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2018 DIGILAW 281 (ORI)

Sanatan Dash v. CM-cum-Director, OPTC Ltd. BBSR

2018-03-20

SUJIT NARAYAN PRASAD

body2018
JUDGMENT : S.N. Prasad, J. The instant writ petition has been filed for quashing the order dated 24.11.2017 as contained under Anenxure-3, whereby and where under the provisional pension sanctioned vide office order No.21091 dated 12.12.2017, has been withheld with immediate effect as per Rule-7(1) of OCS Pension Rules, 1992 till finalization of the appeal against the judgment of conviction in connection with a judicial proceeding instituted against the petitioner for the offence under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. 2. Case of the petitioner in brief is that he was appointed as Lower Division Clerk in the year 1965 under Orissa State Electricity Board (hereinafter referred to as “Board”) the Board after having been taken over by the GRIDCO, he became the employee of the GRIDCO. He was promoted to the rank of Upper Division Clerk and thereafter to the rank of Head Clerk, while continuing as such he was posted as Jr. Accountant and finally posted as Accountant, during the period he was working as Accountant has discharged his duty to the utmost satisfaction of all concerned. The Department of Energy, Govt. of Odisha issued a notification dated 19.06.2005 bringing out a transfer scheme called as Odisha Electricity Reform (Transfer of Transmission electrical activities) Scheme, 2005 for transfer of undertakings, assets liabilities, proceeding and personnel of GRIDCO related to transmission of electricity to OPTCL named as Odisha Power Transmission Corporation Ltd. (hereinafter called as OPTCL), as per the said Scheme all the employees of GRIDCO were transferred to OPTCL. The petitioner while working there has been implicated in a criminal case related to an offence committed by him under Section 7 and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 and as such a T.R. Case No. 26 of 1993 has been initiated in which he was convicted to undergo rigorous imprisonment for 2 years and pay fine of Rs.1000/-. The petitioner has challenged the said judgment before this Court in Criminal Appeal No.322 of 2003 which has been admitted for final hearing by this Court vide order dated 18.12.2003 and stayed the realization of fine till disposal of the appeal and also released on bail by furnishing the sureties and bonds of Rs.20,000/-. The petitioner has challenged the said judgment before this Court in Criminal Appeal No.322 of 2003 which has been admitted for final hearing by this Court vide order dated 18.12.2003 and stayed the realization of fine till disposal of the appeal and also released on bail by furnishing the sureties and bonds of Rs.20,000/-. The petitioner on attaining the age of superannuation retired from service on 31.08.2004, but after his retirement, even though the Criminal Appeal was pending, his provisional pension was sanctioned vide order dated 5.4.2005. While the petitioner was getting the provisional pension, a show cause notice was issued to him on 23.10.2017 asking him to respond to the said show cause notice as to why provisional pension extended in his favour be not stopped since the provision to extend the benefit of provisional pension as stipulated under Rule 66 of the OCS (Pension) Rules, 1992 is only in case of departmental or judicial proceeding but the moment the conviction order is there, the provision as contained under Rule-66 of the OCS (Pension) Rules, 1992 will not be applicable. The petitioner in the light of the said show cause has responded to it by filing response dated 30.10.2017 stating therein that under the provision of Rule-46 which provides that pension/gratuity shall be forfeited of a Government servant who is dismissed or removed from service. In the proviso, it is provided that the authority competent to dismiss or remove him from service may, if the case is receiving of special consideration, sanction a compassionate allowance not exceeding two-third of pension or gratuity or both which would have been admissible to him if he had retired on compensation pension, as such it was requested that he may be allowed to draw provisional pension. The authority thereafter has passed order on 24.11.2017 withholding the provisional pension with immediate effect by exercising the power conferred under Rule-7(1) of OCS (Pension) Rules, 1992 till finalization of the appeal. 3. The authority thereafter has passed order on 24.11.2017 withholding the provisional pension with immediate effect by exercising the power conferred under Rule-7(1) of OCS (Pension) Rules, 1992 till finalization of the appeal. 3. The petitioner being aggrieved with the said order is before this Court on the grounds that the order dated 24.11.2017 has not passed by the competent authority since according to the learned counsel for the petitioner the “pension sanctioning authority” happens to be the appointing authority and the Chairman-cum-Managing Director of the Corporation is the appointing authority, he is only having the power to take decision for withholding the provisional pension but the order has been passed by the General Manager (HRD), Pension, hence the decision is without jurisdiction. Second ground taken by the petitioner is that under the provision of Rule-46, the pension can be forfeited only on the ground of dismissal or removal from service but since the petitioner has allowed to attain the age of superannuation, as such the same cannot be forfeited. Third ground has been taken that the petitioner has challenged the order conviction and sentence before this Court by preferring an appeal and as such the appeal being in continuation of the trial court proceeding will amount to pendency of the criminal proceeding, hence the provision of Rule 66 of the OCS (Pension) Rules, 1992 will be applicable. 4. This Court, after hearing the learned counsel for the petitioner and on appreciation of her argument, both on factual as well as legal aspect has considered it by going through the statutory provision as contained in OCS (Pension) Rules, 1992. It is the admitted position that the provision of OCS (Pension) Rules, 1992 is applicable to the petitioner, as such the arguments advanced on behalf of the petitioner is required to be appreciated on the basis of legal provision as contained in OCS (Pension) Rules, 1992 which has been incorporated under the proviso to Article 309 of the Constitution of India. The provision contains the definition of “Pension Sanctioning Authority” under the provision of Rule 2(q), which speaks as follows :- Rule 2(q) “Pension Sanctioning Authority” means the appointing authority competent to make appointment to the post held by the retiring Government servant : [Provided that where the appointing authority is the Government or the Principal Secretary, Commissioner-cum-Secretary or Secretary to Government or Heads of Departments listed in Appendix-3 in the Orissa Service Code, may delegate the power of authority to sanction pension to any subordinate officer not below the rank of Group-A, working under his/her direct control.] [Provided further that in case of sanction of provisional pension of a retired Government servant as provided under Rule 65 and Rule 66 of these Rules, the “Pension Sanctioning Authority” means the Head of Office under whom the retiring Government servant worked last even if such Head of Office is not the appointing authority of the said Government servant.]” It is evident from the said provision that the pension sanctioning authority means the appointing authority competent to make appointment to the post held by the retiring Government servant. Provided that where the appointing authority is the Government or the Principal Secretary, Commissioner-cum-Secretary or Secretary to Government or Heads of Departments listed in Appendix-3 in the Orissa Service Code, may delegate the power of authority to sanction pension to any subordinate officer not below the rank of Group-A, working under his/her direct control, further provided that in case of sanction of provisional pension of a retired Government servant as provided under Rule 65 and Rule 66 of these Rules, the “Pension Sanctioning Authority” means the Head of Office under whom the retiring Government servant worked last even if such Head of Office is not the appointing authority of the said Government servant. Thus, it is evident that the first proviso speaks regarding the authority to sanction pension while the second proviso speaks regarding the power conferred upon the authority so far as the provisional pension which is to be extended under the provision of Rule 65 and 66 is concerned. Rule 7 conferred power upon the Government to withhold or withdraw pension, which speaks as follows :- “7. Rule 7 conferred power upon the Government to withhold or withdraw pension, which speaks as follows :- “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 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 is 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 Odisha Public Service Commission shall be consulted before any 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 reemployment, shall, after the final retirement of the Government servant, be deemed to be a proceedings 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 findings 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 reemployment- (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 institution ; 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) [deleted] Vide Finance Department Notification No.33464/F., dtd. 04.08.2006 (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 proceeding are instituted or where departmental proceedings are continued under clauses (a) and (b), a provisional pension as provided in rule 66 shall be sanctioned. 8 (e) Where the Government decide 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, on 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.” It is evident from the provision of Rule-7(1) which confers power upon the Government 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 subject to certain conditions mentioned therein. Provision of Rule-65 contains the power to sanction provisional pension i.e., in the case where the appointing authority is facing difficulty in forwarding the pension papers referred to in Rule 62 to the Accountant General, Orissa within the prescribed period therein and as such in the intervening period, the provisional pension is allowed to be extended in favour of the retiring employee. Rule 66 speaks regarding grant of provisional pension where departmental or judicial proceeding is pending, the same is being reproduced herein below :- “66. Rule 66 speaks regarding grant of provisional pension where departmental or judicial proceeding is pending, the same is being reproduced herein below :- “66. Grant of provision pension where departmental or judicial proceeding is pending – (1) Where departmental or judicial proceedings are pending in respect of Government servant on the date of his retirement, referred to in, he shall be paid a provisional pension not exceeding the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant; or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension. (2) No gratuity shall be paid to the Government servant until the conclusion of the Departmental or judicial proceedings and issue of final order thereon. Provided that where departmental proceedings have been instituted under Rule 16 of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 for imposing any of the penalties specified in Clauses (i), (ii) and (iii-A) if Rule 13 of the said rules, the payment of gratuity shall be authorized to be paid to the Government servant. (3) The provisional pension shall be authorized during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceeding, final orders are passed by the competent authority. (4) The authority competent to sanction pension shall be the authority competent to sanction provisional pension. (5) Payment of provisional pension made under Sub-rule (1) shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of such proceedings but no recovery shall be made where the pension finally-sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period.” It is evident that the provisional pension is to be extended in favour of such employees against whom departmental or judicial proceedings are pending on the date of his retirement, referred to in, he shall be paid a provisional pension not exceeding the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant. It is further evident from the said provision that the provisional pension shall be authorized during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceeding, final orders are passed by the competent authority and the authority competent to sanction pension shall be the authority competent to sanction provisional pension. 5. It is not in dispute that the petitioner was implicated in a criminal case related to trial for by the competent court of criminal jurisdiction for an offence under Section 13(2) read with Section 13 (1)(d) of Prevention of Corruption Act in which he has been convicted to undergo rigorous imprisonment for 2 years and pay fine of Rs.1000/-. The order of conviction was passed on 23.12.2003, while the petitioner was in service, but he was neither been dismissed nor removed from service on account of conviction in a criminal case rather allowed to retire from service w.e.f. 31.08.2004 and provisional pension was sanctioned on 5.4.2005. 6. The petitioner contends that the date when the provisional pension was sanctioned the authority who has sanctioned the pension was knowing the fact very well regarding his conviction but instead of passing order of dismissal, he has been allowed to continue in service and thereafter the provisional pension has also been extended in his favour, further reason that the criminal appeal has been preferred by the petitioner before this Court which has been admitted for final hearing and as such there was no new facts which led the authority to come out with the decision dated 24.11.2017 by withholding the provisional pension by exercising the power conferred under Rule-7(1) of the OCS (Pension) Rules, 1992. Thus, the petitioner is claiming that if any illegality has been committed contrary to the statutory provision, the same may be allowed to continue. 7. There is no dispute in the legal position that the provisional pension is to be extended against whom the departmental proceeding or judicial proceeding is pending. The day when the order of conviction was passed i.e. on 23.12.2003, the petitioner was in service and he was allowed to superannuate from service w.e.f. 31.08.2004 and thereafter he has been granted provisional pension w.e.f. 5.04.2005 and how it has been granted, it is not known to the Court since it is contrary to the provision of Rule 66. The day when the order of conviction was passed i.e. on 23.12.2003, the petitioner was in service and he was allowed to superannuate from service w.e.f. 31.08.2004 and thereafter he has been granted provisional pension w.e.f. 5.04.2005 and how it has been granted, it is not known to the Court since it is contrary to the provision of Rule 66. This is the only provision to sanction provisional pension and the situation to extend the said benefit is only in case of pendency of departmental or judicial proceeding but admittedly on the day when the provisional pension was extended, the order of conviction was there, which was passed on 23.12.2003 but the authority who has sanctioned the provisional pension on 05.04.2005, knowing this fact very well has sanctioned the pension which will be said to be contrary to the provision of Rule 66 of the OCS (Pension) Rules, 1992 and it is settled if any decision taken by the authority contrary to the rules will be said to be void-ab-initio and it is the duty of the Court, if it come to notice, it has to be struck down by following the principle that illegality, if committed, should not be allowed to be perpetuated and as such following the settled position of law, the sanction of provisional pension is declared to be illegal. 8. The ground which has been taken by the petitioner is that the order dated 24.11.2017 has been passed by the General Manager (HRD) Pension, who is not the competent authority, as such the same is fit to be quashed, but this argument is not sustainable in view of the specific provision as contained in second proviso, the definition of “Pension Sanctioning Authority” as contained under the provision of Rule 2(q) of the OCS (Pension) Rules, 1992 as indicated herein above which stipulates that the situations of extending the benefit of provisional pension and even though it can be sanctioned by the authority who is not the appointing authority. 9. 9. This Court, after taking into consideration the second proviso to the provision of Rule 2(q) of the OCS (Pension) Rules, 1992, is of the view that the action of the General Manager (HRD), Pension in coming out with the office order dated 24.11.2017 cannot be struck down by accepting the plea of the petitioner that the General Manager (HRD), Pension happens not to be the appointing authority, accordingly, the said plea is rejected. 10. The petitioner has produced the copy of the office order dated 5.4.2005, which is the pension sanctioning order, which has been issued by the order under the signature of the Manager (HRD), PEN but it is evident from the order dated 24.11.2017 that the same has been issued by the General Manager (HRD), Pension, who happens to be the ultimate authority so far as pension is concerned under the Corporation and the GM (HRD), as such his jurisdiction either to sanction provisional pension or withholding cannot be doubted. 11. 11. The petitioner also claims that the order of withholding the pension has been passed under the provision of Rule 7(1) of the OCS (Pension) Rules, 1992, which is only for the purpose of withholding the pension and not the provisional pension but it is settled that merely on account of reference of wrong provision, the order cannot be said to be illegal and the authority by referring to the provision of Rule 7(1) of OCS (Pension) Rules, 1992 has not gone into the implication of the same since the occasion to exercise the power under Rule 7(1) of the OCS (Pension) Rules, 1992 has not yet come because the petitioner has not yet been given the final pension and the implication of Rule 7(1) of the OCS (Pension) Rules, 1992 is only in the case of final pension and not in the case of provisional pension rather the provisional pension will automatically be ceased in case of final order passed after conclusion of the departmental or judicial proceeding as per the provision as contained under sub-rule 3 of Rule 66 of the OCS (Pension) Rules, 1992 as quoted above and as such even ignoring the said provision of Rule 7(1) of the OCS (Pension) Rules, 1992, no material change will come rather after conviction in a criminal case, the provisional pension will be ceased under the provision of sub-rule 3 of Rule 66 of OCS (Pension) Rules, 1992, hence the argument advanced by the learned counsel for the petitioner is not sustainable in the eye of law. 12. 12. Learned counsel for the petitioner further submits that since against the order of conviction, the petitioner has filed an appeal, the appeal having been admitted and the order of sentence has been kept in abeyance, hence it will amount to continuation of the proceeding of the trial court and as such it would be said to be pending proceeding, hence the provision of Rule 66 will be applicable, but this argument is not sustainable, in view of the fact that the moment, the trial Court passes an order of conviction and sentence, it will be said to be concluded so far as criminal trial is concerned and if any appeal is preferred under the provision of Section 374 of the Cr.P.C. it will not be said to be continuation of the criminal proceeding rather the higher Court will exercise its power by way of separate proceeding to test the finding of the said judgment. The convicted person can get the benefit, only if in the appeal, the order of conviction will be stayed. 13. But here in the instant case, the order of conviction has not been stayed rather the sentence has been stayed in exercise of power conferred under Section 389 of the Cr.P.C. and there is no dispute in the settled position of law that sentence is the consequence of conviction and in case of suspension of the sentence, the convicted person may come out of judicial custody during pendency of the appeal and the conviction will be said to be operative till it be reversed by the appellate court, hence the contention raised by the petitioner is not acceptable to this Court, accordingly the same is rejected. 14. Learned counsel for the petitioner at last submits that since the authorities were knowing this fact that there is an order of conviction and the provisional pension has been extended, as such it be allowed to continue but the same is not acceptable to this Court for the reason that if there is no illegality in the process or decision making process which is contrary to the statutory provision, it has to be rectified the moment it came to the notice of the authority or the court of law and if it will not to be done it will amount to allow the illegality to perpetuate. 15. 15. This Court, after following the said legal position is of the view that the contention raised by the learned counsel for the petitioner in this regard is having no force, accordingly the same is rejected. In view of the discussions made hereinabove and in the entirety facts and circumstances, the petitioner fails to make out a case for issuance of positive order in his favour. Accordingly, the writ petition fails and is dismissed.