Orissa High Court
Jadumani Kishan vs State Of Orissa And Others .... Opposite on 13 October, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR W.P.(C) No.13010 of 2023
Jadumani Kishan .... Petitioner
Mr. S. Choudhury, Advocate
-Versus-
State of Orissa and others .... Opposite
Parties
Mr. S. K. Swain, AGA
W.P.(C) No.9200 of 2022
Krushna Chandra Kandi .... Petitioner
Mr. H.K. Mund, Advocate
-Versus-
State of Odisha and another .... Opposite
Parties
Mr. S. K. Swain, AGA
W.P.(C) No.9950 of 2022
Panchanan Mallick .... Petitioner
Mr. H.K. Mund, Advocate
-Versus-
State of Odisha and others .... Opposite
Parties
Mr. S. K. Swain, AGA
Page 1 of 18
W.P.(C) No.2343 of 2023
Ch. Ramakrishnadu .... Petitioner
Mr. H.K. Mund, Advocate
-Versus-
State of Orissa and others .... Opposite
Parties
Mr. S. K. Swain, AGA
Mr. B.P. Tripathy, Senior Advocate (for O.P.No.2&3)
W.P.(C) No.2399 of 2023
Ramesh Chandra Panda .... Petitioner
Mr. S. Mallick, Advocate
-Versus-
State of Odisha and others .... Opposite
Parties
Mr. S. K. Swain, AGA
W.P.(C) No.2724 of 2023
Ananta Prasad Bag .... Petitioner
Mr. H.K. Mund, Advocate
-Versus-
State of Orissa and others .... Opposite
Parties
Mr. S. K. Swain, AGA
Page 2 of 18
W.P.(C) No.13223 of 2023
Maheswar Kar .... Petitioner
Mr. H.K. Mund, Advocate
-Versus-
State of Odisha and others .... Opposite
Parties
Mr. S. K. Swain, AGA
W.P.(C) No.17002 of 2023
Sarat Chandra Mohanty .... Petitioner
Ms. B. Mishra, Advocate
-Versus-
State of Odisha and others .... Opposite
Parties
Mr. S. K. Swain, AGA
And
W.P.(C) No.23225 of 2023
Krushna Chandra Gouda .... Petitioner
Mr. K. C. Sahu, Advocate
-Versus-
State of Odisha and others .... Opposite
Parties
Mr. S. K. Swain, AGA
Page 3 of 18
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF HEARING:18.07.2025
DATE OF JUDGMENT:13.10.2025
1.
All the writ petitions have been clubbed together and
disposed of by the following judgment as a common question
of law is involved.
2. The writ petitions are filed by the petitioners for a
direction to the opposite parties to sanction provisional
pension in their favour pending decision in connection with
the judicial proceedings assailing withholding of pension and
gratuity in view of the orders of the conviction on the
grounds inter alia that such decision with the stoppage of
provisional pension since 2017 is unjust, arbitrary and not
legally tenable, hence, are liable to be interfered with
followed by consequential directions issued in that regard.
3. The facts of each case are not separately narrated for the
reason that the common challenge is to the non-grant of
provisional pension in favour of the petitioners having been
convicted in the Vigilance proceedings and for the orders of
conviction and sentence pending final decision in appeals
filed by them. The issue involved herein for adjudication is,
whether, the petitioners, who have been convicted in criminal
cases would be entitled to grant of pension including the
provisional pension. From the record, it is made to reveal that
in Vigilance cases, the petitioners faced trial for the offences
under the Prevention of Corruption Act, 1988 and convicted
as a result and being aggrieved of, all of them have filed
appeals pending disposal before this Court. The contention of
the petitioners is that the appeals are not yet disposed of and
since there is a fair chance of success at the end but the
provisional pension has been stopped after the orders of
conviction against each of them, at least, such pension should
be allowed, if not final which was allowed after their
retirement but stood discontinued from 2017 and hence, to
be restored, till the proceedings reach finality with the
disposal of the appeals. It is also stated that there is immense
inconvenience and hardship caused due to the provisional
pension being stopped after years from retirement as some of
them are suffering from various ailments and in dire need of
money to meet the medical expenditures besides to survive
and lead a decent life.
4. Heard learned counsel for the respective parties.
5. Referring to the orders of this Court in W.P.(C) No.6131
of 2023, WA No.2915 of 2023 and SLP(C) No.15926 of
2024, it is brought to the notice of the Court that in an
identical case, provisional pension was allowed to the
petitioners therein and it has been confirmed by the Apex
Court finally. The further submission is that in W.P.(C)
No.16070 of 2025, a similar direction by order dated 13th
June, 2025 was issued by this Court. In Sankar Prasad
Padhy Vrs. State of Orissa and another 2016 (I) OLR 375
cited at the Bar to claim sanction of provisional pension in
favour of the petitioners. Mr. Mund, learned counsel for and
on behalf of the petitioners placed reliance on a decision of
the Karnataka High Court in N.K. Suparna Vrs. Union of
India and others (2004) ILR (Karnataka) 4628 besides
another order of this Court in W.P.(C) No.16070 of 2025
dated 13th June, 2025 to contend that the provisional pension
should be allowed till a final decision is arrived at in the
appeals which are indeed continuation of the original
proceedings notwithstanding the orders of conviction by the
court of 1st instance. Essentially, the argument is that since
the petitioners being aggrieved by the orders of conviction
and sentence have preferred appeals pending before this
Court, it shall have to be held that the judicial proceedings
are in continuation and not yet concluded and therefore, they
are eligible and entitled to the provisional pension pending
conclusion of such proceedings. It is further contended that
the petitioners are to receive the provisional pension on or
after 2017 from the date, on which, it was stopped, till such
time, the appeals are disposed of by this Court. One more
decision is brought to the notice of the Court by Mr. Mallick,
learned counsel for the petitioners of the Gauhati High Court
in Anil Mahanta Vrs. State of Assam, 2023 SCC Online
Gauhati 3660 and also pleaded grant of provisional pension
with the submission that till finality of the judicial
proceedings is attained, the petitioners, should be allowed to
receive it. The contention is that Rule 6 of the Orissa Civil
Service (Pension) Rules, 1992 (hereinafter referred to as 'the
Rules') shall have to be read as and with reference to the
judicial proceedings pending in continuation with the appeals
being filed and therefore, a direction is required to be issued
to the authorities concerned to immediately disburse such
pension awaiting closure of the proceedings with final orders
passed therein. That apart, the Apex Court's decision in State
of Maharashtra Vrs. Chandrabhan Tale AIR 1983 SC
803 is referred to from the side of the petitioners while
demanding grant of provisional pension pending disposal of
the appeals.
6. On the contrary, such a plea advanced by the petitioners
is vehemently objected by the State. Mr. Tripathy, learned
Senior Advocate would submit that the petitioners are not
entitled to even provisional pension in view of Rule 6 of the
Rules. It is further submitted that the provisional pension has
been stopped since 2017 in view of the conviction of the
petitioners and as Rule 6 of the Rules prescribes that grant of
pension is dependent on good conduct of the pensioners, the
sanctioning authority has powers to withhold or withdrawal
pension or part thereof either permanently or for a specified
period, if in case, such pensioners convicted for a serious
crime or a found guilty of gross misconduct, hence, no wrong
or illegality has been committed in the case at hand with the
stoppage of such pension immediately after the orders of
conviction and sentence. It is argued that any such
interpretation for pendency of appeals before this Court as
continuation of judicial proceedings would defeat the very
intent and purport of Rule 6 of the Rules and the petitioners
cannot, therefore, be allowed the provisional pension. Mr.
Swain, learned AGA for the State justifies the decision of the
authorities concerned for having discontinued the provisional
pension in favour of the petitioners, as all of them stood
convicted for the charges levelled and in view of Rule 6 of
the Rules. It is further submitted that the argument advanced
from the side of the petitioners regarding the pendency of the
judicial proceedings in view of the appeals filed by them
being continuation of judicial proceedings referring to Rule
66 of the Rules is misconceived since because a Govt.
servant in case found to be convicted for a serious crime or
guilty of grave misconduct is not entitled to pension and
gratuity and as there has been orders of conviction and
sentence with the culmination of the trial, such demand by
the petitioners is impermissible. In course of hearing, Mr.
Swain, learned AGA refers to the following decisions, such
as, K.C. Sareen Vrs. CBI, Chandigarh (2001) 6 SCC 584;
Sanatan Dash Vrs. CM-cum-Director, OPTC Ltd. BBSR
and others, Gangadhar Sahoo Vrs. Grid Corporation of
Orissa Limited and others MANU/OR/0144/2015;
Harihar Kharasudha Pattnaik Vrs. The State of Orissa
MANU/OR/0069/2013; Amrutbhai Khushalbhai Patel
Vrs. State of Gujarat MANU/GJ/1746/2022; Bajrang Deo
Narayan Sinha and others Vrs. The State of Bihar and
others MANU/BH/0403/2012; P.C. Misra Vrs. Union of
India and others 2018 SCC OnLine Del 13199; Preetam
Singh Baghela Vrs. Union of India and others 2021 SCC
OnLine Raj 4175; Syed Rafiuddin Vrs. Govt. of A.P. and
others MANU/AP/0759/2008 and Suresh Dadarao
Suryawanshi Vrs. State of Maharashtra and others 2008
(3) Mh. L.J. 389. A reference is made to the relevant
provisions of the Rules to finally contend that the provisional
pension could not have been allowed to continue and payable
to the petitioners as the judicial proceedings were concluded
followed by the orders of conviction and sentence and
furthermore when, the sentences have been stayed in appeals
and not the conviction as it stand till today.
7. The orders of this Court in W.P.(C) No.6131 of 2023
(Daityari Satapathy and others Vrs. State of Odisha and
others) dated 21st March, 2023 directed grant of provisional
pension till final decision in appeal and it stood confirmed in
W.A. No.2915 of 2023 on the ground of limitation and in
view of the order in W.P.(C) No.15763 of 2021 (State of
Odisha and others Vrs. Surama Manjari Das and others)
finally upheld by the Apex Court in SLP(C) No.9259 of 2023
by order dated 5th April, 2023. The said dismissal order dated
15th December, 2023 in WA No.2915 of 2023 has been
confirmed in SLP(C) No.15926 of 2024, however, keeping
the question of law open. Admittedly, in spite of an order of
conviction by the learned Trial Court due to pendency of
appeal, this Court in Daityari Satapathy (supra) directed
grant of provisional pension till decision in criminal appeal
filed by the petitioners therein. No such question with
reference to Rules 6 and 66 of the Rules has been considered
in Daityari Satapathy (supra) and since the appeal was filed
and it was with delay, the same was not condoned and
finally, the order in WA No.2915 of 2023 was confirmed by
the Apex Court in SPL dated 9th April, 2025 keeping the
question of law open. The contention of Mr. Mund, learned
counsel for the petitioners is entirely based on the decision in
N.K. Suparna (supra). The other decision in Anil Mahanta
(supra) relied upon and referred to by Mr. Mallick, learned
counsel is on identical ground that the petitioners are entitled
to provisional pension despite the orders of conviction as
appeals are pending before this Court and hence, the judicial
proceedings are stated to be in continuation.
8. While dealing with a case whether to suspend the
conviction of the Apex Court in K.C. Sareen (supra) referred
to from the side of the State, it has been concluded that in
very exceptional cases having regard to all such aspects
including ramification of such suspension is to be considered
observing therein that it would be a sublime public policy to
the effect that a convicted public servant is kept under
disability in spite of the fact that the sentence of
imprisonment awarded to him is kept in abeyance till
disposal of the appeal or revision, as the case may be.
According to Mr. Swain, learned AGA for the State, with
reference to the above decision, unless the conviction is
stayed, which is allowed in exceptional cases, a person is to
be treated as a convict in the eye of law. In other words, it is
suggested that unless under Section 389 Cr.P.C. a Court in
appeal stays the conviction, the person convicted carries the
stigma and therefore, the petitioners, who are found to be
guilty of the offences alleged, it has to be held that in absence
of stay of conviction, they are not entitled to provisional
pension.
9. The contention of Mr. Swain, learned AGA is that the
Apex Court in K.C. Sareen (supra) has observed that
corruption by public servants has reached a monstrous form
and its tentacles have started grappling even the institutions
and impeded the normal and orderly functions of the public
offices and when such a public servant is found guilty of
corruption after an adversarial process of adjudication and by
a court of law, judiciousness demands that he should be
treated as corrupt until exonerated by a superior court and
merely for the fact that an Appellate or Revisional Court has
entertained challenge and is inclined to go into the issues and
findings against him, he should not once again be allowed to
hold public offices until he is judicially absolved. In such
view of the matter, the petitioners, who have been found
guilty of a serious offence, it is the contention of the State
that in view of Rule 6 of the Rules and since the petitioners
are till date to be treated as convicts, notwithstanding the
pendency of the appeals, are not entitled to provisional
pension, when the orders of conviction have not been stayed,
though, the sentences are suspended execution.
10. In Sanatan Dash (supra), this Court held that an appeal
is not continuation of a criminal proceeding and a convicted
person can only receive the benefit if the order of conviction
is stayed. In fact, in that case, the petitioner was in service at
the time when the order of conviction arrived and was
granted provisional pension after superannuation and this
Court held that such sanction of pension is contrary to the
provision of Rule 66 of the Rules, inasmuch as, the provision
is made only during the period after retirement and till the
departmental or judicial proceeding is continued with a
conclusion that any such decision taken by the Authority is
contrary to the Rules and void and further observed that it is
the duty of the Court to strike it down by following the
principle that illegality if committed should not be allowed to
be perpetuated and as such, declared sanction of provisional
pension as illegal. On similar lines, provisional pension was
denied in Gangadhar Sahoo (supra) dismissing the plea that
pendency of criminal appeal could not be said to be
continuance of proceeding in Trial Court. In Harihar
Kharasudha Pattnaik (supra), this Court did not interfere
with the decision towards withdrawal of pension holding that
the same is not an irreversible consequence and can be
restored, in the event, the order of conviction is set aside in
appeal, referring to which, it is contended by Mr. Swain,
learned AGA that stoppage or withdrawal of pension follows
suit after the order of conviction. The decision in Amrutbhai
Khushalbhai Patel (supra) is on the premise of imposing a
penalty of 100% pension cut after the order of conviction and
during the pendency of criminal appeal and demand to quash
it was not entertained with a direction that the authorities
concerned shall have a fresh look at the penalty depending on
the outcome in the appeal filed. In a similar case, the Patna
High Court in Bajrang Deo Narayan Sinha (supra) declined
to interfere withholding of pension on account of conviction
in criminal proceeding with a conclusion that disability
arising therefrom vis-à-vis a public servant at the trial would
also take in its sweep the right to receive pension and
gratuity, particularly when, receipt thereof is not an absolute
right under the relevant Rules with a direction that any such
decision on pension being withheld to be re-examined in the
light of the decision in the appeal. In P.C. Misra (supra), the
Delhi High Court concluded that in the event, the criminal
appeal is allowed, claim of the petitioner therein for pension
and other retiral dues denied to him would be reconsidered.
Likewise, in Preetam Singh Baghela (supra), the Rajasthan
High Court held that admission of appeal or suspension of
sentence does not take away the effect of conviction and the
same remains operative during the pendency of appeal and
therein, the petitioners were dismissed from service and the
order of dismissal attained finality and therefore, the question
of grant of provisional pension in terms of the CCS (Pension)
Rules was ruled out.
11. Referring to the other decisions in Kishorbhai
Nanjibhai Patel, Syed Rafiuddin and Suresh Dadarao
Suryawanshi (supra), the contention of the State is that in
view of the orders of conviction against the petitioners,
irrespective of the appeal filed challenging the same, unless
and until, the conviction is set aside, the provisional pension
cannot be granted to them in view of Rule 6 of the Rules as
the Government has the authority to stop or withhold pension
and other retiral benefits after the conviction directed by the
Trial Court. Apart from the decisions referred to hereinbefore
cited from the side of the petitioners, the following cases,
such as, D.S. Nakara and others Vrs. Union of India AIR
1983 SC 130; Smt. Akhtari Bi Vrs. State of M.P. (2001) 4
SCC 355; The Secretary, Local Self Government
Department and others Vrs. K. Chandran, 2022 Livelaw
SC 285; Board of Trustees of the Port of Bombay Vrs.
Dilipkumar Raghavendranath Nadkarni and others AIR
1983 SC 109; Bhupinder Pal Singh Vrs. Director General
of Civil Aviation and others (2003) 3 SCC 623; The
Scheduled Caste and Weaker Section Welfare Association
(Regd.) and another Vrs. State of Karnataka and others
1991 AIR SC 1117; State of Orissa Vrs. Binapani Dei and
others 1967 AIR SC 1269 and State of Odisha and others
Vrs. Sushanta Chandra Sahoo and others in W.P.(C)
No.14718 of 2015 are placed reliance on to contend that
pension is allowed for the services rendered in the first and
hence, has a broader significance, in that, it is a measure of
socio-economic justice as held in D.S. Nakera (supra) which
inheres in the fall of life when physical and mental powers
are ebbing corresponding to the ageing process and
therefore, one is required to fall back on savings and it is a
sort of stipend made in consideration of past service,
inasmuch as, pension is not a charity or bounty nor it is a
gratuitous payment dependent on the whim and sweet will of
the employer and in the nature social security plan for the
December of the life of a superannuation employee. There is
no quarrel over the position of law discussed herein above
but sanction of the same is subject to service conditions and
rules applicable. The contention as advanced by Mr. Mund,
learned counsel and others including Mr. Mallick, learned
counsel for the petitioners is that a pension may be withheld
only if the judicial proceedings are culminated and in the
case herein, as the appeals are pending disposal before this
Court, the provisional pension should be continued till a final
decision is rendered therein and as such, the action of the
authorities concerned discontinuing it since 2017 is not
sustainable.
12. Considering the pleadings on record, the Court finds that
the primary ground of challenge is rested on the decisions in
N.K. Suparna and Anil Mahanta (supra) with the
contentions by Mr. Mund, learned counsel for the petitioners
is that the provisional pension payable could not have been
discontinued in view of the appeals pending before this Court
and continuation of the judicial proceedings, as a result. To
the contrary, Mr. Swain, learned AGA for the State and Mr.
Tripathy, learned Senior Advocate appearing for opposite
party Nos.2 & 3 in W.P.(C) No.2343 of 2023 is that in view
of the order of conviction, the provisional pension has been
discontinued as was received by the petitioners prior to such
conviction and the same is in accordance with Rule 6 of the
Rules. The further contention is that unless the order of
conviction is suspended, the stigma attached to such
conviction is not withered away and therefore, the petitioners
have been denied with provisional pension.
13. In fact, grant of pension depends on the future good
conduct of a public servant and even its continuation as
clearly stipulated in Rule 6 of the Rules and such Pension
Sanctioning Authority may in writing withhold or withdraw
pension or a part thereof, whether, permanently or for a
specified period if in case the pensioner is convicted for a
serious crime or is found guilty of grave misconduct as made
to appear from sub-rule (2) of Rule 6.
14. On a proper reading of the relevant provisions of the
Rules, it is crystal clear that grant of pension and its
disbursement under the Rules is dependent on future good
conduct of the pensioner. As such, the provisional pension is
dealt with under Rule 65 of the Rules. Reference is made to
Rule 66 of the Rules while demanding sanction of provisional
pension to the petitioners advancing an argument that there is
continuation of judicial proceedings in view of the appeals
filed and pending disposal before this Court. The term
'judicial proceeding' is not defined in the Rules. By referring
to the decisions in N.K. Suparna and Anil Mahanta
(supra), it is contended that the appeal is a continuation of
judicial proceeding. In fact, in N.K. Suparna (supra), the
Karnataka High Court allowed provisional pension on the
premise that the order of conviction has been challenged in
appeal and the same is pending and amounts to continuation
of the judicial proceeding. A similar view has been expressed
by the Gauhati High Court in Anil Mahanta (supra) and
therein, reference has been made to Chapter-XXIX of the
Criminal Procedure Code, 1973 (shortly as 'the Code')
dealing with the provisions and procedures of appeal and
referring to Section 391 Cr.P.C. empowering the Appellate
Court to take evidence and for the fact that an appeal under
Section 374 Cr.P.C. is filed, it has finally concluded that for
all purposes is a 'judicial proceeding', in course of which,
evidence is or may be legally taken on oath and thus, its
definition in Section 2(i) of the Code is an inclusive one. But,
this Court, respectfully, not in agreement with such a view
expressed in N.K. Suparna and Anil Mahanta (supra) for
the reason that the judicial proceeding relatable to Rule 6 of
the Rules does the mean and confine to a proceeding before
the Trial Court. The definition of a 'judicial proceeding' in
Section 2(i) of the Code is not to borrowed for the purpose of
Rules 6 and 66 of the Rules. Any such proceeding pending
before the Criminal Court is to be treated as a judicial
proceeding and if the same is disposed of with the appeal
being filed, it cannot be said as a continuation of the
proceeding. The Court is also of the view that mere filing of
the appeal against an order of conviction and managing
suspension of sentence does not entitle restoration of pension
to a public servant. Only if the order of conviction is stayed
by a Court in appeal, only then, a pensioner shall receive
pension with other retiral benefits but not otherwise. Any
interpretation other than the one resorted to vis-à-vis the
definition of judicial proceeding occurring the Rules would
lead to absurdity and make the provisions of the Rules
nugatory. Of course, the petitioners are not receiving pension
since 2017, but restoration of the same depends on the result
in the appeals. The petitioners could have demanded
suspension of conviction for the fact that much after
superannuation, the provisional pension was discontinued
only in the year 2017 for appropriate orders, which may even
be pleaded now. But, having not obtained any such orders,
the provisional pension cannot be allowed when the orders of
conviction are in force and the Court is not inclined to accept
the argument that pendency of the appeals amounts to
continuation of the judicial proceeding, as has been argued by
Mr. Mund, learned counsel for the petitioners and others. In
other words, this Court is of the view that the decision
towards stoppage of provisional pension in favour of the
petitioners suffers from no legal infirmity.
15. Accordingly, it is ordered.
16. In the result, the writ petitions stand dismissed.
(R.K. Pattanaik)
Judge
Alok/TUDU
