Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK W.P(C) NO. 22277 OF 2022 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------------- AFR Deboraj Mishra ..… Petitioner -Versus- Union of India & Ors. ….. Opp. Parties For petitioner : M/s. D.K. Panda & A.K. Mishra-2, Advocates For opp. parties : Mr. P.K. Parhi, DSGI along with Mr. D.R. Bhokta, CGC [O.P.1] Mr. B. Mohanty, Addl. Government Advocate [O.Ps.2 & 3] P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE G. SATAPATHY Date of hearing : 28.03.2024 :: Date of judgment : .04.2024 DR. B.R. SARANGI,J. The petitioner, who was a member of the Indian Administrative Service (IAS), has filed this writ petition seeking to quash the order dated 19.04.2022 passed in O.A. No.306 of 2021 under Annexure-10, by which the Central Administrative Tribunal, Cuttack // 2 // Bench, Cuttack, while dismissing the said O.A., opined that since a departmental proceeding was pending at its final stage, the action of the opposite parties in not granting leave salary to the petitioner is legal and as per rules, and that the case of Shri Janaki Ballav Mishra is also not on same footing as of the petitioner since Shri Mishra was not placed under suspension when he retired from service. 2. The factual matrix of the case, in brief, is that the petitioner, while working as Director, OBC, ST & SC Development Department, Govt. of Odisha, was placed under suspension, vide order dated 16.09.2014, with immediate effect in connection with investigation of a vigilance case pending against him fixing his headquarters at Bhubaneswar. On 07.12.2015, a memorandum of charges was issued by the General Administration Department with regard to manipulation in the process of selection for the post of RIs/ARIs and Amins which was conducted by him while he was the Collector in the district of Bolangir. In the said memorandum of charges, it was pointed out that the // 3 // petitioner, being the Collector of the district, had to take due caution and care in the process of selection and had it been done so, there could not have been manipulation of answer sheets leading to undeserving candidates being appointed to the posts in question, thereby leaving aside the rightful claims of deserving persons to be appointed against the posts. It was alleged that there was negligence in duty and no official decorum was maintained. It is the statement of imputations that during his incumbency, as the district head, in continuation of the process of recruitment for the post of RIs/ARIs and Amins, without inviting fresh applications from the eligible candidates, on receipt of the letter dated 20.12.2012 from the Govt. of Odisha in Revenue and Disaster Management Department and the letter dated 06.03.2013 from the Board of Revenue, Odisha, regarding creation of 52 posts each for RIs & ARIs, simply issued one corrigendum on 04.06.2013, in continuation of the last advertisement dated 24.12.2011, in respect of increase of posts only by five days before the written examination conducted and completed the // 4 // process of recruitment and thereby, he debarred other eligible candidates of the district to compete for the jobs and the entire process of recruitment done became legally null and void. It was further alleged that though the petitioner issued order on 20.05.2013 for deposit of sealed question papers collected from Board of Secondary Education, Odisha, Cuttack for written examination for the posts in question, he did not pass order for deposit of scoring sheets (model answer sheets) in the District Treasury Strong Room, Bolangir with mala fide intention and kept the same with him, which violates the principle of Fair and Transparent Recruitment Process. It was further alleged that as per the said principle, the petitioner should have deposited the answer sheets of the candidates of sealed packets on receipt of same from the Centre Superintendent, after the written examination was held on 09.06.2013, in the Strong Room of the District Treasury, Bolangir for security reasons and, thereby, he was directed to submit his explanation within a period of 30 days of receipt of the memorandum of charges. // 5 // 2.1. The General Administration Department made a communication on 28.03.2016 to the petitioner requiring him to submit his pension paper duly filling along with required particulars/papers through the Head Office at an early date for further necessary action. On 06.04.2016, the General Administration Department issued a notification to the effect that the petitioner, on attaining the age of superannuation, was allowed to retire from Government Service w.e.f. 30.04.2016 (AN). 2.2. After retirement, the petitioner filed a representation to the opposite parties to sanction his retiral dues, i.e., unutilized leave salary, group insurance, gratuity and provisional pension in his favour. But, on 02.06.2016, the Government sanctioned the provisional pension and not sanctioned the unutilized leave salary, group insurance and gratuity. Therefore, the petitioner approached the Central Administrative Tribunal, Cuttack Bench, Cuttack by filing O.A. No.114 of 2017 seeking direction to the opposite parties to sanction and disburse the unutilized leave salary and the Tribunal, vide order dated // 6 //
Decision
09.04.2021, disposed of the said O.A. directing opposite party no.2 to consider the grievance of the petitioner for sanction and disbursement of the unutilized leave salary in his favour provided that he had 300 days leave to his credit prior to his suspension, within a period of six weeks from the date of receipt of the order. 2.3. The petitioner communicated the order dated 09.04.2021 passed by the Tribunal to opposite party no.2 on 23.04.2021. In compliance of the same, opposite party no.3 disallowed the claim of the petitioner for sanction and disbursement of unutilized leave salary on the ground that the Government of Odisha, Finance Department, vide Office Memorandum dated 26.03.2015, has clarified that in case a period of suspension during employment in Govt. Service has not been decided and regularization of the suspension period in opinion of the leave sanctioning authority will culminate a recovery to be effected, such amount may be withheld from the leave salary. // 7 // 2.4. The petitioner filed a written statement of defence to the charges framed against him on 04.03.2021 stating therein that the retirement dues being statutory, no government employee can be deprived of retirement dues without any authority, as provided under Article 300A of the Constitution of India. Thereby, the action of the opposite party authorities in not sanctioning and disbursing unutilized leave salary is illegal and arbitrary. He relied upon the case of Janaki Ballav Mishra, retired IAS, against whom departmental proceeding was continuing and the opposite parties had sanctioned unutilized leave salary in accordance with Rule 20A of the All India Services (Leave) Rules, 1955. Therefore, he claimed that he should be treated similarly like Janaki Ballav Mishra, retired IAS and should be paid unutilized leave salary with interest for delayed payment of the same. 2.5. Unutilized leave salary having not been paid, the petitioner again approached the Tribunal by filing O.A. No.306 of 2021 and the Tribunal, vide order dated 19.04.2022, while dismissing the said O.A., opined that // 8 // since a departmental proceeding was pending at its final stage, the action of the opposite parties in not granting leave salary to the petitioner is legal and as per rules and the case of Shri Janaki Ballav Mishra is also not on same footing as of the petitioner since Shri Mishra was not placed under suspension when he retired from service. Hence, this writ petition. 3. Mr. D.K. Panda, learned counsel appearing for the petitioner vehemently contended that Rule 11(1) of the All India Services (Leave) Rules, 1955 (Rules 1955) states that subject to the provisions of Rule 9, and sub- rule (2) of the said Rule, the maximum earned leave that can be granted to a member of the service at a time shall be 180 days, provided that earned leave granted as preparatory to retirement shall be subject to a maximum of 300 days. It is further contended that in view of Rule- 20A of the Rules, 1955, which provides that where a member of the Indian Administrative Service retires from the service, whether on attaining the age of superannuation under sub-rule (1) of Rule 15 or sub- rule (2), (2A) or (3) of Rule 16 of the All India Services // 9 // (Death-cum-Retirement Benefits) Rules, 1958 or dies, the Government shall suo-motu sanction to him or his family, as the case may be, cash equivalent to leave salary in respect of the earned leave (subject to maximum of 300 days, including the number of days of earned leave in respect of such encashment has been made under rule 20-C), the petitioner is entitled to get unutilized leave salary of 300 days which is available at his credit. It is further contended that one Janaki Ballav Mishra, a retired IAS against whom disciplinary proceeding was continuing, was sanctioned unutilized leave salary vide order dated 03.03.2015 for 300 days in accordance with Rule-20A of the Rules, 1955. Thereby, it is contended that the petitioner, being stood in the same footing, should be sanctioned unutilized leave salary in his favour, as 300 days of leave is at his credit, along with interest for delayed payment of unutilized leave salary w.e.f. 01.05.2015. To substantiate his contentions, he has relied upon the judgment of the apex Court in State of Jharkhand v. Jitendra Kumar // 10 // Srivastava, AIR 2013 SC 3383 and Dr. Hira Lal v. State of Bihar, (2020) 4 SCC 346. 4. Mr. P.K. Parhi, learned Deputy Solicitor General of India along with Mr. D.R. Bhokta, learned Central Government Counsel appearing for opposite party no.1 contended that opposite party no.1- Department of Personnel and Training, Govt. of India for no reason has been impleaded as opposite party in the writ petition. It is contended that the Department of Personnel and Training, Govt. of India is confined to its Rules, i.e., All India Service (Leave) Rules, 1955 and All India Services (Discipline and Appeal) Rules, 1969. It is further contended that initially the petitioner filed O.A. No.114 of 2017 before the Tribunal seeking sanction of unutilized leave salary in his favour which had to his credit prior to his suspension and the Tribunal, vide order dated 09.04.2021, disposed of the said O.A. directing opposite party no.2 to consider the grievance of the petitioner for sanction and disbursement of the unutilized leave salary in his favour provided that he had 300 days leave to his credit prior to his suspension. // 11 // But, the State Government, by speaking order dated 21.06.2021, denied the claim of the petitioner. Challenging the said order, the petitioner filed O.A. No.306 of 2021, which was also dismissed by the Tribunal vide order dated 19.04.2022. It is further contended that sanction and disbursement of unutilized leave salary falls within the domain of the concerned State Government and opposite party no.1 has no role to play. As such, the petitioner has not challenged any order/action of opposite party no.1 nor has he sought any relief from the Union of India. 5. Mr. B. Mohanty, learned Addl. Government Advocate appearing for the State-opposite parties no.2 & 3 contended that a disciplinary proceeding is pending against the petitioner and, as such, the fate of the period of suspension is to be decided after finalization of the said proceeding. The opposite parties mentioned the said fact before the Tribunal through para-wise comments as well as in the speaking order dated 21.06.2021. Since the petitioner retired from service during the period of suspension on attaining the age of superannuation on // 12 // 30.04.2016, even if 300 days leave salary is due prior to suspension, that cannot be released in his favour, which depends upon the conclusion of the disciplinary proceeding initiated against him, as financial involvement is there. It is further contended that the petitioner has placed reliance on the case of Janaki Ballav Mishra, retired IAS, to whom unutilized leave salary was sanctioned, vide office order dated 03.03.2015, but he was retired from service while in continuous service and, as such, he was not placed under suspension at the time of superannuation. The Finance Department Office Memorandum was published on 26.03.2015 which was way later than the date of sanction of unutilized leave salary in faovur of Janaki Ballav Mishra, retired IAS. Therefore, the case of Janaki Ballav Mishra, retired IAS cannot be equated with the case of the petitioner so as to entitle the petitioner to get unutilized leave salary and, thereby, contended that the Tribunal is well justified in rejecting the claim of the petitioner which does not warrant interference of this Court at this stage. // 13 // 6. This Court heard Mr. D.K. Panda, learned counsel appearing for the petitioner; Mr. P.K. Parhi, learned Deputy Solicitor General of India along with Mr. D.R. Bhokta, learned Central Government Counsel appearing for opposite party no.1 and Mr. B. Mohanty, learned Addl. Government Advocate appearing for the State-opposite parties no.2 & 3 in hybrid mode. Pleadings have been exchanged between the parties and with the consent of learned counsel for the parties, the writ petition is being disposed of finally at the stage of admission. 7. On the basis of factual matrix, as delineated above, following questions arose to be considered in this writ petition:- (i) Whether the unutilized leave salary is due to the petitioner and if so the same can be sanctioned and disbursed in his favour, particularly when the petitioner was under suspension and on superannuated 30.04.2016? service from (ii) Whether the case of Janaki Ballav Mishra, retired IAS, is applicable to the case of the petitioner for sanction and // 14 // disbursement of unutilized leave salary due to him? 8. For just and proper adjudication of the case, Rule 11, 11(1) of All India Services (Leave) Rules, 1955 and Rules 15(1), 16(2) 2A & 3 of All India Services (Death-cum-Retirement) Rules, 1958 are extracted below:- 11. Maximum Leave Admissible at a time — 11(1) Subject to the provisions of rule 9, and sub-rule (2) of this rule, the maximum earned leave that can be granted to a member of the service at a time shall be 180 days: that earned Provided leave granted as preparatory to retirement shall be subject to a maximum of 300 days. xxx xxx xxx 20 (A) Payment of cash equivalent of leave salary in case of retirement or death.—(1) Where a member of the Service retires from the service, whether on attaining the age of superannuation under sub-rule(1) of rule 15 or sub-rule(2), (2A) or (3) of rule 16, of the All India Services (Deathcum-Retirement Benefits) Rules, 1958 or dies, the Government shall suomotu sanction to him or his family, as the case may be, cash equivalent of leave salary in respect of both earned leave and half pay leave, if any, standing in his credit on the date on which he ceases to be member of the Service subject to a maximum of 300 days and pay the same in lumpsum as a onetime settlement32. The cash equivalent shall be equal to the leave salary as admissible for earned leave and /or equal to the leave salary as admissible for half pay leave plus dearness // 15 // allowance admissible on the leave salary for the first 300 days. leave salary (2) The cash equivalent of payable to a member of service, under sub- rule(1) shall also include dearness allowance but shall not include any other allowances. (3) The cash equivalent of leave salary for earned leave payable under sub-rule(1) shall be calculated as follows: in Cash payment lieu of Earned leave component Pay admissible on the date of retirement/death Plus Dearness admissible thereon ---------------------------------------x Allowance 30 Number of days unutilized earned leave at credit upto a maximum of 300 days. (4)The leave salary payable for the Half Pay Leave component under sub-rule (1) shall be calculated as follows:- Cash payment in lieu of Earned leave component Number days Pay due. of Half Leave Half pay Leave salary on the date of retirement/plus Dearness Allowance admissible minus pension of pensions relief on gratuity and pension is D.A. admissible on HPL ---------------------------------------x 30 equivalent if Provided that if such calculation of cash equivalent of HPL at credit, an amount becomes due from a member of the service, no recovery shall be effected and no amount shall be deemed to be due from him to the Government for the purpose of this Rule. (a) A member of the Service who has been permitted by the State Government to voluntarily retire from service while under suspension or who is retired by the Central Government in public interest while under suspension shall // 16 // be paid cash equivalent of leave salary under sub-rule(1) in respect of the period of leave at his credit on the date of his retirement from service provided that in the opinion of the authority competent to order reinstatement the member of the service has been fully exonerated and the suspension was wholly unjustified.” ALL RETIREMENT BENEFITS) RULES 1958 SERVICES INDIA (DEATH-CUM- “15. Retirement from service of a member of the service in certain cases and grant of leave— 15 (1) A member of the Service who has been declared by a Medical Board to be permanently incapacitated for further service shall, if he is on duty, be invalidated from service from the date of relief which shall be arranged without delay on receipt of the report of the Medical Board or, if he is granted leave under sub rule (2), on the expiry of such leave: Provided that if he is on leave at the time of receipt of the report of the Medical Board, he shall be invalidated from service on the expiry of that leave or extension of leave, if any, granted to him under sub-rule (2). xxx xxx xxx 16 (2) A member of the Service may, after giving at in least three months’ previous notice writing, to the State Government concerned, retire from service on the date on which such member completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice: Provided that no member of the Service under suspension shall retire from service except with the 64Central Government. 5Provided further that the State Government concerned on a request made by the member of the service may, if satisfied and for reasons to the specific approval of // 17 // be recorded in writing, relax the period of notice. 16 (2A) A member of the service may, after giving three months’ previous notice in writing to the State Government concerned, retire from service on the date on which he completes 20 years of qualifying service or any date thereafter to be specified in the notice: Provided that a notice of retirement given by a member of the service shall require acceptance by the Central Government 67if the date of retirement on the expiry of the period of notice would be earlier than the date on which the member of the Service could have retired from service under sub-rule (2): Provided further that a member of the Service, who is on deputation to a corporation or company wholly or substantially owned or controlled by the government or to a body controlled or financed by the Government, shall not be eligible to retire from the service under this rule for getting himself permanently absorbed in such corporation, company or body. Provided also that a member of the Service borne on the Cadres of Assam-Meghalaya. Manipur-Tripura, Nagaland and Sikkim may retire from service on the date on which he/she completes 15 years of service. in 16(3) The Central Government may, consultation with the State Government concerned, require a member of the service to retire from service in public interest after giving such Member at least three month’s previous notice in writing or three month’s pay and allowances in lieu of such notice – I. after the review when such Member completes 15 years of qualifying Service; or II. after the review when such Member completes 25 years of qualifying Service or attains the age of 50 years, as the case may be, or // 18 // III. If the review referred to in (i) or (ii) above has not been conducted after the review the Central of any other Government deems fit in respect of such Member. time as Explanation :- For the purposes of sub-rule (3), “review” of the entire service record of the Member of the Service regarding suitability or otherwise of such Member for further retention in the Service to be conducted regularly of each Member of such Service, firstly, after his completion of 15 years of qualifying Service and secondly, after his completion of 25 years of qualifying Service or on his attaining the age of 50 years, as the case may be, or if the review referred to in clauses (i) or (ii) of this sub-rule has not been conducted in respect of such Member, such review may be conducted at any other time as the Central Government deems fit.”; Note 1: In computing the period of three month’s notice referred to in sub-rules (2), (2A) the date of service of the and (3) notice and the date of its expiry shall be excluded. In the case of a member of Service Note 2: who retires under sub-rule (2) or (2A) or who is retired under sub-rule the date or retirement shall be treated as a non-working day.” (3), 9. The Government of Odisha in Finance Department issued an Office Memorandum on 26.03.2015, which is extracted hereunder:- “OFFICE MEMORANDUM Sub: Payment of Cash equivalent of Unutilised Leave Salary to Government Servants in Case of death in Service, // 19 // retirement on superannuation, voluntary retirement etc. – Clarification regarding. in leave in case of death The benefit of cash equivalent of Unutilised Leave Salary is admissible to Government Servants in Service, retirement on superannuation, voluntary retirement etc. subject to conditions prescribed under the Odisha Leave Rules, 1966. In Finance Department Office Memorandum it has been No.46545/F., dt.17.12.1991 clarified that the authority competent to grant leave may, in case of Government Servant who ceases to be in Government Service by death/retirement or otherwise and for which the benefit of cash payment lieu of unutilised is permissible, withhold whole or part of the cash equivalent of unutilised leave salary if in the opinion of such authority there is a possibility of some money becoming recoverable from him/her on disciplinary/criminal conclusion proceedings on regularisation of the period of suspension during the proceedings or the regularisation of the period of suspension, such a Government servant will, however, become eligible to the amount so withheld after adjustment of Government dues, if any. In-spite of that, proposals have been received from different quarters regarding admissibility of encashment of leave salary and powers of the leave sanctioning authority to withhold whole or part of cash equivalent of unutilised leave salary if there is a possibility of some the money becoming Government Servant before or after retirement. After careful consideration Government have been pleased to clarify as follows : - the against conclusion of service. On recoverable him/her from or of i. is pending departmental/judicial there If proceeding the against Government Servant as on the date of retirement which in the opinion of the leave authority will culminate a recovery to be effected, sanctioning // 20 // ii. iii. such amount may be withheld from the leave salary. In case, a period of suspension during his employment in Government has not been decided and the regularisation of the suspension period in the opinion of the Leave Sanctioning Authority will culminate a recovery to be effected, such amount may be withheld from the leave salary. judicial In case no departmental / proceeding is pending against a Government servant on the date of retirement or no undecided suspension period is pending against him, then the cash payment in lieu of unutilised leave salary should be released. Sd/- (A.K. Mishra) Special Secretary to Government” 10. On the basis of the facts, as narrated above, it is made clear that the petitioner was placed under suspension on 16.09.2014 and the memorandum of charges was issued on 07.12.2015. While under suspension, the petitioner retired from service on attaining the age of superannuation w.e.f. 30.04.2016. Therefore, disciplinary proceeding was continuing against him. On the basis of representation submitted by him, he was granted provisional pension, but not the unutilized leave salary, group insurance and gratuity. Thereafter, he approached the Tribunal by filing O.A. // 21 // No.114 of 2017, which was disposed of, vide order dated 09.04.2021, with a direction to opposite party no.2 to consider the grievance of the petitioner for sanction and disbursement of the unutilized leave salary in his favour provided that he had 300 days leave to his credit prior to his suspension. On consideration of the same, the opposite party-State authority, vide order dated 21.06.2021, passed a reasoned order stating that an All India Services Officer is governed by the All India Services (Leave) Rules, 1955 and the petitioner is entitled for cash equivalent of the unutilized leave salary, if any, standing at his credit on the date on which he ceases to be member of the Service subject to a maximum of 300 days. The proviso to Rule-20 of the All India Services (Leave) Rules, 1955 states that “Encashment of leave to the moS serving under the State Government will be regulated by the State Rules”. Therefore, in view of the Finance Department Office Memorandum dated 26.03.2015 of the Government of Odisha, wherein it has been clarified that in case a period of suspension of an // 22 // employee during his employment in Government has not been decided and the regularization of the suspension period in the opinion of the Leave Sanctioning Authority will culminate a recovery to be effected, such amount may be withheld from the leave salary. 11. In this case, the period of suspension of the petitioner is 633 days from 16.09.2014 to 30.04.2016, the date of his superannuation, and the said period is yet to be regularized. Earlier, the State Government in 2016 had denied to sanction unutilized leave salary in favour of the petitioner, as his suspension period from 16.09.2014 to 30.04.2016 was to be regularized, and the same could be decided after finalization of disciplinary proceeding initiated against him. Therefore, the State Government, while considering the representation, in compliance of the order dated 09.04.2021 passed by the Tribunal in O.A. No.114 of 2017, rejected the grievance of the petitioner regarding sanction and disbursement of unutilized leave salary in his favour. // 23 // 12. Much argument was advanced that the petitioner’s entitlement to get unutilized leave salary is regulated by the All India Services (Leave) Rules, 1955 and the same cannot be restricted by issuing an Office Memorandum of the State authority, as the said memorandum cannot supersede the statutory rules. But the said contention has no force in the present context, because Rule-20 of the All India Services (Leave) Rules, 1955 empowers the State that “Encashment of leave to the moS serving under the State Government will be regulated by the State Rules”. Therefore, the Finance Department Office Memorandum, which has been issued on 26.03.2015 is in conformity with Rule-20 of the All India Services (Leave) Rules, 1955. Thereby, it cannot be construed that the said Office Memorandum is derogatory to the Rules governing the field, rather it is clarificatory in nature wherein power has been vested with the Government that “Encashment of leave to the moS serving under the State Government will be regulated by the State Rules”. Even if there is leave due of 300 days prior to the suspension, but, when the // 24 // period of suspension has not been decided in the disciplinary proceeding as to how it is to be treated, the same cannot be encashed in favour of the petitioner. There is no iota of doubt that the petitioner, while under suspension, has retired from service on attaining the age of superannuation on 30.04.2016. Unless the disciplinary proceeding is finalized and the treatment of suspension period is decided in the proceeding itself, even if 300 days unutilized leave salary is accrued in favour of the petitioner prior to suspension, that cannot be released in favour of the petitioner, in view of Office Memorandum dated 26.03.2015, which has been issued in consonance with Rule 20 of the All India Services (Leave) Rules, 1955. 13. Learned counsel appearing for the petitioner has placed reliance on Jitendra Kumar Srivastava (supra), wherein the apex Court held that the benefit of pension earned by employee is in nature of “property” and that cannot be taken away without due process of law and even part of pension and/or gratuity cannot be withheld in absence of statutory provision and under // 25 // umbrage of administrative instructions during pendency of department/criminal proceedings. In Dr. Hira Lal (supra), the ratio of which was also relied upon by the learned counsel for the petitioner, the apex Court held that the right to pension cannot be taken away by mere executive fiat or administrative instruction since pension and gratuity are not mere bounties, or given out of generosity of employer but employee earns these benefits by virtue of his long, continuous faithful and unblemished service. There is no doubt with regard to the principles laid down in the above mentioned judgments, but the present case is factually different from those cases relied upon by the petitioner because the only grievance, which is made before this Court, is to release the unutilized leave salary in favour of the petitioner when a departmental proceeding is pending and the fate of suspension period has not been decided. Therefore, the principle enunciated in the aforementioned judgments // 26 // has no application to the present case. Thereby, issue no.(i) is answered accordingly. 14. So far as issue no.(ii) is concerned, much reliance has been placed on the case of Janaki Ballav Mishra, IAS (retired), in whose favour the unutilized leave salary has been sanctioned and disbursed. But the said case has no application to the present fact and circumstances because Janaki Ballav Mishra, IAS (retired) was not placed on suspension when he retired from service and no departmental proceeding was pending against him on the date of retirement. Therefore, the case of Janaki Ballav Mishra, IAS (retired) cannot be equated with the case of the petitioner entitling him to get the benefit of unutilized leave salary, when the disciplinary proceeding is pending against him and, as such, the fate of the disciplinary proceeding is yet to be decided. Accordingly, issue no.(ii) is answered against the petitioner. 15. In view of the facts and law, as discussed above, this Court does not find any error apparent on // 27 // the face of the record so as to interfere with the finding arrived at by the Tribunal in the impugned order dated 19.04.2022 passed in O.A. No.306 of 2021. Consequentially, the relief sought to quash the order dated 21.06.2021 under Annexure-6 issued by opposite party no.3 cannot be granted to the petitioner. In the considered opinion of this Court, if the disciplinary proceeding is still pending, the same should be concluded as expeditiously possible because in the meantime more than eight years have elapsed. 16. In the result, therefore, the writ petition merits no consideration and the same is hereby dismissed. But, however, in the facts and circumstances of the case, there shall be no order as to costs. (DR. B.R. SARANGI) JUDGE G. SATAPATHY, J. I agree. Signature Not Verified Digitally Signed Signed by: ALOK RANJAN SETHY Designation: A.R-cum-Sr. Secretary Reason: Authentication Location: ORISSA HIGH COURT Date: 04-Apr-2024 18:10:51 Orissa High Court, Cuttack The April, 2024, Alok (G. SATAPATHY) JUDGE