Delay in initiating disciplinary proceedings and the impact of delay on the fairness of the recovery and punishment.

JUDGMENT

V. Narasingh, J. - At the outset, learned counsel for the Petitioner submits that inadvertently in the prayer portion, instead of Annexure-2, Annexure-1 has been mentioned.

2. On the submission, he is permitted to make necessary correction in Court today.

3. Heard Mr. S.P. Jena, learned counsel for the Petitioner and Mr. P.R.J. Dash, learned counsel appearing for the Orissa Forest Development Corporation Ltd. (hereinafter referred to as 'OFDC', for convenience).

4. The Petitioner, who was working as Deputy Sub- Divisional Manager, OFDC retired since 2019, has assailed the order passed by the disciplinary authority dated 12.1.11 at Annexure-2 directing recovery of an amount of Rs.1,08,258/- and stoppage of one annual increment with cumulative effect and of the appellate authority reducing the amount to Rs.72,172/- and directing for stoppage of one annual increment without cumulative effect at Annexure-5.

5. It is the case of the Petitioner that while he was working as Sectional Supervisor and in charge of Sub-Divisional Manager Ghatagaon Sub-Division, he was proceeded against in the disciplinary proceeding at Annexure-1 for several irregularities causing financial loss to the OFDC. For convenience of ready reference, the relevant portion of the memorandum of charges is extracted hereunder:

'1. Shortage of 60,625 nos. standing trees in 2 nos. commercial plantations, the working cost of which comes to Rs.2,16,517/- (rupees two lakh sixteen thousand five hundred seventeen) only loss sustained to O.F.D.C. Ltd.

2. Negligence in duty.

3. Hiding of the fact.

4. Dishonesty.'

6. It is stated by the learned counsel for the Petitioner that after receiving the memorandum of charges, the Petitioner submitted his explanation, but without considering the same, the disciplinary authority mechanically passed the order as adverted to above at Annexure-2 against which he preferred an appeal, which was rejected in a cavalier manner by the impugned order at Annexure-5.

7. Since the facts are not in dispute, this Court is refraining from referring to the same. The principal ground of challenge to the departmental proceeding is delay in initiation thereof and it is also submitted with vehemence that since the Petitioner in due discharge of his official duties was regularly submitting his monthly progress report, which was never objected to, it is not open to the authorities to start a disciplinary proceeding after delay of about 5 years and to fortify his stand regarding delay, learned counsel for the Petitioner relies on the judgment of the apex Court in the case of P.V. Mahadevan vrs. Md. T.N. Housing Board, reported in (2005) 6 SCC 636.

8. Per contra, learned counsel appearing for the OFDC, Mr. Dash, submits that the authorities in obedience to the earlier order passed by this Court dated 29.08.2011 in WP(C) No.20825 of 2011 directing for disposal of appeal on an objective assessment not only reduced the recovery confining to 1/3rd of the total loss to the tune of Rs.72,172/- but also modified the direction relating to stoppage of one annual increment without cumulative effect.

9. It is the submission of the learned counsel for the OFDC that since there is no irregularity in the decision making process, this Court in exercise of the power under Article 226 of the Constitution of India cannot sit as an appellate authority and in this context, he relies on the judgment of the apex Court in the case of B.C. Chaturvedi vrs. Union of India and others reported in (1995) 6 SCC 749 more particularly para-12 thereof is quoted hereunder:

'12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determin