Jeebardhan Seth vs State Of Odisha & Others
2023 Latest Caselaw 10262 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                    W.P.(C) (OA) No.1431 of 2019
        Jeebardhan Seth
                                          ....                      Petitioner
                                                       Mr. J. Jena, Advocate
                                       -versus-

        State of Odisha & Others
                                          ....              Opposite Parties
                                                             State Counsel

                              CORAM:
               JUSTICE BIRAJA PRASANNA SATAPATHY
                                         ORDER

24.08.2023 Order No.

04. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. Heard Mr. J. Jena, learned counsel for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Government Advocate for the State.

3. The Petitioner has filed the present writ petition inter alia with the following order:-

"Under the circumstances, it is humbly prayed that this Hon'ble Tribunal may graciously be pleased to direct the Respondents to release Gratuity, Commutation value of pension, Un-utilized leave and other retiral benefits in favour of the Applicant forthwith;

And further be pleased to direct the Respondents to transmit the pension papers of the Applicant to the appropriate quarter for sanction of final pension without any further delay".

4. It is contended by the learned counsel for the Petitioner that even though a vigilance proceeding was // 2 //

pending against the Petitioner in Sambalpur Vigilance P.S. Case No.05 of 1999 before the learned Special Judge, Sambalpur, but in view of the provisions contained under Rule-7 of the OCS (Pension) Rules,1992, he is eligible to get the benefit of pension and other pensionary benefits. Since that was not released on the face of pendency of the vigilance proceeding, the present writ petition was filed inter alia with the aforesaid prayer.

4.1. In support of his aforesaid submission, while relying on Rule-7 of the OCS(Pension) Rules, 1992, learned counsel for the Petitioner also relied on the decision of the Hon'ble Apex Court in the case of State of Jharkhand & Others vs. Jitendra Kumar Srivastava & Another in Civil Appeal No.6770 of 2013. The Petitioner relied on Para-9, 11 and 14 of the aforesaid judgment. Hon'ble Apex Court in Para-9, 11 & 14 has held as follows:-

" 9. Having explained the legal position, let us first discuss the rules relating to release of Pension. The present case is admittedly governed by -

Bihar Pension Rules, as applicable to the State of Jharkhand. Rule 43(b) of the said Pension Rules confers power on the State Government to withhold or withdraw a pension or part thereof under certain circumstances. This Rule 43(b) reads as under:

"43(b) The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty to grave misconduct, or to have caused pecuniary loss to Government misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement".

From the reading of the aforesaid Rule 43(b), following position emerges:-

(i) The State Government has the power to withhold or withdraw pension or any part of it when the pensioner is found to be guilty of grave misconduct either in a departmental proceeding or judicial proceeding.

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(ii) This provision does not empower the State to invoke the said power while the department proceeding or judicial proceeding are pending.

(iii) The power of withholding leave encashment is not provided under this rule to the State irrespective of the result of the above proceedings.

(iv) This power can be invoked only when the proceedings are concluded finding guilty and not before.

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11. . Reading of Rule 43(b) makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension etc. ONLY when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committed grave misconduct in the discharge of his duty while in his office. There is no provision in the rules for withholding of the pension/ gratuity when such departmental proceedings or judicial proceedings are still pending.

xxx xxx xxx

14. Article 300 A of the Constitution of India reads as under:

"300A Persons not to be deprived of property save by authority of law. - No person shall be deprived of his property save by authority of law." Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced".

4.2. It is contended that similar pari materia provision was there under Rule-43(b) of Bihar (Pension) Rules,1962 and Hon'ble Apex Court in the aforesaid reported decision held that a person cannot be deprived of his pension without authority of law, which is the constitutional mandate enshrined under Article-300-A of the Constitution.

4.3. It is accordingly contended that in view of such provisions contained under Rule-7 and the decision of the Hon'ble Apex Court as cited (supra), the Opposite Parties cannot withheld the pension and other pensionary benefits.

5. Mr. M.K. Balabantaray, learned Addl. Government Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. It is

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contended that since admittedly there is a vigilance proceeding pending against the Petitioner vide Sambalpur Vigilance P.S. Case No.05 of 1999, in view of the provisions contained under Rule-66 of the OCS (Pension) Rules, 1962 the Petitioner has been allowed the benefit of provisional pension. Rule-66 of the OCS (Pension) Rules, 1962 provides as follows:-

"66. Grant of provisional pension where departmental or judicial proceeding is pending.-(1) Where departmental or judicial proceedings are pending in respect of Government servant on the date of his retirement, referred to in, he shall be paid a provisional pension not exceeding the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant; or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension.

(2) No gratuity shall be paid to the Government servant until the conclusion of the Departmental or judicial proceedings and issue of final order thereon:

Provided that where departmental proceedings have been instituted under Rule16 of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 for imposing any of the penalties specified in Clauses (i), (ii) and (iii-A) of Rule 13 of the said rules, the payment of gratuity shall be authorized to be paid to the Government servant. (3) The provisional pension shall be authorized during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceeding, final orders are passed by the competent authority. (4) The authority competent to sanction pension shall be the authority competent to sanction provional pension.

(5) payment or provisional pension made under Sub-rule(1) shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of such proceedings but no recovery shall be made where the pension finally-sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period".

5.1. Mr. Balabantaray accordingly contended that in view of such provisions contained under Rule-66, no illegality has been committed by the authorities in withholding the pension and other pensionary benefits till the vigilance proceeding is disposed of. The Petitioner as contended has not been deprived of his

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pension and pensionary benefits and it has only been withheld due to pendency of the vigilance proceeding. Accordingly it is contended that the decision of the Apex Court as relied on by the Petitioner is not applicable to the facts of the present case.

6. Having heard learned counsel for the Parties and after going through the materials available on record, it is not disputed by either of the parties that a Vigilance Proceeding is pending against the Petitioner vide Sambalpur Vigilance P.S. Case No.05 of 1999.

7. Therefore, in view of the provisions contained under Rule-66 of the OCS (Pension) Rules, 1992, no illegality has been committed by the authority in withholding the pension and other pensionary benefits. The decision relied on by the learned counsel for the Petitioner, as per the considered view of this Court is not applicable to the facts of the present case as the Petitioner has not been deprived from getting the benefit of pension and pensionary benefits and it has only been withheld till conclusion of the proceeding. The Petitioner, if so advised can take appropriate steps for early disposal of the vigilance case.

8. Accordingly, the Writ Petition stands disposed of.

                                                               (Biraja Prasanna Satapathy)
                                                                         Judge
Signature Not Verified
Digitally Signed       Subrat
Signed by: SUBRAT KUMAR BARIK
Reason: ..
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 30-Aug-2023 12:32:28