Orissa High Court
Baikuntha Nath Gochhi 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: 18-Nov-2024 19:08:04
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.16056 of 2016
(In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950).
Baikuntha Nath Gochhi .... Petitioner (s)
-versus-
State of Odisha & Ors. .... Opposite Part(s)
Advocates appeared in this case through Hybrid Arrangement Mode:
For Petitioner (s) : Mr. Naresh Chandra Sahoo,
Adv.
For Opposite Party (s) : Mr. Ch. Satyajit Mishra, AGA
Mr. Niranjan Panda-1, Adv.
for O.P.3
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-13.08.2024
DATE OF JUDGMENT: -08.11.2024
Dr. S.K. Panigrahi, J.
1. The Petitioner, through this Writ Petition, seeks a direction from this
Court to the Opposite Parties to release his retirement benefits,
including gratuity, arrear salary, regular pension, and arrear
differential salary, in his favor.
I. FACTUAL MATRIX OF THE CASE:
2. The facts of the case is as follows:
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 18-Nov-2024 19:08:04
(i) The Petitioner was working as a Senior Assistant under the Secretary to
Government, Housing and Urban Development Department when vide
Memo No.27662 dated 19.06.1992 the Opp. Parties directed that the
employees who are continuing on ad hoc basis against the posts of Jr.
Assistant, Sr. Assistant and Head Asst. should stand reverted and
formal orders of reversion may be issued by the Municipal Council
prior to 30.06.1992.
(ii) The petitioner and five others filed O.J.C.No.5220 of 1992 before this
Court praying, inter alia, to quash the order dated 19.06.1992 issued by
the under Secretary to Government, Urban Development Department
and consequential order dated 01.10.1992 directing reversion of the
Petitioner and also prayed for regularization of the service. After
hearing the parties, this Court disposed of O.J.C. No.5220 of 1992 vide
order dated 22.02.1993. The operative part of the order dated 22.02.1993
of this Court is herein below:
"Taking into account the entire matter/ it is our considered
view that the petitioners should continue in the promotional
post they have been holding since long and the State
Government and the Director shall consider the
recommendation of the Municipality for regularization of
their service and pass appropriate order expeditiously. The
consideration should be made in accordance with the
provisions of the Rule. In case it is decided that the petitioners
or any one of them will not be continued in the promotional
post, then reasoned order should be communicated to the
employees concerned. It is ordered accordingly."
(iii) While the matter stood thus, vide order dated 11.06.1993, the Petitioner
was reverted to the Post of Junior Assistant. The petitioner, as Junior
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Location: ORISSA HIGH COURT, CUTTACK
Date: 18-Nov-2024 19:08:04
Assistant on attending the age of superannuation under the provisions
of Rule 19 of Orissa Municipal Corporation Rules, 2004 with effect from
30.9.10 vide letter dated 01.07.2010.
(iv) The Petitioner made application for pension which has been dealt with
BMC. The Petitioner is getting provisional pension w.e.f. 01.10.2010.
After superannuation of the Petitioner, the Petitioner received notice
No.26493 dated 7.12.2010 directing the Petitioner to comply with the
advances of Rs.4,33,124.00/- received by him while serving as Store
Keeper in BMC within 15 days of receipt of the letter otherwise the
above outstanding amount will be adjusted against his retirement dues.
In compliance with the notice dated 7.12.2010, the Petitioner submitted
original vouchers of Rs.5,39,555/- dated 23.12.2010, 28.12.2010,
31.12.2010 and 03.01.2011 against the advance of Rs.4,33,124/- received
by the Petitioner.
(v) All of a sudden, the Petitioner received a letter No.3895 dated
15.02.2011 of the Chief Finance Officer, BMC addressed to the
Establishment Officer, BMC, wherein it is stated that Rs.78,802 is
recovered from the Petitioner against excess payment made due to re-
fixation of pay and revision.
II. SUBMISSIONS ON BEHALF OF THE PETITIONER:
3. Learned counsel for the Petitioner earnestly made the following
submissions in support of his contentions:
(i). The Opp. Parties/ following the Petitioner's superannuation/ issued a
notice dated 15.02.2011 directing recovery of an alleged excess amount.
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 18-Nov-2024 19:08:04
This notice was quashed by this Court through its judgment dated
14.12.2021 in W.P.(C) No.15286 of 2011.
(ii). In W.P.(C) No.19379 of 2010, this Court, by its order dated 18.03.2019,
directed the settlement of the quarter by B.M.C. Additionally, in order
dated 23.12.2019 passed in CONTC No.2678 of 2019, similar directions
were issued.
(iii). Furthermore, in RVWPET No.145 of 2021, this Court, vide orders dated
02.02.2023 and 20.07.2023, and in W.A. Nos.646/647 of 2023 vide order
dated 01.05.2023, confirmed its earlier directions, save for requiring the
Housing & Urban Development Department to assist B.M.C. in the
process as and when necessary.
(iv). After the Petitioner's superannuation/ a notice dated 07.12.2010 was
issued for clearance. In response, the Petitioner submitted the original
vouchers on various dates between 23.12.2010 and 03.01.2011, and
subsequently provided details, including voucher numbers and
amounts totaling Rs.5,39,588/-, through letters dated 18.06.2011 and
18.07.2011. Opposite Party No.3 (B.M.C.) has acknowledged these
submissions.
(v). Upon the Petitioner's superannuation on 30.07.2011/ the Deputy
Director of B.M.C. issued a notice directing the submission of audit
compliance. On 02.08.2011, the Petitioner provided the required
compliance to B.M.C. in full. The Chief Auditor, B.M.C., submitted an
audit compliance report to the Audit Officer, Local Fund Audit, on
10.07.2013. Subsequent correspondence from the Chief Auditor to the
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Location: ORISSA HIGH COURT, CUTTACK
Date: 18-Nov-2024 19:08:04
Audit Officer, dated 17.12.2019, indicates that no conclusive decision
has been taken to date.
(vi). With respect to objections regarding excess payment of Rs.78,802/- and
non-clearance of the quarter, these issues are no longer tenable in light
of the judgments of this Court. Regarding the audit objections and
advances taken, the Petitioner has already complied, which has been
duly admitted by the Opposite Parties.
(vii). It is further submitted that, given the significant lapse of time, any
recovery is now impermissible under the law, as established by the
judgment of this Court in W.P. No.15286/2010, as well as by precedents
set by the Supreme Court and various High Courts. .
III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES::
4. Per contra, learned counsel for the Opposite Parties No.1 and 2 intently
made the following submissions:
(i). It came to notice of Government in H & UD Department that a number
of employees in different ULBs were continuing on ad hoc basis
unauthorizedly, most of them were given by the concerned municipal
council without taking permission of Government for such
appointment on the teeth of imposition of ban. Accordingly, direction
to all ULBs including BMC that employees who are continuing on ad
hoc basis against post of junior Assistant, Sr. Assistant and Head
Assistants are to be revoked so as to enable the other senior employees
for promotion duly recommended by the selection Board.
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 18-Nov-2024 19:08:04
(ii). In the present case, the petitioner was illegally promoted by the then
Municipality (now Municipal Corporation). Hence, the outcome is that
the reversion of the petitioner to the post of Jr. Asst. was correct.
(iii). The petitioner was found by the Audit Section that he had taken
advance from 1989 to 2003. He submitted some papers for adjustment
of advance long after his retirement in the year 2012. But same was not
finalized by audit. The total advance taken by the Petitioner is
Rs.9,55,445/- which includes advance of Rs.5,33,224/- plus audit
recovery Rs. 4,22,221/-. But the petitioner is entitled from his service
benefit is approximately Rs.3,97,142/- .
(iv). It is submitted that neither the petitioner complied the Audit objection
nor did he make appeal under Section 11 of Local Fund Audit Act
(LFA) before the Competent Authority seeking dropping of the audit
charges. The LFA is not a party to the Writ Petition.
(v). The Chief Audit Officer of BMC has made a correspondence to L.F
Audit regarding compliance of Audit objection in case of
Baikunthanath Gochi (Petitioner) and to intimate the municipal office
for onwards action in view of order dated 11.12.2019 passed in W.P.(C)
No- 16056/2016.
(vi). The petitioner submitted that relating to quarter allotted to him being a
Tenament/slum quarter, this Court has directed the BMC for taking a
decision for settlement of quarter. It is further submitted that as against
the said decision, the BMC filed W.A No. 647/2021 (disposed of on
01.05.2023). It was directed that the settlement of tenement house is
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 18-Nov-2024 19:08:04
within the power of Government, which is yet to take decision in that
respect.
(vii). In the order dated 25.07.2008, passed in W.P.(C) No.9052/2007, this
Court also directed the allottee of quarter during their service period
are bound to vacate the quarter after retirement from service.
(viii). The petitioner had filed an affidavit regarding recovery of amount Rs.
78,802/- which was paid as excess payment before his reversion to Jr.
Asst. which this Court has quashed. But, the petitioner has not said that
the same is a component of Audit/part amount of objection within
Rs.9,55,445/- or not. The petitioner's claim that he is entitled to
Rs.16,29,000/-.
(ix). Hence, with disputed facts given by the petitioner and his non-
compliance of audit objection besides other conditions, the petitioner is
not entitled to the relief sought for. The writ petition is liable to be
dismissed.
5. Learned counsel for the Opposite Party No.3 intently made the
following submissions:
(i) The petitioner is liable to comply with the audit report and clear of
dues as per audit objections. He has taken advance during his
incumbency as store Asst. of Bhubaneswar Municipal Corporation,
Bhubaneswar, without adjustment of the advances taken by him and
compliance of audit objection, the amount towards such aspects comes
to Rs.9,55,445/- as per the office objection.
(ii) Though the petitioner is entitled to a sum of Rs.3,97,142/- towards his
arrear pension and gratuity etc, but it is subject to recovery of the
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 18-Nov-2024 19:08:04
amount payable by the petitioner or adjustment of the advance taken
by him.
(iii) The petitioner during his service he was allotted a quarter as an
employee of Bhubaneswar Municipal Corporation, Bhubaneswar, but
although the petitioner has retired with effect from 30.09.2010, but the
quarter has not yet been vacated by him.
(iv) The settlement of his dues has not yet been made and the petitioner is
responsible for the said delay in the matter. As a matter of fact most of
the advances were taken from 1989 to 2003 but he submitted papers for
adjustment of advance after his retirement in the year 2012 which are
not finalized by the Audit Section.
(v) The petitioner has earlier filed OJC No.5220 of 1992 which was finally
disposed on 22.02.1993 directing the authority to take a decision
regarding regularization of petitioner as Sr. Assistant and after
consideration of all materials it was decided by the authority on
11.02.1993 that the petitioner was rightly reverted to the post of Jr.
Assistant. He continued as Junior Asst. and retired as such with effect
from 30.09.2010.
IV. COURT'S REASONING AND ANALYSIS:
6. Heard rival contentions and perused documents on record.
7. It is well-settled that salaries and pensions are due as a matter of right
to employees, and, as the case maybe, to former employees who have
served the State. Since, the petitioner rendered his services till
superannuation as a government servant, his entitlement to the
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 18-Nov-2024 19:08:04
payment of salary is intrinsic to the right to life under Article 21 and to
right to property which is recognized by Article 300A of the
Constitution.
8. A similar matter was confronted by the Supreme Court in the case of
State of Andhra Pradesh & Anr v. Smt. Dinavahi Lakshmi Kameswari1
wherein it was observed that:
"The direction for the payment of the deferred portions of the
salaries and pensions is unexceptionable. Salaries are due to
the employees of the State for services rendered. Salaries in
other words constitute the rightful entitlement of the
employees and are payable in accordance with law. Likewise, it
is well settled that the payment of pension is for years of past
service rendered by the pensioners to the State. Pensions are
hence a matter of a rightful entitlement recognised by the
applicable rules and regulations which govern the service of
the employees of the State."
9. Further, in State of Kerala and others v. V. Padmanabhan Nair,2 the
Supreme Court held that prompt payment of retirement benefits is the
duty of the Government and any failure in that direction will entail the
Government liable to pay penal interest to the government servant. It
was further held that gratuity should be paid on the date of retirement
or on the following day and pension should be paid at the expiry of the
following month. The relevant paragraphs are as follows:
"The instant case is a glaring instance of such culpable delay
in the settlement of pension and gratuity claims due to the
Civil Appeal No. 399 of 2021 (Supreme Court)
(1985) 1 SCC 429
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 18-Nov-2024 19:08:04
respondent who retired on 19.5.1973. His pension and
gratuity were ultimately paid to him on 14.8.1975, i.e., more
than two years and 3 months after his retirement and hence
after serving lawyer's notice he filed a suit mainly to recover
interest by way of liquidated damages for delayed payment.
The appellants put the blame on the respondent for delayed
payment on the ground that he had not produced the requisite
LP.C. (last pay certificate) from the Treasury Office under
Rule 186 of the Treasury Code. But on a plain reading of Rule
1 86, the High Court held-and in our view rightly-that a duty
was cast on the treasury Officer to grant to every retiring
Government servant the last pay certificate which in this case
had been delayed by the concerned officer for which neither
any justification nor explanation had been given. The claim
for interest was, therefore, rightly, decreed in respondent's
favour.
Unfortunately, such claim for interest that was allowed in
respondent's favour by the District Court and confirmed by
the High Court was at the rate of 6 per cent per annum
though interest at 12 per cent had been claimed by the
respondent in his suit. However, since the respondent
acquiesced in his claim being decreed at 6 per cent by not
preferring any cross objections in the High Court it could not
be proper for us to enhance the rate to 12 per cent per annum
which we were otherwise inclined to grant."
10. Similar sentiment has been echoed in Dr. Uma Agarwal v. State of
U.P.3 wherein the Supreme Court has held that strict adherence to rules
is essential to avoid litigation and delays in settling retiral benefits,
ensuring retired government servants receive their rightful pensions on
time, and courts may consider prescribed timelines and relevant factors
(1999) 3 SCC 438.
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 18-Nov-2024 19:08:04
when awarding interest for delayed payments. The relevant excerpt is
produced hereinbelow:
"We have referred in sufficient detail to the Rules and
instructions which prescribe the time- schedule for the various
steps to be taken in regard to the payment of pension and
other retiral benefits. This we have done to remind the various
governmental departments of their duties in initiating various
steps atleast two years in advance of the date of retirement. If
the rules/instructions are followed strictly much of the
litigation can be avoided and retired government servants will
not feel harassed because after all, grant of pension is not a
bounty but a right of the government servant. Government is
obliged to follow the Rules mentioned in the earlier part of this
order in letter and in spirit. Delay in settlement of retiral
benefits is frustrating and must be avoided at all costs. Such
delays are occurring even in regard to family pensions for
which too there is a prescribed procedure. This is indeed
unfortunate. In cases where a retired government servant
claims interest for delayed payment, the Court can certainly
keep in mind the time-schedule prescribed in the
rules/instructions apart from other relevant factors applicable
to each case."
11. In 1992, the petitioner, along with five others, filed a petition (O.J.C. No.
5220 of 1992) before this Court, seeking to nullify the order dated
19.06.1992 issued by the Under Secretary of the Urban Development
Department. This order, along with a subsequent directive on
01.10.1992, led to the petitioner's reversion from a higher post to a
lower post. Additionally, the petitioners requested for regularization of
their service in the promotional positions they had been holding. After
hearing both sides, this Court resolved the matter in an order dated
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Location: ORISSA HIGH COURT, CUTTACK
Date: 18-Nov-2024 19:08:04
22.02.1993. The key portion of the said order stated that considering all
aspects of the case, recommended that the petitioners should retain
their promotional posts, which they had held for a significant period.
This Court also directed the State Government and the Director to
review the Municipality's recommendation for their regularization and
promptly take a decision. The court instructed that this consideration
be conducted in line with the relevant rules. If any of the petitioners
were to be removed from their promotional posts, the authorities were
required to provide a written explanation to the affected individuals.
12. Subsequently, on 11.06.1993, an order was issued reverting the
petitioner to the position of Junior Assistant. In this role, the petitioner
continued until reaching the mandatory retirement age under Rule 19
of the Orissa Municipal Corporation Rules, 2004, officially retiring on
30.09.2010 as confirmed by a letter dated 01.07.2010.
13. Following his retirement, the petitioner applied for a pension, which
was processed by the Bhubaneswar Municipal Corporation. Since
01.10.2010, he has been receiving a provisional pension. However, after
his retirement, he received a Notice No. 26493 dated 07.12.2010 from
BMC, directing him to settle an outstanding amount of Rs.4,33,124/-,
which he had obtained as advances while serving as a Store Keeper.
The notice stipulated that the petitioner should repay this amount
within 15 days, failing which it would be deducted from his retirement
benefits.
14. Now, it is well-settled that financial benefits such as arrear salary,
pension, and gratuity are essential entitlements for a retired employee
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 18-Nov-2024 19:08:04
and cannot be withheld due to outstanding amounts claimed by the
employer. Such benefits, accrued through years of service, are
considered vested rights that ensure financial security post-retirement.
Withholding these payments would be unjust and contrary to the
principles of fair administrative practice. Additionally, this Court is not
inclined to address the matter of advances in the present proceedings,
as it is sub judice, meaning that the issue is currently under judicial
consideration in a separate case. Consequently, it would be improper
for the Court to adjudicate on the advances in this context.
15. 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.
16. 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
AIR 2020 SC 1027
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 18-Nov-2024 19:08:04
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 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.
17. The discernible purpose, thus, underlying pension scheme or a statute
introducing the pension scheme must inform interpretative process and
accordingly it should receive a liberal construction and the courts may
not so interpret such statute as to render them inane.
18. The government asserts that the petitioner is indebted to the
department due to advances received during his tenure. However, the
prolonged withholding of his pensionary benefits is unjustifiable,
particularly in light of the persistent delays in the completion of audits,
which have been ongoing for decades. Such delays in the audit process
reflect gross inefficiency within the authority and undermine the
proper administration of claims relating to retired personnel. The
continued retention of the petitioner's pensionary benefits, based on
outdated and incomplete audits, constitutes an unfair deprivation of his
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 18-Nov-2024 19:08:04
lawful entitlements, causing undue financial hardship, and should be
rectified without further delay.
V. CONCLUSION:
19. In light of the aforesaid discussion and having regard to the present
position of law, this Court hereby directs the Opposite Parties to release
the retirement benefits such as gratuity, arrear salary, regular pension,
arrear differential salary in the favour of the Petitioner and pay him
interest at the rate of 6% per annum for delayed payment of gratuity.
The entire process shall be completed within two months from the date
of presentation of copy of this order before the Authority.
20. This Writ Petition is hereby allowed and, accordingly, disposed of.
(Dr. S.K. Panigrahi)
Judge
Orissa High Court, Cuttack,
Dated the 8th Nov., 2024/
