Orissa High Court
Fakir Charan Behera vs State Of Odisha & Others on 12 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC(OAC) No.860 of 2013
An application under Section 19 of the State Administrative
Tribunal's Act, 1985.
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Fakir Charan Behera .... Petitioner
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s. S. Behera.
For Opp. Parties : M/s. M.K.Balabantaray,
Addl. Government Advocate
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing:17.01.2023 and Date of Order: 31.01.2023
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Biraja Prasanna Satapathy, J.
Mr. D.K. Panda, learned counsel appeared on behalf
of the Petitioner by filing Vakalatnama in Court today. The
same be accepted and reflected in the case record as well as
the in the front page of the writ petition.
1. The present Writ Petition has been filed challenging the
order dated 14.03.2013 passed by the Opposite Party No.1
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under Annexure-2, wherein it was directed to withhold the
pension and gratuity of the Petitioner in full permanently
because of his conviction and sentence passed in a
vigilance case.
2. Learned counsel for the Petitioner contended that the
Petitioner was recruited as a Forest Ranger in the year
1972 and was subsequently promoted to the rank of Odisha
Forest Service Class-I in the year 1984. The Petitioner while
continuing as a D.F.O, he retired on 30.04.2000 on
attaining the age of superannuation. But subsequent to his
retirement, the Vigilance Case initiated against him in the
year 1988 was tried before the competent court in T.R. Case
No.31/2007 arising out of Cuttack Vigilance P.S. Case
No.59 dated 06.01.1988.
2.1. It is contended that in the said vigilance proceeding
when the Petitioner was convicted and sentenced to
undergo imprisonment of R.I. for two years and to pay fine
of Rs.10,000/- in default to undergo R.I for three months,
the Petitioner challenged the same before this Court in
Criminal Appeal No.108 of 2011. This Court while
admitting the appeal vide order dated 23.02.2011, while
was inclined to release the Petitioner on bail, but did not
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stay the order of conviction and sentence passed against
the Petitioner.
2.2. After his conviction and sentence in the vigilance
case, the Petitioner was issued with the notice on
07.02.2012 under Annexure-2 and the Petitioner was asked
to give his reply against the proposed punishment wherein
Government proposed to impose the punishment of
withholding the pension and gratuity in full permanently in
accordance with Rule-18 of the OCS (CCA) Rules, 1962
read with Rule- 7(i) of the OCS (Pension) Rules, 1992. The
Government in the notice under Annexure-2, proposed to
withhold the entire pension and gratuity in full
permanently. On receipt of the notice under Annexure-2,
the Petitioner though submitted a detailed reply under
Annexure-3, but without considering the same, the
impugned order was passed by the Government-Opposite
Party No.1 on 14.03.2013 under Annexure-4 by passing the
order to withhold the pension and gratuity of the petitioner
in full permanently.
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2.3. Learned counsel for the Petitioner vehemently
contended that by the time the Petitioner retired from
service on 30.04.2000, though the vigilance proceeding was
pending against him, but after his retirement the Petitioner
while was not sanctioned with his retirement benefits, but
he was only allowed the benefit of provisional pension. But
after passing of the impugned order under Annexure-4, the
authorities stopped the payment of provisional pension.
Learned counsel for the Petitioner further contended that
even though under Rule-7(1) of OCS (Pension) Rules, the
Government is competent to withhold the gratuity or
pension or both either in full or in part, but as per Rule-66
of the said rules, it is obligatory on the part of the
Government to pay at least the provisional pension during
pendency of a judicial or departmental proceeding.
2.4. It is also contended that since the order of conviction
and sentence passed against the Petitioner is under
challenge before this Court in Criminal Appeal No.108 of
2011, which amounts to continuance of the judicial
proceeding, stoppage of provisional pension is not
sustainable in the eye of law. Accordingly, Mr. Panda,
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learned counsel for the Petitioner prayed for interference of
this Court and while praying as such relied on an order
passed by this Court on 03.11.2022 in W.P.(C) No.28968 of
2022. In a case of similar nature, this Court pending
final decision in the appeal filed by the Petitioner therein
directed the Government-Opposite Party No.1 to continue
with the provisional pension.
3. Mr. M.K. Balabantaray, learned Addl. Government
Advocate on the other hand made his submission basing on
the materials available on record and the stand taken by
Opposite Party No.2 in its counter. It is contended that by
the time the Petitioner retired from his service on
30.04.2000, the Vigilance Proceeding in question was
pending against him, having been initiated on 06.01.1988.
After his retirement and because of the pendency of the
vigilance proceeding, the Petitioner was only sanctioned
with the provisional pension and all his retirement dues
were kept withheld. Since the Petitioner while in receipt of
the provisional pension, was convicted by the Vigilance
Court vide judgment dated 04.02.2011, the Petitioner was
issued with the show cause under Annexure-2, proposing
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therein to withhold the entire pension and gratuity in full in
terms of the provisions contained under Rule-18 of the OCS
(CCA) Rules, 1962 read with Rule-7(i) of the OCS (Pension)
Rules, 1992.
3.1. It is also contended that even though the Petitioner
challenging the order of conviction and sentence
approached this Court in Criminal Appeal No.108 of 2011,
but this Court while admitting the appeal never stayed the
order of conviction and sentence passed against him.
Therefore, after due consideration of the representation
submitted by the Petitioner to the show cause under
Annexure-3, the order impugned was passed under
Annexure-4. Accordingly, it is contended that no illegality
or irregularity has been committed by the Opposite Parties
in withholding the pension and gratuity of the Petitioner in
full relying on the aforesaid provisions as cited (supra). It is
also contended that once the Petitioner is convicted in a
judicial proceeding and since a decision has been taken by
the Government-Opposite Party No.1 under Annexure-4 in
withholding the pension and gratuity of the Petitioner in
full, there is no occasion to release the provisional pension
during pendency of the appeal. Accordingly, it is contended
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that the prayer made in the Writ Petition is not liable for
interference by this Court, unless and until the Petitioner is
acquitted from such order of conviction and sentence.
4. I have heard Mr. D. Panda, learned counsel for the
Petitioner and Mr. M.K. Balabantaray, learned Addl.
Government Advocate for the State. On the consent of the
learned counsel appearing for both the Parties, the
matter was taken up for final disposal at the stage of
admission and disposed of by the present order.
5. Having heard learned counsel for the Parties and after
going through the materials available on record, there is no
dispute with the fact that the Petitioner after his retirement
was convicted to undergo RI for two years and to pay fine of
Rs.10,000/- in default to undergo RI for three months by
the competent vigilance court in T.R Case No.31/2007
arising out of Cuttack Vigilance P.S Case No.59 dated
06.01.1988 vide judgment dated 04.02.2011. Even though
the Petitioner challenging such order of conviction and
sentence approached this Court in Criminal Appeal
No.108/2011, this Court while admitting the appeal on
23.02.2011 never stayed the order of conviction and
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sentence passed against him. This Court further finds that
the order under Annexure-4 has been passed after giving
due opportunity of hearing to the Petitioner and after
obtaining due concurrence of the Orissa Public Service
Commission.
5.1. Since the Petitioner is admittedly a convicted
employee in the eye of law, unless and until he is acquitted
from the said order of conviction and sentence, this Court
finds no illegality or irregularity with the order passed on
14.03.2013 under Annexure-4. Since the Petitioner as has
been held in the impugned order not eligible to get the
benefit of pension and gratuity, the Prayer of the Petitioner
to at least grant provisional pension pending disposal of the
appeal is also not entertainable. Reliance placed on the
order passed by this Court in W.P.(C) No.28968/2022,
cannot be made applicable to the facts of the present case
as the said order is not an order in rem, rather it is an order
in personam. Therefore, this Court is not inclined to
entertain the prayer as made in the Writ Petition and
accordingly while dismissing the Writ Petition observes that
the order passed under Annexure-4 shall be subject to final
result of Criminal Appeal No.108/2011. The Petitioner is
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also at liberty to make appropriate application for early
disposal of the Criminal Appeal No.108/2011, if he is so
advised.
6. With the aforesaid observations and directions, the
Writ Petition stands disposed of.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Dated the 31st of January, 2023/ (Subrat)
Signature Not Verified
Digitally Signed
Signed by: SUBRAT KUMAR BARIK
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Oct-2023 18:00:34
