Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No. 36643 of 2021 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 Petitioner. *** Shri Bimal Chandra Mishra Aged about 63 years Son of Late Girish Chandra Mishra At/P.O.: Sargaj, P.S.: Tarbha District: Subarnapur Presently at Dunguripada P.O.: Rajendra College Balangir – 767 002 … -VERSUS- 1. State of Odisha Represented through Additional Chief Secretary to Government of Odisha Forest, Environment and Climate Change Department Kharavela Bhawan Bhubaneswar – 751 001. 2. 3. Principal Chief Conservator of Forest and Head of Forest Force, Odisha Aranya Bhawan Bhubaneswar – 751 027. The Special Secretary to Government of Odisha General Administration Department W.P.(C) No.36643 of 2021 Page 1 of 19 At/P.O.: Secretariat Bhubaneswar – 751 001. … Opposite Parties. Counsel appeared for the parties: For the Petitioners : M/s. Swapna Kumar Ojha and Sushant Ku. Nayak, Advocates For the Opposite parties : Mr. Arnav Behera Additional Standing Counsel P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 06.09.2024 :: Date of Order : 19.09.2024
Decision
ORDER This writ petition has been filed under Articles 226 and 227 of the Constitution of India seeking for a writ of mandamus to the opposite parties with the following prayer(s): “Under the circumstances, the petitioner most humbly and respectfully prays that the Hon‟ble Court may graciously be pleased to issue rule NISI calling upon the 0pp.Parties to who cause as to why appropriate writ shall not be issued directing the opposite parties to release the pensionary benefits in favour of the petitioner forthwith along with the interest @ 12% per annum from the date it became due and till the actual payment is made taking into account the facts and circumstances indicated above. W.P.(C) No.36643 of 2021 Page 2 of 19 If the opposite parties failed to show cause or show insufficient cause, the rule may be made absolute. And further be pleased to pass any other order/orders as deemed fit and proper, for the ends of justice; And for this act of kindness, the Petitioner shall as in duty bound ever pray.” 2. Facts as pleaded by the writ petitioner reveal that the petitioner, while working as Special Secretary to the Government of Odisha, Forest Department vide Notification dated 31.07.2018, has had retired from Government service on 31.10.2018 on attaining the age of superannuation, on which date it is asserted by the petitioner that no proceeding either departmental or criminal was pending against him. Therefore, the petitioner claims that he is entitled to get pension and other retirement benefits. 2.1. There being no pending departmental proceeding or judicial proceeding as contemplated under Rule 7, the ―Pension Sanctioning Authority‖ defined under Rule 2(q) of the OCS (Pension) Rules had no impediment for disbursement of pension and other retirement benefits. Therefore, the competent Authority had no authority to direct withholding of the said benefits. 2.2. It is submitted by Sri Swapna Kumar Ojha, learned counsel for the petitioner that while dealing with issue W.P.(C) No.36643 of 2021 Page 3 of 19 as to whether the right to pension is a fundamental right of an employee or not, the Hon‘ble Supreme Court in the case of Deokinandan Prasad Vrs. State of Bihar, AIR 1971 SC 1409 has held that the pension is not a bounty rather it is the property of an employee for which he is entitled to enjoy the same as has been guaranteed under Articles 19(1) and 31(1) of the Constitution of India. However right to property guaranteed under the fundamental rights has been deleted by way of 44th amendment of the Constitution of India and that became the legal right of a person guaranteed under Article 300- A of the Constitution of India. 2.3. Amplifying further he submitted that in State of Jharkhand Vrs. Jitendra Kumar Srivastava, (2013) 8 SCR 177 it has been laid down as follows: “8. It is thus hard earned benefit which accrues to an employee and is in the nature of „property‟. This right to property cannot be taken away without the due process of law as per the provisions of Article 300A of the Constitution of India. *** 12. Right to receive pension was recognized as right to property by the Constitution Bench Judgment of this Court in Deokinandan Prasad Vrs. State of Bihar; (1971) 2 SCC 330, as is apparent from the following discussion: W.P.(C) No.36643 of 2021 Page 4 of 19 „29. The last question to be considered, is, whether the right to receive pension by a Government servant is property, so as to attract Articles 19(1)(f) and 31(1) of the Constitution. This question falls to be decided in order to consider whether the writ petition is maintainable under Article 32. To this aspect, we have already adverted to earlier and we now proceed to consider the same. 30. According to the petitioner the right to receive pension is property and the respondents by an executive order dated June 12, 1968 have wrongfully withheld his pension. That order affects his fundamental rights under Articles 19(1)(f) and 31(1) of the Constitution. The respondents, as we have already indicated, do not dispute the right of the petitioner to get pension, but for the order passed on August 5, 1966. There is only a bald averment in the counter-affidavit that no question of any fundamental right arises for consideration. Mr. Jha, learned counsel for the respondents, was not prepared to take up the position that the right to receive pension cannot be considered to be property under any circumstances. According to him, in this case, no order has been passed by the State granting pension. We understood the learned counsel to urge that if the State had passed an order granting pension and later on resiles from that order, the latter order may be considered to affect the petitioner’s right regarding property so as to W.P.(C) No.36643 of 2021 Page 5 of 19 attract Articles 19(1)(f) and 31(1) of Constitution. the 31. We are not inclined to accept the contention of the learned counsel for the respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules. The Rules, we have already pointed out, clearly recognise the right of persons like the petitioner to receive pension under the circumstances mentioned therein. 32. The question whether the pension granted to a public servant is property attracting Article 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh Vrs. Union of India, A.I.R. 1962 Pun 503. It was held that such a right constitutes „property‟ and any interference will be a breach of Article 31(1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in Letters Patent Appeal W.P.(C) No.36643 of 2021 Page 6 of 19 by the Union of India. The Letters Patent Bench in its decision in Union of India Vrs. Bhagwant Singh I.L.R. 1965 Pun 1 approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is „property‟ within the meaning of Article 31(1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as „property‟ cannot possibly undergo such mutation at the whim of a particular person or authority. 33. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry Vrs. The State of Punjab, I.L.R. 1967 P&H 278. The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a Government servant It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for imposition of showing cause against penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a the W.P.(C) No.36643 of 2021 Page 7 of 19 cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand, to consider the question whether before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted or by withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision, on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the the sweet will and pleasure of Government and that, on the other hand, the the authorities before reducing W.P.(C) No.36643 of 2021 Page 8 of 19 right to pension is a valuable right vesting in a c government servant. 34. This Court in State of Madhya Pradesh Vrs. Ranojirao Shinde and Anr., (1968) 3 SCR 489 had to consider the question whether a „cash grant‟ is „property‟ within the meaning of that expression in Articles 19(1)(f) and 31(1) of the Constitution. This Court held that it was property, observing „it is obvious that a right to sum of money is property‟. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by Sub-article (5) of Article 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner the under Articles 19(1)(f) and 31(1) of Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of to issued Mandamus being properly consider the claim of the petitioner for payment of pension according to law”. the State to 13. In State of West Bengal Vrs. Haresh C. Banerjee and Ors. (2006) 7 SCC 651, this Court recognized that W.P.(C) No.36643 of 2021 Page 9 of 19 even when, after the repeal of Article 19(1)(f) and Article 31(1) of the Constitution vide Constitution (Forty-Fourth Amendment) Act, 1978 w.e.f. 20th June, 1979, the right to property was no longer it was still a remained a fundamental right, Constitutional right, C as provided in Article 300A of the Constitution. Right to receive pension was treated as right to property. Otherwise, challenge in that case was to the vires of Rule 10(1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under certain circumstances and the said challenge was repelled by this Court. Fact remains that there is an imprimatur to the legal is principle recognized as a right in „property‟. to receive pension the right that 14. Article 300A of the Constitution of India reads as under: „300A. Persons not to be deprived of property save by authority of law.— No person shall be deprived of his property save by authority of law.‟ Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300A of the Constitution. It follows that attempt of the appellant to take away a part of leave encashment pension or gratuity or even W.P.(C) No.36643 of 2021 Page 10 of 19 without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.” 2.4. With this backdrop of legal position, Sri Swapna Kumar Ojha, learned Advocate advanced argument by stating that the pension being the property of an employee is his legal and statutory right to which the petitioner cannot be deprived of by an executive feat. 2.5. In the case of Hiralal Vrs. State of Bihar, AIR 2020 SC 1027 the Hon‘ble Supreme Court has held that unless a person is debarred under the statutory rules to get his pension, he cannot be denied the same on the basis of executive instructions. Further, it is also held that pension is a property within the meaning of Article 300A of the Constitution of India and the executive instructions cannot take away the effect thereof. 2.6. It is, therefore, submitted that the vigilance case being T.R. No.24 of 1994 with the charges under Section 7 and Section 13(2) read with Section 13(1)(c) of the Prevention of Corruption Act, 1988 and Sections 467, 471/34 of the Indian Penal Code (IPC) was instituted against the petitioner alleging supervisory lapses. 2.7. Vide Judgment dated 01.05.2004, learned Special Judge (Vigilance), Sambalpur has held as follows: W.P.(C) No.36643 of 2021 Page 11 of 19 “*** 9. Thus I find that prosecution has not proved conclusively that 10,000 pits had not been dug. The disputed vouchers have not been exhibited in the Court. The prosecution has failed to prove that those signatures are false and payment not made under those vouchers. Again prosecution has not proved as to which of the accused actually prepared the vouchers. On the other hand P.W. 11 admits that there was a Village Forest Committee of that village of which Dasratha Padhan was the Chairman. This Dasarathi has been examined as D.w.1. He states that the Village Committee was supervising the work and keeping watch over the number of persons engaged in the plantation work and payment was being made in their presence. So, I find that prosecution has totally failed to prove its case. 10. In the result, I hold the accused not guilty of the charges levelled against them and acquit them therefrom.” 2.8. Thereafter, the petitioner was given promotion to the rank of Assistant Conservator of Forests. It is asserted by the learned counsel for the petitioner that on the date of retirement of the petitioner, i.e., 31.10.2018, there was no proceeding pending. Therefore, the action of the opposite parties in withholding the pension and other retirement benefits invoking Rule 7 read with Rule 66 of the OCS (Pension) Rules, 1992 is illegal, whimsical and irrational. W.P.(C) No.36643 of 2021 Page 12 of 19 3. Sri Arnav Behera, learned Additional Standing Counsel appearing for the opposite parties submitted that against the said judgment dated 01.05.2004 delivered in T.R. Case No.24 of 1994 by the Special Judge (Vigilance), Sambalpur, the Government has approached this Court with a leave to appeal, which was registered as CRLLP No.98 of 2004. Thus, it is incorrect statement of the learned counsel for the petitioner to contend that the criminal proceeding was not pending in terms of explanation appended to Rule 7. 3.1. At this stage, learned counsel for the petitioner vehemently contested such submission of learned Additional Standing Counsel by strenuously arguing that mere filing of leave petition, being CRLLP No.98 of 2004, does not tantamount to pendency of appeal. Referring to Annexure-3, which is an order dated 17.12.2018 of this Court passed in the aforesaid CRLLP No.98 of 2004, he submitted that the leave was granted much after the date of retirement. 3.2. Sri Swapna Kumar Ojha, learned Advocate valiantly objecting to the contention of the learned Additional Standing Counsel would submit that after the acquittal from the criminal charges by the trial court, even if the appeal is pending against such acquittal, the same cannot be treated as pending proceeding. It can be taken W.P.(C) No.36643 of 2021 Page 13 of 19 note of from the decisions in the cases of Chula Ram Heerani Vrs. State of Rajasthan, S.B. Civil Writ Petition No.3509 of 2014, vide order dated 06.01.2017; Balak Singh Thakur Vrs. State of Madhya Pradesh, 2014 SCC OnLine MP 1036; Gayaram Singh Rathore Vrs. State of Madhya Pradesh, 2018 SCC ONLine MP 974; B.V. Koteswar Rao Vrs. State of Andhra Pradesh, Writ Petition No.15812 of 2017, disposed of on 14.03.2018; Rajeev Sharma Vrs. State of U.P., Writ Petition No.66930 of 2013, vide order dated 08.08.2014, wherein it has been held that judicial proceeding stands concluded when the person gets discharged by the trial court. Merely, because any appeal or revision is pending against that order, same cannot be treated as continuation of proceeding. Therefore, it is submitted that the person cannot be denied the pensionary benefits on account of mere pendency of leave to appeal before this Court against the acquittal was pending at the time of his retirement, i.e. on 31.10.2018. This Court in the case of State of Odisha Vrs. Srikanta Pattnaik, 2016 (Supp.-I) OLR 1100 has held that in absence of any departmental or judicial proceeding pending on the date of retirement, the authority has no right to withhold the pensionary benefits. W.P.(C) No.36643 of 2021 Page 14 of 19 4. It is not in dispute that pension and gratuity are not bounties. An employee earns these benefits by dint of his long, continuous, faithful and unblemished service. In case of a civil servant whose service conditions are governed by statutory rules; pension, a deferred salary, is a right and the payment of pension/gratuity does not dependent upon the discretion of the Government. Government servant coming within the Rules is entitled to claim pension. The right to receive pension flows not by any order to that effect but the right to receive pension flows by virtue of the Rules governing pension and gratuity. The Supreme Court in D.S. Nakara Vrs. Union of India, (1983) 2 SCR 165 observed as follows: “The antiquated notion of pension being a bounty a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad Vrs. State of Bihar, AIR 1971 SC 1409 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but the rules and a is governed by Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any one’s discretion. It is only for the purpose of quantifying the amount having regard to service and other allied maters that it may be necessary for the authority to pass an order to that effect W.P.(C) No.36643 of 2021 Page 15 of 19 but the right to receive pension flows to the officer not because of any such order but by virtue of the rules.” 4.1. Thus the hard earned benefit accrues to an employee is in the nature of ‗property‘, which cannot be taken away without due process of law as per provisions enshrined in Article 300A of the Constitution of India. The State Government cannot withhold even a part of pension or gratuity if there is no provision for withholding pension or gratuity in the given situation. For withholding of pension or gratuity there must be an express provision in the Rules failing which the State Government is not competent to withhold pension or gratuity on the strength of executive instructions not having the force of law. 4.2. With the aforesaid precept of ―pension‖ in mind, this Court on scrutiny of material on record finds that vide order dated 17.01.2018 passed the following order: “Heard learned counsel for the Vigilance Department and learned counsel for the opposite parties. On perusal of the judgment, prosecution has a case to challenge the said judgment and as such, the leave as sought for is granted. it appears that the Registry is directed to register this application as GCRLA and list the same on 07.01.2019.” W.P.(C) No.36643 of 2021 Page 16 of 19 4.3. Perusal of aforesaid order, it transpires that though the Government had approached this Court challenging the judgment of the trial Court in 2004, the same was not attended to till 2018. Said order passed directing to Register the case as GCRLA is much after the date of retirement of the petitioner. Therefore, this Court does not find force in the submission of learned Additional Standing Counsel. 4.4. This Court vide Judgment passed today (19.09.2024) in the case of Laxmidhar Das Vrs. State of Odisha, W.P.(C) No.28733 of 2021 having taken note of interpretation put forth in the context of sub-clause (i) of Clause (b) of Explanation appended to Rule 7 of the OCS (Pension) Rules when the cognizance in criminal case has been taken after retirement of the Government servant in Brajasundar Patnaik Vrs. Government of Odisha, 2007 SCC OnLine Ori 272 = 105 (2008) CLT 490 = 2008 (I) OLR 384; State of Odisha Vrs. Sri Srikanta Pattnaik, 2016 (Supp.-I) OLR 1100 and State of Odisha Vrs. Sushanta Chandra Sahoo, 2022 (Supp.) OLR 447 and also Clarification issued by the Government of Odisha in Home Department vide Letter No. 30339—Home-PEN- SANCP-0002-2024/Pen, Dated 22.08.2024, came to hold that in the event cognizance in criminal case has not been taken on the date of retirement, it could not be W.P.(C) No.36643 of 2021 Page 17 of 19 stated that criminal proceeding has been instituted so that the opposite parties could invoke provisions of Rule 7 read with Rule 66 of the OCS (Pension) Rules. 4.5. In the present case, on the date of retirement the criminal trial did culminate in acquittal and, ergo, there is no cognizance in the eye of law. There is no ground for the learned Additional Standing Counsel to contend that post-retirement when this Court has accepted leave to appeal in criminal case, the corollary would be that the order of cognizance was available on the date of retirement, i.e., on 31.10.2018. 5. Learned counsel for the petitioner in course of hearing submitted that this matter is identical in nature with respect to interpretation of Rule 7 read with Rule 66 of the OCS (Pension) Rules, 1992 involved in Laxmidhar Das Vrs. State of Odisha, W.P.(C) No.28733 of 2021 (supra) so far as ―deemed‖ institution of criminal case as on the date of retirement is concerned. However, it is conceded by counsel for both the sides that in the instant case no disciplinary proceeding is pending. 6. This Court finds force in the submission of learned counsel for the petitioner that on the date of retirement, i.e., 31.10.2018, no criminal proceeding is stated to be instituted in terms of Clause (b) of explanation to Rule 7 W.P.(C) No.36643 of 2021 Page 18 of 19 of the OCS (Pension) Rules. Rule 66(1) of said Rules only directs about payment of pensionary benefit where departmental proceeding or judicial proceeding are pending. In view of the aforesaid discussions on the date of retirement of the petitioner neither there was any judicial proceeding nor did any departmental proceeding pending. Therefore, the pension and other retirement benefits cannot be withheld invoking Rule 7 read with Rule 66 of the said Rules. In view of such conceded position, this writ petition stands disposed of. (MURAHARI SRI RAMAN) JUDGE High Court of Orissa, Cuttack The 19th September, 2024// Laxmikant/Suchitra Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Sep-2024 17:30:35 W.P.(C) No.36643 of 2021 Page 19 of 19