Orissa High Court
Chandramani Pradhan vs ) State Of Odisha ..... Opposite Parties on 20 May, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.4832 of 2022
Chandramani Pradhan ..... Petitioner
Mr. L.K. Mohanty, Advocate
-versus-
1) State Of Odisha ..... Opposite Parties
2) Director, Secondary Education Mr. S. Rath, ASC
3) District Education Officer Mr. S.K. Patra, Advocate
4) Accountant General (A And E) , (Opp. Party No. 4)
Odisha
CORAM:
THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
20.05.2024 Order No. 21
1. This matter is taken up through hybrid mode.
2. Heard Mr. L.K. Mohanty, learned counsel appearing for the Petitioner, Mr. S. Rath, learned Addl. Standing Counsel appearing for the State and Mr. S.K. Patra, learned counsel appearing for Opp. Party No. 4. Instruction provided by Opp. Party No. 4 vide letter dtd.16.05.2024 and so produced by the learned counsel appearing for Opp. Party No. 4 be kept in record.
3. Petitioner has filed the present writ petition inter alia with the following prayer:-
"It is, therefore, prayed that this Hon'ble Court may graciously be pleased to issue notice to the opp. parties, calling upon them to file show cause as to why the letter dated 17.09.2021 issued by the opp. party no.3 under Annexure -10 shall not be quashed/ set aside and after hearing the parties be pleased to quash/set aside the order dated 17.09.2021 issued by the opp. party no.3 under Annexure -10 as per the decision of Hon'ble Apex Court of Page 1 of 19. India in between State of Punjab Versus Vocational Staffs reported in 2017 (11) SC 503 as well as the judgment of Hon'ble Apex Court of India in between D.S. Nakra Versus Union of India reported in AIR 1983 SC 130 and after hearing the parties be pleased to quash the order of reduction of the petitioner dated 17.9.2021 under Annexure -
10. A further direction be issued to the opp. parties to release his final pension and pensionary benefits as per his last pay drawn as on 30.06.2020 i.e. scale of pay Rs.71,100/- with grade Pay Rs.5400/- along-with 9% interest for delayed payment from the date of the eligibility till payment is released.
And pass any other order/orders or direction/directions as this Hon'ble Court may deem just and proper."
4. Learned counsel for the Petitioner contended that deceased Petitioner while continuing as Head Pandit in Ramachandra Mardaraj Sanskrit Toll, Khandapada, Nayagarh, he was extended with the benefit of 3rd RACP w.e.f.10.07.2013 vide order dtd.14.10.2016 of Opp. Party No. 3 under Annexure-5. While continuing with the said benefit, Petitioner was allowed to retire from his service on attaining the age of superannuation on 30.06.2020 and provisional pension was also sanctioned in his favour vide Annexure-7. Not only that deceased Petitioner was also sanctioned with the unutilized leave salary vide order dtd.16.10.2020 under Annexure-10.
4.1. It is contended that after such retirement from service, pension papers were also submitted before Opp. Party No. 4 for sanction of pension and other pensionary benefits. But when some objection was raised by Opp. Party No. 4 vide his letter dtd.05.02.2021 under Annexure-8, Petitioner without being given any opportunity of hearing and without passing of any order in withdrawing the benefit so extended vide order at Annexure-5, revised pension papers were Page 2 of 19. submitted by Opp. Party No. 3 on 17.09.2021 under Annexure-11. While submitting the revised pension papers, Grade Pay so extended in favour of the Petitioner vide order under Annexure-5 was reduced to Rs.4,800/- in place of Rs.5,400/- and Petitioner was also directed to pay back the excess amount so drawn by him till he attained the age of superannuation on 30.06.2020.
4.2. Learned counsel appearing for the Petitioner contended that since deceased Petitioner was duly sanctioned with the benefit vide order dt.14.10.2016 under Annexure-5 and he was allowed to continue with the said benefit till he attained the age of superannuation on 30.06.2020, the same could not have been withdrawn by allowing Grade Pay of Rs.4,800/- in place of Rs.5,400/- without giving due opportunity of hearing to the Petitioner and without passing of an order in that regard. With regard to non- compliance of the principle of natural justice, Mr. Mohanty, learned counsel for the Petitioner relied on the decisions of the Hon'ble Apex Court in the case of Menaka Gandhi vs. Union of India reported in AIR 1978 SC-597, Manohar Manikara Anchula vs. State of Maharastra reported in AIR 2013 SC-681, State of Orissa vs. Binapani Das reported in AIR 1967 SC-1269 & Ware House Corporation vs. Vijay Narayan Vajpayee reported in AIR 1980 SC 840 as well as the order passed by this Court in the case of Mulia Patra Vs. State of Odisha & Ors. (W.P.C.(OAC) No. 2390 of 2013).
4.3. In Menaka Gandhi (supra), Hon'ble Supreme Court in Paragraphs-57, 58 and 61 has held as under:-
"57. The question immediately arises : does the procedure prescribed by the Passports Act, 1967 for impounding a passport meet the, test of this requirement ?Page 3 of 19.
Is it 'right or fair or just' ? The argument of the petitioner was that it is not, because it provides for impounding of a passport without affording reasonable opportunity to the holder of the passport to be heard in defence. To impound the passport of a person, said the petitioner, is a serious matter, since it prevents him from exercising his constitutional right to go abroad and such a drastic consequence cannot in fairness be visited without observing the principle of audi alteram partem. Any procedure which permits impairment of the constitutional right to go abroad without giving reasonable opportunity to show cause cannot but be condemned as unfair and unjust and hence, there is in the present case clear infringement of the requirement of Article 21. Now, it is true that there is no express provision in the Passports Act, 1967 which requires that the audi alteram partem rule should be followed before impounding a passport, but that is not conclusive of the question. If the statute makes itself clear on this point, then no more question arises. But even when the statute is silent, the law may in a given case make an implication and apply the principle stated by Byles, J., in Cooper v. Wandsworth Maneka Gandhi vs Union Of India on 25 January, 1978 Indian Kanoon - http://indiankanoon.org/doc/1766147/ 57 Board of Works(2). "A long course of decision---, beginning with Dr. Bentley's case and ending with some very recent cases, establish that, although there are no positive words in the statute requiring that the party shall be heard, yet-the justice of the common law will supply the omission of (1) [1974]2S.C.R.348. (2) [1863]14C.B.N.S.180. the legislature". The principle of audi alteram partem, which mandates that no one shall be condemned unheard, part of the rules of natural justice. In fact, there are two main principles in which the rules of natural justice are Page 4 of 19. manifested, namely, Nemo Judex in Sua Causa and audi alteram partem. We are not concerned here with the former, since there is no case of bias urged here. The question is only in regard to the right of hearing which involves the audi alteram partem rule. Can it be imported in the procedure for impounding a passport ?
58. We may commence the discussion of this question with a few general observations to emphasise the increasing importance of natural justice in the field of administrative law. Natural justice is a great humanising principle intended to invest law with' fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. Lord Morris of Borth- y-Gest spoke of this rule in eloquent terms in his address before the Bentham Club : "We can, I think, take pride in what has been done in recent periods and particularly in the field of administrative law by invoking and by applying these principles which we broadly classify under the designation of natural justice. Many testing problems as to their application yet remain to be solved. But I affirm that the area of administrative action is but one area in which the principles are to be deployed. Nor are they to be invoked only when procedural failures are shown. Does natural justice qualify to be described as a "majestic" conception ? I believe it does. Is it just a rhetorical but vague phrase which can be employed, when needed, to give a gloss of assurance ? I believe that it is very much more. If it can be summarised as being fair play in action-who could wish that it would ever be out of action ? It denotes that the law is not only to be guided by reason and by logic but that its purpose %, will not be fulfilled; it lacks more exalted inspiration." (Current Legal Problems, 1973, Vol. 26, p.Page 5 of 19.
16) And then again, in his speech in the House of Lords in Wiseman v. Borneman(1), the learned Law Lord said in words of inspired felicity: "that the conception of natural justice should at all stages guide those who discharge judicial functions is not merely an acceptable but is an essential part of the philosophy of the law. We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analysed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application. We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. Natural justice, it has been said, is only "fair play in action." Nor do we wait for directions from Parliament. The common law has abundant riches : there we may find what Byles, J., called "the justice of the common law". Thus, the soul of natural justice is fair play in action' and that is why it has received the widest recognition throughout the democratic world.
In the United States, the right to an administrative hearing is regarded as essential requirement of fundamental fairness. And in England too it has been held that 'fair play in action' demands that before any prejudicial or adverse action is taken against a person, he must be given an opportunity to be heard. The rule was stated by Lord Henning, M.R. in these terms in Schmidt v. Secretary of State for Home Affairs(1) :-where a public officer has power to deprive a person of his liberty or his property, the general principle is that it has not to be done without his being given an opportunity of being heard and of making representations on his own behalf". The same rule Page 6 of 19. also prevails in other Commonwealth countries like Canada, Australia and New Zealand. It has even gained access to the United Nations. Vide American Journal of International Law, Vol. 67, page 479. Magarry, J., describes natural justice "as a distillate of due process of law". Vide Fontaine v. Chesterton(2). It is the quintessence of the process of justice inspired and guided by fair play in action'. If we look at the speeches of the various law Lords in Wiseman's case, it will be seen that each one of them asked the question "whether in the particular circumstances of the case, the Tribunal acted unfairly so that it could be said that their procedure did not match with what justice demanded", ,or, was the procedure adopted by the Tribunal 'in all the circumstances unfair'? The test adopted by every law Lord was whether the procedure followed was "fair in all the circumstances" and 'fair play in action' required that an opportunity should be given to the tax payer "to see and reply to the counter-statement of the Commissioners"
before reaching the conclusion that "there is a prima facie case against him." The inquiry must, therefore, always be : does fairness in action demand that an opportunity to be heard should be given to the person affected?.
XXX XXX XXX
61. This Court, speaking through Hegde, J., in ,I. K. Kraipak's case quoted with approval the above passage from the judgment of Lord Parker, C.J., and proceeded to add : "The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it-Till very recently it was the opinion of the courts that unless the Page 7 of 19. authority concerned was required by the law under which it functioned to act judicially there was no room for the, application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice One fails to see why those rules should be made inapplicable, to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-.judicial in character. Arriving at a just decision is the aim of both quasi- judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi- judicial enquiry. As observed by this Court in Suresh Koshy George v. The University of Kerala and Ors. (1969)1 S.C.R. 317 the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principles of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of the case." This view was reiterated and re-affirmed in a subsequent decision of this Court in D.F.O. South Khari v. Ram Sanehi Singh(1). The law must, therefore, now be taken to be well settled that even in an administrative proceeding, which involves civil consequences, the doctrine of natural justice must be held to be applicable.Page 8 of 19.
4.4. In Manohar Manikara (supra), Hon'ble Supreme Court in Paragraph-17 has held as under:-
"17. The State Information Commission is performing adjudicatory functions where two parties raise their respective issues to which the State Information Commission is expected to apply its mind and pass an order directing disclosure of the information asked for or declining the same. Either way, it affects the rights of the parties who have raised rival contentions before the Commission. If there were no rival contentions, the matter would rest at the level of the designated Public Information Officer or immediately thereafter. It comes to the State Information Commission only at the appellate stage when rights and contentions require adjudication. The adjudicatory process essentially has to be in consonance with the principles of natural justice, including the doctrine of audi alteram partem. Hearing the parties, application of mind and recording of reasoned decision are the basic elements of natural justice. It is not expected of the Commission to breach any of these principles, particularly when its orders are open to judicial review. Much less to Tribunals or such Commissions, the Courts have even made compliance to the principle of rule of natural justice obligatory in the class of administrative matters as well. In the case of A.K. Kraipak & Ors. v. Union of India & Ors. [(1969) 2 SCC 262], the Court held as under : 17. It is not necessary to examine those decisions as there is a great deal of fresh thinking on the subject. The horizon of natural justice is constantly expanding The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but Page 9 of 19. supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely: (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi- judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an Manohar vs State Of Maharashtra & Anr on 13 December, 2012IndianKanoon ttp://indiankanoon.org/doc/136770833/ 6 administrative enquiry may have more far reaching effect than a decision in a quasijudicial enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under Page 10 of 19. which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.
4.5. In State of Orissa vs. Binapani Das, Hon'ble Supreme Court in Paragraph-12 has held as under:-
"12. It is true that some preliminary enquiry was made by Dr. S, Mitra. But the report of that Enquiry Officer was never disclosed to the first respondent. 'The rafter the first respondent was required to show cause why April 16, 1907, should not be accept das the date of birth and without recording any evidence the order was passed. We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken; the High Court was, in our judgment, right in setting aside the order of the State."
4.6. In Ware House Corporation (supra), Hon'ble Supreme Court in Paragraph-14 has held as under:-
"14. The appellant is a Corporation constituted under the Uttar Pradesh State Warehousing Corporation (Act 28) of 1956, which was subsequently replaced by the Page 11 of 19. Central Act 58 of 1962. It is a statutory body wholly controlled and managed by the Government. Its status is analogous to that of the Corporations which were under consideration in Sukhdev Singh's case (ibid). The ratio of Sukhdev Singh's case, therefore, squarely applies to the present case. Even if at the time of the dismissal, the statutory regulations had not been framed or had not come into force, then also the employment of the respondent was public employment and the statutory body, the employer, could not terminate the services of its employee without due enquiry in accordance with the statutory Regulations, if any in force, or in the absence of such Regulations, in accordance with the rules of natural justice. Such an enquiry into the conduct of a public employee is of a quasi- judicial character. The respondent was employed by the appellant-Corporation in exercise of the powers conferred on it by the statute which created it. The appellants' power to dismiss the respondent from service was also derived from the statute. The Court would therefore, presume the existence of a duty on the part of the dismissing authority to observe the rules of natural justice, and to act in accordance with the spirit of Regulation 16, which was then on the anvil and came into force shortly after the impugned dismissal. The rules of natural justice in the circumstances of the case, required that the respondent should be given a reasonable opportunity to deny his guilt, to defend himself and to establish his innocence which means and includes an opportunity to cross- examine the witnesses relied upon by the appellant- Corporation and an opportunity to lead evidence in defence of the charge as also a show-cause notice for the proposed punishment. Such an opportunity was denied to the respondent in the instant case. Admittedly, the respondent was not allowed to lead evidence in defence. Further, he was not allowed to cross-Page 12 of 19.
examine certain persons whose statements were not recorded by the Enquiry Officer (Opposite Party No. Managing Director, Uttar Pradesh vs Vinay Narayan Vajpayee on 16 January, 1980 in the presence of the respondent. There was controversy on this point. But it was clear to the High Court from the report of enquiry by the Opposite Party No. 1 that he relied upon the reports of some persons and the statements of some other persons who were not examined by him. A regular departmental enquiry takes place only after the charge-sheet is drawn up and served upon the delinquent and the latter's explanation is obtained. In the present case, no such enquiry was held and the order of dismissal was passed summarily after perusing the respondent's explanation. The rules of natural justice in this case, were honoured in total breach. The impugned order of dismissal was thus bad in law and had been rightly set aside by the High Court."
4.7. In the case of Mulia Patra (supra), this Court in Paragraph 33 & 34 has held as under:-
"33. From the materials available on record, it is apparent that the conduct of the Opposite Party No.3 reflects a sorry state of affairs. Though the proceeding against the Petitioner initiated under Annexure-4 was a proceeding under Rule-15 of the Rules, but the Petitioner was never provided with the documents as prayed for under Annexure-5 and thereby enabling him to file his written statement of defence. Not only that the enquiry report was also never supplied nor any show-cause was issued proposing the order of punishment if any. Therefore, the initial order of punishment passed by the Opposite Party No.3 on 10.06.2003 under Annexure-13 was set aside by the appellate authority by remanding the matter for fresh enquiry and disposal. The Opposite Party No.3 after such Page 13 of 19. remand once again without following the provision contained under Rule-15, proceeded with the matter and upheld the order of punishment passed on 10.06.2003 vide order dated 26.03.2013 under Annexure-19. From the aforesaid conduct of the Opposite Party No.3, this Court finds that the order of punishment has been passed in complete violation of the principle of natural justice.
34. Relying on the decision cited by Mr. Rath and the view expressed by the Hon'ble Apex Court, this Court has got no hesitation in interfering with the office order dated 26.03.2013 passed under Annexure-19. While quashing the same, this Court directs that since the Petitioner has retired in the meantime, the Petitioner will be treated to have been continued in his service till his superannuation. While directing so, this Court further directs the Opposite Parties to sanction and disburse all service and financial benefits as due and admissible in favour of the Petitioner within a period of four months from the date of receipt of this order. In order to mitigate the hardship caused to the Petitioner, this Court while allowing the Writ Petition imposes a cost of Rs.20,000/- on the then Inspector of Schools, Keonjhar who have passed the initial order of dismissal on 10.06.2003 and the subsequent order on 24.03.2013. The aforesaid cost is to be recovered from the salary / pension of the said District Education Officer, Keonjhar."
4.8. It is also contended that during pendency of the writ petition, deceased employee since died, his wife has been duly substituted as the Petitioner in the present case. It is accordingly contended that since prior to reducing the Grade Pay to Rs.4,800/- in place of Rs.5,400/-, which was sanctioned vide order at Annexure-5, no opportunity of hearing was given and no order withdrawing the benefit was ever passed, action of Opp. Party No. 3 in submitting Page 14 of 19. the revised pension papers by allowing Grade Pay of Rs.4,800/- in place of Rs.5,400/- is not sustainable in the eye of law.
4.9. Mr. Mohanty also contended that pursuant to the order passed by this Court, recovery amount of Rs.1,07,955/- has been paid back to the Petitioner in the meantime.
5. Mr. S. Rath, learned Addl. Standing Counsel on the other hand made his submission basing on the stand taken in the counter affidavit. Though it is not disputed that Petitioner was extended with the benefit of 3rd RACP in shape of Grade Pay of Rs.5,400/- vide order dtd.14.10.2016 under Annexure-5, but since while going through the pension paper, Opp. Party No. 4 raised objection vide letter dtd.05.02.2021 under Annexure-8, Opp. Party No. 3 after going through the same, found that Petitioner has been wrongly allowed Grade Pay of Rs.5,400/- in place of Rs.4,800/-. Accordingly, while reducing the Grade Pay to Rs.4,800/-, revised pension papers were submitted vide the impugned communication dtd.17.09.2021 under Annexure-11. It is also contended that basing on the submission of revision pension papers deceased Petitioner was sanctioned with the pension and other pensionary benefits. The stand taken by Opp. Party No. 3 in Para 7 & 8 of the counter is reproduced hereunder:-
"7 That, it is humbly submitted that while the petitioner was continuing as such retired on 10.06.2020 and immediately on the day of retirement he was sanctioned with Provisional Pension @ Rs.31,995/- vide Office Order No. 4236 dated 30.06.2020. Subsequently vide Office Order No. 6014 dated 16.10.2020, Un-Utilised Earned Leave salary for 300 days has been sanctioned for payment of cash equivalent to leave salary in favour of the petitioner and the pension paper of the Page 15 of 19. petitioner was sent to the Accountant General (A&E), Odisha, Bhubaneswar by this deponent vide Letter No. 7346 dated 18.11.2020. The copy of the Office Order No. 4236 dated 30.06.2020, 6014 dated 16.10.2020 and Letter No. 7346 dated 18.11.2020 are filed herewith as Annexure-A/3, B/3 and C/3 respectively.
8. That, it is humbly submitted that Accountant General (A&E), Odisha, Bhubaneswar, vide letter No. 60176598 dated 05.02.2021 returned the pension paper of the petitioner with a remark to review the fixation of pay under ORSP Rules, 2017 and make necessary correction which was received by this deponent on 25.02.2021. Accordingly the 1 and 2nd RACP with Grade Pay of Rs.4600/- and Rs.4800/- allowed in favour of the petitioner w.e.f.01.12.2013 vide office order Nis 1813 dated 01.05.2015 and 3 RACP with Grade Pay of Rs.5400/- w.e.f. 10.07.2013 vide office order No.8733 dated 14.10.2016 was re- examined in the light of Finance Department Resolution No. 3560/F dated 06.02.2013, clarified with reference to Finance Department Resolution No. 26274/F dated 08.08.2013 and Memo No. 1738/F dated 20.01.2014. In the said Finance Department Memo No. 1738/F dated 20.01.2014, at Para-16 it is clarified that:
"the pay of an employee shall be fixed in the manner laid down u/r 13 of ORSP Rules, 2008 without change of Grade Pay subject to adjustment of benefits already availed in shape of T.B.A/ACP under ORSP Rules, 1998 and ORSP Rules, 2008 respectively in terms of Para-18 of Finance Department Resolution No. 3560/F dated
06.02.2013".
Para-18 of Finance Department Resolution No. 3560/F dated 06.02.2013 is as follows:
Page 16 of 19."Assured Career Progression (A.C.P.) availed under O.R.S.P. Rules, 2008 shall not be taken into account while considering the R.A.C.P.S. in favour of an employee. But, no pay fixation shall be allowed by extending the benefit of 3% of Basic Pay and Grade Pay to the existing Pay but only the Grade Pay as applicable shall be allowed while giving R.A.C.P.S."
For better appreciation the copy of the Finance Department Resolution No. 3560/F dated 06.02.2013, Resolution No. 26274/F dated 08.08.2013 and Memo No. 1738/F dated 20.01.2014 are annexed herewith as Annexure- D/3, E/3 and F/3 respectively."
5.1. It is accordingly contended that since while considering the objection so raised by Opp. Party No. 4, it was found that Petitiioner is not eligible to get the Grade Pay in shape of 3rd RACP at Rs.5,400/-, while reducing the same to Rs.4,800/-, revised pension papers were submitted under Annexure-11. Therefore, no illegality can be found with the action of Opp. Party No. 3.
6. Mr. S.K. Patra, learned counsel appearing for the Accountant General basing on the instruction so received from Opp. Party No. 4 vide letter dtd.15.01.2024 contended that basing on the submission of pension papers vide Annexure-11, deceased Petitioner was sanctioned with the pension and DCRG on 17.11.2021 vide PPO No. 63502. Not only that recoverable amount of Rs.1,07,955/- has been paid back to the substituted Petitioner.
7. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that deceased Petitioner while in service, he was sanctioned with the Grade Pay in the shape of 3rd RACP @ Rs.5,400/- vide order Page 17 of 19. dtd.14.10.2016 under Annexure-5. Deceased Petitioner was also allowed to continue with the said benefit till he attained the age of superannuation on 30.06.2020. Basing on the last pay drawn, deceased Petitioner was also sanctioned with the unutilized leave salary vide order dtd.16.10.2020 under Annexure-10 and provisional pension vide order dtd.29.06.2020 under Annexure-7. But when taking into account the objection raised by Opp. Party No. 4 vide his letter dtd.05.02.2021 under Annexure-8, Opp. Party No. 3 suo moto reduced the Grade Pay from Rs.5,400/- to Rs.4,800/- and while doing so submitted the revised pension papers vide the impugned communication dtd.17.09.2021 under Annexure-11.
7.1. Since nothing has been brought on record that prior to taking such step to reduce the Grade Pay, deceased Petitioner was given an opportunity of hearing and an order was also passed by withdrawing the benefit so sanctioned vide order at Annexure-5, as per the considered view of this Court, without doing so, Opp. Party No. 3 could not have reduced the Grade Pay from Rs.5,400/- to Rs.4,800/- with submission of the revised pension papers vide the impugned communication under Annexure-11 and consequential sanction of pension and DCRG by Opp. Party No. 4 on 17.11.2021.
7.2. In view of the aforesaid analysis, this Court while upholding the order so passed in favour of the deceased Petitioner under Annexure-5, directs opp. Party No. 3 to submit revised pension papers entitling the deceased Petitioner and the substituted Petitioner to receive revised family pension and original pension as due and admissible. Opp. Party No. 3 is directed to submit the revised pension papers as directed within a period of six (6) weeks from the date of receipt of this order. Opp. Party No. 4 is further directed to Page 18 of 19. sanction the revised pension and family pension within a further period of eight (8) weeks. Consequential differential entitlement towards the original pension and family pension as due and admissible be also released within a further period of 4 (four) weeks from the date of sanction.
8. The writ petition is accordingly disposed of.
(BIRAJA PRASANNA SATAPATHY) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-May-2024 12:22:07 Page 19 of 19.