Orissa High Court
Sri Chittaranjan Senapati vs State Of Odisha And Another ... Opposite ... on 6 March, 2025
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.20808 of 2024
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
Sri Chittaranjan Senapati ... Petitioner
- Versus -
State of Odisha and another ... Opposite Parties
For Petitioner ... Mr. Prasanta Kumar Mishra
For Opposite Parties ... Mr. Akshaya Pati,
Additional Standing Counsel
PRESENT:
THE HONOURABLE SHRI JUSTICE ADITYA KUMAR MOHAPATRA
Date of hearing and judgment : 6th March, 2025
Aditya Kumar Mohapatra, J.
1. Heard the learned counsel for the Petitioner as well as learned
counsel for the State-Opposite Parties. Perused the respective
pleadings of the parties as well as the documents annexed thereto.
2. The present writ petition has been filed by the Petitioner with
a prayer to quash the order/letter No.8170/T dated 06.08.2024
under Annexure-2 to the writ petition, so far as it relates to sanction
of unutilized leave salary with a further prayer to direct the
Opposite Party No.1 to sanction and disburse the unutilized leave
salary in his favour within a stipulated period of time.
3. Learned counsel for the Petitioner, at the outset, contended
that the Petitioner, while working as Inspector Motor Vehicles in
OTES Cadre under the Opposite Parties, has retired from service on
attainting the age of superannuation w.e.f. 30.04.2024. In the
present writ petition, the Petitioner seeks to challenge the order
dated 06.08.2024 passed by the Commerce and Transport
Department, Government of Odisha, thereby rejecting his claim for
payment of unutilized leave salary which the Petitioner is entitled
to as per law.
4. Learned counsel for the Petitioner further contended that
while the Petitioner was serving as Motor Vehicles Inspector, he
was entangled in a vigilance case as well as in a disciplinary
proceeding. However, both the proceedings were not concluded by
the time the Petitioner retired from service. He further contended
that after retirement from service, the Petitioner approached the
Opposite Parties for payment of the financial dues in lieu of
unutilized leave salary. The same having been rejected by the
Opposite Parties by virtue of the impugned order dated 06.08.2024
under Annexure-2, the Petitioner seeks to challenge the same in the
present writ petition. Learned counsel for the Petitioner further
contended that the claim of the Petitioner has been rejected on the
ground that such unutilized leave salary has not been sanctioned in
favour of the Petitioner due to pendency of the vigilance case and
disciplinary proceeding against him. Accordingly, the pension
papers and the original Service Book of the Petitioner has been
returned by the competent authority with a request to take
appropriate action under Rule-66 of O.C.S. (Pension) Rules, 1992.
5. In course of his argument, learned counsel for the Petitioner
contended that Rule-66 of the O.C.S. (Pension) Rules, 1992 has no
application to the facts of the Petitioner's case, as no such provision
exists permitting the authorities to withhold the unutilized leave
salary in a case where a criminal case as well as a disciplinary
proceeding is pending against the employee. He further contended
that there exists no statutory provision to withhold the unutilized
leave salary as is due and admissible to the present Petitioner. In
such view of the matter, learned counsel for the Petitioner
submitted that the conduct of the Opposite Party No.1 in rejecting
his claim for sanction and disbursal of the unutilized leave salary
for a period of 300 days is highly illegal and arbitrary. Further,
referring to the judgment of the Hon'ble Supreme Court in the case
of State of Jharkhand & others Vs.- Jitendra Kumar Srivastava &
another, reported in AIR 2013 SC 3383, learned counsel for the
Petitioner submitted that the executive instructions do not have
statutory character and, therefore, the same cannot be termed as law
within the meaning of the Article 300A of the Constitution of India.
Since the monetary value equivalent to unutilized leave salary can
very well be considered as a property within the definition of
Article 300A of the Constitution of India, the Petitioner cannot be
deprived of such benefits in the absence of any statutory provisions.
Moreover, an executive instruction does not have the force of law
and no provision in any of the statutes permit the Opposite Parties
to withhold such benefits being extended to the employees/officers
who are otherwise entitled to such benefits as per law.
6. In the aforesaid context, learned counsel for the Petitioner
also referred to the order dated 28.02.2017 passed by a Division
Bench of this Court in W.P.(C) No.3442 of 2016 (in the case of
State of Odisha and Others v. Nirmal Chandra Satapathy and
another). In the aforesaid case, the Hon'ble Division Bench dealt
with a matter involving issues identical to the one involved in the
present case, where the unutilized leave salary was withheld on the
ground of pendency of a vigilance case as well as a disciplinary
proceeding. While referring to the judgment in Jitendra Kumar
Srivastava's case (supra), the Hon'ble Division Bench has come to
a conclusion that in the absence of any statutory rules, the leave
encashment cannot be withheld by the authorities. Moreover, it has
also been held that the contention of the learned Additional
Government Advocate that the provision contained in Rule-20 of
the Orissa Leave Rules, 1966 is attracted to the case, was also
rejected by the Hon'ble Division Bench in the aforesaid order.
Accordingly, the writ petition preferred by the State-Opposite
Parties was dismissed while upholding the order passed by the
learned O.A.T. dated 14.08.2015 in O.A. No.2037 of 2015
directing the Petitioners to release the unutilized leave salary.
7. Learned Additional Standing Counsel appearing for the State-
Opposite Parties, on the other hand, referring to the counter
affidavit filed on behalf of the Opposite Party No.1 and 2,
emphatically argued that a judicial proceeding in the shape of a
vigilance case as well as a disciplinary proceeding was pending
against the Petitioner by the time the Petitioner retired from service
on attaining the age of superannuation. Therefore, learned
Additional Standing Counsel contended that pendency of such
cases disentitled the Petitioner from getting such financial benefits
including the cash equivalent of unutilized leave salary for a period
of 300 days.
8. In course of his argument, learned Additional Standing
Counsel referring to paragraph-7 of the counter affidavit, contended
that the Finance Department, Government of Odisha, has come out
with a Memorandum No.7493 dated 26.03.2015 wherein it has
been stated that a cash amount equivalent to the unutilized leave
salary to the Government servants will not be sanctioned in the
event of their retirement on superannuation if it is found that a
departmental/judicial proceeding is pending against the
Government servant as on the date of their retirement. While
arguing with regard to applicability of Memorandum dated
26.03.2015, he further contended that since both a judicial
proceeding as well as a disciplinary proceeding was pending
against the Petitioner by the time the Petitioner retired from service,
the Petitioner will be automatically covered under the Finance
Department Office Memorandum dated 26.03.2015 and, as such,
the Opposite Parties have not committed any illegality in denying
such benefits to the Petitioner. In such view of the matter, learned
counsel for the State submitted that the Petitioner is not entitled to
the cash equivalent of unutilized leave salary and, as such, the writ
petition is devoid of merit and, accordingly, the same should be
dismissed.
9. Having heard the learned counsels appearing for both the
sides, on a careful analysis of their submissions and upon a careful
examination of the pleadings of the respective parteis as well as the
documents placed before this Court for consideration, this Court
observes that the only issue that falls for determination in the
present writ petition is with regard to the entitlement of the
Petitioner to the cash equivalent of unutilized leave salary and the
rejection thereof by the Opposite Parties vide order dated
06.08.2024 under Annexure-2. It is not disputed by both the sides
that by the time the Petitioner has retired from service, a vigilance
case and a disciplinary proceeding was pending against the
Petitioner. Therefore, in the aforesaid factual background, the case
of the Petitioner is required to be considered by this Court. With
regard to withholding of the cash equivalent of unutilized leave
salary, this Court found that there is no statutory rule or guidelines
which specifically prohibits payment of such benefits to the
employees who are involved in any judicial/disciplinary proceeding
at the time of their retirement from service.
10. So far the applicability of Rule-66 of the OCS (Pension)
Rules is concerned, this Court observes that the same has no
application to the facts of the present case, as the same does not
deal with sanction and disbursal of cash equivalent of unutilized
leave salary and that the same specifically relates to payment of
gratuity. Similarly, the Hon'ble Division Bench of this Court in
Nirmal Chandra Satapathy's case (supra) has taken into
consideration the Finance Department Circular dated 17.12.1991
which was issued under Rule-20 of Orissa Leave Rules, 1966. In
the said context, the Hon'ble Division Bench, by referring to the
judgment of Hon'ble Supreme Court in Jitendra Kumar
Srivastava's case (supra), has categorically held that it is not open
to the State Government to take away a part of the pension or
gratuity or even leave encashment without any statutory provision
under the umbrage of administrative instruction. Moreover, the
circular that has been referred to by the learned counsel for the
State in paragraph-7 of the counter affidavit dated 26.03.2015 is
similar to the one that was under consideration by the Hon'ble
Division Bench in the above noted case.
11. On a careful analysis of the factual background of the present
case, further on close scrutiny of the legal provisions governing the
field of sanction and disbursement of retiral benefits including cash
equivalent of unutilized leave salary, this Court observes that there
is no statutory provision either in the shape of an enactment or rules
prohibiting payment of such amount to the employee who is found
to be involved in a judicial proceeding or a disciplinary proceeding
by the time he retires from Government Service. While saying so,
this Court is aware of the provisions that prohibit payment of
pensionary benefits as well as gratuity in a case where the
Government employee is found to be involved in a
judicial/departmental proceeding on the date of his retirement from
service.
12. The question, therefore, which arises for consideration before
this Court is whether the executive, by virtue of an executive
instruction, can take away the service benefits which the Petitioner
is otherwise entitled to as per law. In the aforesaid context, this
Court would like to refer to the judgment of the Hon'ble Supreme
Court in Jitendra Kumar Srivastava's case (supra). In the said
judgment, the Hon'ble Supreme Court has very categorically
observed that it is not open to the State Government to take away a
part of the pension or gratuity or even leave encashment without
any statutory provision to that effect. Therefore, the Opposite
Parties have committed an error in withholding the leave
encashment of the Petitioner by referring to the executive
instruction dated 26.03.2015 under Annexure-A/2 to the counter
affidavit. Moreover, this Court observes that in the rejection order
dated 06.08.2024, it has not been mentioned that the claim of the
Petitioner was rejected in view of the executive instruction vide
Memorandum dated 26.03.2015 of the Finance Department,
Government of Odisha, under Annexure-A/2 to the counter
affidavit.
13. In view of the aforesaid analysis of the legal as well as factual
position, further relying upon the order passed by the Hon'ble
Division Bench of this Court in Nirmal Chandra Satapathy's case
(supra), this Court is of the view that the impugned order dated
06.08.2024 under Annexure-2 to the writ petition is unsustainable
in the eye of law. Accordingly, the same is hereby quashed.
Further, the Opposite Parties are directed to calculate the cash
equivalent of the unutilized leave salary for a period of 300 days as
is due and admissible to the Petitioner and the same be sanctioned
and disbursed in favour of the Petitioner within a period of two
months from the date of communication of a copy of this judgment.
14. Accordingly, the writ petition stands allowed. However,
there shall be no order as to costs.
(Aditya KumarMohapatra)
Judge
Orissa High Court, Cuttack
The 6th March, 2025/Debasis Aech, Secretary
