Orissa High Court
Surendranath Sinku vs ) State Of Odisha ..... Opposite Parties on 15 April, 2025
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.10093 of 2025
Surendranath Sinku ..... Petitioner
Represented By Adv. -
Jayananda Jena
-versus-
1) State Of Odisha ..... Opposite Parties
2) The Director Of Mines And Represented By Adv. -
Geology, Odisha Mr.U.C.Behura,AGA
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
15.04.2025
Order No.
01. 1. This matter is taken up through Hybrid mode.
2. Heard learned counsel for the Petitioner as well as
learned Additional Government Advocate for the State-
Opposite Parties. Perused the Writ Petition as well as the
documents annexed thereto.
3. The present Writ Petition has been filed by the Petitioner
with the following prayer :
"It is, therefore, humbly prayed that your
Lordships be pleased to admit the Writ
Application, issue Rule NISI calling upon the
Opposite Parties to show cause and if the
Opposite Parties fail to show cause or show
insufficient cause, issue appropriate writ,
direction and order;
Directing the Opposite Parties to sanction
and release the Unutilised Leave Salary;
And pass such order/s the Petitioner as in
duty bound shall ever pray."
4. Being aggrieved by the decision of the Opposite Parties
in imposing the unutilized leave salary as is due and
admissible to the petitioner during pendency of the vigilance
proceeding, the Petitioner has approached this Court by filing
the present writ application. Learned counsel for the Petitioner
at the outset submitted that there is no bar in law to withhold
the unutilized leave salary during the pendency of the
Disciplinary Proceeding or any criminal proceeding. In such
view of the matter, he further contended that the opposite
Parties be directed to release the unutilized leave salary as is
due and admissible to the Petitioner within a stipulated period
of time.
5. Learned Additional Standing Counsel, on the other hand
contended that since the proceedings both disciplinary as well
as criminal are pending against the Petitioner, the Petitioner is
not entitled to the unutilized leave salary as claimed by him. In
such view of the matter, learned Additional Standing Counsel
submitted before this Court that the authorities have rightly not
release the unutilized leave salary in favour of the Petitioner.
Accordingly, it was submitted that the writ petition is devoid of
merit and the same should be dismissed.
6. Having heard the learned counsels appearing for the
respective parties and on a careful examination of their
submission as well as background facts of the present case,
this Court is of the considered view that in the absence of any
bar in law with regard to release of the unutilized leave salary
particularly in the OCS Pension Rules, 1992 or the OCS (CCA)
Rules, 1962 during pendency of the Disciplinary Proceeding or
Criminal Proceeding, it is not permissible to the authorities to
impose the unutilized leave salary of the Petitioner. Further,
the aforesaid view taken by this Court finds support from the
judgment of the Hon'ble Supreme Court in Hira Lal vs. State of
Bihar and others reported in AIR 2020 SC 1027. In Hira Lal's
case (supra) the Hon'ble Supreme Court has specifically
observed that the circular of the Government dated 22.08.1974
and 31.10.1974 and Government Resolution No.3104 dated
31.07.1980, were merely administrative instructions/ executive
orders. Such circulars/ resolutions were not issued in exercise
of the power under Article 309 of the Constitution and as such
the same cannot be said to have the force of the law.
7. It is pertinent to mention here that a same view has also
been taken by the Hon'ble Supreme Court in State of
Jharkhand and Ors. vs. Jitendra Kumar Srivastava and Ors.
reported in 2013 12 SCC 210, wherein the Hon'ble Apex Court
has specifically observed that the State had no authority or
power to withhold the full amount of pension or gratuity of a
Government servant during the pendency of judicial or
departmental proceedings.
8. On a careful analysis of the submissions made by the
learned counsels for both sides, this Court observes that the
only surviving issue which is required to be adjudicated in the
present Writ Application is no more res integra since a division
bench of this Court in the matter of State of Odisha and
others vs. Nirmal Chandra Satpathy and another bearing
W.P.(C) No.3442 of 2016 vide judgment dated 28.02.2017,
took up for consideration, an issue identical to the one in the
present matter. The Hon'ble division bench, on a careful
analysis of the legal position, came to a categorical conclusion
that in the absence of any statutory rules, the leave
encashment cannot be withheld by the authorities. A similar
view has also been taken by this bench in a recent judgment
in the matter of Chittaranjan Senapati vs. State of Odisha &
another in W.P.(C) No.20808 of 2024 decided vide judgment
dated 6th March, 2025.
9. Keeping in view the aforesaid legal position, this Court is
of the considered view that the Opposite Parties have
committed an illegality in rejecting the claim of the Petitioner
relying upon a Government circular/ resolution which does not
have the force of law in the absence of any specific rules under
Article 309 of the Constitution of India. Merely, on the basis of
such circular/ resolution a legitimate right which has accrued in
favour of the Petitioner cannot be curtailed. Further, the matter
is remanded back to the authorities to consider the matter
afresh and in the event, the Petitioner is entitled to pay
unutilized leave salary as claimed by him then this shall be
calculated, sanctioned and disbursed in his favour within a
period of six weeks from the date of communication of a
certified copy of this order.
10. With the aforesaid observations/ directions, the writ
application stands disposed of.
Issue urgent certified copy of this order as per Rules.
( A.K. Mohapatra )
Judge
RKS
Designation: AR-CUM-Senior Secretary
Reason: Authentication
Location: High Court of Orissa
Date: 16-Apr-2025 17:18:20
