The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.26619 of 2017 Madan Mohan Parichha ....... Petitioner -Versus- Odisha Forest Development Corporation Ltd. & Ors. ....... Opposite Parties For Petitioner : Mr. R. K. Sahoo Advocate For Opposite Parties : Mr. S. K. Pattnaik, Senior Advocate ................... CORAM: JUSTICE SANJAY KUMAR MISHRA _____________________________________________________________ Date of Hearing and Judgment: 13.09.2023 _____________________________________________________________ S.K. MISHRA,J. 1. This Writ Petition has been preferred with a prayer to set aside the letter dated 27.01.2017 addressed to the Petitioner as at Annexure-5 and direct the Opposite Parties to release the un-utilized leave salary of the Petitioner within a stipulated period. 2. The brief background facts, which lead to filing of the Writ Petition is that the Petitioner, who was serving as Division Manager in Odisha Forest Development Corporation Limited, was superannuated from service w.e.f 30.09.2000. After retirement, the Opposite Parties did not sanction his retirement benefits in anticipation of a proposal of initiation of departmental proceeding against the Petitioner. Such an anticipation was made despite communication made by the General Manager (A & P) to the General Manager (C) that the Managing Director of the Corporation has been pleased to order that no charges can be framed against the Petitioner and few others, as detailed in the said communication, due to retirement/ death of the said officers. 3. It is further case of the Petitioner that his un-utilized leave salary was duly sanctioned by the Managing Director of the Corporation vide office order dated 13.03.2009 amounting to Rs.1,15,479.00/-. After deducting the recoveries as per the calculation made, the amount payable to the Petitioner has been indicated as Rs.90,619.00/- in the said office order. After receiving the said letter dated 13.03.2009, though the Petitioner approached the Opposite Party-Corporation, including its Managing Director, for release of the said admitted dues as detailed in office order dated 13.03.2009, the authority did not take any effective steps for release of the un-utilized leave salary as sanctioned in favour of the Petitioner. Vide the same order dated 13.03.2009, it was ordered to withheld the amount till finalization of unsettled audit paras attributed for an amount of Rs. 18,00,585.14/- for settlement by the Triangular Page 2 of 13 Committee constituted for the purpose by the Board of Directors of the Corporation so also Vigilance Case No.25/94, pending before the Court of Special Judge, Vigilance, Sambalpur. 4. It was brought to the notice of the Opposite Party Corporation that a similarly placed officer namely, Ajay Kumar Mahapatra, who retired as Divisional Manager, has already received his dues though against him a vigilance case is pending. But in case of the Petitioner, he was intentionally discriminated and illegally the un-utilized amount has been withheld by the Authority. Being so discriminated, the Petitioner approached the Authority concerned for release of his un-utilized leave salary by filing representations on 13.09.2016 & 22.12.2016. But the same were rejected on 27.01.2017 on the ground of pendency of criminal proceeding against him. Hence, being aggrieved by the said rejection order, the Petitioner has approached this Court with a prayer as detailed above. 5. Being noticed, a Counter Affidavit has been filed by the Opposite Parties-Corporation reiterating the facts as detailed in the Writ Petition. That apart, it has been stated that as per the Finance Department Circular dated 17.12.1991, which was made applicable to the employees of the Corporation vide office order dated 23.08.2000, the un-utilized leave salary of an employee facing departmental or judicial proceeding can be Page 3 of 13 withheld till finalization of the said proceeding. A stand has also been taken in the Counter Affidavit that though the Petitioner has retired from service on 30.09.2000, much prior to that he was placed under suspension for the period from 20.06.1994 to 07.12.1994 on the ground of pendency of Vigilance Case No.25/94. Charge Sheet in that the case was filed on 31.12.1998. The said case was pending in the Court of Special Judge Vigilance, Sambalpur, at the time of retirement of the Petitioner, for which un-utilized leave salary could not be released in his favour. It has also been stated that though in terms of the sanction order dated 13.03.2009 it was clearly indicated that net payable amount is Rs.90,619.00/-, but the same was withheld till finalization of unsettled Audit paras by the Triangular Committee involving an amount of Rs.18,00,585.14/- and Vigilance Case No.25/94 in the Court of Special Judge, Sambalpur. Ultimately the unsettled Audit paras were settled leaving a balance of Rs.42,884.88/- to be recovered from the Petitioner. Accordingly, office order dated 08.09.2009 was passed and communicated to the Petitioner vide memo dated 08.09.2009, requesting him to deposit the outstanding amount of Rs.42,884.88/-. It has also been stated in the Counter Affidavit that the unsettled leave salary of Rs.90,619/- will be disbursed in favour of the Petitioner by adjusting the Page 4 of 13 amount of Rs.42,884.88/- depending on the result of the Vigilance Case No.25/94. 6. So far as the case of Ajay Kumar Mohapatra, who retired as Divisional Manager on 31.03.2002, it has been stated in the Counter Affidavit that vide office order dated 18.01.2010, after adjustment of recoverable dues amount Rs. 1,04,468/-, the net amount of Rs.48,660/-
Legal Reasoning
has been disbursed in favour of Mr. Mohapatra. Further, it has been stated that the allegation of discrimination made by the petitioner is not correct. The Corporation has no information as to whether any charge sheet in vigilance case has been filed against Sri Ajay Kumar Mohapatra or not. Where as in response to the query of the Managing Director, OFDC Ltd. dated 30.07.2013, the S.P. Vigilance, vide its letter dated 02.08.2013, intimated that charge sheet in Vigilance Case No.25/94 was submitted vide C.S. No.38 dated 31.12.1998 against the Petitioner, pursuant to which the Court took cognizance on 25.11.1999 and the case is now sub- judice in the Court of Special Judge, Cuttack. So far as Gratuity, it was paid to the Petitioner and he is eligible to get the pension from the E.P.F. Organization. 7. In response to the Counter Affidavit filed by the Corporation, a Rejoinder Affidavit has been filed specifically indicating therein that the Vigilance Case No. 25/94 is pending against the Petitioner since last 29 Page 5 of 13 years and such undue delay has been deliberately caused at the instance of the prosecution in order to harass the Petitioner. One V. Gopangana, who is the last witness of the prosecution, is not being examined even though she has been coming to the Court for her examination since last one year as because there is every chance of acquittal of Petitioner in the said case. It has also been reiterated in the Rejoinder Affidavit that the Opposite Party Corporation has admitted that even though a vigilance case is pending against one Ajay Kumar Mohapatra, an amount of Rs.48,060/- has been disbursed in his favour. It is the Corporation, who is to state before this Court as to whether any charge sheet has been submitted against Mr. Mohapatra and if not, what is the reason for such non submission of charge sheet. 8. Learned Counsel for the Petitioner, relying on the judgment reported in AIR 2013 SC 3383 (State of Jharkhand others v. Jitendra Kumar Srivastava and Others) so also a website copy of the order passed by the Division Bench of this Court dated 28.02.2017 in W.P.(C) No.3442 of 2016 (State of Odisha v. Nirmal Chandra Satpathy) submits, in absence of any service Rules to the said effect, the Corporation was not justified to withhold the un-utilized leave salary of the Petitioner on the plea of pendency of Vigilance Case against him so also audit recovery of certain amount, as has been detailed in the Counter Affidavit. Page 6 of 13 9. On the other hand, Mr. Pattnaik, learned Counsel for the Opposite Party Corporation, drawing attention of this Court to the decision of the Triangular Committee dated 09.07.2009 at Annexure-D to the Counter Affidavit submits, an amount of Rs.42,884.88 is recoverable from the Petitioner towards various dues of the Corporation in terms of the office order dated 08.09.2009, as at Annexure-D, which is based on the decision of the Triangular Committee. 10. However, it is submitted that the letter dated 18.01.2010, as at Annexure-E, well demonstrates that after adjustment of Rs.1,04,468.00/-, which is the settled total recoverable dues against Mr. Mohapatra, an amount of Rs.48,660.00/- was paid to him. Mr. Pattnaik further submits, though the vigilance case was initiated against Ajay Kumar Mohapatra, till the date of release of the said amount, no charge sheet was submitted in the vigilance case for which the said amount was released in favour of Sri. Mohapatra. 11. A query being made, Mr. Pattnaik fairly concedes before this Court that there is no separate Rules of the Corporation governing the field to withhold the Pension, Gratuity and other after retiral dues of a retired employee against whom, vigilance or departmental proceeding is pending. However, in view of the Circular of the Corporation dated 23.08.2000, which is based on the Finance Department Circular dated Page 7 of 13 17.12.1991, and office memorandum dated 26.03.2015 of the Government of Odisha, Finance Department, the Corporation was justified to withhold the un-utilized leave salary of the Petitioner. 12. In response to the said argument advanced by Mr. Pattnaik, learned Counsel for the Corporation, learned Counsel for the Petitioner submits, in view of the settled position of law and in absence of specific Rules of the Corporation to the said effect, relying on the circular of the Government of Odisha, the Opposite Parties-Corporation was not justified to withheld the un-utilized leave salary of the Petitioner on the plea of recovery to be made as per the decision of the Triangular Committee held on 09.07.2009. Further, before taking such decision, no opportunity was given to the Petitioner to have his say. Even though the Petitioner was superannuated on 30.09.2000, till the said date and thereafter also the office order dated 08.09.2009, which is based on the decision of the Triangular Committee, was never communicated to the Petitioner. 13. In State of Jharkhand & Ors. (supra), the apex Court, vide paragraph 15 held as below: “15. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as “law” within the meaning of aforesaid Article 300A. On the basis of such a circular, which is not having force of law, the Appellant cannot withhold-even a part of pension or Page 8 of 13 gratuity. As we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different.” 14. Similarly, in State of Odisha (supra), wherein the Division Bench of this Court, relying on the judgment of the apex Court in State of Jharkhand (supra) in an identical issue, held that in absence of any statutory rules withholding the leave encashment is illegal. Paragraph 5.1 and 6 of the said order passed in W.P.(C) No.3442 of 2016 are extracted below: 5.1. Leave Rules, 1966 is reproduced hereunder: For better appreciation Rule 20 of the Orissa If any question arises relating to the interpretation of these rules, it should be referred to the State Government whose decision thereon shall be final. 6. The Apex Court in the case of State of Jharkhand and others Vs. Jitendra Kumar Srivastava and another reported in (2013) 12 SCC 210 held that the appellant-State Government to take away a part of the pension or gratuity or even leave encashment without any the umbrage of administrative (emphasis supplied) statutory provision under instruction cannot be countenanced. Thus in absence of any statutory rules to withhold the leave encashment is illegal. The contention of learned Addl. Government Advocate that Rule, 20 of Orissa Leave Rules, 1966 is attracted to this case, is not sustainable as there was no ambiguity in any Rules which require interpretation.” 15. Pursuant to Managing Director of the Corporation’s decision that no charge can be framed after retirement of the employees concerned, as has been detailed in Annexure-1, this Court is of the view that General Page 9 of 13 Manager (A&P) was not justified to make such a communication to the Petitioner as at Annexure-5, requesting him to supply copy of the order, if already delivered by the Vigilance Court in the Vigilance Case No.25/1994. 16. At this stage it is apt to extract below the relevant portion of the letter dated 13.02.2009 as at Annexure-1 and the communication made to the Petitioner vide letter dated 27.01.2017 as at Annexure-5:- ORISSA FOREST DEVELOPMENT CORPORATION LIMITED. HEAD OFFICE : BHUBANESWAR. No.3835/DP/38/C5. Dated, Bhubaneswar, 13th February, 2009. The General Manager (C) O.F.D.C.I. Ltd., Bolangir Zone. Sub: Submission of draft proposal for drawal of D.P. on the Audit finding of I.A.R.No.24/94. Ref- Your letter No.46 dtd.05.01.2005. Sir, With reference to your above cited letter on the subject, I am directed to inform you that the Managing Director, C.F.D.C.Ltd., has been pleased to order that No charges can be framed at this late stage against the following officers/ staff due to retirement/ death. Hence the proposals against the following officers for drawal of D.P. are hereby dropped. 1. 2. 3. Sri B.D. Dixit, Dy. S.D.M Sri M.M.Parichha, D.M. Sri P.K.Sarangi, OFS-I Page 10 of 13 4. 5. 6. 7. Sri P.K.Mishra, D.M. Sri M.R.K.Pattnaik, D.M. Late B.K.Mohanty, OFS-I Late K.M.Barik, F/R Yours sincerely, General Manager (A&P) (Emphasis Supplied) To Ltd. Sri Madan Mohan Parichha, D.M.[Retd]OFDC At:- Brahmanipara P.O.:-Bolangir Dist:-Bolangir Sub:- Regarding payment of Un-utilized encashment. leave representation dt.13.09.2016 & Ref:- Your 22.12.2016. Dear Sir, to In inviting reference the above cited representation, it is to inform you that, as per Finance Department office memorandum No.46545/F dt.17.12.91, the un-utilized leave salary can be withheld whole or part if in the opinion of the authority that there is possibility of some money becoming recoverable on conclusion of disciplinary/criminal proceeding. In this respect the Office order No.580 dt.13.06.2002 is enclosed herewith for your information. Further, you are requested to supply copy of the order if already delivered by the Vigilance court in the Vigilance case No.25/1994 for further course of action at this end. Yours faithfully, General Manager [A&P] (Emphasis Supplied) Page 11 of 13 17. Admittedly, there is no prevalent Rule of the Corporation to withhold un-utilized leave salary or any Resolution of the Board to adopt the Rules of the State Government in the said regard. Hence, in absence of any Rules to the said effect, this Court is of the view that the Opposite Party-Corporation was not justified to withheld the admitted differential un-utilized leave salary of the Petitioner, as has been detailed in office order dated 13.03.2009, as at Annexure-2, despite the decision of the Managing Director of the Corporation to the effect that no charge sheet can be framed against the Petitioner and similarly placed others, who have already been superannuated from service. Further, the order dated 13.03.2009, vide which a decision was taken not to release the un-utilized leave salary of the Petitioner on the plea that there is possibility of some money becoming recoverable on the conclusion of disciplinary proceeding, being contrary to the decision of the Managing Director of the Corporation, as has been demonstrated vide letter dated 13.02.2009,
Decision
as at Annexure-1, the impugned order is liable to be quashed. 18. In view of the admitted facts on record so also settled position of law as detailed above and in absence of any Rule to the said effect, the impugned communication of the Corporation to withhold the un-utilized leave salary of the Petitioner vide letter dated 27.01.2017, as at annexure- Page 12 of 13 5 is hereby set aside. The Opposite Party-Corporation is directed to release the un-utilized leave salary of Rs.90,619/-, as has been admitted vide office order dated 13.03.2009, as at Annexure-2, with 6% interest from the date it became due till the date of actual disbursement within a period of two months from the date of production of the certified copy of this judgment. 19. Accordingly, the Writ Petition stands disposed of. No order as to cost. …….…………………… S.K. MISHRA, J. Orissa High Court, Cuttack. Dated, 13th September, 2023/ Banita Signature Not Verified Digitally Signed Signed by: BANITA PRIYADARSHINI PALEI Designation: JR. STENOGRAPHER Reason: AUTHENTICATION Location: HIGH COURT OF ORISSA, CUTTACK Date: 26-Sep-2023 17:50:19 Page 13 of 13