The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.24234 of 2023 Sri Subhasisha Mohapatra …. Petitioner Mr.Ranjit Mohanty,Advocate State of Odisha and others …. Opp. Parties Mr.Debashish Nayak, A.G.A. -versus- CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 01.03.2024 02. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as the learned Additional Government Advocate. Perused the Writ Petition as well as the documents annexed thereto. 3. The present Writ Petition has been filed with the following prayer : “It is, therefore, most humbly prayed that this Hon’ble Court may graciously be pleased to issue Rule NISI calling upon the opp. parties to show cause as to why the impugned order dt. 09.05.2023, annexure-5, shall not be quashed and on such basis further to show cause as to why direction shall not be issued to the opp. parties to finalize the pension case of the petitioner and to release the gratuity amount with interest @ 7% per annum to be // 2 // calculated from the date of its due till the date of its actual payment as provided under Rule 49 (5) of the Pension Rules, 1992, within a time stipulated period as this Hon’ble Court pleases to fix and upon perusal of the causes shown, if any, or upon insufficient causes shown, make this Rule NISI absolute and pass such other order/orders as is deem just and proper.” 4. The factual background leading to filing of the present case in brief, is that, the petitioner, who was serving as Assistant Executive Engineer (C), Office of Executive Engineer, (R & B) Division No.II, Cuttack, retired from service on attaining the age of superannuation with effect from 31.10.2018. After retirement of the petitioner, his pension papers were forwarded to the Office of the Executive Engineer on 01.07.2019. Thereafter, the Executive Engineer forwarded such pension papers to the Office of the Engineer-in-Chief (Civil) on 25.07.2019. The Engineer-in-Chief then forwarded the pension papers to the Government on 17.09.2019 with a clear observation that no Department Proceeding/charge-sheet cases/ vigilance case/ SVP objection is pending against the present petitioner on the date of his retirement, on the basis of record available in his office. 5. While the matter stood thus, the Opposite-Parties sanctioned the cash payment in view of unutilized leave salary in favour of the petitioner by their order dated 29.01.2023 under Annexure-3. Since the petitioner was not paid his other retiral dues and pensionary benefits, the petitioner earlier approached this Court by filing W.P.(C) No.5708 of 2023. This Court vide order dated 09.03.2023 disposed of the writ application with a direction to the opposite parties to take a decision in the matter of the petitioner by referring to // 3 // letter dated 17.09.2019 under Annexure-5 to that writ application within a period of six weeks from the date of communication of that order. Further, it was directed to comply with the requirement of the rules, the pension papers of the petitioner be forwarded to the Office of the Accountant General and the Accountant General shall do well to sanction and disburse the pensionary benefits in favour of the petitioner within a period of six weeks. 6. After disposal of the aforesaid writ application, the Opposite Party No.1 considered the case of the Petitioner and vide order dated 19.05.2023 under Annexure-5, the claim of the petitioner has been rejected. On a careful analysis of the impugned rejection order under Annexure-5 this Court observes that the Opposite Party No.1 has quoted portions of the order dated 09.03.2023 and in the second to last paragraph of the rejection order dated 09.05.2023, it has been mentioned that the petitioner has been entangled in Cuttack Vigilance P.S. Case No.45 dated 10.12.2019 for commission of offences mentioned therein. Finally, in the concluding paragraph, the representation of the petitioner has been rejected without referring to any provision of law with a single line with the observation that the petitioner is not eligible to get pensionary benefits. On a perusal of the above mentioned impugned rejection order this Court is of the view that the Administrative Authorities while considering the case of the Petitioner are also required to refer to the provisions of law, the bare minimum that is expected from such authorities is to reframe from behaving like a monarch and to desist from passing orders rejecting the claim of the Petitioner without even referring to the relevant provisions of law under which the claim is barred. // 4 // 7. Learned Counsel appearing for the Petitioner in course of his argument referred to the judgment of this Court in Sushanta Chandra Sahoo v. State of Odisha in W.P.(C) No.14718 of 2015 which was disposed of vide a judgment dated 06.05.2022 by a Division Bench of this Court. While deciding the aforesaid case, the Division Bench of this Court has interpreted the relevant legal provisions with regard to payment of pensionary benefits to a retired Government employee. Further, the Division Bench has also elaborately discussed the provision contained Rule-7 (2) (c) and the explanations contained therein and finally, the Hon’ble Division Bench has come to a conclusion by taking into consideration both the Rule-7 as well as the Rule-66 of the Odisha Pension Rules that in a case where there is a judicial/ criminal proceeding pending against the Petitioner. Such pendency shall be counted from the date of taking cognizance of the offence filed by the Magistrate as has been provided in the explanation appended to the aforesaid rules. Further, the Division Bench has elaborately discussed the meaning of what cognizance in Para-10 of the judgment. In the ultimate analysis, the Division Bench has held that mere pendency of a judicial/ criminal proceeding will not stand in the way of the authorities in considering the case of the petitioner for release of pensionary benefits including the final pension. In the event, no cognizance has been taken in such criminal proceeding. Reverting back to the facts of the present case, it appears that the vigilance proceeding against the petitioner was initiated after his retirement. Further, taking into consideration the submission made by learned counsel for the petitioner that so far no charge-sheet has been filed which indicates that the investigation has not been concluded as of now. In such view of the matter, by // 5 // applying the law laid down in Sushanta Chandra Sahoo’s case (supra), this Court is of the considered view that the pendency of the aforesaid vigilance case will not stand in the way of granting the pensionary benefits as is due and admissible to the present petitioner. 8. Learned Additional Government Advocate and other had contended that the Opposite Party No.1 has considered the case of the petitioner duly after disposal of the earlier writ application and the claim of the petitioner has been rejected by a speaking order dated 09.05.2023 under Annexure-5 to the writ application. He further contended that due to pendency of the vigilance case as has been mentioned in the order under Annedure-5, the opposite party No.1 has come to a conclusion that the petitioner is not entitled to the pensionary benefits as has been prayed for by him. However, learned Additional Government Advocate agreed that while rejecting the claim of the petitioner under Annexure-5, the opposite party No.1 has not referred to the relevant provisions of the law. 9. In view of the aforesaid analysis of facts as well as the legal position and keeping in view law laid down by this Court in Sushanta Chandra Sahoo’s case (supra), this Court is of the considered view that the impugned rejection order dated 09.05.2023 under Annexure- 5 is unsustainable in law. Accordingly, the same is hereby quashed. Further, the matter is remanded back to the opposite party No.1 to consider the case of the petitioner afresh in the light of the aforesaid discussion as well as by keeping in view the provisions contained in OCS Pension Rules under Rule-7 and Rule-66 as well as the law laid down by this Court in Sushanta Chandra Sahoo’s case (supra). The opposite party No.1 shall do well to dispose of the grievance of the // 6 // petitioner by passing a speaking and reasoned order within a period of two months from the date of communication of the certified copy of this order. The final decision so taken be communicated to the petitioner within a week thereafter. 10. With the aforesaid observation, the Writ Petition stands disposed of. 11. Issue urgent certified copy of this order as per Rules. S.K. Rout ( A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: SANTANU KUMAR ROUT Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Mar-2024 19:13:38