The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.7779 of 2024 1) Pratima Das ..... Petitioner Represented By Adv. - Pradeep Kumar Mahapatra -versus- 1) State Of Odisha ..... Opposite Parties 2) Director Icds And Social Welfare 3) Principal Accountant General (a And E) , Odisha Represented By Adv. –
Legal Reasoning
Mr.Saswat Das, AGA Mr.S.K.Patra, Standing Counsel for A.G.Odisha THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA CORAM: Order No.
Decision
ORDER 04.04.2024 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as the Additional Government Advocate for the State. Perused the Writ Petition as well as the documents annexed thereto. 3. The Petitioner has filed the present writ application with the following prayer: “ In view of the aforesaid facts and circumstances as narrated above, it is prayed that this Hon’ble Court be graciously be pleased to admit the Writ Petition and issue Rule Nisi or any other appropriate Writs against the Opp.Parties calling upon the Opposite Parties to show cause as to why the order at Annexure-5 should not be quashed and they shall not be directed to release the recovered/withheld amount as indicated in the said order with interest; And if the Opp.Parties failed to show cause or show insufficient cause, make the said Rule absolute by quashing the order at Annexure-5 and directing the Opp.Parties to release the recovered/withheld amount as indicated in the said order with interest. issue any other appropriate Writ/Writs, fit and And/or order/orders, direction/directions as deem proper in the fitness of the case.” 4. It is submitted by the learned counsel for the Petitioner that the Petitioner was serving in the rank of District Social Welfare Officer. Finally, on attaining the age of superannuation the Petitioner has retired from service with effect from 31.03.2017. Learned counsel for the Petitioner further contended that on the basis of an audit report under Annexure-5 dated 29.01.2024, the Opposite Party no.2 has written to the Office of the Principal Accountant General, Odisha for recovery of some amount from the pension as well as gratuity of the present Petitioner. Learned counsel for the Petitioner also contended that the recovery is sought to be made on the basis of audit report without providing any opportunity to show cause to the Petitioner. He further contended that the order of recovery and withholding of the retiral dues being punitive in nature, the Opposite Parties should have followed the principle of natural justice. Accordingly they will provide an opportunity to show cause to the Petitioner before writing a letter under Annexure-5 to the Writ Petition to the Office of the Principal Accountant General, Odisha for recovery of such amount He further contended that on the basis of the letter of Opposite Party No.2 under Annexure-5, the Office of the Principal Accountant General has passed order on 08.02.2024 under Annexure-6 indicating therein for recovery of certain amount. Being aggrieved by such conduct of the Opposite Parties, the Petitioner has approached this Court by filing the present Writ Petition. 5. In course of argument, learned counsel for the Petitioner further contended that although in the meantime he has approached Opposite Party No.2, the Pension Sanctioning authority by filing a representation on 10.02.2024. However, no final decision has been taken on the representation of the Petitioner under Annexure-7. Learned counsel for the Petitioner also contended that the Petitioner is entitled to a total gratuity of Rs.13,33,332/- pursuant to order dated 06.09.2023 under Annexure-3, out of which the Petitioner initially paid a sum of Rs.6,66,666/- under Annexure-6 to the Writ Petition. Out of the balance amount the Opposite Party no.2 vide his letter dated 29.01.2024 under Annexure-5 directed to deduct a sum of Rs.22,293/- and to withhold a sum of Rs.1,38,784/- on the basis of the observation made in para-13 of the audit report. He further contended that withholding of amount is illegal and contrary to Rule 70 of the OCS(Pension) Rule, 1990. 6. Learned Additional Government Advocate on the other hand contended that on the basis of the audit objection, the Petitioner was found guilty. Accordingly the Pension Sanctioning authority has written to the Office of the Accountant General, Odisha for recovery from the gratuity amount of the Petitioner. Accordingly, a sum of Rs.22,293/- has already been recovered and Rs.1,38,784/- has been withheld. He further contended that such a decision was taken by the Opposite Party No.2 basing upon the observation made in Para-13 of the audit report. Therefore, it was contended that the Opposite Party No.2 has not committed any illegality in directing recovery of the gratuity amount. In such view of the matter, learned counsel for the Petitioner contended that the Writ Petition is devoid of merit and the same be dismissed. 7. Mr.S.K.Patra, learned Standing Counsel appearing for the A.G.Odisha (Opposite Party No.3) submitted that the Office of the Principal Accountant General has acted upon the recommendation of the Pension Sanctioning Authority, Opposite Party no.2. In such view of the matter, no fault can be found with the conduct of Opposite Party No.3. Accordingly, it is submitted that the present Writ Petition is not maintainable. 8. Having heard learned counsels for the respective parties, on a careful examination of the materials on record, this Court taking into consideration the limited nature of grievance dispose of the Writ Petition at the stage of admission. On a careful consideration of the factual background of the present case, this Court is of the view that the recovery can be made only on the basis of the audit report. The Opposite Parties are duty bound to provide an opportunity of hearing before proceeding to recover the amount from the gratuity dues of the Petitioner on the basis of the audit report. No opportunity having been provided to the Petitioner, it appears that the Opposite parties have acted in an illegal manner. However considering the fact that the Petitioner has already approached the Opposite Party No.2 by filing a representation under Annexure-7 to the Writ Petition dated 10.02.2024, this Court deems it proper to directs the Opposite Party N.2 to consider the representation of the Petitioner strictly in accordance with law and under OCS (Pension) Rule, 1990, if the same is still pending, for consideration, within a period of six weeks from the date of communication of certified copy of this order. Further, it is directed that Opposite Party No.2 shall do well to dispose of the representation by passing a reasoned and speaking order after providing an opportunity to the Petitioner. Any final decision taken by the opposite Party no.2 as directed herein above be communicated to the Petitioner within10 days from the date of taking such decision. 7. With the aforesaid observation, the writ application stands disposed of. Issue urgent certified copy of this order as per Rules. ( A.K. Mohapatra ) Judge RKS Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Reason: Authentication Location: High Court of Orissa Date: 05-Apr-2024 15:59:15