CAPT.GOURI PRASAD BISWAL vs UNION OF INDIA
- Court
- Odisha High Court
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 10710 of 2018
(CNR No. ODHC010339502018)
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
………………
Capt. Gouri Prasad Biswal …. Petitioner
-versus-
Union of India & Ors. …. Opp. Parties
For Petitioner : Mr. B. Routray, Sr. Adv.
For Opp. Parties : Mr. D.R. Bhokta, CGC
Mr. P. Mukherjee, Adv.
PRESENT:
THE HON BLE JUSTICE BIRAJA PRASANNA SATAPATHY
’
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Date of Hearing:18.08.2026 & Date of Judgment: 03.09.2026
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Biraja Prasanna Satapathy, J .
1. Heard learned Counsel appearing for the Parties.
2. The present Writ Petition has been filed inter alia with the following
prayer:-
It is therefore humbly prayed that this Hon'ble Court
may graciously be pleased to admit the case, call for
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the records and after hearing both the parties pass the
following reliefs;
i) To quash the order dtd.31.5.2018 passed by opposite
party no -1 under annexure-5.
ii) To quash the enquiry report under annexure-3.
And pass such other order/orders as may be deemed fit
and proper for the interest of justice.
And for this act of kindness, the petitioner as in duty
bound shall ever pray.
3. It is contended that Petitioner vide order dated 07.11.2007 so issued
by the Govt. of India, Ministry of Shipping, Road Transport and
Highways, Dept. of Shipping (Port wing), was appointed as against the
post of Deputy Conservator, Paradip Port Trust, while continuing as
against the post of Harbour Master in exercise of the power conferred
under section 24(1)(a) of the Major Port Trusts Act, 1963 (in short Act).
4. Learned Senior Counsel appearing for the Petitioner contended that,
Petitioner while so continuing as against the post of Deputy
Conservator in Paradip Port Trust, vide order dated 20.05.2015 under
Annexure-13, he was transferred and posted as such to Cochin Port
Trust.
4.1. It is further contended that Petitioner was so transferred in terms of
the transfer policy for Heads of Department (HOD) Level of Officers in
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Major Port Trust, so issued vide communication dated 04.03.2014
under Annexure-14.
4.2. It is accordingly contended that there is no quarrel that Petitioner
was holding the post of Deputy Conservator, which comes under the
definition of Heads of Department (HOD) Level Officers.
4.3. It is further contended that since Petitioner was transferred to
Cochin Port Trust vide order dated 20.05.2015 under Annexure-13 and
Petitioner was due to retire from service on attaining the age of
superannuation on 28.03.2018, he made a request on 20.11.2017 under
Annexure-15 Series to the Chairman, Cochin Port Trust, to allow him to
draw his pension and other medical benefits from Paradip Port Trust.
Such request made by the Petitioner was forwarded to the Govt. of
India, Ministry of Shipping vide letter dated 20.09.2017. But such a
prayer of the Petitioner was not acceded to.
4.4. It is contended that while continuing on his transfer in Cochin Port
Trust, the proceeding in question was initiated vide memorandum dated
18.10.2016 under Annexure-1 and such a proceeding was initiated by
the Govt. of India, Ministry of shipping with various charges. On
receipt of the proceeding so forwarded vide letter dated 07.11.2016
under Annexure-2 and while filing the written statement of defence, so
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submitted vide letter dated 07.11.2016, Petitioner denied all the
charges.
4.5. Learned Senior Counsel appearing for the Petitioner contended that
during pendency of the proceeding, Petitioner retired from his services
while continuing in Cochin Port Trust on 28.03.2018. It is contended
that since Petitioner was holding a post, which comes under the
definition of Heads of Dept.(in short HOD), after such retirement of the
Petitioner w.e.f. 28.02.2018, no punishment could have been imposed,
so imposed vide the impugned order dated 31.05.2018 under Annexure-
5. Vide the said order Petitioner was imposed with the punishment of
withholding of 20% of the monthly pension for a period of 5 years.
4.6. It is contended that the proceeding under Annexure-1 was initially
initiated in terms of the provisions contained under Regulation 10 of the
Paradip Port Trust Employees (Classification, Control and Appeal)
Regulations, 1967 (in short Regulation) vide memorandum dated
18.10.2016. But taking into account the fact that Petitioner during
pendency of the proceeding retired on 28.02.2018, the proceeding was
required to continue in terms of the provisions contained under Rule 9
of the Central Civil Services (Pension) Rules, 1972 (in short Rules).
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4.7. It is contended that since Petitioner was holding the post, which
comes under the definition of HOD Level Officer, being a holder of such
a post, the proceeding on retirement of the Petitioner though continued in
terms of Rule-9 of the Rules, but without following the provision of the
Rules, impugned order of punishment was passed by Opp. Party No.1
vide his order dated 31.05.2018 under Annexure-5. It is contended that
as provided under Rule-9 of the Rules, without prior approval of the
Union Public Service Commission, no such order of punishment could
be passed. Not only that such an order was required to be passed by
dent of India. Rule 9 of the Rules reads as
order of the Hon’ble Presi
follows:-
9. Right of President to withhold or withdraw
“
pension
[(1) The President reserves to himself the right of
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 is found guilty of grave misconduct or
negligence during the period of service. the
Government, if, in any departmental or judicial
proceedings, the pensioner including service
rendered upon re-employment after retirement:
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Provided that the Union Public Service
Commission shall be consulted before any final
orders are passed:
Provided further that where a part of pension is
withheld or withdrawn, the amount of such
pensions shall not be reduced below the amount of
(Rupees Three thousand five hundred) per
mensem.]
(2) (a) The 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 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 Govern-ment servant had continued in
service:
Provided that where the departmental proceedings
are instituted by an authority subordinate to the
President, that authority shall submit a report
recording its findings to the President.
(b) The departmental proceedings, if not instituted
while the Government servant was in service,
whether before his retirement, or during his re-
employment,-
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(i) shall not be instituted save with the sanction of
the President,
(ii) shall not be in respect of any event which took
place more than four years before such institution,
and
(iii) shall be conducted by such authority and in
such place as the President 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.
(3) 'Deleted.
(4) 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
sub-rule (2), a provisional pension as provided in
Rule 69 shall be sanctioned.
(5) Where the President decides not to withhold or
withdraw pension but orders 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.
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2(5-A) The President may at any time, either on his
own motion or otherwise call for the records of any
inquiry and revise any order made under these
rules, after consultation with the Union Public
Service Commission, and may confirm, modify or
set aside the order; or remit the case to any
authority directing such authority to make such
further enquiry as it may consider proper in the
circumstances of the case; or pass such other
orders as he may deem fit.
Provided that no order enhancing the amount of
the pension or gratuity to be withheld or
withdrawn, shall be made by the President unless
the Government servant concerned has been given
a reasonable opportunity of making a
representation against the order proposed and
except after consultation with the Union Public
Service Commission,
(5-B) The President may at any time, either on his
own motion or otherwise review any order passed
under these rules, where extenuating or special
circumstances exist to warrant such review or
when any new material evidence which could not
be produced or was not available at the time of
passing the order under review and which has the
effect of changing the nature of the case, has come,
or has been brought, to his notice.
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Provided that no order enhancing the amount of
the pension or gratuity to be withheld or
withdrawn, shall be made by the President unless
the Government servant concerned has been given
a reasonable opportunity of making a
representation against the order proposed and
except after consultation with the Union Public
Service Commission. ]
(6) For the purpose of this rule,-
(a) departmental proceedings shall be deemed to
be instituted on the date on which the statement of
charges is issued to the Government servant or
pensioner, or if the Government servant has been
placed under suspension from an earlier date, on
such date; and
(b) judicial proceedings shall be deemed to be
instituted-
(i) in the case of criminal proceedings, on the date
on which the complaint or report of a Police
Officer, of which the Magistrate takes cognizance,
is made, and
(ii) in the case of civil proceedings, on the date the
plaint is presented in the Court. ”
4.8. Learned Senior Counsel appearing for the Petitioner vehemently
contended that since by the time the proceeding was initiated against
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the Petitioner vide memorandum dated 18.10.2016 under Annexure-1,
Petitioner was holding the post of Deputy Conservator, which comes
under the definition of HOD Level Officer, in view of the provisions
contained under Rule 9 of the Rules, no such order of punishment could
have been imposed on the Petitioner, so imposed vide the impugned
order under Annexure-5, without prior approval and consultation with
the Union Public Service Commission. Not only that the impugned
order has also been passed, not by order of the Hon’ble President of
India and the same has been passed by the Director (Vigilance), Govt.
of India, Ministry of Shipping.
4.9. It is contended that since prior consultation with the Union Public
Service Commission has not been made before disposal of the
proceeding with passing of the final order under Annexure-5 in terms of
Rule 9 of the Rules and the said order has been passed not by order of
the Hon’ble President of India, the impugned order is not sustainable in
the eye of law and requires interference of this Court.
4.10. It is further contended that the proceeding though was initiated
under Regulation 10 of the Paradip Port Trust Employees CCA
Regulation, 1967, but the said regulations were also not followed, while
dealing with the proceeding, more particularly the provisions contained
under Regulation 10 of the regulation.
Page 10 of 20
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4.11. Making all these submissions, learned Senior Counsel contended
that the impugned order having been passed contrary to provision
contained under Rule 9 of the Rules, the impugned order is liable to be
interfered with by this Court.
5. Mr. D.R. Bhokta, learned Central Govt. Counsel appearing for the
Union of India on the other hand made his submission basing on the
stand taken in the counter affidavit so filed.
5.1. It is contended that even though the proceeding in question was
initiated while the Petitioner was serving in Cochin Port Trust, but since
the misconduct was there when the Petitioner was continuing as an
HOD Level Officer in Paradip Port Trust, the proceeding in question
was initiated in terms of the provisions contained under Regulation 10
of Paradip Port Trust (CCA) Regulation, 1967.
5.2. It is contended that Petitioner in the said proceeding duly
participated by filing his written statement of defence and the Enquiry
Officer after conducting the enquiry, held the Petitioner guilty of the
charges vide his report under Annexure-I/2.
5.3. It is contended that since provisions contained under the 1967
Regulation were duly followed and Petitioner was given due
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opportunity of hearing all through, no illegality or irregularity can be
found with the impugned order.
5.4. It is further contended that since during pendency of the proceeding
Petitioner retired on attaining the age of superannuation on 28.02.2018,
the proceeding continued in terms of the provisions contained under
Rule 9 of the CCS (Pension) Rules, 1972.
5.5. It is however contended that, in terms of the said provision, it is not
mandatory to consult Union Public Service Commission before issuing
the final order.
5.6. It is further contended that when seeking clarification with regard
to consultation with the Union Public Service Commission vide
Annexure-H/1, it was opined that being an autonomous body like
Paradip Port Trust, it does not come automatically under the purview of
CCS Pension Rules. Paradip Port Trust being an autonomous body, it
cannot force Union Public Service Commission to give advice on
pension matters. In the communication under Annexure-H/1, Ministry
of Personnel, PG & Pension, Govt. of India, requested Ministry of
Shipping to consult Ministry of Law for their views.
5.7. It is contended that in view of the office memorandum issued on
10.05.2016 under Annexure-H/1 by the Govt. of India, Ministry of
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Personnel, PG & Pension, Dept. Of Pension and
Pensioner’s Welfare,
no such requirement is there to consult UPSC, prior to imposing the
punishment in the proceeding initiated against the Petitioner under
Annexure-1, so imposed vide the impugned order under Annexure-5.
5.8. Reliance was also placed to a decision of the High Court of Andhra
Pradesh, so passed vide judgment dated 17.09.1999, in W.P.(C)
No.1136 of 1998 pertaining to Visakhapatnam Port Trust.
5.9. It is contended that in the aforesaid judgment, High Court of
Andhra Pradesh held that prior permission/ sanction of UPSC, is not
required in respect of Port employees under CCS Pension Rules, 1972
by virtue of Pension (Adaptation of Rules) Regulation. Stand taken with
regard to the judgment delivered by the High Court of Andhra Pradesh
so reflected in Para 9, reads as follows:-
(i) The matter needs examination at the end of
“
Ministry as 1972 Rules have been adopted by 1967
regulations and it is not clear how requirements of
consultation with Union Public Service Commission
are met in respect of these employees as in terms of
rule 9 of 1972 Rules, consultation with Union Public
Service Commission appears to be necessary and
orders for cut in pension in the given circumstances
are issued in the name of President.
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(ii) Further, it needs to be examined as to whether
there is any inconsistency in respect of pension rules
of various ports for which regulations are framed
under section 28 of Major Port Trusts Act, 1972. In
one such case, a similar issue (in respect of
employees of Vishakhapatnam Port Trust) has been
dealt with by the Hon'ble High Court of Andhra
Pradesh. ”
5.10. Learned CGC accordingly contended that since the proceeding
was initiated in terms of the provisions contained under Regulation 10
of the Regulation of Paradip Port Trust and consultation with Union
Public Service Commission is not a mandatory requirement in view of
the office memorandum issued under Annexure-H/1, read with decision
of the High Court of Andhra Pradesh in W.P.(C) No.1136 of 1998, no
illegality or irregularity can be found with the impugned order. It is
accordingly contended that the Writ Petition is liable for dismissal.
6. Mr. Partha Mukerjee, learned counsel appearing for Paradip Port
Trust on the other hand made his submission basing on the stand taken
in the counter affidavit so filed. It is contended that since Petitioner was
never appointed in terms of the provisions contained under Article 309
of the Constitution of India read with Article 312, there is no necessity
to make consultation with UPSC, while dealing with the proceeding so
initiated in terms of the provisions contained under PPT Regulation,
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1967. It is also contended that since the post hold by the Petitioner is
not coming within the definition of Article 312 of the Constitution of
India read with the provisions contained under Act 309 of the
Constitution of India, prior consultation with the UPSC is not at all a
requirement.
6.1. Mr. P. Mukhherjee, learned counsel also relied on the decision of
the Hon’ble High Court of Andhra Pradesh so relied on by the learned
CGC.
6.2. It is accordingly contended that since Petitioner without any
objection participated in the proceeding so initiated under Paradip Port
Trust Regulation, 1967, even though while continuing under Cochin
Port Trust on his transfer vide order dated 20.05.2015 under Annexure-
13 and taking into account the fact that no prior consultation with
UPSC is a requirement, no illegality or irregularity has been committed
in imposing the punishment on the Petitioner vide the impugned order
under Annexure-5.
7. To the submission made by Mr. P. Mukherjee, learned counsel
appearing for Opp. Party No.2, learned Senior counsel appearing for the
Petitioner contended that CCS Pension Rules, 1972 applies to Govt.
servants appointed on or before 31.12.2003, including Civil Govt.
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servants in the defence services appointed substantively to civil services
and posts in connection with the Affairs of Union, which are borne in
pensionable establishments.
7.1. Placing reliance on the provisions contained under Rule 2 of the
1972 Rules, it is contended that since Petitioner hold the post in
connection with Affairs of the Union, so borne in the Establishment of
Paradip Port Trust, provisions contained under the said rules more
particularly Rule 9 is required to be followed in letter and spirit. Since
such provisions under Rule 9 of the 1972 Rules has not been followed,
the impugned order cannot sustain legal scrutiny and liable for
interference of this Court.
8. Having heard learned counsel for the Parties and considering the
submission made, it is found that Petitioner while continuing as against
the post of Harbour Master in Paradip Port Trust, he was appointed as
against the post of Deputy Conservator in Paradip Port Trust, in terms
of the provision contained under Section 24(1)(a) of the Major Port
Trust Act, 1963 vide Annexure-12 order dated 07.11.2007. As further
found post of Deputy Conservator comes within the definition of HOD
Level Officer, so reflected in the communication issued by the Govt. of
India-Opp. Party No.1 on 04.03.2014 under Annexure-14.
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8.1. It is also found, while so continuing as against the post of Deputy
Conservator, which comes within the definition of HOD Level Officer,
Petitioner was transferred and posted vide order dated 20.05.2015 under
Annexure-13 to Cochin Port Trust. It is also not disputed that, Petitioner
is holding a post, which comes within the definition of HOD Level
Officer and the same is also admitted by Opp. Party no.1 & 3 in their
counter.
8.2. However, it is found that while continuing in Cochin Port Trust, the
proceeding was initiated against the Petitioner vide memorandum dated
18.10.2016 under Annexure-1 in terms of the provisions contained
under PPT Regulation, 1967. Such a proceeding was initiated by the
Opp. Party No.1 with various charges. It is found that in the said
proceeding, Petitioner duly filed his written statement of defence and
the Enquiry Officer also submitted the report on 06.07.2017 under
Annexure-I/2 to the counter filed by Opp. Party No.2, by holding the
Petitioner guilty of the charges.
8.3. However, by the time the proceeding was disposed of with passing
of the impugned order dated 31.05.2018 under Annexure-5, Petitioner
had already retired from his services, on attaining the age of
superannuation on 28.02.2018. It is also not disputed that taking into
account the retirement of the Petitioner w.e.f. 28.02.2018, the
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proceeding was dealt with, in terms of the provisions contained under
CCS Pension Rules, 1972. This Court after going through the provision
contained under Rule 9 of the 1972 Rules, finds that prior to imposition
of any punishment, consultation with Union Public Service
Commission is required to be made.
8.4. It is also found from Rule 9 of the rules, such an order can be
passed only by order of the Hon’ble President of India. It is not
disputed that while imposing the punishment vide the impugned order,
no consultation has been made by the Opp. Party No.1 with Union
Public Service Commission.
8.5. Stand taken by the Opp. Parties that consultation is not a mandatory
requirement in view of the office memorandum issued under Annexure-
H/1 on 10.05.2016, is not acceptable to this Court, as in the said
memorandum, it has not been indicated that no consultation with UPSC
is required prior to imposing any punishment in terms of Rule 9 of the
1972 Rules. Vide the said memorandum, Ministry of Personnel, PG &
Pension, Govt. of India requested Ministry of Shipping to have a
consultation with the Ministry of Law, so far as consultation with
UPSC is concerned. No document is enclosed to the counter filed by
Opp. Party No.1, showing that after such consultation with Ministry of
Law, consultation with UPSC has been done away with.
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8.6. In view of the provisions contained under Rule 9 of the 1972 rules,
which was framed to deal with the matters with regard to service
condition of Govt. servants appointed on or before 31.12.2003
including Civil Govt. Servant in the defence services appointed
substantively to civil services and posts in connection with Affairs of
Union, it is the view of his Court that provisions of 1972 Rules are
required to be followed. Since rule 9 of the rules mandates, prior
consultation with the UPSC before imposing any punishment, so far as
withholding or withdraw of pension is concerned, and no such
consultation has been made with the UPSC prior to imposition of the
punishment vide impugned order dated 31.05.2018 under Annexure-5,
this Court is of the view that the impugned order since has been passed
without prior consultation with UPSC and not by
the order of Hon’ble
President of India, is not a good order in the eye of law. In view of the
provisions contained under Rule 9, decision of the High Court of
Andhra Pradesh as per the considered view of this court, cannot be
made applicable to the facts of the present Writ Petition and such a
decision was rendered taking into account the Regulations of
Visakhapatnam Port Trust.
8.7. In view of the aforesaid analysis and since it is found that
impugned order has been passed without prior consultation with UPSC
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and not by order of the
Hon’ble President of India, this Court in view of
such illegalities and irregularities, apparent on the face of the impugned
order is inclined to quash order dated 31.05.2018 so passed by Opp.
Party No.1 under Annexure-5. While quashing the said order, this Court
allows the Writ Petition.
9. Accordingly, the Writ Petition stands disposed of.
(BIRAJA PRASANNA SATAPATHY)
Judge
Orissa High Court, Cuttack
rd
Dated the, 3 September, 2026/Jyoti
Signature Not Verified
Digitally Signed
Signed by: JYOTIPRAVA BHOL
Reason: Authentication
Location: HIGH COURT OF ORISSA
Date: 08-Sep-2026 11:21:54
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