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IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.10333 of 2020 Bijaya Kumar Pattanaik ....... Petitioner -Versus- Sate of Odisha and others ....... Opp. Parties For Petitioners : Mr. S.K. Nath, Advocate For Opp. Parties : Mr. S.N. Pattanaik, Addl. Govt. Advocate ---------------------------- P R E S E N T: MR. JUSTICE SANJAY KUMAR MISHRA --------------------------------------------------------------------------------- Date of Hearing: 17.08.2023 Date of Judgment: 31.10.2023 --------------------------------------------------------------------------------- S.K. Mishra, J. The Writ Petition has been preferred with a prayer to set aside the order dated 10.02.2020 (Annexure-4), vide which the representation dated 14.08.2019 of the Petitioner for sanction of pension in his favour was rejected by the Executive Engineer, Khordha Irrigation Division, Khordha (Opposite Party No.2). A further prayer has been made to direct the said Opposite Party for sanction of pension and retirement benefits in favour of the Petitioner within a stipulated time frame. 2. The brief background facts which lead to filing of the Writ Petition are that, the Petitioner was appointed as “Khalasi” under Work-Charged Establishment on 18.11.1967 to work under Salia Dam Sub-Division, Banpur. Thereafter, he was brought over to Regular Establishment with effect from 18.10.1978 and was allowed with G.P.F. Number and was covered under the Group Insurance Scheme of the State Government. The Petitioner continuing for about 10 years 11 months in the Work-Charged Establishment and for about five years in a Regular Establishment, he was transferred to Tangi Irrigation Section by the Opposite Party No.2 and was on leave up to 30.05.1984. Due to non-joining of the Petitioner, a Show Cause Notice was issued by the Opposite Party No.2 on 24.10.1986, as to why his service shall not be terminated due to willful absence from Government duty. After filing of satisfactory reply, the Petitioner was transferred to Berhampur Irrigation Division from Khordha Irrigation Division by the Superintending Engineer, vide letter No.9012 dated 18.11.1986. Thereafter, the Opposite Party No.3 (The W.P.(C) No.10333 of 2020 Page 2 of 28 Executive Engineer, South Irrigation Division, Berhampur) reposted the Petitioner to work under Assistant Engineer, Rushikulya Irrigation Sub-Division, Humma, vide Order No.54 dated 04.12.1986. It is further case of the Petitioner that from the transfer order as at Annexure-1, it is crystal clear that the Superintending Engineer had passed mutual transfer order between one Budheswar Das, Khalasi from Berhampur Irrigation Division and the Petitioner from Khordha Irrigation Division, clearly mentioning therein that no T.T.A. and joining time is allowed. Instead, the actual joining time is allowed as the transfers are made at their own request. Further, it was clarified vide Office Order No.54 of 1986-87 (Annexure-2) that the Petitioner was reposted to the Office of S.D.O., Rushikulya Irrigation Sub-Division, against vacant post due to transfer of one Budheswar Das, Khalasi and a copy of the said order as at Annexure-2 was communicated to the Petitioner on 15.12.1986 by the S.D.O. Salia Dam Sub-Division as mentioned at the bottom of the said Order at Annexure-2. Pursuant to the orders as at Annexures-1 & 2, the Assistant Engineer allowed Budheswar Das to join in place of the Petitioner, whereas the Petitioner W.P.(C) No.10333 of 2020 Page 3 of 28 was not allowed to join in place of Budheswar Das. Rather, the Petitioner was reposted to Purusottampur Irrigation Section No.II with headquarter at Hinjilicut, vide order dated 23.12.1986. The Petitioner attended the Office of the Assistant Engineer, Rushikulya Irrigation Sub-Division, Humma, and submitted joining report on 27.12.1986 and came to know about his posting to Purusottampur Irrigation Section No.II. Knowing about the same, the Petitioner requested to post him under the Assistant Engineer, Humma, who did not accept the joining report of the Petitioner. After returning from Humma, the Petitioner reported such situation to the Assistant Engineer, Salia Irrigation Sub-Division, who in turn requested Assistant Engineer, Humma to accept the joining report of the Petitioner. Thereafter, the Petitioner represented several times before higher authorities. But there was no response to the allegation of the Petitioner. Thereafter, because of the said illegal action on the part of the authority concerned, judicial proceeding continued till 2009. In the meantime, as co-employees were superannuated, the petitioner was also supposed to be retired from Government service and prayed for pension. Because of inaction, he was W.P.(C) No.10333 of 2020 Page 4 of 28 constrained to approach this Court by filing W.P.(C) No.11320
Decision
of 2009, which was disposed of on 18.07.2019 granting liberty to the Petitioner to file fresh representation before the Executive Engineer, Khordha, with a direction to consider and dispose of the same in accordance with law. Accordingly, the Petitioner submitted the representation on 14.08.2019 being so directed by this Court. The Opposite Party No.2 disposed of the representation of the Petitioner dated 14.08.2019 by rejecting the same, vide letter dated 10.02.2020 on the ground that the said representation merits no consideration for pension, which is the subject matter of challenge in the present Writ Petition. 3. It is further case of the Petitioner that the reason assigned in the impugned rejection order dated 10.02.2020 is unsustainable. The grounds of rejection of the representation that the Petitioner was not working under the Khordha Division after 31.03.1984 and he was not given retirement from Government service on superannuation and interruption of duty so also the claim of the Petitioner for pension will not be governed by Rule 18 (3) of the O.C.S. Pension Rules is not tenable. Though the Petitioner asked for providing copy of the W.P.(C) No.10333 of 2020 Page 5 of 28 Service Book under the Right to Information Act, the Opposite Party No.2 intentionally avoided to provide the same. Though the Petitioner submitted the pension papers before the Opposite Party No.2, the same was returned on 19.02.2015 with a mention that Petitioner was not working under the said Division till retirement. It is the case of the Petitioner that as he had rendered service for a period of 19 years 5 months 3 days including the Work Charged service period, is entitled for pension under Rule 18(3) of Orissa Pension Rules, 1992 as decided in the judgment reported in 85 (1998) CLT (OATC) – 18. Hence, a prayer has been made to set aside the rejection order as at Annexure-4 and direct the Opposite Party No.2 to provide copy of the Service Book along with pension and retirement benefits. 4. Being noticed, the State/Opposite Party Nos.1 to 3 filed their common Counter Affidavit taking a stand therein that the Petitioner was appointed as Khalasi under Work- Charged Establishment and was posted to work under Salia Sub-Division, Banpur with effect from 11.11.1968 (F.N). He was brought over to regular wages establishment with effect from 18.10.1978, vide order dated 27.02.1979 of the W.P.(C) No.10333 of 2020 Page 6 of 28 Superintending Engineer, Southern Irrigation Circle, Berhampur. He was transferred from Salia Dam Sub-Division, Banpur to Khordha Irrigation Sub-Division with headquarters at Tangi by the Executive Engineer, Khordha, vide Office Order dated 19.01.1984 and was relived from Salia Dam Sub- Division, Banpur, under Khordha Irrigation Division, Khordha, with effect from 31.03.1984 (F.N) in order to join in his new place of posting at Tangi Irrigation Section, Tangi under the same Division. However, the Petitioner refused to receive the said relieve order which was confirmed vide letter dated 04.04.1984 of the Assistant Engineer, Salia Dam Sub- Division, Banpur. Instead of joining in his new place of posting, the Petitioner applied for leave up to 30.05.1984 on the ground of his wife’s illness without any supporting documents. After 30.05.1984, neither the Petitioner joined in his duty nor applied for extension of leave and remained absent unauthorizedly. Hence, he was served with Show Cause Notice by the Executive Engineer, Khordha Irrigation Division, Khordha, vide letter No.4602 dated 24.10.1986 to submit satisfactory reply as to why his services shall not be terminated due to his willful absence from duty. In response W.P.(C) No.10333 of 2020 Page 7 of 28 to the said notice, after expiry of the scheduled date for submission of Show Cause Reply, the Petitioner gave his response to the said Show Cause Notice without any satisfactory reply to justify his willful absence from duty. In the meantime, the Petitioner was transferred from Khordha Irrigation Division, Khordha and posted under the control of Executive Engineer, Berhampur Irrigation Division, Berhampur vide letter dated 18.11.1986 of the Superintending Engineer, Southern Irrigation Circle, Berhampur. The Executive Engineer, Berhampur Irrigation Division, Berhampur reposted the Petitioner to Rushikulya Irrigation Sub-Division, Humma against the existing vacancy vide Office Order No.54 of 1986-87 dated 04.12.1986. The Assistant Engineer, Rushikulya Irrigation Sub-Division reposted him to Purusottampur Irrigation Section No.II with headquarters at Hinjilicut, vide Office Order No.12 of 1986 dated 23.12.1986. However, the Petitioner did not join the Office of the Assistant Engineer, Rushikulya Irrigation Sub- Division, Humma and requested to post him under the Junior Engineer, Humma Irrigation Section, which is not accepted by the authority concerned. However, due to inadequate existing W.P.(C) No.10333 of 2020 Page 8 of 28 staff for maintenance of canal work in Purusottampur Irrigation Section No.II at Hinjilicut, the Petitioner was posted to Purusottampur Irrigation Section vide letter No.324 dated 20.04.1987 of the Assistant Engineer, Rushikulya Irrigation Sub-Division, Humma, addressed to the Executive Engineer, Berhampur Irrigation Division, Berhampur. But the Petitioner did not join the said office and was not working under the said Division after 31.03.1984 and remained absent since then. A further stand has been taken in the Counter that unauthorized absence from duty for more than five years leads to removal from service in terms of Rule-72(2) of Odisha Service Code. Hence, the Petitioner is not eligible for pension and has rightly not been given provisional pension and the prayer made in the Writ Petition, being devoid of any merit, is liable to be dismissed. 5. In response to the Counter Affidavit filed by the State/Opposite Parties, a Rejoinder Affidavit has been filed by the Petitioner reiterating the stand taken in the Writ Petition. However, in addition to the same, in reply to Paragraphs-3 to 6 of the Counter Affidavit, it has been stated that in view of the admission made in the Counter Affidavit, the Petitioner W.P.(C) No.10333 of 2020 Page 9 of 28 had worked as Work-Charged employees for 10 years 11 months and 7 days and as Regular Employee for 5 years 5 months 13 days. Hence, in terms of the said admission made in the Counter Affidavit, the total service period ,including Work-Charge period, is 16 years 4 months 20 days, which is treated as qualified service period for sanction of pension as per Rule 18(3) of the Odisha Civil Services (Pension) Rules, 1992. But Opposite Party No.3 has referred to Rule-72(2) of the Odisha Service Code, which is no way connected to Odisha Civil Services (Pension) Rules, 1992. It has further been stated in the Rejoinder Affidavit that since the Petitioner was working for more than ten years, which is treated as qualified service for pension, he is entitled to get pension as a Class-IV Govt. Employees. 6. Mr. Nath, learned Counsel for the Petitioner, reiterating the stand taken in the Writ Petition, submitted that in view of the admitted facts on record, the Petitioner is entitled for pension. To substantiate his submission so also prayer made in the Writ Petition, Mr. Nath relied on the Judgments reported in 83 (1997) C.L.T. (O.A.T) 42 (Uttam Pradhan & others Vs. State of Odisha and others), 1997 (1) W.P.(C) No.10333 of 2020 Page 10 of 28 OLR (CSR)-40 (Nakhaari Bewa Vs. State of Odisha), 2014 (1) OLR 734 (Chandra Nandi Vs. State of Odisha), 105 (2008) CLT 309 (Kishori Dash Vs. State of Orissa and others) and 2017(I) ILR – CUT – 906 (Karunakar Behera Vs. State of Orissa and others). 7. Mr. Pattanaik, learned Additional Government Advocate for the State/Opposite Parties, reiterating the stand taken in the Counter Affidavit, submitted that the Petitioner’s grievance cannot be considered under the provision of Rule 18(3) of Odisha Civil Services (Pension) Rules, 1992, as it is clear case of voluntary abandonment of service. He further submitted that the Petitioner miserably failed to explain satisfactorily for such long absence without any material behind it. To substantiate the said submission, Mr. Pattnaik relied on the judgment of the apex Court reported in (2000) 5 SCC 65 (Syndicate Bank Vs. General Secretary, Syndicate Bank Staff Association and another). 8. Mr. Pattanaik further submitted that law is well settled that if an employee remains absent beyond the granted period of leave of any kind, he should be treated to have resigned and ceases to be in service. Hence, though a W.P.(C) No.10333 of 2020 Page 11 of 28 Show Cause Notice was given to the Petitioner for his unauthorized absence beyond the leave period and the explanation tendered by the Petitioner was found to be unsatisfactory, thereafter no further Departmental Proceeding was initiated against the Petitioner after tendering such unsatisfactory explanation. In view of the Judgment rendered by the apex Court, the Petitioner is to be treated to have ceases to be in service because of such long unauthorized absence. 9. From the pleadings of the parties as detailed above, it is an admitted fact that the Petitioner was appointed as Khalasi under Work-Charged Establishment with effect from 11.11.1968. Thereafter he was brought over to Regular Establishment from 18.10.1978 vide order dated 27.02.1979. While working so, he was transferred from Salia Dam Sub- Division, Banpur to Khordha Irrigation Sub-Division with headquarters at Tangi by the Executive Engineer, Khordha, vide Office Order dated 19.01.1984. He was relived from Salia Dam Sub-Division, Banpur, with effect from 31.03.1984 in order to enabling him to join new place of posting at Tangi Irrigation Section, Tangi under the same Division. Instead of W.P.(C) No.10333 of 2020 Page 12 of 28 joining in his new place of posting, the Petitioner applied for leave up to 30.05.1984. After the said period, because of not reporting for duty and not applying for any extension of leave and remaining absent unauthorizedly, he was served with Show Cause Notice on 24.10.1986 advising him to submit his reply as to why his services shall not be terminated due to his willful absence from duty. Thereafter, the Petitioner replied to the said Show Cause Notice. Though the said reply was unsatisfactory, no Departmental Proceeding was initiated against the Petitioner for such unauthorized absence. Rather, he was transferred from Khordha Irrigation Division, Khordha and was posted under the control of Executive Engineer, Berhampur Irrigation Division, Berhampur, by the Superintending Engineer, Southern Irrigation Circle, Berhampur, vide letter dated 18.11.1986. The said order of transfer well demonstrates that such transfer was made on the request of one Budheswar Das, Khalasi so also the present Petitioner on mutual understanding. However, instead of allowing the Petitioner to join in the place and position held by Sri Budheswar Das, Khalasi, the Executive Engineer, Berhampur Irrigation Division, reposted the W.P.(C) No.10333 of 2020 Page 13 of 28 Petitioner to Rushikulya Irrigation Sub-Division vide order dated 04.12.1986. Thereafter, again the Assistant Engineer, Rushikulya Irrigation Sub-Division, Humma, reposted him to Purusottampur Irrigation Section No.II with headquarters at Hinjilicut, vide Officer Order dated 23.12.1986. On being so reposted twice, which was contrary to the Office Order dated 18.11.1986 of the Superintending Engineer, Southern Irrigation Circle, Berhampur, the Petitioner rightly requested to post him under the Junior Engineer, Humma Irrigation Section, in terms of letter dated 18.11.1986. But on the plea of inadequate existing staff for maintenance of canal works in Purusottampur Irrigation Section No.II at Hinjilicut, the Petitioner was posted to the said Section vide letter dated 20.04.1987 by the Assistant Engineer, Rushikulya Irrigation Sub-Division, Humma, for which the Petitioner was being constrained to venture into series of litigations as detailed in the date chart tendered by the learned Counsel for the Petitioner dated 16.08.2022. Though the Petitioner was asked to show cause vide notice dated 24.10.1986 for remaining authorizedly absent from duty w.e.f. 30th May, 1984 and the Petitioner gave his response to the said Show Cause Notice for W.P.(C) No.10333 of 2020 Page 14 of 28 allegedly remaining absent beyond 31.03.1984, the Petitioner attended the Office of the Assistant Engineer, Rushikulya Irrigation Sub-Division, Humma, on 27.12.1986 and requested to post him under Junior Engineer, Humma Irrigation Section. Thereafter, he was never charge-sheeted or asked to show cause for not reporting for duty at Purusottampur Irrigation Section No.II, with headquarters at Hinjilicut, in terms of the letter dated 20.04.1987. Further, a stand has been taken in the Counter Affidavit that unauthorized absence of a Government employee from service for more than five years, leads to removal from service in terms of Rule-72(2) of Odisha Service Code. The said Rule is extracted below for ready reference. “72. REMOVAL OF GOVERNMENT SERVANT AFTER REMAINING LEAVE FOR A CONTINUOUS PERIOD EXCEEDING FIVE YEARS. (2) Where a Government servant does not resume duty after remaining on leave for a continuous period of five years, or where a Government servant after the expiry of his leave remains absent from duty otherwise than on foreign service or on account of suspension, for any period which together with the period of the leave granted to him exceeds five years, he shall unless W.P.(C) No.10333 of 2020 Page 15 of 28 Government in view of the exceptional circumstances of the case otherwise determine, be removed from service after following the procedure laid down in the Orissa Civil Services (Classifications, Control and Appeal) Rules, 1962.” (Emphasis Supplied) 10. Admittedly, the said Rule prescribes that where a Government servant does not resume duty after remaining on leave for a continuous period of five years, or where a Government servant, after the expiry of his leave, remains absent from duty otherwise than on foreign service or on account of suspension, for any period which together with the period of the leave granted to him exceeds five years, he shall, unless Government in view of the exceptional circumstances of the case otherwise determine, be removed from service after following the procedure laid down in the Orissa Civil Services (Classifications, Control and Appeal) Rules, 1962. Hence, from the said provision enshrined under Rule 72(2) of the Odisha Service Code, it is amply clear that before invoking the said provision to remove an employee from service, the State is to follow the prescribe procedure laid down under the Orissa Civil Services (Classifications, Control and Appeal) W.P.(C) No.10333 of 2020 Page 16 of 28 Rules, 1962 and it cannot be automatic. Further, it is also admitted fact that invoking such provision enshrined under Rule-72(2), no communication was made to the Petitioner till he attained the age of superannuation to the effect that because of his absence for more than five years, he is removed from service. Rather, though the Petitioner was asked to show cause and he tendered his explanation and it was allegedly found unsatisfactory, no further enquiry was conducted by the employer for such misconduct of unauthorized absence beyond the leave period. Thereafter, the Petitioner was transferred to different places. In order to accommodate one Budheswar Das, Khalasi, on mutual understanding, vide order dated 18.11.1986, the Petitioner was transferred in place of Mr. Das and vice versa. Though Mr. Das was allowed to join in the place and position of the Petitioner, but he was not allowed to join in the said place and position of Mr. Das in terms of the Office Order dated 18.11.1986. Thereafter, contrary to the said Office Order, the Petitioner was reposted at various places. Being aggrieved by such reposting orders issued by various authorities as detailed above, the Petitioner was being compelled to give W.P.(C) No.10333 of 2020 Page 17 of 28 representation to the authority concerned and so also approached the Administrative Tribunal and this Court for redressal of his grievances. 11. In Kishori Dash (supra), vide paragraphs-11 & 12, the coordinate Bench held as follows: “11. Rule 72 of the Orissa Service Code provides that no Government servant shall be granted leave of any kind for a continuous period exceeding five years and where a Government servant does not resume duty after remaining on leave for a continuous period of five years, or where a Government servant after the expiry of his leave remains absent from duty otherwise than on foreign service or on account of suspension, for any period which together with the period of the leave granted to him exceeds five years, he shall, unless Government, in view of the exceptional circumstances of the case, otherwise determine, be removed from service after following the procedure laid down in the Orissa Civil Services (Classifications, Control And Appeal) Rules, 1962. 12. A conjoint reading of Rule 8(2) of the Retirement Rules with Rule 72 of the Orissa Service Code clearly shows that when a primary school teacher remains absent for more than five W.P.(C) No.10333 of 2020 Page 18 of 28 years and does not resume his duty after the period of leave, can be removed from service by following the procedures laid down in the Orissa Civil Service (Classification, Control and Appeal) Rules, 1962. In other words, such a teacher cannot be removed from service without issuing a show cause notice and initiating a departmental proceeding as otherwise the same would clearly amount to violation of principle of natural justice and in the case of Government servant, it would be ultra vires to Article 311(2) of the Constitution inasmuch as the same would not be in conformity with the relevant provisions of Orissa Civil Service (Classification, Control & Appeal) Rules, 1962.” (Emphasis Supplied) 12. In Karunakar Behera (supra), the coordinate Bench, relying on Kishori Das (supra), vide paragraphs-22 & 23 held as follows: “22. In the instant case, undoubtedly petitioner has worked from 1968 to 25.6.1983 continuously and thereby earned more than ten years of qualifying service to receive pension and he is also entitled to receive W.P.(C) No.10333 of 2020 Page 19 of 28 gratuity. It is needless to say that although the petitioner remained absent without informing the authorities from 25.6.1983 till his notional retirement on 2.1.2001 because of the supervening circumstances, which is beyond the human control as stated above, compelling the petitioner to remain on leave, the service of the petitioner is to be regularized till attaining the age of superannuation. Since he has not worked during that period, no arrear pay can be given because of the principle of “no work no pay” but his pay can be revised notionally from time to time keeping in mind the Orissa Revised Scale of Pay Rules applicable from time to time till his date of retirement. The contention of the State that the petitioner being Government servant should have approached the Tribunal instead of this Court is untenable in the facts and circumstances and writ is maintainable. Point No.(ii) is answered accordingly. CONCLUSION 23. Considering all such aspects, the writ petition is disposed of with a direction to the opposite parties to sanction pension, gratuity and other pensionary benefits of the petitioner proportionately in accordance with Rules, 1981 and the W.P.(C) No.10333 of 2020 Page 20 of 28 Orissa Civil Services (Pension) Rules, 1992 after regularizing his service from 25.6.1983 till the date of his superannuation in accordance with law. The entire process must be completed by the opposite parties within a period of three months from today. The writ petition is disposed of accordingly.” (Emphasis Supplied) 13. In Nakhaari Bewa (supra), the Administrative Tribunal vide paragraph-6 held/observed as follows: “6. In this connection I think I should refer to a decision rendered by a Division Bench of this Tribunal in the case of Abhimanyu Das v. State of Orissa and others, in O.A, 1561 of 1991 (1905) I ATT (Oat) 286. In the said case the relevant Government Resolutions have taken into consideration and it has been concluded that the applicant therein who had continued in work charged establishment and thereafter taken over to regular establishment, was entitled to pension as per the Government Resolution. It was directed in the said judgment that period spent by the applicant in the work charged establishment had to be taken into consideration for the purpose of computing the total number of years of qualifying services W.P.(C) No.10333 of 2020 Page 21 of 28 rendered by him till retirement on superannuation for the purpose of pension. In the above case the earlier judgment of this Tribunal delivered on 21.08.1990 in T.A. No.787 of 1987 (Jacob Sahu v. State of Orissa and others) which had been unsuccessfully challenged before the Apex Court has been taken notice of. Reference has also been made therein to another judgment delivered by this Tribunal on 18.08.1990. In O.A. 84 of 1987 (Mohan Singh and 6 others v. State of Orissa and others). Referring to the Government Resolution issued on 21.01.1965, which has also been referred to in the present case, it was observed in the said judgment. “….Government is a model employer and it is expected that they would be fair to their employees at least to the extent of written commitment made to them. A person appointed and working in Government for 20 years or more and yet his service would be treated as the work charged, appears to us to be absurd. If Government did not need these persons they could have retrenched them and recruited persons when they need other work, but having W.P.(C) No.10333 of 2020 Page 22 of 28 engaged them for such a long time, we feel it unfair if they are not made permanent….” The above judgment delivered in the case of Mohan Singh and 6 others (supra) by this Tribunal had also been challenged before the Apex Court and the SLP had been dismissed. The present case seems to be fully covered by the ratio decided in the earlier cases before this Tribunal referred to above and I think the Respondents must take notice of these judgments and decide the claims of pension/family pension of all such employees and their widows including the applicant’s husband and the application who came within the purview of the Finance Department Resolution No.4419 dated 22.1.1965 and reiterated in Finance Department Office Memorandum No.5483 dated 6.3.1990.” 14. The Division Bench of this Court in Chandra Nandi (supra) while affirming the award passed by the Tribunal recording the submissions made by the learned Counsel for the State as to eligibility of an employee to receive pension, ordered as follows: “Learned counsel for the State, on the contrary, submits that in order to be eligible to W.P.(C) No.10333 of 2020 Page 23 of 28 receive minimum pension, the petitioner should have been regularized at least one day prior to his superannuation. We find that failure to regularize him as a part of inaction on the part of the State. We, therefore, direct that the petitioner should be treated to have been regularized in service at least one day prior to his superannuation notionally and we further direct that calculating his entitlements, his pension amount shall be fixed by the opposite parties – State, in accordance with the rules and the arrear pension of the petitioner so calculated shall be paid to the petitioner by the end of March, 2014 and further the monthly payment of pension shall be made to the petitioner regularly thereafter.” (Emphasis Supplied) 15. In Uttam Pradhan (supra), the Tribunal vide paragraph-6 held as follows: “6. In the circumstances, we would dispose of this original application with direction to the Respondents to take appropriate action in accordance with the Finance Department Resolution issued on 22.01.1965 and also the instructions issued later in the matter of counting the W.P.(C) No.10333 of 2020 Page 24 of 28 period spent by an employee in the work charged establishment for the purpose of pension and disburse the claim of the applicant made in the original application within three months from the date of receipt of a copy of this order. There should not be any discrimination made in the matter of extending the benefit to the applicants since such benefit has been extended to the employees similarly placed like the late Dinabandhu Pradhan. The applicants if would feel aggrieved on account of any order passed by the appropriate authority pursuant to the aforesaid direction, they are free to approach this Tribunal seeking appropriate direction.” (Emphasis Supplied) 16. So far as the judgment cited by the learned Counsel for the State/Opposite Parties i.e. Syndicate Bank (supra), the same is relating to an industrial dispute matter pertaining to a reference made by the appropriate Government to the Industrial Adjudicator to answer as to whether the action of the Bank Management in terminating the services of the workman, who was a Clerk, is legal and justified. If not, to what relief the workman is entitled to? The Bank Management took a stand that such an action of termination of service of the workman is based on terms of a W.P.(C) No.10333 of 2020 Page 25 of 28 Bipartite Settlement between the Management of the Bank and the employees with regard to voluntary retirement from service of the Bank for his unauthorized absence from duty for a long period and it was not necessary to conduct a domestic enquiry. It was held that the Bank Management has followed the terms of Clause-16 of the Bipartite Settlement which is binding on the workman. Accordingly, it was further held that in terms of the said settlement, the long unauthorized absence of the workman was treated to be his voluntary retirement from the service of the Bank and it was not necessary for the Bank to hold an enquiry before passing of the order of termination. Hence, this Court is of the view that the said judgment cited by the learned Counsel for the State/Opposite Parties is not applicable to the facts of present case. 17. At this juncture, it is apt to reproduce below Rule-18 (3) of the Odisha Civil Services (Pension) Rules, 1992. “18. Conditions subject to which service qualifies- (3) anything Notwithstanding contained in clauses (i) and (ii) of sub-rule (2) a person who is initially appointed by the work-charged Government establishment for a period of five years or in a W.P.(C) No.10333 of 2020 Page 26 of 28 more and is subsequently appointed to the same or another post in a temporary or substantive capacity in a pensionable establishment without interruption of duty, the period of service so rendered in work- charged establishment shall qualify for pension under this rule.” 18. From the admitted facts on record, in terms of Rule 72 of the Orissa Service Code, following the procedure laid down in the Orissa Civil Services (Classifications, Control and Appeal) Rules, 1962, no action was taken by the State/Opposite Parties for removing the Petitioner from service before he attained the age of superannuation. Also no communication was ever made to the Petitioner to the said effect. Hence, in view of the legal provisions for awarding pension, so also the judgments cited by the learned Counsel for the Petitioner, as detailed above, this Court is of the view that the Petitioner is entitled for pension in terms of Rule 18(3) of Odisha Civil Services (Pension) Rules, 1992 and the impugned rejection order dated 10.02.2020 under Annexure-4, which was passed wrongly relying on Rule 72 of the Orissa Service Code, is liable to be quashed. Accordingly, the said rejection order dated 10.02.2020 is hereby set aside. The Opposite Parties are directed to grant pension and other W.P.(C) No.10333 of 2020 Page 27 of 28 benefits to the Petitioner proportionately in terms of Rule 18(3) of Odisha Civil Services (Pension) Rules, 1992, after regularizing the service of the Petitioner from the date of alleged unauthorized absence i.e. beyond 30th May, 1984, till the date of his attaining the age of superannuation in accordance with law. The entire process shall be completed by the Opposite Parties 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. However, there shall be no order as to cost. …….….…………………… S.K. MISHRA, J. Orissa High Court, Cuttack The 31st day of October, 2023/Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 02-Nov-2023 16:50:25 W.P.(C) No.10333 of 2020 Page 28 of 28