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2007 DIGILAW 394 (ORI)

Bhaskar Das v. O. S. R. T. C.

2007-05-18

I.MAHANTY

body2007
JUDGMENT I. MAHANTY, J. : The petitioner, Bhaskar Das, has filed the present writ application seeking a direction to the opp.parties for release/payment of his retirement dues as well as the other legitimate dues and prays to quash the orders of punishment passed against the petitioner after his retirement vide Annexures - 2, 3, 4, 5 and 7 to the writ application. 2. The petitioner was appointed as a Conductor in the Orissa Road Transport Company (for short, “the ORT Company”) in the year 1964. His services were regularized as Conductor in the ORT Company on 20.10.1989. In the year 1992, the ORT Company merged with Orissa Road Transport Corporation (for short, “the Corporation”) and the petitioner continued to serve under the Corporation. In course of such service, the petitioner was trans¬ferred on 19.11.1997 from DTM, Cuttack Zone to joint at DTM, Puri Zone on 28.11.1997. The petitioner submitted his joining report before the DTM, Puri on 26.1.1997, but the same was not accepted on the plea that the Employees’ Union had filed a case before the Hon’ble Orissa High Court in O.J.C. No.15882 of 1997 which was pending and that an order of status quo was passed therein on 24.11.1997. Ultimately, petitioner’s joining report was accepted on 13.8.1999 with effect from 4.8.1998 even while the order of status quo in the aforesaid O.J.C. No.15882 of 1997 was prevail¬ing and the petitioner retired from service with effect from 28.2.1999 on attaining the age of 58 years vide Annexure-1 dated 1.2.1999. After the retirement from service on 28.2.1999 as stated herein above, the DTM, Cuttack, passed orders for recovery of Rs.20,832.90 p. on 3.12.1999 allegedly for the negligence and breach of order on account of short-fall of collection for the period May 1994 to December 1994 vide Annexure-2. Similar orders for different periods on the self-same date, i.e., 3.12.1999 were also passed vide Annexures-3, 4 and 5. Thereafter a show cause notice was issued to the petitioner on 31.7.2000 vide Annexure-7 to show cause as to why the petitioner was absent from service, i.e., from 20.11.1997 to 29.2.1999 and why such absence should not be treated as leave and why disciplinary action shall not be initiated against the petitioner. 3. Thereafter a show cause notice was issued to the petitioner on 31.7.2000 vide Annexure-7 to show cause as to why the petitioner was absent from service, i.e., from 20.11.1997 to 29.2.1999 and why such absence should not be treated as leave and why disciplinary action shall not be initiated against the petitioner. 3. In view of the aforesaid fact, the petitioner filed present writ application challenging orders of punishment and recovery of money vide Annexures-2, 3, 4 and 5 as well as the show cause notice vide Annexure-7. 4. Mr. S. K. Rath, learned counsel for the petitioner, submitted that the orders of punishment issued by the D.T.M., Puri on 3.12.1999 vide Annexures-2, 3, 4, 5 as well as the show cause notice vide Annexure-7 ought to be quashed and declared bad in law on the following grounds : (i) Order of punishment and departmental proceeding are bad in law since the punishment have been imposed and the show cause notice issued after seizure of the employer-employee relation¬ship; and (ii) Neither the Regulations of the OSRTC nor the Standing Orders of the ORT Company provide for such initiation of departmental proceeding or imposition of punishment after retirement of an employee and further that the DTM, Cuttack who has issued the impugned orders of punishment vide Annexures-2 to 5 and show cause notice vide Annexure-7 has no jurisdiction since the peti¬tioner had been transferred to DTM, Puri and while serving under the said Division attained the age of superannuation. Mr. Rath further submitted that the petitioner having re¬tired from service with effect from 28.2.1999 has not been paid any amount of money except Rs.10,000/- and, for such delay, learned counsel submitted that the payments withheld ought to be released to the petitioner with interest due to the delay caused by the Corporation. The learned counsel further submitted that the Orissa Civil Service Pension Rules have no applicability inasmuch the petitioner was originally an employee of the ORT Company, and such status was continuing even though the said Company was merged with the OSRTC and employees of the ORT Compa¬ny were not entitled to pensionary benefits under the Orissa Civil Service Pension Rules. The learned counsel further submitted that the Orissa Civil Service Pension Rules have no applicability inasmuch the petitioner was originally an employee of the ORT Company, and such status was continuing even though the said Company was merged with the OSRTC and employees of the ORT Compa¬ny were not entitled to pensionary benefits under the Orissa Civil Service Pension Rules. Therefore, the Orissa Civil Service Pension Rules cannot be said to be applicable to the facts of the case of the present petitioner nor from the basis for justifying the imposition of punishment or issuance of show cause impugned herein. In this respect, Mr. Rath placed reliance in Bhagirathi Jena v. Board of Directors, OSFC and others, Vol.88 (1999) CLT 564 (SC), wherein the Hon’ble Supreme Court came to hold that contin¬uance of departmental proceeding by the Orissa State Financial Corporation after retirement of its employees is illegal. Learned Counsel also placed reliance in Chandra Singh v.State of Rajas¬than and another, AIR 2003 SC 2889 , wherein the Hon’ble Apex Court in paragraph 39 of the said judgment came to held that departmental proceedings can continue so long as the employee was in service and the said proceeding can continue if there exists specific provisions in the Pension Rules. 5. Learned counsel for the OSRTC has filed a written note admitting therein that the petitioner was an erstwhile employee of the ORT Company and after the merger the petitioner was only entitled to the benefits under the EPF, Scheme, but was not entitled to pension under the Orissa Civil Service Pension Rules. In this respect, learned counsel for the OSRTC was asked to indicate any provision of law and/or employment under which the imposition of punishment or issuance of show cause could be justified against the petitioner. But, the learned counsel fairly submitted that since the petitioner was an erstwhile employee of the ORT Company, Orissa Civil Service Pension Rules is not ap¬plicable to the case at hand and, therefore, no condition of service or rule of law exists to support such an action. Learned counsel for the OSRTC further submitted that so far as punishments under Annexures- 2 to 5 are concerned, since they relate to a period when the petitioner was serving under the Corporation, the proceedings were initiated against the petition¬er while he was in service, but the same were finalized only after his retirement. 6. Learned counsel for the OSRTC further submitted that so far as punishments under Annexures- 2 to 5 are concerned, since they relate to a period when the petitioner was serving under the Corporation, the proceedings were initiated against the petition¬er while he was in service, but the same were finalized only after his retirement. 6. To verify such assertion, learned counsel for the Corporation was called upon to produce the entire case records of the petitioner in order to satisfy the Court about such aver¬ments. Learned counsel for the Corporation submitted that the record containing the proceedings against the petitioner was not available in their records since the Puri Unit of the Corporation was closed down since the year 2002 and, therefore, he produced a file said to be containing copies of the proceedings against the petitioner collected from the personal file of the petitioner and copies of the orders passed thereon. I have perused the said file containing certain records of the disciplinary proceedings against the petitioner, but no evidence of any service of notice of initiation of proceeding against the petitioner is available in the said file. Therefore, even assuming that statement of the learned counsel for the Corporation to be correct and that recov¬ery proceeding had been initiated during the service career of the petitioner, yet there is no evidence on record to indicate the service of such notice on the petitioner. The presumption of pendency of the recovery proceeding, as sought to be advanced by the learned counsel for the Corporation, cannot be accepted. The further question that arises for consideration is if the recovery proceeding/disciplinary proceeding can continue or be passed after the superannuation of the petitioner. 7. In this respect, while the law on this subject is well settled by the judgments referred by the petitioner and noted herein above, since the Orissa Civil Service Pension Rules, admittedly do not apply to the petitioner and since no law nor any provision of contract was brought on record to justify such post superannuation action, I am constrained to hold that the punishment imposed under Annexures-2 to 5 and the initiation of the departmental proceeding under Annexure-7 admittedly having been issued after 28.2.1999, i.e., the date of superannuation of the petitioner, are without jurisdiction and are hereby quashed. 8. 8. In the counter affidavit filed by opp.party Nos.1 and 2, they have admitted under paragraphs 7 and 8 that the following are the dues payable to the petitioner, which are as follows : “Para- 7 :- That the entitlement and deductions as ascer¬tained from DTM (A), OSRTC, Cuttack-II are as follows: 1. Revised pay/DA from 5/89 to 5/95 - Rs.11, 919.00. 2. Non-deposit of EPF (to be deposited with EPF authorities) -Rs.19,867.00. 3. Undisturbed salary (i.e. from 9/97 to 11/97) (i.e. the date of relieve on being transferred.)- Rs.03,691.00. Para-8 :- That the dues as regards gratuity and unutilized leave salary of the petitioner could not be ascertained as the absence periods has been decided by the DTM(A), OSRTC, Puri. Since the post of DTM (A) is not available at Puri due to the depleted vehicle strength and precarious condition of OSRTC the power of disciplinary authority has been vested with District Transport Manager,OSRTC, Bhubaneswar. Due to introduction of model voluntary retirement scheme by the Govt. who were dealing with Establishment matters at Puri have also retired. So due to absence of clerks and post of DTM (A) at Puri, the absence periods could not be decided. The same requires some more time to finalize the matter.” The dues of the petitioner be recalculated and released in favour of the petitioner within period of three months from the date of receipt of this judgment keeping in view the quashing of Annexures-2 to 5 and 7 as ordered herein above. 9. Further, in consideration of the affidavit filed by opp.party No.3-Regional Provident Fund Commissioner, Orissa, opp.party Nos. 1 and 2 are directed to deposit the provident fund dues of the petitioner within a further period of three months therefrom. With the above directions, the writ petition is disposed of. Petition disposed of.