Disposed

Basanta Kumar Samal v. Finance Dept.

Orissa HC8 Nov 2023WP(C)/34639/2023

Case brief

AI extract

What is this about?

In a writ petition regarding unpaid pensionary benefits due to service transfer, the High Court directed the petitioner to file a fresh representation with the competent authority. The court cited a meeting decision and Supreme Court precedent but disposed of the matter by mandating a substantive decision from the authority with a binding timeline.

What did the court decide?

Petitioner directed to file fresh representation before Opposite Party No. 5; authority directed to decide and issue reasoned order within two months.

Basanta Kumar Samal Vs Finance Dept. — Pension and Retirement Benefits | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No.34634 of 2023

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Biswanath Das

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…. Petitioner Mr. K.K. Nayak, Advocate

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-versus-

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State of Odisha & others

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…. Opposite Parties Mr. P.K. Muduli, A.G.A.

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CORAM:

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JUSTICE A.K. MOHAPATRA

ORDER

Order No.

08.11.2023

This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).

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Heard learned counsel for the Petitioner as well as learned Additional Government Advocate for the State. Perused the Writ Petition as well as the documents annexed thereto.

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The present Writ Petition has been filed with the following prayer :

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“In the aforesaid premises, it is most humbly prayed that the Hon’ble Court may graciously be pleased to issue notice to the opp. parties calling upon them to show cause as to why the prayer of the petitioner for a direction to the opp.parties to consider the past services rendered by the employees of the petitioner’s union under ARECS for the purpose of counting the period of qualifying services and upon their showing no cause, false cause or insufficient cause make the rule absolute by issuing a direction to the opp.parties to take into account the past services of the employees of the petitioner’s union rendered under ARECS for the purpose of extending the terminal and pensionary benefits.

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And pass such other order/orders that may be deem fit in the facts and circumstances of the case.”

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It is submitted by Mr. K.K.Nayak, learned counsel appearing for

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// 2 //

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the Petitioner that the Petitioner was initially appointed on 17.11.1979 by the Athagarh Rural Electricity Co-operative Society. While continuing in the aforesaid society, the business of OSEB as well as the Co-operative Society were taken over by the GRIDCO in the year 1996. While taking over the Co-operative Society, the GRIDCO has also taken over the employees, who were working under the Society. Accordingly, the Petitioner, who is an employee of the GRIDCO, while working in the GRIDCO, has retired from service on attaining the age of superannuation with effect from 31.08.2017. It is further contended by the learned counsel for the Petitioner that the real dispute arose after retirement of the Petitioner as he was not paid the terminal as well as pensionary benefits as is due and admissible to him.

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It is also contended by the learned counsel for the Petitioner that earlier the Petitioner approached this Court by filing a Writ Petition bearing OJC No.11066 of 1999. The said Writ Petition was disposed of vide order dated 30.07.2009 as not pressed. Learned counsel appearing for the Petitioner also submitted that in that case the Petitioner filed a memo stating therein that he wants to approach the State Government for redressal of his grievance and accordingly did not press the Writ Petition to pursue the matter with the State Government. Thereafter, the Petitioner was granted liberty to file a representation before the Government and the State Government was directed to consider the same within a stipulated period of time. Since no action was taken on the representation of the Petitioner, the Petitioner was again compelled to approach this Court by filing W.P.(C) No.30374 of 2011. The said Writ Petition was filed by the employees Association to which the Petitioner belonged. In the second Writ Petition, a Counter was filed taking therein a ground that since the Petitioner was initially appointed by the Society, therefore, he is not entitled to the pensionary benefit as claimed by the Petitioner as he was not working in a pensionable

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establishment and such Society was governed under EPF Act. It is also submitted by the learned counsel for the Petitioner that the aforesaid 2nd Writ Petition was also disposed of by this Court vide order 05.07.2023 granting liberty to the Petitioner to file Writ Petitions individually. Accordingly, the present Writ Petition has been filed by the present Petitioner.

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In course of argument, learned counsel for the Petitioner submitted that to resolve the dispute that has arisen on account of taking over the Society by the GRIDCO, the employees of the erstwhile Athagarh Rural Electricity Co-operative Society met the then Hon’ble Finance Minister on 24.03.2008. In the said meeting which was chaired by the Hon’ble Finance Minister, a decision was taken to the effect that denial of the benefit of past service rendered in the Society by the Petitioner for the purpose of calculation of terminal benefit would cause substantial loss to the Petitioner and therefore, it was decided that all employees shall be treated at par with the employees of OSEB, who have been transferred to GRIDCO/distribution company. Therefore, it was decided to consider the past service rendered in the Society for the purpose of calculation of gratuity and pension only. It was also decided that the additional funds required as per the calculation of the pension and gratuity of the employees, who are transferred employees, may be placed before the OERC by the erstwhile GRIDCO and other distribution company for consideration. Further, it was also decided to move the department of Energy to process a fresh proposal for necessary amendment in the memorandum of settlement, which will be placed before the Government for approval. However, referring to the Counter Affidavit filed by the State-Opposite Parties in the present Writ Petition, it has been submitted by the learned counsel for the Petitioner that no steps were taken by the Government for amendment of the Memorandum of Settlement and the same was never placed before the

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Government for approval. Accordingly, the decision taken in the aforesaid meeting could not be given effect to.

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Additionally, learned counsel for the Petitioner referring to the judgment in the case of Prem Singh vs.State of Uttar Pradesh and Ors.,(2019) 10 SCC 516 submitted before this Court that since the Petitioner was working on regular basis on being appointed by the erstwhile Co-operative Society and subsequently he was taken over by the GRIDCO and continued to work as such under the GRIDCO and accordingly he has retired from service on attaining the age of superannuation, the past service rendered by the Petitioner are to be taken into consideration for the purpose of calculation of pensionary as well as other terminal benefits of the Petitioner. In such view of the matter, learned counsel for the Petitioner submits that the Opposite Parties be directed to calculate the pensionary as well as other terminal benefit of the Petitioner taking into consideration the period of service they have rendered in the abovenamed Co-operative Society while calculating his service benefits as well as pensionary benefits within a stipulated period of time.

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Learned Additional Government Advocate for the State on the other hand submitted that the dispute involved in the present Writ Petition has not been finally adjudicated by any authority. He further submitted that the Petitioner has not approached the Opposite Party No.1, who is the competent authority to take a final decision in the matter. Therefore, the learned Additional Standing Counsel further contended that the Petitioner be directed to approach the Opposite Party No.1, who is the competent authority to take a final decision in the matter in accordance with law within a stipulated period of time and he will have no objection to the same.

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Considering the submissions made by the learned counsel appearing for the respective parties and on a careful examination of the

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background facts of the present case, this Court deems it proper to dispose of the Writ Petition at the stage of admission by directing the Petitioner to approach Opposite Party No.5 by filing a fresh representation along with all supporting documents within two weeks from today. In the event such a representation is filed, the Opposite Party No.5 shall do well to consider the case of the Petitioner keeping in view the factual scenario of this case as well as proceeding of the meeting dated 24.03.2008 under Annexure-2 to the Writ Petition as well as the law laid down by the Hon’ble Supreme Court in Prem Singh ’s case (supra) and accordingly take a decision in accordance with law by passing a speaking and reasoned order within a period of two months from the date of filing of the representation along with certified copy of this order. The decision so taken shall be communicated to the Petitioner within a period of two weeks from the date of taking such decision.

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With the aforesaid observations/ directions, the writ application stands disposed of. Issue urgent certified copy of this order as per Rules.

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( A.K. Mohapatra ) Judge

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Anil

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Signature Not Verified

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Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 10-Nov-2023 14:38:47

Basanta Kumar Samal v. Finance Dept.

Case brief

What is this about?

What did the court decide?

Basanta Kumar Samal v. Finance Dept.

Case brief

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What did the court decide?

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