Orissa High Court

Smt. Labanya Dubey vs State Of Odisha And Ors on 2 March, 2023

         IN THE HIGH COURT OF ORISSA AT CUTTACK
                  WPC(OAC) No.2544 of 2014

     (In the matter of an application under Articles 226 and 227 of
     the Constitution of India, 1950)

     Smt. Labanya Dubey                      ....           Petitioner

                                -versus-
     State of Odisha and Ors.                ....        Opp. Parties


     Advocates appeared in the case:
     For Petitioner            :            Mr. Satyajit Behera, Adv.
                                -versus-

     For Opp. Parties           :           Mr. H.K. Panigrahi, ASC
                                              (for O.Ps.1 to 3 and 5)
                                                Mr. P.K. Rout, Adv.
                                                          (for O.P.4)

                 CORAM:
                 DR. JUSTICE S.K. PANIGRAHI
                   DATE OF HEARING:-22.12.2022
                  DATE OF JUDGMENT:-02.03.2023

       Dr. S.K. Panigrahi, J.

1. The Petitioner has filed this Writ Petition with a prayer to

direct the Opposite Parties to sanction and disburse the

pension of her husband with effect from October, 1994 till

October, 2000 and further prays for a direction to absorb her

husband into regular establishment after completion of 5

years of service in work charge establishment as has been

done in the case of Dinabandhu Satpathy.

pg. 1 I. FACTUAL MATRIX OF THE CASE:

2. The facts of the case, in a nutshell, is that the Petitioner was

appointed as Mechanic Grade-III in work charge

establishment under Opposite Party No.4 i.e. Executive

Engineer, Store and Mechanical Division, Khatiguda in the

District of Nabarangpur and joined in service on 25.03.1963.

The husband of the Petitioner has served for the Department

in various stations and even though the husband of the

Petitioner was working under work charge establishment, but

he has received the salary, increments and other benefits just

like regular employee.

3. While the matter stood thus, the Opposite Party No.5 i.e.

Secretary, Finance Department issued a resolution dated

22.01.1965 regarding amelioration of the condition of service

of work charged employees in various Departments of

Government, wherein the clause(I) stipulates that all posts

sanctioned in work charged establishment under different

Departments of Government which have completed 5 years of

continuous existence in the date of issue of this order and are

likely to continue in future and the work for which the posts

have been sanctioned are of permanent nature should be

brought over to the regular establishment and the incumbents

of the posts, if considered suitable should also be absorbed in

the corresponding posts created in regular establishment. In

pg. 2 this instant case, the Petitioner joined in service in 1963 and

retired from service with effect from 30.09.1994 and relieved

from the office of the Opposite Party No.4. However, he was

not brought over to regular establishment, in view of Finance

Department Resolution dated 22.01.1965, even though he was

continuing against a sanctioned post. During his service

period, the husband of the Petitioner approached the

authority seeking to bring him over to regular establishment

in view of the resolution dated 22.01.1965.

4. The Irrigation and Power Department had issued a circular

dated 12.09.1983 regarding conversion of work charge posts

to regular establishment and counting of work charge period

of service towards pension. In the said resolution, it has been

mentioned that the general principle of conversion of posts

borne in work charge establishment to the regular being 5

years continued existence in work charge establishment be

brought over to regular establishment. In this case, the

husband of the Petitioner joined as Mechanic Grade III in the

year 1963 under work charged establishment and continued

till 30.09.1994 without brought over to regular establishment

in view of resolution dated 12.09.1983.

5. While the matter stood thus, due to depression, the husband

of the Petitioner expired on 13.10.2000. Thereafter, one

Dinabandhu Satpathy, Fitter Grade-1 under work charge

pg. 3 establishment in the office of the Opposite Party No.3 i.e.

Chief Engineer, Upper Indravati Irrigation Project,

Nawarangpur had filed OA No.1599 of 1999 before the

Principal Bench, Bhubaneswar with a prayer to grant pension

and accordingly, the Tribunal allowed the prayer and based

on the order of the Tribunal, the Government vide letter dated

06.03.2010 passed an order and sanctioned pension in favour

of said Dinabandhu Satpathy and subsequently, the

Government vide order dated 23.06.2010 created one post of

Fitter Grade-1.

6. The Petitioner after coming to know about Dinabandhu

Satpathy submitted representation to the Opposite Party

No.3 on 19.12.2012 with a request for sanction of family

pension in her favour after death of her husband with effect

from October, 1994 to February, 2000. When no action was

taken, a reminder was issued on 23.01.2014 to the Opposite

Party No.3. While the matter stood thus, PG & PA

Department requested the Opposite Party No.3 as per letter

dated 22.02.2013 intimating the Opposite Party No.3 with a

request to take early action. However, till date the Petitioner

deprived to get the benefits of family pension for which she

approached this Court for redressal of her grievance.

II. PETITIONER'S SUBMISSIONS:

pg. 4

7. Learned counsel for the Petitioner earnestly made the

following submissions in support of her contentions:

8. The decision of learned Tribunal in Narusu Pradhan in O.A.

No. 1189 of 2006 which was confirmed by the Apex Court in

SLP(CC) No.22498/2012 dated 07.01.2013 and the Government

vide order dated 09.05.2013 implemented the same by

creating supernumerary post in respect of Narusu Pradhan

and sanctioned pension. Similarly, another person Pitambar

Sahoo who was similarly placed like the husband of the

Petitioner had filed one case before the learned Tribunal vide

O.A. No.41890/2013. The learned Tribunal vide Judgment

dated 18.04.2017 allowed the prayer which was confirmed by

the Apex Court in SLP(Diary) No.30806/2018 vide order dated

10.09.2018.

9. The Opposite Parties have raised the point of limitation in

approaching the Court. However, as per recent decision of the

Apex Court in the case of M.I. Patil (Dead) through LRS v.

State of Goa1wherein it was held that as far as the pension is

concerned, as it is a continuous cause of action, there is no

justification at all for denying the arrear of pension.

10. In the instant case, the matter relates to sanction of family

pension which is a continuous cause of action and in view of

decision of the learned Tribunal in Narusu Pradhan, Pitambar

Civil Appeal No. 4100/2022 (Supreme Court) pg. 5 Sahoo, the Petitioner is entitled for family pension with effect

from November, 2000 along with arrear of pension of her

husband and also she is entitled for interest of 18% for

delayed payment of pension from 2000 till actual payment is

made with all consequential benefits.

III. OPPOSITE PARTIES SUBMISSIONS:

11. Per contra, learned counsel for the Opposite Parties intently

made the following submissions:

12. The Writ Petition is grossly barred by limitation since the

husband of the Petitioner has been retired from service on

30.09.1994 and also died in the year 1999 and the present Writ

Petition has been filed by his wife after 20 years of his

retirement, which is not maintainable in law. Hence, this

petition is liable to be dismissed.

13. The Petitioner has filed this Petition seeking direction to

absorb her husband in regular establishment with

retrospective effect after completion of 5 years of service

under the project as well as to sanction regular pension with

effect from 1994 i.e. after his retirement and also grant of

family pension after his death in the year 1999.

14. The Petitioner's husband who was engaged as work charged

employee on 25.03.1964 retired as such on 30.09.1994 and

there is no such provision in the Orissa Work Charged

Employees (Appointment and Condition of Service)

pg. 6 Instructions, 1974 and Orissa Civil Service (Pension Rules) for

grant of pension and Pensionary benefits to the retired

employee as well as whose service has not been regularised

during the work charged period, as such he is not eligible for

grant of pension and family pension etc. according to Orissa

Civil Services Pension Rules. Hence, this Petition is

misconceived, frivolous and liable to be dismissed.

15. The case of the Petitioner's husband is that, he was engaged as

Mechanic on 25.03.1964 at Balimela Project under Work

Charged establishment and came to the control of Opposite

Party No-3 on 11.09.1981 on transfer. He served under Upper

Indravati Hydro Electric Project till attaining the age of

retirement from service on 30.09.1994. Thereafter, he received

all retiral benefits and lastly died in the year 13.10.2000.After

his death, even if employer and employee relationship has

been ceased, the wife of the deceased employee has raised

stale claim and prayed for regularisation of her husband after

completion of 5 years of continuous service under work-

charged establishment. Such a stale claim after long lapse of

24 years of retirement is unsustainable.

16. The Petitioner's husband was working as Mechanic and his

duty was confined to mechanical works of machines

deployed in civil construction works of the Project. His wage

was being paid charging to the departmental garage set-up

pg. 7 during construction stage. The construction work of the

Project has been completed since long. After completion of the

construction work, the project has been handed over to

Odisha Hydro Power Corporation Ltd., which has been

formed by the Government to generate electricity. The Project

is now at maintenance stage. After completion of the

construction work, all the heavy vehicles, machinery of the

Project have been declared surplus and have been sold out as

scrap materials. The Departmental garage is no more

functional. As such, there is absolutely no necessity of

Mechanic post in the regular establishment. Hence, he also

did not fulfill the condition of holding a permanent natured

post during his service period.

IV. COURT'S REASONING AND ANALYSIS:

17. It is well-settled that salaries and pensions are due as a matter

of right to employees, and, as the case may be, to former

employees who have served the State. Since, the Petitioner

rendered his services till superannuation as a Government

servant, his entitlement to the payment of salary is intrinsic to

the right to life under Article 21 and to right to property which

is recognized by Article 300A of the Constitution.

18. The Supreme Court in the case of State of Andhra Pradesh &

Anr v. Smt. Dinavahi Lakshmi Kameswari2 observed that

Civil Appeal No. 399 of 2021 (Supreme Court)

pg. 8 "The direction for the payment of the deferred portions of the salaries and pensions is unexceptionable. Salaries are due to the employees of the State for services rendered. Salaries in other words constitute the rightful entitlement of the employees and are payable in accordance with law. Likewise, it is well settled that the payment of pension is for years of past service rendered by the pensioners to the State. Pensions are hence a matter of a rightful entitlement recognised by the applicable rules and regulations which govern the service of the employees of the State."

19. In State of Kerala and others vs. V.Padmanabhan Nair3, the

Supreme Court held that prompt payment of retirement

benefits is the duty of the Government and any failure in that

direction will entail the Government liable to pay penal

interest to the Government servant. It was further held that

gratuity should be paid on the date of retirement or on the

following day and pension should be paid at the expiry of the

following month. The relevant paragraphs are as follows:

"The instant case is a glaring instance of such culpable delay in the settlement of pension and gratuity claims due to the respondent who retired on 19.5.1973. His pension and gratuity were ultimately paid to him on 14.8.1975, i.e., more than two years and 3 months after his retirement and hence after serving lawyer's notice he filed a suit mainly to recover interest by way of liquidated damages for delayed payment. The appellants put the blame on the respondent for delayed payment on the ground that he had not produced the requisite LP.C. (last pay

(1985) 1 SCC 429 pg. 9 certificate) from the Treasury Office under Rule 186 of the Treasury Code. But on a plain reading of Rule 1 86, the High Court held-and in our view rightly- that a duty was cast on the treasury Officer to grant to every retiring Government servant the last pay certificate which in this case had been delayed by the concerned officer for which neither any justification nor explanation had been given. The claim for interest was, therefore, rightly, decreed in respondent's favour.

Unfortunately, such claim for interest that was allowed in respondent's favour by the District Court and confirmed by the High Court was at the rate of 6 per cent per annum though interest at 12 per cent had been claimed by the respondent in his suit. However, since the respondent acquiesced in his claim being decreed at 6 per cent by not preferring any cross objections in the High Court it could not be proper for us to enhance the rate to 12 per cent per annum which we were otherwise inclined to grant."

20. In Dr. Uma Agarwal v. State of U.P.4, the Supreme Court held

that:

"We have referred in sufficient detail to the Rules and instructions which prescribe the time- schedule for the various steps to be taken in regard to the payment of pension and other retiral benefits. This we have done to remind the various governmental departments of their duties in initiating various steps at least two years in advance of the date of retirement.

If the rules/instructions are followed strictly much of the litigation can be avoided and retired government servants will not feel harassed because after all, grant of pension is not a bounty but a right of the government servant. Government is obliged to follow

(1999) 3 SCC 438.

pg. 10 the Rules mentioned in the earlier part of this order in letter and in spirit. Delay in settlement of retiral benefits is frustrating and must be avoided at all costs. Such delays are occurring even in regard to family pensions for which too there is a prescribed procedure. This is indeed unfortunate. In cases where a retired government servant claims interest for delayed payment, the Court can certainly keep in mind the time-schedule prescribed in the rules/instructions apart from other relevant factors applicable to each case."

21. Additionally, it is imperative to note that the resolution dated

22.01.1965 issued by the Secretary, Finance Department

regarding Amelioration of the condition of service of work

charged employees in various Departments of Government

wherein clause(I) stipulates that all posts sanctioned in work

charged establishment under different Departments of

Government which have completed 5 years of continuous

existence in the date of issue of this order and are likely to

continue in future and the work for which the posts have been

sanctioned are of permanent nature should be brought over to

regular establishment and the incumbents of the posts, if

considered suitable should also be absorbed in the

corresponding posts created in regular establishment. In the

instant case, the Petitioner joined in service in 1963 and retired

from service with effect from 30.09.1994 and relieved from the

office of the Opposite Party No.4 and, therefore, he should

have been brought over to regular establishment.

pg. 11

22. The Opposite Parties have raised the point of limitation in

approaching the Court. In this regard, the Petitioner has

rightfully relied on the decision of the Supreme Court in the

case of M.I. Patil (Dead) through LRS v. State of

Goa5wherein it was held that:

"...as far as the pension is concerned, it is a continuous cause of action. There is no justification at all for denying the arrears of pension as if they would have been retired/superannuated at the age of 60 years. There is no justification at all by the High Court to deny the pension at the revised rates and payable only from 1st January, 2020. Under the circumstances, the impugned judgment and order passed by the High Court is required to be modified to the aforesaid extent".

23. Summing up, it can be said with confidence that pension is

not only compensation for loyal service rendered in the past,

but pension also has a broader significance, it is a measure of

socio-economic justice which inheres economic security in the

fall of life when physical and mental prowess is ebbing

corresponding to aging process and, therefore, one is required

to fall back on savings. One such saving in kind is when one

gives one's best in the hey-day of life to one's employer, in

days of invalidity, economic security by way of periodical

payment is assured. The term has been judicially defined as a

stated allowance or stipend made in consideration of past

service or a surrender of rights or emoluments to one who