Orissa High Court
Karunakar Behera vs State Of Orissa And Others on 9 February, 2017
THE HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No.17402 of 2013
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Karunakar Behera ... Petitioner
-Versus-
State of Orissa & others ... Opp. Parties
For Petitioner : Mr. P.C. Achary
For Opp. Parties : Mr. A.K. Mohanty,
Standing Counsel,
School & Mass Education Department
PRESENT:
THE HON'BLE DR. JUSTICE D.P. CHOUDHURY
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Date of hearing: 8.12.2016 Date of Judgment: 09.02.2017
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Dr. D.P. Choudhury, J. This writ petition has been filed to direct the opposite
parties for grant of pension and other pensionary benefits by
regularizing the absence period of the petitioner, i.e., from
25.6.1983to 2.1.2001 under concerned Leave Rules.
FACTS
2. The filtering details of the case of the petitioner are that the petitioner was appointed by the Secretary of the opposite 2 party No.4 School vide appointment letter dated 25.10.1968 as Headmaster. The School was under Grant-in-Aid since 1.4.1961. The appointment of the petitioner has been duly approved by the opposite parties. Due to ill health of the petitioner he remained on leave from 21.9.1982 to 17.1.1983 and again remained on leave from 25.6.1983 and did not return to the service due to his acute illness. He was under medical treatment and in the meantime his normal retirement date 2.1.2001 passed. After being recovered, the petitioner approached the opposite party No.3 on 20.9.2012 for payment of pension.
3. Be it stated that the pay of the petitioner was fixed by the opposite party No.3 under ORSP Rules, 1974 and ORSP Rules, 1981 vide Annexures-4 and 5, respectively. It is stated that from 28.10.1968 to 24.6.1983 the petitioner remained in regular service but remained absent from 25.6.1983 till his date of superannuation, i.e., 2.1.2001. Since the petitioner has served more than 10 years of service on regular basis, as per Rule 8 (2) of the Orissa Aided Educational Institutions Employees Retirement Benefit Rules 1981 (hereinafter called "Rules 1981"), he is eligible for pension of the period of his qualifying service up to the date of his retirement. In spite of all the efforts by approaching the opposite parties the minimum pension was not allowed to him and 3 he is suffering with acute financial hardship with his wife. Hence, this writ petition is filed seeking necessary reliefs.
4. Contrasting the petition, counter affidavit is filed by the opposite party No.3. It is the case of this opposite party that the writ petition is not maintainable because the petitioner became Government employee when the School was taken over by the Government in the Department of School & Mass Education since 1989 and the matter is to be adjudicated before the State Administrative Tribunal and not before this Court directly. It is the further case of this opposite party that the petitioner has neither produced any leave application nor produced any Medical Certificate to show that he remained on leave from 21.9.1982 to 17.1.1983 and again from 25.6.1983 till the date of retirement. Be it stated that the petitioner remained unauthorisedly absent from 1986 and abandoned his service. Since he has remained absent for more than five years unauthorisedly and as such abandoned his service, he is deemed to have been terminated. Hence, he is not entitled for payment of pensionary benefit.
SUBMISSIONS
5. Mr. Achary, learned counsel for the petitioner submitted that the petitioner was duly appointed as Headmaster by the then Managing Committee on 25.10.1968 in Bhimda M.E. School, 4 Bhimda, in the district of Mayurbhanj and continuously served the School till 21.9.1982 but remained on leave since 21.9.1982 to 17.1.1983 and again joined the School on 21.1.1983 and for that he has also submitted the leave application which was duly approved. He further submitted that due to acute illness in his brain he did not attend the School from 25.6.1983. Since he became mad, he could be only traced out at Baripada in 2012 and went under treatment. On 20.9.2012 he made application for payment of pension as his normal superannuation was notionally made on 2.1.2001. According to him, the petitioner having served for more than ten years, he is entitled to pensionary benefit proportionately as per Rules, 1981 and the question of abandonment of service by the petitioner does not arise.
6. Mr. Achary, relying upon the decision reported in AIR 1971 SC 1409 (Deokinandan Prasad v. The State of Bihar and others) submitted that the pension being a property, denying the same to receive by the opposite party is violative of the fundamental right available to the citizen under Articles 19(1)(f) and 31(1) of the Constitution. He also relied upon the decision reported in AIR 1966 SC 492 (Jai Shanker v. State of Rajasthan) where Their Lordships observed that discharge from service on the ground of absence from service without opportunity 5 of hearing is improper being violative of Clause 2 of Article 311 of the Constitution of India. He also cited the decision of this Court reported in (2008) 105 CLT 309 (Kishori Dash v. State of Orissa and others) where the Single Bench observed that a conjoint reading of Rule 8 (2) of the Rules, 1981 and Rule 72 of the Orissa Service Code clearly show that when a Primary School Teacher remains absent for more than five years and does not resume his duty after the period of leave, can be removed from service by following the procedures laid down in the Orissa Civil Service (Classification, Control and Appeal) Rules, 1962 and while removing from service, necessary show cause should be issued by initiating Departmental Proceeding, otherwise it would be amount to violation of the principle of natural justice and it would be ultra vires to Article 311 (2) of the Constitution. In that case this Court also quashed the plea of abandonment of service taken by the opposite parties as there is no notice issued during life time of Primary School Teacher in that case affording an opportunity of hearing before passing the order of abandonment of service. Thus, Mr. Achary submitted that following the judgment of the Hon'ble Apex Court and this Court the petitioner is entitled to the pensionary benefits by regularizing leave from 25.6.1983 till date 6 of his retirement to 1.2.2001 with effect from the date of his superannuation.
7. On the contrary, Mr. A.K. Mohanty, learned Standing Counsel for the School & Mass Education Department submitted that since the petitioner did not file any application for leave on 25.6.1983 and remained absent unauthorisedly and never returned to service, this would amount to abandonment of service in view of Rule 72 of the Orissa Service Code. He further submitted that abandonment of service amounts to termination of service. So, he submitted that since the petitioner neither applied for leave nor produced any medical documents to show his illness, the petitioner is deemed to have abandoned service and no notice is necessary to be issued to him to resume duty. He relied upon the decision reported in (2013) 10 SCC 253 (Vijay S. Sathaye v. Indian Airlines Limited and others), where Their Lordships held that absence from duty in beginning may be misconduct, but when such absence is for long period, it may amount to voluntary abandonment of service resulting in termination of service automatically without necessitating any further order from employer. So, he submitted that the petitioner has remained absent unauthorisedly for long period, it would amount to voluntary abandonment of service resulting termination from 7 service automatically without any order from the State. Since there is abandonment of service by the petitioner, the petitioner is not entitled to any pensionary benefit as his leave period cannot be regularized under the law.
8. The main points for consideration:-
(i) Whether the petitioner has abandoned his service voluntarily?
(ii) Whether the petitioner is entitled to pensionary benefits?
DISCUSSIONS POINT NO.(i) :
9. It is admitted fact that the petitioner was appointed as Headmaster of Non-Government Grant-in-Aid School, i.e., in Bhimda M.E. School, Bhimda on 25.10.1968. It is not in dispute that the petitioner worked till 21.9.1982 and then went on leave till 17.1.1983 and again went on leave from 25.6.1983. It is also admitted fact that after 25.6.1983 the petitioner did not return to service and his normal retirement date 2.1.2001 passed.
10. Learned counsel for the petitioner submitted that after 25.6.1983 the petitioner suffered from acute illness and was in abnormal condition and finally he was found on 20.9.2012 and submitted application for pension. Learned Standing Counsel for the School & Mass Education Department simply submitted that the petitioner neither filed any application for leave nor filed medical certificate to prove treatment for which it is inferred that 8 he has abandoned the service which amounts to termination from service.
11. It appears from Annexure-2 that the leave period of the petitioner from 21.9.1982 to 17.1.1983 was regularized by the Authority by directing the concerned Headmaster to draw the leave salary of the petitioner. In the counter the plea is only taken that the petitioner has abandoned the service as he has not reported after 25.6.1983 to service. Learned Standing Counsel relied on Rule 72 of the Odisha Service Code and the decision reported in Vijay S. Sathaye (supra). Rule 72 of the Odisha Service Code speaks in following manner:-
"72. Removal of Government servant after remaining leave for a continuous period exceeding five years.
(1) No Government servant shall be granted leave of any kind for a continuous period exceeding five years.
(2) Where a Government servant does not resume duty after remaining on leave for a continuous period of five years, or where a government servant after the expiry of his leave remains absent from duty otherwise than on foreign service or on account of suspension, for any period which together with the period of the leave granted to him exceeds five years, he shall unless Government in view of the exceptional circumstances of the case otherwise determine, be removed from service after following the procedure laid down in the Orissa Civil Services (Classifications, Control and Appeal) Rules, 1962."9
Referring to the aforesaid Rule, Mr. Mohanty, learned Standing Counsel submitted that since the petitioner has remained on leave for more than five years unauthorisedly, it is inferred that he has abandoned the service as per the decision of the Hon'ble Apex Court as cited above. Perusal of the above provision shows that any Government servant remained on leave continuously for more than five years shall be eligible for removal from service after following the procedure laid down in the Orissa Civil Services (Classifications, Control and Appeal) Rules, 1962. On the other hand, before removal of an employee from service, a Departmental enquiry is imperative. Again also in Sub-Rule (2) of the Rules 72 has given exception to the application of the said provision as it is the Government to take any other view in exceptional circumstances.
12. In the decision reported in (2013) 10 SCC 253 (Vijay S. Sathaye v. Indian Airlines Limited and others), where Their Lordships observed at paragraphs-11 and 12 in the following manner:-
"11. Even otherwise, the petitioner was asked to continue in service till the decision is taken on his application. However, he did not attend the office of the respondents after 12-11-1994 in view of the above, as the petitioner had voluntarily abandoned the services of the respondents, there was no requirement on the part of the respondents to pass any order whatsoever on his 10 application and it is a clear-cut case of voluntary abandonment of service and the petitions are liable to be dismissed.
12. It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntary abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer."
13. With due regard to the above decision, it appears that in that case the petitioner went on leave but did not return to service for which it was inferred that he has voluntarily abandoned the services for which the bond under which that employee has worked has come to an end automatically. Further in that case the petitioner has asked for voluntary retirement from service and pending the application for consideration, the petitioner went on leave and did not return. Here it is not a case of voluntary retirement and here is also not a case that the petitioner went on leave by filing application and did not return. Here is a case the petitioner having acute illness went on leave and finally became mad for which ten years after being cured he was brought back to the original challenge. This fact has not been denied in the counter. When a person has become mad, any application or the medical certificate to that extent cannot be expected from the petitioner 11 but his family members may file. When there is no family member and a person has become a liability in the society, it is not correct to say that he being in sound mind did not file the application for leave or any medical certificate to that extent. Moreover, when leave application or the medical application are not called for and where no notice is issued to relieve from duty by the authorities, non-filing of same cannot take away the right of the concerned employee to ask for the pensionary benefit. On the other hand, Rule 72 has clearly maintained that in the event of leave more than five years, there has to be disciplinary proceeding to remove him from service. But in the instant case, no proceeding whatsoever has been started.
14. When the petitioner became ill and only could be traced out from Baripada in 2012, it cannot be said that he has voluntarily abandoned the services but for circumstances of his acute illness of schizophrenia or psychosis disorder, he remained absent till notional date of retirement and thereafter. So, it is not a case of abandonment of service voluntarily. Hence, the decision of the Hon'ble Apex Court as stated above, is not applicable to this case as the facts and circumstances of the case at hand are different from the facts and circumstances of that case. 12
15. Moreover, it is reported in AIR 1971 SC 1409 (Deokinandan Prasad v. The State of Bihar and others) where Their Lordships observed at paragraphs-23 to 25 and 34 and 35 in the following manner:-
"23. A contention has been taken by the petitioner that the order dated August 5, 1966 is an order removing him from service and it has been passed in violation of Art. 311 of the Constitution. According to the respondents there is no violation of Art. 311. On the other hand, there is an automatic termination of the petitioner's employment under R. 76 of the Service Code. It may not be necessary to investigate this aspect further because on facts we have found that R. 76 of the Service Code has no application. Even if it is a question of automatic termination of service for being continuously absent for over a period of five years, Art. 311 applies to such cases as is laid down by this Court in Jai Shanker v. State of Rajasthan 1996-1 SCR 825 = (AIR 1966 SC 492). In that decision this Court had to consider Regulation No.13 of the Jodhpur Service Regulations, which is as follows:
"13. An individual who absents himself without permission or who remains absent without permission for one month or longer after the end of his leave should be considered to have sacrificed his appointment and may only be reinstated with the sanction of the competent authority."13
24. It was contended on behalf of the State of Rajasthan that the above regulation operated automatically and there was no question of removal from service because the officer ceased to be in the service after the period mentioned in the regulation. This Court rejected the said contention and held that an opportunity must be given to a person against whom such an order was proposed to be passed, no matter how the regulation described it. It was further held to give no opportunity is to go against Art. 311 and this is what has happened here.
25. In the case before us even according to the respondents a continuous absence from duty for over five years, apart from resulting in the forfeiture of the office also amounts to misconduct under Rule 46 of the Pension Rules disentitling the said officer to receive pension. It is admitted by the respondents that no opportunity was given to the petitioner to show cause against the order proposed. Hence there is a clear violation of Art.
311. Therefore, it follows even on this ground the order has to be quashed.
xxx xxx xxx xxx
33. This Court in State of Madhya Pradesh v.
Ranojirao Shinde, 1968-3 SCR 489=(AIR 1968 SC 1053) had to consider the question whether a "cash grant" is "property" within the meaning of that expression in Arts. 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".
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34. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Art. 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 Art. 19(1)(f) and it is not saved by sub-article (5) of Art. 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Arts. 19(1)(f) and 31(1) of the Constitution, and as such the writ petition under Art. 32 is maintainable. It may be that under the Pensions Act (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 a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law".
16. With due respect to the decision, it appears that where there is no procedure followed in accordance with the concerned disciplinary proceeding and the person is removed from service, there is clear violation of the Constitutional Provisions as enshrined in Arts. 19(1)(f) of the Constitution. At the same time Their Lordships have held that there is clear violation of Article 311 of the Constitution for which the entire order of removal was quashed and the pensionary benefits were allowed.
17. In the decision reported in 105 (2008) CLT 309, Kishori Dash v. State of Orissa and others (supra) this Court 15 by interpreting Rule 8 (2) of the Rules 1981 read with Rule 72 of the Code observed in the following manner:-
"12. A conjoint reading of Rule-8 (2) of the Retirement Rules with Rule 72 of the Orissa Service Code clearly shows that when a primary school teacher remains absent for more than five years and does not resume his duty after the period of leave, can be removed from service by following the procedures laid down in the Orissa Civil Service (Classification, Control and Appeal) Rules, 1962. In other words, such a teacher cannot be removed from service without issuing a show cause notice and initiating a departmental proceeding as otherwise the same would clearly amount to violation of principle of natural justice and in the case of Government servant, it would be ultra vires to Article 311 (2) of the Constitution inasmuch as the same would not be in conformity with the relevant provisions of Orissa Civil Service (Classification, Control & Appeal) Rules, 1962".
18. With due regard to the above decision, it appears that this Court has taken view on the line of the decision taken by the Hon'ble Apex Court in the case of Deokinandan Prasad (supra) and it is aptly observed that in absence of any proceeding under the Orissa Civil Services (Classifications, Control and Appeal) Rules, 1962, a Primary School teacher even if remains for more than five years absent can neither be removed nor his pensionary benefits can be denied without following the due process of law as required under Orissa Civil Services (Classifications, Control and Appeal) Rules, 1962.
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19. Now adverting to this present case it has already been observed above that the petitioner worked up to 25.6.1983 continuously from 1968 and thereafter did not return to service but it was not within the human control as he suffered from acute illness with regard to his mental disorder or madness. Moreover, it is revealed from the copies of the representations made by the petitioner in 2012 that same have been made for fixation of pay according to Orissa Revised Scale of Pay Rules. Even if the medical certificate is not proved but due to lack of denial of the contents of the petition by the opposite parties-State Government and particularly opposite parties having admitted in counter that since 1986 he has not resumed duty, it must be observed that the petitioner was compelled to remain on leave due to illness which is not within the domain of the human control. So, relying upon the decision reported in the case of Deokinandan Prasad (supra) and the decision of this Court reported in the case of Kishori Dash (supra), the Court is of the view that petitioner has not abandoned service voluntarily but due to his acute illness remained away from his service. His non-attendance in the School cannot be said as abandonment of service. On the whole, this Court is of the view that the petitioner in the facts and circumstances has not abandoned the service voluntarily but remained absent from 17 service from 25.6.1983 onwards till the date of his superannuation. Point No.(i) is answered accordingly.
POINT NO.(ii)
20. It has been observed in the aforesaid paragraphs that petitioner has not abandoned the service voluntarily but for his acute illness remained absent without filing application from 25.6.1983 onwards and long after date of superannuation he again approached the authority for sanction of pension but the authorities refused to sanction the pension. When he has admittedly worked for more than ten years and no departmental proceeding was started during his service period, as per Rule 72 of the Code read with the decision of the Hon'ble Apex Court in Deokinandan Prasad (supra) and the decision of this Court, the petitioner is entitled to pension and gratuity.
21. Recruitment Rules 1981 read with the Orissa Civil Services (Pension) Rules, 1992 enshrine that if a person has rendered qualifying service for more than ten years, his pension can be fixed proportionately. Similarly under the said rules if an employee has worked for more than five years he is entitled to gratuity.
22. In the instant case, undoubtedly petitioner has worked from 1968 to 25.6.1983 continuously and thereby earned more 18 than ten years of qualifying service to receive pension and he is also entitled to receive gratuity. It is needless to say that although the petitioner remained absent without informing the authorities from 25.6.1983 till his notional retirement on 2.1.2001 because of the supervening circumstances which is beyond the human control as stated above, compelling the petitioner to remain on leave, the service of the petitioner is to be regularized till attaining the age of superannuation. Since he has not worked during that period, no arrear pay can be given because of the principle of "no work no pay" but his pay can be revised notionally from time to time keeping in mind the Orissa Revised Scale of Pay Rules applicable from time to time till his date of retirement. The contention of the State that the petitioner being Government servant should have approached the Tribunal instead of this Court is untenable in the facts and circumstances and writ is maintainable. Point No.(ii) is answered accordingly.
CONCLUSION
23. Considering all such aspects, the writ petition is disposed of with a direction to the opposite parties to sanction pension, gratuity and other pensionary benefits of the petitioner proportionately in accordance with Rules, 1981 and the Orissa Civil Services (Pension) Rules, 1992 after regularizing his service from 19 25.6.1983 till the date of his superannuation in accordance with law. The entire process must be completed by the opposite parties within a period of three months from today.
The writ petition is disposed of accordingly.
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Dr. D.P. Choudhury, J.
ORISSA HIGH COURT: CUTTACK Dated the 9th February, 2017/Kar