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2016 DIGILAW 1222 (ORI)

Manasi Sabat v. State of Orissa

2016-12-09

S.N.PRASAD, S.PANDA

body2016
JUDGMENT : S.N. Prasad, J. The petitioner being aggrieved with the order dated 7.9.2006 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 699(C) of 2006 is before this Court by way of this writ petition whereby and whereunder the matter has been remitted to the authorities to take a decision in the light of the provisions of Rule 7 of the Orissa Civil Service (Pension) Rules, 1992 (hereinafter to be referred to as “Pension Rules”, in short) as also the order dated 23.4.2001 passed by the Director, Elementary Education whereby and whereunder the claim of the petitioner has been rejected declining the entitlement of pensionary benefit under the pension Rules. 2. The brief fact of the case is that the husband of the petitioner had joined service as a Primary School Teacher in the year 1958 and promoted as Head Pandit in 1973. The husband of the petitioner while in service was involved in a criminal case in which he was convicted by the trial court. The order of conviction has been confirmed by this Court as well as the Hon’ble Apex Court. The husband of the petitioner remained absent from duty and attained the normal age of superannuation in the year 1994, but during his life time, no pensionary benefit has been given to him. Her husband died in the year 2005. Her husband before his death has filed one Original Application being O.A. No. 3320(C) of 2000 praying therein to release the legal monetary benefit and the learned Tribunal while disposing of the Original Application directed the Director to look into the matter and take a decision in this regard. The authorities in terms of the order has passed order on 23.4.2001 rejecting the claim of the husband of the petitioner, but however released the amount of GPF and Group Insurance. After the death of the husband of the petitioner, petitioner being the widow has filed another Original Application being O.A. No. 699(C) of 2006 assailing the order dated 23.4.2001 and the learned Tribunal vide order dated 7.9.2006 directed the authorities to take a decision in the light of the provision of Rule 7 of the Pension Rules. After the death of the husband of the petitioner, petitioner being the widow has filed another Original Application being O.A. No. 699(C) of 2006 assailing the order dated 23.4.2001 and the learned Tribunal vide order dated 7.9.2006 directed the authorities to take a decision in the light of the provision of Rule 7 of the Pension Rules. The petitioner being aggrieved with the order of the learned Tribunal passed in O.A. No. 699(C) of 2006 and the order dated 23.4.2001 is before this Court by way of this writ petition challenging the same on the ground that the husband of the petitioner even though was convicted in the year 1982, but no order of dismissal has been passed against him and as such, he will be deemed to be in service till he attained the age of normal superannuation and in consequence thereof, he during his life time would have been given the benefit of pension after reaching the normal age of superannuation. But the authorities have not disbursed the same and as such, her husband after waiting for a period of six years had approached the Orissa Administrative Tribunal by filing O.A. No. 3320(C) of 2000 which was disposed of by directing the Director to take a decision in this regard. The Director rejected the claim of her husband vide order dated 23.4.2001. The husband of the petitioner has subsequently died in the year 2005 and as such, she has filed another Original Application being O.A. No. 699(C) of 2006 and the same was disposed of vide order dated 7.9.2006 directing the authorities to take a decision in the light of the provision of Rule 7, but the authorities although have taken a decision on 6.11.2009 rejected the claim for grant of family pension, which is absolutely illegal for the reason that there cannot be any deemed dismissal and when no order has been passed dismissing her husband from service, he will be said to be in Govt. service and accordingly, she will be entitled to get the benefit of pension till the survival of her husband and thereafter with family pension. 3. service and accordingly, she will be entitled to get the benefit of pension till the survival of her husband and thereafter with family pension. 3. Learned counsel for the opposite party-State has refuted the claim of the petitioner by submitting that the petitioner is not entitled to get family pension for the reasons that her husband was convicted in a criminal case, which attained in its finality up to the level of Hon’ble Supreme Court and as such, after conviction in course of service, he cannot be held to be entitled to get pension as because for getting pension the good conduct of an employee is to be seen. Further benefit of pension cannot be given to a person convicted by competent court of law. He further submits that the case of the petitioner has been examined in the light of the provision of Rule 7 of the Pension Rules, but even on that ground he is not entitled to get pensionary benefit. He further submits that the authorities have taken a decision in the light of the order dated 6.11.2009 passed in O.A.No.699(C) of 2006 by the Principal-Secretary of the Department, but the petitioner has not chosen to challenge the same in this writ petition and hence, he cannot get any relief in this writ petition. 4. Heard the learned counsel for the parties and perused the documents available on record. 5. The fact which is not in dispute in this case is that the husband of the petitioner, who was working as a Primary School Teacher while in service, was implicated in a criminal case for the offences of various sections under Indian Penal Code and was convicted under Section 148, IPC by the competent court of criminal jurisdiction, which attained in its finality by this Court as well as from the Hon’ble Apex Court. There is no dispute about the settled proposition that after conviction of an employee in a criminal case, it depends upon the authority whether to keep him in service or not, but an order is required to be passed by the authority in case of dispensation from service. 6. There is no dispute about the settled proposition that after conviction of an employee in a criminal case, it depends upon the authority whether to keep him in service or not, but an order is required to be passed by the authority in case of dispensation from service. 6. In this respect the contention raised by the learned counsel representing the opposite party-State that after conviction in a criminal case, the husband of the petitioner has absconded and not discharged duty and in course of absconding, he attained the age of normal superannuation in the year 1994. This fact has not been disputed by the learned counsel representing the petitioner and as such, though the husband of the petitioner has not been dismissed from service by the authority by virtue of the order of conviction, but husband of the petitioner had not chosen to resume duty and remained absent for the entire length of service till the normal age of superannuation in the year 1994. Fact remains that the husband of the petitioner has not been given the benefit of pension and he has also not challenged the inaction on the part of the State authorities as to why his pension has been withheld and for the first time, her husband has filed an Original Application before the learned Tribunal in the year 2000 being O.A. No. 3320(C) of 2000, which has been disposed of by directing the Director to take a decision. The Director has taken decision in the year 2001 rejecting the claim of the husband of the petitioner, but the same has also not been challenged by him during his life time since according to the petitioner her husband died in the year 2005 while the order was passed in the year 23.4.2001. The husband of the petitioner kept mum for a period of five years. After the death of her husband the petitioner also remained silent for a period of one year and thereafter, she filed an application before the learned Tribunal in 2006 being O.A. No. 699(C) of 2006, the same was disposed of vide order dated 7.9.2006 directing the authorities to take a decision in the light of the provision of Rule 7 of the Pension Rules. The authorities had taken decision on 6.11.2009 (Annexure-6) rejecting the claim of the petitioner holding her not entitled to get pension and gratuity in full of Late Nityananda Sabat, the deceased employee. So far as applicability of the provision of Rule 7 of Pension Rule is concerned, the same pertains to the power conferred upon the State Government to withdraw full or in part the pensionary benefit in case of finding of guilt either in the departmental or judicial proceeding subject to some exception, i.e., if the proceeding is not initiated for four year from the date of occurrence. The fact of this case is that the husband of the petitioner was convicted in a criminal case while he was in service, i.e. in the year 1982 while he attained the normal age of retirement in the year 1994 and even under the provisions of Section 7 of the Pension Rules, the husband of the petitioner would not have been granted the benefit of pension since admittedly there is an order of conviction against him. 7. So far as the contention of the petitioner that there cannot any deemed dismissal on the ground of conviction is concerned, there is no dispute about this fact. The fact remains that an employee who has been convicted in the criminal case in the year 1982, remained absent till his entire length of service and in abesentia he attained his normal age of superannuation in the year 1994 and even after retirement, he remained silent for about six years and only thereafter in the year 2000 he filed an Original Application before the learned Tribunal bearing O.A. No. 3320(C) of 2000 and in the light of the order passed by the learned Tribunal, the claim of the husband of the petitioner has been rejected on the ground that the husband of the petitioner has been convicted in a criminal case and as such, he will not be entitled to get the benefit of pension. Further, though he was absconded from duty, no departmental proceeding was initiated for his unauthorized absence but fact remains that the issue of pension for the first time has been raised by the husband of the petitioner after lapse of 16 years from the date of conviction in the criminal case and after six years from the date of attaining the normal age of superannuation. According to us, the obvious reason was that if the husband of the petitioner would have approached the authority in course of service, the authorities might have passed adverse order against him. We are not in disagreement with the settled proposition that for getting a right, the litigant has to approach the court of law within a reasonable period, but the husband of the petitioner kept mum for a fairly long period and after such long period, he for the first filed the Original Application in the year 2000. 8. Taking into this aspect of the matter, even though there is no provision of deemed dismissal, then also no direction can be passed by this Court directing the authorities to disburse the pensionary benefit due to be paid against the pensionary benefit of her late husband. Moreover, the authorities have taken a conscious decision on 6.11.2009 in pursuance to the order passed in O.A. No. 699 (C) of 2006, but the petitioner has chosen not to challenge the said order. 9. In view of the facts and the reasons given hereinabove, we find no reason to interfere with the writ petition. Accordingly, the writ petition fails and the same is dismissed.