The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.10349 of 2023 Sanatan Dhal …. Petitioner Mr.Subir Palit,Sr. Advocate State of Odisha & others -versus- …. Opposite Parties Mr.Iswar Mohanty, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 04.04.2023 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard Mr.Palit, learned counsel for the Petitioner as well as Mr.Iswar Mohanty, learned Additional Standing Counsel for the State. Perused the Writ Petition as well as the documents annexed thereto. 3. The present Writ Petition has been filed with the following prayer: “In the aforesaid facts and circumstances, it is humbly therefore prayed that this Hon’ble Court may graciously be pleased to admit the Writ Application and issue RULE NISI calling upon the Opposite Party No.1 to show cause as to why the Writ Application shall not be allowed and appropriate writs should not be issued to quash the objection dated 03.11.2022 raised by Opp.Party No.1 under Annexure-5 as the objection is not based on any reasoning and has been raised without application of mind; And be further pleased to direct the Opp.Paty No.1 to release the pension in favour of the Petitioner as per circular dated 05.04.2003 under Annexure-1 read with Circular dated 06.02.2007 under Annexure-2 within a stipulated period; And if the Opp.Party No.1 fail to show cause or show insufficient cause, the said rule may be made absolute and upon hearing the parties through their counsel; And this Hon’ble Court be further pleased to issue appropriate writ/writs quashing the objection dated 03.11.2022 raised by the Opp.Party No.1 under Annexure-5 as the objection // 2 // is not based on any reasoning and has been raised without application of mind; And such other relief/reliefs to which the Petitioner be found entitled to be granted in her favour.” 4. At the outset Mr.Palit, learned senior Counsel for the Petitioner submitted that the Petitioner was initially appointed on temporary basis as a cleaner on 01.11.1973 in Ex-State Transport Service (Ex-STS). Thereafter, the Petitioner was relieved from his duty with effect from 22.04.1974. Then the Petitioner was reappointed as Cleaner on 04.05.1974. On 15.05.1974 the State Transport Service was converted to a Corporation, named as Orissa State Road Transport Corporation (OSRTC) and the Petitioner was appointed prior to formation of Corporation, joined the Corporation as Ex-STS employees along with other similarly situated employees. Thereafter, the Petitioner continued in the OSRTC and while he was serving in the Corporation, the Petitioner was relieved from the post of Cleaner and joined as Tyreman on the very same day. Finally, the Petitioner retired from service on attaining the age of superannuation with effect from 08.03.2001 while he was working in the Corporation as Ex-S.T.S. employees. It is further submitted by the learned senior counsel for the Petitioner that near about 3000 Ex-STS employees who were working in the OSRTC which was formed in the year 1974, were treated as Ex-STS employees on deputation to OSRTC. Further, vide Notification dated 05.04.2003 those employees received pensionary benefit. He has further submitted that several other similarly situated employees have been extended the pensionary benefit, but the Petitioner has been singled out and discriminated by the Government. 5. He further contended that on 06.02.2007 the Government in Commerce & Transport Department took a decision for release of pension of Ex-STS employees who had been allotted the EPF account // 3 // and the same has been subject to closure of EPF account and refund of the EPF share to the EPF authority. In this context, learned counsel for the Petitioner submitted that the Petitioner has already closed the EPF account and he has surrendered the EPF share to the EPF authority. Therefore, it was contended before this Court that the Petitioner is entitled to the pensionary benefit at par with the employees, who have been extended with such benefit surrendering their EPF share to the EPF authority and those Ex-STS employees were deputed to OSRTC. It is further contended in the context of refunding of EPF share that on 24.06.2021 the Petitioner was directed to deposit a sum of Rs.3,89,975/- with up-to-date interest towards pension share received by the Petitioner from EPFO from 09.03.2021. Pursuant to such request, the Petitioner on 16.07.2021 has already deposited a sum of Rs.4,01,000/- with EPFO towards the pension share along with interest. On 10.02.2022 the OSRTC directed the Petitioner to deposit Rs.3,42,532/- towards the employees share. Pursuant thereto on 11.03.2022 the Petitioner has already deposited a sum of Rs.3,45,000/- with OSRTC towards employer share. While the matter stood thus, on 21.04.2022 the EPFO refunded the pension contribution of OSRTC and ultimately the EPF Account of Petitioner was closed with EPFO. 6. Finally, on 22.09.2022 the pension paper of the Petitioner along with closure certificate were submitted before the Government for release of pensionary benefit to the Petitioner, but the Government in Commerce and Transport Department vide letter dated 03.11.2022 rejected the claim of the Petitioner vide impugned order dated 03.11.2022 under Annexure-5. On perusal of Annexure-5, it appears that the authority while rejecting the claim of the Petitioner has taken a ground that the period of break in service i.e. from 23.04.1974 to 03.05.1974 near about 11 days break has not been condoned by the competent authority. Although in the very same letter they have // 4 // admitted that such delay has been condoned by the OSRTC vide Office Order No.91 dated 19.01.2022. However, while admitting such position, the Government has questioned the authority of the OSRTC to condone such delay. 7. Mr.Palit, learned senior counsel appearing for the Petitioner further referring to the Memorandum dated 02.02.1981 of the Government of Odisha submitted that the said memorandum in Clause- (iii) provides that the break period in case of retrenched employee is appointed under the Government can be condoned up to a maximum period of two years by the authority competent to make the appointment. Such period shall be counted for the purpose of pension and leave, except the break period. 8. On a careful consideration of the submissions made by the learned counsel for the Petitioner as well as on an analysis of the factual background facts of this case, this Court is of the considered view that even accepting the fact that the OSRTC had no authority to condone the break period of 11 days, while rejecting the claim of the Petitioner, the Government should have considered the same and keeping in view the Office Memorandum dated 02.02.1981 should have considered for condonation of such break period by itself. In such view of the matter, this Court is of the considered view that the impugned rejection order under Annexure-5 is unsustainable in law. Accordingly, the same is hereby set aside. Further, the matter is remanded back to the Opposite Party No.1 to consider the condonation of break period in service of the Petitioner while he was in the State Transport Service (STS) by taking into consideration the Office Memorandum dated 02.02.1981. The Opposite Party No.1 is further directed to consider the case of the Petitioner keeping in view the fact that similar benefits are extended in favour of the similar employees, who are ex-STS employees and deputed to OSRTC. Further, the Petitioner in the meantime has closed // 5 // the EPF Account and the amount has already been surrendered before the EPF authority. In view of the aforesaid analysis, the Petitioner is directed to approach the Opposite Party No.1 along with certified copy of this order within a period of two weeks. In the event the Petitioner approaches the Opposite PartyNo.1, the Opposite Party No.1 shall do well to consider the matter afresh keeping in view the analysis made in the aforesaid direction given by this Court and shall take a decision as per law, within a period of eight weeks from the date of presentation of certified copy of this order. The decision, so taken be communicated to the Petitioner within two weeks thereafter. 9. Since the Writ Petition is being disposed of at the stage of admission without issuing notice to the Opposite Parties, liberty is granted to the Opposite Parties seeking variation/modification of the order in the event they feel that there is suppression of material facts at the instance of the Petitioner. 10. With the aforesaid observation/direction, the Writ Petition stands disposed of. RKS ( A.K. Mohapatra ) Judge