Indramani Pradhan vs Writ Petition Seeks A Direction ...
2021 Latest Caselaw 9012 Ori

                  ORISSA HIGH COURT : C U T T A C K

                             WP(C) NO.988 OF 2014

      In the matter of an application under Article 226 of the Constitution of India.
AFR

      Indramani Pradhan                                         : Petitioner

                                            -Versus-

      State of Orissa & Others                                 :   Opp.Parties


      For Petitioner                        :       M/s.D.Mohapatra, M.R.Pradhan,
                                                    J.M.Barik & P.K.Singhdeo

      For O.Ps.1 to 3                       :       Mr.R.N.Mishra, AGA

      For O.P.4                             :       Ms.Deepali Mohapatra


                             CORAM :
                              JUSTICE BISWANATH RATH

                            Date of hearing & Judgment :: 27.08.2021


      1.     Writ Petition seeks a direction from this Court directing the

      Opposite Parties to disburse the provisional pension amounting to

      Rs.1,49,733/- accrued till 31.3.2013, one month salary for the month of

      March, 2012 amounting to Rs.40,277/- and arrear D.A. amounting to

      Rs.63,507/- to the Petitioner within a stipulated period.

             A further prayer is also made declaring the action/inaction of the

      Opposite Parties as bad by not paying the provisional pension and other

      arrear dues of the Petitioner in time and further a direction to Opposite
                                                                                 Page 1 of 16
                                        // 2 //




Party No.2 to take appropriate action in the matter of delay caused to pay

the said amount to the Petitioner against the erring persons.

      There is also a prayer directing Opposite Party No.4 to submit final

pension papers to the Higher Authorities for getting the final regular

pension and also for passing an order with cost and any other order as

possible.

2.    It is made clear at the threshold of the matter that during pendency

of the Writ Petition, there has already been disbursement of provisional

pension amounting to Rs.1,49,733/- not only that the Petitioner is also in

receipt of provisional pension as on date. Therefore, this Court confines

its decision to other aspects recorded herein above.

3.    Background

involving the case is that the Petitioner after passing

M.A. in History in the year 1976 joined as a Lecturer in History against

the 1st Post in the Maharishi College of Natural Law, Santarabandh in the

district of Angul, a +2 Junior College on 1.7.1987 being approved by the

Governing Body, vide its Resolution No.3 dated 16.12.1987. It is stated

that the College involved was recognized and affiliated in the year 1989.

It was also in receipt of Granit-in-Aid. Thus it is claimed, the Institution

where the Petitioner served is an Aided Educational Institution. It is

pleaded that while the Petitioner thus continuing, his service was

approved by the Director, Higher Education on 22.3.1996, vide

// 3 //

Annexure-1. Since the Petitioner was the Senior Most Teaching Staff of

the College, the Deputy Director, vide his Office Order No.59547 dated

31.12.1996 approved the appointment of the Petitioner, as Principal-in-

charge-cum-Secretary of the College with effect from 10.11.1996, vide

Annexure-2. It is further pleaded that while the Petitioner was working as

Principal-in-charge till 31.3.2013, after his final retirement from the

Institution on 30.4.2013, as he was allowed to continue for another month

beyond his superannuation and the Petitioner applied for provisional

pension to the Director, Higher Education, O.P.2, who vide his letter

dated 25.7.2012 accorded sanction for payment of provisional pension.

The Petitioner though pleaded on no disbursement of the provisional

pension, for the observations herein above, this Court is not required to

enter into such aspect. Through Paragraphs-10 & 11 of the Brief, the

Petitioner has disclosed his entitlements. Through Paragraph-12 the

Petitioner has pleaded that pending non-consideration of his case for the

issue involved therein he was constrained to submit a representation on

18.10.2013, vide Annexure-9. It is stated in the above background, the

Petitioner filed the present Writ Petition seeking the relief indicated

herein above.

4. Filing counter affidavit, the Principal-in-charge, Maharisi College

of Natural Law, O.P.4, while opposing the claim of the Petitioner taking

// 4 //

the principal ground that while the Petitioner was discharging his duty in

the Institution, there have been some irregularities, involving which there

has been also an audit inspection and it is based on some revelations

through the Cash Books and Audit Report, the Petitioner has been

intimated with the irregularities involving him and some recoveries are

also pending involving the Petitioner being impediment in considering

the case of the Petitioner for release of arrear as well as final pension by

way of communication dated 25.10.2013, vide Annexure-G/4. While

issuing such letter showing its inability for taking any action on the

request of the Petitioner on the premises of receiving appropriate order

from the Director, Higher Education but however in connection with

release of final pension, it is in the premises of series of allegations

involving the Petitioner made in Clause-1 of Annexure-G/4 of the counter

affidavit, O.P.4 contended that there are lot of outstandings resulting non-

consideration of the case of the Petitioner in the above regard.

5. Advancing his submission, Mr.Dayananda Mohapatra, learned

counsel for the Petitioner taking through the observations in Annexure-

G/4 of the counter affidavit contended that the reporting in Annexure-G/4

principally involves three outstandings, as reported in Item Nos.I to V of

Clause-1 therein. Taking this Court to Annexure-H/4 of the counter

affidavit, Mr.Mohapatra, learned counsel for the Petitioner contended that

// 5 //

for the asking of the Institution on the information indicated from

Clauses-i to vi therein, through Annexure-14 to the rejoinder affidavit, the

Petitioner responded with a detailed compliance report to the asking of

the Institution. For the controversy since raised on the entitlement of the

Petitioner for pendency of the recoveries through Annexure-G/4 to the

counter for the impediment being created therein, Mr.Mohapatra, learned

counsel for the Petitioner attempted to draw the attention of this Court

through the provisions of the Orissa Aided Educational Institution

Employees Retirement Benefit Rules, 1981 (herein after as, "the 1981

Rules"). Referring to Regulation 5(1) of the said Rule then the Circular

dated 21.3.1983 issued by the Government of Orissa in Education and

Youth Services Department referred to therein, particularly through

Clauses-11, 12 & 18, further in reference to Regulation-10 of the Orissa

Pension Rules, 1977 and the replacement of the Orissa Pension Rules,

1977 by the Orissa Pension Rules, 1992 through Rule-7, Mr.Mohapatra,

learned counsel for the Petitioner attempted to satisfy the Court that

unless there has been Disciplinary Proceeding involving the allegations of

variety nature through Annexure-G/4 within the time stipulation through

the above Rules and in absence of any assessment thereby, there is no

chance with the Institution to retain either the arrear or the final pension

and other retiral benefits involved therein. It is in the above background

// 6 //

of the matter, Mr.Mohapatra, learned counsel for the Petitioner while

submitting that there is no lawful ground for retention of the arrear, retiral

dues and the final pension involved herein by the Institution.

Mr.Mohapatra thus prayed for allowing the Writ Petition with appropriate

direction.

6. Ms.D.Mohapatra, learned counsel for the Principal-in-charge of the

Institution, O.P.4, at the threshold of the matter though tried to object the

relief claimed herein on the premises of series of outstandings and

askings under Annexure-G/4 to the counter but while not disputing that

there has been no Disciplinary Proceeding of whatsoever nature on

recovery of outstandings involving the allegations involving Annexure-

G/4 within the limited period prescribed therein, however objected the

claim of the Petitioner on the premises that for the observation in Clause-

4 of Annexure-G/4, a correspondence dated 25.10.2013, the Petitioner is

yet to submit final pension paper. She thus contended that there is no

responsibility with the Institution in not finalizing the final pension of the

Petitioner. There is however no reasonable explanation on withholding of

the arrear and retiral dues of the Petitioner. It is in the above premises,

Ms.Mohapatra, learned counsel for the Institution attempted to object the

claim of the Petitioner and prayed for dismissal of the Writ Petition.

// 7 //

7. Mr.R.N.Mishra, learned Additional Government Advocate for the

State while adopting the submission of Ms.D.Mohapatra, learned counsel

for the Institution, however in reference to Annexure-I/4 to the counter

affidavit, i.e., the letter dated 28.4.2014 issued to the Principal of the

Institution by the Deputy Director of Higher Education contended that on

consideration of the request of the Petitioner, there is already a direction

to the Principal of the Maharishi College of Natural Law since 2014 to

expedite the submission of final pension paper and up-to-date Service

Book of the Petitioner to the Directorate within fifteen days without

delay. Through this letter, Mr.Mishra, learned Additional Government

Advocate submitted that it is for non-compliance of the direction by the

Institution, the Director remained undone. Mr. Mishra further contended

that for the Petitioner undertaking writ exercise, the Director awaited the

ultimate outcome in the Writ Petition.

8. Taking into account the submission of Mr.D.Mohapatra, learned

counsel for the Petitioner that for the provisions contained in the 1981

Rules, more particularly through Clauses-11, 12 & 18 of the Circular

dated 21.3.1983, further in reference to Regulation 10 of the Orissa

Pension Rules, 1977 and on the replacement of this Rule by the Orissa

Civil Services (Pension) Rules, 1992 (herein after, "the 1992 Rules")

through Rule-7 clearly disclosing unless a proceeding involved to assess

// 8 //

such recovery is initiated and there is determination of such recovery,

there is no justified reason to withhold the arrear, retiral dues and final

pension. Mr.Mohapatra also contended through the above provisions that

since no proceeding is initiated within specified time, there is no scope

for recovery even available presently. This Court here finds, undisputedly

the Parties are guided by the 1981 Rules. This Court finds, Rule-5 deals

with Pension. Pending operation of the Rules, there appears, Government

brought an executive instruction on 21.3.1983 prescribing therein the

prescription for application for and sanction of pension. Through Clause-

11, it gives scope for recoverable dues, which reads as under :-

"11.(1) It shall be the duty of every retiring employee to clear all dues before the date of his retirement.

(2) Where a retiring employee does not clear the dues and such dues are ascertainable

(a) an equivalent cash deposit may be taken from him; or

(b) The gratuity will be authorized in favour of Dist. Inspector of Schools/Inspector of Schools/Director of Public Instruction (Higher Education) who will obtain consent of pensioner the amount and deduct from the gratuity)."

Above provision provides unless one clears all dues before the date of his

superannuation, there may be a case of recoverable dues and for Sub-

Clause (B), it provides scope for deduction from Gratuity upon consent of

the Petitioner, whereas Clause-12 while dealing with any of the dues

other than those referred to in Clause-11 remains unutilized and

unassessed for and reasons, the retiring employee may be asked to furnish

in Form No.4-C, a surety of a suitable permanent employee getting

// 9 //

payment through Direct Payment Scheme and in such event, grant of

pension may not be delayed. This Court here observes, undisputedly such

a procedure though available but has not been availed. Under Sub-Clause

(3) of Clause-12 provision has been made on making effort to assess and

adjust the recoverable dues within a period not exceeding six months

from the date of retirement of employee. It further prescribes, if no claim

is made against the employee within such a period, it shall be presumed

that no claim is outstanding against him. For a doubt here, since the

matter involved withholding of pension and arrear with a hidden attempt

to recover from the arrear and final pension even though Sub-Clause (3)

of Clause-12 comes to the rescue of the Petitioner, for no proceeding

having been initiated as of now involving a person's superannuation on

31.3.2013 gave the protection of Sub-Clause (3) of Clause-12. Looking to

the provision at Clause-18 in the Circular referred to above, this Court

finds, the provision at Clause-18 reads as follows :-

"18. For items not specifically provided in these instructions the provision out-lined in Orissa Pension Rules, 1977 so far as the same are not inconsistent with the provision of Orissa Aided Educational Institutions' Employees' Retirement Benefit Rules shall be applicable."

For the revelation of the fact that in the meantime, the 1977 Rules has

been repealed on bringing into action the 1992 Rules, involving the

reference to the 1977 Rules through Clause-18 and the Rules, 1977

having been repealed in the meantime, this Court to give a meaning to the

// 10 //

provision at Clause-18 as referred to therein presently, finds, Section 8 of

Odisha General Clauses Act, 1937 here protects the guarantees provided

in the 1992 Rules. For clarity, this Court here takes into account Section 8

of the Act, 1937, which reads as hereunder :-

"8.Constructions of references to repealed enactments-Where any Odisha Act repeals and re-enacts, with or without modification, any provision of a former enactment, references in any other enactment or it any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re- enacted."

It is for the safeguard provided under Section-8 of the Odisha General

Clauses Act, 1937, this Court here observes for no bringing out further

Notification to the Circular dated 21st Mary, 1983 referred to above, the

1977 Rules referred to in Clause-18 therein shall be replaced by the 1992

Rules. This Court accordingly takes note of Rule-7 of the 1992 Rules

applying to the case at hand being an employee governed under the 1981

Rules. This Court takes note to the provision at Rule-7 therein reads as

follows :-

"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.

// 11 //

(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 or during his reemployment, 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 decides not to withhold or withdraw pension but order recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant."

Reading the aforesaid provision, it becomes clear, in the case of

withholding or withdrawal of pension involving any recovery against any

employee involved herein for specific provision at Sub-Rule (2)(b)(i) &

(ii) not only a sanction of the Government is required for initiation of

such Disciplinary Proceeding but there shall be also no initiation of

Disciplinary Proceeding after four years before such instruction. This

// 12 //

Court here observes, for no Disciplinary Proceeding involving the

Petitioner initiated within four years cap, no proceeding even otherwise is

possible now.

9. This Court here finds, on both counts Sri D.Mohapatra, learned

counsel for the Petitioner places reliance of decisions in the case of New

Central Jute Mills Co. Ltd. vrs. The Assistant Collector of Central

Excise, Allahabad & Ors. : 1971 AIR 454 and Narayan Misra vrs.

Surendranath Das & ors. : AIR 1972 Ori 115. Reading through the

judgments taken note herein above, this Court finds, both the aforesaid

judgments squarely apply to the stand of the Petitioner on not only Rule-7

of the 1992 Rules applies to the case of the Petitioner but for no initiation

of Disciplinary Proceeding within four years of the instruction, there is no

possibility of initiation of any further Disciplinary Proceeding. It is here

this Court takes into account the decision of the Division Bench of this

Court in State of Orissa & Ors. vrs. Prabodh Kumar Pal : 2013(II) OLR

513, wherein this Court observed, for the Opposite Party therein retired

on 31.10.2008 and the incident taken place four years prior to

superannuation, the Disciplinary Proceeding initiated on 11.11.2010 is

not entertainable in the eye of law. This decision is also squarely

applicable to the case of the Petitioner.

// 13 //

10. In taking into consideration the restriction in initiating the

Disciplinary Proceeding not later than four years before such instruction,

this Court since here finds, the Petitioner involved herein got

superannuated on 31.3.2013 though he was allowed to work on extension

and virtually retiring on 30.4.2013, for the prescription in the Rule-7

authorising initiation of Disciplinary Proceeding at least up to the incident

taking place four years behind such instruction, almost eight years have

passed from the date of superannuation of the Petitioner, no Disciplinary

Proceeding is even possible at this stage.

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

there remains ultimately no dispute on the claim of the Petitioner on his

entitlement to the arrear, retiral dues as well as final pension in absence of

any proceeding and determination pursuant to the development, vide

Annexure-G/4. It is at this stage, this Court entering into the controversy

of non-release of the final pension from Annexure-G/4, vide Clause-4

therein reads as follows :-

"4. As to submission of Pension Paper I am to state that DHE Letter regarding your retirement was perhaps received by you and Pension Paper was submitted by you. On the other hand it was your duty to submit your Pension Paper in the Office of the Principal, MCNL, Santarabandha which you have not done yet. Moreover, I wonder how can pension money be released without submission of Pension Paper."

// 14 //

This Court taking into account the development through Annexure-I/4 to

the counter while considering the case of the Petitioner on release of

provisional pension and giving appropriate direction, the Director, Higher

Education in his letter dated 28.4.2014 has already directed the Principal

of Maharishi College of Natural Law, Santarabandha to expedite

submission of final pension papers and up-to-date Service Book of the

Petitioner to their Directorate within fortnight. There is no denial by the

Institution, O.P.4 on receipt of such communication. It is, on the other

hand, this Court finds, the document at Annexure-I/4 surfaced through the

counter of O.P.4, Institution indicating therein the actual picture. The

Writ Petition was filed on 17.1.2014. This Court is unable to appreciate

the stand of the Opposite Parties and also unable to find any reasonable

cause for the Institution not responding to the direction of the Director

through Annexure-I/4 and not sending the final pension papers of the

petitioner even during pendency of the Writ Petition.

12. It is here taking into consideration the submission of

Ms.D.Mohapatra, learned counsel for the Institution that the Petitioner is

yet to submit final pension papers and the submission of

Mr.D.Mohapatra, learned counsel for the Petitioner that the Petitioner has

already submitted the final pension papers, this Court without entering

into the controversy here while simply observing, in the event the

// 15 //

Institution did not receive the final pension papers from the Petitioner,

nothing prevented the Institution to at least ask for submission of final

pension papers from the Petitioner firstly after receipt of direction from

the Director and secondly even after receipt of notice in this Writ Petition.

13. From the counter averments and the submissions advanced here, it

appears, the Institution stood on the premises of their claim through

Annexure-G/4 and remained under impression unless the Petitioner

cleared the dues involved therein and remained silent. For the direction of

the Director and for the support of provisions of law to the Petitioner

obstructing the Institution from detaining any amount for having not

instituted any Disciplinary Proceeding to determine such aspect, this

Court finds, there is absolutely no impediment in considering the final

pension and payment of other retiral dues including that of arrear, if any,

involving the Petitioner.

14. Be that as it may, since the final pension papers are not available

with the Authority, this Court while directing the Petitioner to submit the

final pension papers afresh within a period of seven days from the date of

this judgment also directs the Institution to forward the same to the

Directorate with relevant documents including service record of the

Petitioner for finalizing the same by the Directorate. Determination of

// 16 //

final pension involving the Petitioner and release be undertaken within a

period of six weeks from the date of receipt of this judgment.

15. Coming to release on account of arrear and other retiral dues since

this Court has already observed, the observation in Annexure-G/4 cannot

be an impediment in withholding the retiral dues and the arrear, if any,

this Court directs the Principal-in-charge, Maharisi College of Natural

Law, O.P.4 to finalise the case of the Petitioner in the matter of release of

arrear and retiral dues also within a period of two weeks hence. For

unlawful withholding of arrear and retiral dues, the Petitioner will also be

entitled to interest @ 6% all through.

16. With this, the Writ Petition succeeds but there is however no order

as to cost.

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

(Biswanath Rath, J.)

Orissa High Court, Cuttack.

The 27th August , 2021/MKR, A.R.-cum-Sr.Secy.