The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 9849 of 2024 Sudhakar Pradhan Petitioner M/s. Sidheswar Mallik, Advocate & Associates …. -Versus- State of Odisha & another …. Opposite Parties Mr. N.K. Praharaj, AGA CORAM: MR. JUSTICE R.K. PATTANAIK Order No.
Decision
ORDER 11.09.2024 04. 1. Heard Mr. Mallik, learned counsel for the petitioner and Mr. Praharaj, learned AGA for the State. 2. Instant writ petition is filed by the petitioner for a direction to the opposite parties to sanction and ensure disbursement of post- retirement benefits, such as, final pension, gratuity and leave salary in his favour within a stipulated period on the grounds stated. 3. Mr. Mallik, learned counsel for the petitioner, in the first place, submits that the disciplinary proceeding pending is deemed to have been closed in view of the judgment as at Annexure-1 as it could not be concluded within the time stipulated. Mr. Mallik, learned counsel further submits that the petitioner has not been disbursed with the leave salary on the premise of pendency of the disciplinary proceeding, whereas, in a similar case, it has been allowed and while claiming so, produced a copy of the order of the Home Department, Government of Odisha dated 6th April, 2023. Furthermore, in support of such contention, Mr. Mallik, learned counsel relies on a decision of the Apex Court in the case of State of Page 1 of 5 Jharkhand and others Vrs. Jitendra Kumar Srivastava (2013) 12 SCC 210. It is contended that the disciplinary proceeding was not to be continued as it was not closed within the time line fixed vide Annexure-1 and the petitioner could not have been deprived of leave salary in view of the decision of Jitendra Kumar Srivastava (supra) referring to any such Office Memorandum dated 26th March, 2015 of the Govt. 4. Mr. Praharaj, learned AGA for the State produces a copy of the counter affidavit filed through opposite party No.1 in Court today and submits that the delay in disclosure of the disciplinary proceeding is on account of filing of W.A. No.3069 of 2023 disposed of on 2nd January, 2024. It is submitted that though such a direction was issued vide Annexure-1 to conclude the disciplinary proceeding within the time stipulated, it could not have been accomplished in view of pendency of W. A. No. 3061 of 2023 till the month of January, 2024. In response to release of leave salary, Mr. Praharaj, learned AGA further submits that it has been withheld in view of the Office Memorandum i.e. Annexure-B/1 to the counter affidavit of Finance Department, Government of Odisha. In response to the above, Mr. Mallik, learned counsel for the petitioner reiterated the plea relying on the decision of the Apex Court in Jitendra Kumar Srivastava (supra) to contend that such withholding of leave salary is impermissible and cannot be based on any such administrative instruction, such as, Annexure-B/1. 5. As per the Office Order dated 6th April, 2023 of the Home Department, Government of Odisha, a copy of which is produced in Court, pursuant to a direction issued in W.P.(C) No.15953 of 2022, the Government implemented the same and sanctioned the un-utilized leave salary in favour of the petitioner therein, referring Page 2 of 5 to which, Mr. Mallik, learned counsel for the petitioner submits that parity should be extended to the petitioner as well. 6. Perused the counter affidavit and reply of the opposite parties. 7. When against the decision of this Court vide Annexure-1, the appeal was filed and it was pending till the month of January, 2024, the Court is in agreement with the submission of Mr. Praharaj, learned AGA for the State that the disciplinary proceeding could not have been concluded within the time stipulated. In other words, the Court is of the view that on account of pendency and disposal of W.A. No. 3061 of 2023, there was no any occasion and possibility for closure of the disciplinary proceeding within the time period fixed vide Annexure-1 and therefore, it cannot thus be held that the same is held to be closed in view of the contention of Mr. Mallik, leaned counsel for the petitioner. 8. As regards, the plea for grant of un-utilized leave salary, the Court is inclined to reproduce the relevant extract of the decision in Jitendra Kumar Srivastava (supra), which is as follows: “16. The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in “property”. Article 300-A of the Constitution of India reads as under: “300-A. Persons not to be deprived of property save by authority of law - No person shall be deprived of his property save by authority of law.” Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived his pension, which is the constitutional mandate enshrined in Article 300A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment Page 3 of 5 without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.” 9. In view of the above decision, the Court is inclined to accept the contention of Mr. Mallik, learned counsel for the petitioner that the un-utilized leave salary has been withheld on the basis of the Office Memorandum i.e. Annexure-B/1, which is admittedly an administrative instruction. So to say, being alive to the legal position explained in the decision (supra) and recording the submission of Mr. Praharaj, learned AGA for the State that the State of Jharkhand did not have any rule to deal with such sanction of leave salary, which was based on an administrative instruction and so was withdrawn, the Court is of the conclusion that similar is the case in so far as the petitioner is concerned, as such withholding is on account of the Office Memorandum i.e. Annexure- B/1, which is nothing more than an administrative instruction. Thus, the Court is of the view that in absence of any statutory bar against release of un-utilized leave salary in favour of the petitioner, notwithstanding the pendency of the disciplinary proceeding against him, the leave salary cannot be withheld referring to Annexure-B/1 in view of the settled law enunciated by the Apex Court in Jitendra Kumar Srivastava (supra). 10. Considering the submissions of learned counsel for the respective parties, since the disciplinary proceeding is pending at the stage of inquiry with the Inquiring Officer being appointed in the month of August, 2024, the Court is of the further view that the same is required to be concluded at the earliest after being expedited and for the said purpose, further three months’ time should be permitted. 11. Accordingly, it is ordered. Page 4 of 5 12. In the result, the writ petition stands allowed to the extent indicated herein above with a direction to opposite party No.1 to conclude the disciplinary proceeding within the time stipulated i.e. three months from today, to which and for its closure, the petitioner shall extend all kinds of cooperation without fail. It is further directed that the un-utilized leave salary which has been allowed to the petitioner with the direction as aforesaid shall immediately be disbursed in his favour as soon as possible preferably within a period of four weeks hence. 13. In the circumstances, however, there is no order as to costs. 14. Urgent certified copy of this order be issued as per rules. Balaram (R.K. Pattanaik) Judge Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Sep-2024 11:47:46 Page 5 of 5