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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) No.860 of 2013 An application under Section 19 of the State Administrative Tribunal’s Act, 1985. ……………… Fakir Charan Behera …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner : M/s. S. Behera. For Opp. Parties : M/s. M.K.Balabantaray, Addl. Government Advocate PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- Date of Hearing:17.01.2023 and Date of Order: 31.01.2023 ----------------------------------------------------------------------------- Biraja Prasanna Satapathy, J.
Legal Reasoning
Mr. D.K. Panda, learned counsel appeared on behalf of the Petitioner by filing Vakalatnama in Court today. The same be accepted and reflected in the case record as well as
Decision
the in the front page of the writ petition. 1. The present Writ Petition has been filed challenging the order dated 14.03.2013 passed by the Opposite Party No.1 // 2 // under Annexure-2, wherein it was directed to withhold the pension and gratuity of the Petitioner in full permanently because of his conviction and sentence passed in a vigilance case. 2. Learned counsel for the Petitioner contended that the Petitioner was recruited as a Forest Ranger in the year 1972 and was subsequently promoted to the rank of Odisha Forest Service Class-I in the year 1984. The Petitioner while continuing as a D.F.O, he retired on 30.04.2000 on attaining the age of superannuation. But subsequent to his retirement, the Vigilance Case initiated against him in the year 1988 was tried before the competent court in T.R. Case No.31/2007 arising out of Cuttack Vigilance P.S. Case No.59 dated 06.01.1988. 2.1. It is contended that in the said vigilance proceeding when the Petitioner was convicted and sentenced to undergo imprisonment of R.I. for two years and to pay fine of Rs.10,000/- in default to undergo R.I for three months, the Petitioner challenged the same before this Court in Criminal Appeal No.108 of 2011. This Court while admitting the appeal vide order dated 23.02.2011, while was inclined to release the Petitioner on bail, but did not Page 2 of 9 // 3 // stay the order of conviction and sentence passed against the Petitioner. 2.2. After his conviction and sentence in the vigilance case, the Petitioner was issued with the notice on 07.02.2012 under Annexure-2 and the Petitioner was asked to give his reply against the proposed punishment wherein Government proposed to impose the punishment of withholding the pension and gratuity in full permanently in accordance with Rule-18 of the OCS (CCA) Rules, 1962 read with Rule- 7(i) of the OCS (Pension) Rules, 1992. The Government in the notice under Annexure-2, proposed to withhold the entire pension and gratuity in full permanently. On receipt of the notice under Annexure-2, the Petitioner though submitted a detailed reply under Annexure-3, but without considering the same, the impugned order was passed by the Government-Opposite Party No.1 on 14.03.2013 under Annexure-4 by passing the order to withhold the pension and gratuity of the petitioner in full permanently. Page 3 of 9 // 4 // 2.3. Learned counsel for the Petitioner vehemently contended that by the time the Petitioner retired from service on 30.04.2000, though the vigilance proceeding was pending against him, but after his retirement the Petitioner while was not sanctioned with his retirement benefits, but he was only allowed the benefit of provisional pension. But after passing of the impugned order under Annexure-4, the authorities stopped the payment of provisional pension. Learned counsel for the Petitioner further contended that even though under Rule-7(1) of OCS (Pension) Rules, the Government is competent to withhold the gratuity or pension or both either in full or in part, but as per Rule-66 of the said rules, it is obligatory on the part of the Government to pay at least the provisional pension during pendency of a judicial or departmental proceeding. 2.4. It is also contended that since the order of conviction and sentence passed against the Petitioner is under challenge before this Court in Criminal Appeal No.108 of 2011, which amounts to continuance of the judicial proceeding, stoppage of provisional pension is not sustainable in the eye of law. Accordingly, Mr. Panda, Page 4 of 9 // 5 // learned counsel for the Petitioner prayed for interference of this Court and while praying as such relied on an order passed by this Court on 03.11.2022 in W.P.(C) No.28968 of 2022. In a case of similar nature, this Court pending final decision in the appeal filed by the Petitioner therein directed the Government-Opposite Party No.1 to continue with the provisional pension. 3. Mr. M.K. Balabantaray, learned Addl. Government Advocate on the other hand made his submission basing on the materials available on record and the stand taken by Opposite Party No.2 in its counter. It is contended that by the time the Petitioner retired from his service on 30.04.2000, the Vigilance Proceeding in question was pending against him, having been initiated on 06.01.1988. After his retirement and because of the pendency of the vigilance proceeding, the Petitioner was only sanctioned with the provisional pension and all his retirement dues were kept withheld. Since the Petitioner while in receipt of the provisional pension, was convicted by the Vigilance Court vide judgment dated 04.02.2011, the Petitioner was issued with the show cause under Annexure-2, proposing Page 5 of 9 // 6 // therein to withhold the entire pension and gratuity in full in terms of the provisions contained under Rule-18 of the OCS (CCA) Rules, 1962 read with Rule-7(i) of the OCS (Pension) Rules, 1992. 3.1. It is also contended that even though the Petitioner challenging the order of conviction and sentence approached this Court in Criminal Appeal No.108 of 2011, but this Court while admitting the appeal never stayed the order of conviction and sentence passed against him. Therefore, after due consideration of the representation submitted by the Petitioner to the show cause under Annexure-3, the order impugned was passed under Annexure-4. Accordingly, it is contended that no illegality or irregularity has been committed by the Opposite Parties in withholding the pension and gratuity of the Petitioner in full relying on the aforesaid provisions as cited (supra). It is also contended that once the Petitioner is convicted in a judicial proceeding and since a decision has been taken by the Government-Opposite Party No.1 under Annexure-4 in withholding the pension and gratuity of the Petitioner in full, there is no occasion to release the provisional pension during pendency of the appeal. Accordingly, it is contended Page 6 of 9 // 7 // that the prayer made in the Writ Petition is not liable for interference by this Court, unless and until the Petitioner is acquitted from such order of conviction and sentence. 4. I have heard Mr. D. Panda, learned counsel for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Government Advocate for the State. On the consent of the learned counsel appearing for both the Parties, the matter was taken up for final disposal at the stage of admission and disposed of by the present order. 5. Having heard learned counsel for the Parties and after going through the materials available on record, there is no dispute with the fact that the Petitioner after his retirement was convicted to undergo RI for two years and to pay fine of Rs.10,000/- in default to undergo RI for three months by the competent vigilance court in T.R Case No.31/2007 arising out of Cuttack Vigilance P.S Case No.59 dated 06.01.1988 vide judgment dated 04.02.2011. Even though the Petitioner challenging such order of conviction and sentence approached this Court in Criminal Appeal No.108/2011, this Court while admitting the appeal on 23.02.2011 never stayed the order of conviction and Page 7 of 9 // 8 // sentence passed against him. This Court further finds that the order under Annexure-4 has been passed after giving due opportunity of hearing to the Petitioner and after obtaining due concurrence of the Orissa Public Service Commission. 5.1. Since the Petitioner is admittedly a convicted employee in the eye of law, unless and until he is acquitted from the said order of conviction and sentence, this Court finds no illegality or irregularity with the order passed on 14.03.2013 under Annexure-4. Since the Petitioner as has been held in the impugned order not eligible to get the benefit of pension and gratuity, the Prayer of the Petitioner to at least grant provisional pension pending disposal of the appeal is also not entertainable. Reliance placed on the order passed by this Court in W.P.(C) No.28968/2022, cannot be made applicable to the facts of the present case as the said order is not an order in rem, rather it is an order in personam. Therefore, this Court is not inclined to entertain the prayer as made in the Writ Petition and accordingly while dismissing the Writ Petition observes that the order passed under Annexure-4 shall be subject to final result of Criminal Appeal No.108/2011. The Petitioner is Page 8 of 9 // 9 // also at liberty to make appropriate application for early disposal of the Criminal Appeal No.108/2011, if he is so advised. 6. With the aforesaid observations and directions, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 31st of January, 2023/ (Subrat) Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Oct-2023 18:00:34 Page 9 of 9