Orissa High Court
Pramod Kumar Mohapatra vs ) State Of Odisha ..... Opposite Parties on 4 February, 2025
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.27515 of 2024
Pramod Kumar Mohapatra ..... Petitioner
Represented By Adv. -
Manas Pati
-versus-
1) State Of Odisha ..... Opposite Parties
2) Engineer-in-chief, Rural Works, Represented By Adv. -
Orissa Mr.M.R.Mohanty,AGA
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
04.02.2025
Order No.
04. 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 :
"The Petitioner therefore prays that your lordships
may graciously be pleased to quash order dated
05.08.2023 under Annexure-6 and direct the Opp.Party
no.1 to release the unutilised leave salary of the
Petitioner forthwith taking into account the decision of
the Hon'ble Apex Court, the decision of learned
Tribunal upheld by this Hon'ble Court and
implementation order of a similar situated employee
under Annexure-3,4 & 5, within a stipulated time.
And pass such order/directions as this Hon'ble
Court may deem fit and proper."
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 Government Advocate, 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 Government Advocate 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.
Learned Additional Government Advocate also submitted that three
vigilance cases are pending against the Petitioner wherein cognizance
has already been taken.
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. 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. Hence the
order dated 05.08.2023 under Annexure-6 is hereby set aside and the
matter is remanded back to the authorities to consider the matter afresh
keeping in view the fact that similar benefit has been extended to the
similarly situated employees.and in the event, the Petitioner is entitled
to unutilized leave salary as claimed by him then the same shall be
calculated, sanctioned and disbursed in his favour within a period of
eight weeks from the date of communication of a certified copy of this
order.
9. 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
Digitally Signed Page 4 of 4.
Location: High Court of Orissa
Date: 06-Feb-2025 11:59:15
