Allowed

Justice P.C.Mishra v. Union of India

Orissa HC1 Dec 2018OJC/8804/1999

Case brief

AI extract

What is this about?

The petitioner, a retired Judge and President of the State Consumer Commission, challenged deductions from his salary and denial of pension benefits calculated on 15 years of service. The court allowed the writ petition based on the principle that pension is an indefeasible right established under Articles 14 and 221 of the Constitution, which cannot be abridged in subsequent statutory appointment

What did the court decide?

Directed opposite parties to pay the amount deducted from salary and differential gratuity within three months from the date of issuance of the writ.

Justice P.C.Mishra Vs Union of India — Pension and Retirement Benefits | Orissa HC (2018)

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O.J.C. No.8804 of 1999

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12. 01.12.2018

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Heard learned counsel for the parties.

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By way of this writ petition, the petitioner has prayed for the following relief:

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“It is, therefore, prayed that this Hon’ble Court may graciously be pleased to:

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(i) Issue a Rule Nisi calling upon the opposite parties to show cause as to why (i) Arrear Salary, as sanctioned, after deducting/adjusting the amounts received, shall not be paid to the petitioner within a period to be stipulated by the Hon’ble Court; (ii) Pension of the petitioner as retired Judge and President of the State Consumer Commission shall not be duly computed and/or fixed on the basis of 15 years of completed service; (iii) Reimbursement of Medical Claims of the petitioner as President of the said shall not be allowed and the amount paid to him within a period to be stipulated by the Hon’ble Court; and (iv) interest at 12% per annum shall not be allowed on the amounts due to the petitioner;

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And

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(ii) If the opposite parties fail to show cause and/or show insufficient and/or false cause, make the said Rule Nisi absolute and issue directions to the opposite parties to (i) make payment of arrear salary, (ii) fix pension of the petitioner on the basis of 15 years of completed service, (iii) make payment of reimbursement of medical bills, and (iv) pay interest at 12% on the amounts due to the petitioner;

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And

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(iii) allow the writ application with costs;

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Learned counsel for the petitioner submits that the issue is covered by the decision of this Court reported in AIR 2008 Orissa 28 (Justice Debendra Mohan Patnaik v. State of Orissa & others)

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more particularly paragraph-2 read with paragraphs-7, 10, 11 and 12 thereof which read as follows:

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“2. Sub-section (2) of Section 16 of the Consumer Protection Act, 1986 (hereinafter called as ‘the Act’) provides that the salary or honorarium and other allowances payable to, and the other terms and conditions of service (including tenure of office) of the members of the State Commission shall be such as may be prescribed by the State Government. Rule 6 of the Orissa Consumer Protection Rules, 1987 framed under the Act provides :

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“6. Salary or honorarium and other allowances and terms and conditions of the President and members of the State Commission – (Sec.16(2) – (1) President of the State Commission, shall receive the salary of the Judge of a High Court if appointed on whole-time basis or an honorarium of Rs.200/- per day for the sitting if appointed on part-time basis. Other members, if appointed on whole time basis, shall receive a consolidated salary of Rs.3,000/- per month or an honorarium of Rs.150/- per day for the sitting if appointed on part-time basis.”

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In view of the aforesaid, the order of this Court remains unaltered so far as it relates to the question of reduction of salary to the extent of pension. That apart, we do not find any statutory provision either in the Act or in the Orissa Consumer Protection Rules to reduce the salary of the President of the State Commission to the extent of pension he receives as a retired Judge.

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Be that as it may, we are concerned with the Rules framed by the State of Orissa which does not make any provision for deduction of pension from the total salary of the President, State Commission and in the past, as we have indicated the State Government has paid the benefit of a sitting Judge to the Chairman of the Liquor Tragedy Commission and there is nothing before us to accept the reason why the petitioner shall not be given the benefit according to the provisions of the Act and the Orissa Consumer Protection Rules and the benefits so extended to Justice S.K. Ray by virtue of the order of this Court which was kept unaltered by the Apex Court.

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Pension is not a bounty as has been held by the Supreme Court in several decisions. It is a part of one’s

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own earning, which is retained and is given after superannuation as per the rules. Thus, an indefeasible right is created. That right cannot be taken away or abridged in any manner in course of a subsequent employment unless statute under which the employment is made specifically provides for such abridgement. In case of a statutory appointment like the one the petitioner was holding, namely, President of State Consumer Disputes Redressal Commission, which is made under the Consumer Protection Act, unless there exists a provision in the Act itself the indefeasible right to pension earned by a High Court Judge cannot be abridged in any manner particularly in the teeth of the constitutional provision of Article 221 (2) as interpreted by the Supreme Court in Sankalchand Himatlal Sheth’s case (AIR 1977 SC 2328) (supra). No such provision having been pointed out to us in the Consumer Protection Act or the Rules’ made thereunder, the conclusion is irresistible that no part of the petitioner’s pension earned as a Judge of the High Court can be taken into account while fixing the salary for the period he served as whole time President of the State Commission under the Consumer Protection Act. Consequently the deduction of Rs.12,724/- per month from his salary is illegal and would constitute a constitutional infraction.

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In this view of the matter which we have elaborated in our foregoing discussions, we are drawn to an irresistible conclusion that the State Government has acted illegally and unreasonably by reducing the salary of the writ petitioner to the extent of pension he received during his tenure as the whole time President of the State Consumer Disputes Redressal Commission. Accordingly we direct the O.Ps. to pay the petitioner the amount that has been deducted from his salary for the period for which he functioned as whole time President of the forum which shall be computed within a period of three months from the date of issuance of writ and be paid to him within a month thereafter. The differential gratuity which has also not been paid to the petitioner, be paid in the meantime.”

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In that view of the matter, the writ petition deserves to be allowed and the same is allowed in terms of the aforesaid order. It is directed that the opposite parties shall pay the petitioner the

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amount that has been deducted from his salary for the period for which he functioned as whole time President of the forum which shall be computed within a period of three months from the date of issuance of writ and be paid to him within a month thereafter. The differential gratuity which has also not been paid to the petitioner, be paid in the meantime.

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Urgent certified copy of this order be granted on proper application.

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.��..........�� ( K.S. Jhaveri ) Chief Justice

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��.��.. ( K.R.Mohapatra ) Judge

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AKK

Justice P.C.Mishra v. Union of India

Case brief

What is this about?

What did the court decide?

Justice P.C.Mishra v. Union of India

Case brief

What is this about?

What did the court decide?

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