Bijaya Kumar Pattanaik vs Sate Of Odisha And Others
2023 Latest Caselaw 13423 Ori

              IN THE HIGH COURT OF ORISSA, CUTTACK


                            W.P.(C) No.10333 of 2020


            Bijaya Kumar Pattanaik                    .......       Petitioner

                                               -Versus-

            Sate of Odisha and others                 .......       Opp. Parties


                  For Petitioners                         : Mr. S.K. Nath,
                                                            Advocate

                  For Opp. Parties                        : Mr. S.N. Pattanaik,
                                                           Addl. Govt. Advocate

                                    ----------------------------

P R E S E N T:

MR. JUSTICE SANJAY KUMAR MISHRA

--------------------------------------------------------------------------------- Date of Hearing: 17.08.2023 Date of Judgment: 31.10.2023

---------------------------------------------------------------------------------

S.K. Mishra, J. The Writ Petition has been preferred with a prayer

to set aside the order dated 10.02.2020 (Annexure-4), vide

which the representation dated 14.08.2019 of the Petitioner

for sanction of pension in his favour was rejected by the

Executive Engineer, Khordha Irrigation Division, Khordha

(Opposite Party No.2). A further prayer has been made to

direct the said Opposite Party for sanction of pension and retirement benefits in favour of the Petitioner within a

stipulated time frame.

2. The brief background facts which lead to filing of

the Writ Petition are that, the Petitioner was appointed as

"Khalasi" under Work-Charged Establishment on 18.11.1967

to work under Salia Dam Sub-Division, Banpur. Thereafter,

he was brought over to Regular Establishment with effect

from 18.10.1978 and was allowed with G.P.F. Number and

was covered under the Group Insurance Scheme of the State

Government. The Petitioner continuing for about 10 years 11

months in the Work-Charged Establishment and for about

five years in a Regular Establishment, he was transferred to

Tangi Irrigation Section by the Opposite Party No.2 and was

on leave up to 30.05.1984. Due to non-joining of the

Petitioner, a Show Cause Notice was issued by the Opposite

Party No.2 on 24.10.1986, as to why his service shall not be

terminated due to willful absence from Government duty.

After filing of satisfactory reply, the Petitioner was transferred

to Berhampur Irrigation Division from Khordha Irrigation

Division by the Superintending Engineer, vide letter No.9012

dated 18.11.1986. Thereafter, the Opposite Party No.3 (The

Executive Engineer, South Irrigation Division, Berhampur)

reposted the Petitioner to work under Assistant Engineer,

Rushikulya Irrigation Sub-Division, Humma, vide Order

No.54 dated 04.12.1986. It is further case of the Petitioner

that from the transfer order as at Annexure-1, it is crystal

clear that the Superintending Engineer had passed mutual

transfer order between one Budheswar Das, Khalasi from

Berhampur Irrigation Division and the Petitioner from

Khordha Irrigation Division, clearly mentioning therein that

no T.T.A. and joining time is allowed. Instead, the actual

joining time is allowed as the transfers are made at their own

request. Further, it was clarified vide Office Order No.54 of

1986-87 (Annexure-2) that the Petitioner was reposted to the

Office of S.D.O., Rushikulya Irrigation Sub-Division, against

vacant post due to transfer of one Budheswar Das, Khalasi

and a copy of the said order as at Annexure-2 was

communicated to the Petitioner on 15.12.1986 by the S.D.O.

Salia Dam Sub-Division as mentioned at the bottom of the

said Order at Annexure-2. Pursuant to the orders as at

Annexures-1 & 2, the Assistant Engineer allowed Budheswar

Das to join in place of the Petitioner, whereas the Petitioner

was not allowed to join in place of Budheswar Das. Rather,

the Petitioner was reposted to Purusottampur Irrigation

Section No.II with headquarter at Hinjilicut, vide order dated

23.12.1986. The Petitioner attended the Office of the

Assistant Engineer, Rushikulya Irrigation Sub-Division,

Humma, and submitted joining report on 27.12.1986 and

came to know about his posting to Purusottampur Irrigation

Section No.II. Knowing about the same, the Petitioner

requested to post him under the Assistant Engineer, Humma,

who did not accept the joining report of the Petitioner. After

returning from Humma, the Petitioner reported such situation

to the Assistant Engineer, Salia Irrigation Sub-Division, who

in turn requested Assistant Engineer, Humma to accept the

joining report of the Petitioner. Thereafter, the Petitioner

represented several times before higher authorities. But there

was no response to the allegation of the Petitioner. Thereafter,

because of the said illegal action on the part of the authority

concerned, judicial proceeding continued till 2009. In the

meantime, as co-employees were superannuated, the

petitioner was also supposed to be retired from Government

service and prayed for pension. Because of inaction, he was

constrained to approach this Court by filing W.P.(C) No.11320

of 2009, which was disposed of on 18.07.2019 granting liberty

to the Petitioner to file fresh representation before the

Executive Engineer, Khordha, with a direction to consider

and dispose of the same in accordance with law. Accordingly,

the Petitioner submitted the representation on 14.08.2019

being so directed by this Court. The Opposite Party No.2

disposed of the representation of the Petitioner dated

14.08.2019 by rejecting the same, vide letter dated

10.02.2020 on the ground that the said representation merits

no consideration for pension, which is the subject matter of

challenge in the present Writ Petition.

3. It is further case of the Petitioner that the reason

assigned in the impugned rejection order dated 10.02.2020 is

unsustainable. The grounds of rejection of the representation

that the Petitioner was not working under the Khordha

Division after 31.03.1984 and he was not given retirement

from Government service on superannuation and interruption

of duty so also the claim of the Petitioner for pension will not

be governed by Rule 18 (3) of the O.C.S. Pension Rules is not

tenable. Though the Petitioner asked for providing copy of the

Service Book under the Right to Information Act, the Opposite

Party No.2 intentionally avoided to provide the same. Though

the Petitioner submitted the pension papers before the

Opposite Party No.2, the same was returned on 19.02.2015

with a mention that Petitioner was not working under the said

Division till retirement. It is the case of the Petitioner that as

he had rendered service for a period of 19 years 5 months 3

days including the Work Charged service period, is entitled for

pension under Rule 18(3) of Orissa Pension Rules, 1992 as

decided in the judgment reported in 85 (1998) CLT (OATC) -

18. Hence, a prayer has been made to set aside the rejection

order as at Annexure-4 and direct the Opposite Party No.2 to

provide copy of the Service Book along with pension and

retirement benefits.

4. Being noticed, the State/Opposite Party Nos.1 to 3

filed their common Counter Affidavit taking a stand therein

that the Petitioner was appointed as Khalasi under Work-

Charged Establishment and was posted to work under Salia

Sub-Division, Banpur with effect from 11.11.1968 (F.N). He

was brought over to regular wages establishment with effect

from 18.10.1978, vide order dated 27.02.1979 of the

Superintending Engineer, Southern Irrigation Circle,

Berhampur. He was transferred from Salia Dam Sub-Division,

Banpur to Khordha Irrigation Sub-Division with headquarters

at Tangi by the Executive Engineer, Khordha, vide Office

Order dated 19.01.1984 and was relived from Salia Dam Sub-

Division, Banpur, under Khordha Irrigation Division,

Khordha, with effect from 31.03.1984 (F.N) in order to join in

his new place of posting at Tangi Irrigation Section, Tangi

under the same Division. However, the Petitioner refused to

receive the said relieve order which was confirmed vide letter

dated 04.04.1984 of the Assistant Engineer, Salia Dam Sub-

Division, Banpur. Instead of joining in his new place of

posting, the Petitioner applied for leave up to 30.05.1984 on

the ground of his wife's illness without any supporting

documents. After 30.05.1984, neither the Petitioner joined in

his duty nor applied for extension of leave and remained

absent unauthorizedly. Hence, he was served with Show

Cause Notice by the Executive Engineer, Khordha Irrigation

Division, Khordha, vide letter No.4602 dated 24.10.1986 to

submit satisfactory reply as to why his services shall not be

terminated due to his willful absence from duty. In response

to the said notice, after expiry of the scheduled date for

submission of Show Cause Reply, the Petitioner gave his

response to the said Show Cause Notice without any

satisfactory reply to justify his willful absence from duty. In

the meantime, the Petitioner was transferred from Khordha

Irrigation Division, Khordha and posted under the control of

Executive Engineer, Berhampur Irrigation Division,

Berhampur vide letter dated 18.11.1986 of the

Superintending Engineer, Southern Irrigation Circle,

Berhampur. The Executive Engineer, Berhampur Irrigation

Division, Berhampur reposted the Petitioner to Rushikulya

Irrigation Sub-Division, Humma against the existing vacancy

vide Office Order No.54 of 1986-87 dated 04.12.1986. The

Assistant Engineer, Rushikulya Irrigation Sub-Division

reposted him to Purusottampur Irrigation Section No.II with

headquarters at Hinjilicut, vide Office Order No.12 of 1986

dated 23.12.1986. However, the Petitioner did not join the

Office of the Assistant Engineer, Rushikulya Irrigation Sub-

Division, Humma and requested to post him under the Junior

Engineer, Humma Irrigation Section, which is not accepted by

the authority concerned. However, due to inadequate existing

staff for maintenance of canal work in Purusottampur

Irrigation Section No.II at Hinjilicut, the Petitioner was posted

to Purusottampur Irrigation Section vide letter No.324 dated

20.04.1987 of the Assistant Engineer, Rushikulya Irrigation

Sub-Division, Humma, addressed to the Executive Engineer,

Berhampur Irrigation Division, Berhampur. But the Petitioner

did not join the said office and was not working under the

said Division after 31.03.1984 and remained absent since

then. A further stand has been taken in the Counter that

unauthorized absence from duty for more than five years

leads to removal from service in terms of Rule-72(2) of Odisha

Service Code. Hence, the Petitioner is not eligible for pension

and has rightly not been given provisional pension and the

prayer made in the Writ Petition, being devoid of any merit, is

liable to be dismissed.

5. In response to the Counter Affidavit filed by the

State/Opposite Parties, a Rejoinder Affidavit has been filed by

the Petitioner reiterating the stand taken in the Writ Petition.

However, in addition to the same, in reply to Paragraphs-3 to

6 of the Counter Affidavit, it has been stated that in view of

the admission made in the Counter Affidavit, the Petitioner

had worked as Work-Charged employees for 10 years 11

months and 7 days and as Regular Employee for 5 years 5

months 13 days. Hence, in terms of the said admission made

in the Counter Affidavit, the total service period ,including

Work-Charge period, is 16 years 4 months 20 days, which is

treated as qualified service period for sanction of pension as

per Rule 18(3) of the Odisha Civil Services (Pension) Rules,

1992. But Opposite Party No.3 has referred to Rule-72(2) of

the Odisha Service Code, which is no way connected to

Odisha Civil Services (Pension) Rules, 1992. It has further

been stated in the Rejoinder Affidavit that since the Petitioner

was working for more than ten years, which is treated as

qualified service for pension, he is entitled to get pension as a

Class-IV Govt. Employees.

6. Mr. Nath, learned Counsel for the Petitioner,

reiterating the stand taken in the Writ Petition, submitted

that in view of the admitted facts on record, the Petitioner is

entitled for pension. To substantiate his submission so also

prayer made in the Writ Petition, Mr. Nath relied on the

Judgments reported in 83 (1997) C.L.T. (O.A.T) 42 (Uttam

Pradhan & others Vs. State of Odisha and others), 1997 (1)

OLR (CSR)-40 (Nakhaari Bewa Vs. State of Odisha), 2014 (1)

OLR 734 (Chandra Nandi Vs. State of Odisha), 105 (2008)

CLT 309 (Kishori Dash Vs. State of Orissa and others) and

2017(I) ILR - CUT - 906 (Karunakar Behera Vs. State of

Orissa and others).

7. Mr. Pattanaik, learned Additional Government

Advocate for the State/Opposite Parties, reiterating the stand

taken in the Counter Affidavit, submitted that the Petitioner's

grievance cannot be considered under the provision of Rule

18(3) of Odisha Civil Services (Pension) Rules, 1992, as it is

clear case of voluntary abandonment of service. He further

submitted that the Petitioner miserably failed to explain

satisfactorily for such long absence without any material

behind it. To substantiate the said submission, Mr. Pattnaik

relied on the judgment of the apex Court reported in (2000) 5

SCC 65 (Syndicate Bank Vs. General Secretary, Syndicate

Bank Staff Association and another).

8. Mr. Pattanaik further submitted that law is well

settled that if an employee remains absent beyond the

granted period of leave of any kind, he should be treated to

have resigned and ceases to be in service. Hence, though a

Show Cause Notice was given to the Petitioner for his

unauthorized absence beyond the leave period and the

explanation tendered by the Petitioner was found to be

unsatisfactory, thereafter no further Departmental Proceeding

was initiated against the Petitioner after tendering such

unsatisfactory explanation. In view of the Judgment rendered

by the apex Court, the Petitioner is to be treated to have

ceases to be in service because of such long unauthorized

absence.

9. From the pleadings of the parties as detailed

above, it is an admitted fact that the Petitioner was appointed

as Khalasi under Work-Charged Establishment with effect

from 11.11.1968. Thereafter he was brought over to Regular

Establishment from 18.10.1978 vide order dated 27.02.1979.

While working so, he was transferred from Salia Dam Sub-

Division, Banpur to Khordha Irrigation Sub-Division with

headquarters at Tangi by the Executive Engineer, Khordha,

vide Office Order dated 19.01.1984. He was relived from Salia

Dam Sub-Division, Banpur, with effect from 31.03.1984 in

order to enabling him to join new place of posting at Tangi

Irrigation Section, Tangi under the same Division. Instead of

joining in his new place of posting, the Petitioner applied for

leave up to 30.05.1984. After the said period, because of not

reporting for duty and not applying for any extension of leave

and remaining absent unauthorizedly, he was served with

Show Cause Notice on 24.10.1986 advising him to submit his

reply as to why his services shall not be terminated due to his

willful absence from duty. Thereafter, the Petitioner replied to

the said Show Cause Notice. Though the said reply was

unsatisfactory, no Departmental Proceeding was initiated

against the Petitioner for such unauthorized absence. Rather,

he was transferred from Khordha Irrigation Division, Khordha

and was posted under the control of Executive Engineer,

Berhampur Irrigation Division, Berhampur, by the

Superintending Engineer, Southern Irrigation Circle,

Berhampur, vide letter dated 18.11.1986. The said order of

transfer well demonstrates that such transfer was made on

the request of one Budheswar Das, Khalasi so also the

present Petitioner on mutual understanding. However,

instead of allowing the Petitioner to join in the place and

position held by Sri Budheswar Das, Khalasi, the Executive

Engineer, Berhampur Irrigation Division, reposted the

Petitioner to Rushikulya Irrigation Sub-Division vide order

dated 04.12.1986. Thereafter, again the Assistant Engineer,

Rushikulya Irrigation Sub-Division, Humma, reposted him to

Purusottampur Irrigation Section No.II with headquarters at

Hinjilicut, vide Officer Order dated 23.12.1986. On being so

reposted twice, which was contrary to the Office Order dated

18.11.1986 of the Superintending Engineer, Southern

Irrigation Circle, Berhampur, the Petitioner rightly requested

to post him under the Junior Engineer, Humma Irrigation

Section, in terms of letter dated 18.11.1986. But on the plea

of inadequate existing staff for maintenance of canal works in

Purusottampur Irrigation Section No.II at Hinjilicut, the

Petitioner was posted to the said Section vide letter dated

20.04.1987 by the Assistant Engineer, Rushikulya Irrigation

Sub-Division, Humma, for which the Petitioner was being

constrained to venture into series of litigations as detailed in

the date chart tendered by the learned Counsel for the

Petitioner dated 16.08.2022. Though the Petitioner was asked

to show cause vide notice dated 24.10.1986 for remaining

authorizedly absent from duty w.e.f. 30th May, 1984 and the

Petitioner gave his response to the said Show Cause Notice for

allegedly remaining absent beyond 31.03.1984, the Petitioner

attended the Office of the Assistant Engineer, Rushikulya

Irrigation Sub-Division, Humma, on 27.12.1986 and

requested to post him under Junior Engineer, Humma

Irrigation Section. Thereafter, he was never charge-sheeted or

asked to show cause for not reporting for duty at

Purusottampur Irrigation Section No.II, with headquarters at

Hinjilicut, in terms of the letter dated 20.04.1987. Further, a

stand has been taken in the Counter Affidavit that

unauthorized absence of a Government employee from service

for more than five years, leads to removal from service in

terms of Rule-72(2) of Odisha Service Code. The said Rule is

extracted below for ready reference.

"72. REMOVAL OF GOVERNMENT SERVANT AFTER REMAINING LEAVE FOR A CONTINUOUS PERIOD EXCEEDING FIVE YEARS.

(2) Where a Government servant does not resume duty after remaining on leave for a continuous period of five years, or where a Government servant after the expiry of his leave remains absent from duty otherwise than on foreign service or on account of suspension, for any period which together with the period of the leave granted to him exceeds five years, he shall unless

Government in view of the exceptional circumstances of the case otherwise determine, be removed from service after following the procedure laid down in the Orissa Civil Services (Classifications, Control and Appeal) Rules, 1962."

(Emphasis Supplied)

10. Admittedly, the said Rule prescribes that where a

Government servant does not resume duty after remaining on

leave for a continuous period of five years, or where a

Government servant, after the expiry of his leave, remains

absent from duty otherwise than on foreign service or on

account of suspension, for any period which together with the

period of the leave granted to him exceeds five years, he shall,

unless Government in view of the exceptional circumstances

of the case otherwise determine, be removed from service after

following the procedure laid down in the Orissa Civil Services

(Classifications, Control and Appeal) Rules, 1962. Hence,

from the said provision enshrined under Rule 72(2) of the

Odisha Service Code, it is amply clear that before invoking the

said provision to remove an employee from service, the State

is to follow the prescribe procedure laid down under the

Orissa Civil Services (Classifications, Control and Appeal)

Rules, 1962 and it cannot be automatic. Further, it is also

admitted fact that invoking such provision enshrined under

Rule-72(2), no communication was made to the Petitioner till

he attained the age of superannuation to the effect that

because of his absence for more than five years, he is

removed from service. Rather, though the Petitioner was

asked to show cause and he tendered his explanation and it

was allegedly found unsatisfactory, no further enquiry was

conducted by the employer for such misconduct of

unauthorized absence beyond the leave period. Thereafter, the

Petitioner was transferred to different places. In order to

accommodate one Budheswar Das, Khalasi, on mutual

understanding, vide order dated 18.11.1986, the Petitioner

was transferred in place of Mr. Das and vice versa. Though

Mr. Das was allowed to join in the place and position of the

Petitioner, but he was not allowed to join in the said place

and position of Mr. Das in terms of the Office Order dated

18.11.1986. Thereafter, contrary to the said Office Order, the

Petitioner was reposted at various places. Being aggrieved by

such reposting orders issued by various authorities as

detailed above, the Petitioner was being compelled to give

representation to the authority concerned and so also

approached the Administrative Tribunal and this Court for

redressal of his grievances.

11. In Kishori Dash (supra), vide paragraphs-11 & 12,

the coordinate Bench held as follows:

"11. Rule 72 of the Orissa Service Code provides that no Government servant shall be granted leave of any kind for a continuous period exceeding five years and where a Government servant does not resume duty after remaining on leave for a continuous period of five years, or where a Government servant after the expiry of his leave remains absent from duty otherwise than on foreign service or on account of suspension, for any period which together with the period of the leave granted to him exceeds five years, he shall, unless Government, in view of the exceptional circumstances of the case, otherwise determine, be removed from service after following the procedure laid down in the Orissa Civil Services (Classifications, Control And Appeal) Rules, 1962.

12. A conjoint reading of Rule 8(2) of the Retirement Rules with Rule 72 of the Orissa Service Code clearly shows that when a primary school teacher remains absent for more than five

years and does not resume his duty after the period of leave, can be removed from service by following the procedures laid down in the Orissa Civil Service (Classification, Control and Appeal) Rules, 1962. In other words, such a teacher cannot be removed from service without issuing a show cause notice and initiating a departmental proceeding as otherwise the same would clearly amount to violation of principle of natural justice and in the case of Government servant, it would be ultra vires to Article 311(2) of the Constitution inasmuch as the same would not be in conformity with the relevant provisions of Orissa Civil Service (Classification, Control & Appeal) Rules, 1962."

(Emphasis Supplied)

12. In Karunakar Behera (supra), the coordinate

Bench, relying on Kishori Das (supra), vide paragraphs-22 &

23 held as follows:

"22. In the instant case, undoubtedly petitioner has worked from 1968 to 25.6.1983 continuously and thereby earned more than ten years of qualifying service to receive pension and he is also entitled to receive

gratuity. It is needless to say that although the petitioner remained absent without informing the authorities from 25.6.1983 till his notional retirement on 2.1.2001 because of the supervening circumstances, which is beyond the human control as stated above, compelling the petitioner to remain on leave, the service of the petitioner is to be regularized till attaining the age of superannuation. Since he has not worked during that period, no arrear pay can be given because of the principle of "no work no pay" but his pay can be revised notionally from time to time keeping in mind the Orissa Revised Scale of Pay Rules applicable from time to time till his date of retirement. The contention of the State that the petitioner being Government servant should have approached the Tribunal instead of this Court is untenable in the facts and circumstances and writ is maintainable. Point No.(ii) is answered accordingly. CONCLUSION

23. Considering all such aspects, the writ petition is disposed of with a direction to the opposite parties to sanction pension, gratuity and other pensionary benefits of the petitioner proportionately in accordance with Rules, 1981 and the

Orissa Civil Services (Pension) Rules, 1992 after regularizing his service from 25.6.1983 till the date of his superannuation in accordance with law. The entire process must be completed by the opposite parties within a period of three months from today.

The writ petition is disposed of accordingly."

(Emphasis Supplied)

13. In Nakhaari Bewa (supra), the Administrative

Tribunal vide paragraph-6 held/observed as follows:

"6. In this connection I think I should refer to a decision rendered by a Division Bench of this Tribunal in the case of Abhimanyu Das v. State of Orissa and others, in O.A, 1561 of 1991 (1905) I ATT (Oat) 286. In the said case the relevant Government Resolutions have taken into consideration and it has been concluded that the applicant therein who had continued in work charged establishment and thereafter taken over to regular establishment, was entitled to pension as per the Government Resolution. It was directed in the said judgment that period spent by the applicant in the work charged establishment had to be taken into consideration for the purpose of computing the total number of years of qualifying services

rendered by him till retirement on superannuation for the purpose of pension. In the above case the earlier judgment of this Tribunal delivered on 21.08.1990 in T.A. No.787 of 1987 (Jacob Sahu v. State of Orissa and others) which had been unsuccessfully challenged before the Apex Court has been taken notice of. Reference has also been made therein to another judgment delivered by this Tribunal on 18.08.1990. In O.A. 84 of 1987 (Mohan Singh and 6 others v. State of Orissa and others). Referring to the Government Resolution issued on 21.01.1965, which has also been referred to in the present case, it was observed in the said judgment.

"....Government is a model employer and it is expected that they would be fair to their employees at least to the extent of written commitment made to them. A person appointed and working in Government for 20 years or more and yet his service would be treated as the work charged, appears to us to be absurd. If Government did not need these persons they could have retrenched them and recruited persons when they need other work, but having

engaged them for such a long time, we feel it unfair if they are not made permanent...."

The above judgment delivered in the case of Mohan Singh and 6 others (supra) by this Tribunal had also been challenged before the Apex Court and the SLP had been dismissed.

The present case seems to be fully covered by the ratio decided in the earlier cases before this Tribunal referred to above and I think the Respondents must take notice of these judgments and decide the claims of pension/family pension of all such employees and their widows including the applicant's husband and the application who came within the purview of the Finance Department Resolution No.4419 dated 22.1.1965 and reiterated in Finance Department Office Memorandum No.5483 dated 6.3.1990."

14. The Division Bench of this Court in Chandra

Nandi (supra) while affirming the award passed by the

Tribunal recording the submissions made by the learned

Counsel for the State as to eligibility of an employee to receive

pension, ordered as follows:

"Learned counsel for the State, on the contrary, submits that in order to be eligible to

receive minimum pension, the petitioner should have been regularized at least one day prior to his superannuation. We find that failure to regularize him as a part of inaction on the part of the State.

We, therefore, direct that the petitioner should be treated to have been regularized in service at least one day prior to his superannuation notionally and we further direct that calculating his entitlements, his pension amount shall be fixed by the opposite parties - State, in accordance with the rules and the arrear pension of the petitioner so calculated shall be paid to the petitioner by the end of March, 2014 and further the monthly payment of pension shall be made to the petitioner regularly thereafter."

(Emphasis Supplied)

15. In Uttam Pradhan (supra), the Tribunal vide

paragraph-6 held as follows:

"6. In the circumstances, we would dispose of this original application with direction to the Respondents to take appropriate action in accordance with the Finance Department Resolution issued on 22.01.1965 and also the instructions issued later in the matter of counting the

period spent by an employee in the work charged establishment for the purpose of pension and disburse the claim of the applicant made in the original application within three months from the date of receipt of a copy of this order. There should not be any discrimination made in the matter of extending the benefit to the applicants since such benefit has been extended to the employees similarly placed like the late Dinabandhu Pradhan. The applicants if would feel aggrieved on account of any order passed by the appropriate authority pursuant to the aforesaid direction, they are free to approach this Tribunal seeking appropriate direction."

(Emphasis Supplied)

16. So far as the judgment cited by the learned

Counsel for the State/Opposite Parties i.e. Syndicate Bank

(supra), the same is relating to an industrial dispute matter

pertaining to a reference made by the appropriate

Government to the Industrial Adjudicator to answer as to

whether the action of the Bank Management in terminating

the services of the workman, who was a Clerk, is legal and

justified. If not, to what relief the workman is entitled to? The

Bank Management took a stand that such an action of

termination of service of the workman is based on terms of a

Bipartite Settlement between the Management of the Bank

and the employees with regard to voluntary retirement from

service of the Bank for his unauthorized absence from duty

for a long period and it was not necessary to conduct a

domestic enquiry. It was held that the Bank Management has

followed the terms of Clause-16 of the Bipartite Settlement

which is binding on the workman. Accordingly, it was further

held that in terms of the said settlement, the long

unauthorized absence of the workman was treated to be his

voluntary retirement from the service of the Bank and it was

not necessary for the Bank to hold an enquiry before passing

of the order of termination. Hence, this Court is of the view

that the said judgment cited by the learned Counsel for the

State/Opposite Parties is not applicable to the facts of present

case.

17. At this juncture, it is apt to reproduce below Rule-18 (3)

of the Odisha Civil Services (Pension) Rules, 1992.

"18. Conditions subject to which service qualifies-

(3) Notwithstanding anything contained in clauses (i) and (ii) of sub-rule (2) a person who is initially appointed by the Government in a work-charged establishment for a period of five years or

more and is subsequently appointed to the same or another post in a temporary or substantive capacity in a pensionable establishment without interruption of duty, the period of service so rendered in work- charged establishment shall qualify for pension under this rule."

18. From the admitted facts on record, in terms of

Rule 72 of the Orissa Service Code, following the procedure

laid down in the Orissa Civil Services (Classifications, Control

and Appeal) Rules, 1962, no action was taken by the

State/Opposite Parties for removing the Petitioner from

service before he attained the age of superannuation. Also no

communication was ever made to the Petitioner to the said

effect. Hence, in view of the legal provisions for awarding

pension, so also the judgments cited by the learned Counsel

for the Petitioner, as detailed above, this Court is of the view

that the Petitioner is entitled for pension in terms of Rule

18(3) of Odisha Civil Services (Pension) Rules, 1992 and the

impugned rejection order dated 10.02.2020 under

Annexure-4, which was passed wrongly relying on Rule 72 of

the Orissa Service Code, is liable to be quashed. Accordingly,

the said rejection order dated 10.02.2020 is hereby set aside.

The Opposite Parties are directed to grant pension and other

benefits to the Petitioner proportionately in terms of Rule

18(3) of Odisha Civil Services (Pension) Rules, 1992, after

regularizing the service of the Petitioner from the date of

alleged unauthorized absence i.e. beyond 30th May, 1984, till

the date of his attaining the age of superannuation in

accordance with law. The entire process shall be completed by

the Opposite Parties within a period of two months from the

date of production of the certified copy of this Judgment.

19. Accordingly, the Writ Petition stands disposed of.

However, there shall be no order as to cost.

...................................

S.K. MISHRA, J.

Orissa High Court, Cuttack The 31st day of October, 2023/Prasant

Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack.

Date: 02-Nov-2023 16:50:25