Shri Purandar Pujari vs State Of Odisha & Others
2022 Latest Caselaw 6056 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK

                      W.P.(C) No.13149 of 2022

     In the matter of an application under Section 19
          of the Administrative Tribunals' Act, 1985.
                         ..................

 Shri Purandar Pujari                  ....                      Petitioner

                                  -versus-

 State of Odisha & Others              ....           Opposite Parties


          For Petitioner           :M/s. S. S .Das, Sr. Advocate

          For Opp. Parties         :M/s. R.N. Mishra,
                                    Addl. Government Advocate

PRESENT:
  THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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  Date of Hearing: 17.10.2022 and Date of Order: 31.10.2022
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Biraja Prasanna Satapathy, J.

1. Heard Mr. S.S. Das, learned Senior Counsel

appearing for the petitioner and Mr. R.N. Mishra, learned

Additional Government Advocate appearing for the State-

Opp. Parties.

2. The present writ petition has been filed challenging // 2 //

the Office Order dated 11.10.2019 passed by Opp. Party

No.1 under Annexure-3 wherein Opp. Party No.1 imposed

the punishment withholding the pension and gratuity of the

petitioner in full and permanently under Rule 7(1) of the

OCS (Pension) Rules, 1992.

3. Mr. Das, learned Senior counsel appearing for the

petitioner submitted that the petitioner while continuing in

the rank of O.A.S Group-A (J.B), he was allowed to take his

retirement on attaining the age of superannuation on

30.06.2017 vide Annexure-2. It is submitted that

subsequent to his being superannuated from service w.e.f

30.06.2017, the petitioner was sanctioned with provisional

pension only, as by the time the petitioner was

superannuated, a vigilance proceeding was pending against

him in Koraput Vigilance P.S. Case No.19 dated

12.09.2006. Learned counsel for the petitioner submitted

that even though learned Special Judge, Special Court,

Bhubaneswar vide his judgment dated 26.12.2018 hold the

petitioner guilty of the charges and sentenced him to

undergo R.I. for two years and to pay a fine of

Rs.1,00,000/- (Rupees one lakh), in default, to undergo R.I

for a further period of six months, but challenging such

order of conviction and sentence, the petitioner has already

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approached this Court in Criminal Appeal No.113 of 2019.

It is submitted that even though the matter is pending

adjudication before this Court in the aforesaid Criminal

Appeal No.113 of 2019, the impugned order under

Annexure-3 should not have been passed relying on the

provision contained under Rule 7(1) of the OCS (Pension)

Rules, 1992. It is submitted that since the petitioner has

not caused any pecuniary loss to the Government, in view of

the provision so contained under Rule 7(1) of the Rules,

withholding of the pension and gratuity in full and

permanently vide the impugned order is not permissible. It

is also submitted that the said action of Opp. Party No.1 is

contrary to the provision contained under Article 20(2) of

the Constitution of India.

4. Mr. Das, learned Senior Counsel appearing for the

petitioner further submitted that basing on the impugned

order passed under Annexure-3, the provisional pension

earlier sanctioned and released in favour of the petitioner

was also stopped from the month of September, 2019. It is

submitted that the said action of the opp. Party No.1 in

denying the benefit of provisional pension, after issuance of

the impugned order, is also contrary to the provision

contained under Rule 66 (1) of the OCS (Pension) Rules,

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1992. Accordingly, it is submitted that since the petitioner

has not caused any pecuniary loss to the Government, not

only the impugned order is illegal, but also the stoppage of

provisional pension w.e.f September, 2019 is illegal and

needs interference of this Court.

5. Learned counsel appearing for the petitioner in

support of his aforesaid submission relied on a decision of

the Hon'ble Apex Court reported in the case of Anurag

Mittal Vs. Shaily Mishra Mittal (2018) 9 SCC 691. It is

submitted that Hon'ble Apex Court in Para 23 of the said

judgment has held as follows:

"The predominant nature of the purposive interpretation was recognized by this Court in Shailesh Dhairyawan v. Mohan Balkrishna Lulla11 which is as follows:

" 33. We may also emphasise that the statutory interpretation of a provision is never static but is always dynamic. Though the literal rule of interpretation, till some time ago, was treated as the "golden rule", it is now the doctrine of purposive interpretation which is predominant, particularly in those cases where literal interpretation may not serve the purpose or may lead to absurdity. If it brings about an end which is at variance with the purpose of statute, that cannot be countenanced.

Not only legal process thinkers such as Hart and Sacks rejected internationalism as a grand strategy for statutory interpretation, and in its place they offered purposivism, this principle is now widely applied by the courts not only in this country but in many other legal systems as well."

6. Learned counsel for the petitioner also submitted

that since the petitioner against the order of conviction and

sentence has already preferred an appeal before this Court,

in view of the decision of the Hon'ble Patna Court in the

// 5 //

case of M/s. New Revival Homeo Pharmacy Vs. State of

Bihar, since appeal is continuation of the trial, unless the

appeal is finally disposed of, the impugned order of

punishment should not have been passed during pendency

of the said appeal.

7. Even though this Court vide order dated

21.07.2022 directed the learned State Counsel to file an

affidavit, but Mr. Mishra, learned Additional Government

Advocate submitted that since the petitioner has been

convicted in Koraput Vigilance P.S. Case No.19 dated

12.09.2006 vide judgment dated 26.12.2018 and this

Court while admitting the matter in Criminal Appeal No.113

of 2019 has not stayed the order of conviction and sentence,

the impugned order has been rightly passed taking recourse

to the provision contained under Rule 7(1) of the OCS

Pension Rules, 1992. Rule 7(1) of the O.C.S (Pension)

Rules, 1992 prescribes as follows:

"7(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 a 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 found guilty of grave misconduct or negligence in duty during the period of his service including service rendered on re-employment after retirement."

8. Mr. Mishra, learned Additional Government

Advocate submitted that as provided under Rule 7(1) as

// 6 //

cited (supra), the Government reserves the right to

withhold a pension or gratuity, or both, either in full or in

part, if in any Departmental Proceeding or Judicial

Proceeding, 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. It is also submitted that in addition to

withholding of pension or gratuity, or both, either in full or

in part, the Government is also competent to recover any

pecuniary loss caused to the Government. Mr. Mishra,

learned A.G.A accordingly submitted that recovery of

pecuniary loss is in addition to the right of the Government

to withheld the pension or gratuity and it is in addition to

the aforesaid punishment prescribed under Rule 7(1) and

not in derogative of such provision.

9. Mr. Mishra, learned A.G.A further submitted that

since the petitioner has been convicted and sentenced by

a competent Court vide its judgment dated 26.12.2018,

unless and until the petitioner is acquitted from the said

charges, the impugned order has been rightly passed

relying on the aforesaid provision of Rule 7(1) of the 1992

Rules.

// 7 //

10. This Court after going through the materials

available on record finds that even though the impugned

order is passed on 11.10.2019 and the petitioner was

denied the benefit of provisional pension as admitted by

him w.e.f September, 2019, but the present Writ Petition

was filed more than two and half years of the passing of

such order. This Court further finds that this Court while

admitting the Criminal Appeal No.113 of 2019 has not

stayed the order of conviction and sentence passed

against him and Mr. Das, learned Senior Counsel also

accepted the same. It is also found that in terms of the

provision contained under Rule 7(1) of the Orissa Civil

Services (Pension) Rules, 1992, Government is not only

competent to withheld the pension or gratuity or both,

either in full or in part, but also the Government in

addition to that, is competent to recover any pecuniary

loss caused to the Government. Therefore, the stand

taken by the learned counsel for the petitioner that since

the petitioner has not caused any pecuniary loss to the

Government, the impugned order has been passed in

violation of Rule 7(1) of the Rules, is not acceptable.

justified. Since the petitioner, as admitted, is a convicted

employee and no order of stay has been granted by this

// 8 //

Court while admitting the Criminal Appeal in Criminal

Appeal No.113 of 2019, this Court finds no illegality or

irregularity in the impugned order passed on 11.10.2019

under Annexure-3. This Court also finds that the

decisions relied on by the learned counsel appearing for

the petitioner can be of no help to the claim as made in

the Writ Petition as this Court while admitting the appeal

has not passed any order staying the operation of the

order of conviction and sentence. Not only that, in view of

the clear provision contained under Rule 7(1) of the OCS

(Pension) Rules, 1992, the decision rendered in the case

of Anurag Mittal as well as M/s. New Revival Homeo

Pharmacy (supra) can be of no help to the petitioner.

Therefore, while not inclined to interfere with the said

order, this Court disposes of the Writ Petition with the

observation that the impugned order passed under

Annexure-3 shall be subject to the final outcome of

Criminal Appeal No.113 of 2019.

11. With the aforesaid observation the Writ Petition is

disposed of.

(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 31st of October, 2022/sangita

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