Harihara Behera vs State Of Odisha & Ors
2023 Latest Caselaw 10885 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                          W.P.(C)(OA) No.73 of 2018

        Harihara Behera                         ....               Petitioner
                                                            Mr. N. Rath, Advocate

                                               -versus-

        State of Odisha & Ors.                  ....              Opposite Parties
                                                          Mr. M.K. Balabantaray, AGA


                            CORAM:
               JUSTICE BIRAJA PRASANNA SATAPATHY

                                        ORDER

05.09.2023 Order No

03. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. Heard Mr. N. Rath, learned counsel for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Govt. Advocate appearing for the Opp. Parties.

3. The Petitioner has filed the present writ petition inter alia with the following prayer:-

"(i) In view of the facts mentioned in para-6 above the applicant prays for the following reliefs:

(i) To direct the State respondents to sanction regular pension, DCRG as per relevant provision of the OCS (Pension) Rules, 1992, commuted value of pension and other retiral benefits and disburse the same to the applicant within a stipulated time framed fixed by your Lordships with interest of 18% from the date of entitlement to the actual date of payment in the interest of justice, equity and fair play.

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(ii) To grant any relief/reliefs as deemed fit and proper."

4. It is contended that the Petitioner while continuing as an Assistant Agriculture Engineer in the office of Opp. Party No. 3, he retired on attaining the age of superannuation on 31.03.2017 vide Annexure-1. On such retirement of the Petitioner, the Petitioner though became eligible to get the benefit of pension, gratuity and other retiral benefits, but the Petitioner was only sanctioned with the provisional pension vide order dtd.10.07.2017 under Annexure-

2. The Petitioner claiming extension of the benefit of pension and gratuity though moved the Opp. Party No. 1 under Annexure-4, but no action was taken on the same and accordingly the present writ petition was filed with the aforesaid prayer.

4.1. It is contended that Opp. Parties have held up the payment of final pension and gratuity as well as other retiral benefits only on the ground that on the date of retirement of the Petitioner, Cuttack Vigilance P.S. Case No. 76 of 2016 was pending against the Petitioner.

4.2. Mr. Rath, learned counsel for the Petitioner, however, contended that in view of the explanation given to the provisions contained under Rule 7(2) of the OCS (Pension) Rules, 1992, mere pendency of a criminal proceeding is not a ground to held up the pension and other pensionary benefits. It is contended that in the aforesaid vigilance case since as on the date of retirement of the Petitioner, no charge sheet was filed with taking of cognizance, in view of the explanation given to Rule 7(2) of the Rules, it cannot be held that a judicial proceeding is pending against the Petitioner.

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Explanation appended to Rule 7(2) is quoted hereunder:-

"(a) Departmental proceedings shall be deemed to be instituted on the date on which the statement of charges are issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from the date of his suspension; and

(b) Judicial proceedings shall be deemed to be instituted-

(i) in the case of criminal proceedings, in the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made; and

(ii) in the case of Civil Proceedings, on the date of presentation of the plaint in the Court."

4.3. In support of his aforesaid submission vis-à-vis the explanation given to Rule 7(2), Mr. Rath relied on a decision of this Court so passed on 06.05.2022 in W.P.(C) No. 14718 of 2015. This Court after going through the provisions contained under Rule 7(2) vis-à- vis the explanation appended thereto cane to the following conclusion in Para 9 & 10 of the Judgment:-

"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 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,

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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.

10. The word "cognizance" indicates that at the point of time when the Magistrate or Judge first takes judicial notice of the

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offence. More so, cognizance is being taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the court decides to proceed against the offenders against whom prima facie case is made out. More so, cognizance is taken of the offence and not of the offender and, therefore, once the court on perusal of the complaint/FIR is satisfied that the complaint/FIR discloses the commission of an offence and there is no reason to reject the complaint at that stage, and proceeds further in the matter."

4.4. Placing reliance on the aforesaid decisions, Mr. Rath, learned counsel for the Petitioner contended that since on the date of retirement, no charge sheet was filed in the aforesaid vigilance case with taking of cognizance, it cannot be held that a judicial proceeding is pending against him and thereby debarring him to get the benefit of pension and other pensionary benefits. It is accordingly contended that the prayer as made in the writ petition be allowed with passing of an appropriate order.

5. Even though no counter affidavit has been filed in spite of notice being issued since 10.01.2018, but Mr. M.K. Balabantaray, learned Addl. Govt. Advocate contended that in view of the provisions contained under Rule 7(2)(d) of the OCS (Pension) Rules, 1992, the Petitioner is not entitled to get the benefit of pension and other pensionary benefits and it has been rightly withheld save and except sanction of provisional pension in his favour. Rule 7(2)(a) to (e) of the Rules prescribes as follows:-

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"7(2)(a) Such departmental proceedings referred to in Sub-rule (1), if instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service:

Provided that when the departmental proceedings are instituted by an authority, subordinate to Government that authority shall submit a report recording its finding to the Government.

(b) Such departmental proceedings as referred to in Sub-rule (1) if not instituted while the Government servant was in service, whether before his retirement or during his re-employment-

(i) shall not be instituted save with the sanction of Government;

(ii) shall not be in respect of any event which took place more than four years before such instruction; and

(iii) shall be conducted by such authority and in such place as the Government may, direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service.

(c) No judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re- employment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution.

(d) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under Clauses (a) and (b), a provisional pension as provided in Rule 66 shall be sanctioned.

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(e) Where the Government decide not to withhold or withdraw pension but order recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one- third of the pension admissible on the date of retirement of a Government servant."

5.1. Mr. Balabantaray, learned AGA accordingly contended that in view of the provisions contained under Rule 2(d) the Petitioner since at the date of retirement was facing a criminal proceeding in the aforesaid Vigilance P.S. Case, he is not entitled to get the benefit of pension and other pensionary benefits unless and until the proceeding is disposed of and the prayer made in that regard is not entertainable.

6. Having heard learned counsel appearing for the Parties and after going through the materials available on record vis-à-vis the submissions made, this Court finds that Rule 7(2) of the OCS (Pension) Rules prescribes the modality and the right of Govt. to withhold or withdraw pension. Rule 7(2)(a) to (e) prescribes the modalities and cases in which the Govt. can withhold pension and other pensionary benefits. But this Court finds that in the explanation given to Rule 7(2), it has been held that judicial proceeding shall be deemed to be instituted on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance. Since in the present case as on the date of the retirement only the case has been instituted vide Cuttack Vigilance P.S. Case No. 76 of 2016 and no charge sheet is filed with taking of cognizance as contended by the learned counsel for the Petitioner, placing reliance on the explanation to Rule 7(2) and the decision as cited (supra), this Court if of the view that the Petitioner is eligible and entitled to get the benefit of pension and other pensionary

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benefits. While holding so, this Court directs Opp. Party No. 1 to sanction and release the final pension and other retiral benefits as due and admissible in favour of the Petitioner. Such an exercise shall be undertaken and completed within a period of three (3) months from the date of receipt of this order. However, the extension of pension and other pensionary benefits shall be subject to final outcome of the vigilance case in question.

7. The writ petition is disposed of accordingly.

(Biraja Prasanna Satapathy) Judge Sneha

Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Sep-2023 11:20:48