The High Court
Case Details
Order No. 01. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.565 of 2024 Pravat Kumar Sahoo …. Petitioner Mr.A.Tripathy, Advocate -versus- State of Odisha and others ….
Legal Reasoning
Opposite Parties Mr.S.N.Patnaik, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 18.01.2024 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Additional Government Advocate. 3. The Petitioner has filed the present writ application with the following prayer: “The petitioner above named, therefore pray that this Hon'ble Court may graciously be pleased to direct the Opposite Party No.2, Directors of Industries, Odisha, Cuttack, to dispose of the application dated 01.03.2023 filed under Annexue-3, within a stipulated time. And pass any other orders or directions as this Hon'ble Court may deem just and proper.” 4. The factual background leading to filing of the present writ application in a nutshell, is that, the petitioner was initially appointed Industries Promotion Officer on 01.03.1992. While working as such the Petitioner joined in D.I.C., Boudh Office on 14.06.2014 and // 2 // continued to work there. While continuing in the office of D.I.C., Boudh, the Petitioner remained on leave from 01.05.2020 to 14.06.2020, then the Petitioner again performed his duty with effect from 15.06.2020. Due to the illness of the Petitioner, who is undergoing Dialysis for kidney ailments the Petitioner again remained on leave w.e.f 01.12.2020 to 31.01.2021. Due to the deteriorating health condition of the Petitioner, the Petitioner expressed his desire to take voluntary retirement from service by submitting an application on 01.03.2023 under Annexure-3 to the writ application. The application submitted by the Petitioner reveals that the Petitioner is ailing due to kidney failure and undergoing dialysis at Care Hospital, Bhubaneswar three times in a week. In such medical condition, the Petitioner is unable to attend office, accordingly, the Petitioner submitted an application seeking voluntary retirement from service w.e.f. 01.03.2023. Mr. Tripathy, learned counsel appearing for the petitioner further contended that since such application of the Petitioner has not been accepted by the Opposite Parties, the Petitioner has approached this Court by filing the present writ application for a direction to the Opposite Parties to accept the VRA of the Petitioner under Annexure-3 to the writ application. 5. Learned Additional Government Advocate on the other hand contended that in view of Rule 42 (1) of the Odisha Pension Rules, 1992, the Petitioner should have given three months notice seeking voluntary retirement as has been provided in the said rules. Mr. Patnaik, learned AGA, further specifically pointed out from the application under Annexure-3 that the Petitioner has given notice stating that he wants to take VRA from 01.03.2023. Accordingly, // 3 // learned Additional Government objected to the VRA application under Annexure-3 as the same is not in conformity with Rule 41(1) of OCS Pension Rules, 1992. Learned Additional Government Advocate also raised an objection with regard to service of notice under Annexure-3 upon the competent authority by the Petitioner. It is submitted that there is nothing on record to show that the notice under Annexure-3 has been served on the Director of Industries, Odisha, Cuttack, Opposite party No.2. Accordingly, it was prayed that the writ application is devoid of merit and the same should be dismissed. 6. Having heard the learned counsels appearing for the respective parties and on a careful examination of the background facts as well the materials on record and upon a careful analysis submissions made by the learned counsels appearing for the Parties, this Court observes that the Petitioner had submitted an application on 01.03.2023 under Annexure-3 seeking voluntary retirement from service. On a careful scrutiny of the letter under Annexure-3, it is revealed that the petitioner has expressed that he is suffering from kidney ailments and undergoing dialysis, due to which he is unable to join in duty and accordingly he has prayed for VRA w.e.f. 01.03.2023. Although the application under Annexure-3 may not be technically correct in terms of the provisions contained in Rule-42 (1), however, the fact remains that the petitioner has sought for VRA on his health ground. In the aforesaid background facts this Court is of the considered view that the authorities could have treated the application under Annexure-3 to be a three months notice to the appointing authority in terms of Rule 42(1) of OCS Pension Rules, 1992 and accordingly should have considered the same in terms of the aforesaid rules. Considering the // 4 // fact that the Petitioner is suffering from kidney ailments and undergoing Dialysis and as such is unable to attend office, this Court is of the considered view that the application of the Petitioner should have been accepted by the authorities in terms of Rule 42(1). Further, this Court is also of the observation that the authorities despite observing there was no three months advance notice, should have specifically refused or rejected the application as has been provided under the proviso to sub-Rule 2 of Rule 42. However, no such communication having been made, it is presumed that such application under Annexure-3 was accepted by the authorities without any objection. Therefore, the proviso to Rule-42 (2) applies to the facts of the Petitioner’s case and accordingly, he should have been extended the benefits under the proviso and the application for voluntary retirement should have been accepted on 01.06.2023 i.e. on expiry of three months notice period. 7. In view of the aforesaid analysis made hereinabove, this Court deems it proper to dispose of the Writ Petition at the stage of admission by directing the Opposite Party No.2 to examine as to whether the Petitioner has in fact submitted the application under Annexure-3 to the writ application. In the event, it is found that the petitioner has in fact submitted such application then the same shall be considered under the proviso to Rule-42(2). Further, in the event it is found that no such application has been submitted by the Petitioner, liberty is granted to the Petitioner to file a fresh application, if so advised and in such eventuality the Opposite Parties shall consider the same under Rule-42(2) of OCS Pension Rules, 1992. In such eventuality, the Petitioner may also take resolve to sub- Rule 3(a) of Rule 42. Let the Opposite Parties take a decision thereon // 5 // within a period of six weeks from the date of communication of certified copy of this order. The final decision so taken be communicated to the Petitioner within a week thereafter. 8. With the aforesaid observation, the writ application stands disposed of. 9. Issue urgent certified copy of this order as per Rules. Anil ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 19-Jan-2024 18:34:55