JUDGEMENT
DR.B.R.SARANGI,J. -
(1.)The petitioner, who is working as Assistant Project Director (Finance) under the District Rural Development Agency, Puri, has filed this writ application seeking to quash the order dtd. 15/9/2018 under Annexure-8, on the ground that the same has been passed in gross violation of the principle of natural justice as well as Rule-15 (10)(i)(a) and Rule 16 (b) of the Orissa Civil Service (Classification Control and Appeal) Rules, 1962.
(2.)The factual matrix of the case, in brief, is that the District Rural Development Agency (DRDA) is a Society registered under the Societies Registration Act, and is being financed by the State Government and Central Government. DRDA is visualized as a specialized and professional agency capable of managing the anti poverty programme of the Government and to watch over and ensure effective utilization of funds intended for anti poverty programme in different districts. DRDA in every district of the State functions under the administrative control of the Panchyati Raj and Drinking Water Department. Due to creation of posts of Assistant Project Director (Finance) in DRDA by the Government in Panchyati Raj Department in the year 1996, an advertisement was published for filling up of the said post under DRDA, Dhenkanal. Pursuant thereto, the petitioner applied for and he was duly selected and appointed by the order of the Collector and Chairman. Accordingly, he joined in his duty and while he was so continuing, one post of Assistant Project Director (Finance) fallen vacant under Puri DRDA. Thereby the petitioner made a representation before opposite party no.1 for his transfer to Puri DRDA under Regulation 15 of The Odisha District Rural Development Agency Employees (Recruitment and Conditions of Service) Regulation, 1989, with a condition that he will forgo his seniority since the post in question is a district cadre. Accordingly, vide order dtd. 6/11/2002, he was appointed as Assistant Project Director (Finance) in the DRDA Puri with a stipulation that in the cadre the seniority of the petitioner will be counted from the date of joining in the DRDA, Puri as Assistant Project Director (Finance). Pursuant to such order, he joined in the said post and during his continuance, the petitioner along with similarly situated persons approached this Court by filing W.P.(C) No.32335 of 2011 with a prayer to create promotional avenues for them and to grant higher scale of pay at par with Class-I (Junior Branch) of the State Government. But thereafter, he was transferred from Puri to Sambalpur DRDA in gross violation of the provisions contained in DRDA Service Regulation vide order dtd. 16/2/2015, which was challenged before this Court in W.P.(C) No. 2955 of 2015. After due adjudication, vide order dtd. 6/8/2015, the order of transfer dtd. 16/2/2015 was quashed, as the same was passed without complying the provisions contained in Rule-15 of the DRDA Regulation, 1989. Consequentially, the petitioner was allowed to continue where he was posted earlier, i.e. at Puri, vide order dtd. 1/10/2015.
2.1 While he was continuing at Sambalpur as Assistant Project Director (Finance), on 7/7/2015 one memorandum of charge was issued to him by the Collector, Puri, opposite party no.2 with regard to gross negligence in Government duty, misappropriation of government money, disregard to the order of the higher authority and for violation of the conduct rules. On receipt of such memorandum, the petitioner submitted his reply denying all the charges, since same are vague and without any basis. Again, on self-same ground another additional memorandum of charge was issued to the petitioner on 24/8/2015, to which the petitioner also filed his reply denying all the charges. But from the date of joining on 9/12/2015 at Puri, he was placed under suspension by opposite party no.2 on the ground of serious financial irregularities committed by the petitioner without any audit report.
2.2 Consequent upon the memorandum of charge filed against the petitioner and reply submitted by him, the ADM, Nabakalebar was appointed as the inquiry officer to enquire into the charges and the Additional P.D (Admn), DRDA, Puri was nominated as the Marshalling Officer to produce the evidence before the inquiry officer. But subsequently, the Secretary, P.K.D.A., Puri was appointed from 29/2/2016 as the inquiry officer, who had submitted his enquiry report indicating that the charges are unsubstantiated and there was no misappropriation of money of the department and suggested that the delinquent officer should be reinstated in service and posted to a DRDA other than the DRDA, Puri and the period of suspension be treated as leave and that the pay perks and other entitlement be released, and that apart he will not lose his seniority and will be given a fitment which the petitioner so deserves. In the said enquiry report, it was also stated that additional charges framed will be taken up for enquiry by his successor. On the basis of the self- same allegation, additional memorandum of charge was submitted on 24/8/2015 under Rule-15 of the OCS (CCA) Rules, 1962 for the irregularities and misconduct committed by the petitioner during his incumbency as APD (Finance), Puri in the said office in continuation of the charges drawn on 7/7/2015.
The petitioner submitted his reply denying all the charges level against him. The inquiry officer submitted his report with regard to additional charges, where charge Nos. 1, 2, 3 (with regard to misappropriation of facts), 5, 6, 7, 9 and 10 were not established and Charge Nos. 3 (with regard to negligence in duty), 4 and 8 were established.
Therefore, the inquiry officer suggested for punishment for the charge Nos. 3, 4 and 8 for stoppage of one increment, which may be withheld without cumulative effect as per Rule-13 (iii) and Rule 15 of the OCS (CCA), Rules, 1962. Opposite party no.2, being the disciplinary authority, issued a show cause notice on 8/8/2018 to the petitioner in contemplation of imposing punishment on the basis of findings of the inquiry officer that one increment be stopped without cumulative effect, the delinquent officer be reinstated in service and be posted to any DRDA other than DRDA, Puri and suspension period be treated as due on leave as admissible under the rules. The petitioner was called upon to show cause on the findings of the inquiry officer on the charges, as required under Rule-13 (iii) and Rule 15 of the OCS (CCA) Rules, 1962, within 15 days from the date of receipt of the show cause notice. It was clearly indicated therein that if no reply is received within the stipulated period, it will be presumed that the petitioner has no reply to offer anything and the matter will be decided on its own merit. After receipt of the 2nd show cause notice under Annexure-6 on 16/8/2018, the petitioner submitted a detailed and exhaustive reply on 21/8/2018 which was received on 24/8/2018 by the opposite party no.2 as per the postal tracking report, i.e. within the stipulated time.
Without considering the same in its proper perspective, on the strength of the enquiry report submitted on the additional charges, the opposite party no.2 passed the final order confirming the proposed punishment submitted by the inquiry officer, i.e. stoppage of one increment without any cumulative effect, the petitioner be posted to any DRDA other than DRDA, Puri and the period of suspension be treated as leave due and admissible.
(3.)Challenging such order of punishment dtd. 15/9/2018, the petitioner approached this Court by filing W.P.(C) No. 17977 of 2018 seeking to quash the order of punishment, which was disposed of vide order dtd. 3/12/2018 with a direction to file appeal before the appellate authority, which would be disposed of within six months from the date of receipt of the appeal. In compliance of the order dtd. 3/12/2018, the petitioner preferred an appeal on 18/12/2018 before opposite party no.1, but the same was refused to be entertained on the ground that the appeal provision is not available for the post held by the petitioner. Hence this writ petition.