The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 20756 of 2017 Applications under Articles 226 & 227 of Constitution of India. Shri Chandrasekhar Mishra ...… Petitioner --------------- -Versus- State of Odisha and others ...…. Opp. Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : Mr. G.K. Nanda & K.C. Ratha, Advocates For Opp. Parties : Mr. P.K. Panda, [Standing Counsel (S & ME) Department] CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 4th April, 2023 SASHIKANTA MISHRA, J. The petitioner was appointed as a Hindi teacher in Bijatala High School, Mayurbhanj vide order dated 20.05.1975 and accordingly he joined on 25.05.1975. He was transferred to Krushna Chandra High School in the same district by order dated 16.11.1977 where he rendered service uninterruptedly till 30.06.1986. Both the aforementioned schools are aided educational institutions Page 1 of 14 within the meaning of Section 3(b) of the Odisha Education Act, 1969. He claims to have submitted from mild mental disability and of undergoing medical treatment during 1985 while still performing his duties. But his health condition did not improve for which he remained on leave with effect from 01.07.1986 for one month, which was sought to be renewed for one more month by a letter submitted by his wife along with medical prescription. After his partial cure from his illness in March, 1998, when he wanted to resume his duties, the Headmaster of the school did not allow him to do so but forwarded his joining application along with the medical treatment reports to the then Inspector of schools, Mayurbhanj for approval, but no response was received. The school was taken over by the Government in the year 1994. The petitioner requested the Inspector of Schools to grant him pension and other service benefits as permissible under law but he was advised to wait till attaining the age of superannuation, i.e., till 2009. It is his case that he had remained on leave on account of his illness submitting proper application to the authority. During the period from 1986-2009 he neither resigned Page 2 of 14 from service nor he was retrenched terminated by the authority. No disciplinary action was also taken against him for his long absence. On such facts the petitioner claims to be entitled to pension and other retiral benefits as he has completed the minimum qualifying service of ten years. He submitted the pension papers to the headmaster from the school, which was forwarded to the District Education Officer, Mayurbhanj. But ultimately, nothing was done for which he approached this Court in W.P.(C) No 6412 of 2016. By order dated 11.07.2016, this Court directed the District Education Officer to dispose of the representation of the petitioner within two months. Pursuant to such order, the DEO rejected the claim of the petitioner for pension. The petitioner has therefore approached this Court seeking the following prayer:- view the above the case, facts and “In of circumstances of the petitioner respectfully prays that this Hon’ble Court may graciously be pleased to issue notice to the opp. Parties and after hearing, allow this writ petition directing the Controller of Accounts- O.P. No.2 and O.P. No.3 to sanction and authorize retiral benefits/dues in favour of the petitioner within a stipulated time in view of the letters dated 17.03.2020 and 13.08.2021 of DEO, Balasore (O.P. No.3) vide Annexure-11 and 12 respectively by quashing the order dated the pension and other Page 3 of 14 27.09.2016 of DEO, Balasore under Annexure- 8. And may any other order/orders, issue direction/directions writ/wits as this Hon’ble Court deems just and proper for ends of justice. And for the said act of kindness, the petitioner shall as in duty bound ever pray.” 2. Counter affidavit has been filed by the District Education Officer (O.P. No.3). The stand of the opposite party as revealed from the counter and additional counter is that as per the service particulars of the petitioner available from his service book, he continued in service from 25.05.1975 to 12.07.1986 and thereafter he did not join in his duties. Since the schools in question were under the private management what action was taken against the petitioner for his long unauthorized absence she is not known. However, in view of the absence of the petitioner after 13.07.1986 the school management took decision to appoint another person, namely, Amulya Kumar Shee in the post after taking approval of the Director, Elementary Education by order dated 24.02.1988. It is further stated that the petitioner was not interested for employment at the relevant time as he had abandoned his service which is evident from the fact that he joined the profession of advocacy after obtaining Page 4 of 14 license from the Odisha State Bar Council. Finally it is contended that the petitioner himself slept over the matter from 13.07.1986 to 17.03.2015, i.e., the date of fling of representation which is completely barred by limitation. 3.
Legal Reasoning
Heard Mr. J.K. Nanda, learned counsel for the petitioner and Mr. P.K. Panda, learned Standing Counsel for the School and Mass Education Department. 4. Mr. Nanda would argue that the petitioner, having admittedly worked for more than ten years uninterruptedly is entitled to pension as per Rule 8 (2)(a) of the Orissa Aided Educational Institutions’ Employees Retirement Benefit Rules, 1981. He further submits that the petitioner was prevented from joining his services. Neither any Disciplinary Proceeding was initiated against him nor any show cause notice was served upon him. Therefore, the authorities cannot take the plea of abandonment of service. In any case, such plea is contrary to Rule 72 (2) of the Orissa Service Code. In support of his contentions as above, Mr. Nanda has referred to some decisions of this Court, namely, Karunakar Behera vs. State Orissa, reported in 2017 (1) OLR 615; Kishore Das vs. State of Orissa, reported Page 5 of 14 in 105 (2008) CLT 309; and Narahari Swain vs. State of Orissa, reported in 2022 (II) ILR CUT 1042. 5. Mr. P.K.Panda, on the other hand, argued that the undisputed facts of the case would clearly show that the petitioner had voluntarily abandoned his service at the relevant time. If he was prevented from joining his duties he could have raised grievance before the competent authority at the relevant time but he chose to sleep over the matter and only because the school was taken over by the Government, he decided to stake his claim for pension and other benefits for obvious reasons. Mr. Panda further submits that voluntary abandonment of service by the petitioner is otherwise proved from the fact that he had enrolled himself as an advocate by obtaining necessary license from the Odisha State Bar Council. 6. From the rival pleadings and contentions noted above, it is evident that the following issues fall for determination in the present case; I. Whether the petitioner can be said to have voluntarily abandoned his service with effect from 13.07.1986. Page 6 of 14 II. Whether the petitioner is entitled to pension and other retiral benefits. 7. Before proceeding to answer the questions as referred above it would be apposite to refer to the law relating to abandonment of service. The expression ‘abandonment of service’ has not been defined in any of the relevant statutes. In this context, the observations of the Supreme Court of India in the case of G.T. Lad vs. Chemical and Fibers of India Limited, reported in (1979) I SCC 590 are noteworthy. “In the Act, we do not find any definition of the expression 'abandonment of service'. In the absence of any clue as to the meaning of the said expression, we have to depend on meaning assigned to it in the dictionary of English language. In the unabridged edition of the Random House Dictionary, the word 'abandon' has been explained as meaning 'to leave completely and finally; for- sake utterly; to relinquish, renounce; to give up all concern in something'. According to the Dictionary of English Law by Earl Jowitt (1959 edition) 'abandonment' means 'relinquishment of an interest or claim'. According to Blacks Law Dictionary in 'voluntary relation relinquishment. It must be total and under such circumstances as clearly to indicate an to absolute perform the duties pertaining to the office must be with actual or imputed intention, on the part of the officer to abandon and relinquish the office. The intention may be 'abandonment' when used to an office means relinquishment. The failure Page 7 of 14 inferred from the acts and conduct of the party, and is a question of fact. Temporary absence to constitute an abandonment of office'. is not ordinarily sufficient to to that follows resume From the connotations reproduced above it clearly constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not the same. In Buckingham Co. v. Venkatiah & Ors. it was observed by this Court that under common law an inference that an employee has abandoned or relinquished service is not length of easily drawn unless from the absence and surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. Thus, whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case.” the employee intended other from Thus, the question of voluntary abandonment of service on the part of an employee is essentially a question of fact to be determined from the surrounding circumstances of each case. 8. There is no dispute that the petitioner joined in service on 25.05.1975 in Bijatala High School from where he was transferred to K.C. High School on 01.12.1977. He served in the school till 12.07.1986. Both the schools Page 8 of 14 were aided educational institutions at the relevant time being governed by private management. The petitioner claims to have suffered from mental illness for which he submitted leave application along with medical prescriptions. However, not a scrap of paper has been produced by him before this Court or referred to in any of
Decision
the documents enclosed to the writ petition in support of such claim. He claims to have submitted his joining report to the Headmaster of the school but the same was not accepted. On which date he submitted such joining report is not forthcoming. Though it is stated under paragprah-6 of the writ petition that it was in March, 1998, it is highly significant to note that the school was by then taken over by the Government. It goes without saying that refusal of employment amounts to termination of service which the petitioner could have challenged before the competent authority but he did not do so. It is further stated by him that his application was forwarded to the Inspector of School along with the medical treatment papers but no response was received. In the writ petition, it is stated as under:- “xxx xxx In the meantime, the school was taken over by the Government in the year, Page 9 of 14 1994. Having not received any communication from the Inspector of Schools, the petitioner hopelessly requested the Inspector of Schools to grant his pension and other service benefits as permissible under law. However, he was advised to wait till attaining his age of superannuation, i.e. till 2009 xxx xxx” Two things are evident from the above averments- firstly, the plea that he was advised to wait till 2009 is patently unbelievable for being accepted and secondly, he himself requested to grant him pension and other service benefits as permissible under law. This, by itself shows that he was no longer interested in continuing in service as otherwise there was no reason for him to make such request in the year 1998, even though he had more than eleven years of service left. This is a strong circumstance suggesting a clear intention on his part to abandon his service. 9. The petitioner has claimed that he was suffering from mental illness and was under treatment but not a scrap paper was produced in support thereof. Yet another circumstance which is suggestive of his intention to abandon employment is the fact that he remained silent even when another person was appointed in his place on 24.02.1988. Again, there is clear proof that he had Page 10 of 14 enrolled himself as an advocate vide enrollment No.O- 791/1996 under the Odisha State Bar Council and started practice as advocate in Balasore district. There is evidence of representation being submitted by him on 17.03.2015 but the same is after an inordinately long and unexplained gap of nearly nineteen years, i.e. from 13.07.1986 to 17.03.2015 during which, he chose to remain completely silent. 10. All these facts cumulatively taken can only suggest that he had no interest or intention to continue in service but raised a claim for pension only because the institution was taken over by the Government. 11. Such being the factual position it is entirely inequitable on the part of the petitioner to invoke the provision under Rule 72 (2) of the Odisha Service Code. The said rule reads as under:- “(2) Where a Government servant does not resume duty after remaining on leave for a continuous period of five years, or where a government servant after the expiry of his leave remains absent from duty otherwise than on foreign service or on account of suspensions, for any period which together with the period of the leave granted to him shall unless exceeds the exceptional Government otherwise case the circumstances determine, be removed from service after five years, he in view of of Page 11 of 14 following the procedure laid down in the Odisha Civil Services (Classifications, Control and Appeal) Rules, 1962.” 12. The said rule would arise only when a Government servant does not resume duty after remaining on leave for continuous period for five years. In the instant case, there is not a shred of evidence to show that the petitioner had either applied for or was granted leave. Thus, reference to Rule 72 (2) of the Odisha Service Code is fallacious. 13. As regards the case laws relied upon by the petitioner, this Court finds that in the case of Karunakar Behera (supra) the leave period was regularized by the authority by directing the concerned Headmaster to draw the leave salary of the petitioner. The concerned employee thereafter remained on unauthorized leave for which this Court referred to the provision under Rule 72 of the Code. In the case of Kishari Das (supra), the petitioner’s wife had approached this Court in a writ petition claiming family pension etc., which was disposed of directing the Inspector of Schools to verify the relevant records and to pass necessary order with regard to payment of the petitioner’s dues. The petitioner thereafter submitted all relevant documents before the Inspector of Schools who Page 12 of 14 verified the same and recommended her case to the Director, Elementary Education for sanction of the dues and to move the Government for regularization of the leave period of her deceased husband. No such exercise was done in the present case. In the case of Narahari Swain (supra), the petitioner therein had remained on medical leave for a period of five years and two days in support of which he had submitted medical certificate regarding his evidence to resume duties. Such is not the situation in the present case. Thus, all the cases relied upon by the petitioner can be easily distinguished from the facts of the present case. 14. From the foregoing discussion, therefore, this Court is of the considered view that the petitioner had voluntarily abandoned his service for reasons best known to him. Moreover, his claim of having made attempts to re- join employment after recovery from his purported illness also appears to be far-fetched to be believed and in any case, is by itself a matter to be held against him for not having raised any grievance before the appropriate authority at the relevant time. Page 13 of 14 15. In view of the findings as above, the question of the petitioner being entitled to pension and other retiral benefits does not arise at all. 16. For the foregoing reasons therefore, this Court finds no merit in the writ petition, which is therefore, dismissed. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 4th April, March, 2023/ B.C. Tudu, Sr. Steno Page 14 of 14