Allowed

Debadutta Sarangi v. State of Odisha

Orissa HC10 Dec 2024WP(C)/1877/2021

Case brief

AI extract

What is this about?

The High Court of Orissa held that surcharge proceedings under the Local Fund Audit Act are not "judicial proceedings" requiring evidence on oath. Consequently, the State could not withhold the petitioner’s pension and gratuity pending final orders in these proceedings.

What did the court decide?

The petitioner’s pensionary benefits, including gratuity and other dues, were ordered to be released within two months.

Debadutta Sarangi Vs State of Odisha — Pension and Retirement Benefits | Orissa HC (2024)

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Signature Not Verified

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Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, C utta ck Date: 24-Dec-2024 14:46:29

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No. 1877 of 2021

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(An application under Articles 226 & 227 of the Constitution of India)

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Debadutta Sarangi .…… Petitioner -Versus-

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State of Odisha & Ors. ……. Opposite Parties

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Advocate(s) appeared in this case:-

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For Petitioner : Mr. M.K.Mohanty, Advocate For Opposite Parties : Ms. B.L.Tripathy, ASC

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CORAM : JUSTICE B.P. ROUTRAY

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JUDGMENT

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10^th December 2024

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B.P. Routray,J.

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Heard Mr. M.K.Mohanty, learned counsel for the Petitioner and Ms.B.L.Tripathy, learned ASC for State-Opposite Parties.

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The Petitioner has prayed for releasing his pending gratuity and other retirement benefits.

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The Petitioner retired from service as Additional Block Development Officer of Puri Sadar Block upon superannuation on 28^th February 2018. During his incumbency in the block for the financial year 2011-12 and 2012-13, certain financial irregularities were noticed in course of the audit as per the audit report under

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W.P.(C) No.1877 of 2021

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Page 1 of 7

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Signature Not Verified

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Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, C utta ck Date: 24-Dec-2024 14:46:29

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Annexure-C/4 and D/4. Financial irregularities being noticed relating to excess payment of government money, a criminal case was instituted against one Rabindra Mallick, the then cashier of Puri Sadar Block. A departmental proceeding was initiated against him also.

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The Petitioner was then working as the Accounts Officer as well as Additional Block Development Officer in the block. He was also remained in-charge of the BDO for the period from 1^st April 2011 to 4^th August 2011. But, it is true that neither any criminal proceeding nor departmental action was taken against the Petitioner. However, a surcharge proceeding under Section 9(2) of the Odisha Local Fund Audit Act, 1948 was initiated against the Petitioner on 22^nd March 2014 (Annexure-A/2) for recovery. Further, another surcharge proceeding was initiated against the Petitioner in the year 2016. It is also true that no order has yet been passed in both of the aforesaid surcharge proceedings initiated against the Petitioner.

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In the meantime, upon retirement of the Petitioner on superannuation on 28^th February 2018 his pension, gratuity and other retiral benefits are not released and kept withhold on the ground of pendency of both these proceedings.

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The State has filed its counter affidavit stating that since two surcharge proceedings are pending against the Petitioner for recovery of government money, the pension and other retiral benefits of the Petitioner has been withheld pending finalization of proceedings. Nonetheless, the Petitioner is receiving provisional pension.

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W.P.(C) No.1877 of 2021 Page 2 of 7

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Signature Not Verified

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Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, C utta ck Date: 24-Dec-2024 14:46:29

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Rule-7 of the Odisha Civil Service (Pension) Rules, 1992 gives right to the Government to withhold the pension of an employee. Said Rule-7 is reproduced below:-

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7. Right of Government to Withhold or Withdraw Pension-

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(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:

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Provided that the Odisha Public Service Commission shall be consulted before any final orders are passed:

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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.

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(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 re-employment, 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:

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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.

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(b) such departmental proceedings as referred to in subrule (1) if not instituted while the Government servant was in service, whether before his retirement or during his reemployment-

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(i) shall not be instituted save with the sanction of Government;

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W.P.(C) No.1877 of 2021 Page 3 of 7

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Signature Not Verified

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Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, C utta ck Date: 24-Dec-2024 14:46:29

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(ii) shall not be in respect of any event which took place more than four years before such institution ; and

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(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;

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(c) No judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his reemployment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution.

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(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.

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(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 onethird of the pension admissible on the date of retirement of a Government servant.

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Explanation - For the purpose of this rule -

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(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

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(b) judicial proceedings shall be deemed to be instituted,-

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(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

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W.P.(C) No.1877 of 2021 Page 4 of 7

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Signature Not Verified

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Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, C utta ck Date: 24-Dec-2024 14:46:29

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(ii) in the case of civil proceedings, on the date of presentation of the plaint in the Court.

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As it seen from the above prescription of language used in Rule-7, the Government can reserve his right to withhold the pension and gratuity in case the employee is found guilty during the period of his service in any departmental or judicial proceeding. Admittedly, no departmental proceeding has ever been initiated or pending against the Petitioner.

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The question for determination here is that, whether pendency of surcharge proceedings initiated against the Petitioner could be treated within the meaning of judicial proceeding mentioned in Rule-7 stated above.

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The meaning of judicial proceeding is not defined in OCS (Pension) Rules, 1992 nor in the Odisha Service Rules. As per the definition provided in the Criminal Procedure Code and Bhratiya Nagarik Suraksha Sanhita, judicial proceeding includes any proceeding in course of which evidence is or may be legally taken on oath. The procedure prescribed in the Odisha Local Fund Audit Act for conducting the surcharge proceeding does not speak for taking evidence on oath. Section 9(3) of Odisha Local Fund Audit Act envisages that,

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“After considering such cause as may be shown by any such person, the Examiner of Local Accounts may surcharge such payment on the person making or authorizing such payment or charge the amount of any loss or deficiency against the person responsible therefore or any amount which ought to have been but is not brought into account against the person failing to

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W.P.(C) No.1877 of 2021 Page 5 of 7

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Signature Not Verified

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Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, C utta ck Date: 24-Dec-2024 14:46:29

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account for such amount and shall in every such case certify the amount due from such person.”

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10. Further, Section-10 speaks that,

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“Any amount certified under section 9 as due from any person shall, if not paid by such person within one month next after the date of the certification thereof, be recoverable from him as an arrear of land revenue under the provisions of the law for the time being in force for the recovery of arrears of land revenue.”

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The Odisha Local Fund Audit Rules, 1951 also does not prescribe any specific proceeding to be followed in the surcharge proceeding to collect evidence on oath.

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As per the audit report under Annexure-C/4 and D/4, Shri Rabindra Mallick has been specifically fixed with the responsibility for the alleged misappropriation of the amount and it is observed that the responsibility of the Petitioner cannot also be ruled out.

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The Petitioner upon his retirement on superannuation is entitled for his pension, gratuity and other retiral benefits. The only right remains with the Government is regarding withholding of such pension and gratuity on the ground of finding guilty the Petitioner in any departmental or judicial proceeding or pendency of the same. The right of the Petitioner to get his pensionary benefits upon retirement on superannuation has been settled by several decisions of the Hon’ble Supreme Court, which may not be reiterated here.

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In the case at hand, as stated above the only question is whether such surcharge proceeding initiated under the Local Fund

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W.P.(C) No.1877 of 2021 Page 6 of 7

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Signature Not Verified

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Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, C utta ck Date: 24-Dec-2024 14:46:29

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Audit Act against the Petitioner can be termed as a judicial proceeding within the meaning of Rule-7 of the OCS (Pension) Rules. In the opinion of this Court since such proceeding does not require collection of evidence upon oath and the procedure of recovery is as the arrear of land revenue, the same cannot be treated as a judicial proceeding within the meaning of Rule-7 of the OCS (Pension) Rules giving right to the authority to withhold the pensionary benefits. It is true that depending on the final order passed in the surcharge proceeding, if any, amount is found liable for recovery from the Petitioner the same can be recovered in terms of Section-10 of the Odisha Local Fund Audit Act, 1948, and for said purpose withholding pension, gratuity and other retirement benefits of the Petitioner would not be justified.

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Accordingly, the writ petition is disposed of as allowed and the Opposite Parties are directed to release the pensionary benefits including gratuity and other admissible dues to him, within a period of two months from the date of receipt of copy of this order.

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(B.P. Routray) Judge

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Sangram,Sr.Steno

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W.P.(C) No.1877 of 2021 Page 7 of 7

Debadutta Sarangi v. State of Odisha

Case brief

What is this about?

What did the court decide?

Debadutta Sarangi v. State of Odisha

Case brief

What is this about?

What did the court decide?

What the court decided

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