Bhairab Kumar Biswal vs State Of Odisha And Others ....... Opp. ... on 5 May, 2023

[Cites 5, Cited by 1]

Orissa High Court

Bhairab Kumar Biswal vs State Of Odisha And Others ....... Opp. ... on 5 May, 2023

The petitioner was appointed as an Asst. Teacher in Badmal Upper Primary School of Rairakhol Blok in the district of Sambalpur and accordingly he joined on 10.09.1957. He was promoted to the post of Head Pandit and joined his promotional post on 01.04.1961 in Satsama Upper Primary School. Both the Schools were aided Schools. He was selected to undergo Teacher's Training for Page 1 of 12 two years by the BDO, Rairakhol vide his Office order dated 21.07.1973 and he was relieved from service on 26.07.1973 for such purpose. The petitioner claims that prior to his relief from the School, he was suffering from fever from 21.07.1973 to 25.07.1973. Therefore, he submitted a representation on 26.07.1973 to the Sub-Inspector of Schools, Rairkhol to grant casual leave for the aforesaid period. But the said representation was not considered. Thereafter, due to continuation of his ailment he remained in hospital for treatment till 30.09.1980. After being cured of his illness he submitted his joining report on 01.10.1980 before the District Inspector of Schools, Sambalpur-1 along with medical certificate, but was not allowed to join. The school was taken over by the Government on 26.09.1989. In the meantime, the petitioner attained the age of superannuation from service on 30.06.1999. He submitted his pension papers in the office of the erstwhile D.I. of Schools, Sambalpur-1 for release of the pension as he had completed 15 years of service. But the pensionary benefit was not released. It is his case that he had remained on leave on account of his illness submitting proper Page 2 of 12 application to the authority. During the period from 1973- 1980 he neither resigned from service nor was retrenched/terminated by the authority. No disciplinary action was also taken against him for his long absence. On such facts the petitioner claims to be entitled to pension and other retiral benefits as he has completed the minimum qualifying service of ten years. But ultimately, nothing was done for which he approached this Court in W.P.(C) No 10066 of 2008. By order dated 25.03.2009, this Court directed the District Inspector of Schools to dispose of the representation of the petitioner within four weeks. Pursuant to such order, the Block Education Officer rejected the claim of the petitioner for pension. The petitioner has therefore approached this Court seeking the following prayer:-

"In the facts and circumstances, the humble petitioner fervently prays this Hon'ble Court to be graciously pleased to issue notice to the Opp.Parties, call for records and after hearing the Counsel of parties, issue a writ in the nature of Mandamus or any othe appropriate writ quashing impugned order No. 908 dtd.04.09.2017 under Annexure-1 and directing to the Opp.parties to regularize the period of absence of the petitioner i.e. from 21.06.1973 to 30.06.1999 treating the same as duty period in absence of initiation of disciplinary proceeding and release pension and pensionary benefits under the Odisha Aided Educational Institutions (Non- Government Fully aided Primary School Teachers) Retirement benefits Rules, 1986 and OCS Pension Page 3 of 12 Rules, 1992 taking together his service in aided and Govt. Schools within a stipulated period with 18% interest from the date of due and litigation charges as deems fit and proper;

And/or pass such other order or direction as deems fit and proper in the interest of justice; And for this act of your kindness, the humble petitioner shall as in duty bound, ever pray."

2. Counter affidavit has been filed by the Block Education Officer, Rairakhol (Opp. Party No.4). The stand of the opposite party as revealed from the counter is that as per the service particulars of the petitioner available from his service book, he continued in service from 10.09.1957 to 26.07.1973 and thereafter did not join in his duties. It is further submitted that the Odisha Aided Educational Institutions (Non-Government Fully Aided Primary School Teacher) Retirement Benefit Rules, 1981 came into force w.e.f. 1st day of April, 1982. The period of service of the petitioner from 10.09.1957 to 31.03.1973 cannot be considered under the said Rules.

3. The petitioner has filed a rejoinder refuting the averments of the counter. He states that he submitted joining report on 01.10.1980 before the erstwhile D.I. of Schools, Sambalpur-1 but was not allowed to join and while awaiting joining report he attained the age of Page 4 of 12 superannuation on 30.06.1999 and after the date of retirement he approached the B.D.O. for returning his service book and thereafter submitted pension papers. He further states that since the School was taken over by the Government from 05.02.1989, which is before the date of his superannuation, he is entitled to pension and pensionary benefits.

4. Heard Mr. B.N. Parida, learned counsel for the petitioner and Mr. P.K. Panda, learned Standing Counsel for the School and Mass Education Department.

5. Mr. Parida would argue that the petitioner, having admittedly worked for more than ten years uninterruptedly is entitled to pension as per Rule 8 (2)(a) of the Orissa Aided Educational Institutions' Employees Retirement Benefit Rules, 1981 (in short '1981 Rules'). He further submits that the petitioner was prevented from joining his services. Neither any Disciplinary Proceeding was initiated against him nor any show cause notice was served upon him. Therefore, the authorities cannot deprive him from pension and other retirement benefits as they had not taken recourse to Rule 72(2) of the Orissa Service Code. Page 5 of 12

In support of his contentions as above, Mr. Parida has referred to some decisions of this Court, namely, Karunakar Behera vs. State Orissa, reported in 2017 (1) OLR 615 and Kishore Das vs. State of Orissa, reported in 105 (2008) CLT 309.

6. Mr. P.K.Panda, on the other hand, argued that the undisputed facts of the case would clearly show that the petitioner had voluntarily abandoned his service at the relevant time. If he was prevented from joining his duties he could have raised grievance before the competent authority at the relevant time but he chose to sleep over the matter and only because the school was taken over by the Government, he decided to stake his claim for pension and other benefits for obvious reasons.

7. From the rival pleadings and contentions noted above, it is evident that the following issues fall for determination in the present case;

I. Whether in the facts and circumstances of the case, the petitioner can be said to have voluntarily abandoned his service with effect from 26.07.1973.

Page 6 of 12 II. Whether the petitioner is entitled to pension and other retiral benefits.

8. Before proceeding to answer the questions as referred above it would be apposite to refer to the law relating to abandonment of service. The expression 'abandonment of service' has not been defined in any of the relevant statutes. In this context, the observations of the Supreme Court of India in the case of G.T. Lad vs. Chemical and Fibers of India Limited, reported in (1979) I SCC 590 are noteworthy.

"In the Act, we do not find any definition of the expression 'abandonment of service'. In the absence of any clue as to the meaning of the said expression, we have to depend on meaning assigned to it in the dictionary of English language. In the unabridged edition of the Random House Dictionary, the word 'abandon' has been explained as meaning 'to leave completely and finally; for- sake utterly; to relinquish, renounce; to give up all concern in something'. According to the Dictionary of English Law by Earl Jowitt (1959 edition) 'abandonment' means 'relinquishment of an interest or claim'. According to Blacks Law Dictionary 'abandonment' when used in relation to an office means 'voluntary relinquishment. It must be total and under such circumstances as clearly to indicate an absolute relinquishment. The failure to perform the duties pertaining to the office must be with actual or imputed intention, on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and is a question of fact. Temporary absence is not ordinarily sufficient to constitute an abandonment of office'.

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From the connotations reproduced above it clearly follows that to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. In Buckingham Co. v. Venkatiah & Ors. it was observed by this Court that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. Thus, whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case."

Thus, the question of voluntary abandonment of service on the part of an employee is essentially a question of fact to be determined from the surrounding circumstances of each case.

9. There is no dispute that the petitioner joined in service on 10.09.1957 in Badmal U.P. School from where he was transferred to Satsama U.P. School on 01.04.1961. He served in the school till 26.07.1973. Both the schools were aided educational institutions at the relevant time being governed by private management. The petitioner claims to have suffered from illness for which he submitted leave application along with medical prescriptions. Page 8 of 12 However, not a scrap of paper has been produced by him before this Court or referred to in any of the documents enclosed to the writ petition in support of such claim. He claims to have submitted his joining report to the District Inspector of Schools, Sambalpur along with Medical Certificate but the same was not accepted. It goes without saying that refusal of employment amounts to termination of service which the petitioner could have challenged before the competent authority but he did not do so. This is a significant omission on his part which strongly suggests that he was no longer interested in continuing in service as otherwise there was no reason for him not to approach the appropriate forum against the refusal of employment by the management.

10. The petitioner has claimed that he was suffering from illness and was under treatment but as already observed, not a scrap of paper was produced in support thereof. All these facts cumulatively taken can only suggest that he had no interest or intention to continue in service. Moreover, he not having challenged the so-called refusal of employment by the Management on 01.10.1980, must be Page 9 of 12 deemed to have been terminated from service from that date. Therefore, by the time the School was taken over by the Government, i.e. on 05.09.1989, he was no longer an employee of the School so as to be covered by the provisions of 1981 Rules.

11. Such being the factual position it is entirely inequitable on the part of the petitioner to invoke the provision under Rule 72 (2) of the Odisha Service Code. The said rule reads as under:-

"(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 suspensions, 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 Odisha Civil Services (Classifications, Control and Appeal) Rules, 1962."

12. The said Rule would arise only when a Government servant does not resume duty after remaining on leave for continuous period for five years. In the instant case, there is not a shred of evidence to show that the petitioner had either applied for or was granted leave. Page 10 of 12 Thus, reference to Rule 72 (2) of the Odisha Service Code is fallacious.

13. As regards the case laws relied upon by the petitioner, this Court finds that in the case of Karunakar Behera (supra) the leave period was regularized by the authority by directing the concerned Headmaster to draw the leave salary of the petitioner. The concerned employee thereafter remained on unauthorized leave for which this Court referred to the provision under Rule 72 of the Code. In the case of Kishore Das (supra), the petitioner's wife had approached this Court in a writ petition claiming family pension etc., which was disposed of directing the Inspector of Schools to verify the relevant records and to pass necessary order with regard to payment of the petitioner's dues. The petitioner thereafter submitted all relevant documents before the Inspector of Schools who verified the same and recommended her case to the Director, Elementary Education for sanction of the dues and to move the Government for regularization of the leave period of her deceased husband. No such exercise was done in the present case.

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Thus, the cases relied upon by the petitioner can be easily distinguished from the facts of the present case.

14. From the foregoing discussion, therefore, this Court is of the considered view that the petitioner had voluntarily abandoned his service for reasons best known to him. Moreover, his claim of having made attempts to re- join employment after recovery from his purported illness also appears to be far-fetched to be believed and in any case, is by itself a matter to be held against him for not having raised any grievance before the appropriate authority for as long as 17 years.

15. In view of the findings as above, the question of the petitioner being entitled to pension and other retiral benefits does not arise.

16. For the foregoing reasons therefore, this Court finds no merit in the writ petition, which is therefore, dismissed.

.................................

                                            Sashikanta Mishra,
                                                 Judge


Orissa High Court, Cuttack,
The 5th May, 2023/ A.K. Rana, P.A.
               Digitally signed by
AJAYA      AJAYA KUMAR RANA
                                                                 Page 12 of 12
KUMAR RANA Date: 2023.05.05
           16:55:09 +05'30'

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