The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC (OAC) No.1376 of 2018 Basanti Dei …. Petitioner Mr. S. Behera, Adv. -versus- A. State of Odisha & Others … Opp. Parties State Counsel CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No ORDER 16.02.2024 5. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard learned counsel for the parties. 3. The Petitioner has filed the present Writ Petition inter alia with the following prayer. 4. It is the case of the Petitioner that Petitioner’s late husband entered into service on 19.04.1961 as a LP School Teacher under the then D.I. of School, Kendrapara and he was posted as such to Ansikana LP School where he joined on 19.04.1961. 4.1 It is contended that because of his illness, her late husband though remained on leave w.e.f 04.4.1974, but at no point of time petitioner’s late husband because of such remaining on leave w.e.f 04.04.1974, was proceeded with in any proceeding with passing of any order of punishment, till he attained the age of superannuation on 31.09.1998. It is contended that Petitioner’s late husband though died on 25.12.2012, but prior to his death, he approached the authority on several occasion with a prayer to sanction pension and other pensionary benefits but without any result. 4.2. After the death of husband, petitioner moved an application on 30.11.2014 under Annexure-4 with a prayer to sanction her with family pension as due and admissible. As the same was not considered. Petitioner approached the Tribunal in OA NO.1257(C ) of 2015. The Tribunal vide order dt.03.08.2015 under Annexure-5 disposed of the matter by directing Opp. Party No.4 to consider the claim of the Petitioner. But Opp. Party No.4 vide the impugned
Decision
order dt.21.07.2017 under Annexure-6 rejected the claim on the ground that since the period of service from 04.04.1974 to 30.09.1998 of the deceased employee was never regularized, petitioner is not eligible to get the benefit of family pension as claimed. It is also indicated in the impugned order that Petitioner’s late husband since absconded from his duty w.e.f 04.04.1974 violating Rule 42(2) of the Orissa Service Code, as per Rule 36 of the OCS Pension Rule, 1992, the break period cannot be condoned. 4.3. Learned counsel for the petitioner contended that even though Petitioner’s late husband remained on leave w.e.f 04.04.1974 till he attained the age of superannuation on 31.09.1998, but no proceeding was ever initiated against him with passing of any order of dismissal or termination. Hence, it is to be held that her late husband retired from service on attaining the age of superannuation and eligible to get the benefit of Page 2 of 5 pension and other pensionary benefits. It is also contended that Petitioner being the legal married wife of the deceased employee, she is also eligible and entitled to get the benefit of family pension. 4.4. In support of his submission, learned counsel for the Petitioner relied on an order passed by this Court 15.09.2023 in W.P.C(OAC) No.79 of 2018. Vide the said order, this Court relying on an order passed on 17.03.2022 in W.PC (OA) No.125 of 2023 held the Petitioner therein to get the benefit of minimum family pension as due and admissible. The view expressed by this Court in Para 7.1 of the said order is quoted hereunder. 7.1. Taking into account the materials available on record, more particularly the instruction provided by the DEO vide letter dt.07.08.2023, that no proceeding initiated against the deceased Govt. was ever employee, placing reliance on the decision as cited (supra), this Court is of the view that the deceased employee is eligible and entitled to get the benefit of minimum pension as she has rendered qualifying service of more than 10 years prior to her remaining on leave w.e.f 11.02.1999. While holding so, this Court directs Opp. Party No.3 to sanction and release the minimum family pension as due and admissible in favour of the present petitioner w.e.f 19.07.2016. The arrear pension as due admissible from 19.07.2016 as well as the current family pension be released in favour of the Petitioner within a period of four (4) months from the date of receipt of this order. It is however observed that the Petitioner will not be entitled to get any other retirement benefits save and except the minimum family pension as due and admissible.” 5. Learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opp. Party No.4. It is contended that since Petitioner’s late husband while in service remained on unauthorized absence w.e.f Page 3 of 5 04.04.1974 till he attained the age of superannuation on 31.03.1998, in view of the provisions contained under Rule 42 (2) of the Orissa Service Code, read with Rule 36 of OCS (Pension) Rules, 1992 the deceased employee is not entitled to get the benefit of pension and other pensionary benefits. 5.1. Since the deceased employee was not eligible to get the benefit of pension, petitioner being the wife is also not eligible to get the benefit of family pension. It is accordingly contended that the claim of the Petitioner after due consideration has been rightly rejected by Opp. Party No.4 vide order dt.21.07.2017 under Annexure-6 and it requires no interference. 6. Having heard learned counsel for the parties and after going through the materials available on record, it is found that Petitioner’s husband entered into service on 19.04.1961. As admitted petitioner’s husband though remained on unauthorized absence w.e.f 04.04.1974 but no proceeding whatsoever was initiated with passing of any order of punishment till he attained the age of superannuation on 31.09.1998. 6.1. In view of such inaction on the part of opp. parties in not taking any action against the deceased employee for his remaining on unauthorized absence w.e.f 04.04.1974 till he retired on 31.09.1998, iIt is to be held that Petitioner’s late husband continued in service till he attained the age of superannuation on 03.09.1998. However, considering the fact that the deceased employee prior to his death never was Page 4 of 5 sanctioned with pension, this Court placing reliance on the order passed in W.P.C (OAC) No.739 of 2018, held the Petitioner eligible and entitled to get the benefit of minimum family pension from the date her husband died on 25.12.2012. 6.2. This Court accordingly directs Opp. Party No.4 to take effective steps for sanction of minimum family pension as due and admissible w.e.f 26.12.2012 in favour of the Petitioner and release the same along with arrear within a period of three (3) months from the date of receipt of this order. Petitioner will not be eligible and entitled to get any other benefits save and except the minimum family pension as directed. Consequentially, the impugned order under Annexufre-6 is hereby quashed. The Writ Petition is accordingly disposed of. (Biraja Prasanna Satapathy) Judge sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: AUTHENTICAITION OF ORDER Location: HIGH COURT OF ORISSA, CUTTACK Date: 19-Feb-2024 15:08:21 Page 5 of 5