Somanath Panda Vs State

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W.P.(C) No.6600 of 2007

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4.8.2015 Mr. Santosh Kumar Pattanaik, Senior Advocate has filed appearance memo on behalf of op
posite party nos.2 to 4, same be kept on record.
 Heard.

¶3

 The petitioner has approached this Court for issuance of direction to the opposite par
ties for quashing the order dated 24.12.2004 as contained letter No.31064/OSRTC (Annexure-3) a
nd thereby prayed for issuance of direction upon the opposite parties to consider the period f
rom 25.01.1964 to 8.11.1977 as qualifying service for counting for the said period for the pur
pose of pensionary benefit.

¶4

 In view of the order dated 15.07.2015, Chairman-cum- Managing Director, OSRTC, Paribah
an 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 her 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 d
uty w.e.f. 30.06.1985 performed his duty w.e.f. 31.05.1993, the date of attaining normal age o
f superannuation. After superannuation from service he made a representation before the compet
ent authority to count at least the period from 25.01.1964 to 8.11.1977 for the purpose of pen
sionary benefit since he has completed the qualifying ten years of service which is necessary
for entitling him to get pensionary benefit.

¶5

 On the representation, the authorities have taken a decision on 24.12.2004 (Annexure-3
) rejecting claim on the

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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 r
emain unauthorized absence from duty for a period of more than seven years and as such the sai
d period would be treated to be resigned from service.

¶7

 The petitioner being aggrieved with the decision dated 24.12.2004 has come to this Cou
rt by way of filing this writ petition challenging the same on the ground that once the petiti
oner was allowed to resume his duty on 30.06.1985 and been permitted to continue in service ti
ll the date of attaining normal age of superannuation i.e., 31.05.1993 hence it would not be d
eemed resignation on account of having unauthorized absence for a period of more than seven ye
ars.

¶8

 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 pensionar
y benefit.

¶9

 Learned senior counsel appearing for the OSRTC has produced the notification dated 31.
03.1978 issued by the OSRTC containing Regulation.

¶10

 Learned counsel appearing for the petitioner further contends that the principle of de
emed resignation as provided under Regulation 98 (3) (2) will not be applicable because the mo
ment 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.

¶11

 On the other hand, learned senior counsel appearing for the OSRTC on the basis of reco
rd 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), t
he petitioner will be treated deemed to have resigned from the post and as such after the resi
gnation the past service rendered by the petitioner will not be counted for pensionary benefit
.

¶12

 Learned senior counsel appearing for the OSRTC has not disputed this fact that the pet
itioner was allowed to resume his duty w.e.f. 30.06.1985.

¶13

 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.

¶14

 In view of provision as contained in Regulation 98 (3) (2) of OSRTC, Act it has been p
rovided which is being reproduced herein below:-

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 Where a permanent employee does not resume duty after remaining on leave for a continu
ous period of five years, or where an employee after the expiry of this leave remains absent f
rom duty otherwise than on foreign service or on account of suspension, for any period which t
ogether with the period of the leave granted to him exceeds five years, he shall unless Corpor
ation in view of the exception circumstances of the case otherwise determine, he deemed to hav

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e resigned and shall accordingly cease to be an employee of the Corporation.

¶17

 On perusal of the said provision it is apparent that a permanent employee if not resum
ed duty after remaining on leave for a continuous period of 5 years, or where an employee afte
r expiry of the leave remains absent from duty otherwise than on foreign service or on accoun
t of suspension, for any period which together with the period of the leave granted to him exc
eeds 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.

¶18

 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 r
emain 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 superannuat
ion i.e., 31.05.1993 which suggests that the petitioner was being permitted to resume till his
 date of attaining normal superannuation.

¶19

 The authority has taken decision disentitling the petitioner for getting pensionary be
nefit for the service rendered by the petitioner from 25.01.1964 to 8.11.1977 on the ground th
at he has remain absent unauthorised for the period of more than 7 years as such in view of th
e 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 from 25.01.1964
to 8.11.1977 and

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remain absent for more than 7 years and subsequently permitted to resume his duty but the auth
orities have not taken any action after 29.06.1985 in this regard.

¶21

 The impugned order has been passed for the first time when the petitioner has approach
ed 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.

¶22

 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 deci
sion in this regard. But no decision was taken rather the authorities have allowed the petitio
ner to resume his duty w.e.f. 30.06.1985 permitted to him remain as service till the date of s
uperannuation i.e., 31.05.1993.

¶23

 It is also not in dispute that the authorities have not initiated any departmental pro
ceeding against the petitioner.

¶24

 Provision as contained in Regulation 98(3)(2) certainly conferred with the power upon
Corporation which provides deeming clause for resignation regarding engagement or disengagemen
t but here in this case the petitioner was allowed to resume his duty w.e.f. 30.06.1985 and th
e petitioner has been permitted to join in service which suggests that the deeming clause will
 not come into

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play due to the decision having been taken by the authority.

¶26

 From perusal of the order dated 24.12.2004, this aspect of the matter has not been tak
en into consideration by the authority and merely the relying Provision as contained in Regula
tion 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.

¶27

 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 fro
m 25.01.1964 to 8.11.1977 does not seem to be proper and in consonance with Provision of claus
e 98 (3) (2) regulation of the OSRTC.

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 In view thereof, the order dated 24.12.2004 is not sustainable as such is hereby quash

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ed.

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 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 pref
erably 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 hereina
bove.

¶31

 Personal appearance of CMD is hereby dispensed with.

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S. N. Prasad, J.

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Somanath Panda v. State

Case brief

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Somanath Panda v. State

Case brief

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