Orissa High Court

G. Nageswar Rao vs State Of Odisha And Others on 24 March, 2023

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                             W.P.(C) No.11384 of 2022

     (This is an application under Article 226 and 227 of the Constitution
     of India)


        G. Nageswar Rao                           ....           Petitioner

                                       -versus-

        State of Odisha and others                ....     Opposite Parties

            For Petitioner         :        M/s. Sasiva Patra-1, Advocate,
                                         S. Mohanty-1, S. Rath and A. Rout

            For Opp. Parties       :                      Mr. R.N. Mishra,
                                              learned Addl. Govt. Advocate



                                       CORAM:
                    JUSTICE A.K. MOHAPATRA
                                  JUDGMENT

Date of hearing : 23.02.2023 | Date of Judgment : 24.03.2023

A.K. Mohapatra, J.

1. This matter is taken up through Hybrid Arrangement (Virtual

/Physical Mode).

2. Heard Mr. S.S. Patra-1, learned counsel for the petitioner and Mr.

R.N. Mishra, learned Additional Government Advocate for the State.

// 2 //

3. The present writ petition has been filed by the petitioner with the following prayers:

"It is therefore, most humbly prayed that this Hon'ble Court be graciously pleased to issue a writ/writs in nature of certiorari quashing the letter No.2287 dtd.24.10.2012 as under Annexure-1 and order dtd.12.05.2021 as under Annexure-8 and further be pleased to issue a writ/writs in the nature of Mandamus directing the Opp. Parties to release the Final Pension, Gratuity and other retirement benefits including all the arrears forthwith along with interest @ 12% per annum without any further delay.

And pass such other direction/order as deem fit and proper for interest of justice."

4. The factual background of the present case, in a narrow compass,

is that on 29.11.1977, the petitioner joined as Sub-Assistant Jailor in the

district of Bhawanipatna. In course of his service career, the petitioner

was being transferred and posted at different places in the State. In the

year 2009, a departmental proceeding bearing No.13 of 2009 was

initiated against the petitioner on the allegation that while the petitioner

was in duty, a prisoner escaped from the prison. At the time, the

petitioner was working as a Jailer-cum-Superintendent in Jeypore Sub-

jail. It is relevant to mention here that while the petitioner was working

as a Jailor-cum-Superintendent in Jeypore Sub-jail in the district of

Koraput, he has retired from service on attaining the age of

superannuation on 28.02.2011.

// 3 //

5. After retirement of the petitioner, the petitioner came to learn that

the Audit Team has raised objection and accordingly, Superintendent,

Sub-Jail, Jeypore instructed the petitioner to submit his

specific/compliance to the Audit Objection made by the D.A.R. No.46 of

2012 for the period 01.02.2008 to 31.03.2012. In reply to the same, the

petitioner has submitted his reply on 23.12.2012 to the Superintendent of

Sub-jail, Jeypore, Koraput-Opposite Party No.3 with a copy to the

Director General of Prisons and DCS, Odisha, Bhubaneswar-Opposite

Party No.2 specifically stating therein that he has already complied with

the objected amount of Rs.6,291/- and Rs.10,340/- as has been pointed

out in the Audit Report. Moreover, the petitioner had requested the

Opposite Parties to verify such fact from the concerned record and

accordingly, requested the Opposite Parties to comply with other part of

the Audit Objection as complained in Para-5, 7 to 9. While the matter

stood thus, on 26.08.2013, the petitioner was awarded with punishment

of 5% cut from his pension for a period of two years in D.P. No.13 of

2009. On 09.01.2020, the Opposite Party No.3 instructed the petitioner to

deposit the objected amount of Rs.10,43,694/- to the local treasury as the

same amount was sought to be recovered from the petitioner. The

Opposite Party No.3 lodged an F.I.R. on 22.12.2020 against the

petitioner, which was registered as Jeypore Town P.S. F.I.R. No.367 // 4 //

dated 22.12.2020 under Section 409, I.P.C. The said F.I.R. was lodged

pursuant to Home Department letter No.39224 dated 07.12.2022 and

Prisons Directorate letter No.19183 dated 15.12.2020.

6. Learned counsel for the petitioner further contended that although

the petitioner, apprehending his arrested in a criminal case, has applied

for anticipatory bail bearing ABLAPL No.16418 of 2020 before this

Court, however, this Court vide order dated 05.02.2021 granted interim

bail to the petitioner and finally vide order dated 25.04.2021, this Court

released the petitioner on anticipatory bail. Thereafter, the petitioner

surrendered before the learned trial court and was released on bail. On

04.01.2021, the petitioner submitted a representation before the Opposite

Party No.2 by Speed Post therein making a prayer to release his final

pension, gratuity and arrear dues, which are pending since 2011 for his

treatment at an early date as the petitioner is suffering from Cancer.

7. Since the authorities did not take any effective steps in the matter,

the petitioner was compelled to file a writ petition bearing W.P.(C)

No.6115 of 2021 with a prayer to dispose of the representation of the

petitioner within a stipulated period of time and further to direct the

Opposite Parties to release the final pension, gratuity and other retiral

benefits in favour of the petitioner including all arrears along with

interest @12% per annum. The said writ petition was disposed of vide // 5 //

order dated 09.03.2021 with a direction to the Opposite Party No.2 to

take a decision by giving opportunity of hearing to the petitioner within a

period of two months from the date of presentation of the certified copy

of this order along with copy of the writ petition.

8. On 31.03.2021, the Establishment Officer in the office of the

Directorate of Prisons and DCS directed the petitioner to appear for

personal hearing on 09.04.2021. On 02.04.2021, the Opposite Party No.3

informed the Establishment Officer that some of the documents which

are likely to be relied upon, while imposing punishment, are not available

in the office as the previous officer in-charge had not handed over charge

by then. Pursuant to the notice on 09.04.2021, the petitioner appeared

before the Opposite Party No.2 at 11.00 A.M. despite Corona Pandemic

scenario. However, it is further alleged by learned counsel for the

petitioner that although the petitioner was present, he was not given any

opportunity of hearing. Again on 13.04.2021 the petitioner received

another notice through Whatsapp instructing him to appear before the

Opposite Party No.2 on 16.04.2021. Despite the illness of the petitioner,

he appeared before the Opposite Party No.2 on 16.04.2021. He further

submitted that a requested was made to allow his attendant to be present

with him in view of the poor health condition of the petitioner.

// 6 //

9. Finally, by order dated 12.05.2021, the Opposite Party No.2

rejected the prayer / request of the petitioner to release his final pension,

gratuity (DCRG) and other retiral benefits due to pendency of the

criminal case.

10. Learned counsel for the petitioner submitted before this Court that

the disciplinary proceeding which was initiated against the petitioner vide

D.P. No.13 of 2009 has come to an end by imposing punishment on the

petitioner as has been referred to hereinabove. It is further contended by

learned counsel for the petitioner that most unfortunately, due to illness

and other inconvenience faced by the petitioner, the petitioner to avoid

the stress of going to litigation did not challenge the order passed in the

disciplinary proceeding and hence, accepted the punishment.

11. Further, learned counsel for the petitioner contended that after

retirement of the petitioner w.e.f. 28.02.2011, the petitioner was asked to

comply the audit objection vide letter dated 24.10.2012. He has also

submitted that although an F.I.R. was lodged against the petitioner,

however, he was not given any opportunity to verify the concerned

records as per letter of the petitioner under Annexure-2.

12. Learned counsel for the petitioner further submitted that the audit

objection and criminal case has no nexus with the Departmental // 7 //

Proceeding bearing No.13 of 2009, and that, till date no proceeding has

been initiated in view of the audit objection and therefore, he contended

that the order dated 12.05.2021 rejecting the prayer of the petitioner to

release pension and final pension as well as gratuity is highly illegal and

arbitrary. It is also submitted by learned counsel for the petitioner that on

22.08.1991, the Finance Department OM inviting the guideline regarding

recovery of dues on account of non-settlement of audit objection. The

said guideline dated 22.09.1991 provides as follows:-

"It has to be borne in mind that the findings in an audit report/para do not impose any liability on the Government servant concerned unless the same is established in a Departmental proceedings initiated against him under the Orissa Civil Service (Classification, Control and Appeal) Rules, 1962."

13. Mr. Mishra, learned Additional Government Advocate, on the

other hand, submits that the Opposite Party No.1 to 3 has already filed

counter affidavit in this case. In the counter affidavit, the Opposite

Parties Nos.1 to 3 has jointly denied the liability on account of the

petitioner's claim it has also been stated in the counter affidavit that the

impugned order has been passed pursuant to the order dated 09.03.2021,

which was passed by the Directorate of Prisons. Accordingly, it has been

submitted that since the proceedings were pending against the petitioner,

he was not given final pension, gratuity and the same has been withheld.

Additional reply has also been submitted to that effect that the petitioner // 8 //

has not deposited the amount as objected by the audit which has caused

loss to the Opposite Parties. The financial benefits as would be payable to

the petitioner has been withheld by the authorities and such conduct of

the Opposite Parties are completely illegal and no fault could be found

with such decision. It is further contended that in fact, charge-sheet has

already been submitted in the criminal case.

14. On a careful reading of the counter affidavit, it appears that the

Opposite Parties have repeatedly stated that since a criminal case is

pending against the petitioner and he has been directed to deposit the

amount which has been objected to by the audit and the same have not

been deposited by the petitioner, the authorities has not done any

illegality by withholding the financial benefits. Moreover, learned

Additional Government Advocate submitted before this Court that the

petitioner has been entangled in criminal case where there is allegation of

misappropriation of Government money to the a tune of Rs.9,15,752.00.

Counter affidavit further reveals that Jeypore P.S. Case No.367 of 2020

under Section 409, I.P.C. in G.R. Case No.982 of 2020 is pending before

the learned S.D.J.M., Jeypore and accordingly, the petitioner has been

charge-sheeted in the said case.

15. Referring to Sub-rule(2) of Rule 7 of the Orissa Civil Service

Pension Rules, 1992, it was argued by learned counsel for the State that // 9 //

in a case, the petitioner retired from service on attaining the age of

superannuation or otherwise a departmental proceeding or a judicial

proceeding instituted and continuing, the provisional pension be provided

as Rule 66 shall be sanctioned and paid to such delinquent employees.

Moreover, it was also contended that in view of the settled legal position,

a judicial proceeding shall be deemed to be instituted in the case

involving criminal liability with effect from the date when cognizance is

taken. Since the petitioner was getting provisional pension under Rule 66

of the Pension Rules and a criminal case is pending against the petitioner

for commission of offence under Section 409, I.P.C. wherein it is

emphatically submits that the question of giving the final pension and

gratuity does not arise at all. In course of argument reference was also

made to OCS Pension Rules and submitted that pension paid under the

Rules are subject to provisions of the OCS (Pension) Rules, 1992.

16. Learned Additional Government Advocate next submitted that

there is no denial to the facts that the petitioner has retired from

Government service w.e.f. 28.02.2011 and at the time of retirement, there

was departmental proceeding pending against the petitioner bearing D.P.

No.13 of 2009 and on conclusion of the said D.P., the petitioner was

imposed with a punishment to the tune @ 5% cut in pension for a period // 10 //

of two years. The order of punishment has attained finality as the

petitioner has accepted the same by not challenging the same any further.

17 In reply to the assertions made in the counter affidavit, learned

counsel for the petitioner filed a rejoinder affidavit and in the rejoinder

affidavit, the petitioner has re-asserted the facts which has been stated in

the writ petition and he has also reiterated in rejoinder affidavit that the

writ petition has been filed challenging the action of illegally

withholding the final pension and gratuity of the petitioner. Admittedly,

there is no departmental or any criminal proceeding at the time of his

retirement on 28.02.2011. It has also been stated in the rejoinder

affidavit that the criminal case was initiated nine years after the

retirement of the petitioner on 22.02.2020 and such criminal case was

initiated on the basis of audit objection.

18. Learned counsel for the petitioner referring to the rejoinder

affidavit submits that clause (v) Sub-rule (2) Rule 7 of the OCS Pension

Rules, 1992 is not applicable to the case of the petitioner as no

proceeding was pending against the petitioner at the time of his

retirement. He further contended that similarly Rule 66 is also not

applicable to the facts of the petitioner's case and that there is no

pecuniary loss to the Government through the petitioner for which any

departmental proceeding was pending as on the date of retirement.

// 11 //

Furthermore, as per the provision of clause (b)(i) Sub-rule(2)(e) of Rule

7 of the OCS Pension Rules, 1992 no disciplinary proceeding is pending

against the petitioner w.e.f. 25.08.2013 i.e. after disposal of the D.P.

No.13 of 2009. Therefore, after disposal of the D.P. No.13 of 2009 w.e.f.

25.08.2013, the petitioner is eligible to get pensionary benefit as well as

gratuity as no judicial proceeding or departmental proceeding was

pending against the petitioner for a period of almost seven years till

F.I.R. was lodged in the year 2020 basing upon audit objection. He

further contended that pursuant to Rule 6 no order has been passed by

the Government withholding either the gratuity or the pension of the

petitioner invoking the discretionary power conferred under Rule 6.

19. Learned counsel for the petitioner has also referred to the Finance

Department OM dated 22.08.1991, the relevant portion of the aforesaid

circular has been extracted herein below :-

"It has to be borne in mind that the findings in an audit report / para do not impose any liability on the Government servant concerned unless the same is established in a departmental proceedings initiated against him under the Orissa Civil Service (Classification, Control and Appeal) Rule, 1962."

20. In course of his argument, learned counsel for the petitioner

submitted that the conduct of the Opposite Parties are contrary to the law

laid down by this Court in the case of Braja Sundar Pattnaik vrs. State

of Orissa and others : reported in 2008(I) OLR 384 wherein this Court // 12 //

has categorically held that Rule 66(1) and (2) of the Rule, 1992 is not

applicable to the Government servant where there is no departmental or

judicial proceedings are pending on the date of retirement against the

petitioner.

21. In course of argument, learned counsel for the petitioner also

relied upon the Circular of the G.A. & P.G. Department, Government of

Odisha dated 30.12.1999, which was issued in the context of time taken

for pension as per direction of this Court in the case of Dhruba Charan

Panda vrs. State of Orissa : reported in 1999 (II) OLR 433.

Furthermore, he also relied upon the judgment Braja Sundar Pattnaik's

case (supra) wherein this Court had granted 10% penal interest per

annum and gratuity amount as well as pensionary benefit where there is

delay in payment of pensionary benefits and gratuity.

22. Finally, learned counsel for the petitioner repeated the contention

of the State-Opposite Parties in the counter affidavit relied upon the

judgment passed by the coordinate Bench of this Court in the case of

Manoranjan Khadenga vrs. Chairman, Orissa Forest Development

Corporation Ltd., Bhubaneswar, Khurda and others : reported in

2016(I) OLR-651 submitted that withholding the retirement benefits as

admissible to the petitioner as such, gratuity as well as leave salary

without initiating a disciplinary proceeding and in the absence of such // 13 //

departmental proceeding liability fixed only on the basis of audit report,

after his retirement, is without authority of law. Moreover, the grounds

taken by the State Opposite Parties with regard to entitlement of the

gratuity and leave salary and sanction and release of the same after final

settlement of outstanding dues, is not tenable in the law. Accordingly,

upholding the same, this Court issued direction for payment.

23. Learned counsel for the petitioner also relied upon the judgment

delivered by a division Bench of this Court in the case of State of

Odisha and others vrs. Sushanta Chandra Sahoo and others (W.P.(C)

No.14718 of 2015) in support of his contentions that when there is no

proceeding pending on the date of retirement, then the retirement

benefits including pension, gratuity cannot be withheld by the Opposite

Parties. Such conduct of the Opposite Parties, is contrary to the law and

the OCS Pension Rules, 1992. On a careful perusal of the judgment in

State of Odisha and others vrs. Sushanta Chandra Sahoo and

others(supra) in W.P.(C) No.14718 of 2015 judgment dated 06.05.2022

in para-9 it has been observed as follows:-

"9. On perusal of aforementioned provisions, it is made clear by Rule-7(2)(c), Explanation-(b) that judicial proceedings shall be deemed to be instituted from the date when in a criminal proceedings, on the complaint or report of a police officer the Magistrate takes cognizance. As per Rule-49(5)(a), where the sanction of payment of gratuity is delayed for more than a year from the date it is due under Sub-rules (1) or (2), as the case may be, and such delay is // 14 //

attributable to administrative lapses, interest at the rate of 7 per cent per annum for the period beyond one year shall be payable on the amount of gratuity. Similarly, Sub-rule (1) of Rule-66 provides that where departmental or judicial proceedings are pending in respect of government servant on the date of his retirement, he shall be paid a provisional pension, whereas in Sub-rule (2), which is supplement to Sub-rule (1) of Rule-66, provides that no gratuity shall be paid to the government servant until the conclusion of the departmental or judicial proceedings and issue of final order thereon. On cumulative reading of both the sub-rules, referred to above, it appears that the same will apply only when on the date of retirement of government employee, departmental or judicial proceedings are pending against him. But these rules will not apply where there are no departmental or judicial proceedings against government servant. But in the instant case, the petitioners have categorically stated that Vigilance P.S. Case No.7 dated 08.03.2007, by way of FIR, though was pending on the date of retirement of the opposite party no.1, i.e., 31.10.2012, but the judicial proceeding was started, pursuant to such Vigilance P.S. Case No.7 dated 08.03.2007, after the charge sheet was submitted on 22.07.2013, i.e., much after his retirement and, as such, no cognizance was taken by the time the opposite party no.1 had retired from service. Therefore, mere lodging of an FIR cannot be construed that a judicial proceeding is pending against opposite party no.1. As it appears, though for an incident of the year 2000, Bhubaneswar P.S. Case No.7 dated 08.03.2007, was lodged against the opposite party no.1, but charge-sheet in the said case was submitted on 22.07.2013. Thereby, by the date the opposite party no.1 retired from service, i.e., on 31.10.2012, it can safely be construed that neither departmental proceeding nor any judicial proceeding was pending before the authority for debarring opposite party no.1 from getting pensionary benefits as due and admissible to him.

14. Therefore, opposite party no.1, having stood in the same footing with that of K.C. Pattnaik, should not have been denied his pension and gratuity in the name of pendency of judicial proceeding against him on the date of // 15 //

retirement, i.e., 31.10.2012. Though Rule66(2) specifically provides that gratuity shall be released on conclusion of judicial proceeding, but fact remains, even though the opposite party no.1 has been receiving the provisional pension, he has not been paid his final pension, nor anything has been placed on record to indicate that on the basis of such FIR the Magistrate has taken cognizance of the offence, when the charge-sheet was submitted on 22.07.2013 much after his retirement on 31.10.2012, so as to construe that there is pendency of a judicial proceeding. In absence of any such material, this Court is of the considered view that the tribunal is well justified in passing the order impugned dated 05.05.2014 allowing O.A. No. 3318 of 2013 and dismissing R.P. No. 05 of 2015, which was filed for review of the said order, vide order dated 04.02.2015, which do not require any interference of this Court. Accordingly, the petitioners are directed to comply with the order dated 05.05.2014 passed by the tribunal in O.A. No. 3318 of 2013, within a period of three months from the date of receipt of copy of this judgment."

24. In view of the aforesaid analysis of law and further considering

the factual position of the present case and on a conspectus of the

materials placed before this Court and after hearing learned counsel for

both the sides, this Court found that in fact, no proceeding was pending

against the petitioner on the date of retirement. Accordingly by applying

the ratio laid down by the division Bench of this Court in the case of

Sushanta Chandra Sahoo and others(supra), the Opposite Parties

should have immediately sanctioned and disbursed the pensionary

benefits as well as gratuity to the petitioner within a reasonable time.

Having not done that, the Opposite Parties have failed to act in // 16 //

accordance with Odisha Pension Rules, 1992 as such, the order passed

by the Opposite Party No.2 dated 24.10.2012 under Annexure-1 and