Orissa High Court
Rabindra Kumar Sahoo vs Orissa State Cashew Development ... on 11 July, 2017
THE HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No.20418 of 2013
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Rabindra Kumar Sahoo ... Petitioner
-Versus-
Orissa State Cashew Development Corporation Limited
& others ... Opposite Parties
For Petitioner : M/s. P.K. Mohanty, Senior Advocate
along with
M/s. D.N. Mohapatra, J. Mohanty,
P.K. Nayak, S.N. Dash & A. Das
For Opposite Parties: M/s. R.B. Das, S.C. Dash &
S.N. Jena
(For Opposite Party Nos.1 and 2)
Additional Government Advocate
(For Opposite Party No.3)
PRESENT:
THE HON'BLE DR. JUSTICE D.P. CHOUDHURY
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Date of hearing: 9.5.2017 Date of Judgment: 11.07.2017
___________________________________________________
Dr. D.P. Choudhury, J. Challenge has been made to the inaction of the
opposite parties by not making payment of the arrear differential
salary on account of 6th Pay Commission with effect from
1.1.2006and other consequential benefits.
2FACTS
2. The factual matrix leading to the writ petition is that the petitioner was appointed as General Manager (Finance) in Orissa State Cashew Development Corporation Limited (hereinafter called "the Corporation") on 12.1.1990. Subsequently he also worked as Company Secretary in addition to his own work. On 31.5.1996 the petitioner was in-charge of the Managing Director in his absence vide Government Notification No.17650 dated 31.5.1996. While the matter stood thus, the Board of Directors in their 155th meeting held on 26.7.2008 allowed the petitioner the scale of pay of Rs.12,000- 16,500/- in his post of General Manager (Finance) and Company Secretary. Thereafter the petitioner served a notice for voluntary resignation after completion of service of 19 years. The Board of Directors in their 156th meeting held on 10.9.2008 accepted the resignation and consequently petitioner was relieved on 30.9.2008. After being allowed to quit the job, he could be able to join the present organization, namely, Baitarani West Coal Company Limited which is also a State Government undertaking. While leaving the Corporation the petitioner has requested to pay all his dues including differential salary after pay fixation, gratuity, leave salary and other benefits. In spite of the 3 representation nothing happened. Then on 6.4.2010 he made another representation and the Chairman of the Corporation also directed for payment of the arrear benefits after fixation of pay under the Orissa Revised Scale of Pay Rules, 2008. As no action was taken, petitioner filed successive representations but they have been kept as such without taking steps thereon. As the dues are not applicable, he filed this writ petition seeking revision of pay as admissible under 6th Pay Commission with effect from 1.1.2006 and other service benefits including interest thereon.
3. Per contra, the counter is filed by the Corporation refuting all the allegations. On the other hand, they challenge the writ petition as not maintainable. It is admitted by the opposite parties that the petitioner has served notice for his resignation from the job but there is no specific reason for resignation except with the personal reason. He was permitted to resign with effect from 30.9.2008 by the 156th meeting of the Board held on 10.9.2008. The resignation of the petitioner was accepted with effect from 30.9.2008. It is also the case of the opposite parties that the ORSP Rules, 2008 was made applicable by virtue of the letter of the Administrative Department dated 4.3.2010 directing to release the revised pay of the employees of 4 the Corporation from 1.1.2010 and pay the arrears for the period from 1.1.2006 to 31.12.2009 in suitable installments without affecting the liquidity and business of the Corporation subject to approval by the Administrative Department, i.e., Agriculture Department as well as Public Enterprises Department. Then the proposals were mooted for payment of the arrears installment- wise and on different occasions the Government in Agriculture Department approved the proposal of the Corporation vide letters dated 21.11.2011, 31.12.2012 and 27.6.2014. In view of the letters of the Department, the arrears of the employees of the Corporation were prepared and approved accordingly.
4. It is the further case of the opposite parties that in regard to payment of leave salary of his unutilized Earned Leave, Gratuity and arrear Dearness Allowance for the period from 1.1.2006 to 30.9.2008 in addition to the claim of arrear revised pay, the Board of Directors of the Corporation in their 146th Meeting held on 3.5.2006 authorised the Joint Secretary to Government in Agriculture Department to prepare draft charges against the erring officials involved in irregular procurement of 1,00,000 numbers of cashew grafts and a decision was taken to frame draft charges against one Shri B.S. Panda, Ex-Managing Director and one Shri A.K. Patnaik, Ex-General Manager. Since 5 the petitioner at that time was functioning as General Manager (Finance) and Company Secretary and he was insisting for immediate relieve from the job, the Corporation in anticipation of any responsibility to be fixed on the petitioner, his dues were kept pending till finalization of the related cases so as to recover the excess amount from him. Later on 5.5.2006 the draft charges against Shri Panda and Shri Patnaik were approved by the concerned Secretary of the Department. Since the Corporation was not able to know the consequence of the responsibility to be fixed, the payment admissible to the petitioner was kept pending.
5. It is also the case of the opposite parties that the Board in their 77th meeting took decision on 1.3.1996 that since the Corporation was under Group 'D' category of State Public Sector Enterprises, the petitioner being in the post of General Manager was eligible for the pay scale of Rs.3,000-4,500/- instead of Rs.3,700-5,000/- and accordingly the Board allowed the Pay Scale of Rs.3,000-4,500/- with two additional increments to the petitioner with effect from March, 1995. But subsequently the scale of pay was revised under the ORSP Rules, 1998 with effect from 1.1.1996 under the revised scale of pay of Rs.10,000-15,200/-. So far the claim of the petitioner to grant 6 the pay scale of Rs.12,000-16,500/- (pre-revised scale of pay of Rs.3,700-5,000/-) was allowed by the 155th meeting of the Board of Directors held on 26.7.2008 and accordingly petitioner got the said scale of pay. Since the scale of pay allowed by the Board is higher than the scale of pay prescribed by the Government in Public Enterprise Department, it was required for approval by the State Government. But in the meantime the petitioner has served notice for quitting the job with request to relieve him by 30.9.2008. Thereafter the petitioner was not eligible for revised scale of pay. However, in the 156th meeting the resignation of the petitioner was accepted and he was relieved.
6. The opposite parties further averred that the factual aspect for not releasing the arrears of the petitioner has been well explained to the State Government and it is pending. So, the Corporation has neither rejected nor allowed the arrears by leaving the matter to the Government to take a decision.
7. The petitioner filed rejoinder to the counter reiterating the contents of the writ petition and further alleged that the opposite parties have suppressed material facts. Be it stated that the Board in their 146th meeting discussed the issue of illegal procurement of one lakh cashew grafts during the year 7 2000-2001 and at that time a proceeding was drawn up against the petitioner and kept him under suspension. The disciplinary proceeding initiated against the petitioner vide memorandum of article of charges dated 15.2.2003 being enquired did not find any fault with the petitioner and in the meeting dated 5.5.2006 the petitioner was exonerated of all charges and it was decided to frame fresh charges against Shri B.S. Panda and Shri A.K. Patnaik. The opposite parties have taken false plea by suppressing the material facts. As the petitioner has been exonerated of all charges, any proceeding against Shri B.S. Panda and Shri A.K. Patnaik being not finalized, waiting for the approval of the Government against them has no any nexus with the charges against the petitioner from which he has been exonerated. This fact has been suppressed by the opposite parties by not bringing to the notice of the Court and as such the seniority of the petitioner cannot be ignored. This is either plea to deny the right of the petitioner to receive salary. So, the question of waiting for any sort of proposal to frame charge against the petitioner is an afterthought and harassment to the petitioner to deny his claim. When the petitioner has already left the job, it is for the Administrative Department and the Corporation to clear his back wages.
8SUBMISSIONS
8. Learned counsel for the petitioner submitted that the opposite parties are harassing the petitioner even if there is no any departmental proceeding or criminal proceeding pending against him. He further submitted that in spite of the acceptance of his resignation, the emoluments he is entitled to must be made available within short period. Learned counsel for the petitioner further submitted that when the Board has accepted the resignation of the petitioner, there is no point in keeping his dues pending. According to him, the opposite parties are sitting over the matter of the petitioner just to harass him even if there is no any departmental proceeding initiated against him. He further submitted that time to time the pay has been revised in 1998 and in 2008. So, he is entitled to the benefit of both the ORSP Rules. Hence, he submitted to allow the writ petition and direct for payment of the arrears to the petitioner.
9. Per rival contention, learned counsel for the opposite parties while opposing submitted that the petitioner although has been absolved from charges but stigma is there for clearing his dues. According to him, the proposal has been given to the Government against two persons and same has been pending there to exonerate them from the charges and unless and until 9 the Government instruction is received, it is difficult for the Corporation to make payment of the arrears to the petitioner. He further submitted that since the petitioner was facing charge and his colleagues have already been departmentally proceeded, any sort of money to be recovered from them along with the petitioner cannot be denied. In order to recover the financial loss of the Corporation from arrear salary of the petitioner in anticipation of the order of the Government, the Corporation has rightly withheld the benefit. So, he submitted to dismiss the writ petition.
10. Main point for consideration:-
(i) Whether the petitioner is entitled to the arrear salary and other connected service benefits?
DISCUSSION
11. It is admitted fact that the petitioner was the General Manager and Company Secretary of the Corporation. It is not in dispute that the petitioner was allowed the scale of pay of Rs.12,000-16,500/- with effect from 1.1.2006 in the 155th Meeting of the Corporation. It is also admitted fact that the ORSP Rules 2008 was allowed to be operated by making payment of arrear amounts on installments by the State Government in Agriculture Department.
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12. By going through the pleadings of both the parties and considering the contentions of the respective parties, it appears that there was a proceeding for financial irregularities against Shri Panda and Shri Patnaik but not pending against the present petitioner on the date of his resignation although there was proceeding against him and that was dropped. Such fact is not challenged by the opposite parties. So, there was no Departmental proceeding pending at any point of time against the present petitioner.
13. When there is no any departmental or criminal proceeding against the petitioner pending and the resignation of the petitioner having been already accepted in the 155th meeting of the Board, there lies truth with the case of the petitioner.
14. Apart from this, it is admitted fact that the scale of pay of 1998 is applicable to all employees of the Corporation. There is no any doubt that the State Government in Agriculture Department have issued the letter to release the arrear scale and other benefits as per the norms of the Government issued from time to time. Similarly the scale of pay of Rs.3,700-5,000/- which was pre-revised scale of pay of Rs.12,000-16,500/- cannot be denied to the petitioner merely on the plea that that pay was not admissible by the Public Enterprise Department 11 when no document has been cited by the opposite parties to support them. Not only this but also it is evident from Annexure-5 that in 155th meeting the predecessor of the petitioner was receiving the scale of pay of Rs.3,700-5,000/- as General Manager and Company Secretary of the Corporation and accordingly they allowed him scale of pay of Rs.12,000-16,500/- . Moreover, the meeting was held on 26.7.2008 on which date the petitioner was drawing the basic pay of Rs.13,900/- in the scale of pay of Rs.10,000-15,200/- under the ORSP Rules, 1998. When all the matters have been thrashed out in the meeting, the question of suppression of material facts by the petitioner about the scale of pay of Rs.3,700-5,000/- that he was getting purportedly alleged by the opposite parties is not correct. So, he is entitled to the scale of pay of Rs.12,000-16,500/- (pre- revised scale Rs.3,700-5,000/-) inasmuch as his predecessor was receiving such salary and there is no point to deny such amount to the petitioner.
15. It is needless to say that as per Annexure-12 the representation of the petitioner has been favourably considered by the Government and Government have directed after fixation of pay of the petitioner with effect from 1.1.2006, the arrear dues be made available to the petitioner. So, the arrears of pay 12 as per the 6th Pay Commission under the modus operandi prescribed by the Government in Agriculture Department would be also admissible to the petitioner.
16. Learned counsel for the opposite parties tried to convince the Court that due to draft charges against other persons, the arrears are being held up. When no proceeding is there and the resignation of the petitioner was accepted, there is no reason under law for blocking his entitlement. So, the pay as per the decision taken by the Board in respective meeting as discussed hereinabove read with the notification of the State Government in Agriculture Department, the petitioner would be entitled to all such arrear payments. So far as payment of Gratuity is concerned, the same should be made available then and there after 30.9.2008 under Payment of Gratuity Act. When no departmental/criminal proceeding pending against him on the date of his resignation, the plea of the opposite parties for withholding such benefit is equally untenable. Similarly leave salary as admissible should be available to him if there is unspent leave in his credit on the date of his resignation. It will not be out of place to mention that there are number of representations made by the petitioner but no action has been taken. It is absolutely callousness of the concerned Department 13 to clear the dues of the petitioner. The point is answered accordingly.
CONCLUSION
17. The writ petition is filed to fix up the pay of the petitioner in the scale of pay of Rs.12,000-16,500/- with effect from 1.7.2008, revised scale of pay as per the ORSP Rules from 1.1.2006, arrear D.A. declared from time to time with effect from 1.1.2006 and the leave salary on the unspent leave. Finally it has been prayed to pay the Gratuity amount under the Gratuity Act. Not only this but also he has asked for the interest on the payment he is entitled to. As discussed above, under the scale of pay of Rs.12,000-16,500/- with effect from 1.7.2008, the arrear salary under the ORSP Rules 2008 and other connected benefits as admissible under law should be made available to the petitioner. Similarly, leave salary on unspent leave is a matter of right of the petitioner. Hence, leave salary must be also disbursed after calculating the same to the petitioner. Provision under the Payment of Gratuity Act specifies that if the employee has rendered qualifying service for five years or more, he is entitled to Gratuity, there is no reason to withhold the Gratuity of the petitioner when he has admittedly rendered 19 years of qualifying service.
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18. In terms of above discussion, it has been already observed that the petitioner is entitled to the arrear salary in the scale of pay of Rs.12,000-16,500/- with effect from 1.7.2008. Also it has been observed that he is entitled to the revision of pay under the ORSP Rules 2008 with effect from 1.1.2006. So, he is also entitled to arrear D.A. declared from time to time basing on re-fixation of such pay from 1.1.2006. In that regard arrear D.A., if any, after calculation also should be made available to the petitioner. The Gratuity as admissible under the Payment of Gratuity Act should be also disbursed to the petitioner. Thus, the Court direct the opposite parties to calculate the arrear of pay, D.A., leave salary and Gratuity as observed above within a period of three months from today and disburse the same to the petitioner within four weeks thereafter failing which the opposite party-Corporation has to pay the amount calculated with interest thereon at the rate of 9% per annum from today till the date of actual payment.
The writ petition is disposed of accordingly.
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Dr. D.P. Choudhury, J.
ORISSA HIGH COURT: CUTTACK Dated the 11th July, 2017/Kar 15