In The Matter Of A Petition Under ... vs This Writ Petition Came By Way Of ...
2021 Latest Caselaw 8176 Ori

                            ORISSA HIGH COURT : C U T T A C K

                                  WPC(OA) NO.313 OF 2017

              In the matter of a Petition under Articles 226 & 227 of the Constitution
                                           of India
AFR
      Baikunthanath Pattanaik                               : Petitioner


                                          -Versus-

      State of Odisha & Others                             : Opp.Parties


      For Petitioner                      :      M/s. S.N.Patnaik,
                                                 U.K.Patnaik, C.S. Panda &
                                                 K.C.Panigrahi.

      For O.Ps.                           :      Mr.S.Mishra, Standing Counsel


                           CORAM :
                            JUSTICE BISWANATH RATH

                          Date of hearing & Judgment :: 05.08.2021


      1.     This Writ Petition came by way of Original Application through the

      State Administrative Tribunal in O.A. No.313 of 2017 but on abolition of the

      Tribunal, the matter being directed by this Court has been transferred to this

      Court and registered as WPC(OA) No.313 of 2017. Filing the Original

      Application, the Petitioner, Applicant therein, sought for the following relief :-


                  "i. To quash the order of recovery dated 27.9.2016 as at
              Annexure-3 and rejection of representation dated 20.1.2017 as at
              Annexure-5.


                                                                              Page 1 of 9
                                           // 2 //




              ii. To direct the respondents to release the final pension and
        pensionary benefits like gratuity, commuted value of pension etc.
        with effect from 1.8.2014 within a period to be stipulated by
        hon'ble Tribunal along with admissible interest @ 18% per
        annum on the delayed payment of such amount.

               iii. To grant the applicant all consequential services."

2.     Background

involving the case is that the Applicant, Petitioner herein

entered into service on 15.1.1975 completing his journey as a Service Holder.

On attaining the age of superannuation, the Petitioner appears to have been

superannuated in the afternoon of 31.7.2013. It appears, the Petitioner was only

sanctioned with provisional pension plus T.I. as admissible, which is

continuing as on date. The Petitioner while approaching the Authority for

releasing of his retiral dues including G.P.F. and Gratuity etc. and also

regularizing the final pension involving him, got surprise to receive a letter

dated 27.9.2016, vide Annexure-3 much after his superannuation thereby

asking the Petitioner to pay a sum of Rs.57,534/- pending recovery against the

Petitioner during his service period. Annexure-3 discloses the details of

recovery. Challenging such action of the Competent Authority and objecting to

Annexure-3, on 26.10.2016 the Petitioner submitted a protest disowning the

claim of recovery made against him, vide Annexure-4. Pleading further

disclosed that in consideration of the protest of the Petitioner, vide Annexure-4,

while rejecting the claim of the Petitioner in the rejection letter dated

28.1.2017, vide Annexure-5, the Department reiterated its claim, vide

Annexure-3. It is on the basis of work report and certificate involving the

// 3 //

recovery aspect, the Petitioner claimed, there has been satisfactory report and

certificate of completion not suggesting any recovery.

3. Sri S.N.Patnaik, learned counsel for the Petitioner in filing the Petition

in challenge to the order at Annexure-3 vis-à-vis Annexure-5 contended that

there is no dispute that the amount sought to be recovered belongs to the

recovery period, 2012 and the Petitioner attained his superannuation in July,

2013. It is contended that admittedly there was no proceeding or any dispute

involved in participation of the Petitioner on the recovery aspect, Sri Patnaik

further contended that the provision in the Orissa Civil Services (Pension)

Rules, 1992 (in short, "the 1992 Rules") presently applies to the case of the

Petitioner for his superannuation already taken place, there is even no

possibility of involving the issue in any Disciplinary Proceeding any further.

Taking this court to the provision at the 1992 Rules, particularly, referring to

the provision at Rule-7 therein, Sri Patnaik, learned counsel for the Petitioner

attempted to demonstrate his case of no question of getting into such recovery

and thus claimed that not only the order at Annexure-3 becomes bad for being

contrary to the provision of the 1992 Rules applies to the Parties concerned,

there also appears, there is mechanical disposal of the objection of the

Petitioner, vide Annexure-5 also remaining contrary to the provision contained

in the 1992 Rules.

4. In his opposition, Sri S.Mishra, learned Standing Counsel for the School

& Mass Education Department on reiteration of the plea of O.P.6 submitted

// 4 //

that undisputedly, the Petitioner was entrusted to execute two numbers of work

mainly major repair work for the financial year 2010-2011 with estimated cost

of Rs.2,83,000/- , vide work order dated 31.8.2012 and the Petitioner was asked

to complete the same within two months. Further the work order involved

construction of Class-VIII building involving financial year 2011-2012 with

estimated cost of Rs.4,10,000/-, vide work order dated 27.10.2011, which has

been asked to be completed within two months. It is stated that there has been

ascertainment that the Petitioner being the Headmaster of the School executed

the work involved even before issue of work order and signing the agreement.

Even there has been no consultation with the Technical Consultant and the

Headmaster executed the work at his own sweet will. It is also claimed by the

Department that after verification of the work by the concerned Technical

Consultant and Senior Technical Consultant, they have given the report for

recovery of Rs.57,532.34 from the Headmaster followed by the impugned

direction under Annexure-3. It is on the above premises, Sri Mishra, learned

Standing Counsel for the Department contended that the fact of recovery has

been ascertained upon due consultation with the Technical Consultant as well

as the Senior Technical Consultant, and therefore, the impugned order at

Anenxure-3 cannot be construed to be a defective one. Sri Mishra further

taking this Court to the provision at Rule-7 of the 1992 Rules also attempted to

justify the action of the Department. Further on the challenge to Annexure-5,

Sri Mishra contended that for there is a valid order of recovery, vide Annexure-

3 supported with the report of the Technical Consultant, there is also no

// 5 //

illegality in rejecting the objection of the Petitioner, vide Annexure-5. Sri

Mishra thus requested this Court for dismissal of the Writ Petition for having

no merit.

5. Considering the rival contentions of the Parties, this Court finds, the

undisputed fact remains, the Petitioner, who entered into service on 15.1.1975

and retired as Headmaster on attaining the age of superannuation on 31.7.2013.

Further the undisputed fact also remains to be both the work orders involved

the financial years 2010-2011 and 2011-2012. The impugned order appearing

at Annexure-3 appears to have been passed on the consultation report obtained

through the Technical Consultant and Senior Technical Consultant. From the

entire pleadings in the counter affidavit and the submissions, further reading

through Annexure-3 herein, this Court nowhere finds the involvement of the

Petitioner in the entire such activities and admittedly, involving an allegation

on recovery involving the work above in 2010 and 2012. In the event the

Department was undertaking the exercise to find the correct expenditure

involved therein and took the help of the Technical Consultant, such

proceeding should have been first of all undertaken in presence of the

Petitioner and more particularly in the involvement of the Petitioner. For the ex

parte nature of ascertainment of issue of recovery, this Court observes, such

action clearly remains illegal and cannot be enforced. Any outcome in the

process thus becomes invalid rendering both the impugned orders at Annexure-

3 as well as Anenxure-5 illegal.

// 6 //

6. Further looking to the date of the order under Annexure-3, this Court

finds, the ascertainment on the recovery aspect also has been communicated for

the first time to the Petitioner on 27.9.2016, i.e., almost after three years of

superannuation of the Petitioner and certainly after four years of the

construction taken place, inter alia, the assignment of the work to the

Headmaster concerned. We are in 2021 and for the Rules discussed herein

after, no Disciplinary Proceeding even permissible beyond four years of the

incident. It is at this stage, looking to the admitted fact that the Petitioner has

been superannuation since 31.7.2013 and till his superannuation no

Disciplinary Proceeding was even initiated, this Court here proceeds to find for

the Parties being covered under Rule-7 of the 1992 Rules, if there is any scope

of undertaking the Departmental exercise at this stage ? Before going to answer

this question, this Court likes to take care of the provision of Rule-7 of the

1992 Rules, which reads as under :-

"7. Right of Government to Withhold or Withdraw Pension- (1) The Government reserve to themselves the right of withholding a pension or gratuity, or both either in full or in part, or withdrawing a pension in full or in part. whether permanently or for specified period and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence in duty during the period of his service including service rendered on re-employment after retirement:

Provided that the Odisha Public Service Commission shall be consulted before any final orders are passed:

Provided further that when a part of pension is withheld / withdrawn, the amount of such pension shall not be reduced below the amount of minimum limit.

// 7 //

(2) (a) Such departmental proceedings referred to in sub-

rule (1), if instituted while the Government servant was in service, whether before his retirement or during his reemployment, shall, after the final retirement of the Government servant, be deemed to be a proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service:

Provided that when the departmental proceedings are instituted by an authority, subordinate to Government that authority shall submit a report recording its findings to the Government.

(b) such departmental proceedings as referred to in sub-rule (1) if not instituted while the Government servant was in service, whether before his retirement or during his reemployment-

(i) shall not be instituted save with the sanction of Government;

(ii) shall not be in respect of any event which took place more than four years before such institution ; and

(iii) shall be conducted by such authority and in such place as the Government may, direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service;

(c) No judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement of during his re-employment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution.

(d) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceeding are instituted or where departmental proceedings are continued under clauses (a) and (b), a provisional pension as provided in rule 66 shall be sanctioned.

(e) Where the Government decide not to withhold or withdraw pension but order recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate

// 8 //

exceeding one-third of the pension admissible on the date of retirement of a Government servant.

Explanation-For the purpose of this rule,-

(a) Departmental proceedings shall be deemed to be instituted on the date on which the statement of charges are issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from the date of his suspension; and

(b) judicial proceedings shall be deemed to be instituted,-

(i) in the case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made; and

(ii) in the case of civil proceedings, on the date of presentation of the plaint in the Court."

7. Entire reading of the aforesaid provision through Sub-Rules (1) & (2)

and the proviso contained therein, this Court finds, the maximum liberty with

an undertaking or the Establishment to go for a Disciplinary Proceeding is

possible at least involving an incident not later than four years of the incident

taken place that too after obtaining sanction of the Government. For the

admitted situation that the Petitioner has already been superannuated in the

meantime and the recovery related to the issues involving construction for the

financial years 2010-2011 and 2011-2012, for the restriction in Rule-7, this

Court finds, there is even no scope for initiating any Disciplinary Proceeding to

ascertain the recovery aspect presently. It is in the circumstance, this Court

finds obstruction in payment of Gratuity of the Petitioner as well as any other

retiral due of the Petitioner including the final pension involving a

superannuated employee remained undesirable. It is amounting to illegal

withholding of the entitlement of a retired employee.

// 9 //

8. For the finding herein above and the reasoning assigned, this Court

finds, the order at Annexure-3 is not sustainable. As a consequence of setting

aside the order at Annexure-3, the order of rejection at Annexure-5 also

remains unsustainable. In the result, while interfering with both the orders at

Annexures-3 & 5, this Court direct immediate release of the arrear of the

Petitioner on account of Gratuity and any other retiral dues by undertaking the

complete exercise within a period of one and half months of receipt of copy of

this judgment. For the observation of this Court that there has been illegal

withholding of the entitlement of a Service Holder even after his long

retirement, the Petitioner will also be entitled to interest on all such amount @

7% all through. Further for the blocking of the final pension of the Petitioner,

the final pension aspect be also worked out within one and half months from

the date of receipt of copy of this order. Again for withholding of the final

pension, the differential arrear on account of final pension will also be granted

to the Petitioner along with 9% interest all through.

9. The Writ Petition succeeds but however there is no order as to cost.

...............................

(Biswanath Rath, J.)

Orissa High Court, Cuttack.

The 5th August , 2021/MKR, A.R.-cum-Sr.Secy.