Orissa High Court
Kali Prasanna Dash vs Orissa Construction Corporation Ltd. ... on 27 April, 2015
Author: S.N. Prasad
Bench: S.N. Prasad
HIGH COURT OF ORISSA : CUTTACK
O.J.C. No.4019 of 1996
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
Kali Prasanna Dash .... Petitioner.
Versus.
Orissa Construction Corporation
Ltd. and others .... Opposite Parties.
For Petitioner - M/s. Ramakanta Mohanty,
C.R.Patnaik, and N.Behuria
For Opp. Parties - Mr. Y.Dash and N.C.Mohanty
(for O.P.No.2)
Mr. L.Pangari, B.Jena and
I.Patnaik ( for O.P.4)
PRESENT
THE HON'BLE SHRI JUSTICE S.N. PRASAD.
--------------------------------------------------------------------------------------
Date of hearing & judgment: 27.4.2015
S.N.PRASAD, J.The petitioner has challenged the show cause notice dated 23.2.1994(Annexure-2) passed by the Managing Director, Orissa Construction Corporation Limited, Bhubaneswar by which explanation has been sought for within 15 days of receipt of the show cause notice. The petitioner immediately thereafter challenged the said show cause notice by way of filing reply to the show cause notice (Annexure-3).
2. Case of the petitioner that he was appointed as a Store Keeper in the Orissa Construction Corporation and joined as such at Ghodahada Acudate Project, Ganjam, on 20.3.1963 he was promoted to the rank of Senior Store Keeper in the year 1965 and after serving for long period he was transferred to Mahanadi Barrage Project, Cuttack.
23. In 1988 Mahanadi Barrage Project at Cuttack was bifurcated and Central Machinery Unit was created. The petitioner was transferred to Central Machinery Unit after its bifurcation. After serving more than 9 years in the Central Machinery Unit the petitioner was superannuated from service vide order dated 25.9.1992 with effect from 30.9.1992. Accordingly, the petitioner after his superannuation became entitled to post retirement dues, like gratuity, leave salary, provident fund and pension. However, the Corporation withheld his pension without any rhyme and reason.
4. Further grievance of the petitioner that the petitioner after his superannuation he handed over the charges of the store well in time to one Sri A.C.Parida which has been accepted in presence of opposite party no.3. In course of verification of stocks for the purpose of handing over and taking over charge of the concerned store, it was found that there was an excess of materials worth Rs.1,28,286.53p and alleged shortage of materials worth of Rs.66,538.07p. Moreover, physical verification report was prepared in triplicate, one was supplied to the petitioner, one was given to the incumbent taking charge and one was sent to the Head Office.
5. The petitioner thereafter issued the show cause notice dated 23.2.1994 asking him to give reply as to why he has not handed over cost of stores worth Rs.73,202.00 to his successor and as to why the said amount is not recovered from the retirement benefits.
6. The petitioner has replied to the show cause notice denying the allegations and as yet no decision has been taken in spite of the fact that the petitioner has submitted representation (Annexure-4) for release of retirement benefit.
7. Counter-affidavit has been filed on behalf of the opposite parties wherein it has been stated that the petitioner is entitled to gratuity amount to the tune of Rs.50,000/-, leave salary amounting to 3 Rs.37,589.00 and arrear pay amounting to Rs.4000/-, total comes to Rs.91,589.00.
8. It has been submitted that time and again letter was issued to the petitioner to collect the aforesaid dues but instead of collecting the said amount the petitioner filed representation before the authority for release of his retirement benefits. It has been submitted that the petitioner has already been paid his provident fund amount of Rs.1,10,273.34 on 30.12.1992 after making deduction of materials worth of Rs.73,202.06 which has not been handed over by the petitioner.
9. Heard learned counsel for the parties and perused the documents on record.
10. Claim of the petitioner that the entire retirement benefit has not been released in his favour although some amount of provident fund has been paid, but the actual amount the petitioner is entitled get has not been released at the garb to recover the amount which the amount is due from the petitioner to the tune of Rs.73,202.06 on account of store materials worth which had not been handed over by the petitioner to his successor.
11. From the pleadings of the parties, it appears that the authority although has issued show cause notice, but the petitioner has also made representation to the same, but no final order has been passed since nothing has been stated in the counter-affidavit the final outcome of representation submitted by the petitioner.
12. The petitioner has been superannuated from service and the petitioner is governed under the Orissa Civil Services (Pension) Rules,1992 and there is specific provision under Rule-7 of the said Rules which has conferred upon the government to withhold or withdraw pension which is quoted below:
4"Right of Government to withhold or withdraw pension -
(1) The Government reserve to themselves the right of withholding a pension or gratuity, or both either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if in any department or judicial proceedings, the pensioner found guilty of grave misconduct or negligence in duty during the period of his service including service rendered on re-employment after retirement:
Provided that the Orissa Public Service Commission shall be consulted before the final orders are passed:
Provided further that when a part of pension is withheld/withdrawn, the amount of such pension shall not be reduced below the amount of minimum limit.
(2) (a) Such departmental proceedings referred to in Sub-rule (1), if instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which they were commenced in the s=same manner as if the Government servant had continued in service:
Provided that when the departmental proceedings are instituted by an authority, subordinate to Government that authority shall submit a report recording its finding to theGovernment.
(b) Such departmental proceedings as referred to in Sub-rule (1) if not instituted while the Government servant was in service, whether before his retirement or during his re-employment;
(i) shall not be instituted save with the sanction of Government;
(ii) shall not be in respect of any event which took place more than four years before such instruction; and
(iii) shall be conducted by such authority and in such place as the Government may, direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from servie could be made in relation to the Government servant during his service.
(c) No judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution.
(d) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under Clauses (a) and (b), a provisional pension as provided in Rule 66 shall be sanctioned.5
(e) Where the Government decide not to withhold or withdraw pension but order recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-
third of the pension admissible on the date of retirement of a Government servant."
13. The issue is not res integra regarding the fact that government reserve the right of withholding pension or gratuity, or both either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, a proceeding has to be initiated for providing adequate and sufficient opportunities of hearing to the petitioner which has been discussed and held by the Hon‟ble Supreme court in the case of State of Jharkhand & others vrs. Jitendra Kumar Srivastava & others reported in (2013) 12 SCC 210 wherein at Paras- 14 and 16 which is being reproduced herein below:-
"The right to receive pension was recognized as a right to property by the Constitution Bench judgment of this Court in Deokinandan Prasad vrs. State of Bihar, as is apparent from the following discussion:
(SCC) pp. 342-43, paras 27-33).
"27. The last question to be considered, is, whether the right to receive pension by a government servant is property, so as to attract Articles 19(1) (f) and 31 (1) of the Constitution. This question falls to be decided in order to consider whether the writ petition is maintainable under Article 32. To this aspect, we have already adverted to earlier and we now proceed to consider the same.
28. According to the petitioner the right to receive pension is property and the respondents by an executive order dated 12-6-1968 have wrongfully withheld his pension. That order affects his fundamental rights under Articles 19(1)(f) and 31(1) of the Constitution. The respondents, as we have already indicated, do not dispute the right of the petitioner to get pension, but for the order passed on 5-8-1996. There is only a bald averment in the counter-affidavit that no question of any fundamental right arises for consideration. Mr. Jha, learned counsel for the respondents, was not prepared to take up the position that the right to receive pension can not be considered to be property under any circumstances. According to him, in this case, no order has been passed by the State granting pension. We understand the learned counsel to urge that if the State had passed an order granting pension and later on resiles from the order, the later order may be considered to affect the petitioner‟s right regarding property so as to Attracts 19(1)(f) and 31 (1) of the Constitution.
29. We are not inclined to accept the contention of the learned counsel for the respondents. By a reference to the material provision in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect. It mat be that for the purposes of qualifying the amount having regard to the period of service and other allied matters, it may be 6 necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the rules. The rules, we have already pointed out, clearly recognize the right of person like the petitioners to receive pension under the circumstances mentioned therein.
30. The question whether the pension granted to a public servant is property attracting Articles 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India. It was held that such a right constitutes „property‟ and any interference will be a breach of Article 31(1) of the constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in letters patent appeal by the Union of India. The Letters Patent Bench in its decision in Union of India v/s Bhagwant Singh approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is „property‟ within the meaning of Article 31(1) of the Constitution and he could not be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as „property‟ cannot possibly undergo such mutation at the whim of a particular person or authority.
31. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry v. State of Punjab. The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a government servant. It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand, to consider the question whether before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant.7
32. This Court in State of M.P. v. Ranojirao Shinde had to consider the question whether a „cash grant‟ is „property‟ within the meaning of that expression in Articles 19(1)(f) and 31(1) of the Constitution. This Court held that it was property, observing „it is obvious that a right to sum of money is property.‟
33. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31 (1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by clause(5) of Article 19. Therefore, it follows that the order dated 12.6.1968, denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1) of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act (23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of writ of mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law."
16. The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in "Property". Article 300-A of the Constitution of India reads as under:-
"300-A. Persons not to be deprived of property save by authority of law.- No person shall be deprived of his property save by authority of law".
Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced."
14. If the facts of this case will be compared to the facts of the judgment of the Supreme Court referred to above, similarity will find and admittedly in this case no proceeding has ever been initiated against the petitioner rather show cause notice has been issued which cannot be sufficient requirement under law for which recovery of pensionary benefit from the petitioner.
15. Rule 7 of the Orissa Civil Services (Pension) Rules,1992 is applicable in this case which confer power upon the Government to withhold a pension or gratuity, or both either in full or in part.
8Here according to the opposite parties some amount is to be recovered from the pensionary benefits of the petitioner which according to them the petitioner has liable to pay cost of certain materials having not been handed over by him after his retirement while the petitioner is disputing the matter which needs adjudication by holding proper enquiry and no decision can be taken merely on the basis of a show cause notice.
16. In view thereof, in my considered view, the action of the opposite parties is totally unjustified in withholding the amount which the petitioner is entitled to get after his retirement.
17. Hence the authorities are directed to release pensionary benefits to the petitioner within a period of eight weeks from the date of receipt of certified copy of this order.
18. Liberty is given to the opposite parties to proceed if the law permits regarding any entitlement over the materials cost from the petitioner which has been reflected in the show cause notice.
With such observation and direction the writ application is disposed of.
..............................
S.N. Prasad, J.
Orissa High Court, Cuttack The 27th April,2015/Palai