The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.25618 of 2022 Ashok Kumar Nayak …. Petitioner State of Odisha and others …. Opposite Parties Mr. K.A. Guru, Advocate -versus-
Legal Reasoning
Mr. I. Mohanty, A.S.C. JUSTICE A.K. MOHAPATRA CORAM: Order No.
Decision
ORDER 29.08.2023 02. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the petitioner as well as learned counsel for the State. Perused the writ petition as well as documents annexed thereto. 3. The present writ petition has been filed by the petitioner with the following prayers: “It is therefore prayed that this Hon’ble Court would be graciously pleased :- 1) ISSUE RULE NISI calling upon the Opp. Parties to show cause as to why an appropriate writ in the nature of certiorari/mandamus and/or any other appropriate writ/writs or order/orders or direction shall not be passed to quash the order No.24380 dated 16.09.2022 under Annexure-5 and to fix the final pension and release the same in favour of the petitioner with a stipulated time period. And // 2 // 2) ISSUE FURTHRER RULE NISI calling upon the Op. parties to show cause as to why an appropriate wit in the nature of certiorari/ mandamus and/or any other appropriate writ/writs or order/orders or direction to pay the unutilized leave salary and gratuity with 18% the pensionary benefits for the date of retirement till the date of payment. interest per towards annum If the Opposite parties fails to show cause or show inadequate or false cause, make the aforesaid rule nisi absolute. And/or order/orders as this Hon’ble Court may deem just and proper in order to provide the Petitioner Complete Relief.” 4. It is submitted by learned counsel appearing for the petitioner that the petitioner, who is working as an Ex-Superintending Engineer, had earlier approached this Court by filing a writ petition bearing W.P.(C) No.3017 of 2022 for sanction of pensionary benefits and this Court vide order dated 09.02.2022 had disposed of the writ petition by directing the Opposite Party No.1 to take a decision on the recommendation made by the Opposite Party No.3 vide letter dated 13.02.2019 and pass appropriate order in accordance with law within a period of three months from the date of communication of the certified copy of the order. Thereafter, the petitioner approached the Opposite Party No.1, however, the said Opposite Party vide order No.24380/WR dated 16.09.2022 under Annexure-5 to the writ petition. Although the said Opposite Party considered the matter of the petitioner, however, no final decision has been taken in the said matter. 5. Further on perusal of the impugned order under Annexure-5 dated 16.09.2022, it appears that the Opposite Party No.1 has disposed of the case of the petitioner with the observation that the // 3 // recommendation made by the Opposite Party No.3 vide letter dated 13.02.2019 shall be considered after finalization of audit objection report and thereafter, the pension papers of the petitioner will be dealt with in a proper manner. On a careful consideration of the impugned order dated 16.09.2022 under Annexure-5, this Court finds that certain allegations with regard to financial irregularities were made in respect of the drainage division in which the petitioner was working. However, the facts remain that no disciplinary proceeding has been initiated against the petitioner not even disciplinary proceeding/ judicial proceeding was also initiated against the petitioner. 6. Learned counsel for the petitioner further emphatically submitted that as of now no disciplinary proceeding/judicial proceeding has been pending against the petitioner. Accordingly, he has approached this Court by filing the present writ application for a direction to the Opposite Parties to pay the pensionary benefits along with interest of delayed payment. 7. On instruction, learned Additional Standing Counsel for the State submitted that the petitioner was working with some of the Engineers, who were working under the division found to be guilty and in view of the internal audit report submitted by the auditors, accordingly the pensionary benefits of the petitioner has been withheld till the audit objection report is considered by the higher authorities. In such view of the matter, learned Additional Standing Counsel for the State submitted that by virtue of impugned order dated 16.09.2022 under Annexure-5, the case of the petitioner has not been considered rather taking any action has been deferred by the Opposite Party No.1. Therefore, the petitioner has moved the present writ petition and the same should be dismissed. // 4 // 8. Having heard learned counsels appearing for the respective parties, on a careful examination of the background facts of the present case as well as materials on record, this Court is of the considered view that there is nothing on record which reveals that any disciplinary proceeding or any criminal proceeding was pending against the petitioner at the time of superannuation from service. Therefore, in view of the provision contained in the OCS (Pension) Rules, 1992 there is no impediment in releasing the pensionary benefits in favour of the petitioner and it is only a matter of whether any disciplinary proceeding/judicial proceeding is pending against the petitioner, only then the Opposite Parties are authorized to withhold the pensionary benefits of the petitioner. Since in the present case nothing was brought on record to show that any such proceeding has been initiated against the petitioner and the same is pending, this Court has no hesitation to set aside the impugned order dated 16.09.2022 under Annexure-5 to the writ application. Accordingly, the same is hereby set aside and further the matter is remanded back to the Opposite Party No.1 to reconsider the matter in the light of the aforesaid observation. The petitioner is directed to approach the Opposite Party No.1 along with certified copy of this order within a period of three weeks from today. In the event the petitioner approaches the Opposite Party No.1 within the aforesaid time stipulation, the Opposite Party No.1 shall verify as to whether any proceeding is pending against the petitioner at the time of superannuation and in the event it is found that no such proceeding is pending against the petitioner in any disciplinary or judicial proceeding, the Opposite Party No.1 shall do well to sanction and disburse the pensionary benefits as is due and admissible in favour of the petitioner within a period of two months from the date of // 5 // communication of the certified copy of this order. Decision so taken shall be communicated to the petitioner within two weeks thereafter. 9. With the aforesaid observation/direction, the writ petition is disposed of. Urgent certified copy of this order be granted on proper application. ( A.K. Mohapatra ) Judge Jagabandhu Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Secretary-in-Charge Reason: Authentication Location: OHC, CUTTACK Date: 01-Sep-2023 10:25:36