Orissa High Court
Syed Shahruddin Ahmed vs State Of Orissa And Others . Opp. Parties on 18 March, 2025
Author: A.K. Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.22134 of 2024
An application under Articles 226 and 227 of the
Constitution of India.
Syed Shahruddin Ahmed . Petitioner
Mr. Jayananda Jena, Advocate
-versus-
State of Orissa and others . Opp. Parties
Mr.M.R. Mohanty, A.G.A.
CORAM:
THE HON'BLE MR.JUSTICE ADITYA KUMAR
MOHAPATRA
_____________________________________________________
Date of hearing : 18.03.2025 | Date of Judgment : 18.03.2025
_____________________________________________________
A.K. Mohapatra, J. :
1. The sole grievance of the petitioner in the abovenoted writ
application is with regard to inaction of the Opposite Parties in
sanctioning and releasing the retiral benefits of the petitioner
including the unutilized leave salary and final pension. He has
further prayed for quashing of the order under Annexure-10 to the
writ application.
2. Heard Sri. Jayananda Jena, learned counsel for the petitioner as
well as learned counsel for the State-Opposite Parties. Perused the
writ application as well as the documents annexed thereto. The
factual background leading to the filing of the present writ
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application, in a nutshell, is that the present petitioner while he
was working in the rank of a Jailer has taken retirement from
service on attaining the age of superannuation w.e.f. 30.04.2017.
Preceding his retirement, i.e. 04.10.2016, a departmental
proceeding was wrongly instituted against the present petitioner.
Challenging the initiation of the departmental proceeding the
petitioner approached the learned Odisha Administrative Tribunal
by filing O.A. No.4812 (C) of 2016 and obtained an interim order
of stay on 29.12.2016. Since the petitioner was facing two
departmental proceedings bearing D.P. No.4 of 2017 and D.P.
No.5 of 2018 as well for his involvement in a vigilance
proceeding, the retiral dues including the pensionary benefits of
the petitioner have been withheld by the authorities.
3. The writ petition further reveals that on 17.01.2019, the petitioner
submitted an application for encashment of his unutilized leave of
291 days. On 18.01.2019 he had submitted an application in
Orissa Jail Form No.70 for the early release of his dues. Since the
authorities did not disburse the dues of the petitioner, the
petitioner upon being aggrieved by such inaction submitted the
representation on 02.08.2019 with a specific prayer for an early
release of his leave salary under Annexure-8 to the writ
application. Similarly, another representation was submitted on
21.09.2021. Since no action was taken by the Opposite Parties,
the petitioner was compelled to approach this Court earlier by
filing W.P.(C) No.40648 of 2021. A coordinate Bench of this
Court vide order dated 27.01.2022 disposed of the writ
application with a direction to the Opposite Parties to consider the
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representation of the petitioner in a time bound manner and to
dispose of the same as expeditiously as possible.
4. While the matter stood thus, the Opposite Party No.2 without
proper analysis of the factual background of the case and in
ignorance of the law governing the subject matter of the dispute,
rejected the representation of the petitioner vide order dated
03.03.2022 under Annexure-10 to the writ application. Being
aggrieved by the rejection of his representation vide order dated
03.03.2022, the petitioner has approached this Court by filing the
present writ application.
5. Mr. Jena, learned counsel appearing on behalf of the petitioner at
the outset contended that the Home Department resolution dated
22.08.2024 imposing an embargo on release of the pensionary
benefits of the retired government employees, against whom
vigilance case has been registered, was issued after the retirement
of the present petitioner. He further contended that in the absence
of any specific bar in law i.e. in any of the statute or the rules
framed thereunder, the executive cannot usrup the power to
legislature and by virtue of such executive power they cannot
impose any restriction on the service conditions of the petitioner
which is absent in the statute or the statutory rules. In the
aforesaid context, learned counsel for the petitioner referred to the
judgment of the Hon'ble Supreme Court in Hira Lal vs. State of
Bihar & others reported in AIR 2020 SC 1027. He also referred
to the judgment of the Hon'ble Supreme Court in the case of State
of Jharkhand & others vs. Jitendra Kumar Srivastava &
another reported in (2013) 12 SCC 210. Learned counsel for the
petitioner further referred to the order passed by this Court in
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Pradipta Kumar Jagadev vs. State of Odisha and others (in
W.P.(C) No.11034 of 2024 decided on 06.05.2024). On such
grounds, learned counsel for the petitioner contended that the
impugned order under Annexure-10, rejecting the claim of the
petitioner for encashment of unutilized leave salary for 291 days,
is absolutely illegal and arbitrary and as such the order under
Annexure-10 is liable to be quashed.
6. Learned counsel for the State on the other hand contended that
since both the departmental proceeding as well as vigilance
proceeding is pending against the petitioner, the petitioner is not
entitled to the retiral/pensionary benefits including the benefit of
unutilized leave salary. In course of his argument, learned counsel
for the State also referred to the Finance Department Office
Memorandum No.7493 dated 26.03.2015 and contended that the
State Government has taken a decision that the cash equivalent of
the unutilized leave salary shall not be sanctioned to the retiring
government servant if it is found that a departmental/judicial
proceeding is pending against such government servant on the
date of his retirement. Therefore, learned counsel for the State
contended that since a departmental proceeding as well as a
vigilance proceeding is pending against the petitioner, the
petitioner will be covered under the Office Memorandum dated
26.03.2015. Therefore, he is not entitled to the cash equivalent of
unutilized leave salary. On such grounds, learned counsel for the
State further contended that the Opposite Parties have not
committed any illegality in rejecting the prayer of the petitioner
vide their order under Annexure-10 and as such the writ
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application preferred by the present petitioner is devoid of merit
and is liable to be dismissed.
7. Having heard the learned counsels appearing for both sides, on a
careful analysis of the factual background of the petitioner's case,
this Court is of the view that the factual aspect involved in the
present writ application is not disputed by either side. The only
difference between both sides is with regard to the applicability of
the law so far as it relates to the sanction and disbursal of the
retiral/pensionary benefits as is due and admissible to the
petitioner. Learned counsel for the petitioner, in course of his
argument, confined his prayer to the sanction and disbursal of the
cash equivalent of unutilized leave salary on the ground that there
exists no statutory embargo in releasing such amount in favour of
the petitioner. Therefore, this Court confines the adjudication of
the present writ application to the dispute involving sanction and
disbursement of the cash equivalent of unutilized leave salary.
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
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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. In view of the aforesaid analysis of the legal position, which is
well settled by now, this Court is of the view that the issue
involved in the present writ application requires no further
adjudication in light of the judgment of this Court in Chittaranjan
Senapati's case (supra). Accordingly, this Court has no hesitation
in quashing the impugned rejection order under Annexure-10 and
the same is hereby quashed. Further, the matter is remanded back
to the Opposite Parties with a direction to sanction and disburse
the cash equivalent of the unutilized leave salary for 291 days as
is due an admissible to the petitioner within a period of six weeks
from the date of communication of a certified copy of this order
by the petitioner.
10. With the aforesaid observations and directions, the writ petition
stands disposed of.
(A.K. Mohapatra)
Judge
Orissa High Court, Cuttack
The 18th March, 2025/ Rubi.
Location: High Court of Orissa, Cuttack
