The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.33231 of 2022 Chintamani Behera Petitioner Mr.Bibhuti Keshari Biswal,Advocate …. -versus- State of Odisha and another …. Opposite Parties Mr.Iswar Mohanty, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 20.03.2023 02. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as the learned Additional Standing Counsel for the State. Perused the Writ Petition as well as the documents annexed thereto. 3. The present Writ Petition has been filed with the following prayer: “Therefore, the Petitioner, most respectfully prays that this Hon’ble Court may be graciously pleased enough to admit this Writ Petition, issue notice to the Opposite Parties and after hearing from both sides, direct the Opp.Party No.1 to make payment of cash equivalent of Unlimited Leave Salary to the Petitioner with interest within a stipulated time. And further this Hon’ble Court be pleased to pass any such order(s)/writs as this Hon’ble Court deems fit and proper in the interest of justice.” It is submitted by the learned counsel for the Petitioner that the 4. Petitioner was working as Fishery Extension Officer, but subsequently // 2 // posted as Assistant Fishery Officer and while working as such, the Petitioner has retired from service with effect from 31.05.2020 on attaining the age of superannuation. It is further submitted by the learned counsel for the Petitioner that while the Petitioner was working as Additional Fishery Officer, a Disciplinary Proceeding was drawn up against the Petitioner vide Memorandum No.11340/FARD dated 21.09.2017 under Rule 15 of Orissa Civil Services (Classification, Control & Appeal) Rule 1962. He further contended that the said proceeding could not be completed within the service period of the Petitioner. Accordingly the said proceeding was converted to Rule 7(2) of O.C.S.(Pension) Rule, 1992. Learned counsel for the Petitioner further contended that a final order dated 30.06.2020 has been passed in the Disciplinary Proceeding imposing the punishment of withholding 10% of pension for two years and the period of suspension be treated as such. Further, it is submitted that a criminal case is also pending against the Petitioner where the trial is going on. Although the Disciplinary Proceeding has been completed and the criminal proceeding is pending against the Petitioner, the Petitioner has not been paid his retiral dues as well as other consequential service benefit despite the Petitioner has retired from service. Earlier the Petitioner filed W.P.(C) No.39443 of 2021 which was disposed of vide order dated 03.03.2022 directing the Opposite Parties to dispose of the representation of the Petitioner within three months. Accordingly, the Opposite Party No.1 has considered the representation of the Petitioner and rejected his claim vide order dated 21.06.2022. On perusal of the rejection order, it appears that the Opposite Party No.2 relying upon Rule 66(2) of OCS (Pension) Rule 1992 has refused to release the gratuity benefit. However, the payment of unutilsied leave salary has not been taken into consideration. Learned counsel for the Petitioner at this juncture submitted that the Petitioner requires money for marriage // 3 // of his daughter and accordingly he submitted a representation to encash 300 days of leave available to the credit of the Petitioner, however, no action has been taken till date. 5. Learned Additional Standing Counsel for the State on the other hand submitted that in Rule-66(2) of OCS (Pension) Rule 1992 there is a bar for grant of pensionary as well as service benefit to an employee who is facing a Disciplinary Proceeding as well as a judicial proceeding. In such view of the matter, the Opposite Party No.1 has rightly rejected the claim of the Petitioner for payment of gratuity. However, learned counsel for the Petitioner does not dispute the fact that the encashment of unutilised leave salary has not been considered by the Opposite Parties. 6. After considering the submissions made by the learned counsel for the Petitioner, this Court examined the Rule 66(2) of OCS (Pension) Rule 1992. It appears that there is no bar in releasing the unutilsied leave salary in the said Rule. Moreover, the Petitioner has also referred to Office Memorandum issued by the Finance Department dated 26.03.2015 under Annexure-8 The said Office Memorandum reveals as follows: i) If there is departmental/judicial proceeding pending against the Government Servant as on the date of retirement which in he opinion of the leave sanctioning authority will culminate a recovery to be effected, such amount may be withheld from the leave salary. Further, drawing the attention to Annexure-9, the Enquiry Report submitted by the Enquiry Officer, learned counsel for the Petitioner referring to the findings submitted that the Enquiry Officer has categorically written in the finding that no amount is to be recovered from the Petitioner. Further, it is seen that the charges framed against the Petitioner has not been established. Therefore, the punishment of // 4 // reduction of 10% of pension of pensionary benefit with suspension period to be treated as such has been recommended and the same has been accepted by the OPSC. In view of such finding of the Enquiry Officer, this Court is of the view that no amount is to be recovered from the Petitioner as has been stated in the Memorandum under Annexure-8. 7. Having heard learned counsel for the parties and upon consideration of their contentions as well as the background facts of the present case, this Court deems it proper to dispose of the Writ Petition by directing the Opposite Party No.1 to consider the representation of the Petitioner under Annexure-7 dated 07.10.2022, which is stated to be pending before Opposite Party No.1 for consideration. Further, it is directed that the Opposite Party No.1 shall do well to consider the factual analysis made herein above and the fact that no amount is recoverable from the Petitioner and the Office Memorandum of the Finance Department under Annexure-8 while considering the case of the Petitioner. In the event, it is found that no amount is recoverable from the Petitioner then the unuitlised leave as is admissible to the Petitioner shall be sanctioned and released in his favour within a period of six weeks from the date of taking such decision. The Opposite Party No.1 is further directed to act on production of certified copy of this order. 8. With the aforesaid observation and direction, the Writ Petition stands disposed of. 9. Issue urgent certified copy of this order as per Rules. RKS ( A.K. Mohapatra ) Judge