Orissa High Court

Bijaya Krishna Panigrahi vs State Of Odisha & Ors. .... Opposite ... on 8 November, 2024

Author: S.K. Panigrahi

Bench: S.K. Panigrahi

                                                               Signature Not Verified
                                                               Digitally Signed
                                                               Signed by: BHABAGRAHI JHANKAR
                                                               Designation: AR-CUM-SR. SECRETARY
                                                               Reason: Authentication
                                                               Location: ORISSA HIGH COURT, CUTTACK
                                                               Date: 19-Nov-2024 16:06:46



                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                W.P.(C) No.30151 of 2020
                                         And
                                W.P.(C) No.30157 of 2020
       (In the matter of an application under Articles 226 and 227 of the
       Constitution of India)

       Bijaya Krishna Panigrahi                    ....                 Petitioner(s)
       (In W.P.(C) No.30151 of 2020

       Trilochan Sethi
       (In W.P.(C) No.30157 of 2020)

                                        -versus-
       State of Odisha & Ors.                      ....        Opposite Party (s)

     Advocates appeared in the case throughHybrid Mode:
      For Petitioner(s)         :                 Mr. J. K. Rath,, Sr. Adv.
                                                      along with associate


       For Opposite Party (s)       :                      Mr.Sonak Mishra, ASC

              CORAM:
     DR. JUSTICE S.K. PANIGRAHI

                     DATE OF HEARING:-25.09.2024
                    DATE OF JUDGMENT: -08.11.2024
     Dr. S.K. Panigrahi, J.

1. Since common question of facts and law are involved in both the above-

mentioned Writ Petitions, the same were heard together and are being

disposed of by this common judgment. However, this Court felt it

apposite to deal the W.P.(C) No.30151 of 2020as the leading case for

proper adjudication of all these cases.

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Location: ORISSA HIGH COURT, CUTTACK Date: 19-Nov-2024 16:06:46

2. The Petitioner, by way of W.P.(C) No.30151 of 2020, contest the

withholding of his retirement benefits and regular pension on the

grounds of pending vigilance proceedings against them.

I. FACTUAL MATRIX OF THE CASE:

3. The brief fact of the case in brevity remains:-

(i) The petitioner was selected and appointed as an Inspector of

Commercial Taxes under the Finance Department and joined the post

on 23.01.1984. While he was serving the Commercial Tax Officer,

Bhubaneswar-IV Circle, Bhubaneswar serving in this capacity,

disciplinary proceedings were initiated against the petitioner under

Rule-15 of the Orissa Civil Services (Classification, Control and Appeal)

Rules, 1962 by the opposite party no.1 through Finance Department

Office Memorandum No. 27810/F dated 21.06.2010.

(ii) The petitioner was asked to submit a written statement of defense,

which he did, denying the charges leveled against him. However, the

Disciplinary Authority was not satisfied with the petitioner's reply,

leading to a communication issued to the petitioner via Office Order

No. 42647/F dated 04.10.2010, stating that an inquiry would be

conducted. Subsequently, the Commissioner for Departmental

Inquiries, G.A. Department, was appointed as the Inquiry Officer, and

the State Representative from the General Administration Department

was appointed as the Marshalling Officer. Additionally, the Joint

Commissioner of Commercial Tax, Puri Range, Bhubaneswar, was

appointed as the Additional Marshalling Officer for presenting the case

and adducing evidence in support of the charges.

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 19-Nov-2024 16:06:46

(iii) The Inquiry Officer, after completing the inquiry, approved the charges

against the petitioner in the Inquiry Report, and a copy of the report

was provided to the petitioner. The petitioner was then asked to submit

a representation as per the provisions of Rule-15(10)(i)(a) of the Orissa

Civil Services (Classification, Control and Appeal) Rules, 1962. In

response, the petitioner submitted his representation, as required by the

State Government under the CCA Rules. Following the completion of

the proceedings, the State Government imposed the punishment of

censure and withheld two annual increments with cumulative effect, as

outlined in Office Order No. 29002 dated 13.10.2014.

(iv) An FIR No. 19 dated 21.04.2010 was lodged by the Vigilance

Department through DSP, Vigilance Directorate, Cuttack, against five

individuals, including the petitioner, who was the then Additional

Commercial Tax Officer, Bhubaneswar-IV Circle. The other accused

were ShriAjaya Kumar Das, OFS-I, the then Joint Commissioner of

Commercial Taxes of Puri Range, Bhubaneswar, Smt.

HarapriyaPanigrahi, the then Additional Commercial Tax Officer,

Bhubaneswar-IV Circle, ShriTrilochanSethi, also the then Additional

Commercial Tax Officer, Bhubaneswar-IV Circle, and Shri Chita Behera,

Proprietor of M/s. C.B. Steels, Ward No. VIII, Khandagiri, Bhubaneswar.

Another FIR, bearing No. 20, was also lodged on the same day,

21.04.2010, against five individuals, including the petitioner, in relation

to another case. The accused in this FIR included Shri Narendra Kumar

Swain, OFS-I, the then Assistant Commissioner of Commercial Taxes of

Puri Range, Bhubaneswar, and others, including Shri Rajani Lal

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Sribastav, Proprietor of M/s. R.L. Enterprises, Ward No. VIII,

Khandagiri, Bhubaneswar.

(v) Subsequently, Vigilance Case Nos. 19 and 20 of 2010 were initiated in

the Court of the Special CJM, Bhubaneswar. In connection with these

cases, the petitioner moved this Court through BLAPL Nos. 8168 and

8100 of 2010 for anticipatory bail. This Court, vide order dated

20.05.2010/ directed that in the event of the petitioner's arrest in relation

to Vigilance P.S. Case Nos. 19 and 20 of 2010, corresponding to V.G.R.

Case Nos. 19 and 20 of 2010 pending before the learned Special CJM,

Bhubaneswar, he should be released on bail on such terms and

conditions as the Arresting Officer may deem fit. Despite the lodging of

the FIRs in 2010/ to the best of the petitioner's knowledge/ a charge

sheet has yet to be filed in the case.

(vi) While the petitioner was continuing in his duties as the Assistant

Financial Advisor-cum-Under Secretary to the Government in the

School & Mass Education Department, he retiredafter attaining the age

of superannuation on 31.12.2017. Following his retirement, the

petitioner submitted his Pension Papers in triplicate to the opposite

party No. 2 on 11.01.2018, requesting the sanction of Pension, Death-

cum-Retirement Gratuity, and the Commutation Value of Pension in his

favour.

(vii) The Joint Secretary to the Government of the opposite party No. 2, in its

letter No. 18786 dated 28.08.2018/ transmitted the petitioner's Pension

Papers to the Joint Secretary to the Government, Finance Department,

along with the original Service Book, for the sanction of pensionary

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benefits, including Death-cum-Retirement Gratuity, Commutation

Value of Pension, and Provisional Pension, in accordance with the rules.

The letter further mentioned that after the sanctioning of the pension

and pensionary benefits, the Pension Papers should be forwarded to the

Accountant General (A&E), Orissa, Bhubaneswar, for the issuance of

the Pension Payment Order, Gratuity Payment Order, and Commuted

Value of Pension in the petitioner's favour. Additionally/ the letter

indicated that a no-due certificate regarding the government quarter

had been received from the G.A. & P.G. (Rent) Department. A copy of

this letter was also communicated to the petitioner via Memo No. 18787

dated 28.08.2018, which listed the documents submitted by the Joint

Secretary of the School & Mass Education Department to the Joint

Secretary of the Finance Department.

(viii) Upon receiving the copy of the letter to the writ application, the Under

Secretary to the Government of opposite party No. 1 informed the Joint

Secretary of opposite party No. 2 via letter No. 34484 dated 02.11.2018

that the department data sheet (in duplicate) had not been submitted

with the pension orders as mentioned in the letter dated 28.08.2018.

Consequently, opposite party No. 1 requested opposite party No. 2 to

provide the missing data sheet promptly for processing the sanction of

the petitioner's pensionary benefits.

(ix) The Under Secretary of opposite party No. 2, in his letter No. 25259

dated 19.11.2018, complied with the necessary requirements as

requested by opposite party No. 1. The same was communicated to the

petitioner via Memo No. 25260 dated 19.11.2018.

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 19-Nov-2024 16:06:46

II. SUBMISSIONS ON BEHALF OF THE PETITIONER:

4. Learned counsel for the Petitioner earnestly made the following

submissions in support of his contentions.

(i) The petitioner has completed the qualifying period as required under

the provisions of the Pension Rules, and the authority under whom the

petitioner last worked, upon his attainment of the age of

superannuation, took steps to submit all necessary documents to the

Principal Employer, i.e., opposite party No. 1, for the sanction and

release of the petitioner's retirement dues. Even the additional

requirements pointed out by opposite party No. 1 were duly complied

with by opposite party No. 2. Therefore, the petitioner is entitled to his

retirement benefits in accordance with the Orissa Civil Service Pension

Rules, 1992. However, despite this, the petitioner has only been paid

provisional pension instead of the regular pension. It is humbly

submitted that although the pension papers were submitted by opposite

party No. 2 to Opposite party No. 1, due to the inaction of opposite

party No. 1, the regular pension has yet to be sanctioned and released in

favour of the petitioner.

(ii) The petitioner, who is entitled to receive his regular pension, Death

Cum Retirement Gratuity, and Commuted Value of Pension, has been

subjected to undue suffering through no fault of his own. It is

respectfully submitted that since the regular pension has not been

sanctioned and released, the Commuted Value of Pension has also not

been granted to the petitioner. The petitioner, having superannuated on

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31.12.2017, should have received his retirement benefits on the next pay

day, i.e., in January 2018. However, due to the inaction of the concerned

authorities, the petitioner has yet to receive his retirement benefits,

including the Death Cum Retirement Gratuity, Commuted Value of

Pension, and regular pension.

(iii) Since the pension papers of the petitioner have already been submitted

and are pending for more than two years due to the inaction of the

authorities, the petitioner is entitled to interest on the arrear dues of his

pension. The delay in the payment of retirement dues has caused

significant harassment and mental agony to the petitioner and his

family, through no fault of his own. The petitioner, who is fully

dependent on his retirement benefits, has been suffering due to the non-

release of his regular pension and other retirement dues. As a result, the

petitioner and his family members are enduring unnecessary hardship.

III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:

5. Learned counsel for the State/Opposite Parties earnestly made the

following submissions in support of his contentions:-

(i) The petitioner, though retired from Government service on

superannuation with effect from 31.12.2017, has not had his final

pensionary benefits sanctioned due to the pendency of two vigilance

cases against him.

(ii) The first case concerns allegations of causing wrongful loss to the

Government by using waybills without proper scrutiny of the

utilization statement in connection with the transportation of iron

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 19-Nov-2024 16:06:46

materials. The second case, Bhubaneswar Vigilance P.S. Case No. 20 of

2010, involves charges of showing undue official favour to a non-

existing private firm by issuing TIN and waybills without verifying the

utilization certificate, leading to a wrongful loss to the Government due

to non-payment of VAT. This situation has been communicated by the

G.A. (Vigilance) Department in their letter No. 5135/VCO(B) dated

26.12.2019.

(iii) In the meantime, the prosecution has been initiated against the

petitioner in both Bhubaneswar Vigilance P.S. Case No. 19 and Case No.

20, dated 21.04.2010. These cases have been communicated to the G.A.

(Vigilance) Department, Cuttack, through their letters No. 21426/Gen

dated 22.09.2020 and No. 19623/Gen dated 28.08.2020. As a result of the

pendency of these vigilance cases, the department has been unable to

sanction the retirement benefits of the petitioner.

(iv) Hence, the averment of the petitioner that he is entitled to interest on

the arrear dues of pension due to the non-payment of his retirement

dues is not justified, as criminal prosecution is still pending against him

and his conduct remains under a cloud. Therefore, in accordance with

the prevailing rules and settled principles of law, the authorities have

made the appropriate decision in the matter.

(v) He, accordingly, prays for dismissal of this Writ Petition.

IV. COURT'S REASONING AND ANALYSIS:

6. I have heard rival contentions and perused relevant documents.

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Location: ORISSA HIGH COURT, CUTTACK Date: 19-Nov-2024 16:06:46

7. It is an undisputed fact that the petitioner served as the Commercial Tax

Officer, Bhubaneswar-IV Circle, Bhubaneswar. Subsequently, two

criminal cases were filed against the petitioner by the Vigilance

Department, which are still pending; however, the petitioner has not

been convicted in any of the cases. Importantly, no penalty has been

imposed on the petitioner in formal departmental proceedings against

the petitioner. The central legal issue to be determined in this writ

petition is whether the pendency of criminal cases can serve as a valid

reason to withhold the payment of the petitioner's retiral benefits,

including gratuity, regular pension etc..

8. In service law jurisprudence, pension and pensionary benefits are

viewed as a fundamental right and an integral aspect of social security

for retired government employees. Pension is not considered a mere

gratuity or reward; rather, it is a deferred component of earned income,

representing years of dedicated public service.

9. In a catena of judgments, the Supreme Court of India has consistently

emphasized that pension is a right and not a privilege, asserting that the

right to pension flows from the employment relationship itself. This

security is intended to ensure a dignified and financially stable post-

retirement life for former employees, recognizing their contribution to

the state. Withholding or delaying pension benefits undermines this

purpose and has significant implications, often leaving retirees

vulnerable.

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 19-Nov-2024 16:06:46

10. In D.S. Nakara v. Union of India,1 the Supreme Court delved into the

intrinsic purpose and essential nature of pension as a post-retirement

right. The relevant excerpt is produced hereinbelow:

"The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalised? Is the employer, which expression will include even the State, bound to pay pension? Is there any obligation on the employer to provide for erstwhile employee even after the contract of his employment has come to an end and the employee has ceased to rendered service? What is pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition."

11. The Court raised pivotal questions regarding the justification for

providing pension benefits, especially in terms of the need for a more

liberalized pension regime. It examined whether the employer,

including the State, holds an obligation to provide pension even after

the cessation of the employment contract, probing the underlying

objectives and rationale of such a benefit. The judgment scrutinized

whether pension serves any significant public interest, particularly in

preventing unjust distinctions between retirees based on the timing of

their retirement. The Court stressed that addressing these questions is

crucial to ensuring equitable and fair treatment, thereby advocating for

a consistent, just approach in the administration of retirement benefits

to protect the welfare and dignity of retired employees.

(1983) 1 SCC 305

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12. Then, the Court in Nakara (supra) answered the questions itself in the

following manner:

"20. The antiquated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in DeokiNandan Prasad v. State of Bihar and Ors.: wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any one's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied maters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab and Anr. v. Iqbal Singh.

......

29. Summing up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and, therefore, one is required to fall back on savings. One such saving in kind is when you give your best in the hey-day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to a government employee is earned by rendering long and efficient service and

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 19-Nov-2024 16:06:46

therefore can be said to be a deferred portion of the compensation or for service rendered. In one sentence one can say that the most practical raison d'etre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon Indian courts have thus mandated that pensionary benefits be disbursed promptly and without undue hindrance, reinforcing that any pension-related delays, particularly due to administrative or disciplinary pendency, should only be in exceptional cases and strictly follow due process. This jurisprudence underscores the importance of treating pension as a constitutional entitlement, deeply embedded in principles of justice, equity, and good governance."

13. It is well settled that the right to pension cannot be taken away by a

mere executive fiat or administrative instruction. Pension and gratuity

are not mere bounties, or given out of generosity by the employer. An

employee earns these benefits by virtue of his long, continuous, faithful

and un-blemished service.

14. The right to receive pension of a public servant has been held to be

coveredunder the "right to property" under the now repealed Article

31(1) of theConstitution by a Constitution bench of the Supreme Court

in Deokinandan Prasad v. State of Bihar,2 which ruled that:

"30. The question whether the pension granted to a public servant isproperty attracting Article 31(1) came up for consideration before thePunjab High Court in Bhagwant Singh v. Union of India [AIR 1962Punj 503] . It was held that such a right constitutes "property" andany interference will be a breach of Article 31(1) of the Constitution.It was further held that the State cannot by an executive order curtailor abolish altogether the right of the public servant to receive

(1971) 2 SCC 330

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pension.This decision was given by a learned Single Judge.

This decision wastaken up in letters patent appeal by the Union of India. Letters PatentBench in its decision in Union of India v. Bhagwant Singh [ILR 1965Punj 1] approved the decision of the learned Single Judge. The LettersPatent Bench held that the pension granted to a public servant on hisretirement is "property" within the meaning of Article 31(1) of theConstitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on themere denial or cancellation of it. It was further held that the characterof pension as "property" cannot possibly undergo such mutation atthe whim of a particular person or authority.

31. The matter again came up before a Full Bench of the Punjaband Haryana High Court in K.R. Erry v. State of Punjab [ILR1967 Punj&Har 278] . The High Court had to consider thenature of the right of an officer to get pension. The majorityquoted with approval the principles laid down in the two earlierdecisions of the same High Court, referred to above, and heldthat the pension is not to be treated as a bounty payable on thesweet will and pleasure of the Government and that the right tosuperannuation pension including its amount is a valuable rightvesting in a government servant. It was further held by themajority that even though an opportunity had already beenafforded to the officer on an earlier occasion for showing causeagainst the imposition of penalty for lapse or misconduct on hispart and he has been found guilty, nevertheless, when a cut issought to be imposed in the quantum of pension payable to anofficer on the basis of misconduct already proved against him, afurther opportunity to show-cause in that regard must be givento the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 19-Nov-2024 16:06:46

of pension payable is made by the State. It is not necessary for us in the case on hand to consider the question whether before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show-cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant.

......

33. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by sub-article (5) of Article 19. Therefore, it follows that the order, dated June 12, 1968, denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1) of the Constitution, and as such the writ petition under Article 32 is maintainable..."

15. The Supreme Court updated its stance in State of Jharkhand v. Jitendra

Kumar Srivastava3 where, relying on its previous judgements in D.S.

Nakara(supra) and Deoki Nandan Prasad(supra),the court held that

pension and pensionary benefits are like private property and right to

property is a constitutionalright under Article 300A of the Constitution.

(2013) 12 SCC 210

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"14. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300A of the Constitution. It follows that attempt of the Appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.

15. It hardly needs to be emphasized that theexecutive instructions are not having statutorycharacter and, therefore, cannot be termed as 'law' within the meaning of aforesaid Article 300A. On thebasis of such a circular, which is not having force oflaw, the appellant cannot withhold even a part of pension or gratuity. As we noticedabove, so far as statutory rules are concerned, there isno provision for withholding pension or gratuity in thegiven situation. Had there been any such provision inthese rules, the position would have been different."

16. In Dr HiraLal v State of Bihar,4 the Apex Court reiterated that In the

absence of explicit statutory rules/ pension/ as a right in "property/"

must not be withheld, as such action lacks legal validity. Article 300A of

the Constitution of India mandates that no person shall be deprived of

their pension without due authority of law. Accordingly, any attempt

by the State Government to curtail or deny pension, gratuity, or leave

encashment without a supporting statutory framework--and relying

solely on administrative directives--violates this constitutional

guarantee and is therefore untenable.

17. In the present case/ the respondents have withheld the petitioner's

regular pension and pensionary benefits without invoking any statutory

provision. Consequently, their actions in not releasing retirement

AIR 2020 SC 1027

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 19-Nov-2024 16:06:46

benefits, including regular pension and gratuity, lack statutory backing.

Furthermore, the mere pendency of vigilance cases against the

petitioner does not equate to the initiation of criminal proceedings and,

therefore, cannot be used as a basis to halt the petitioner's pension.

18. Mere pendency of vigilance clearance from the vigilance wing cannot

justify withholding release of pensionary benefits for an indefinite