moved vide letter No. 22112 dated 20.12.2021 for concurrence of the Odisha Public Service Commission under Pension Rules of 1992 to impose such punishment.”

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5.1 . It is accordingly contended that since by the time the impugned order was passed, Petitioner had already made to retire prematurely vide order dtd.05.01.2021, instead of imposing the punishment of reduction in rank, punishment prescribed under Rule-7 was imposed on the Petitioner. It is accordingly contended that no interference is called for with the impugned order.

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6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court taking into account the fact that the order of premature retirement which was the subject the matter of challenge has been set aside by this Court in its order passed today in W.P.(C) No.10427 of 2021, it is of the view of this Court that during pendency of the proceeding, since the Petitioner attained the age of superannuation on 28.02.2024, a fresh 2^nd show cause with the proposed punishment is required to be issued to the Petitioner.

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6.1 . Therefore, this Court is inclined to quash order dtd.27.10.2021 so passed by Opposite Party No.2 under Annexure-8. While quashing the said order, this Court directs

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Opposite Party No.2 to issue a fresh 2^nd show cause by proposing the punishment in terms of the provisions contained under Rule-7 of the OCS (Pension) Rules, 1992 and dispose of the proceeding in accordance with law, as expeditiously as possible, preferably by the end of March, 2026.

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7. Accordingly, the Writ Petition stands disposed of.

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(Biraja Prasanna Satapathy) Judge

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Subrat

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Signature Not Verified

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Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CU TTACK Date: 27-Sep-2025 12:51:06

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Sangram Kumar Nayak v. State of Odisha

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Sangram Kumar Nayak v. State of Odisha

Case brief

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