The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.11384 of 2022 (This is an application under Article 226 and 227 of the Constitution of India) G. Nageswar Rao …. Petitioner -versus- State of Odisha and others …. Opposite Parties For Petitioner For Opp. Parties : : M/s. Sasiva Patra-1, Advocate, S. Mohanty-1, S. Rath and A. Rout Mr. R.N. Mishra, learned Addl. Govt. Advocate CORAM: JUSTICE A.K. MOHAPATRA JUDGMENT Date of hearing : 23.02.2023 | Date of Judgment : 24.03.2023 A.K. Mohapatra, J. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard Mr. S.S. Patra-1, learned counsel for the petitioner and Mr. R.N. Mishra, learned Additional Government Advocate for the State. // 2 // 3. The present writ petition has been filed by the petitioner with the following prayers: “It is therefore, most humbly prayed that this Hon’ble Court be graciously pleased to issue a writ/writs in nature of certiorari quashing the letter No.2287 dtd.24.10.2012 as under Annexure-1 and order dtd.12.05.2021 as under Annexure-8 and further be pleased to issue a writ/writs in the nature of Mandamus directing the Opp. Parties to release the Final Pension, Gratuity and other retirement benefits including all the arrears forthwith along with interest @ 12% per annum without any further delay. And pass such other direction/order as deem fit and proper for interest of justice.” 4.
Legal Reasoning
The factual background of the present case, in a narrow compass, is that on 29.11.1977, the petitioner joined as Sub-Assistant Jailor in the district of Bhawanipatna. In course of his service career, the petitioner was being transferred and posted at different places in the State. In the year 2009, a departmental proceeding bearing No.13 of 2009 was initiated against the petitioner on the allegation that while the petitioner was in duty, a prisoner escaped from the prison. At the time, the petitioner was working as a Jailer-cum-Superintendent in Jeypore Sub- jail. It is relevant to mention here that while the petitioner was working as a Jailor-cum-Superintendent in Jeypore Sub-jail in the district of Koraput, he has retired from service on attaining the age of superannuation on 28.02.2011. // 3 // 5. After retirement of the petitioner, the petitioner came to learn that the Audit Team has raised objection and accordingly, Superintendent, Sub-Jail, Jeypore instructed the petitioner to submit his specific/compliance to the Audit Objection made by the D.A.R. No.46 of 2012 for the period 01.02.2008 to 31.03.2012. In reply to the same, the petitioner has submitted his reply on 23.12.2012 to the Superintendent of Sub-jail, Jeypore, Koraput-Opposite Party No.3 with a copy to the Director General of Prisons and DCS, Odisha, Bhubaneswar-Opposite Party No.2 specifically stating therein that he has already complied with the objected amount of Rs.6,291/- and Rs.10,340/- as has been pointed out in the Audit Report. Moreover, the petitioner had requested the Opposite Parties to verify such fact from the concerned record and accordingly, requested the Opposite Parties to comply with other part of the Audit Objection as complained in Para-5, 7 to 9. While the matter stood thus, on 26.08.2013, the petitioner was awarded with punishment of 5% cut from his pension for a period of two years in D.P. No.13 of 2009. On 09.01.2020, the Opposite Party No.3 instructed the petitioner to deposit the objected amount of Rs.10,43,694/- to the local treasury as the same amount was sought to be recovered from the petitioner. The Opposite Party No.3 lodged an F.I.R. on 22.12.2020 against the petitioner, which was registered as Jeypore Town P.S. F.I.R. No.367 // 4 // dated 22.12.2020 under Section 409, I.P.C. The said F.I.R. was lodged pursuant to Home Department letter No.39224 dated 07.12.2022 and Prisons Directorate letter No.19183 dated 15.12.2020. 6.
Legal Reasoning
Learned counsel for the petitioner further contended that although the petitioner, apprehending his arrested in a criminal case, has applied for anticipatory bail bearing ABLAPL No.16418 of 2020 before this Court, however, this Court vide order dated 05.02.2021 granted interim bail to the petitioner and finally vide order dated 25.04.2021, this Court released the petitioner on anticipatory bail. Thereafter, the petitioner surrendered before the learned trial court and was released on bail. On 04.01.2021, the petitioner submitted a representation before the Opposite Party No.2 by Speed Post therein making a prayer to release his final pension, gratuity and arrear dues, which are pending since 2011 for his treatment at an early date as the petitioner is suffering from Cancer. 7. Since the authorities did not take any effective steps in the matter, the petitioner was compelled to file a writ petition bearing W.P.(C) No.6115 of 2021 with a prayer to dispose of the representation of the petitioner within a stipulated period of time and further to direct the Opposite Parties to release the final pension, gratuity and other retiral benefits in favour of the petitioner including all arrears along with interest @12% per annum. The said writ petition was disposed of vide // 5 // order dated 09.03.2021 with a direction to the Opposite Party No.2 to take a decision by giving opportunity of hearing to the petitioner within a period of two months from the date of presentation of the certified copy
Decision
of this order along with copy of the writ petition. 8. On 31.03.2021, the Establishment Officer in the office of the Directorate of Prisons and DCS directed the petitioner to appear for personal hearing on 09.04.2021. On 02.04.2021, the Opposite Party No.3 informed the Establishment Officer that some of the documents which are likely to be relied upon, while imposing punishment, are not available in the office as the previous officer in-charge had not handed over charge by then. Pursuant to the notice on 09.04.2021, the petitioner appeared before the Opposite Party No.2 at 11.00 A.M. despite Corona Pandemic scenario. However, it is further alleged by learned counsel for the petitioner that although the petitioner was present, he was not given any opportunity of hearing. Again on 13.04.2021 the petitioner received another notice through Whatsapp instructing him to appear before the Opposite Party No.2 on 16.04.2021. Despite the illness of the petitioner, he appeared before the Opposite Party No.2 on 16.04.2021. He further submitted that a requested was made to allow his attendant to be present with him in view of the poor health condition of the petitioner. // 6 // 9. Finally, by order dated 12.05.2021, the Opposite Party No.2 rejected the prayer / request of the petitioner to release his final pension, gratuity (DCRG) and other retiral benefits due to pendency of the criminal case. 10. Learned counsel for the petitioner submitted before this Court that the disciplinary proceeding which was initiated against the petitioner vide D.P. No.13 of 2009 has come to an end by imposing punishment on the petitioner as has been referred to hereinabove. It is further contended by learned counsel for the petitioner that most unfortunately, due to illness and other inconvenience faced by the petitioner, the petitioner to avoid the stress of going to litigation did not challenge the order passed in the disciplinary proceeding and hence, accepted the punishment. 11. Further, learned counsel for the petitioner contended that after retirement of the petitioner w.e.f. 28.02.2011, the petitioner was asked to comply the audit objection vide letter dated 24.10.2012. He has also submitted that although an F.I.R. was lodged against the petitioner, however, he was not given any opportunity to verify the concerned records as per letter of the petitioner under Annexure-2. 12. Learned counsel for the petitioner further submitted that the audit objection and criminal case has no nexus with the Departmental // 7 // Proceeding bearing No.13 of 2009, and that, till date no proceeding has been initiated in view of the audit objection and therefore, he contended that the order dated 12.05.2021 rejecting the prayer of the petitioner to release pension and final pension as well as gratuity is highly illegal and arbitrary. It is also submitted by learned counsel for the petitioner that on 22.08.1991, the Finance Department OM inviting the guideline regarding recovery of dues on account of non-settlement of audit objection. The said guideline dated 22.09.1991 provides as follows:- “It has to be borne in mind that the findings in an audit report/para do not impose any liability on the Government servant concerned unless the same is established in a Departmental proceedings initiated against him under the Orissa Civil Service (Classification, Control and Appeal) Rules, 1962.” 13. Mr. Mishra, learned Additional Government Advocate, on the other hand, submits that the Opposite Party No.1 to 3 has already filed counter affidavit in this case. In the counter affidavit, the Opposite Parties Nos.1 to 3 has jointly denied the liability on account of the petitioner’s claim it has also been stated in the counter affidavit that the impugned order has been passed pursuant to the order dated 09.03.2021, which was passed by the Directorate of Prisons. Accordingly, it has been submitted that since the proceedings were pending against the petitioner, he was not given final pension, gratuity and the same has been withheld. Additional reply has also been submitted to that effect that the petitioner // 8 // has not deposited the amount as objected by the audit which has caused loss to the Opposite Parties. The financial benefits as would be payable to the petitioner has been withheld by the authorities and such conduct of the Opposite Parties are completely illegal and no fault could be found with such decision. It is further contended that in fact, charge-sheet has already been submitted in the criminal case. 14. On a careful reading of the counter affidavit, it appears that the Opposite Parties have repeatedly stated that since a criminal case is pending against the petitioner and he has been directed to deposit the amount which has been objected to by the audit and the same have not been deposited by the petitioner, the authorities has not done any illegality by withholding the financial benefits. Moreover, learned Additional Government Advocate submitted before this Court that the petitioner has been entangled in criminal case where there is allegation of misappropriation of Government money to the a tune of Rs.9,15,752.00. Counter affidavit further reveals that Jeypore P.S. Case No.367 of 2020 under Section 409, I.P.C. in G.R. Case No.982 of 2020 is pending before the learned S.D.J.M., Jeypore and accordingly, the petitioner has been charge-sheeted in the said case. 15. Referring to Sub-rule(2) of Rule 7 of the Orissa Civil Service Pension Rules, 1992, it was argued by learned counsel for the State that // 9 // in a case, the petitioner retired from service on attaining the age of superannuation or otherwise a departmental proceeding or a judicial proceeding instituted and continuing, the provisional pension be provided as Rule 66 shall be sanctioned and paid to such delinquent employees. Moreover, it was also contended that in view of the settled legal position, a judicial proceeding shall be deemed to be instituted in the case involving criminal liability with effect from the date when cognizance is taken. Since the petitioner was getting provisional pension under Rule 66 of the Pension Rules and a criminal case is pending against the petitioner for commission of offence under Section 409, I.P.C. wherein it is emphatically submits that the question of giving the final pension and gratuity does not arise at all. In course of argument reference was also made to OCS Pension Rules and submitted that pension paid under the Rules are subject to provisions of the OCS (Pension) Rules, 1992. 16. Learned Additional Government Advocate next submitted that there is no denial to the facts that the petitioner has retired from Government service w.e.f. 28.02.2011 and at the time of retirement, there was departmental proceeding pending against the petitioner bearing D.P. No.13 of 2009 and on conclusion of the said D.P., the petitioner was imposed with a punishment to the tune @ 5% cut in pension for a period // 10 // of two years. The order of punishment has attained finality as the petitioner has accepted the same by not challenging the same any further. 17 In reply to the assertions made in the counter affidavit, learned counsel for the petitioner filed a rejoinder affidavit and in the rejoinder affidavit, the petitioner has re-asserted the facts which has been stated in the writ petition and he has also reiterated in rejoinder affidavit that the writ petition has been filed challenging the action of illegally withholding the final pension and gratuity of the petitioner. Admittedly, there is no departmental or any criminal proceeding at the time of his retirement on 28.02.2011. It has also been stated in the rejoinder affidavit that the criminal case was initiated nine years after the retirement of the petitioner on 22.02.2020 and such criminal case was initiated on the basis of audit objection. 18. Learned counsel for the petitioner referring to the rejoinder affidavit submits that clause (v) Sub-rule (2) Rule 7 of the OCS Pension Rules, 1992 is not applicable to the case of the petitioner as no proceeding was pending against the petitioner at the time of his retirement. He further contended that similarly Rule 66 is also not applicable to the facts of the petitioner’s case and that there is no pecuniary loss to the Government through the petitioner for which any departmental proceeding was pending as on the date of retirement. // 11 // Furthermore, as per the provision of clause (b)(i) Sub-rule(2)(e) of Rule 7 of the OCS Pension Rules, 1992 no disciplinary proceeding is pending against the petitioner w.e.f. 25.08.2013 i.e. after disposal of the D.P. No.13 of 2009. Therefore, after disposal of the D.P. No.13 of 2009 w.e.f. 25.08.2013, the petitioner is eligible to get pensionary benefit as well as gratuity as no judicial proceeding or departmental proceeding was pending against the petitioner for a period of almost seven years till F.I.R. was lodged in the year 2020 basing upon audit objection. He further contended that pursuant to Rule 6 no order has been passed by the Government withholding either the gratuity or the pension of the petitioner invoking the discretionary power conferred under Rule 6. 19. Learned counsel for the petitioner has also referred to the Finance Department OM dated 22.08.1991, the relevant portion of the aforesaid circular has been extracted herein below :- / para do not “It has to be borne in mind that the findings in an audit report the is Government servant concerned unless established in a departmental proceedings initiated against him under the Orissa Civil Service (Classification, Control and Appeal) Rule, 1962.” liability on the same impose any 20. In course of his argument, learned counsel for the petitioner submitted that the conduct of the Opposite Parties are contrary to the law laid down by this Court in the case of Braja Sundar Pattnaik vrs. State of Orissa and others : reported in 2008(I) OLR 384 wherein this Court // 12 // has categorically held that Rule 66(1) and (2) of the Rule, 1992 is not applicable to the Government servant where there is no departmental or judicial proceedings are pending on the date of retirement against the petitioner. 21. In course of argument, learned counsel for the petitioner also relied upon the Circular of the G.A. & P.G. Department, Government of Odisha dated 30.12.1999, which was issued in the context of time taken for pension as per direction of this Court in the case of Dhruba Charan Panda vrs. State of Orissa : reported in 1999 (II) OLR 433. Furthermore, he also relied upon the judgment Braja Sundar Pattnaik’s case (supra) wherein this Court had granted 10% penal interest per annum and gratuity amount as well as pensionary benefit where there is delay in payment of pensionary benefits and gratuity. 22. Finally, learned counsel for the petitioner repeated the contention of the State-Opposite Parties in the counter affidavit relied upon the judgment passed by the coordinate Bench of this Court in the case of Manoranjan Khadenga vrs. Chairman, Orissa Forest Development Corporation Ltd., Bhubaneswar, Khurda and others : reported in 2016(I) OLR-651 submitted that withholding the retirement benefits as admissible to the petitioner as such, gratuity as well as leave salary without initiating a disciplinary proceeding and in the absence of such // 13 // departmental proceeding liability fixed only on the basis of audit report, after his retirement, is without authority of law. Moreover, the grounds taken by the State Opposite Parties with regard to entitlement of the gratuity and leave salary and sanction and release of the same after final settlement of outstanding dues, is not tenable in the law. Accordingly, upholding the same, this Court issued direction for payment. 23. Learned counsel for the petitioner also relied upon the judgment delivered by a division Bench of this Court in the case of State of Odisha and others vrs. Sushanta Chandra Sahoo and others (W.P.(C) No.14718 of 2015) in support of his contentions that when there is no proceeding pending on the date of retirement, then the retirement benefits including pension, gratuity cannot be withheld by the Opposite Parties. Such conduct of the Opposite Parties, is contrary to the law and the OCS Pension Rules, 1992. On a careful perusal of the judgment in State of Odisha and others vrs. Sushanta Chandra Sahoo and others(supra) in W.P.(C) No.14718 of 2015 judgment dated 06.05.2022 in para-9 it has been observed as follows:- “9. On perusal of aforementioned provisions, it is made clear by Rule-7(2)(c), Explanation–(b) judicial proceedings shall be deemed to be instituted from the date when in a criminal proceedings, on the complaint or report of a police officer the Magistrate takes cognizance. As per Rule-49(5)(a), where the sanction of payment of gratuity is delayed for more than a year from the date it is due under Sub-rules (1) or (2), as the case may be, and such delay is that // 14 // attributable to administrative lapses, interest at the rate of 7 per cent per annum for the period beyond one year shall be payable on the amount of gratuity. Similarly, Sub-rule (1) of Rule-66 provides that where departmental or judicial proceedings are pending in respect of government servant on the date of his retirement, he shall be paid a provisional pension, whereas in Sub-rule (2), which is supplement to Sub-rule (1) of Rule-66, provides that no gratuity shall be paid to the government servant until the conclusion of the departmental or judicial proceedings and issue of final order thereon. On cumulative reading of both the sub-rules, referred to above, it appears that the same will apply only when on the date of retirement of government employee, departmental or judicial proceedings are pending against him. But these rules will not apply where there are no departmental or judicial proceedings against government servant. But in the instant case, the petitioners have categorically stated that Vigilance P.S. Case No.7 dated 08.03.2007, by way of FIR, though was pending on the date of retirement of the opposite party no.1, i.e., 31.10.2012, but the judicial proceeding was started, to such Vigilance P.S. Case No.7 dated pursuant 08.03.2007, after the charge sheet was submitted on 22.07.2013, i.e., much after his retirement and, as such, no cognizance was taken by the time the opposite party no.1 had retired from service. Therefore, mere lodging of an FIR cannot be construed that a judicial proceeding is pending against opposite party no.1. As it appears, though for an incident of the year 2000, Bhubaneswar P.S. Case No.7 dated 08.03.2007, was lodged against the opposite party no.1, but charge-sheet in the said case was submitted on 22.07.2013. Thereby, by the date the opposite party no.1 retired from service, i.e., on 31.10.2012, it can safely be construed that neither departmental proceeding nor any judicial proceeding was pending before the authority for debarring opposite party no.1 from getting pensionary benefits as due and admissible to him. 14. Therefore, opposite party no.1, having stood in the same footing with that of K.C. Pattnaik, should not have been denied his pension and gratuity in the name of pendency of judicial proceeding against him on the date of // 15 // retirement, i.e., 31.10.2012. Though Rule66(2) specifically provides that gratuity shall be released on conclusion of judicial proceeding, but fact remains, even though the opposite party no.1 has been receiving the provisional pension, he has not been paid his final pension, nor anything has been placed on record to indicate that on the basis of such FIR the Magistrate has taken cognizance of the offence, when the charge-sheet was submitted on 22.07.2013 much after his retirement on 31.10.2012, so as to construe that there is pendency of a judicial proceeding. In absence of any such material, this Court is of the considered view that the tribunal is well justified in passing the order impugned dated 05.05.2014 allowing O.A. No. 3318 of 2013 and dismissing R.P. No. 05 of 2015, which was filed for review of the said order, vide order dated 04.02.2015, which do not require any interference of this Court. Accordingly, the petitioners are directed to comply with the order dated 05.05.2014 passed by the tribunal in O.A. No. 3318 of 2013, within a period of three months from the date of receipt of copy of this judgment.” 24. In view of the aforesaid analysis of law and further considering the factual position of the present case and on a conspectus of the materials placed before this Court and after hearing learned counsel for both the sides, this Court found that in fact, no proceeding was pending against the petitioner on the date of retirement. Accordingly by applying the ratio laid down by the division Bench of this Court in the case of Sushanta Chandra Sahoo and others(supra), the Opposite Parties should have immediately sanctioned and disbursed the pensionary benefits as well as gratuity to the petitioner within a reasonable time. Having not done that, the Opposite Parties have failed to act in // 16 // accordance with Odisha Pension Rules, 1992 as such, the order passed by the Opposite Party No.2 dated 24.10.2012 under Annexure-1 and consequential order dated 12.05.2021 under Annexure-8 are not sustainable in law. Accordingly, the same are hereby quashed. The Opposite Parties are directed to calculate and sanction the final pension as well as gratuity as is due and admissible to the petitioner and release the same in favour of the petitioner as expeditiously as possible preferably within a period of two months from the date of production of certified copy of this judgment. Further, this Court observes that there was deliberate negligence and latches on the part of the Opposite Parties in not sanctioning and disbursing the legitimate dues payable to the petitioner at least from the date 26.08.2013. Therefore, this Court by following the law laid down in the case of D.D. Tewari (D) Thr. L.Rs. vrs. Uttar Haryana Bijli Vitran Nigam Ltd. and others also directs the Opposite Parties to pay interest @ 7% to the petitioner w.e.f. date indicated hereinabove. 25. Accordingly, the writ petition stands allowed. However, there shall be no order as to cost. Judge Orissa High Court, Cuttack The 24th of March, 2023/ Jagabandhu. ( A.K. Mohapatra )