Application under Articles 226 & 227 of Constitution of India. AFR Padma Charan Behera v. State of Odisha and others
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 17808 of 2023 Application under Articles 226 & 227 of Constitution of India. AFR Padma Charan Behera .…… Petitioner --------------- - Versus - State of Odisha and others ...…. Opp. Parties Advocate(s) appeared in this case:- _________________________________________________________ For Petitioner : M/s. U.C. Mishra, A. Mishra & J.K. Mahapatra, Advocates For Opp. Parties : Mr. Saswat Das, _________________________________________________________ CORAM: Addl. Government Advocate JUSTICE SASHIKANTA MISHRA JUDGMENT 15th September, 2023 SASHIKANTA MISHRA, J. The petitioner has approached this Court seeking the following relief: “In the facts and circumstances narrated above and in the interest of justice, it is therefore prayed that Your Lordships would be graciously pleased to admit the Writ application, call for the records and issue Rule Nisi in nature of Certiorari/Mandamus or any other appropriate writ/writs calling upon the opp. parties to show cause as to: - a) Why the impugned Office Order No-668/Dtd 11.01.2023 issued by the Additional Chief Secretary to Government, Forest, Environment and Climate Change Department as under Annexure-8 shall not be Page 1 of 10 quashed and why the Opp. parties shall not be directed to release the unutilised leave encashment, retirement gratuity and commuted value of pension to the petitioner with interest @10% per annum from the date of retirement (31.08.2008) till the date of actual payment within the time fixed by this Hon’ble Court. And b) Why such other order(s), direction(s), writ(s) as this Hon’ble Court may deem fit and proper shall not be passed in the ends of justice and equity, If the opp. parties fail to show cause or show insufficient cause the Hon’ble Court may be pleased to make the said Rule absolute,. 2. The facts of the case are that the petitioner joined Government Service as a Forest Ranger on 05.03.1974 in the Badrama Range under Bamra Forest Division, Sambalpur. In course of his career, he was promoted to different posts in the higher grades and ultimately to the rank of Deputy Conservator of Forest in OFS Class-1 service cadre vide order dated 07.08.2002. While working as such in the capacity of Instructor in the OFRC, Angul he retired from Government Service w.e.f. 31.08.2008 on attaining the age of superannuation. It is stated that a vigilance case was instituted against the petitioner for possessing assets disproportionate to his known source of income on the basis of a raid conducted in his house on 27.03.2004 vide Cuttack Vigilance P.S. Case No. 9 dated 27.03.2004. Charge sheet was submitted by the Vigilance Police on 06.09.2007 under Page 2 of 10 Sections 13(2)(r) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 in the Court of learned Special Judge, Special Court Vigilance, Cuttack. It is further stated that the learned Special Judge took cognizance of the offences by order dated 29.06.2009. In the meantime, a disciplinary proceeding was initiated against the petitioner on
Legal Reasoning
the self-same charges. The petitioner challenged the proceeding before the erstwhile Odisha Administrative Tribunal, Bhubaneswar Bench in O.A. No. 1115 of 2013. By order dated 03.02.2014, learned Tribunal quashed the departmental proceeding. Consequently, the Government in erstwhile Forest and Environment Department by office order dated 10.06.2014 passed a formal order dropping the proceeding against the petitioner. It is the grievance of the petitioner that he was sanctioned provisional pension but his pensionary benefits including gratuity were not finalized. He approached this Court in W.P.(C) No. 15360 of 2022. By order dated 19.07.2022, this Court disposed of the writ petition directing the Additional Chief Secretary to the Government in the Forest Department to dispose of the representation submitted earlier by the petitioner. A Page 3 of 10 contempt application was filed being CONTC No. 8193 of 2022. During pendency of the contempt application, the Additional Chief Secretary in the Forest Department rejected the claim of the petitioner vide order dated 01.11.2023, copy of which is enclosed as Annexure-8 and is impugned in the present writ application. 3.
Legal Reasoning
Heard Mr. Ashutosh Mishra, learned counsel for the petitioner and Mr. Saswat Das, learned Addl. Government Advocate for the State. 4. It is contended by Mr. Mishra that since on the date of retirement of the petitioner there was neither any judicial nor criminal proceeding pending against him, rejection of his representation by the concerned authority is bad in law. Mr. Mishra has referred to the Explanation to Rule-7 of Odisha Civil Services (Pension) Rules, 1992 (in short “OCS Pension Rules”) to contend that since cognizance of the alleged offences was not taken by such time, the petitioner is entitled to full pension and other benefits. 5. Per contra, Mr. S. Das, learned Addl. Government Advocate draws attention of the Court to Rule-66 of the OCS Page 4 of 10 Pension Rules and contends that since the vigilance case had already been instituted against the petitioner, the authorities were justified in granting only provisional pension to him. He however, fairly submits that the Explanation to Rule-7 does, in fact, clarify that a „criminal proceeding‟ within the meaning of Rule-7 can be treated as pending only when the Court has taken cognizance of the offences. 6. After hearing learned counsel for the parties, this Court feels it proper to refer to the Explanation appended to Rule-7 of the OCS Pension Rules. For immediate reference, the same is quoted hereunder: 7. Right of Government to Withhold or Withdraw Pension- xx xx xx 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 judicial proceedings shall be deemed to be (b) 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 Page 5 of 10 (ii) in the case of civil proceedings, on the date of presentation of the plaint in the Court.” Thus, Explanation (b)(i) makes it abundantly clear that the date on which the Magistrate/Court takes cognizance of the offences in the criminal proceeding is the relevant date for deciding whether a criminal proceeding is pending or not. In the instant case, the petitioner retired from Government service on 31.08.2008. Admittedly by such time cognizance of the offences had not been taken by the Special Court. Cognizance was taken only on 29.06.2009, as evident from the copy of the order enclosed to the writ petition as Annexure-3. Thus, as on the date of retirement, it cannot be said that any criminal proceeding was pending against the petitioner. In so far as Rule-66 is concerned, the same is quoted hereunder: “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. Page 6 of 10 Provided issue of (2) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and final orders thereon:- 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 the payment of gratuity shall be said rules, 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.” The opening words of sub-Rule (1) of Rule 66 make it clear that the same would be applicable only where departmental or judicial proceedings „are pending‟ on the date of retirement. 7. As has already been held hereinbefore, no judicial (criminal) proceeding can be treated as pending as on the date of retirement of the petitioner. The contention of learned State Counsel is therefore, not acceptable. Page 7 of 10 8. Mr. Mishra, learned counsel for the petitioner has also referred to Rule-49 of the OCS Pension Rules to contend that the same places an obligation on the employer to disburse the gratuity payable to the government servant within one year of his retirement, failing which interest thereon would be payable. 9. Mr. Das, learned Addl. Government Advocate has seriously objected to this contention by submitting that the provision would apply only if there has been a wilful delay by the Government in disbursing gratuity. According to Mr. Das, this is a case where the authorities withheld the pension and gratuity dues basing on their interpretation of the Rules, which is open to judicial review. Therefore, there cannot be said to have been any wilful delay so as to attract payment of interest. 10. This Court is however, of the view that when the statutory provision is clear and unambiguous there was no question of the authorities making any interpretation thereof of their own. This Court having held that there was no criminal proceeding as on the date of retirement of the Page 8 of 10 petitioner, it automatically implies that non-payment of the pensionary benefits including gratuity to the petitioner on the ground of pendency of the criminal proceeding is bad in law and cannot be sustained. Mr. Mishra has relied upon a judgment passed by a Division Bench of this Court in the case of State of Orissa vs. Sadananda Mishra (W.P.(C) No. 1738 of 2015, decided on 29.04.2022), in which on almost similar facts this Court rejected the contention of the State and took note of the date of taking cognizance of the offences by the concerned Court to ultimately hold that no criminal proceeding was pending as on the date of retirement of the concerned employee. Further, the Division Bench also relied upon the judgment of the Apex Court in the case of Union of India vs. K.V. Jankiraman, AIR 1991 SC 2010. 11. From what has been narrated hereinbefore with regard to the import of the statutory provisions, the judgment of the Division Bench only goes to fortify the conclusion arrived at by this Court that withholding of pensionary benefits including gratuity of the petitioner on the ground of pendency of criminal proceeding as on the date of his Page 9 of 10 retirement is contrary to the statutory provisions and is therefore, unsustainable in the eye of law. 12. For the foregoing reasons therefore, this Court is of the considered view that the petitioner has made out a good case for interference by this Court. The writ petition is accordingly allowed. The impugned order under Annexure-8 is hereby quashed. The opposite party authorities are directed to release all admissible pension any and other benefits including gratuity in favour of the petitioner as early as possible, preferably within a period of four months from today. Further, the gratuity amount shall carry interest at the rate prescribed under Rule 49 of the OCS (Pension) Rules, 1992. …………………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 15th September, 2023/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-Sep-2023 17:46:26 Page 10 of 10