The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) NO.451 of 2016 Menaka Rout …. Petitioner Mr. P.C. Mishra, Adv. -versus- State of Orissa & Others …. Opposite Parties Mr. M.K. Balabantaray, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 02.08.2023 Order No 4. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. P.C. Mishra, learned counsel appearing for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Govt. Advocate appearing for the State-Opp. Parties. 3. The Petitioner has filed the present Writ Petition challenging the order dt.05.10.2015 so passed by the Government-Opp. party No.1 under Annexure-13 as well as the order dt.03.02.2009 so passed by Opp. Party No.2 under Annexure-6. 4. It is contended that the petitioner’s husband while working as a Draftsman, a proceeding was initiated against him under Rule 15 of the OCS (CCA) Rules, 1962 on 19.05.2006. In the said proceeding, Opp. party No.2 passed the order of punishment on 03.02.2009 under Annexure-6 wherein the deceased Government employee was dismissed from service w.e.f 25.08.2005. // 2 // 4.1. It is contended that since just after passing of the said order, Petitioner’s husband died on 18.09.2009, he could not get a chance to challenge the said order. However, the Petitioner being the wife of the deceased employee challenged the said order of dismissal before the Tribunal in O.A.No.2978(C )/2011. The Tribunal vide order dt.08.07.2015 though was not incline to interfere with the order of dismissal, but directed Opp. Party No.1 to consider the grievance of the Petitioner by taking it as a compassionate case. Pursuant to the said order, when the Petitioner moved the Government under Annexure-12 inter alia with a prayer to set aside the order of dismissal so passed against her husband, to grant family pension in her favour and to provide appointment to the son of the deceased employee, the same was rejected vide order dt.05.10.215 under Annexure-13. 4.2. Learned counsel appearing for the Petitioner vehemently contended that the deceased employee though was dismissed from his service vide order dt.03.02.2009 under Annexure-6, but there is no such provision to terminate a Government employee with effect from a retrospective date i.e. from 25.08.2005. Therefore, the said order of dismissal was not sustainable in the eye of law. However, the Tribunal since did not interfere with the said order and granted liberty to the Petitioner to move appropriate application for consideration of her claim as a compassionate one, the petitioner did not challenge the order dt.08.07.2015 so passed in O.A.No.2978(C Page 2 of 5 // 3 // )/2011. The Petitioner in view of liberty granted to the Petitioner by the Tribunal moved a detailed representation in Annexure-12 with the prayer as indicated hereinabove. But the Opp party No.1 without proper appreciation of the Petitoner’s claim as made in Annexure-12, rejected the same vide the impugned order dt.05.10.2005 under Annexure-13. 4.3. It is accordingly contended that since without proper appreciation of the order passed by the Tribunal, the claim of the Petitioner has been rejected vide Annexure-13, the said order is not sustainable in the eye of law and it requires interference of this Court. 5. Mr. M.K. Balabantaray, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. 5.1. It is contended that even though the petitioner challenged the order of dismissal so passed against her husband on 03.02.2009 under Annexure-6 before the Tribunal in OA No.2978(C )/ 2011, but the Tribunal while disposing the matter vide order dt.08.07.2015 under Annexure-11, did not interfere with the said order of dismissal. Therefore, the order passed against the Petitioner’s husband attained finality in the eye of law. However taking into account the liberty granted by the Tribunal to the Petitioner to make appropriate application before Opp. party No.1 and for its consideration as a compassionate case, the same was duly considered by Opp. party No.1. Since Opp. Party No.1 did not find any merit on the claim of the Page 3 of 5 // 4 // petitioner, the prayer was rejected vide order at Annexure-13. It is accordingly contended that no illegality has been committed by Opp. party No.1. while rejecting the prayer of the Petitioner vide Annexure-13. 6. This Court heard learned counsel appearing for the parties at length and perused the materials available on record. 6.1. The Petitioner who happens to be the wife of the deceased Govt. employee is before this Court in the present Writ Petition challenging the order passed under Annexure-6 and the order passed under Annexure-13 pursuant to the order passed by the Tribunal in the earlier O.A. Since it is found that the Tribunal was not inclined to interfere with the order of dismissal so passed against the deceased employee under Annexure-6 and the petitioner has also not challenged the said order before any higher forum, this Court is not inclined to interfere with the order dt.03.02.2009 so passed under Annexure-6. However, taking into account the fact that the Petitioner’s husband was dismissed from Government service from a retrospective date and the nature of charge being unauthorized absence from duty, this Court finds from the record that the petitioner’s husband was undergoing treatment for a pretty long period prior to his dismissal and after his dismissal on dt.03.02.2009, he also died on 18.09.2009. Therefore, taking into account the materials available on record, this Court Page 4 of 5 // 5 // finds it to be a fit case to direct the authority to sanction compassionate allowance in favour of the deceased employee from the date of his dismissal till he died on 18.09.2009 and thereafter sanction family pension in favour of the Petitioner. 6.2. While holding so, this Court directs Opp. party No.1 to take effective step for sanction of compassionate allowance as provided under Rule 46 of the OCS Pension Rules, 1992 in favour of the deceased Government employee from the date of dismissal i.e. 25.08.2005 till his death on 18.09.2009 and the family pension in favour of the Petitioner w.e.f 19.09.2009. The entire exercise shall be undertaken and completed by Opp. party No.1 within a period of three months from the date of receipt of this order. 7. The arrear entitlements as due and admissible shall also be released in favour of the Petitioner within the aforesaid time period. The Writ Petition is accordingly disposed of with the aforesaid observation. (Biraja Prasanna Satapathy) Judge sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authenticatio of order Location: High Court of Orissa, Cuttack Date: 09-Aug-2023 18:17:05 Page 5 of 5