JUDGMENT : D.P. Choudhury, J. Challenge has been made to the order of punishment, the consequential inaction of opposite party for not fixing pension and release of arrear dues of the late husband of the petitioner along with family pension of the present petitioner. FACTS 2. The unfolded story of the petitioner is that the husband of the petitioner was working as Junior Stenographer, Grade-III in the office of the opposite party since 1.1.1972. After establishment of Orissa State Road Transport Corporation (hereinafter called ‘the OSRTC’) in the year 1974 by the State Government, the service of the husband of the petitioner was transferred to the office of the General Manager, OSRTC, Cuttack and thereafter he was transferred to different offices of the OSRTC and finally retired from service on attaining the age of superannuation with effect from 28.2.2006. It is alleged, inter alia, that after the superannuation, the late husband of the petitioner was proceeded Departmentally for his unauthorized absence from 31.3.2004 to 1.4.2004, 3.4.2004 to 14.4.2004 and from 16.4.2004 till the date of his superannuation as his said conduct was allegedly in violation of Regulations 136 (18) and 110 (1)(2)(3) of the Orissa State Road Transport Corporation Employees (Classification, Recruitment and Condition of Service) Regulations, 1978. The petitioner was purportedly issued notice to explain about the allegation of unauthorized absence but that notice being not served sufficient, the Enquiring Officer proceeded with the enquiry and closed the enquiry by holding the husband of the petitioner guilty. After perusal of the enquiry report, the opposite party imposed punishment vide order dated 22.9.2007 by treating the period of unauthorized absence as “no work no pay” and calculated the pension as per the last pay drawn on 16.4.2004 but not from the date of his superannuation. 3. Be it stated that the petitioner was granted EOL for his absence from 12.9.1989 to 5.10.1989 and from 7.10.1989 to 29.10.1989 with a stipulation that the said period would not count for his future increment. Similarly, EOL for the period from 15.6.1992 to 11.8.1993 of the husband of the petitioner was granted with the stipulation that the same would not count towards his future increment. Similarly, EOL for the period from 15.6.1992 to 11.8.1993 of the husband of the petitioner was granted with the stipulation that the same would not count towards his future increment. It is further stated that on 12.12.2011 the Administrative Department, i.e., Commerce & Transport Department of the State Government issued letter to the Accountant General, Odisha certifying that there has been no outstanding dues against the late husband of the petitioner towards House Building Advance/Motor Cycle Advance but there is outstanding of Rs.26,265/- to be adjusted against the gratuity. According to the petitioner when two letters of the Government showing no unauthorized absence and directed for regular pension and gratuity after deducting some outstanding balance, the petitioner’s claim should not stand on the way in reducing pension and family pension proportionately. 4. It is the further case of the petitioner that the Departmental proceeding being initiated after the retirement of her husband is illegal. The husband of the petitioner was not served with any notice in the enquiry and the Departmental Proceeding has been conducted ex parte by not affording natural justice to the husband of the petitioner. On the other hand, the punishment awarded in the Departmental proceeding after the retirement and the manner it was proceeded, same is illegal, improper and cannot stand on the way to award full pension to the husband of the petitioner in accordance with Orissa Civil Services (Pension) Rules. Be it stated that the petitioner purportedly made representation to the opposite party to recall the order of punishment and grant pension, gratuity in accordance with law but the opposite party is sitting tight over the matter since 11.2.2015 when petitioner made further representation to the opposite party. Hence, this writ petition. 5. Per contra, the opposite party filed counter refuting all the allegations made against the petitioner. It is the case of the opposite party that the husband of the petitioner has remained unauthorizedly absent from 12.9.1989 to 5.10.1989, 7.10.1989 to 29.10.1989, 23.8.2002 to 31.8.2002, 1.10.2002 to 28.1.2003, 29.1.2003 to 1.6.2003, 31.3.2004 to 1.4.2004, 3.4.2004 to 14.4.2004 and from 16.4.2004 to 28.2.2006. Out of said unauthorized absence, the period except 31.3.2004 to 1.4.2004, 3.4.2004 to 14.4.2004 and for the period from 16.4.2004 to 28.2.2006 were regularized but the said period as mentioned above were not regularised because a proceeding No.10969 dated 6.7.2006 was initiated against the husband of the petitioner. Out of said unauthorized absence, the period except 31.3.2004 to 1.4.2004, 3.4.2004 to 14.4.2004 and for the period from 16.4.2004 to 28.2.2006 were regularized but the said period as mentioned above were not regularised because a proceeding No.10969 dated 6.7.2006 was initiated against the husband of the petitioner. Under the Orissa Civil Services (Pension) Rules, 1992 (hereinafter called “the OCS (Pension) Rules”) which is applicable to the husband of the petitioner, Departmental Proceeding was drawn within four years as per Section 7 (2)(c) of the OCS (Pension) Rules. Petitioner’s husband did neither attend the enquiry nor challenged the punishment during his life time and finally expired on 19.5.2008. Since it was not challenged, challenge of the same by the petitioner at a belated stage is lack of propriety. As the proceeding was started for unauthorized absence and her husband was found guilty, the same cannot be counted towards his qualifying service to enhance the pension. Since the proceeding against the husband of the petitioner has been finalized and his arrears have also been released in favour of the petitioner, at this stage the petitioner should not challenge the same. So, it is prayed to dismiss the writ petition. 6. The petitioner filed rejoinder to the counter reiterating the averments made in the petition but added that under no provision of OCS (Pension) Rules, the Departmental proceeding can be initiated against the husband of the petitioner after his retirement as per Rule 7 (2)(b) of the OCS (Pension) Rules. It is further stated that the opposite party has tried to misguide the Court by quoting above Rule 7(2)(c) which is meant for judicial proceedings but not for Departmental proceeding. It is stated that since the proceeding has been started after the retirement and without affording reasonable opportunity being heard to the husband of the petitioner, the punishment is uncalled for and consequently the husband of the petitioner is entitled to pension, gratuity according to number of years served till the date of his superannuation. SUBMISSIONS 7. Learned counsel for the petitioner submitted that the husband of the petitioner admittedly when superannuated on 28.2.2006, the question of withholding the pension for the due period without having valid Departmental proceeding started to treat the period of absence as unauthorized, the action of the opposite party is illegal. SUBMISSIONS 7. Learned counsel for the petitioner submitted that the husband of the petitioner admittedly when superannuated on 28.2.2006, the question of withholding the pension for the due period without having valid Departmental proceeding started to treat the period of absence as unauthorized, the action of the opposite party is illegal. It is surprised to find out that four months after retirement of the late husband of the petitioner, the Departmental proceeding was initiated but not during the continuous service by the husband of the petitioner, it is forbidden under law to initiate such proceeding. He further submitted that when the Commerce and Transport Department in the Government of Orissa being Administrative Department of the husband of the petitioner has forwarded letter for pension vide Annexure-8 with certain amount to be adjusted against gratuity, the action of the OSRTC by not counting the period of absence for retirement benefits is highly deplorable. Not only this but also the husband of the petitioner has been also granted Pension Payment Order vide Annexure-9. The opposite party has erred in law by not treating the period of unauthorized absence for the purpose of qualifying service to award pension with proper perspective and illegally withholding the same on the pretext of departmental enquiry which also resulted in violation of the principles of natural justice. Hence, he submitted that the impugned order dated 22.9.2007 vide Annexure-4 and the consequent orders dated 17.8.2010 under Annexures-5, 6 and 7 should be quashed and direction should be issued to the Corporation to treat the period of absence as duty and calculated the retirement dues of the husband of the petitioner and the consequential Family Pension with release of arrear benefits as per law. 8. Learned Additional Government Advocate submitted that the Departmental proceeding has been started for the unauthorized absence of the husband of the petitioner occurred within preceding four years from the date of retirement under Rule 7 of the OCS (Pension) Rules. According to him, the notice was duly issued and it has received by one Baidhar Samal but the husband of the petitioner did not co-operate the enquiry for which the enquiry proceeded imposing the penalty of treating the period of absence as unauthorized for which the said period has been rightly not calculated towards retirement benefits. According to him, the notice was duly issued and it has received by one Baidhar Samal but the husband of the petitioner did not co-operate the enquiry for which the enquiry proceeded imposing the penalty of treating the period of absence as unauthorized for which the said period has been rightly not calculated towards retirement benefits. He further submitted that according to Rule 7-(c) of the OCS (Pension) Rules, the husband of the petitioner has been rightly proceeded. He asserts that vide Annexure-8 the letter of the Administrative Department does not speak about Departmental proceeding and as usual letter has been sent to the Accountant General, Orissa to sanction the pension. According to him, the service period either EOL or EL or Half pay Leave have been all sanctioned and that have been treated as qualifying service except the period of absence under Departmental proceeding which has been started justifiably. There is no bar under the law to award the punishment in absence of the delinquent when the delinquent does not cooperate the Departmental proceeding. Since the husband of the petitioner did not attend in spite of notice issued, rightly the Enquiring Officer found him guilty on enquiry and the opposite party-Disciplinary Authority also has imposed punishment vide Annexure-4 by not disagreeing with the view of the Enquiring Officer. Hence, he submitted to dismiss the writ petition. 9. The main points for consideration:- (i) Whether the Departmental proceeding and the consequent punishment awarded thereon are legal and proper ? (ii) Whether the husband of the petitioner is entitled to re-fixation of his pension from the date of his retirement, i.e., 28.2.2006 and the petitioner is entitled to consequent enhancement of the Family Pension with release of arrear dues and the retirement dues of her late husband ? DISCUSSIONS POINT NO.(i) : 10. It is admitted fact that the husband of the petitioner was the employee of OSRTC and his date of retirement is 28.2.2006. It is further admitted by the opposite party in its counter that the husband of the petitioner retired on being superannuated on 20.2.2006. It is not in dispute that the husband of the petitioner expired on 19.5.2008. It is also admitted fact that the Departmental proceeding was initiated on 6.7.2006 which is four months after retirement of the husband of the petitioner. 11. It is not in dispute that the husband of the petitioner expired on 19.5.2008. It is also admitted fact that the Departmental proceeding was initiated on 6.7.2006 which is four months after retirement of the husband of the petitioner. 11. It is admitted fact that the Orissa Civil Services (Pension) Rules is applicable to Rabindra Nath Samal, the late husband of the petitioner. 12. Rule 7 of OCS (Pension) Rules is reproduced below for better appreciation: “7. Right of Government to withhold or withdraw pension – (1) The Government reserve to themselves the right of withholding a pension or gratuity, or both either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if in any departmental or judicial proceedings, the pensioner found guilty of grave misconduct or negligence in duty during the period of his service including service rendered on re-employment after retirement: Provided that the Orissa Public Service Commission shall be consulted before the final orders are passed : Provided further that when a part of pension is withheld/withdrawn, the amount of such pension shall not be reduced below the amount of minimum limit. (2) (a) Such departmental proceedings referred to in Sub-rule (1), if instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service: Provided that when the departmental proceedings are instituted by an authority, subordinate to Government that authority shall submit a report recording its finding to the Government. (b) Such departmental proceedings as referred to in Sub-rule (1) if not instituted while the Government servant was in service, whether before his retirement or during his re-employment – (i) shall not be instituted save with the sanction of Government: (ii) shall not be in respect of any event which took place more than four years before such instruction; and (iii) shall be conducted by such authority and in such place as the Government may, direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service. (c) No judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution. (d) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under Clauses (a) and (b), a provisional pension as provided in Rule 66 shall be sanctioned. (e) Where the Government decided not to withhold or withdraw pension but order recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant. Explanation – For the purpose of this rule – (a) Departmental proceedings shall be deemed to be instituted on the date on which the statement of charges are issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from the date of his suspension; and (b) Judicial proceedings shall be deemed to be instituted – (i) in the case of criminal proceedings, in the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made; and (ii) in the case of Civil proceedings, on the date of presentation of the plaint in the Court.” 13. From the aforesaid provisions, it is clear that the regular pension or gratuity, or both either in full or in part can be withheld by the Government if the employee is found guilty in the Departmental proceeding or Judicial proceeding for grave misconduct or negligence in duty during the period of his service including the service rendered in re-employment after retirement. Further the Departmental proceeding as stated in Sub-Rule (2) of Rule 7 should be instituted while Government servant was in service, whether before his retirement or during his re-employment but after the final retirement of the Government servant, same be deemed to be a proceeding pending under this Rule. Moreover, in case of Departmental proceeding if not instituted the Government servant while in service whether before his retirement or during his reemployment, shall be instituted with the sanction of the Government and shall not in respect of an event which took place more than four years before such institution. Thus, the Departmental proceeding after the Government servant retires is remotely possible but with certain riders even if the Departmental proceeding is started after retirement of the Government servant, the procedure applicable to Departmental proceeding where major penalty is inflicted must be followed. 14. In the instant case, the Departmental Proceeding against late Rabindranath Samal was started four months after his retirement of course with respect to his unauthorized absence for the period from 12.9.1989 to 5.10.1989, 7.10.1989 to 29.10.1989, 23.8.2002 to 31.8.2002, 1.10.2002 to 28.1.2003, 29.1.2003 to 1.6.2003, 31.3.2004 to 1.4.2004, 3.4.2004 to 14.4.2004 and from 16.4.2004 to 28.2.2006. But in the counter the opposite party has not admitted about sanction of the State Government obtained to start such Departmental proceeding. When the sanction of the Government is not obtained, such Departmental proceeding sans merit. 15. For conducting the Departmental proceeding there is clear instruction in Rule 7 (2)(b)(iii) of the OCS (Pension) Rules to follow the normal procedure as required for imposing major penalty or minor penalty. The enquiry was neither proceeded in accordance with OCS (CCA) Rules nor under the OSRTC Employees (CR&CS) Regulations because as it appears from Annexure-3, notice was not served on the petitioner. In para-2 of the enquiry report vide Annexure-3, it is clearly stated that the notice was issued to late Rabindranath Samal while he was alive but it was received by one Baidhar Samal. In para-2 of the enquiry report vide Annexure-3, it is clearly stated that the notice was issued to late Rabindranath Samal while he was alive but it was received by one Baidhar Samal. On the other hand, the notice was not served on the delinquent late Rabindranath. If there was notice served on someone else other than the delinquent, the notice could have been sent again to be served on the person concerned. Apart from it, the enquiry report shows that the enquiry went ex parte without giving opportunity to the delinquent Rabindranath Samal to defend his case. When there is no valid notice served and the delinquent was not heard, there is serious violation of the principles of natural justice to late Rabindranath Samal. Even Annexure-4 shows that the opposite party being the disciplinary authority has not issued any notice to the delinquent complying Rule 15 (10) of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 read with Regulations 136 (18), 138, 141, 144 and 110 (1)(2)(3) of the OSRTC Employees (CR&CS) Regulations, 1978 as it appears from the following order: “ODISHA STATE ROAD TRANSPORT CORPORATION: BHUBANESWAR No. 16116/OSRTC, Dt.22.09.2007 OFFICE ORDER Sri Rabindra Nath Samal, Jr. Stenographer, OSRTC, (now retired) was proceeded against vide D.D.P.No.10960 dt.6.7.2006, for the charge of gross misconduct/dereliction in duty and for remaining absent unauthorisedly from duty for the period from 31.3.04 to 1.4.04, 3.4.04 to 14.4.04 and 16.4.04 till the date of his retirement i.e. 20.2.2006. Sri Samal, failed to submit his defence explanation, though the proceeding was received by him. The charges were enquired into by the DTM (A), OSRTC, Samablpur who hold him guilty of the charges. After careful consideration of the facts in issue and perusal of records, it is hereby ordered that the period of absence is treated as no pay and his superannuation dues calculated @ pay drawn as on 16.4.2004. The proceeding is disposed of accordingly. Sd/-B.K. Behera, Managing Director, OSRTC” Hence, the initiation of Departmental proceeding being de hors to the Rule 7 of the OCS (Pension) Rules read with the OCS (CCA) Rules and the OSRTC Employees (CR&CS) Regulations, 1978, same collapsed to face the test the provisions of law. 16. The proceeding is disposed of accordingly. Sd/-B.K. Behera, Managing Director, OSRTC” Hence, the initiation of Departmental proceeding being de hors to the Rule 7 of the OCS (Pension) Rules read with the OCS (CCA) Rules and the OSRTC Employees (CR&CS) Regulations, 1978, same collapsed to face the test the provisions of law. 16. In the counter at clause-(ii) of paragraph-3 the opposite party admitted that the following periods of absence were regularized: (a) 12.09.89 to 05.10.89, 07.10.89 to 29.10.89 & 23.08.02 to 31.08.02 – Leave without pay, (b) 01.10.02 to 28.01.03 – Earned Leave, (c) 29.01.03 to 01.06.04 – Half Pay Leave On going through Annexure-5, it appears that the period from 12.9.89 to 05.10.89 and 07.10.89 to 29.10.89 (strike period) was treated as extraordinary leave but same was not allowed to be counted towards his future increment. Similarly, vide Annexure-7 the OSRTC has granted EOL to late Rabindranath Samal as follows: (1) E.O.L. for a period of 4 days from 15.6.92 to 18.6.92 (2) -do- 18 -do- 14.7.92 to 31.7.92 (3) -do- 30 -do- 01.08.92 to 19.10.92 (4) -do- 169 -do- 01.01.93 to 18.06.93 (5) -do- 03 -do- 02.08.93 to 04.08.93 (6) -do- 01 day on 11.08.93 It is also revealed from Annexure-7 that the above period of EOL will not count towards his future increment as per Rule 78 (ii) of OSRTC (CR&CS) Regulation-78. When in the counter opposite party admitted that these periods have been regularized for the pension purpose, the question of not counting towards increment for those periods remained nip in the bud. On the other hand, these periods must be counted towards qualifying service to receive pension. It is needless to say that vide Annexure-6, the period of leave has been also regularized and there is no any order to refuse future increment for such period as mentioned in Annexure-6. 17. Annexure-8 is the letter of the Administrative Department of the OSRTC in the Government of Orissa and they, except outstanding dues of Rs.26,265/-, allow all other pensionary benefits of late husband of the petitioner, for which the Government sent letter to A.G., Orissa to sanction the pension as per law with effect from 28.2.2006. 17. Annexure-8 is the letter of the Administrative Department of the OSRTC in the Government of Orissa and they, except outstanding dues of Rs.26,265/-, allow all other pensionary benefits of late husband of the petitioner, for which the Government sent letter to A.G., Orissa to sanction the pension as per law with effect from 28.2.2006. When the State Government being the superior authority having not taken the punishment for unauthorized absence into consideration and recommended for availing regular pension on 12.12.2011, the punishment awarded for unauthorized absence or any order of disciplinary authority otherwise have no leg to stand. There is clear order available from Pension Payment Order that the family pension would be commenced from 20.5.2008 just on the next day of death of late Rabidnranath, the husband of the petitioner. 18. In terms of the above discussion, there is irresistible conclusion reached out that the Departmental proceeding being illegal, punishment imposed on late delinquent Rabindranath is illegal, improper and de hors to the provisions of law and principles of natural justice. Point No.(i) is answered accordingly. POINT NO.(ii) 19. It is the case of the petitioner that due to Departmental proceeding for unauthorized absence and punishment thereon, the amount of pension could not be re-fixed because the opposite party vide order dated 22.9.2007 fixed up the pension as pay drawn on 16.4.2004 but not on 28.2.2006. Not only this but also the opposite party treated the period of absence on which Departmental proceeding was started “as no work no pay”. So, when the pension on the last pay drawn is calculated minusing those days, the pension becomes much less, similarly family pension also becomes meager. On the other hand, the opposite party claims that the pension has been rightly paid as per Regulation of the said organization. Since the petitioner’s husband did not perform any duty for the said period, these period cannot be counted towards qualifying service. Of course, this plea in para-6 of the counter is contrary to para-2 of the counter because for the period of absence in duty for which Departmental proceeding was started is understood to have not regularized but for other period the absent period has been regularized as per Para-3(iii) of the counter. However, it has been already held in the aforesaid para that the Departmental proceeding for the period of absence is illegal and against the principles of natural justice. However, it has been already held in the aforesaid para that the Departmental proceeding for the period of absence is illegal and against the principles of natural justice. Consequently the period of absence cannot be said to be unauthorised and they must be counted for qualifying service for the purpose of retirement benefits particularly when in Annexure-8 Government has treated late Rabindranath to have superannuated on 28.2.2006, his pension must be calculated basing on the pay re-fixed as on 28.2.2006 as the pay on that date would be treated of the pay drawn by late Rabindranath. It cannot be 16.4.2004 as ordered by opposite party in Annexure-4. Be that as it may, the fact remains that late Rabindranath’s pension must be re-fixed after counting the period of absence which was not proved to be unauthorized under the Departmental Proceeding as qualifying service and accordingly the family pension of the petitioner would require revisit to re-fix the same. Point No.(ii) is answered accordingly. CONCLUSION 20. It has been already held that the Departmental Proceeding being initiated without sanction of law and punishment awarded thereby being violative of principles of natural justice and de hors to the provisions of law, Annexure-4 is liable to be quashed and the Court do so. Similarly, Annexures-5 and 7 being not passed without affording reasonable opportunity to late Rabindranath of being heard, same are liable to be quashed and accordingly they are quashed. It has been already observed above that the husband of the petitioner is entitled to re-fixation of pay by counting his service period up to 28.2.2006 as qualifying service and accordingly re-fixation of the pension of late Rabindranath and family pension of the petitioner being imperative, it is hereby directed that the opposite party would re-fix the pension of late Rabindranath from 28.2.2006 and also re-fix the family pension of the petitioner from 20.5.2008 within a period of two months from the date of this order. Opposite party is further directed to pay the differential amount of arrear pension of late Rabindranath to petitioner within two months from the date of re-fixation of pension and also pay the arrear family pension as well as current family pension after re-fixation of the same within same period of two months, failing which opposite party has to pay same with interest at the rate of 18% per annum from the date of this order till the actual payment. The writ petition is disposed of accordingly.