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 --------------------------------------------------------------------------------------- Date of Hearing:18.08.2026 & Date of Judgment: 03.09.2026 --------------------------------------------------------------------------------------- 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 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 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 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). 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 order of the Hon’ble President of India. Rule 9 of the Rules reads as 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: 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,- (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. (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. 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. 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 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. 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 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 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. (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, 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. 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. 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 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. 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 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 Dated the, 3rd September, 2026/Jyoti