The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C ) No.36653 of 2023 Smt. Sabitri Sarangi …. Petitioner Mr. S.K. Ojha, Adv State of Odisha & Others …. -versus- Opp. Party Mr. S.K. Jee, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No. ORDER 15.04.2025 11. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the parties. 3. The present Writ Petition has been filed inter alia with the following prayer: Under the facts and circumstances stated above, it is most humbly and respectfully prayed that the Hon’ble Court may graciously be pleased to issue Rule NISI calling upon the Opp. Parties as to why the writ in the nature of Certiorari shall not be issued quashing Order dated 11.06.2020 (Annex.13) & rejection of V.R application dated 10.06.2020 (Annex.12) & Appellate Authority order dated 05.09.2023 (Annex.17) issued by Opp. Party Nos.4 & 2 and further writ in the nature of mandamus shall not be issued directing/holding that the Petitioner has voluntarily retired from service w.e.f 10.10.2018 and other actions such as initiation of D & A Proceeding and order of the Disciplinary Authority so also Appellate Authority are bad in law. And further directions shall not be issued directing release the consequential retiral benefits accrued in favour of the Petitioner after 10.10.2018 and pay the same with 9% interest. // 2 // If the Opp. Parties failed to show any cause to show insufficient cause, rule may be made absolute. further be pleased And order/orders as deemed fit and proper. to pass any other And for this act of kindness, the Petitioner shall as in duty bound ever pray. 4. Learned counsel appearing for the Petitioner contended that Petitioner entered into Government service where he joined on 04.04.1986 as reflected in Annexure-1. It is contended that while so continuing and with having 20 years of qualifying service, Petitioner made an application seeking voluntary retirement from his services in terms of the provisions contained under Rule 42 of the Odisha Civil Services (Pension) Rules, 1992(in short, the “Rules”) on 10.07.2018 under Annexure-3. 4.1. It is contended that as provided under the proviso to Rule 42 of the aforesaid Rules, if the appointing authority does not refuse to grant permission for retirement before the expiry of the period specified in the said notice, the retirement shall be effective from the date of expiry of the said period. 4.2. It is contended that as provided under Rule 42(1) of the Rules, a Government servant who has completed 20 years of qualifying service, by giving notice not less than three (3) months in writing, to the appointing authority for voluntary retirement from service. It is contended that since the VRS application submitted by the Petitioner on 10.07.2018 was never considered and rejected in terms of the proviso contained under Rule 42(1) of the said Rules, it is to be treated as deemed acceptance. Page 2 of 8 // 3 // 4.3. However, on the face of such clear provisions contained under Rule 42 of the aforesaid Rules, the authority concerned i.e. Opp. Party No.4 when initiated a Departmental Proceeding against the Petitioner vide memorandum dt.30.01.2019 under Annexure-4, Petitioner all through take a specific stand that the proceeding is not maintainable as in view of the provisions contained under the proviso to Rule 42 of the Rules, his VRS application is deemed to have been accepted on completion of the period of three (3) months from the date of service of the notice on 10.07.2018.
Legal Reasoning
4.4. It is contended that on the face of such specific stand taken by the Petitioner in his written statement of defence so filed under Annexure-6 as well as in his reply to the 1st and 2nd show-cause, the Disciplinary authority-Opp. Party No.4 without proper appreciation of such stand of the Petitioner passed the order of termination, terminating the Petitioner from his services vide Office order dt.11.06.2020 under Annexure-13. Vide another order issued a day before on dt.10.06.2020 under Annexure-12, the application submitted by the Petitioner on 10.07.2018 to take voluntary retirement was also rejected. 4.5. It is further contended that challenging such order of termination, Petitioner approached this Court by filing W.P.(C) No.16929 of 2020 and pursuant to the order passed in the said Writ Petition on 05.07.2023, Petitioner moved the appellate authority i.e. Opp. Party No.2 by filing an appeal under Annexure-15. However, the appellate authority-Opp. Party No.2 rejected the same vide his order Page 3 of 8 // 4 // dt.05.09.2023 under Annexure-17, by upholding the order of termination. 4.6. Learned counsel appearing for the Petitioner contended that since by the time Petitioner submitted the VRS application on 10.07.2018, no proceeding was pending against the Petitioner on the grounds indicated in the charge memo dt.30.01.2019. In view of the provisions contained under the said Rules, the application submitted by the Petitioner to take VRS on 10.07.2018 is to be treated as deemed acceptance by the Opp. Parties and Petitioner is to be treated as an employee having been allowed voluntary retirement w.e.f 10.10.2018. 4.7. But on the face of such clear provision contained in the said Rules, not only the proceeding was initiated vide memorandum dt.30.01.2019 with passing of order of punishment on 11.06.2020 under Annexure-13, but also the VRS application was rejected vide Office order dt.10.06.2020 under Annexure-12. The order of termination was also confirmed by the appellate authority vide order under Annexure-17. 4.8. It is contended that since the application submitted by the Petitioner to take VRS on 10.07.2018 was never rejected, in view of the provisions contained in the proviso to Rule 42, the said application is deemed to have been accepted w.e.f 10.10.2018. In view of such clear provisions contained under the said Rule, no proceeding was maintainable on the grounds indicated in the charge memo dt.30.01.2019 under Annexure-4 also. Page 4 of 8 // 5 // 4.9. It is also contended that in the proceeding the Petitioner though participated, but with the specific stand that the proceeding is not maintainable, as the Petitioner is already a retired employee having taken VRS on completion of the three (3) months notice period, which fell due on 10.10.2018. 4.10. Making all these submissions, learned counsel appearing for the Petitioner contended that the impugned order of termination passed on 11.06.2020 under Anenxure-13, rejection of the VRS application issued vide order dt.10.06.2020 under Annexure-12 and order of Opp. Party No.2 passed on 05.09.2023 under Annexure-17, are not sustainable in the eye of law. It is also contended that Petitioner be treated to have been allowed voluntary retirement w.e.f 10.10.2018 and Opp. Parties be directed to extend all service and financial benefits as due and admissible. 5. Learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opp. Party No.4. It is contended that since by the time Petitioner submitted the VRS application on 10.07.2018 under Annexure-2, he was on unauthorised leave w.e.f 05.02.2010, such an application to take VRS is not permissible. However, on receipt of the said application so submitted by the Petitioner under Annexure-3 on 10.07.2018, when it came to the knowledge of Opp. Party No.4 that Petitioner is in unauthorised absence w.e.f 05.02.2010, his VRS application was rejected vide order dt.10.06.2020 under Annexure-12. It is also contended Page 5 of 8 // 6 // that taking into account such unauthorised absence, which is more than 5 years, a proceeding was initiated against the Petitioner vide memorandum dt.30.01.2019 under Annexure-4. 5.1. It is contended that such a proceeding was initiated on the ground that Petitioner remained on unauthorised absent w.e.f 05.02.2010. It is also contended that in the said proceeding, Petitioner duly participated by filing his written statement of defence. By following the provisions contained under Rule 15 of the OCS (CC&A) Rule, 1962 as well as principle of natural justice, the proceeding was finalised with passing of the impugned order of termination dt.11.06.2020 under Annexure-13. 5.2. It is contended that the appellate authority-Opp. Party No.2 having been moved under Annexure-15, Opp. Party No.2 also rejected the appeal vide order dt.05.09.2023 under Annexre-17. It is contended that since by the time Petitioner made his application to take VRS on 10.07.2018 under Annexure-3, he was on unauthorised absent w.e.f 05.02.2010, such an application is not maintainable and accordingly the deeming provision so provided is also not applicable to his case. It is accordingly contended that Petitioner is not eligible to get the relief as prayed for. 6. Having heard learned counsel for the parties and considering the submissions made, this Court finds that Petitioner entered into service as an Asst. Teacher where he joined on 04.04.1986. As found, Petitioner while so continuing, made his application to take VRS before Opp. Page 6 of 8 // 7 // Party No.4 on 10.07.2018 under Annexure-3. In view of the provisions contained under Rule 42 of the Rules, such an application if was not entertainable, it should have been rejected prior to completion of the notice period. Since it is not disputed by the Opp. Parties that such an application was not submitted on 10.07.2018 and it was never rejected within the notice period, this Court placing reliance on the provisions contained under the Proviso to Rule 42 of the Rules, is of the view that, such an application is deemed to have been accepted on completion of the notice period i.e. on 10.10.2018. 6.1. It is also view of this Court that there is no such bar to make an application under Rule 42 of the Rules, if a person is on unauthorised absent for certain period with no proceeding pending against him. Since by the time such application submitted by the Petitioner under Anneuxre-3 to take VRS, no proceeding was pending against the Petitioner and no such order of rejection was passed within the statutory period of three (3) months, it is the view of this Court that the application submitted by the Petitioner under Annexure-3 is deemed to have been accepted w.e.f 10.10.2018. It is also the view of this Court that after completion of the three (3) months period, no such proceeding could have been initiated against the Petitioner with the charge as indicated in Annexure-4. 6.2. In view of the aforesaid analysis, this Court is inclined to quash order dt.10.06.2020 and 11.06.2020 so passed by Opp. Party No.4 under Annexures-12 & 13 and so also the order passed by Opp. Party No.2 on 05.09.2023 under Page 7 of 8 // 8 // Annexure-17. While quashing all those orders, this Court directs Opp. Parties to treat the Petitioner to have retired from his service on voluntary ground w.e.f.10.10.2018. By taking the date of voluntary retirement of the Petitioner as 10.10.2018, all his retiral dues as due and admissible be released. This Court directs Opp. Party No.4 to complete the entire exercise within a period of three (3) months from the date of receipt of this order. 6.3. However, before parting with the case, this Court is of the view that since for the latches of Opp. Party No.4, no proceeding was initiated even though Petitioner remained on unauthorised absent w.e.f. 05.02.2010 till he submitted the VRS application on 10.07.2018, it is open for Opp. Party Nos 1& 2 to take appropriate action against the B.E.Os, who failed to to take any action on the face of the fact that Petitioner remained on unauthorised absent w.e.f.05.02.2010 till he submitted the application for VRS on 10.07.2018.
Decision
Accordingly, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 17-Apr-2025 18:26:28 Page 8 of 8