Orissa High Court
Bijaya Kumar Pattanaik vs Sate Of Odisha And Others ....... Opp. ... on 31 October, 2023
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.10333 of 2020
Bijaya Kumar Pattanaik ....... Petitioner
-Versus-
Sate of Odisha and others ....... Opp. Parties
For Petitioners : Mr. S.K. Nath,
Advocate
For Opp. Parties : Mr. S.N. Pattanaik,
Addl. Govt. Advocate
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P R E S E N T:
MR. JUSTICE SANJAY KUMAR MISHRA
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Date of Hearing: 17.08.2023 Date of Judgment: 31.10.2023
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S.K. Mishra, J. The Writ Petition has been preferred with a prayer
to set aside the order dated 10.02.2020 (Annexure-4), vide
which the representation dated 14.08.2019 of the Petitioner
for sanction of pension in his favour was rejected by the
Executive Engineer, Khordha Irrigation Division, Khordha
(Opposite Party No.2). A further prayer has been made to
direct the said Opposite Party for sanction of pension and
retirement benefits in favour of the Petitioner within a
stipulated time frame.
2. The brief background facts which lead to filing of
the Writ Petition are that, the Petitioner was appointed as
"Khalasi" under Work-Charged Establishment on 18.11.1967
to work under Salia Dam Sub-Division, Banpur. Thereafter,
he was brought over to Regular Establishment with effect
from 18.10.1978 and was allowed with G.P.F. Number and
was covered under the Group Insurance Scheme of the State
Government. The Petitioner continuing for about 10 years 11
months in the Work-Charged Establishment and for about
five years in a Regular Establishment, he was transferred to
Tangi Irrigation Section by the Opposite Party No.2 and was
on leave up to 30.05.1984. Due to non-joining of the
Petitioner, a Show Cause Notice was issued by the Opposite
Party No.2 on 24.10.1986, as to why his service shall not be
terminated due to willful absence from Government duty.
After filing of satisfactory reply, the Petitioner was transferred
to Berhampur Irrigation Division from Khordha Irrigation
Division by the Superintending Engineer, vide letter No.9012
dated 18.11.1986. Thereafter, the Opposite Party No.3 (The
W.P.(C) No.10333 of 2020 Page 2 of 28
Executive Engineer, South Irrigation Division, Berhampur)
reposted the Petitioner to work under Assistant Engineer,
Rushikulya Irrigation Sub-Division, Humma, vide Order
No.54 dated 04.12.1986. It is further case of the Petitioner
that from the transfer order as at Annexure-1, it is crystal
clear that the Superintending Engineer had passed mutual
transfer order between one Budheswar Das, Khalasi from
Berhampur Irrigation Division and the Petitioner from
Khordha Irrigation Division, clearly mentioning therein that
no T.T.A. and joining time is allowed. Instead, the actual
joining time is allowed as the transfers are made at their own
request. Further, it was clarified vide Office Order No.54 of
1986-87 (Annexure-2) that the Petitioner was reposted to the
Office of S.D.O., Rushikulya Irrigation Sub-Division, against
vacant post due to transfer of one Budheswar Das, Khalasi
and a copy of the said order as at Annexure-2 was
communicated to the Petitioner on 15.12.1986 by the S.D.O.
Salia Dam Sub-Division as mentioned at the bottom of the
said Order at Annexure-2. Pursuant to the orders as at
Annexures-1 & 2, the Assistant Engineer allowed Budheswar
Das to join in place of the Petitioner, whereas the Petitioner
W.P.(C) No.10333 of 2020 Page 3 of 28
was not allowed to join in place of Budheswar Das. Rather,
the Petitioner was reposted to Purusottampur Irrigation
Section No.II with headquarter at Hinjilicut, vide order dated
23.12.1986. The Petitioner attended the Office of the
Assistant Engineer, Rushikulya Irrigation Sub-Division,
Humma, and submitted joining report on 27.12.1986 and
came to know about his posting to Purusottampur Irrigation
Section No.II. Knowing about the same, the Petitioner
requested to post him under the Assistant Engineer, Humma,
who did not accept the joining report of the Petitioner. After
returning from Humma, the Petitioner reported such situation
to the Assistant Engineer, Salia Irrigation Sub-Division, who
in turn requested Assistant Engineer, Humma to accept the
joining report of the Petitioner. Thereafter, the Petitioner
represented several times before higher authorities. But there
was no response to the allegation of the Petitioner. Thereafter,
because of the said illegal action on the part of the authority
concerned, judicial proceeding continued till 2009. In the
meantime, as co-employees were superannuated, the
petitioner was also supposed to be retired from Government
service and prayed for pension. Because of inaction, he was
W.P.(C) No.10333 of 2020 Page 4 of 28
constrained to approach this Court by filing W.P.(C) No.11320
of 2009, which was disposed of on 18.07.2019 granting liberty
to the Petitioner to file fresh representation before the
Executive Engineer, Khordha, with a direction to consider
and dispose of the same in accordance with law. Accordingly,
the Petitioner submitted the representation on 14.08.2019
being so directed by this Court. The Opposite Party No.2
disposed of the representation of the Petitioner dated
14.08.2019 by rejecting the same, vide letter dated
10.02.2020 on the ground that the said representation merits
no consideration for pension, which is the subject matter of
challenge in the present Writ Petition.
3. It is further case of the Petitioner that the reason
assigned in the impugned rejection order dated 10.02.2020 is
unsustainable. The grounds of rejection of the representation
that the Petitioner was not working under the Khordha
Division after 31.03.1984 and he was not given retirement
from Government service on superannuation and interruption
of duty so also the claim of the Petitioner for pension will not
be governed by Rule 18 (3) of the O.C.S. Pension Rules is not
tenable. Though the Petitioner asked for providing copy of the
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Service Book under the Right to Information Act, the Opposite
Party No.2 intentionally avoided to provide the same. Though
the Petitioner submitted the pension papers before the
Opposite Party No.2, the same was returned on 19.02.2015
with a mention that Petitioner was not working under the said
Division till retirement. It is the case of the Petitioner that as
he had rendered service for a period of 19 years 5 months 3
days including the Work Charged service period, is entitled for
pension under Rule 18(3) of Orissa Pension Rules, 1992 as
decided in the judgment reported in 85 (1998) CLT (OATC) -
18. Hence, a prayer has been made to set aside the rejection
order as at Annexure-4 and direct the Opposite Party No.2 to
provide copy of the Service Book along with pension and
retirement benefits.
4. Being noticed, the State/Opposite Party Nos.1 to 3
filed their common Counter Affidavit taking a stand therein
that the Petitioner was appointed as Khalasi under Work-
Charged Establishment and was posted to work under Salia
Sub-Division, Banpur with effect from 11.11.1968 (F.N). He
was brought over to regular wages establishment with effect
from 18.10.1978, vide order dated 27.02.1979 of the
W.P.(C) No.10333 of 2020 Page 6 of 28
Superintending Engineer, Southern Irrigation Circle,
Berhampur. He was transferred from Salia Dam Sub-Division,
Banpur to Khordha Irrigation Sub-Division with headquarters
at Tangi by the Executive Engineer, Khordha, vide Office
Order dated 19.01.1984 and was relived from Salia Dam Sub-
Division, Banpur, under Khordha Irrigation Division,
Khordha, with effect from 31.03.1984 (F.N) in order to join in
his new place of posting at Tangi Irrigation Section, Tangi
under the same Division. However, the Petitioner refused to
receive the said relieve order which was confirmed vide letter
dated 04.04.1984 of the Assistant Engineer, Salia Dam Sub-
Division, Banpur. Instead of joining in his new place of
posting, the Petitioner applied for leave up to 30.05.1984 on
the ground of his wife's illness without any supporting
documents. After 30.05.1984, neither the Petitioner joined in
his duty nor applied for extension of leave and remained
absent unauthorizedly. Hence, he was served with Show
Cause Notice by the Executive Engineer, Khordha Irrigation
Division, Khordha, vide letter No.4602 dated 24.10.1986 to
submit satisfactory reply as to why his services shall not be
terminated due to his willful absence from duty. In response
W.P.(C) No.10333 of 2020 Page 7 of 28
to the said notice, after expiry of the scheduled date for
submission of Show Cause Reply, the Petitioner gave his
response to the said Show Cause Notice without any
satisfactory reply to justify his willful absence from duty. In
the meantime, the Petitioner was transferred from Khordha
Irrigation Division, Khordha and posted under the control of
Executive Engineer, Berhampur Irrigation Division,
Berhampur vide letter dated 18.11.1986 of the
Superintending Engineer, Southern Irrigation Circle,
Berhampur. The Executive Engineer, Berhampur Irrigation
Division, Berhampur reposted the Petitioner to Rushikulya
Irrigation Sub-Division, Humma against the existing vacancy
vide Office Order No.54 of 1986-87 dated 04.12.1986. The
Assistant Engineer, Rushikulya Irrigation Sub-Division
reposted him to Purusottampur Irrigation Section No.II with
headquarters at Hinjilicut, vide Office Order No.12 of 1986
dated 23.12.1986. However, the Petitioner did not join the
Office of the Assistant Engineer, Rushikulya Irrigation Sub-
Division, Humma and requested to post him under the Junior
Engineer, Humma Irrigation Section, which is not accepted by
the authority concerned. However, due to inadequate existing
W.P.(C) No.10333 of 2020 Page 8 of 28
staff for maintenance of canal work in Purusottampur
Irrigation Section No.II at Hinjilicut, the Petitioner was posted
to Purusottampur Irrigation Section vide letter No.324 dated
20.04.1987 of the Assistant Engineer, Rushikulya Irrigation
Sub-Division, Humma, addressed to the Executive Engineer,
Berhampur Irrigation Division, Berhampur. But the Petitioner
did not join the said office and was not working under the
said Division after 31.03.1984 and remained absent since
then. A further stand has been taken in the Counter that
unauthorized absence from duty for more than five years
leads to removal from service in terms of Rule-72(2) of Odisha
Service Code. Hence, the Petitioner is not eligible for pension
and has rightly not been given provisional pension and the
prayer made in the Writ Petition, being devoid of any merit, is
liable to be dismissed.
5. In response to the Counter Affidavit filed by the
State/Opposite Parties, a Rejoinder Affidavit has been filed by
the Petitioner reiterating the stand taken in the Writ Petition.
However, in addition to the same, in reply to Paragraphs-3 to
6 of the Counter Affidavit, it has been stated that in view of
the admission made in the Counter Affidavit, the Petitioner
W.P.(C) No.10333 of 2020 Page 9 of 28
had worked as Work-Charged employees for 10 years 11
months and 7 days and as Regular Employee for 5 years 5
months 13 days. Hence, in terms of the said admission made
in the Counter Affidavit, the total service period ,including
Work-Charge period, is 16 years 4 months 20 days, which is
treated as qualified service period for sanction of pension as
per Rule 18(3) of the Odisha Civil Services (Pension) Rules,
1992. But Opposite Party No.3 has referred to Rule-72(2) of
the Odisha Service Code, which is no way connected to
Odisha Civil Services (Pension) Rules, 1992. It has further
been stated in the Rejoinder Affidavit that since the Petitioner
was working for more than ten years, which is treated as
qualified service for pension, he is entitled to get pension as a
Class-IV Govt. Employees.
6. Mr. Nath, learned Counsel for the Petitioner,
reiterating the stand taken in the Writ Petition, submitted
that in view of the admitted facts on record, the Petitioner is
entitled for pension. To substantiate his submission so also
prayer made in the Writ Petition, Mr. Nath relied on the
Judgments reported in 83 (1997) C.L.T. (O.A.T) 42 (Uttam
Pradhan & others Vs. State of Odisha and others), 1997 (1)
W.P.(C) No.10333 of 2020 Page 10 of 28
OLR (CSR)-40 (Nakhaari Bewa Vs. State of Odisha), 2014 (1)
OLR 734 (Chandra Nandi Vs. State of Odisha), 105 (2008)
CLT 309 (Kishori Dash Vs. State of Orissa and others) and
2017(I) ILR - CUT - 906 (Karunakar Behera Vs. State of
Orissa and others).
7. Mr. Pattanaik, learned Additional Government
Advocate for the State/Opposite Parties, reiterating the stand
taken in the Counter Affidavit, submitted that the Petitioner's
grievance cannot be considered under the provision of Rule
18(3) of Odisha Civil Services (Pension) Rules, 1992, as it is
clear case of voluntary abandonment of service. He further
submitted that the Petitioner miserably failed to explain
satisfactorily for such long absence without any material
behind it. To substantiate the said submission, Mr. Pattnaik
relied on the judgment of the apex Court reported in (2000) 5
SCC 65 (Syndicate Bank Vs. General Secretary, Syndicate
Bank Staff Association and another).
8. Mr. Pattanaik further submitted that law is well
settled that if an employee remains absent beyond the
granted period of leave of any kind, he should be treated to
have resigned and ceases to be in service. Hence, though a
W.P.(C) No.10333 of 2020 Page 11 of 28
Show Cause Notice was given to the Petitioner for his
unauthorized absence beyond the leave period and the
explanation tendered by the Petitioner was found to be
unsatisfactory, thereafter no further Departmental Proceeding
was initiated against the Petitioner after tendering such
unsatisfactory explanation. In view of the Judgment rendered
by the apex Court, the Petitioner is to be treated to have
ceases to be in service because of such long unauthorized
absence.
9. From the pleadings of the parties as detailed
above, it is an admitted fact that the Petitioner was appointed
as Khalasi under Work-Charged Establishment with effect
from 11.11.1968. Thereafter he was brought over to Regular
Establishment from 18.10.1978 vide order dated 27.02.1979.
While working so, he was transferred from Salia Dam Sub-
Division, Banpur to Khordha Irrigation Sub-Division with
headquarters at Tangi by the Executive Engineer, Khordha,
vide Office Order dated 19.01.1984. He was relived from Salia
Dam Sub-Division, Banpur, with effect from 31.03.1984 in
order to enabling him to join new place of posting at Tangi
Irrigation Section, Tangi under the same Division. Instead of
W.P.(C) No.10333 of 2020 Page 12 of 28
joining in his new place of posting, the Petitioner applied for
leave up to 30.05.1984. After the said period, because of not
reporting for duty and not applying for any extension of leave
and remaining absent unauthorizedly, he was served with
Show Cause Notice on 24.10.1986 advising him to submit his
reply as to why his services shall not be terminated due to his
willful absence from duty. Thereafter, the Petitioner replied to
the said Show Cause Notice. Though the said reply was
unsatisfactory, no Departmental Proceeding was initiated
against the Petitioner for such unauthorized absence. Rather,
he was transferred from Khordha Irrigation Division, Khordha
and was posted under the control of Executive Engineer,
Berhampur Irrigation Division, Berhampur, by the
Superintending Engineer, Southern Irrigation Circle,
Berhampur, vide letter dated 18.11.1986. The said order of
transfer well demonstrates that such transfer was made on
the request of one Budheswar Das, Khalasi so also the
present Petitioner on mutual understanding. However,
instead of allowing the Petitioner to join in the place and
position held by Sri Budheswar Das, Khalasi, the Executive
Engineer, Berhampur Irrigation Division, reposted the
W.P.(C) No.10333 of 2020 Page 13 of 28
Petitioner to Rushikulya Irrigation Sub-Division vide order
dated 04.12.1986. Thereafter, again the Assistant Engineer,
Rushikulya Irrigation Sub-Division, Humma, reposted him to
Purusottampur Irrigation Section No.II with headquarters at
Hinjilicut, vide Officer Order dated 23.12.1986. On being so
reposted twice, which was contrary to the Office Order dated
18.11.1986 of the Superintending Engineer, Southern
Irrigation Circle, Berhampur, the Petitioner rightly requested
to post him under the Junior Engineer, Humma Irrigation
Section, in terms of letter dated 18.11.1986. But on the plea
of inadequate existing staff for maintenance of canal works in
Purusottampur Irrigation Section No.II at Hinjilicut, the
Petitioner was posted to the said Section vide letter dated
20.04.1987 by the Assistant Engineer, Rushikulya Irrigation
Sub-Division, Humma, for which the Petitioner was being
constrained to venture into series of litigations as detailed in
the date chart tendered by the learned Counsel for the
Petitioner dated 16.08.2022. Though the Petitioner was asked
to show cause vide notice dated 24.10.1986 for remaining
authorizedly absent from duty w.e.f. 30th May, 1984 and the
Petitioner gave his response to the said Show Cause Notice for
W.P.(C) No.10333 of 2020 Page 14 of 28
allegedly remaining absent beyond 31.03.1984, the Petitioner
attended the Office of the Assistant Engineer, Rushikulya
Irrigation Sub-Division, Humma, on 27.12.1986 and
requested to post him under Junior Engineer, Humma
Irrigation Section. Thereafter, he was never charge-sheeted or
asked to show cause for not reporting for duty at
Purusottampur Irrigation Section No.II, with headquarters at
Hinjilicut, in terms of the letter dated 20.04.1987. Further, a
stand has been taken in the Counter Affidavit that
unauthorized absence of a Government employee from service
for more than five years, leads to removal from service in
terms of Rule-72(2) of Odisha Service Code. The said Rule is
extracted below for ready reference.
"72. REMOVAL OF GOVERNMENT SERVANT
AFTER REMAINING LEAVE 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
W.P.(C) No.10333 of 2020 Page 15 of 28
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."
(Emphasis Supplied)
10. Admittedly, the said Rule prescribes that 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. Hence,
from the said provision enshrined under Rule 72(2) of the
Odisha Service Code, it is amply clear that before invoking the
said provision to remove an employee from service, the State
is to follow the prescribe procedure laid down under the
Orissa Civil Services (Classifications, Control and Appeal)
W.P.(C) No.10333 of 2020 Page 16 of 28
Rules, 1962 and it cannot be automatic. Further, it is also
admitted fact that invoking such provision enshrined under
Rule-72(2), no communication was made to the Petitioner till
he attained the age of superannuation to the effect that
because of his absence for more than five years, he is
removed from service. Rather, though the Petitioner was
asked to show cause and he tendered his explanation and it
was allegedly found unsatisfactory, no further enquiry was
conducted by the employer for such misconduct of
unauthorized absence beyond the leave period. Thereafter, the
Petitioner was transferred to different places. In order to
accommodate one Budheswar Das, Khalasi, on mutual
understanding, vide order dated 18.11.1986, the Petitioner
was transferred in place of Mr. Das and vice versa. Though
Mr. Das was allowed to join in the place and position of the
Petitioner, but he was not allowed to join in the said place
and position of Mr. Das in terms of the Office Order dated
18.11.1986. Thereafter, contrary to the said Office Order, the
Petitioner was reposted at various places. Being aggrieved by
such reposting orders issued by various authorities as
detailed above, the Petitioner was being compelled to give
W.P.(C) No.10333 of 2020 Page 17 of 28
representation to the authority concerned and so also
approached the Administrative Tribunal and this Court for
redressal of his grievances.
11. In Kishori Dash (supra), vide paragraphs-11 & 12,
the coordinate Bench held as follows:
"11. Rule 72 of the Orissa Service Code
provides that no Government servant shall be
granted leave of any kind for a continuous
period exceeding five years and 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.
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
W.P.(C) No.10333 of 2020 Page 18 of 28
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."
(Emphasis Supplied)
12. In Karunakar Behera (supra), the coordinate
Bench, relying on Kishori Das (supra), vide paragraphs-22 &
23 held as follows:
"22. In the instant case, undoubtedly
petitioner has worked from 1968 to 25.6.1983
continuously and thereby earned more than
ten years of qualifying service to receive
pension and he is also entitled to receive
W.P.(C) No.10333 of 2020 Page 19 of 28
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
W.P.(C) No.10333 of 2020 Page 20 of 28
Orissa Civil Services (Pension) Rules, 1992
after regularizing his service from
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."
(Emphasis Supplied)
13. In Nakhaari Bewa (supra), the Administrative
Tribunal vide paragraph-6 held/observed as follows:
"6. In this connection I think I should refer to
a decision rendered by a Division Bench of this
Tribunal in the case of Abhimanyu Das v. State
of Orissa and others, in O.A, 1561 of 1991
(1905) I ATT (Oat) 286. In the said case the
relevant Government Resolutions have taken
into consideration and it has been concluded
that the applicant therein who had continued in
work charged establishment and thereafter
taken over to regular establishment, was
entitled to pension as per the Government
Resolution. It was directed in the said judgment
that period spent by the applicant in the work
charged establishment had to be taken into
consideration for the purpose of computing the
total number of years of qualifying services
W.P.(C) No.10333 of 2020 Page 21 of 28
rendered by him till retirement on
superannuation for the purpose of pension.
In the above case the earlier judgment of this
Tribunal delivered on 21.08.1990 in T.A. No.787
of 1987 (Jacob Sahu v. State of Orissa and
others) which had been unsuccessfully
challenged before the Apex Court has been
taken notice of. Reference has also been made
therein to another judgment delivered by this
Tribunal on 18.08.1990. In O.A. 84 of 1987
(Mohan Singh and 6 others v. State of Orissa
and others). Referring to the Government
Resolution issued on 21.01.1965, which has
also been referred to in the present case, it was
observed in the said judgment.
"....Government is a model employer
and it is expected that they would be
fair to their employees at least to the
extent of written commitment made
to them. A person appointed and
working in Government for 20 years
or more and yet his service would be
treated as the work charged,
appears to us to be absurd. If
Government did not need these
persons they could have retrenched
them and recruited persons when
they need other work, but having
W.P.(C) No.10333 of 2020 Page 22 of 28
engaged them for such a long time,
we feel it unfair if they are not made
permanent...."
The above judgment delivered in the case of
Mohan Singh and 6 others (supra) by this
Tribunal had also been challenged before the
Apex Court and the SLP had been dismissed.
The present case seems to be fully covered
by the ratio decided in the earlier cases before
this Tribunal referred to above and I think the
Respondents must take notice of these
judgments and decide the claims of
pension/family pension of all such employees
and their widows including the applicant's
husband and the application who came within
the purview of the Finance Department
Resolution No.4419 dated 22.1.1965 and
reiterated in Finance Department Office
Memorandum No.5483 dated 6.3.1990."
14. The Division Bench of this Court in Chandra
Nandi (supra) while affirming the award passed by the
Tribunal recording the submissions made by the learned
Counsel for the State as to eligibility of an employee to receive
pension, ordered as follows:
"Learned counsel for the State, on the
contrary, submits that in order to be eligible to
W.P.(C) No.10333 of 2020 Page 23 of 28
receive minimum pension, the petitioner should
have been regularized at least one day prior to
his superannuation. We find that failure to
regularize him as a part of inaction on the part of
the State.
We, therefore, direct that the petitioner
should be treated to have been regularized
in service at least one day prior to his
superannuation notionally and we further
direct that calculating his entitlements, his
pension amount shall be fixed by the
opposite parties - State, in accordance with
the rules and the arrear pension of the
petitioner so calculated shall be paid to the
petitioner by the end of March, 2014 and further
the monthly payment of pension shall be made
to the petitioner regularly thereafter."
(Emphasis Supplied)
15. In Uttam Pradhan (supra), the Tribunal vide
paragraph-6 held as follows:
"6. In the circumstances, we would
dispose of this original application with
direction to the Respondents to take
appropriate action in accordance with the
Finance Department Resolution issued on
22.01.1965 and also the instructions
issued later in the matter of counting the
W.P.(C) No.10333 of 2020 Page 24 of 28
period spent by an employee in the work
charged establishment for the purpose of
pension and disburse the claim of the applicant
made in the original application within three
months from the date of receipt of a copy of this
order. There should not be any discrimination
made in the matter of extending the benefit to
the applicants since such benefit has been
extended to the employees similarly placed like
the late Dinabandhu Pradhan. The applicants if
would feel aggrieved on account of any order
passed by the appropriate authority pursuant to
the aforesaid direction, they are free to approach
this Tribunal seeking appropriate direction."
(Emphasis Supplied)
16. So far as the judgment cited by the learned
Counsel for the State/Opposite Parties i.e. Syndicate Bank
(supra), the same is relating to an industrial dispute matter
pertaining to a reference made by the appropriate
Government to the Industrial Adjudicator to answer as to
whether the action of the Bank Management in terminating
the services of the workman, who was a Clerk, is legal and
justified. If not, to what relief the workman is entitled to? The
Bank Management took a stand that such an action of
termination of service of the workman is based on terms of a
W.P.(C) No.10333 of 2020 Page 25 of 28
Bipartite Settlement between the Management of the Bank
and the employees with regard to voluntary retirement from
service of the Bank for his unauthorized absence from duty
for a long period and it was not necessary to conduct a
domestic enquiry. It was held that the Bank Management has
followed the terms of Clause-16 of the Bipartite Settlement
which is binding on the workman. Accordingly, it was further
held that in terms of the said settlement, the long
unauthorized absence of the workman was treated to be his
voluntary retirement from the service of the Bank and it was
not necessary for the Bank to hold an enquiry before passing
of the order of termination. Hence, this Court is of the view
that the said judgment cited by the learned Counsel for the
State/Opposite Parties is not applicable to the facts of present
case.
17. At this juncture, it is apt to reproduce below Rule-18 (3)
of the Odisha Civil Services (Pension) Rules, 1992.
"18. Conditions subject to which service
qualifies-
(3) Notwithstanding anything
contained in clauses (i) and (ii) of sub-rule (2)
a person who is initially appointed by the
Government in a work-charged
establishment for a period of five years or
W.P.(C) No.10333 of 2020 Page 26 of 28
more and is subsequently appointed to the
same or another post in a temporary or
substantive capacity in a pensionable
establishment without interruption of duty,
the period of service so rendered in work-
charged establishment shall qualify for
pension under this rule."
18. From the admitted facts on record, in terms of
Rule 72 of the Orissa Service Code, following the procedure
laid down in the Orissa Civil Services (Classifications, Control
and Appeal) Rules, 1962, no action was taken by the
State/Opposite Parties for removing the Petitioner from
service before he attained the age of superannuation. Also no
communication was ever made to the Petitioner to the said
effect. Hence, in view of the legal provisions for awarding
pension, so also the judgments cited by the learned Counsel
for the Petitioner, as detailed above, this Court is of the view
that the Petitioner is entitled for pension in terms of Rule
18(3) of Odisha Civil Services (Pension) Rules, 1992 and the
impugned rejection order dated 10.02.2020 under
Annexure-4, which was passed wrongly relying on Rule 72 of
the Orissa Service Code, is liable to be quashed. Accordingly,
the said rejection order dated 10.02.2020 is hereby set aside.
The Opposite Parties are directed to grant pension and other
W.P.(C) No.10333 of 2020 Page 27 of 28
benefits to the Petitioner proportionately in terms of Rule
18(3) of Odisha Civil Services (Pension) Rules, 1992, after
regularizing the service of the Petitioner from the date of
alleged unauthorized absence i.e. beyond 30th May, 1984, till
the date of his attaining the age of superannuation in
accordance with law. The entire process shall be completed by
the Opposite Parties within a period of two months from the
date of production of the certified copy of this Judgment.
19. Accordingly, the Writ Petition stands disposed of.
However, there shall be no order as to cost.
...................................
S.K. MISHRA, J.
Orissa High Court, Cuttack The 31st day of October, 2023/Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 02-Nov-2023 16:50:25 W.P.(C) No.10333 of 2020 Page 28 of 28