The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) (OAS) No.45 of 2017 Prasanna Kumar Mishra …. Petitioner Mr. S.K. Purohit, Advocate State of Orissa & Others -versus- …. Opposite Parties Mr. S. Rath, ASC CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 09.04.2024 Order No. 11. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. S.K. Purohit, learned counsel for the Petitioner and Mr. S. Rath, learned Addl. Standing Counsel for the State. 3. Petitioner has filed the present Writ Petition inter alia with the following prayer:- “(a) Issue order / direction to set aside the G.P.O No.6195 of 01/2017 issued by C.A. (O) at Annexure-7. (b) Issue order / direction to set aside the instruction of the BEO, Dhankauda in Letter No.241 dt.17.02.2017 showing Rs.1,60,000/- paid as excess payment of G.P.O. at Annexure-9. (c) Pass any other order / direction as deemed just and proper in the circumstances of the case. (d) To allow the application with interest on the delayed payment of G.P.O and other retirement benefits”. // 2 // 5. Learned counsel for the Petitioner contended that Petitioner while continuing as In-Charge Headmaster Bishalkhinda Nodal U.P., he retired from his service on attaining the age of superannuation on 31.01.2012. After his retirement from service, Petitioner was sanctioned with the provisional pension vide order under Annexure-1. Thereafter when the Petitioner was not released with his pension and other pensionary benefits including gratuity, he approached the Tribunal in O.A. No.67(S) / 2012. 5.1. It is contended that during pendency of the matter before the Tribunal out of the total entitlement of the Petitioner towards gratuity, which was found at Rs.2,12, 183/- a sum of Rs.1,60,000/- was released in favour of the Petitioner. But the balance amount of Rs.52,189/- was not released. Considering the stand taken in the
Decision
aforesaid Original Application, the matter was disposed of by the Tribunal vide order dtd.22.08.2016 under Annexure-3 with the following order:- “Heard Mr. R.N.Acharya, learned counsel for the applicant and Mr. N.Satpathy. learned Standing Counsel, S & M.E. No counter has been filed, though notice was issued on 19.11.2012. Learned standing counsel, S & ME submitted that the the construction of applicant was entrusted with additional class room building of Bishalkhinda Nodal UPS through DPC, SSA, Sambalpur vide letter No.125 dtd. 3.2.2012 for an estimated cost of Rs.3.6 lakhs. He had withdrawn Rs. 2,70,000/- and had executed work at a cost of Rs. 1,52,105/- and liable to deposit Rs.1,17,895/-. As he has not deposited the amount, 75% of the gratuity Page 2 of 8 // 3 // amount has not been disbursed and final pension has also not been sanctioned. Learned counsel for the applicant on the other hand, submitted that the applicant is not liable to pay any amount other than government dues as per Rule-68 of the OCS (Pension) Rules, 1992. Considering the submission, it may be noted that the applicant retired from Government service with effect from impediment such as 31.1.2012 and pendency of any disciplinary proceeding or criminal case against him, so as to debar him from getting final pension. there was no in the case of Kerala Vrs. Hon'ble Supreme Court M.Padmanavan Nair, reported in AIR 1985 S.C. 356, observed that pension and gratuity are no longer matters of any bounty to be distributed by the Government but are valuable rights acquired and disbursement thereof should be viewed seriously and dealt with severely by imposing penalty in the form of interest. As there has been inordinate delay in settling the pension of the applicant and no government dues is outstanding against him, the O.A. is disposed of with a direction to respondent authorities to settle the final pension and other retiral dues in favour of the applicant and be disbursed to him as expeditiously as possible but within a period of two months from the date of receipt of a copy of this order. Statutory interest under Rule 49(5) be paid to him on the DCRG amount and interest on other amount as per prevailing Bank rate. The respondents are however, at liberty to recovery government dues if any as per provision u/s 68 of the OCS (Pension) Rules, 1992 and in respect of any other amount action be taken to realize the amount as per rule. With these orders, the O.A. is disposed of”. 5.2. It is contended that after disposal of the matter by the Tribunal vide order dtd.22.08.2016, Petitioner was not released with the pension and balance gratuity amount of Rs.52,183/-. Instead vide letter issued under Annexures-5 & 6, it was indicated that an amount of Rs.1,17,835/- has been withheld from the retirement gratuity of the Petitioner. Subsequently by withholding Page 3 of 8 // 4 // the aforesaid amount of Rs.1,17,835/- when an authority was issued for Rs.94,288/- as entitlement of the Petitioner towards his gratuity under Annexure-7, the present writ petition was filed inter alia challenging the authority issued under Annexure-7 with other consequential prayer. 5.3. Learned counsel for the Petitioner contended that during pendency of the present matter, basing on the letter issued by the District Treasury Officer, Samabalpur on 02.03.2017 under Annexure-10, Petitioner was compelled to deposit a sum of Rs.65,712/- i.e. the differential amount towards the outstanding dues after adjustment of the balance gratuity amount of Rs.52,183/-. Since the Petitioner because of non-deposit of the aforesaid demand was not released with his pension and other pensionary benefits in terms of the earlier order passed by the Tribunal, he under compelling circumstances deposited the same on 02.02.2018 vide Annexure-12. After such deposit of the amount in question, Petitioner was released with his pension and other pensionary benefits, but the balance gratuity amount of Rs.52,183/-and the recoverable amount of Rs.65,712/- was never released in favour of the Petitioner. 5.4. It is accordingly contended that since the demand of Rs.1,17,835/-, which is the subject matter of dispute for withholding the gratuity amount of the Petitioner was never determined by following due procedure of law and Page 4 of 8 // 5 // by following the order passed by the Tribunal in its order dtd.22.08.2016 in O.A 67(S)/2012, the said amount cannot be recovered and Petitioner is eligible and entitled to get back the balance gratuity amount of Rs.52,183/- and the amount recovered under compulsion amounting to Rs.65,712/- so deposited on 02.02.2018 vide Annexure-12 along with interest. 6. Mr. S. Rath, learned Addl. Standing Counsel for the State on the other hand made his submission basing on the stand taken in the counter affidavit filed by B.E.O., Dhanakuda and the note filed pursuant to the order passed by this Court on 20.02.2024. Placing reliance on the stand taken in the counter affidavit and the calculation sheet provided on 27.02.2024, Mr. Rath, learned Addl. Standing Counsel contended that since with regard to the amount released for construction of class room building of the School in question, Petitioner failed to provide the utilization certificate to the extent of Rs.1,17,835/- and the said amount when was not refunded by the Petitioner, pension and other pensionary benefits of the Petitioner as well as gratuity were not released. 6.1. However, pursuant to the interim order passed by the Tribunal in O.A. No.67(S) /2012 out of the entitlement of the Petitioner towards gratuity amounting to Rs.2,12,183/- a sum of Rs.1,60,000/- was released as an interim measure. But, since Petitioner was due to refund a sum of Rs.1,17,835/- and after payment of the Page 5 of 8 // 6 // gratuity amount of Rs.1,60,000/-, the Opposite Parties got an amount of Rs.52,183/-with them towards the balance gratuity amount, Petitioner was directed to deposit the balance amount of Rs.65,712/- vide Annexure-10. Petitioner when deposited the said amount on 02.02.2018 under Annexure-12, Petitioner was released with his pension and other pensionary benefits save and except the balance gratuity amount as claimed. 6.1. It is contended that since Petitioner out of his gratuity amount of Rs.2,12,183/- received Rs.1,60,000/- and the Opposite Parties have with them a sum of Rs.52, 183/-, after recovery of Rs.65,712/- vide Annexure-12 the outstanding amount of Rs.1,17,835/- was duly recovered. Therefore, Petitioner has no more grievance against the Opposite Parties towards payment of his retirement gratuity. It is accordingly contended that the prayer as made in the writ petition is mis-conceived as the Petitioner has no further amount to receive towards gratuity. 7. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that Petitioner while continuing as an In-Charge Headmaster in Bishalkhinda Nodal U.P, School, he retired from his service on attainting the age of superannuation on 31.01.2012. After his retirement when the pension and other pensionary benefits of the Petitioner were not released, he approached the Tribunal in O.A No.67(S)/2012. Pursuant to the interim order Page 6 of 8 // 7 // passed by the Tribunal, out of the total entitlement of the Petitioner towards gratuity amounting to Rs.2,12,183/- sum of Rs.1,60,000/- was released in his favour leaving aside of sum of Rs.52,183/-. The Tribunal considering the stand taken in the matter, disposed of the O.A vide order dtd.22.08.2016 inter alia directing the Opposite Parties to release the pension and other pensionary benefits along with interest as provided under Rule-49 (5) of OCS (Pension) Rules, 1992. The Tribunal further observed that if the Opposite Parties have any amount to recover from the Petitioner, steps can be taken as provided under Rule-68 of OCS(Pension) Rules, 1992. 7.1. It is contended that after disposal of the matter by the Tribunal vide order dtd.22.08.2016, Opposite Parties instead of releasing the pension and other pensionary benefits issued a letter on 02.03.2017 under Annexure-10 directing the Petitioner to pay the balance recoverable amount of Rs.65,712/- after adjustment of the balance gratuity amount of Rs.52,183/-. As found from the record, Petitioner deposited the said amount on 02.02.2018 under Annexure-12, as because of such non- payment of the amount, Petitioner was not released with his pension and other pensionary benefits as due and admissible. 7.2. This Court after going through the materials available on record does not find any document filed by the State-Opposite Parties showing determination of the liability of the Petitioner to the extent of Rs.1,17,835/-. Page 7 of 8 // 8 // Even after disposal of the matter by the Tribunal on 22.08.2016, no step has been taken by the Opposite Parties to determine the amount as due by the Petitioner, taking recourse to the provisions contained under Rule- 68 of the OCS (Pension) Rules, 1992. Since the amount in question has not been determined by following due procedure of law and/or by initiating any proceeding whatsoever, as per the considered view of this Court, no such amount can be recovered from the retirement gratuity of the Petitioner. 7.3. Therefore, this Court while disposing the Writ Petition directs Opposite Party Nos.1 and 3 to take effective step for release of the balance gratuity amount of Rs.52,183/- and the recoverable amount of Rs.65,712/- in favour of the Petitioner along with interest @ 7 % per annuam as provided under Rule-49(5) of the OCS (Pension) Rules, 1992 within a period of two (2) months from the date of receipt of this order. 8. Accordingly, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 15-Apr-2024 17:31:48 Page 8 of 8