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2021 DIGILAW 267 (ORI)

Kashinath Rath v. State Of Orissa

2021-06-22

BISWANATH RATH

body2021
JUDGMENT Biswanath Rath,J. - It is surprise to note that the applicant who is in his 88th years of age still in litigation seeking a direction for release of admitted retiral dues along with appropriate interest. 2. Background involving the case is that at some point of time, petitioner tendered resignation but, however, before the expiry of time to accept resignation, petitioner submitted an application withdrawing the same. His request for not accepting the withdrawal application was turned down and the petitioner was treated to have been retired on resignation, subsequently there was further direction vide order dated 05.03.1992. Being aggrieved by such action, petitioner carried Original Application No.429 of 1992 challenging both the orders relating to accept request dated 18.12.1982 as well as the order dated 05.03.1992 requiring petitioner to submit show-cause as to why he shall not be removed from service with effect from 01.11.1966. Deciding Original Application No.429 of 1992 on contest, the Tribunal in allowing the O.A. in paragraphs, 6, 7 and 8 came to hold as follows: '6. In the reply filed on behalf of the State Respondents, it is stated that while considering the representation of the applicant as per the direction of the Hon'ble High Court, the appellate authority has followed the provisions contained in Rule 29 of the O.C.S. (C.C. & A) Rules, 1962 and has passed the order under Annexure-12. The preamble of Rule 29 of the aforesaid rules stipulates that in case of an appeal against an order imposing any of the penalties specified in Rule 13, the appellate authority shall consider the provisions contained thereafter. It is not the case of the appellate authority that any penalty was imposed as specified in rule 13 of the O.C.S. (C.C. & A) Rules, 1962. Instead of imposing the penalty under Rule 13 the applicant was exonerated and the charges were dropped against him. The appellate authority has no power of review. Power of review is vested with the Governor under Rule 31 of the O.C.S. (C.C.& A.) Rules, 1962. Instead of imposing the penalty under Rule 13 the applicant was exonerated and the charges were dropped against him. The appellate authority has no power of review. Power of review is vested with the Governor under Rule 31 of the O.C.S. (C.C.& A.) Rules, 1962. It is stated in the reply that the appellate authority, respondent No.4 carefully examined the appeal petition submitted by the petitioner, recorded his statement and after giving personal hearing to the petitioner had come to a logical conclusion that the petitioner should be removed from service for being absent from duty for more than five years and accordingly, vide Annexure-12 the applicant has been given opportunity to show cause and no final decision has been taken. If this averment of the State Respondents is to be believed, we are constrained to hold that the appellate authority has not directed his attention to the submission of the resignation letter under Annexure-2, the inaction of the competent authority in not taking any decision in the matter of resignation and the letter under Annexure-4 in which the applicant withdrew his resignation. When no action was taken by the competent authority in disposing of Anenxure-2 relating to the resignation letter submitted by the applicant on 1.11.1966 for a long period of 16 years and under Annexure-5 accepted the resignation of the applicant with effect from 1.11.1966, the question of the applicant remaining absent for a long period of five years as held by the appellate authority, respondent no.4, is not based on record but actuated with surmises and conjecture. When the disciplinary authority under Anenxure-5 decided that the period from 16.6.1966 to 31.7.1966 will be treated as duty and the period from 1.8.1966 to 31.10.1966 is treated as leave as admissible, the question of the applicant remaining absent for more than five years cannot hold the field and in this premises the direction of the appellate authority is not supported by any material. Had the applicant joined in service, he would have retired on 31.1.1991 and the date of Annexure-12 is 5.3.1992 wherein the applicant has been asked to show cause as to why he shall not be removed from service. Had the applicant joined in service, he would have retired on 31.1.1991 and the date of Annexure-12 is 5.3.1992 wherein the applicant has been asked to show cause as to why he shall not be removed from service. In view of the date of superannuation of the applicant which fell on 31.1.1991, the privity of contract between the employer and the employee comes to an end and the question of removal of service of a retired Govt. servant in a disciplinary proceeding does not arise. 7. In view of the reasons indicated above, the issuance of notice under Annexure-12 is bad in law and is liable to be quashed. 8. In view of the discussions indicated above, we have quashed the order under Anenxure-5 in accepting the resignation of the applicant with effect from 1.11.1966 as bad in law and having quashed the Annexure-12, the next question that falls for consideration is as to whether the applicant shall be entitled to all financial and service benefits. In view of the admission of the applicant that had he continued in service he would have retire on 31.1.1991 on superannuation. The question of reinstatement of the applicant in service as V.L.W. does not arise for consideration. When the applicant is admittedly out of service from the date of submission of resignation till date, even if it is held by the Tribunal that he is deemed to be continue in service till the date of his retirement, he has actually not performed his duty in the post of V.L.W. Since payment of salary is commensurate with the work done by a Govt. servant, we are of the view that the applicant shall not be entitled to full salary for the intervening period. Since the applicant was prevented from discharging his duty as no action was taken on his resignation which was subsequently withdrawn by the applicant in the year 1974, in the interest of justice, he would be entitled to 50 per cent of the salary for the intervening period with effect from 1.11.1966 till the date of his superannuation with a direction that the salary of the applicant be fixed notionally by granting increment as due and admissible and the entire exercise shall be completed within four months from the date of receipt of copy of this order.' 3. In sum and substance, the Administrative Tribunal by its judgment dated 21.11.2000 in both the orders at Annexure-5 dated 2.12.1991 and at Annexure- 12 dated 5.3.1992 therein, there is no doubt based on such decision of the Tribunal, the petitioner would be treated to have been continuing in service till attaining the age of superannuation on 31.01.1991. Copy of the Tribunal's judgment is appearing at Anenxure-8. 4. There is further development through the pleading inasmuch as State of Odisha challenged the aforesaid order of the Tribunal in O.J.C.No.2961 of 2002 which was finally dismissed by this Court on 16.8.2011 as appearing at Annenxure-9. State carried the matter to Hon'ble Supreme Court in S.L.P.(Civil) No.28423 of 2012, which is again appearing to be dismissed on 19.9.2012 vide Annexure-10. 5. It is alleged that even after end of litigation, the retiral dues and pension aspect involving the petitioner could not be materialized. Being harassed, before filing the writ petition, petitioner went on approaching the authority making several request. His request having not been considered, petitioner was constrained to again file an Original Application in the Tribunal in the year 2015, being registered as O.A.No.3938 (C) of 2015, on transfer of the same to this Court it is registered here as W.P.C.(OAC). No.3938 of 2015. Filing the Original Application being transferred to this Court, petitioner has the following relief: (i) Direct/order that the arrear salary of the applicant as per the direction in O.A.No.429 of 1992 and pension gratuity and other post retirement benefits shall be paid to the applicant within a stipulated period with 18% interest as per the law settled by the Hon'ble Supreme Court of India as well as by the Hon'ble High Court of Orissa by calculating the interest from the date of entitlement till the date of actual payment. (ii) Pass such other order(s)/ direction(s) as may be deemed fit and proper in the bonafide interest of justice.' It is on the premises that the petitioner's fate has also been decided by the Tribunal being confirmed by the High Court and further being confirmed by the Hon'ble Apex Court on dismissal of the S.L.P.C. at the instance of the State. Petitioner, who is already 88 years of old has made a claim through this application to release the entire retiral dues along with interest @ 18%. 6. Sri Pangrahi, learned Addl. Petitioner, who is already 88 years of old has made a claim through this application to release the entire retiral dues along with interest @ 18%. 6. Sri Pangrahi, learned Addl. Standing Counsel appearing for the State however has no dispute to resolution of dispute in the series of litigations vide Annexures-8, 9 and 10, three legal proceeding before the Tribunal then High Court then before the Hon'ble Apex Court respectively. For the development, there also remains no dispute on the entitlement of the petitioner as he is deemed to have been continuing till he attended his age of superannuation 7. This Court on perusal of the orders at Anenxures-8, 9 and 10 and for there is no dispute between the parties that the petitioner's continuance in service having been finally adjudicated by the Tribunal and being confirmed in this Court and Hon'ble Supreme Court, there remains no doubt that the petitioner not only to have been treated to be continuing till attaining his normal superannuation on 31.1.1991 and accordingly he would have been also entitled with all retiral dues with all consequential retiral benefits. 8. It is in this view of the matter and the fate of the petitioner having been settled through different judicial proceedings long since, this Court finds, there is no excuse to the public authority in failing to resolve the dispute of the petitioner regarding non-payment of retiral dues as well as consequential retiral benefits. 9. In this view of the matter, this Court allowing W.P.C.(OAC). Mo.3938 of 2015 directs the Chief Secretary to Government of Odisha-opposite party no.1 and Secretary to Government of Odisha, Panchayati Raj Departmentopposite party no.2 to undertake the exercise of calculation of the entire retiral dues of the pettier treating him to have been retired since 31.1.1992 along with calculation of pensionary benefits, if any, with effect from 1.2.1992 and release both the amount by completing the entire exercise within a period of one month hence. For unjustified dealing on the part of the public authority, petitioner will also be entitled to interest @ 6% on the whole arrear from the date of superannuation toll the date of adjudication of the proceeding on O.A No.429 of 1992 on 21.11.2000. 10. For unjustified dealing on the part of the public authority, petitioner will also be entitled to interest @ 6% on the whole arrear from the date of superannuation toll the date of adjudication of the proceeding on O.A No.429 of 1992 on 21.11.2000. 10. For there is sufficient delay in working out the direction of the Tribunal even after dismissal of the matter in Hon'ble Apex Court, the petitioner will also be entitled to interest from the date of disposal of the Original Application i.e. from 21.11.2000 till there is final adjudication of the proceeding in the Hon'ble Apex Court on 19.9.2012 @ 8% per annum and after the date of dismissal of the S.L.P.C. in the Hon'ble Apex Court, from 19.9.2012, the petitioner will be entitled to interest on whole arrear @ 10% per annum. Entire interest aspect be also calculated and paid to the petitioner within a period of one month from the date of payment of the arrear. Since the huge amount of arrear will be accrued in favour of the petitioner along with interest, looking to the present age of the petitioner already 88 years of old and suffering a lot for no fault of him, there should be immediate release of a sum of Rs.5,00,000/- (Rupees five lakhs) in favour of the petitioner at least within a period of seven days from the date of receipt of a copy of this judgment, which will be subject to adjustment against the final payment of the arrear. For the unnecessary suffering meted by the petitioner and for the lackadaisical attitude of the public authority in sitting over the matter long since further the petitioner to go for unnecessary litigation, petitioner will also be entitled to litigation cost/ expenses, which is quantified herein at Rs,.15,000/- (Rupees fifteen thousand) considering the petitioner has a series of legal battle all through. It is clarified that Petitioner since is of 88 years, in the event any preparation of document requires the Petitioner's signature, appointing authority/competent authority shall sent competent person with all such papers where signature, if any, of the Petitioner is required, to the residence of the Petitioner and shall complete all formalities and the entitlements shall also be handed over to the Petitioner at his residence itself. Looking to the age of the Petitioner, if there is delay in compliance of this Court's direction, Petitioner shall be entitled to interest @ 10% all through. 11. The writ petition succeeds with the cost indicated hereinabove. As restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the judgment available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25.3.2020 as modified by Court's Notice No.4798, dated 15th April, 2021.