Orissa High Court
Sangram Keshari vs State Of Odisha & Others .... Opposite ... on 29 November, 2023
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.4066 of 2016
In the matter of an application under Articles 226 and
227 of the Constitution of India, 1950.
..................
Sangram Keshari .... Petitioner
Mohanty
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s.S.S. Das, S. Jena, R.P.
Dalai, K. Mohanty, S.K. Samal,
S.P. Nath & S.D. Routray
For Opp. Parties : M/s. S.K. Samal,
Addl. Government Advocate
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing:23.11.2023 and Date of Judgment:23.11.2023
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Biraja Prasanna Satapathy, J.
1. This matter is taken up through Hybrid
Arrangement (Virtual/Physical) Mode.
2. Heard learned counsel appearing for the Parties.
3. The Petitioner has filed the present Writ Petition
inter alia with the following prayer: -
"(i) Admit the writ petition.
(ii) Call for the records.
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(iii) Issue Rule Nisi calling upon the opposite
parties, particularly, opposite party No.3 to
show cause as to why the Memorandum of
Charge dated 20.02.2013 under Annexure-4
shall not be quashed and be declared as
invalid and inoperative in the eye of law.
(iv) If the opposite parties do not show cause or
show insufficient cause, issue a writ in the
nature of certiorari or any other appropriate
writ/writs and order/orders, quashing the
Memorandum of Charge dated 20.02.2013
under Annexure-4 and further be pleased to
declare the same as invalid and inoperative in
the eye of law inasmuch as contrary to the
Orissa Education (Recruitment and Conditions
of Service and Teachers and Members of the
Staff of Aided Educational Institutions) Rule,
1974 and Orissa Aided Educational
Institutions' Employees Retirement Benefit
Rules, 1981;
(v) Issue a writ in the nature of Mandamus or
any other appropriate writ/writs, order/orders,
direction/directions directing the opposite
parties to extend the pensionary benefit in
favour of the petitioner keeping in view the date
of superannuation of the petitioner in terms of
Rules, 1974 and 1981 within a reasonable
time to be stipulated by this Hon'ble Court".
4. Learned counsel for the Petitioner contended that
the Petitioner while continuing as a Reader in English
in S.G. College, Kanikapada, a proceeding was initiated
against him at the instance of Sub-Collector-cum-
President of the Governing Body of the College in terms
of the provision contained under Rule-22 of the Orissa
Education (Recruitment and Conditions of Service of
Teachers and Members of the Staff of Aided
Educational Institutions) Rules, 1974 (in short Rules)
on 20.02.2013 under Annexure-4.
4.1. It is contended that even though the proceeding
was initiated against the Petitioner while he was in
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service with service of the charges on 20.02.2013 under
Annexure-4, but the said proceeding was never
finalized till the petitioner attained the age of
superannuation on 31.08.2015.
4.2. It is contended that since the proceeding was not
finalized during the tenure of the Petitioner and there is
no provision under Rule-22 of the aforesaid 1974 Rules
to continue with the proceeding after retirement, the
proceeding so initiated against the Petitioner under
Annexure-4 is liable to be quashed as it cannot
continue after the retirement of the Petitioner.
4.3. In support of his aforesaid submission, Mr.
Routray, learned counsel for the Petitioner relied on the
decision of the Hon'ble Apex Court in Civil Appeal
No.2101/1999 (Bhagirathi Jena vs. Board of
Directors, O.S.F.C. and Ors.). Hon'ble Apex Court in
Paragraphs-6, 7 & 9 of the said judgment has held as
follows:-
"6. It will be noticed from the abovesaid regulations that no
specific provision was made for deducting any amount from
the provident fund consequent to any misconduct
determined in the departmental enquiry nor was any
provision made for continuance of departmental enquiry
after superannuation.
7. In view of the absence of such provision in the above
said regulations, it must be held that the Corporation had
no legal authority to make any reduction in the retiral
benefits of the appellant. There is also no provision for
conducting a disciplinary enquiry after retirement of the
appellant and nor any provision stating that in case
misconduct is established, a deduction could be made from
retiral benefits. Once the appellant had retired from service
on 30.6.95, there was no authority vested in the
Corporation or continuing the departmental enquiry even for
the purpose of imposing any reduction in the retiral benefits
payable to the appellant. In the absence of such authority, it
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must be held that the enquiry had lapsed and the appellant
was entitled to full retiral benefits on retirement.
9. The question has also been raised in the appeal in
regard to the payment of arrears of salary and other
allowances payable to the appellant during the period he
was kept under suspension and upto the date of
superannuation. Inasmuch as the enquiry had lapsed, it is,
in our opinion, obvious that the appellant would have to get
the balance of the emoluments payable to him after
deducting the suspension allowance that was paid to him
during the abovesaid period".
4.4. Mr. Routray, learned counsel also relied on
another decision of the Hon'ble Apex Court so passed
in Civil Appeal No.5848-49 of 2014 (Dev Prakash
Tewari vs. U.P. Cooperative Institutional Service
Board) . Hon'ble Apex Court in Para-4, 7 & 9 of the
Judgement has held as follows:-
4. The learned counsel for the appellant contended that
the disciplinary proceeding was not completed for more than
three years and in the absence of any provision in the
Regulations providing for continuation of disciplinary
proceedings after retirement of the employee, the
respondents could not continue the disciplinary proceeding
against the appellant after his superannuation. It is his
further contention that the High Court has failed to
appreciate the law laid down by this Court in similar
circumstances in the decision reported in Bhagirathi Jena
vs. Board of Directors, O.S.F.C. and Others [(1999) 3 SCC
666] and for the said reason the impugned order is liable to
be set aside.
7. In view of the absence of such a provision in the
abovesaid regulations, it must be held that the Corporation
had no legal authority to make any reduction in the retiral
benefits of the appellant. There is also no provision for
conducting a disciplinary enquiry after retirement of the
appellant and nor any provision stating that in case
misconduct is established, a deduction could be made from
retiral benefits. Once the appellant had retired from service
on 30.6.95 there was no authority vested in the Corporation
for continuing the departmental enquiry even for the
purpose of imposing any reduction in the retiral benefits
payable to the appellant. In the absence of such an
authority, it must be held that the enquiry had lapsed and
the appellant was entitled to full retiral benefits on
retirement.
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9. Once the appellant had retired from service on
31.3.2009, there was no authority vested with the
respondents for continuing the disciplinary proceeding even
for the purpose of imposing any reduction in the retiral
benefits payable to the appellant. In the absence of such an
authority it must be held that the enquiry had lapsed and
the appellant was entitled to get full retiral benefits".
4.5. Mr. Routray, learned counsel for the Petitioner
also relied on another decision of this court so reported
in 2020(I)OLR-535, this Court in Para-4 of the said
judgment has held as follows:-
"4. Considering the rival contentions of the parties, this
Court finds that admittedly the disciplinary proceeding has
been initiated after petitioner has been prematurely
superannuated. Law has been settled holding that no
proceeding can be initiated after the superannuation of an
employee unless there is any specific rule in that regard
governing the employer or employee. From the pleadings
and submissions of the respective advocates, this Court
finds opposite party is not in a position to demonstrate any
provision involving the parties to undertake disciplinary
proceeding after superannuation of the employee takes
place. Further for the cessation of the employer and
employee relationship after the premature superannuation
of the petitioner this Court is also of the view that no
disciplinary proceeding can be initiated after the
superannuation of an employee".
4.6. Placing reliance on the aforesaid decisions and the
fact that there is no provision under Rule-22 of the
Rules to continue with the proceeding after retirement
of the Petitioner, learned counsel for the Petitioner
contended that the proceeding so initiated against the
Petitioner under Annexure-4 is liable to be quashed.
5. Even though notice of the writ petition has been
issued since 19.05.2016, but no counter affidavit has
been filed. However, Mr. Samal, learned Addl.
Government Advocate for the State fairly contended
that there is no provision under Rule-22 of the 1974
Rules or under the provisions contained under The
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Odisha Aided Educational Institution's Employees
Retirement Benefits Rules, 1981 in allowing the
authority to continue with the proceeding after
retirement of the concerned employee.
6. Having heard learned counsel for the Parties and
after going through the materials produced before this
Court and the decisions relied on by the learned
counsel for the Petitioner, this Court is of the view that
the proceeding against the Petitioner since could not be
completed prior to his superannuation which fell due
on 31.08.2015, the proceeding cannot continue in
absence of any provision to that effect either under the
1974 Rules or under the 1981 Rules.
6.1. Therefore, placing reliance on the decision as cited
(supra), this Court is inclined to quash the proceeding
dtd.20.02.2013 so initiated against the Petitioner under
Annexure-4. While quashing the same, this Court
directs Opposite Party No.2 to take effective steps for
sanction of pension and other pensionary benefits as
due and admissible in favour of the Petitioner within a
period of three (3) months from the date of receipt of
this order.
7. Accordingly, the Writ Petition stands disposed of.
(Biraja Prasanna Satapathy)
Judge
Signed by: SUBRAT KUMAR BARIK Orissa High Court, Cuttack
Reason: Authentication Dated the 23rd of November, 2023/Subrat
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 29-Nov-2023 11:08:45
