Orissa High Court
Sukanta Kumar Das vs State Of Odisha & Anr. ..... Opposite ... on 15 May, 2025
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.13781 of 2025
Sukanta Kumar Das ..... Petitioner
Represented By Adv. -
Parsuram Mohapatra
-versus-
State Of Odisha & Anr. ..... Opposite Parties
Represented By Adv. -
S.K. Parhi, A.S.C.
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
15.05.2025
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 :
"In the premises aforesaid, it is humbly prayed that
this Hon'ble Court may be graciously pleased to admit this
Writ Petition and direct Opp. Party No.1 to
sanction/release Unutilized Leave Salary of the Petitioner
within a stipulated time.
And further be pleased to pass any other suitable
order/orders, direction/directions as the Hon'ble Court
may deem just and proper in the facts and circumstances
of the case."
4. Being aggrieved by the inaction of the Opposite Parties in
releasing the unutilized leave salary as is due and admissible to the
petitioner during pendency of the vigilance proceeding & disciplinary
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 not entertaining 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 keeping in view the judgment of this Court
in the case of Chiitaranjan Senapati v. State of Odisha and another
in W.P.(C) No.20808 of 2024 vide judgment dated 06.03.2025 which
has been annexed under Annexure-6 to the writ application 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.
8. Issue urgent certified copy of this order as per Rules.
( A.K. Mohapatra )
Judge
S.K. Rout
Digitally Signed Page 4 of 4.
Location: High Court of Orissa, Cuttack
Date: 17-May-2025 17:50:55
