Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 456 (ORI)

Somanath Panda v. State of Orissa

2015-08-04

S.N.PRASAD

body2015
ORDER Mr. Santhosh Kumar Pattnaik, Senior Advocate has filed appearance memo on behalf of opposite party nos. 2 to 4, same be kept on record. Heard. The petitioner has approached this Court for issuance of direction to the opposite parties for quashing the order dated 24.12.2004 as contained letter No. 31064/OSRTC (Annexure-3) and thereby prayed for issuance of direction upon the opposite parties to consider the period from 25.01.1964 to 8.11.1977 as qualifying service for counting for the said period for the purpose of pensionary benefit. In view of the order dated 15.07.2015, Chairman-cum-Managing Director, OSRTC, Paribahan Bhawan, Bhubaneswar is present along with records. The case of the petitioner is that he has been engaged as Conductor w.e.f. 25.01.1964 and continue to discharge his duty regularly till 8.11.1977 remain absent up to 29.06.1985 i.e., the period for more than seven years. Thereafter the petitioner was allowed to resume his duty w.e.f. 30.06.4985 performed his duty w.e.f. 31.05.1993, the date of attaining normal age of superannuation. After superannuation from service he made a representation before the competent authority to count at least the period from 25.01.1964 to 8.11.1977 for the purpose of pensionary benefit since he has completed the qualifying ten years of service which is necessary for entitling him to get pensionary benefit. On the representation, the authorities have taken a decision on 24.12.2004 (Annexure-3) rejecting claim on the ground that period of service rendered by the petitioner from 25.01.1964 to 8.11.1977 will not be treated to be counted for pensionary benefit because after 8.11.1977, the petitioner was remain unauthorized absence from duty for a period of more than seven years and as such the said period would be treated to be resigned from service. The petitioner being aggrieved with the decision dated 24.12.2004 he come to this Court by way of filing this writ petition challenging the same on the ground that once the petitioner was allowed to resume his duty on 30.06.1985 and been permitted to continue in service till the date of attaining normal age of superannuation i.e., 31.05.1993 hence it would not be deemed resignation on account of having unauthorized absence for a period of more than seven years. Since the petitioner has discharged his duty continuously from 25.01.1964 to 8.11.1977 which is more than ten ;years of service, hence he is qualified for consideration of pensionary benefit. Since the petitioner has discharged his duty continuously from 25.01.1964 to 8.11.1977 which is more than ten ;years of service, hence he is qualified for consideration of pensionary benefit. Learned senior counsel appearing for the OSRTC has produced the notification dated 31.03.1978 issued by the OSRTC containing Regulation. Learned counsel appearing for the petitioner further contends that the principle of deemed resignation as provided under Regulation 98 (3)(2) will not be applicable because the moment the petitioner was allowed to resume his duty w.e.f. 30.06.1985, moreover no departmental proceeding has been initiated for the said alleged unauthorized absence. On the other hand, learned senior counsel appearing for the OSRTC on the basis of record having been produced by the CMD, who is personally present in the Court in pursuance to the order dated 15.07.2015 and has submitted that since the petitioner was absent for a period of more than seven years hence in view of the provision as contained in Regulation 98 (3)(2), the petitioner will be treated deemed to have resigned from the post and as such after the resignation the past service rendered by the petitioner will not be counted for pensionary benefit. Learned senior counsel appearing for the OSRTC has not disputed this fact that the petitioner was allowed to resume his duty w.e.f. 30.06.1985. Heard learned counsel for the parties and perused the documents on record. There is no dispute that if an employee will remain absent for a period of more than 5 years continuously he will be deemed to resign from service. Heard learned counsel for the parties and perused the documents on record. There is no dispute that if an employee will remain absent for a period of more than 5 years continuously he will be deemed to resign from service. In view of provision as contained in Regulation 98(3) (2) of OSRTC, Act it has been provided which is being reproduced herein below:- “Where a permanent employee does not resume duty after remaining on leave for a continuous period of five years, or where an employee after the expiry of this 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 Corporation in view of the exception circumstances of the case otherwise determine, he deemed to have resigned and shall accordingly cease to be an employee of the Corporation.” On perusal of the said provision it is apparent that a permanent employee if not resumed duty after remaining on leave for a continuous period of 5 years, or where an employee after expiry of the 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 5 years, he shall unless Corporation in view of the exceptional circumstances of the case otherwise determine, he deemed to have resigned and shall accordingly cease to be an employee of the Corporation. From perusal of the order dated 24.12.2004, it is evident having not disputed that the petitioner has discharged his duty from 25.01.1964 to 8.11.1977 continuously but however he remain absent for a period of more than 7 years, subsequently the petitioner being permitted to resume his duty w.e.f. 30.06.1985 and remain on duty till attaining age of normal superannuation i.e., 31.05.1993 which suggests that the petitioner was being permitted to resume till his date of attaining normal superannuation. The authority has taken decision disentitling the petitioner for getting pensionary benefit for the service rendered by the petitioner from 25.01.1964 to 8.11.1977 on the ground that he has remain absent unauthorized for the period of more than 7 years as such in view of the provision as contained 98 (3) (2) he will be deemed to have resigned from service. It is also not in dispute that the petitioner was discharged his duty form 25.01.1964 to 8.11.1977 and remain absent for more than 7 years and subsequently permitted to resume his duty but the authorities have not taken any action after 29.06.1985 in this regard. The impugned order has been passed for the first time when the petitioner has approached for counting the period from 25.01.1964 to 8.11.1977 for the purpose of pensionary benefits. Then ground has been taken that the petitioner was since unauthorized absent for more than 7 years as such he would be deemed to have resigned from service. On perusal of the provision as contained in Regulation 98(3)(2) it is evident that the authorities have been conferred with the power to treat the employee as resigned from service if he will remain absent for a period of more than 5 years but the authority has to take decision in this regard. But no decision was taken rather the authorities have allowed the petitioner to resume his duty w.e.f. 30.06.1985 permitted to him remain as service till the date of superannuation i.e., 31.05.1993. It is also not in dispute that the authorities have not initiated any departmental proceeding against the petitioner. Provision as contained in Regulation 98(3)(2) certainly conferred with the power upon Corporation which provides deeming clause for resignation regarding engagement or disengagement but here in this case the petitioner was allowed to resume his duty w.e.f. 30.06.1985 and the petitioner has been permitted to join in service which suggests that the deeming clause will not come into play due to the decision having been taken by the authority. From perusal of the order dated 24.12.2004, this aspect of the matter has not been taken into consideration by the authority and merely the relying Provision as contained in Regulation 98(3)(2) of the OSRTC, the petitioner has been said to be disentitled getting pensionary benefit on account of past service rendered by the petitioner from 25.01.1964 to 8.11.1977. It is settled that pension is not bounty rather it is vested right if the employee has rendered qualifying years of service. It is settled that pension is not bounty rather it is vested right if the employee has rendered qualifying years of service. Since the petitioner has been permitted to continue in service after acceptance of joining w.e.f. 30.06.1985 and permitted to continue till the age of superannuation 31.05.1993 and as such decision of the authority for not counting period from 25.01.1964 to 8.11.1977 does not seem to be proper and in consonance with Provision of clause 98 (3) (2) regulation of the OSRTC. In view thereof, the order dated 24.12.2004 is not sustainable as such is hereby quashed. The matter is remitted before the CMD to take decision after taking into consideration all aspect of the matter and to take decision without any delay within reasonable period preferably within eight weeks from the date of receipt of certified copy of this order. Accordingly, the writ petition is disposed of in terms of conditions indicated hereinabove. Personal appearance of CMD is hereby dispensed with. Petition disposed of.