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2016 Supreme(Ori) 578
IN THE HIGH COURT OF ORISSA, CUTTACK
INDRAJIT MAHANTY & D.P. CHOUDHURY, JJ.
Union of India & Others – Petitioners
Versus
Prasanna Kumar Tripathy – Opposite Party
W.P. (C) Nos. 15428 of 2013 & 8853 of 2014
Decided On : 12-09-2016
For the Petitioners: Mr. A.K. Bose and Mr. Bimbisar Dash.
Headnote:1. CENTRAL ADMINISTRATIVE TRIBUNAL (PROCEDURE) RULES, 1987 - Rule 17 - Review - It is not required in law to take the consent of the previous Government lawyer who was conducting the case to give consent for review application since the panel lawyer of the Central Government has to file case on behalf of Union of India - In a case filed by the State or the Union of India any lawyer from the panel can defend the State Government or Union of India as the case may be so that the interest of the concerned Government will be well protected -Further stated.
Of course in respect of private party separate Vakalatnama is required if a lawyer other than the lawyer in the previous proceeding is no more interested to file a review application but the consent in the review application is not necessary from the previous Advocate because the Vakalatnama being a contract between the lawyer and the client continues till termination of the proceeding. Since the previous proceeding has already ended and review application is a fresh application to review the earlier order, the consent as required by the Tribunal was not in accordance with law or the practice or the precedent.
2. DISCIPLINARY PROCEEDING - Court should not enter to the result of the disciplinary proceeding but can pursue to find out any manner or the procedure of departmental proceeding is violative of natural justice or against the provisions of law.
JUDGMENT :
D.P. CHOUDHURY, J.
1. Challenge has been made in this case to the order dated 15.5.2013 passed by the learned Central Administrative Tribunal, Cuttack Bench, Cuttack (hereinafter called “the Tribunal”) in R.A. No. 3 of 2013 in W.P.(C) No. 15428 of 2013. Similarly challenge has been made to the order dated 30.1.2014 passed by the learned Tribunal in O.A. No. 369 of 2012 in W.P. (C) No. 8853 of 2014. Since both the writ petitions arise out of the disciplinary proceeding against the present opposite party and heard analogously, the same are disposed of by the common judgment.
FACTS
2. The factual matrix leading to the present cases is that the opposite party was working as Postal Assistant (P.A.) under petitioner no. 4 during the period from 2.6.1997 to 4.3.2001. At that time he was managing both the duties of Postal Assistant (P.A.) and Sub-Postmaster of Dhenkanal R.S. During such incumbency there was allegation of fraudulent withdrawal of money amounting to Rs.6,000/- from the R.D. Pass Book Account No. 76719 on 20.2.2001, Rs.3,000/- from R.D. Pass Book Account No. 76807 on 12.2.2001, Rs.4,000/- from R.D. Pass Book Account No. 76926 on 12.2.2001, Rs.3,000/- from R.D. Pass Book Account No. 76964 on 12.2.2001 and Rs.2,500/- from R.D. Pass Book Account No. 76927 on 17.2.2001 by the opposite party without knowledge of the depositors. As such, the opposite party found to have committed gross misconduct by violating the provisions contained in Rule 94 (ii), Rule 113 (4) read with Rule 33(1)(2)(3) and (5) of Post Office S.B. Manual Volume-I. It is alleged by the petitioners that for the above misconduct the opposite party was charge-sheeted by Superintendent, Post Office, Dhenkanal Division, Dhenkanal by Memo No. F4-1/2003-2004 dated 10.6.2005 under Rule 14 of CCS (CC&A.) Rules, 1965. The charge-sheet was sent to the opposite party in his home address but such charge-sheet returned back to petitioner no. 4 with remark ‘refused’. Since there was refusal, the authorities proceeded under the provisions of Rule 63 of Postal Manual Volume-III. The enquiry was started by appointing Enquiring Officer. The copy of memo of appointment of the Enquiring Officer was sent vide Dhenkanal Head Office to the opposite party and said registered letter also could not be delivered at Talcher and returned back on 12.8.2005 with remark “Not Found.” Again letter was sent to the opposite party to his home address vide registered letter dated 17.8.2005 but again same was returned back with remark ‘refused.’
3. It is alleged inter-alia that the opposite party during the period from 2.6.1997 to 4.3.2001 has committed permanent fraud of Rs.2,39,279/- and temporary fraud of Rs.57,550/- in 164 R.D. Accounts and has made withdrawal of R.D. transactions in eleven number of cases without reflecting the relevant transactions in the relevant R.D. Pass Books. On 5.3.2003 the opposite party was placed under suspension and charge-sheeted under Rule 14 of CCS (CC & A) Rules, 1965 vide Memo No. F4-3/2002-03 dated 15.3.2004 for his misconduct at Dhenkanal Head Post Office. The Enquiring Officer issued notice to the opposite party on 30.9.2004 to attend the enquiry. Challenging same, the opposite party filed O.A. No. 870 of 2004 before the Tribunal on the ground that since on self-same allegation criminal case is pending, the petitioners should not be proceeded with the disciplinary proceeding till completion of the criminal case.
4. Be it stated that when the charge-sheet and memo of appointment of Enquiring Officer in F4-1/2003-04 was received undelivered the Enquiring Officer held the enquiry ex-parte as per the Postal and Telegraph Manual Volume-III and submitted report on 16.8.2006. The copy of the enquiry report of the Enquiring Officer was sent to opposite party vide registered dated 22.8.2006 in his headquarter address and another copy was sent in his home address. But both the registered letters returned with remark ‘refused’. Thereafter the authority passed ord
