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Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.12881 of 2020 Biswanath Beura ....... Petitioner -Versus- State of Orissa and another ....... Opp. Parties For Petitioners : Mr. S.K. Dalai, Advocate For Opp. Parties : Mr. G.N. Rout, Addl. Standing Counsel ---------------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE SANJAY KUMAR MISHRA --------------------------------------------------------------------------------- Date of Hearing and Judgment: 11.09.2023 --------------------------------------------------------------------------------- S.K. Mishra, J. The Petitioner, who was superannuated from service with effect from 31.12.2010, has preferred the present Writ Petition seeking for a direction to the Opposite Parties to release his retirement benefits along with final pensionary benefits with accrued interest thereon. 2. The brief background facts, which lead to filing of the present Writ Petition is that, the Petitioner entered into Government Service as a Consolidator Grade-1 on 09.01.1979. In September, 1982, he was posted as Progress Assistant under Panchayat Raj Department. In the year 2003, he was promoted to the cadre of Additional Block Development Officer (ABDO). While working as such, he was superannuated on 31.12.2010 in the same cadre on attaining the age of Superannuation. It is further case of the Petitioner that; he submitted his pension papers in time. The said pension papers along with original service book were transmitted by B.D.O., Niali to Opposite Party No.1 on 13.06.2012. In spite of such transmission, till the date of filing of the present Writ Petition, excepting the provisional pension, no other pensionary benefits has been released in favour of the Petitioner for which, he was induced to approach the Administrative Tribunal for inaction of the authorities to act on his representation as at Annexure-3 series. The Tribunal, without going into the merits of the case, vide order dated 23.12.2015 disposed of the O.A. No.3287 of 2015 by directing the State-Respondents to consider and dispose of W.P.(C) No.12881 of 2020 Page 2 of 22 the representation of the Petitioner dated 09.09.2014 within a period of two months from the date of receipt of a copy of the said order. Despite such direction, since the authority did not act as per the direction given by the Tribunal, on initiation of contempt proceeding, ultimately on 25.04.2016, an order was issued by the Commissioner-cum-Secretary to Govt. Panchayat Raj and D.W. Department (Opposite Party No.1) vide which, prayer of the Petitioner for release of the final pension and pensionary benefits was rejected on the plea that it is found that the Disciplinary Proceeding for gross misconduct and dereliction in duties for causing loss of Government money to the tune of Rs.3,60,000/- has been initiated against the Petitioner under Rule-15 of the Orissa Civil Services (Classification, Control & Appeal), Rules, 1962, for short, “1962 Rules” read with Rule-7 of the Orissa Civil Services (Pension) Rules, 1992, for short, “1992 Rules” in P.R. Department. Memorandum dated 29.07.2011 and another proceeding under Rule-16 of 1962 Rules initiated in P.R. Department Show Cause Notice dated 17.11.2004 is still pending against him. It is further case of the Petitioner that, as on the date of filing of the Writ Petition, no Charge Memo W.P.(C) No.12881 of 2020 Page 3 of 22 in connection with any proceeding had been served on the Petitioner, though in the meantime, 10 years have elapsed after his superannuation. In such situation, communication dated 25.04.2016 is highly irrational and deserves interference by this Court. It has also been stated that the Petitioner has become victim of colourable exercise of power of Authority concerned. So far as the proceeding of the year 2004 so also alleged charge sheet was never communicated to the Petitioner. Similarly the other charge sheet is of dated 29.07.2011, which is admittedly after retirement of the Petitioner, which is not permissible under law and the same was also never communicated to the Petitioner. 3. Being noticed, the Opposite Party No.1 has filed a Counter Affidavit reiterating the stand taken in the impugned order as to pendency of the Department Proceeding against the Petitioner. To substantiate such pleadings, a stand has been taken that the B.D.O, Niali Block, has submitted the pension papers of the Petitioner vide letter dated 13.06.2012 for sanction of pensionary benefits in his favour. However, Vigilance Clearance Report was sought for from the GA (Vig.) Department, Cuttack. In response to the same, GA (Vig.) W.P.(C) No.12881 of 2020 Page 4 of 22 Department, Cuttack, vide letter dated 02.04.2015 informed as to registration of vigilance case against the Petitioner vide CTC File No.61/92, CTC File No.94/10 and CTC(V) P.S. Case bearing No.49 dated 31.12.1999. However, it has been stated that the Government in G.A. (Vigilance) Department, Cuttack has informed the Opposite Party No.1 that the Charge Sheet No.51 dated 27.12.2001 has been submitted against other co- accused persons, but not against the Petitioner. It has been clarified that no Charge Sheet has been submitted against the Petitioner in Cuttack Vigilance P.S. Case No.49 dated 31.12.1999. So far as other dues of the Petitioner, it has been stated that during pendency of the Writ Petition, different retirement benefits like GPF, GIS, Unutilized Leave Salary have already been released in favour of the Petitioner. So far as the release of the regular pension and gratuity, the same are yet to be released due to pendency of the Departmental Proceeding. A stand is also taken in the Counter Affidavit that being directed by the Tribunal, the prayer of the Petitioner was rejected, vide Department Order dated 25.04.2016 due to pendency of Departmental Proceeding No.15328 dated 29.07.2011 under Rule-15 and Minor Penalty W.P.(C) No.12881 of 2020 Page 5 of 22 Proceeding, Vide No.13144 dated 17.11.2004 against the Petitioner under Rule-16 of 1962 Rules. The Collector, Nabarangpur, was requested to serve the copy of the D.P. to the Petitioner while he was working as ABDO, Tentulikhunti Block, vide P.R. Department Memo No.13145 dated 17.11.2004. So far as the other proceeding drawn against the Petitioner, vide P.R. Department Memorandum No.15328 dated 29.07.2011, under Rule-15 of 1962 Rules, the Collector, Cuttack was requested to serve copy of the said Memorandum to the present Petitioner, vide P.R Department Memo No.15328 dated 29.07.2011. Further, relying on Rule-7 of the 1992 Rules, more particularly explanation under the said Rules, it has been stated that Departmental Proceeding shall be deemed to be instituted on the date on which the statement of charges are issued to the Government servant or pensioner, or if the Government Servant has been placed under suspension from the date of his suspension. Since, admittedly a proceeding was initiated against the Petitioner in terms of Explanation to Rule-7 of 1992 Rules, irrespective of its service on the Petitioner, the Authority concerned are justified to held up the regular pension and gratuity of the W.P.(C) No.12881 of 2020 Page 6 of 22 Petitioner. A stand has also been taken in the Counter Affidavit that Rule-66 of the 1992 Rules empowers the Authority to release only the provisional pension, where the Departmental Proceeding is pending in respect of a government servant on the date of his retirement. Relying on Rule-49 of the 1992 Rules, a stand has been taken in the Counter Affidavit that because of the pendency of the Departmental Proceeding, the gratuity is not payable to the Petitioner. 4. A Rejoinder Affidavit has been filed by the Petitioner denying and disputing the averments made in the Counter Affidavit. That apart, the communications, both dated 05.08.2023, made to the Petitioner have been appended to the Rejoinder Affidavit as Annexure-5 series to demonstrate before this Court that vide the said communications, for the
Legal Reasoning
first time the Petitioner was supplied with the copy of the Memorandum dated 29.07.2011 so also Show Cause Notice Dated 17.11.2004 on 05.08.2023. That apart, relying upon the provisions under Rules-7 & 66 of the 1992 Rules, it has been stated in the Rejoinder Affidavit that in terms of Rule-15 of the 1992 Rules, since the second Memorandum dated W.P.(C) No.12881 of 2020 Page 7 of 22 29.07.2011 has been issued much after his retirement and the proceeding dated 17.11.2004 under Rule-16 are yet to be communicated to the Petitioner along with copy of Article of Charges, he had no knowledge about the same. Hence, the pendency of both the Departmental Proceeding no way affects or creates any legal bar to consider the prayer of the Petitioner to release regular pension and gratuity in favour of the Petitioner. It has further been stated that after filing of Counter the Opposite Party, on 05.08.2023 has issued Show Cause Notice pertaining to both the said charge sheets dated 17.11.2004 and 29.07.2011. Relying on the ruling of this Court, it has been pleaded in the Rejoinder Affidavit that the Petitioner is entitled to get the gratuity with accrued interest and other dues as has been prayed. 5. Learned Counsel for the Petitioner in addition to his submissions, draws attention of this Court to Rule-7 of 1992 Rules, which is extracted below: “7. Right of Government to Withhold or Withdraw Pension- (1) The Government reserve to themselves the right of withholding a pension or gratuity, or both either in full or in part, or withdrawing a pension in full or in part, whether permanently or for specified period and of ordering W.P.(C) No.12881 of 2020 Page 8 of 22 recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence in duty during the period of his service including service rendered on re-employment after retirement: Provided that the Odisha Public Service Commission shall be consulted before any final orders are passed: Provided further that when a part of pension is withheld/withdrawn, the amount of such pension shall not be reduced below the amount of minimum limit. (2) (a) Such departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service, whether before his retirement or during his reemployment, shall, after the final retirement of the Government servant, be deemed to be a proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service: Provided that when the departmental proceedings are instituted by an authority, subordinate to Government that authority shall submit a report recording its findings to the Government. (b) such departmental proceedings as referred to in sub-rule (1) if not instituted while the W.P.(C) No.12881 of 2020 Page 9 of 22 Government servant was in service, whether before his retirement or during his reemployment- (i) shall not be instituted save with the sanction of Government; (ii) shall not be in respect of any event which took place more than four years before such institution; and (iii) shall be conducted by such authority and in such place as the Government may, direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service; (c) No judicial proceeding, if not instituted while the Government servant was in service, whether before his retirement or during his re- employment, shall be instituted in respect of cause of action which arose or in respect of an event which took place, more than four years before such institution. (d) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceeding are instituted or where departmental proceedings are continued under clauses (a) and (b), a provisional pension as provided in rule 66 shall be sanctioned. (e) Where the Government decides not to withhold or withdraw pension but order recovery of pecuniary loss from pension, the recovery shall not W.P.(C) No.12881 of 2020 Page 10 of 22 ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant. Explanation-For the purpose of this rule- (a) Departmental proceedings shall be deemed to be instituted on the date on which the statement of charges are issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from the date of his suspension; and (b) judicial proceedings shall be deemed to be instituted- (i) in the case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made; and (ii) in the case of civil proceedings, on the date of presentation of the plaint in the Court.” (Emphasis supplied) 6.
Legal Reasoning
Mr. Dalai, learned Counsel for the Petitioner submits, it is the right of the Government to withhold the pension or gratuity of a retired employees governed under said Rules. He further submits, though the proceeding of the year 2004 was never communicated to the Petitioner, even for the sake of argument it is admitted that the Petitioner was so communicated, an admission being made in the Counter Affidavit that the said proceeding initiated against the W.P.(C) No.12881 of 2020 Page 11 of 22 Petitioner was pertaining to minor punishment, there is no bar to release the regular pension as well as gratuity of the Petitioner. So far as the Proceeding of the year 2011, though the same was initiated after the retirement of the Petitioner, with due approval of the State Government, the same was never communicated to the Petitioner till 05.08.2023 i.e. recently during pendency of the writ petition. The same cannot be a ground to withhold the regular pension and gratuity of the Petitioner. 7. To substantiate his argument and prayer made in the Writ Petition, Mr. Dalai drew attention of this Court to the Division Bench Judgments of this Court reported in 2008 (1) OLR 384 (Brajasundar Patnaik vs. Government of Orissa and others) and reported in 2014 LabIC 2598 (State Of Odisha vs. Adwaita Prasad Sahoo). Mr. Dalai submits, in view of said Judgments of this Court and admission in the Counter Affidavit as to release of GPF, GIS, Unutilized Leave
Decision
Salary during pendency of the Writ Petition, it is a fit case to set aside the impugned order dated 25.04.2016 as at Annexure-4 and direct the authority concerned to release regular pension so also unpaid gratuity with accrued interest W.P.(C) No.12881 of 2020 Page 12 of 22 thereon in favour of the Petitioner within the stipulated period. 8. In response to the said submission made by Mr. Dalai, learned Counsel for the Petitioner, Mr. Rout, learned Additional Standing Counsel for the State-Opposite Parties, relying on Rule-66 of the 1992 Rules submits, in view of Sub- Rule-2 under Rule-66 of the Rules, 1992, since the Departmental Proceedings are pending against the Petitioner, no gratuity shall be paid to him until the conclusion of the said Departmental Proceedings. Mr. Rout relying on the Judgment of the apex Court reported in AIR 1993 SC 1488 (Delhi Development Authority vs. H.C. Khurana) submits, irrespective of communication of charge sheet, since admittedly the charge sheet of the year 2004 was issued much before the retirement of the Petitioner, until the said Departmental Proceeding comes to an end, the gratuity with accrued interest cannot and should not be released in favour of the Petitioner. Similarly, drawing attention to Sub-Rule (1) in Rule 66 of the said 1992 Rules, Mr. Rout submit, since Departmental Proceedings are pending in respect of the Petitioner, rightly he has been paid provisional pension and W.P.(C) No.12881 of 2020 Page 13 of 22 full pension can only be paid after conclusion of the Departmental Proceedings. 9. Mr. Rout further submits, in terms of Rule-7 of 1992 Rules, more particularly, in the Explanation under the said Rules, Departmental Proceeding shall be deemed to be initiated on the date on which the statement of charges are issued to the Government servant or pensioner and it is not necessary that it must be communicated for the sake of initiation of the Departmental Proceeding enabling the Authority concerned to withhold the pension so also gratuity of the Petitioner. 10. In response to the said submission of Mr. Rout, Mr. Dalai, learned Counsel for the Petitioner submits, the Division Bench of this Court in Adwaita Prasad Sahoo (supra) has also taken note of the judgment of the apex Court in Delhi Development Authority (supra) on which learned Counsel for the State wants to rely upon to substantiate the stand taken in the counter affidavit. In terms of the said ratio decided by this Court, unless and until the Memorandum of Charges is communicated to the Petitioner, it cannot be said to have initiation of the Departmental Proceeding and that W.P.(C) No.12881 of 2020 Page 14 of 22 cannot and should not be a plea to withhold the after retiral dues, including the gratuity so also full pension of the Petitioner. 11. Before dealing with the issue involved in the present lis, it would be apt to reproduce below Rules-66 of the 1992 Rules. “66. Grant of provisional pension where departmental or judicial proceeding is pending- (1) Where departmental or judicial proceedings are pending in respect of a Government servant on the date of his retirement, referred to in, he shall be paid a provisional pension not exceeding the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant; or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension. (2) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon: Provided that where departmental proceedings have been instituted under rule 16 of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962 for imposing any of the penalties specified in clause (i), (ii) and (iii-A) of rule 13 of the said rules, the W.P.(C) No.12881 of 2020 Page 15 of 22 payment of gratuity shall be authorized to be paid to the Government servant. (3) The provisional pension shall be authorized during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority. (4) The authority competent to sanction pension shall be the authority competent to sanction provisional pension. (5) Payment of provisional pension made under sub-rule (1) shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of such proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period.” (Emphasis supplied) 12. Relying on the said Rule-66, the Division Bench of this Court in Brajasundar Patnaik (supra), vide paragraphs-8 to 10 held as follows: “8. A cumulative reading of both the sub-rules quoted above shows that the same may apply only when on the date of retirement of a Government servant, departmental or judicial proceedings are pending against him, but this rule would not apply where no departmental or judicial proceedings are W.P.(C) No.12881 of 2020 Page 16 of 22 pending on the date of retirement against the Government servant. In the instant matter, it is admitted by the opposite parties that neither departmental proceeding nor any judicial proceeding was pending against the petitioner on the date of retirement. The judicial proceeding has started pursuant to the raid conducted in the house of the petitioner after his retirement and a first information report was lodged on the basis of the documents recovered from the house of the petitioner. Therefore, Sub-rules (1) and (2) of Rule 66 of the Orissa Civil Services (Pension) Rules, 1992 would not be applicable in the case of the petitioner. 9. It is also a matter of consideration that when the criminal proceeding was initiated against the petitioner in the year 1992, there should be some limit for its disposal. The petitioner retired in the year 1992. Thereafter criminal proceedings were initiated against him, which are allegedly still pending even after about fifteen years. Therefore, we do not think it proper to observe in the instant case that non-payment of gratuity is justified even after fifteen years of the retirement of the petitioner. He is entitled to the gratuity with interest. 10. As regards interest, the concerned rules are silent. In the case of H.Gangahanume Gowda v. Karnataka Agro Industries Corporation Limited (2003) 1 ATT (SC) 95, the apex Court has fixed the interest at the rate of 10% per annum. In the case of Gorakhpur University v. Shital Prasad Nagendra, AIR 2001 SC W.P.(C) No.12881 of 2020 Page 17 of 22 2433, the apex Court, relying upon the earlier decisions in the case of R. Kapur v. Director of Inspection (Painting and Publication) Income-Tax, State of Kerala v. M. Padmanabhan Nair and Som Prakash v. Union of India, observed that the apex Court has been repeatedly emphasizing the position that pension and gratuity are no longer matters of any bounty to be distributed by Government but are valuable rights acquired and property in their hands and any delay in settlement and disbursement thereof should be viewed seriously and dealt with severely by imposing penalty in the form of payment of interest. Having regard to the facts and circumstances, as discussed in the foregoing paragraph, we fix the interest at the rate of 10% per annum.” (Emphasis supplied) 13. In Adwaita Prasad Sahoo(supra) the Division Bench of this Court referring to Rule-7 of the 1992 Rules, which has already been extracted above, vide paragraphs-12 to 14, held as follows: “12. In view of the distinguishable facts, the decision in Delhi Development Authority (AIR 1993 SC 1488) (supra) cannot be made applicable to the facts of the present case. In the case of Union of India and others (AIR 1998 SC 2722) (Supra), the Hon’ble Supreme Court categorically laid down that where the disciplinary proceedings are W.P.(C) No.12881 of 2020 Page 18 of 22 intended to be initiated by issuing a charge- sheet, its actual service is essential as the person to whom the charge-sheet is issued is required to submit his reply and, thereafter, to participate in the disciplinary proceedings. In the case of Managing Director, U.P. Warehousing Corporation and others (AIR 1980 SC 840) (supra), the Hon’ble Supreme Court in the facts of the said case also held that a regular departmental enquiry takes place only after the charge-sheet is drawn up and served upon the delinquent and the latter’s explanation is obtained. 13. It is, therefore, clear that the phrase “the date on which the statement of charges are issued to the Government servant or pensioner” should be interpreted as “the date which the charges are received by the Government servant or pensioner” as the Government servant or pensioner, who was charge-sheeted, is required to file his show cause. 14. In such view of the matter, unless the charge-sheet/statement of imputation is served on the delinquent, it cannot be said to have been issued and the date of dispatch of such charge-sheet/statement of imputation cannot be held to be the date on which the departmental proceeding is initiated.” (Emphasis supplied) W.P.(C) No.12881 of 2020 Page 19 of 22 14. Though it has been specifically averred in the Writ Petition that no charge memo pertaining to proceeding in the year 2004 so also in the year 2011 was ever communicated to the Petitioner, though a counter has been filed by the State, in response to the said averments made in the Writ Petition, there is no specific averment as to communication of the said proceeding vide Memo No.13144 dated 17.11.2004 under Rule-16 of the 1962 Rules so also mode of communication to the Petitioner, including the proceeding drawn vide Memorandum No.15328 dated 29.07.2011. Rather, the communications, both dated 05.08.2023, which have been appended to the Rejoinder Affidavit as Annexure-5 Series, well demonstrate that the said Memorandum were never communicated to the Petitioner. Only after filing of the Counter Affidavit in the Writ Petition, recently the same were communicated to the Petitioner enclosing thereto the handwritten draft for approval of Show Cause Notice dated 17.11.2004 so also the Memorandum dated 29.07.2011 along with the Articles of Charges and Statement of Imputation in support of the charges framed against the Petitioner in the year 2011. W.P.(C) No.12881 of 2020 Page 20 of 22 15. From the pleadings and documents on record as detailed above, so also the recent communications made to the present Petitioner on 05.08.2023, which have been appended to the Rejoinder Affidavit as Annexure-5 series, it is amply clear that the Show Cause Notice dated 17.11.2004, which is pertaining to minor penalty so also the Memorandum dated 29.07.2011, which was issued after the retirement of the Petitioner on 31.12.2010, were never communicated to the Petitioner till 05.08.2023 giving him an opportunity to have his say in the said regard. Hence, this Court is of the view that the Authority concerned was not justified to withhold the gratuity so also the full pension of the Petitioner on the plea of pendency of Departmental Proceeding. Accordingly, the impugned order dated 25.04.2016, as at Annexure-4 is set aside. 16. It has been admitted in the Counter Affidavit that the benefits like GPF, GIS and Unutilized Leave Salary etc. have been released in favour of the Petitioner, which is not disputed by the learned Counsel for the Petitioner. Since the Petitioner at present is being paid provisional pension, the authority concerned are directed to do the needful to calculate W.P.(C) No.12881 of 2020 Page 21 of 22 and regularize the pension of the Petitioner and pay him full pension. Apart from the same, after adjusting the provisional pension already paid to the Petitioner, the differential arrear pension till the date of payment of regular pension be released in favour of the Petitioner within a period of three months hence with 7% interest. So far as the unpaid gratuity of the Petitioner, the same be paid within the said period of three months with 10% interest from the date it became due till the date of actual payment. 17. Accordingly, the Writ Petition is disposed of. No Order as to costs. …….….…………………… S.K. MISHRA, J. Orissa High Court, Cuttack The 11th September, 2023/Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Sep-2023 12:47:00 W.P.(C) No.12881 of 2020 Page 22 of 22