Orissa High Court
Chittaranjan Bhoi vs State Of Odisha And Others ..... ... on 4 February, 2025
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.3439 of 2025
Chittaranjan Bhoi ..... Petitioner
Represented By Adv. -
Lalit Sahu
-versus-
State Of Odisha and others ..... Opposite Parties
Mr. M.R. Patra, ASC
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
04.02.2025
Order No.
01. 1. This matter is taken up through Hybrid mode.
2. Heard learned counsel for the Petitioner as well as learned
Additional Standing Counsel 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 prayed that the Hon'ble Court
may be graciously pleased to direct the Opp. Party
No.1 to 4 sanction/disburse Un-utilized leave salary
amounts may be released in favour of the petitioner
as per application filed by the petitioner vide
Annexure-6, keeping in view of the decision of Apex
Court in Civil Appeal No.1677-1678 of 2020 (Arising
out of SLP(C) No.4722 4723/2022 @ D.No.
37355/2017, W.P(C)No.11384 of 2022, State of
Jharkhand &Ors, Vs Jitendra Kumar Srivastava &
Anr on 14 Aug,2013 G. Nageswar Rao Vs State of
Odisha and Others and W.P (C) NO.14718, And
Rashmi Ranjan Das vs State of Odisha And Others,
vide W.P.(C)No.30120/2023, disposed of on 21,
September 2023 for the interest of justice;
And may further be pleased to pass such
other/further writ/writs, direction/directions,
order/orders as deem fit and proper in fact and
circumstances of the case for the interest of justice
and equity;"
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. 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.
9. With the aforesaid observations/ directions, the writ
application stands disposed of.
Issue urgent certified copy of this order as per Rules.
( Aditya Kumar Mohapatra )
Judge
S.K. Rout
Location: High Court of Orissa, Cuttack Page 4 of 4.
