The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C.(OAC) No. 3747 of 2017 In the matter of an application under Section 19 of the Administrative Tribunal’s Act, 1985. ……………… Banamali Das …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties For Petitioner :
Legal Reasoning
4.3. Similarly, this Court in the case of HariharBehera in Para 6 has held as follows:- “6. Having heard learned counsel appearing for the Parties and after going through the materials available on record vis-à-vis the submissions made, this Court finds that Rule 7(2) of the OCS (Pension) Rules prescribes the modality and the right of Govt. to withhold or withdraw pension. Rule 7(2)(a) to (e) prescribes the modalities and cases in which the Govt. can withhold pension and other pensionary benefits. But this Court finds that in the explanation given to Rule 7(2), it has been held that judicial proceeding shall be deemed to be instituted on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance. Since in the present case as on the date of the retirement only the case has been instituted vide Cuttack Vigilance P.S. Case No. 76 of 2016 and no charge sheet is filed with taking of cognizance as contended by the learned counsel for the Petitioner, placing reliance on the explanation to Rule 7(2) and the decision as cited (supra), this Court if of the view that the Petitioner is eligible and entitled to get the benefit of pension and other pensionary benefits. While holding so, this Court directs Opp. Party No. 1 to sanction and release the final pension and other retiral benefits as due and admissible in favour of the Petitioner. Such an exercise shall be undertaken and completed within a period of three (3) months from the date of receipt of this order. However, the extension of pension and other Page 5 of 9 // 6 // pensionary benefits shall be subject to final outcome of the vigilance case in question.” 4.4. Placing reliance on the aforesaid decisions and the fact that charge sheet was filed in the vigilance case only on 28.07.1998, learned counsel for the Petitioner contended that aforesaid initiation/pendency of the vigilance proceeding cannot be taken as a bar to permit the State to withhold the pension and other pensionary benefits. 4.5. It is also contended that State-Opp. Parties on the mere pendency of the vigilance proceeding when did not release the pension and other pensionary benefits, Petitioner approached the Tribunal in O.A. No. 3784(C) of 2016. The Tribunal vide order dtd.03.11.2016 when directed the Opp. Parties to consider the claim of the Petitioner, the impugned order was passed by Opp. Party No. 1 on dtd.15.04.2017 under Annexure-9. Opp. Party No. 1 refused to extend the benefits of pension and other pensionary benefits in favour of the Petitioner on the ground that a vigilance proceeding is pending against the Petitioner. It is accordingly contended that the ground on which the claim of the Petitioner has been rejected vide the impugned order is not sustainable in the eye of law and it requires interference of this Court. 5. Mr. S. Jena, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that on the retirement of the Petitioner on 31.08.1992, he was sanctioned with provisional pension w.e.f.01.09.1992 vide Department Memo No. 21937 dtd.15.12.2001. Even though his pension papers have been received in the Department, but due to pendency of the vigilance proceeding so initiated against the Petitioner on 15.04.1993 with submission of the charge sheet on 28.07.1998, pension and pensionary benefits of the Petitioner has not been released and it will be subject to final Page 6 of 9 // 7 // outcome of the vigilance proceeding, which is pending against the Petitioner. The stand taken in the counter affidavit is quoted hereunder:- “The Petitioner retired from Govt. service w.e.f.31.08.1992 on attaining the age of superannuation while working as E.E., Balasore. Proposal for sanction of provisional pension was received from E.I.C(C) Odisha vide their letter No.58610, dt.17.11.2001. Basing upon his qualifying service i.e. 30 years 18 has been sanctioned in the proportionate rate i.e. Rs.1750- p.m. + T.I. w.e.f. 01.09.1992 vide this Department memo No.21937, dt.15.12.2001. His pension papers along with other documents were received in the Department in complete set on 12.02.2013. Paras-6. (i) to (xi) -No comments. That, in reply to Para-6(xii) of the writ petition. it is humbly submitted that on the basis of the report of G.A (Vigilance) Dept., the claim of the petitioner could not be considered which has been intimated to him vide order No. 5342. dt.15.04.2017 of respondent No.1. But in spite of knowing well the fact, the applicant surreptitiously has not arrayed the said G.A (Vigilance) Dept. as a party in this case. It is pertinent to point out that G.A (Vigilance) Dept. have substantial role in the entire matter. As such without impleading G.A (Vigilance) Dept. as a necessary party, the case is liable to be dismissed for non-joinder of necessary party. That, in response to Paras-6(xiii) and (xiv), it is humbly submitted that due to pendency of vigilance P.S. case No.10, dt.14.04.1993 u/s-13(2) read with section 13(1)(e) of P.C. Act 1988 in which cognizance was taken on 28.07.1998, decision could not be taken for sanction of final pension in favour of the applicant and he was intimated accordingly vide order No 53 dt.15.04.2017 of Works the criminal Department. It proceeding was initiated after 8 months of retirement his final pension has been withheld as per Rule-7(c) of O.C.S. Pension Rules 1992. It is further submitted that, in the criminal case, the cognizance has been taken by the learned Court of Special Judge, Special Court, Cuttack, which is still sub-judice. Copy of the letter No. 3850/Vig. Cell, dated 01.10.2021 of S.P. Vigilance Cell, Cuttack is annexed herewith as "ANNEXURE-A". further submitted that since is That, in view of the facts, it is humbly submitted that the claim to sanction the final pension in favour of the applicant will be considered after finalisation of the vigilance case against him and that the original application filed by him is not entertain-able and as such, is liable to be dismissed in limine.” 6. Having heard learned counsel appearing for the Parties and considering the submission made, it is found that Petitioner while in service, he retired Page 7 of 9 // 8 // on attaining the age of superannuation on 31.08.1992. It is not disputed by either of the Parties that as on the date of retirement, neither any departmental proceeding nor any judicial proceeding was pending against the Petitioner. It is not known as to why on the face of retirement of the Petitioner on 31.08.1992, his pension and pensionary benefits were not released even though the F.I.R. was only lodged on 15.04.1993. However, in view of the clear provisions contained under Rule 7(2)(d) vis-à-vis the explanation appended to the said Rules as cited (supra) and the decisions rendered by this Court in the case of Sushanta Chandra Sahoo as well as HariharaBehera, it is the view of this Court that the ground on which Opp. Party No. 1 has refused to extend the benefit of pension and other pensionary benefits in favour of the Petitioner vide the impugned order dtd.15.04.2017 under Annexure-9 is not sustainable in the eye of law. 6.1. Since in the vigilance proceeding the charge sheet was only submitted on 28.07.1998, as per the considered view of this Court, the said proceeding cannot be taken as a bar and giving a right on the Govt. to withhold the pension and pensionary benefits. 6.2. Therefore, in view of the aforesaid analysis, this Court is inclined to quash order dtd.15.04.2017 so passed by Opp. Party No. 1 under Annexure-9. While quashing the said order, this Court directs Opp. Party No. 1 to release the pension and other pensionary benefits as due and admissible to the Petitioner within a period of four (4) weeks from the date of receipt of this order. 6.3. This Court further held the Petitioner entitled to get interest @ 7% per annum all through on the retiral gratuity and the arrear pension. The entitlement of the Petitioner to receive interest as directed hereinabove will be released after release of the pension and other pensionary benefits within Page 8 of 9 // 9 // the period as directed. Interest as due and admissible be calculated and released within a further period of one (1) month from the date of release of pension and gratuity.
Arguments
Mr. P.K. Mohanty (Advocate) For Opp. Parties : Mr. S. Jena, Addl. Govt. Advocate PRESENT: THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------------- Date of Hearing: 02.07.2024 & Date of Judgment: 02.07.2024 --------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through hybrid mode. 2. Heard Mr. P.K. Mohanty, learned counsel appearing for the Petitioner and Mr. S. Jena, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. Petitioner has filed the present writ petition inter alia with the following prayer:- // 2 // “i) The order under Annexure-9 be quashed. ii) The Respondents be directed to sanction and disburse full pension to the applicant in terms of Rule 47(2)(b) of the Pension Rules from the date of retirement i.e.31.8.1992.” 4. It is contended that Petitioner while continuing as an Executive Engineer (Civil), he retired from his service on attaining the age of superannuation on 31.08.1992. It is contended that though on the date of retirement neither any departmental proceeding nor any judicial proceeding was pending against the Petitioner, but for reasons best known to the Opp. Parties, the retiral benefits of the Petitioner were never released. But subsequently on the ground that a vigilance proceeding has been initiated against the Petitioner with lodging of the F.I.R. on 15.04.1993, Opp. Parties never released the pension and other pensionary benefits as due to the Petitioner, save and except paltry provisional pension that was sanctioned in favour of the Petitioner. 4.1. It is contended that right of the Govt. to withhold the pension is provided under Rule 7 of the OCS (Pension) Rules, 1992. Rule 7 of the Rules with the explanation given thereof reads as follows:- “7. Right of Government to Withhold or Withdraw Pension- (1) The Government reserve to themselves the right of withholding a pension or gratuity, or both either in full or in part, or withdrawing a pension in full or in part. whether permanently or for specified period and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence in duty during the period of his service including service rendered on re-employment after retirement: Provided that the Odisha Public Service Commission shall be consulted before any final orders are passed: Provided further that when a part of pension is withheld / withdrawn, the amount of such pension shall not be reduced below the amount of minimum limit. Page 2 of 9 // 3 // (2) (a) Such departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service, whether before his retirement or during his reemployment, shall, after the final retirement of the Government servant, be deemed to be a proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service: Provided that when the departmental proceedings are instituted by an authority, subordinate to Government that authority shall submit a report recording its findings to the Government. (b) such departmental proceedings as referred to in sub-rule (1) if not instituted while the Government servant was in service, whether before his retirement or during his reemployment- (i) shall not be instituted save with the sanction of Government; (ii) shall not be in respect of any event which took place more than four years before such institution ; and (iii) shall be conducted by such authority and in such place as the Government may, direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service; (c) [deleted] Vide Finance Department Notification No.33464/F., dtd.04.08.2006 (d) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or instituted or where departmental instituted or where departmental proceedings are continued under clauses (a) and (b), a provisional pension as provided in rule 66 shall be sanctioned. 7 judicial proceedings are proceeding are (e) Where the Government decide not to withhold or withdraw pension but order recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant. Explanation-For the purpose of this rule,- (a) Departmental proceedings shall be deemed to be instituted on the date on which the statement of charges are issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from the date of his suspension; and (b) judicial proceedings shall be deemed to be instituted,- Page 3 of 9 // 4 // (i) in the case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made; and (ii) in the case of civil proceedings, on the date of presentation of the plaint in the Court.” 4.2. Learned counsel for the Petitioner placing reliance on the provisions contained under Rule 7(2)(d) vis-à-vis the explanation appended to the Rules, contended that since on the date of retirement of the Petitioner, no departmental proceeding or judicial proceeding was pending against the Petitioner and in the vigilance case so initiated on 15.09.1993, since charge-sheet was only filed on 28.07.1998, it cannot be taken as a proceeding pending against the Petitioner and thereby permitting the State to withhold the pension and other pensionary benefits of the Petitioner. 4. In support of his aforesaid submission, learned counsel for the Petitioner relied on a decision of this Court so passed in the case of State of Odisha&Ors. Vs. Sushanta Chandra Sahoo&Ors.reported in 2022 (Supp.) OLR -447 and another decision in the case of HariharaBehera Vs. State of Odisha&Ors. (W.P.C.(OA) No. 73 of 2018. This Court in the case of Sushanta Chandra Sahoo in Para 9 of the Judgment has held as follows:- “9. On perusal of aforementioned provisions, it is made clear by Rule-7(2)(c), Explanation–(b) that judicial proceedings shall be deemed to be instituted from the date when in a criminal proceedings, on the complaint or report of a police officer the Magistrate takes cognizance. As per Rule-49(5)(a), where the sanction of payment of gratuity is delayed for more than a year from the date it is due under Sub-rules (1) or (2), as the case may be, and such delay is attributable to administrative lapses, interest at the rate of 7 per cent per annum for the period beyond one year shall be payable on the amount of gratuity. Similarly, Sub-rule (1) of Rule-66 provides that where departmental or judicial proceedings are pending in respect of government servant on the date of his retirement, he shall be paid a provisional pension, whereas in Sub-rule (2), which is supplement to Sub-rule (1) of Rule-66, provides that no gratuity shall be paid to the government servant until the conclusion of the departmental or judicial proceedings and issue of final order thereon. On cumulative reading of both the subrules, referred to above, it appears that the Page 4 of 9 // 5 // same will apply only when on the date of retirement of government employee, departmental or judicial proceedings are pending against him. But these rules will not apply where there are no departmental or judicial proceedings against government servant. But in the instant case, the petitioners have categorically stated that Vigilance P.S. Case No.7 dated 08.03.2007, by way of FIR, though was pending on the date of retirement of the opposite party no.1, i.e., 31.10.2012, but the judicial proceeding was started, pursuant to such Vigilance P.S. Case No.7 dated 08.03.2007, after the charge sheet was submitted on 22.07.2013, i.e., much after his retirement and, as such, no cognizance was taken by the time the opposite party no.1 had retired from service. Therefore, mere lodging of an FIR cannot be construed that a judicial proceeding is pending against opposite party no.1. As it appears, though for an incident of the year 2000, Bhubaneswar P.S. Case No.7 dated 08.03.2007, was lodged against the opposite party no.1, but charge-sheet in the said case was submitted on 22.07.2013. Thereby, by the date the opposite party no.1 retired from service, i.e., on 31.10.2012, it can safely be construed that neither departmental proceeding nor any judicial proceeding was pending before the authority for debarring opposite party no.1 from getting pensionary benefits as due and admissible to him.”
Decision
7. The writ petition is disposed of accordingly. Orissa High Court, Cuttack Dated the 2nd of July, 2024/Sneha (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 12-Jul-2024 18:17:29 Page 9 of 9