JUSTICE v. NARASINGH ORDER
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 7284 OF 2013 Snehalata Mohanty ……… Mr. D.N. Rath, Advocate Petitioner State of Orissa & Others -versus- Opposite Parties ...……… Mr. D. Mund, AGA Mr. H. Tripathy, Advocate for OP-3 CORAM: JUSTICE V. NARASINGH ORDER 19.04.2022 Order No. 25. 1. 2. This matter is taken up through Hybrid Mode.
Legal Reasoning
Heard Mr. Rath, learned Senior Counsel for the Petitioner and Mr. H. Tripathy, learned counsel appearing for the OSRTC. 3. The petitioner is the widow of late Sri Surendranath Mohanty working as a Conductor-cum-Guide under OSRTC, Dhenkanal has approached this Court under Article-226 of the Constitution of India, seeking inter alia the following relief; “To sanction the appropriate pension in favour of the late husband of the petitioner by treating the period of service from 01.11.1975 till the husband of the petitioner was made to retire on 30.04.1985 with consequential financial benefits.” 2 3. The brief facts germane for just adjudication are stated hereunder; The husband of the petitioner joined in the service of the OSRTC as a Conductor-cum-Guide on 14.07.1962 and admittedly on 01.11.1975, the husband of the petitioner who was then continuing as Conductor-cum-Guide under the Odisha State Transport Corporation hereinafter referred as “OSRTC” was prematurely retired basing on certain allegation owing to some financial irregularities. 4. Thereafter, in the year 1976 by order dtd. 15.07.1976 at Annexure-B, the husband of the petitioner was given a “sedentary posting” allowing him to draw pay as he was drawing earlier, as Conductor-cum-Guide i.e., ASM on the basis of representation filed by the petitioner’s husband. 5. While the petitioner’s husband was so continuing in the year 1983, a notice was served upon him to retire from service with effect from 30.04.1983. Later on the said notice was withdrawn and another notice dtd. 26.04.1983 was issued by the Corporation treating his services to be terminated w.e.f. 30.04.1983. 6. In the year 1985, the petitioner filed a Civil Suit bearing No. T.S.14 of 1983 in the Court of learned Munsif, Dhenkanal and issues in the said suit which are relevant for adjudication are culled out hereunder; 3 “I s s u e s 1. Is the suit maintainable ? 2. Is the suit bad for want of valid notice under Section- 80 C.P.C? 3. Has the plaintiff any locustandi to file the suit? 4. Is the suit grossly undervalued? 5. Is there any cause of action ? 6. Is the letter terminating the service of the plaintiff from 30.04.1983 legal and correct ? 7. Is the plaintiff entitled to continue in service after 30.04.1983 ? 8. Is the actions taken by the plaintiff correct ? 9. To what relief, if any the plaintiff entitled ? ” 7. By judgment dtd. 25th of April, 1985, the suit was decreed on contest against the defendants including the present Opposite Party-OSRTC arrayed as Defendant No. 5 and the following Judgment was passed; “The suit is decreed with costs on contest against the defendants. The order passed by defendant no.4 on 26.04.1983 terminating the service of the plaintiff with effect from 30.04.1983 is hereby declared as illegal, bad in law and without jurisdiction. The plaintiff is entitled to continue in his service till 30.04.1985, the age of superannuation.” 4 8. This Court is called upon to decide as to whether the petitioner is deemed to have continued in service till 1985 by virtue of the order passed by the Learned Munsif, Dhenkanal in the aforesaid Civil Suit and taking into account the order of 1976 at Annexure-B whereby the petitioner was given a sedentary posting and wherein it was stated that the pay he was drawing earlier as Conductor-cum-Guide and pay should be commensurate which he was drawing earlier as Conductor-cum-Guide i.e., ASM. 9. Learned Senior Counsel, Sri Rath, placing reliance on Annexure-B, more particularly the last two lines of Annexure-B “intention of the Government is that Sri Mohanty should not be put to any financial loss, if possible” submits that by virtue of this order at Annexure-B the earlier premature retirement order dtd. 01.11.1975 has been rendered ineffective and it has merged with the order at Annexure-B and the petitioner’s husband is deemed to be continuing by virtue of Annexure-B. And, placing reliance on the order of the Learned Munsif quoted herein above submits that as the husband of the petitioner has admittedly continued till 1985 is entitled to retiral benefits taking into account service rendered from 01.11.1975 till his retirement on 1985. 10. Per contra the learned counsel for the OSRTC, Sri Tripathy, relying on the Counter Affidavit filed, submits that from the very tenor of the letter at Annexure-B issued on 15.07.1976 it can be seen that it is a fresh appointment and therefore the submission of the learned Senior Counsel for the petitioner to 5 count the service from 1975 till the order of the Learned Munsif in 1985 is misconceived. 11. This Court had occasion to examine Annexure-A issued by the OSRTC, i.e., Office Order dtd. 28.07.1976 (Annexure-B) which is evidently after issuance of the Letter dtd. 15.07.1976 on which strong reliance is placed by the petitioner to claim that her husband is deemed to be continuing in service till 1985. Recital of the said Annexure-A relevant for adjudication is quoted hereunder; “ On a bare perusal of the Office Order dtd. 28.07.1976 it can been that it has been clearly indicated therein that the above appointment is made purely on temporary basis subject to termination at any time without notice”. 12. It is not in dispute that the Order dtd. 01.11.1975 directing premature retirement of the petitioner’s husband has never been assailed and had attained finality. The order at Annexure-A, which has been extracted hereinabove, clearly stipulates that the appointment of petitioner’s husband is a temporary one. For reasons best known the husband of the petitioner did not choose to assail such an order and in fact joined pursuant to the same and continued till 1985. 13. Reliance of the Senior Counsel for the petitioner on Annexure-B a letter of the Government which preceded issuance of the appointment order at Annexure-A hereinabove quoted does not in any way led credence to the submission of the learned Senior Counsel for the petitioner that the effect of the termination 6 dtd. 01.11.1975 is watered down by the subsequent letter dtd. 15.07.1976. By the said letter the Corporation has only directed to fix the pay of the petitioner’s husband at par with the earlier pay as drawn. The same does not ipsofacto confer any right on the petitioner’s husband to claim continuity of service. The submission that the termination order dtd. 01.11.1975 has lost its force is misconceived. 14. Further the reliance of the learned Senior Counsel for the petitioner on the order passed by the Learned Munsif in considered opinion of this Court is of no assistance to the petitioner in as much as one of the issue before the Common Law Forum was whether the letter terminating the petitioner’s husband from 30.04.1983 is legal and correct. And on the basis of the issues framed, the learned Munsif by Order dtd. 25.04.1985 came to the finding that the order passed by the Corporation arrayed as Defendant No. 4 in the suit terminating the service of the petitioner’s husband from 1983 is illegal and that the husband of the petitioner -plaintiff is entitled to continue in service till 30.04.1985, i.e., the age of superannuation; “It is not disputed at the Bar that in fact, the petitioner continue till 30.04.1985.” The judgment passed in the suit does not in any way advance the cause of the petitioner that he is deemed to have continued in service notwithstanding the order of premature retirement dtd. 01.11.1975, which was admittedly not assailed. 7 15. Learned Senior Counsel for the petitioner has also referred to the order passed by the Division Bench of this Court dtd. 18.12.1991 in OJC No. 813 of 1990. 16. On a bare perusal of the Order dtd. 18.12.1991 of the Division Bench, it can be seen that the point for determination before this Court was whether the tenure of service rendered by the petitioner’s husband to be counted for the purpose of pension and after considering the submission of the counsels, the writ
Decision
petition was disposed of by directing that the period should be so construed so as to ensure that the petitioner’s husband is not deprived of his retirement benefits. The said order in no way helps the cause of the petitioner that her husband is deemed to be in service from 01.11.1975 till 1985. 17. On a conspectus of materials on record and in view of the admitted position that the order dtd. 01.11.1975 prematurely retiring the petitioner has remained un-assailed, this Court is of the considered opinion that the present writ petition is devoid of merit and the same is accordingly dismissed. 18. There shall be no order as to costs. Balaram ( V.Narasingh ) Judge