Dismissed

Laxmidhar Das v. State of Odisha

Orissa HC19 Sept 2024WP(C)/28733/2021

Case brief

AI extract

What is this about?

The High Court addressed a petition challenging the withholding of pension and gratuity by the Government of Odisha. The petitioner argued disciplinary and criminal proceedings were not pending at retirement. The Court ruled that disciplinary proceedings begin upon the issuance of the charge sheet, which occurred before retirement, thus attracting Rule 7. However, criminal proceedings begin only upon taking cognizance, which happened after retirement. Consequently, while the disciplinary aspect was pending, the criminal one was not. The petition was dismissed, upholding the withholding of benefits.

What did the court decide?

No order as to costs. The writ petition is dismissed.

Laxmidhar Das Vs State of Odisha — Pension and Retirement Benefits | Orissa HC (2024)

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ORISSA HIGH COURT : CUTTACK

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W.P.(C) No.28733 of 2021

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In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950

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Sri Laxmidhar Das Aged about 61 years Son of Late Shyam Sundar Das At-Gopabandhu Nagar P.O./P.S.: Balugaon District: Khordha. …

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Petitioner.

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-VERSUS-

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1. State of Odisha Represented through Principal Secretary to Government Panchayati Raj & Drinking Water Department, Odisha Bhubaneswar.

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2. Collector and District Magistrate Khordha At/P.O./District: Khordha.

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3. District Panchayat Officer Khordha At/P.O./District: Khordha.

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4. Block Development Officer, Chilika Block, Chilika District: Khordha.

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5. Accountant General, (A&E) Odisha Bhubaneswar District: Khordha. … Opposite Parties.

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Counsel appeared for the parties:

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For the Petitioners : M/s. Prasanta Kumar Mishra, Sidhant Mishra and Kamal Lochan Kar, Advocates For the Opposite party : Mr. Sailaza Nandan Das No.1 to 4 Additional Standing Counsel For the Opposite party : Mr. Sudhir Kumar Patra, No.5 Advocate

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P R E S E N T:

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HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN

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Date of Hearing : 06.09.2024 :: Date of Judgment : 19.09.2024

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JUDGMENT

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Assailing the refusal order to grant pension/gratuity and other retirement benefits to the petitioner vide Letter No.219/GP, dated 10.02.2021 issued by the District Panchayat Officer, Khordha addressed to Senior Accounts Officer, Office of Principal Accountant General (A&E), Odisha, Bhubaneswar under Annexure-5 and rejection of the representation dated 24.02.2021 as communicated vide Letter No.515/GP dated 12.04.2021 by the District Panchayat Officer, Khordha under Annexure-10 invoking Rule 7 read with Rule 66 of the

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Odisha Civil Services (Pension) Rules, 1992, the petitioner has approached this Court craving to invoke extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, with the following prayer(s):

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―It is prayed, therefore, that this Hon‘ble Court may graciously be pleased to;

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i) Admit and allow the writ petition;

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ii) Issue Rule Nisi calling upon the Opp. Parties to show cause as to why the letters dated 10.02.2021 at Annexure-5 and dated 12.04.2021 at Annexure-10 shall not be quashed and the petitioner shall not be entitled for pension and other retirement benefits such as Gratuity and Commuted Value of pension along with interest at the rate of 18% per annum on arrear pension, Gratuity, commuted value of pension and un-utilized leave salary with effect from his due date;

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iii) And if the Opposite parties fail to show cause or show insufficient cause, this Hon‘ble Court may graciously be pleased to issue a writ in the nature of writ of mandamus or any other appropriate writ (s)/ order(s) by quashing Letters dated 10.02.2021 at Annexure-5 and dated 12.04.2021 at Annexure-10 with direction upon the Opposite Parties to disburse pension and other retirement benefits such as Gratuity Commuted Value of pension and un-utilized leave salary along with interest at the rate of 18% per annum on arrear pension, Gratuity and

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commuted value of pension with effect from the due date within a stipulated period of time;

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iv) Pass such other order (s), direction (s) as deem fit and proper to the facts and circumstances of the case to give complete relief to the petitioner;

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And for this act of kindness, the petitioner as in duty bound shall ever pray.‖

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Facts:

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2. Facts, as adumbrated by the writ petitioner, reveal that the petitioner, while working as Panchayat Executive Officer of Chilika Block in the District of Khordha, have had retired from the Government service on 30.06.2020 on attaining the age of superannuation, on which date, it is asserted, no proceeding either departmental or criminal was pending against him. Therefore, he claims to be entitled to get pension and other retirement dues with effect from the next date, i.e ., 01.07.2020 as provided under the Odisha Civil Services (Pension) Rules, 1992 [“OCS (Pension) Rules”, for brevity].

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2.1. There being no pending departmental proceeding or judicial proceeding as contemplated under Rule 7, the “Pension Sanctioning Authority” defined under Rule 2(q) of the OCS (Pension) Rules had no impediment for disbursement of pension and other retirement benefits.

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Therefore, the competent Authority had no authority to direct withholding of the said benefits.

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2.2. Since the amounts due to the petitioner are not disbursed, he submitted grievance petition before the Accountant General (A&E), Bhubaneswar-opposite party No.5, acting upon which request was made to the District Panchayat Officer-opposite party No.3 for early submission of pension papers vide communication by Letter dated 15.01.2021. The petitioner also submitted a representation dated 18.01.2021 before the Collector and District Magistrate, Khordha-opposite party No.2 in this regard. However, citing investigation in progress as regards the judicial proceeding (criminal case) under Section 13(2) read with Section 13(1)(c)/(d) of the Prevention of Corruption Act, 1988, being Bhubaneswar Vigilance P.S. Case No.46, dated 26.09.2017 is concerned, and also issue of Memorandum of Charges being No.1640, dated 31.12.2018 initiating disciplinary proceeding, the opposite party No.3 instructed the Office of the Accountant General (A&E), Odisha, Bhubaneswar to restrain sanction of pension in favour of the petitioner vide Letter dated 10.02.2021, relevant portion of which reads thus:

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―*** In the above circumstances, it is here to mention that under Rule 66(2) of Orissa Civil Services (Pension) Rules,

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1992, no gratuity shall be paid to the Government Servants until conclusion of the departmental or judicial proceedings and issue of final orders thereon. Further, under Rule 7 of said rules the Government have right to withheld or withdraw pension if any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence in duty during the period of service. But, in the meantime the Vigilance case of Sri Das, retired PEO has not been finalised yet and under sub judice before Hon‘ble Court of Special Judge, Vigilance Bhubaneswar. As such the pension of Sri Das has been held up and returned to the B.D.O., Chilika vide this Office Letter No.215/G.P. dated 09.02.2021 with a request to resubmit the same after finalisation of Vigilance case and D.P. case for sanction of pension in his favour .‖

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2.3. It is asserted that as no Memorandum of Charges had ever been served on him inviting written statement of defense prior to the date of retirement, it is from the Letter dated 10.02.2021, which is a communication between the District Panchayat Officer, Khordha and the Senior Accounts Officer, Office of the Principal Accountant General (A&E), Odisha, Bhubaneswar, the petitioner could come to know about initiation of disciplinary proceeding.

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2.4. Enclosing copy of order dated 26.11.2020 passed in T.R. Case No.30 of 2020 (State Vrs. Sri Laxmidhar Das & Others) by the Special Judge (Vigilance) at Annexure-9 to the writ petition, it is alleged that cognizance of

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offence under Section 13(2) read with Section 13(1)(c)/(d) of the Prevention of Corruption Act, 1988 being taken on the said date, plea of the opposite parties is fallacious for criminal proceeding cannot be stated to have been pending on the date of retirement. Added to this, having drawn attention by enclosing copy of Memorandum of Charge dated 31.12.2018 as Annexure-8, which is reportedly served on the petitioner on 19.03.2021, it is stated that no departmental proceeding could be said to have been instituted on the date of retirement. Thus, justifying his claim for disbursement of pension/gratuity and other retirement dues, the petitioner has questioned the propriety of exercise of power under Rule 7 read with Rule 66 of the OCS (Pension) Rules by the opposite parties by way of filing this writ petition.

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Hearing:

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3. Since the petitioner at the age of around 65 years facing the criminal trial/judicial proceeding as well as the departmental/disciplinary proceeding and has since been retired, is deprived of getting pension/gratuity and other retirement benefits, coupled with the reason that pleadings are completed and exchanged amongst the counsel for respective parties, on consent of counsel for the parties, this matter is taken up for final hearing.

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3.1. Accordingly, heard Sri Prasanta Kumar Mishra, learned Advocate for the petitioner and Sri Sailaza Nandan Das, learned Additional Standing Counsel for the opposite party Nos.1 to 4 and Sri Sudhir Kumar Patra, learned counsel for opposite party No.5 and the matter stood reserved for preparation and pronouncement of Judgment.

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Rival contentions and submissions:

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4. Mr. Prasanta Kumar Mishra, learned counsel submitted that it is undisputed fact on record that by Letter No.426/GP, dated 17.03.2021, the District Panchayat Officer, Khordha communicated Memorandum of Charges framed against the petitioner indicating initiation of departmental/disciplinary proceeding under Rule 15 of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962 (“OCS (CCA) Rules”, for convenience), being served on the petitioner on 19.03.2021, it is manifest that the departmental/disciplinary proceeding cannot be deemed to have been instituted till 19.03.2021. Hence, no departmental proceeding was pending on the date of his retirement, i.e., 30.06.2020.

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4.1. He further drew attention of this Court to copy of order passed by the Special Judge (Vigilance) in T.R. Case

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No.30 of 2020, as enclosed to as Annexure-13 forming part of Additional Affidavit dated 06.09.2024, which revealed that vide order dated 26.06.2020 it has been recorded as follows:

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―F.F. in this case has not yet been received. Put up on 23.09.2020 awaiting F.F.‖

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4.2. This Court was taken to Annexure-J/4 of the counter affidavit, which is an order dated 26.11.2020 passed by said Special Judge in the criminal trial, wherefrom it transpires that:

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―Charge Sheet No.38, dated 31.12.2018 along with other relevant documents are received from S.P. (Vigilance), Bhubaneswar. Register.‖

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4.3. Said order dated 26.11.2020 passed by the Special Judge, (Vigilance), Bhubaneswar in T.R. No.30 of 2020, would make it abundantly clear that the cognizance under Section 13(2) read with Section 13(1)(c)/(d) of the Prevention and Corruption Act, 1988 was taken on the said date, i.e., after date of retirement of the petitioner. It is, thus, vehemently argued that on the date of retirement of the petitioner, it could not be said that criminal proceeding stood instituted.

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4.4. It is the contention of the petitioner that there is no authority vested under law to withhold pension/gratuity and other retirement dues of the petitioner. At the same

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breath it is urged by the learned counsel for the petitioner that since neither the criminal case nor the departmental proceeding is stated to be pending as on 30.06.2020, i.e., the date of his retirement, the Letter dated 10.02.2021 communicated by the District Panchayat Officer, Khordha to the Senior Accounts Officer, Office of the Principal Accountant General (A&E), Bhubaneswar suggesting resubmission of pension papers “after finalisation of Vigilance case and D.P. case for sanction of pension in his favour” is contrary to explicit language contained in Rule 7 read with Rule 66 of the OCS (Pension) Rules, 1992.

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4.5. It is further urged by Sri Prasanta Kumar Mishra, learned Advocate that the Letter dated 12.04.2021 communicated to the petitioner rejecting the representation dated 24.02.2021 cannot withstand judicial scrutiny which runs counter to express to provisions contained in the OCS (Pension) Rules, 1992.

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5. Sri Sailaza Nandan Das, learned Additional Standing Counsel appearing for opposite party Nos.1 to 4 vehemently opposing the contentions and averments made in the writ petition submitted that the Superintendent of Police (Vigilance) vide his Office Letter No.12790/VC dated 24.12.2018 sought for sanction of prosecution against the petitioner and basing on such

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report, go ahead with the prosecution has been sanctioned by the Collector, Khordha vide Letter No.1632/GP, dated 31.12.2018.

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5.1. He further submitted that Memorandum bearing issue No.1640, dated 31.12.2018 enclosed therewith charges, shows that departmental proceeding was instituted on the said date, which fact was communicated to the Block Development Officer, Chilika vide Letter No.1660, dated 31.12.2018.

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5.2. With the said background, he, therefore, submitted that since both the criminal proceeding as well as the departmental proceeding was initiated against the petitioner prior to the date of his retirement, i.e., 30.06.2020, no infirmity could be imputed by the petitioner against the action of the opposite parties in exercising powers conferred under Rule 7 read with Rule 66 of the OCS (Pension) Rules.

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5.3. Learned Additional Standing Counsel has referred to paragraphs 20 and 21 of the counter affidavit, contents of which are quoted hereunder:

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―20. That the averments made in Para 17 of the writ petition are not correct and hereby denied. It is humbly submitted that it is not a fact that the memorandum of charges has been served on the petitioner much after his retirement. Rather the same

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has been communicated to the B.D.O., Chilika with all documents vide the letter No.1660 dated 31.12.2018 for service. Besides this the petitioner is very much aware of fact that a Vigilance enquiry has been conducted against him revealed from his representation dated 28.12.2018.

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21. That the averments made in para 18 of the writ petition are not correct and hereby denied. It is humbly submitted it is not a fact that the Special Judge Vigilance, Bhubaneswar has taken the cognizance much after the retirement of the petitioner. Rather the T.R. Case No.30 of 2020 has been initiated at the Court of Special Judge Vigilance, Bhubaneswar basing upon the charge sheet No.38 dated 01.12.2018 filed by the S.P. Vigilance 13(2) read with 13(1)(c)/(d) of PC Act, 1988/406/420/120-B/IPC.‖

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5.4. Sri Sailaza Nandan Das, learned Additional Standing Counsel proceeded to submit further that the date of institution of judicial proceeding is not the date on which cognizance was taken by the Magistrate on the complaint or report made to a police officer, but the date on which the complaint or report is made to a police officer is to be treated as the date of institution of judicial/criminal proceeding, if cognizance on the said report is taken by the Magistrate on a later date.

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5.5. The language used in Clause (b) of Explanation to Rule 7 of the OCS (Pension) Rules does not admit of any

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ambiguity. The phrase „of which the Magistrate takes cognizance‟ read juxtaposed with the expression „the date on which the complaint or report of a police officer” would not create any doubt in mind that it is the date on which complaint has been lodged of which the Magistrate takes cognizance on filing of final form on a later date.

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5.6. He relied on the interpretation of the Madhya Pradesh High Court rendered on similar expressions used in the statute which was under consideration of said Court in the case of Chandramani Tripathi Vrs. State of Madhya Pradesh & Others, Writ Petition No.10006 of 2016, disposed of vide order dated 25.02.2020 reported at 2020 SCC OnLine MP 3228 = ILR 2020 MP 692. The relevant portion of the said order runs as follows:

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―10. However, from bare reading of the respective provision i.e. Rule 9(6)(b) of the Rules, 1976, which is quoted hereinbelow:

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‗9. Right of Governor to withhold or withdraw pension.—

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(6) For the purpose of this rule—

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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

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or report of a police officer, of which the Magistrate takes cognizance, is made, and

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(ii) In the case of civil proceedings, on the date the plaint is presented in the court.‘

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there is no doubt that the date of institution of judicial proceeding is not the date of taking cognizance by the Magistrate on a complaint or report made to a police officer, but the date on which the complaint or report is made to a police officer, is material and the same is treated to be the date of institution of judicial proceeding, if cognizance on the said report is taken by the Magistrate.

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11. Although the interpretation as has been made by the Co-ordinate Bench in W.P. No.8514 of 2013, on which the petitioner is placing reliance, does not seem to be proper and it gives completely different meaning as can be gathered from the respective provision as quoted hereinabove.

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12. In my opinion, the date of making complaint or report to the police, is the date to be treated as the date of judicial institution. The order passed by this Court in the case of Amrit Rao Mukut Rao Survey Vrs. State of M.P. reported in (1999) 1 MP LJ 105, gives stand to the view taken by this Court dealing with the same provision, has clarified that the date of making complaint or report to the police officer, is also treated to be the date of institution of judicial proceeding. The High Court in the case of Amrit Rao Mukut Rao Survey (supra), has observed as under:

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‗7. Sub-rule (6)(b) of Rule 9 of the Rules defines institution of judicial proceedings. It provides that judicial proceedings shall be deemed to be instituted in the case of Criminal proceedings on the date on which the complaint or report of a police officer, or which the Magistrate takes cognizance, is made, and in the case of civil proceedings, on the date the plaint is presented in Court. Therefore, criminal proceedings are deemed to be instituted on the date on which the complaint is made.

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8. In the present case, the petitioner himself has stated that the report was lodged on the basis of the information on 27.11.1987. Thus judicial proceedings were instituted on 27.11.1987 before the retirement of the petitioner on 30.01.1988. Since the complaint was made on 27.11.1987 it will be deemed that judicial proceedings were instituted on 27.11.1987 before the date of retirement of the petitioner.

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9. Considering the scope of Rule 9(3) and Rule 9(6)(b) of the Rules, it is apparent that the proceedings were deemed to be instituted in the year 1987. Hence, under Rule 9(3) of the Rules, the proceedings cannot be quashed as the proceedings were instituted while the petitioner was in service, before his retirement.‘ ***‖

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5.7. It is stated that writ appeal before the Division Bench of the Madhya Pradesh High Court at Jabalpur, being W.A.

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No.1080 of 2022, was dismissed vide Order dated 19.09.2022 with the following observation:

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―I.A. No.12067 of 2022 is filed seeking condonation of delay of 97 days in filing the appeal.

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There is only one sentence to explain such a huge delay i.e. ‗there was a lock down in India and he was sick and old, aged about 69‘. There is no answer to the question as to how this comes within the period protected by the Hon‘ble Supreme Court especially when order was passed much prior to the lock-down. Even otherwise, we do not find any reason as to how such bald affidavit without any reason can be accepted. Even though questions of delay have always been considered liberally, we do not think that this is the attitude in which such applications could be filed. Having been filed in such a reckless and careless manner, we do not find it appropriate to entertain this appeal. Hence, the application is dismissed. As a consequence whereof, the writ appeal is also dismissed.‖

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5.8. Against such decision review, bearing R.P. No.1138 of 2022, being preferred, vide order dated 11.11.2022 the said Division Bench held that,

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―On hearing learned counsels, we do not find any error apparent on the face of record that calls for interference. Hence, the review petition is dismissed.‖

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5.9. Aforesaid orders were carried to Hon‟ble Supreme Court of India in SLP (Civil) Diary No.40606 of 2022, which

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faced the following consequence vide order dated 03.03.2023:

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―Delay condoned.

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We find no ground to interfere with the impugned order(s) passed by the High Court. The Special Leave Petitions are, accordingly, dismissed.

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Pending interlocutory application(s), if any, is/are disposed‖

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5.10. Sri Sailaza Nandan Das, learned Additional Standing Counsel, therefore, fervently requested to adopt the interpretation as set forth by the Madhya Pradesh High Court and insisted that since much prior to date of retirement of the petitioner, in the instant case, the criminal proceeding as well as the departmental proceeding was initiated, there can be no two opinions than to accept the view expressed by the Madhya Pradesh High Court; thereby he urged to dismiss the writ petition as there is legally justifiable ground to withhold the pension/gratuity and other retirement benefits in view of Rule 7 and Rule 66 of the OCS (Pension) Rules.

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Relevant provisions of OCS (Pension) Rules:

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6. Rule 2 of the OCS (Pension) Rules defines certain key terms, which are as follows:

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―(j) ‗Government‘ means the State Government of Odisha;

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(k) ‗Gratuity‘ includes:

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(i) ‗Service Gratuity‘ payable under clause (i) of sub-rule (5) of Rule 47;

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(ii) ‗Death Gratuity‘ payable under sub-rule(2) of Rule 49;

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(iii) ‗Retirement Gratuity‘ payable under sub-rule (1) of Rule 49;

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(iv) ‗Residuary Gratuity‘ payable under sub-rule (3) of Rule 49;

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(l) ‗Head of the Department‘ means an authority specified in Appendix 3 of the Odisha Service Code and includes such other authority whom the Governor may, by order, declare as Head of a Department;

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(m) ‗Head of Office‘ means a Gazetted Officer including an authority or person whom the competent authority may, by order, specify as Head of Office;

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(p) ‗Pension‘ includes gratuity except where the term pension is used in contradiction to gratuity;

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(q) ‗Pension Sanctioning Authority‘ means the appointing authority competent to make appointment, to the post held by the retiring Government servant;

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Provided that where the appointing authority is the Government or the Principal Secretary,

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Commissioner-cum-Secretary, or Secretary to Government or Heads of Departments listed in Appendix 3 in the Odisha Service Code, may delegate the power of authority to sanction pension to any Subordinate Officers not below the rank of Group–A, working under his/her direct control.

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Provided further that in case of sanction of provisional pension of a retired Government servant as provided under Rules 65 and 66 of these rules, the ‗Pension Sanctioning Authority‘ means the Head of Office under whom the retiring Government Servant worked last even if such Head of Office is not the Appointing Authority of the said Government Servant.

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(s) ‗Retirement‘ means discharge of an Officer on pension and/or gratuity as admissible under these rules;

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(t) ‗Retirement benefits‘ includes pension or service gratuity and death gratuity, retirement gratuity where admissible;

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(v) ‗State‘ means the State of Odisha;‖

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6.1. Rule 7 of the OCS (Pension) Rules is reproduced hereunder:

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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

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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 reemployment 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 the which were

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by authority by they commenced in the same manner as if the Government servant had continued in service: 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 sub-rule (1) if not instituted while the

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Government servant was in service, whether his retirement or his rebefore during employment:

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

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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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(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

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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.—

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

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6.2. Rule 49 of the OCS (Pension) Rules stands as follows:

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―49. Death/Retirement Gratuity.—

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(1) In the case of a Government servant, who has completed five years of qualifying service, on retirement from service shall be paid a Retirement Gratuity equal to one-fourth of his last emolument for

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each completed six monthly period of qualifying service subject to a maximum of 16½ times of the emoluments:

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(4) The emoluments for the purpose of gratuity admissible under this rule shall be reckoned in accordance with Rule 48.

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(5) (a) Where the sanction of payment of gratuity is delayed for more than a year from the date is due under sub-rule (1) or (2), as the case may be, and such delay is attributable to administrative lapses, interest at the rate of 7 per cent per annum for the period beyond one year shall be payable on the amount of gratuity:

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Provided that where a departmental or judicial proceedings as the case may be, in respect of pensioner, is continued or initiated under Rule 7, the gratuity shall become payable on the date finalisation of such proceedings and the period of one year shall be reckoned from the date.

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(b) The payment of interest on delayed sanction of gratuity shall be ordered by the Secretary of the concerned Administrative Department.

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(c) Where the Secretary of the Administrative Department as referred to in clause (b) is satisfied that the delay in sanction of gratuity has been caused on account of administrative lapses be shall sanction payment of interest so

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payable with the concurrence of the Finance Department and approval of the Government.

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(d) In every case where the interest is so sanctioned and is paid, the amount of such interest shall be recovered from the Pension Sanctioning Authority or the authority who is responsible for such delay.

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***‖

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6.3. Provisions of Rule 66 stand as follows:

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―66. Grant of provisional pension where departmental or judicial proceeding is pending.—

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(1) Where departmental or judicial proceedings are pending in respect of Government servant on the date of his retirement, referred to in, he shall be paid a provisional pension not exceeding the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant; or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension.

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(2) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final order thereon:

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Provided that where departmental proceedings have been instituted under Rule 16 of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962 for imposing any of the penalties specified in Clauses (i), (ii), and (iii-A) of Rule 13 of the said

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Rules, the payment of gratuity shall be authorised to be paid to the Government servant.

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(3) The provisional pension shall be authorised during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceeding, final orders are passed by the competent authority.

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(4) The authority competent to sanction pension shall be the authority competent to sanction provisional pension.

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(5) Payment of provisional pension made under sub-rule (1) shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of such proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period.‖

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Analysis and discussion:

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7. The undisputed facts as unfurled by respective parties reveal that the petitioner have had retired on 30.06.2020. The Memorandum of Charges bearing issue No.1640, dated 31.12.2018, signed on 31.12.2018 by the Collector, Khordha (Disciplinary Authority) with instruction “the receipt of the memorandum should be acknowledged by him” could be served on the petitioner on 19.03.2021 vide Annexure-8 and the sanction to proceed with criminal case, being accorded by said

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Collector, Khordha, was issued vide No.1632, dated 31.12.2018, but the cognizance in T.R. No.30 of 2020 was taken by the Special Judge (Vigilance), Bhubaneswar on 26.11.2020.

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Questions raised for adjudication:

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8. With the above factual background, on the contentious issues as raised, this Court is called upon to address two aspects, viz.:

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(i) whether the disciplinary proceeding could be “deemed” to have been initiated on the date of service of Memorandum of Charges on the petitioner so that it can be said that on the date of retirement no disciplinary proceeding was pending?

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(ii) whether cognizance of offence under Section 13(2) read with Section 13(1)(c)/(d) of the Prevention of Corruption Act, 1988, being taken on 26.11.2020, no judicial proceeding is “deemed” to be instituted as on the date of retirement, so as to hold that invocation of power under Rule 7 and Rule 66 of the OCS (Pension) Rules was without authority in law?

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(iii) On either of the above questions being in favour of the opposite parties, whether Rule 7 of the OCS (Pension) Rules would be attracted?

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9. With regard to issue of date of deemed initiation of disciplinary proceeding it would first be necessary to understand the purport of legal fiction contained in Rule 7 of the OCS (Pension) Rules.

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9.1. Presence of the term „deemed‟ in Clause (a) to Explanation appended to Rule 7 of the OCS (Pension) Rules has much relevance. It is made clear in said rules that the date on which the Statement of Charges/Memorandum of Charges is “issued to the Government servant” would be reckoned as the date on which the disciplinary proceeding is deemed to be instituted.

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9.2. Bhuwalka Steel Industries Ltd. Vrs. Union of India, (2017) 5 SCC 598 by referring St. Aubyn Vrs. Attorney General, 1952 AC 15 = (1951 2 All ER 473 (HL) made the following observations:

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―The word ‗deemed‘ is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible.‖

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9.3. The word „deemed‟ as per Worcester Dictionary is:

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―The word ‗deemed‘ is used in various senses. Sometimes it means ‗generally regarded‘. At other time it signifies ‗taken conclusively to be‘. Its various meanings are to been to be hold in belief, estimation, or opinion; to judge; adjudge; decide; consider to be; to have or to be of an opinion; to esteem; to suppose; to think, decide or believe on consideration; to account; to regard; to adjudge or decide; to conclude upon consideration.‖

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9.4. In Words & Phrases, Permanent Edition, Vol. 11A, page 181, the word „deemed‟ has been described to mean “regarded as being”; it is equivalent to “shall be taken to be”.

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9.5. In Rishabh Agro Industries Ltd Vrs. P.N.B. Capital Services Ltd, (2000) 5 SCC 515, in the context of Section 441 of the Companies Act, 1956, the following meaning has been culled out:

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―The word ‗deemed‘ as used in Section 441 of the Act means ‗supposed‘, ‗considered‘, ‗construed‘, ‗thought‘, ‗taken to be‘ or ‗presumed‘.‖

¶223

9.6. In Ram Prakash Khanna Vrs. S.A.F. Abbas, AIR 1972 SC 2350 = (1972) 1 SCC 784, the Supreme Court of India, while dealing with Rule 3(3)(b) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954, held as follows:

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―The use of word ‗deemed‘ in the rule indicates that the Government has the power to make a retrospective declaration because, it is only after promotion that there is

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any occasion to consider whether the period of officiation prior to promotion will be counted for purpose of seniority.‖

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9.7. In State of Karnataka Vrs. Shri Ranganatha Reddy, AIR 1978 SC 215, it has been observed as follows:

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―The use of word ‗deemed‘ does not invariably and necessarily imply an introduction of a legal fixation but it has to be read and understood in the context of the whole statute.‖

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9.8. In Consolidated Coffee Ltd Vrs. Coffee Board, AIR 1980 SC 1468, the observation of the Supreme Court runs as follows:

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―A deemed provision might be made to include what is obvious or what is uncertain or to impose for the purpose of a statute an artificial construction of a word or phrase that would not otherwise prevail.‖

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9.9. When a deeming provision is in operation, the Court is to keep in mind the principle of interpretation of a deeming clause. Whenever a deeming clause occurs in a statute and the Court is called upon to interpret the same, the Court has to first ascertain the purpose for which such deeming clause has been incorporated. Normally a deeming clause is created by way of a legal fiction. Therefore, the Court is to first ascertain the purpose behind the legal fiction. After ascertaining the purpose, the Court must assume those consequences,

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which are incidental and inevitable corollaries for giving effect to such legal fiction. See, Penguin Trading & Agencies Ltd. Vrs. State of Orissa, 2007 (Supp.-I) OLR 738.

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9.10. In Ashok Leyland Ltd. Vrs. State of Tamil Nadu, (2004) 134 STC 473 (SC) it is propounded that when a legal fiction is created it must be given its full effect . [ East End Dwelling Co. Ltd. Vrs. Finsbury Borough Council, (1951) 2 All ER 587; State of Bombay Vrs. Pandurang Vinayak, AIR 1953 SC 244; Commissioner of Income Tax Vrs. S. Teja Singh, AIR 1959 SC 352; M. Venugopal Vrs. Divisional Manager, Life Insurance Corporation of India, Machilipatnam, A.P., (1994) 2 SCC 323; Indian Oil Corporation Limited Vrs. Chief Inspector of Factories, (1998) 5 SCC 738, Voltas Limited, Bombay Vrs. Union of India, (1995) Supp. 2 SCC 498, Harish Tandon Vrs. Additional District Magistrate, Allahabad, U.P., (1995) 1 SCC 537; G. Viswanathan Vrs. Hon‘ble Speaker, Tamil Nadu Legislative Assembly, Madras, (1996) 2 SCC 353; Bhavnagar University Vrs Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111 = (2002) 4 Suppl. SCR 517 ] . Conspectus of decisions referred to would suggest that if one is bidden to treat an imaginary state of affairs as real, one must surely, unless prohibited from doing so, also imagine as real the consequences and incidents

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which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. The statute says that one must imagine a certain state of affairs; it does not say that, having done so, one must cause or permit one‟s imagination to boggle when it comes to the inevitable corollaries of that state of affairs.

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9.11. When the language used in the section/provision is plain and unambiguous, no words shall be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the statute.

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9.12. Thus understood the purport and perceptible meaning of „deemed‟, the provision contained in Clause (a) of Explanation to Rule 7 of the OCS (Pension) Rules is construed to the effect that the right of the Government to withhold or withdraw pension is dependent on the “issue” of Statement of Charge/Memorandum of Charge to the Government servant or pensioner.

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9.13. Careful reading of Explanation appended to Rule 7 unambiguously postulates that the departmental proceeding can be deemed to be instituted on the date of issue of Statement of Charges to the Government servant/pensioner.

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9.14. Learned Additional Standing Counsel has placed reliance on the decision of the Hon‟ble Supreme Court in the case of Delhi Development Authority Vrs. H.C. Khurana, (1993) 3 SCC 196 , wherein the Hon‟ble Supreme Court of India held as follows:

¶246

―***

¶247

9. The question now, is:

¶248

What is the stage, when it can be said, that „a decision has been taken to initiate disciplinary proceedings‟?

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We have no doubt that the decision to initiate disciplinary proceedings cannot be subsequent to the issuance of the charge sheet, since issue of the charge sheet is a consequence of the decision to initiate disciplinary proceedings. Framing the charge sheet, is the first step taken for holding the enquiry into the allegations, on the decision taken to initiate disciplinary proceedings. The charge sheet is framed on the basis of the allegations made against the Government servant; the charge sheet is then served on him to enable him to give his explanation; if the explanation is satisfactory, the proceedings are closed, otherwise, an enquiry is held into the charges; if the charges are not proved, the proceedings are closed and the Government servant exonerated; but if the charges are proved, the penalty follows. Thus, the service of the charge sheet on the Government servant follows the decision to initiate disciplinary proceedings, and it does not precede or coincide with that

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decision. The delay, if any, in service of the charge sheet to the Government servant, after it has been framed and despatched, does not have the effect of delaying initiation of the disciplinary proceedings, inasmuch as information to the Government servant of the charges framed against him, by service of the charge sheet, is not a part of the decisionmaking process of the authorities for initiating the disciplinary proceedings.

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***

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14. „Issue‟ of the charge sheet in the context of a decision taken to initiate the disciplinary proceedings must mean, as it does, the framing of the charge sheet and taking of the necessary action to despatch the charge sheet to the employee to inform him of the charges framed against him requiring his explanation; and not also the further fact of service of the charge sheet on the employee. It is so, because knowledge to the employee of the charges framed against him, on the basis of the decision taken to initiate disciplinary proceedings, does not form a part of the decision making process of the authorities to initiate the disciplinary proceedings, even if framing the charges forms a part of that process in certain situations. The conclusions of the Tribunal quoted at the end of para 16 of the decision in Jankiraman, (1991) 4 SCC 109 which have been accepted thereafter in para 17 in the manner indicated above, do use the word ‗served‘ in conclusion No. (4), but the fact of ‗issue‘ of the

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charge sheet to the employee is emphasised in para 17 of the decision. Conclusion No. (4) of the Tribunal has to be deemed to be accepted in Jankiraman, (1991) 4 SCC 109 only in this manner.

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15. The meaning of the word „issued‟, on which considerable stress was laid by learned counsel for the respondent, has to be gathered from the context in which it is used.

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Meanings of the word ‗issue‘ given in the Shorter Oxford English Dictionary include: ‗to give exit to; to send forth, or allow to pass out; to let out; *** to give or send out authoritatively or officially; to send forth or deal out formally or publicly; to emit, put into circulation‘.

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The issue of a charge sheet, therefore, means its despatch to the Government servant, and this act is complete the moment steps are taken for the purpose, by framing the charge sheet and despatching it to the Government servant, the further fact of its actual service on the Government servant not being a necessary part of its requirement. This is the sense in which the word ‗issue‘ was used in the expression ‗charge sheet has already been issued to the employee‘, in para 17 of the decision in Jankiraman, (1991) 4 SCC 109.‖

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9.15. A reference had also been made by the learned Additional Standing Counsel to State of Andhra Pradesh Vrs. Ch. Gandhi, (2013) 5 SCC 111 , wherein it was observed as follows:

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―***

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18. It is useful to note here that the charge sheet was issued on 14.11.2003. ***

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19. Be it noted, in the said case, the decision rendered in Union of India Vrs. K.V. Jankiraman, (1991) 4 SCC 109 was explained by stating thus:

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‗13. *** The word ‗issued‘ used in this context in Jankiraman, (1991) 4 SCC 109 it is urged by the learned counsel for the respondent, means service on the employee. We are unable to read Jankiraman, (1991) 4 SCC 109 in this manner. The context in which the word „issued‟ has been used, merely means that the decision to initiate disciplinary proceedings is taken and translated into action by despatch of the charge sheet leaving no doubt that the decision had been taken. The contrary view would defeat the object by enabling the government servant, if so inclined, to evade service and thereby frustrate the decision and get promotion in spite of that decision.‘

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20. In Union of India Vrs. Sangram Keshari Nayak, (2007) 6 SCC 704 it has been held that a departmental proceeding is ordinarily said to be initiated when a charge sheet is issued. In Coal India Ltd. Vrs. Saroj Kumar Mishra, (2007) 9 SCC 625, similar view was reiterated. In view of the aforesaid pronouncements, there is not an iota of doubt that the disciplinary proceeding was initiated under the unamended Rules.‖

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9.16. It is noticeable that nothing is placed on record by the counsel for the petitioner Sri Prasanta Kumar Mishra to dispute that the initiation of disciplinary proceeding was made by the appropriate authority on 31.12.2018, which is manifest from Annexure-8, but, the said document could be served on the petitioner on 19.03.2021. In order to appreciate the submission of the learned Additional Standing Counsel Sri Sailaza Nandan Das that as the Disciplinary Authority had already taken decision and issued the communication by letter dated 31.12.2018 by drawing Memorandum of Charges against the petitioner, mere delay in service of said Memorandum of Charges (Statement of Charges) does not lead to comprehend that the same was not “issued”. Minute reading of Clause (a) of Explanation appended to Rule 7 unequivocally indicates that “departmental proceedings shall be deemed to be instituted on the date on which the Statement of Charges is issued to the Government servant or pensioner”. The document at Annexure-8 evinces that though service of Memorandum of Charges on the Government servant or pensioner was on 19.03.2021, the issue of such Memorandum or Charges (Statement of Charges) was on 31.12.2018.

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9.17. Culling out the distinction between the terms “issue of notice” and “service of notice” in R.K. Upadhyaya Vrs.

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Shanabhai P. Patel, (1987) 3 SCC 96, the Hon‟ble Supreme Court of India has made the following pertinent observation:

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―2. The High Court has quashed the notice by accepting the assessee‘s contention that the action of the Income Tax Officer was barred by limitation prescribed by the Act. There is no dispute that the notice in this case under Section 147(b) of the Act was issued by registered post on March 31, 1970, and was received by the assessee on April 3, 1970. ***

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The High Court relied upon the decision of this Court in the case of Banarsi Debi Vrs. ITO, AIR 1964 SC 1742 = (1964) 7 SCR 539 where the validity of a notice under Section 34(1) of the Income Tax Act, 1922 and the scope of Section 4 of the Income Tax (Amendment) Act of 1959 by which sub-section (4) was introduced into Section 34 were considered. The Court indicated, keeping the provisions of Section 34 in view, that there was really no distinction between ―issue‖ and ―service of notice‖. Section 34 conferred jurisdiction on the Income Tax Officer to reopen an assessment subject to service of notice within the prescribed period. Therefore, service of notice within limitation was the foundations of jurisdiction. The same view has been taken by this Court in J.P. Janni, ITO Vrs. Induprasad D. Bhatt, AIR 1964 SC 1742 = (1964) 7 SCR 539 as also in CIT Vrs. Robert J. Sas, AIR 1964 SC 1742 = (1964) 7 SCR 539. The High Court in our opinion went wrong in relying upon the ratio of Banarsi Debi Vrs. ITO, AIR 1964 SC

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1742 = (1964) 7 SCR 539 in disposing of the case in hand. The scheme of the 1961 Act so far as notice for reassessment is concerned is quite different. What used to be contained in Section 34 of the 1922 Act has been spread out into three sections, being Sections 147, 148 and 149 in the 1961 Act. A clear distinction has been made out between “issue of notice” and “service of notice” under the 1961 Act. Section 149 prescribes the period of limitation. It categorically prescribes that no notice under Section 148 shall be ‗issued‘ after the prescribed limitation has lapsed. Section 148(1) provides for service of notice as a condition precedent to making the order of assessment. Once a notice is issued within the period of limitation, jurisdiction becomes vested in the Income Tax Officer to proceed to reassess. The mandate of Section 148(1) is that reassessment shall not be made until there has been service. The requirement of issue of notice is satisfied when a notice is actually issued. In this case, admittedly, the notice was issued within the prescribed period of limitation as March 31, 1970, was the last day of that period. Service under the new Act is not a condition precedent to conferment of jurisdiction in the Income Tax Officer to deal with the matter but it is a condition precedent to making of the order of assessment. The High Court in our opinion lost sight of the distinction and under a wrong basis felt bound by the judgment in Banarsi Debi Vrs. ITO, AIR 1964 SC 1742 = (1964) 7 SCR 539. As the Income Tax Officer had issued notice within limitations, the appeal is allowed and the order of the High Court is vacated. The Income

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Tax Officer shall now proceed to complete the assessment after complying with the requirements of law. Since there has been no appearance on behalf of the respondents, we make no orders for costs.‖

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9.18. In the case of Commissioner of Income Tax Vrs. Mohammed Meeran Shahul Hameed, (2021) 8 SCR 758, it has been made clear that,

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―15. On a fair reading of sub-section (2) of Section 263 it can be seen that as mandated by sub-section (2) of Section 263 no order under Section 263 of the Act shall be ―made‖ after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. Therefore the word used is ―made‖ and not the order ―received‖ by the assessee. Even the word ―dispatch‖ is not mentioned in Section 263(2). Therefore, once it is established that the order under Section 263 was made/passed within the period of two years from the end of the financial year in which the order sought to be revised was passed, such an order cannot be said to be beyond the period of limitation prescribed under Section 263(2) of the Act. Receipt of the order passed under Section 263 by the assessee has no relevance for the purpose of counting the period of limitation provided under Section 263 of the Income Tax Act. In the present case, the order was made/passed by the learned Commissioner on 26.03.2012 and according to the department it was dispatched on 28.03.2012. The relevant last date for the purpose of passing the order under Section 263 considering the fact that the assessment was for the

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financial year 2008-09 would be 31.03.2012 and the order might have been received as per the case of the assessee-respondent herein on 29.11.2012. However as observed hereinabove, the date on which the order under Section 263 has been received by the assessee is not relevant for the purpose of calculating/considering the period of limitation provided under Section 263(2) of the Act. Therefore the High Court as such has misconstrued and has misinterpreted the provision of sub-section (2) of Section 263 of the Act. If the interpretation made by the High Court and the learned ITAT is accepted in that case it will be violating the provision of Section 263(2) of the Act and to add something which is not there in the section. As observed hereinabove, the word used is “made” and not the “receipt of the order”. As per the cardinal principle of law the provision of the statue/act is to be read as it is and nothing is to be added or taken away from the provision of the statue. Therefore, the High Court has erred in holding that the order under Section 263 of the Act passed by the learned Commissioner was barred by period of limitation, as provided under sub-section (2) of Section 263 of the Act.

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16. In view of the above and for the reasons stated above the question of law framed is answered in favour of the revenue-appellant and against the assessee-respondent herein and it is held that the order passed by the learned Commissioner under Section 263 of the Income Tax Act was within the period of limitation prescribed under sub-section (2)

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of Section 263 of the Act. The present appeal is allowed accordingly. No costs.‖

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9.19. In Commissioner of Income Tax, Bihar, Patna Vrs. Sheo Kumari Debi, (1986) 157 ITR 13 = 1985 SCC OnLine Pat 180 = 1986 Tax LR 633 , Full Bench of Patna High Court illuminatingly clarified the position with regard to “issue” vis-a-vis “service”, relevant portion of the judgment is placed hereunder:

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―16. It was in the light of the aforesaid compulsions that their Lordships, by interpretation, gave a strained and wider meaning to the word ‗issued‘ in order to save the Indian Income-tax (Amendment) Act, 1959 from being rendered nugatory. It is a sound cannon of construction, that any interpretation, which would frustrate one or all the provisions of a statute, has to be avoided. Conforming to the said salutary rule, their Lordships have concluded that since the word ‗issued‘ had both a wider and a limited meaning, they were compelled to choose the wider connotation to include the service of the notice as well in Section 4 aforesaid. Their Lordships did not and, perhaps, could not possibly have said that the word ‗issued‘, whenever and wherever used, means ‗served‘. They did not hold that the two distinct words ‗issued‘ and ‗served‘ are either synonyms or are identical. It is true that they observed that in certain Indian statutes these words had been employed in interchangeable terms. That solitary observation, in my view, cannot possibly be picked upon to do patent violence to the language by holding that „issued‟ always means „served‟ as well. As

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was rightly pointed out by lord Halsbury, L.C. Quinn Vrs. Leathern, (1901 Appeal Cases 495), a decision is only an authority for what it actually decides, and the quintessence thereof is its ratio and not every observation found therein nor what logically follows from the various observations made in it. In approving that view, their Lordships in State of Orissa Vrs. Sudhansu Sekhar Misra, AIR 1968 Supreme Court 647 further warned that it was not a profitable task to extract a sentence here and there from a judgment and to build upon it. Consequently, Banarsi Devi‘s case, AIR 1964 SC 1742 is no warrant for the obstruse proposition that the word ‗issued‘ de hors its context must always mean ‗issued‘ and ‗served‘ in every statute or in Section 149 of the Act.

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17. This very question was considered in depth by the Full Bench in Jai Hannman Trading Co. Pvt. Ltd. Vrs. The Commissioner of Income Tax, Patiala, AIR 1977 Punjab and Haryana 314, O. Chinnappa Reddy. J., speaking for the Court, after an exhaustive analysis of Banarsi Debi‘s case, AIR 1964 SC 1742 in paragraphs 6 to 9, concluded as under:

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‗The decision of the Supreme Court in Banarsi Devi‘s case, AIR 1964 SC 1742, therefore, was that the expression ‗issued‘ had a wide as well as a narrow meaning and that in the context of Section 34(1) which provided for service of notices within a period of eight years and in the context of the object of the Amending Act, the expression ‗issued‘ could only be given a wider meaning of Section 4 of the Amending

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Act. The Supreme Court did not lay down that the expression ‗issued‘ whenever and wherever it occurred in the Income-tax Act, carried the wider meaning.

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***

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We are clearly of the opinion that in the context of the provisions or the Income-tax Act, 1961, the expression „issued‟ occurring in Section 149 cannot be given the meaning „served‟. We dissent from the views expressed by the Gujarat and Andhra Pradesh High Courts and we overrule the decision of the Punjab and Haryana High Court in Tikka Khushwant Singh Vrs. Commissioner of Income-tax, (1975) 101 ITR 106 (P&H).‘

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***

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24. Once the maze of precedent is out of the way, one might as well examine the issue refreshingly on principle. To my mind, the fallacy that seems to have crept in this context is to suggest that (barring some very peculiar or compulsive textual compulsion) explain ordinary English the word ‗issue‘ and the word ‗serve‘ are synonyms or identical terms. With great respect, it is not so. Their plain dictionary meaning runs directly contrary to any such assumption. No dictionary says that the issuance of an order is necessarily the service of such order on a person as well or, in reverse, that the service of an order on a person is the mathematical equivalent to its issuance. In Chambers‘s Twentieth Century Dictionary, the

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relevant meanings given to the word ‗issue‘ are act of sending out; to put forth, to put into circulation, to publish, to give out for use. On the other hand, the word ‗serve‘ in the same dictionary has been given the meaning, as a term of law, to deliver or present formally or give effect to. Similarly, in the New Illustrated Dictionary the relevant meaning attributed to the word ‗issue‘ is come out, be published, send forth, publish, put into circulation whilst the relevant meanings attributed to the word ‗serve‘ are to supply a person with, make legal delivery of (writ etc.), deliver writ etc. to a person. Thus, it would appear that the words „issue‟ and „serve‟ are distinct and separate and, indeed the gap between the two may be wide both in point of time and place. An order or notice may be issued today but may be served 2 years later. An order or notice may be issued at one place and may be served at a point of 1000 or more miles away. An order issued may not require any service at all. An example may be taken of order issued in the shape of notification in the official gazettes which do not require any service on the person affected by it. A statute may require that the issuance of a general order be conveyed by publication in the locality without individual service. Reference in this connection may be made to Section 4 of the Land Acquisition Act which, apart from notification, requires the publication only of the order in the vicinity, of the area sought to be acquired. Therefore, the issuing of an order is not a necessary concomitant of its actual service upon any one in particular. Merely because a statute may provide that an order issued

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should also be properly served subsequently on the person directly affected would not, in my view, in any way render the words „issue‟ and „serve‟ as either synonymous or identical. A very peculiar situation in a statute and the compulsion of sound cannon of construction may sometime require the enlargement or extension of a word to save the legislation from being rendered nugatory. That, indeed, was the situation in Banarsi Debi Vrs. ITO, (1964) 53 ITR 100 (SC) = 1964 SCC OnLine SC 48. However, this cannot possibly be any warrant or authority for saying that the distinctioned separate words of the English language, namely, „issue‟ and „serve‟ are in any way synonymous .

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26. As has already been noticed, the core of the respondent assessee‘s stand is that after Banarsi Debi Vrs. ITO, (1964) 53 ITR 100 (SC) = 1964 SCC OnLine SC 48 the word ‗issue‘ is the 1961 Act must, wherever and whenever, it is used be read as ‗served‘ and in any case it should be so in Sections 147 to 153 of the Act which have supplanted Section 34 of the old Act. Now, the gravely anomalous and, if one may say so, absurd results, which would ensue, if such a construction were to be accepted, deserve to be highlighted. Reference in this connection may first be made to sub-section (2) of Section 148 which reads as follows:

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‗148. Issue of notice where income has escaped assessment.

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***

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(2) The Income-tax Officer shall, before issuing any notice under this section, record his reasons for doing so.‘

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27. Plainly enough, this requires that the Officer must first record his reasons before he formally issue the notice under this section. If the word „issuing‟ in this section is to be read as „serving‟, it would lead to a patent absurdity. This would imply that the Officer may record his reasons after issuing the notice but serving it on the assessee. It is not easy to imagine that Legislature intended any such strange result. Reference may then be made to sub-section (3) of Section 149 itself. There in the first line itself the word employed is ‗served‘ whilst in the penultimate line the word employed is ‗issued‘. Thus, in the same short sub-section the Legislature itself is using words as distinct and separate. If, as is sought to be canvased on behalf of the respondent, these words are synonymous or identical, the Legislature would not land itself in the anomaly of using different words if it was intended to mean the same thing. Yet, again, the word ‗issued‘ has been employed in both sub-section (1) and (2) of Section 151, which read as under:

¶320

‗151. Sanction for issue of notice.—

¶321

(1) No notice shall be issued under section 148 after the expiry of eight years from the end of the relevant assessment year, unless the Board is satisfied on the reasons recorded by the Income-tax Officer that it is a fit case for the issue of such notice.

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(2) No notice shall be issued under section 148 after the expiry of four years from the end of the relevant assessment year, unless the Commissioner is satisfied on the reasons recorded by the Income-tax Officer that it is a fit case for the issue of such notice.

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28. The plain scheme of the section is that as the case may be, the satisfaction or the sanction of the Commissioner or the Board on the reason recorded by the Income-tax Officer is necessary before the notice under Section 148 is sent out. If the word „issued‟ used in both these sub-sections is read as „served‟, it will lead to the strange phenomena that even after the Income-tax Officer has recorded his reason and issued the notice, the sanction therefore may be recorded before its service on the assessee. It is thus manifest that in this very statute and, in particular, in Sections 147 to 153 the Legislature did not intend and, indeed, could not have intended that the word ‗issued‘ therein should always be read as ‗served‘. Once that is so, than plainly enough the ordinary meaning of ‗issued‘ must be given to Section 149 and for reasons already recorded whilst discussing this limitation provision it is indeed essential to read it only as ‗issued‘ and not as ‗served‘.

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***

¶327

31. In Commissioner of Income-tax, A.P. Vrs. Smt. Kailasa Devi and Smt. Rukmini Bai, (1976) 105 ITR 479 the Andhra Pradesh High Court expressed the view that unless ‗issued‘ was read as ‗served‘ in Section 149, it may give the option to the Department

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to withhold service of the order for an inordinately and interminably long period and extend the same for reopening the assessment. With the greatest respect, it is always the rule that a statute it not to be construed on the presumption that its provisions will be abused or misused. It has rightly been said that there is no provision of law which is not capable of being misused. Courts, therefore, cannot proceed on the assumption that public authorities vested with such power would necessarily abuse their authority. It was rightly and forcefully argued by Mr. Rajgarhia on behalf of the Revenue that the Department would not have the least motivation to withhold or delay service after the Officer first duly recorded a reasoned order for the issuance of a notice for reopening the assessment under Section 148. If at all; they would be motivated in the expeditious execution of their decision in this context. The boot, indeed, would be entirely on the other leg because an assessee sought to be proceeded against under Sections 147 and 148 may wish to evade service and if possible, cross the barrier of limitation. Equally in the eye of law there is a presumption under Section 114 of the Evidence Act that all official acts are regularly performed. Even though there may be some fall in official standard, one cannot go to the length of reversing that presumption by acting on the assumption that statutory power will be used or misused by public authority. With the greatest respect, the apprehension of the Andhra Pradesh High Court on this score would, perhaps, be hardly acceptable. If such a view tilted

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their decision as it obviously has, one must respectfully record a dissent therefrom.

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***

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33. To finally conclude, the answer to the question posed at the very outset is rendered in the term that the limitation provisions of Section 149 of the Income-tax Act, 1961 envisage the issuance of a notice only to the assesse and not its actual service subsequently on him as well.‖

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9.20. Conspectus of aforesaid discussions bearing in mind the enunciation of legal position would tend to hold that the expression “shall be deemed to be instituted on the date on which the Statement of Charges are issued to the Government servant or pensioner” in Clause (a) of Explanation to Rule 7 of the OCS (Pension) Rules does not contemplate actual service of the Statement of Charges (Memorandum of Charges) on the pensioner. To put the things straight, the judicial precedents clarify the terms “issue” and “service” are applied within specific contexts and have different connotations. Necessary corollary, thus, would be that issuance must be followed by actual delivery. For it to constitute effective notice, “issue” does not mean actual service.

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9.21. Having come to such conclusion on plain reading of Clause (a) of Explanation appended to Rule 7 that “issue” of Statement of Charges/Memorandum of

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Charges cannot be equated as “service” of Statement of Charges/Memorandum of Charges, this Court would wish to have regard to the decision rendered in State Government of Odisha Vrs. Sri Adwaita Prasad Sahoo , W.P.(C) No.26261 of 2013 vide order dated 29.01.2014, , as relied on by Sri Prasanta Kumar Mishra, learned counsel for the petitioner, wherein it has been observed as follows:

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―***

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11. In the case of Delhi Development Authority (supra), the Hon‘ble Supreme Court while considering the meaning of the word ―issued‖ held that the meaning of the said word ―issued‖ has to be gathered from the context in which it is used. It was further held that the service of the charge-sheet is a consequence of the decision to initiate a disciplinary proceeding and such service on the Government servant follows the decision to initiate disciplinary proceeding which does not precede or coincide with that decision. The delay, if any, in service of the charge-sheet to the Government servant, after it has been framed and dispatched, does not have the effect of delaying initiation of the disciplinary proceeding, inasmuch as information to the Government servant of the charges framed against the Government servant of the charges framed against him, by service of the charge-sheet, is not a part of the decision-making process of the authorities for initiating the disciplinary proceeding. The contrary view would defeat the object by enabling the Government

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servant, if so inclined, to evade service and thereby frustrate the decision and get promotion in spite of that decision. The above conclusion of the Hon‘ble Supreme Court was drawn on the facts of the said case which involved the question of promotion of the respondent therein.

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12. Mr. Routray, learned senior counsel appearing for the opposite party, however, urged that it is well settled in law that the departmental enquiry can take place only after the charge-sheet is drawn up and served upon the delinquent and the latter‘s explanation is obtained. He relied upon the decisions in the cases of Union of India and others Vrs. Dinanath Shataram Karekar and others, (1998) 7 SCC 569 and Managing Director, U.P. Warehousing Corporation and others Vrs. Vijay Narayan Vajpayee, AIR 1980 SC 840.

¶347

13. In view of the distinguishable facts, the decision in Delhi Development Authority (supra) cannot be made applicable to the facts of the present case. In the case of Union of India and others (supra), the Hon‘ble Supreme Court categorically laid down that where the disciplinary proceedings are intended to be initiated by issuing a charge sheet, its actual service is essential as the person to whom the charge sheet is issued is required to submit his reply and, thereafter, to participate in the disciplinary proceedings. In the case of Managing Director, U.P. Warehousing Corporation and others (supra), the Hon‘ble Supreme Court in the facts of the said case also held that a regular departmental enquiry takes place only after the charge-sheet is drawn up and

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served upon the delinquent and the latter‘s explanation is obtained.

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14. It is, therefore, clear that the phrase ―the date on which the statement of charges are issued to the Government servant or pensioner‖ should be interpreted as ―the date on which the charges are received by the Government servant or pensioner‖ as the Government servant or pensioner, who was charge-sheeted, is required to file his show cause.

¶352

15. In such view of the matter, unless the chargesheet/statement of imputation is served on the delinquent, it cannot be said to have been issued and the date of dispatch of such chargesheet/statement of imputation cannot be held to be the date on which the departmental proceeding is initiated.‖

¶353

9.22. With respect, this Court finds distinctive feature in the said case than what is obtained in the instant case. Careful reading of said order, paragraph 9 of Adwaita Prasad Sahoo (supra), reflects as follows:

¶354

―9. Though Mr. Das, learned counsel for the petitionersState submits that the charges along with the statement of imputation were issued on 21.09.2011 when the opposite party was in service, but no document was either produced before the Tribunal nor before this Court to show that after the Finance Department communicated the charges along with statement of imputation to the Department of Higher Education for being served on the opposite party, the Department of Higher

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Education has either issued or served the same on the opposite party before his superannuation on 31.10.2011. He, however, contended that once the charges were issued, as per the language of the Rule 7 of the OCS (Pension) Rules, 1992, it should be admitted that the departmental proceeding was initiated against the opposite party with effect from 21.09.2011, which is prior to his retirement.‖

¶358

9.23. Nevertheless, in the present case, the learned Additional Standing Counsel pointed out from the document at Annexure-8 that the Disciplinary Authority had issued the Memorandum of Charges on 31.12.2018. In Adwaita Prasad Sahoo (supra) this Court based on the fact that no evidence could be placed on record with regard to “issue” of Statement of Charges, proceeded to hold that the service of Statement of Charges being made after retirement, this Court construed that on the date of retirement there was no disciplinary proceeding pending so as to invoke provisions of Rule 7 of the OCS (Pension) Rules.

¶359

9.24. It is settled that observations of Courts are neither to be read as Euclid‟s theorems nor as provisions of Statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Disposal of cases by blindly placing reliance on a decision is not proper because one additional or different fact may make a world of

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difference between conclusions in two cases. [Reference may be had to Bharat Petroleum Corpn. Ltd. Vrs. N.R. Vairamani, (2004) 8 SCC 579; Sarva Shramik Sanghatana (KV), Mumbai Vrs. State of Maharashtra, (2008) 1 SCC 494; Bhuwalka Steel Industries Limited Vrs. Bombay Iron & Steel Labour Board, (2010) 2 SCC 273 ; Union of India Vrs. Arulmozhi Iniarasu, (2011) 9 SCR 1 = (2011) 7 SCC 397 .

¶363

9.25. In view of the factual distinction being noticed in Adwaita Prasad Sahoo (supra), this Court is of the considered view that said decision cannot be taken as aid to support the cause of the petitioner. In the present case Annexure-8 to the writ petition, i.e., Memorandum of Charges clearly depict that the Disciplinary Authority having put his signature on 31.12.2018 initiated disciplinary proceeding against the petitioner by issuing Memorandum of Charges vide No.1640, dated 31.12.2018, which is much prior to date of retirement, i.e., 30.06.2020.

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Discussion as to Question No.(ii):

¶365

10. Next contention of the counsel for both sides is with respect to the date of deemed institution of criminal proceeding in terms of sub-clause (i) of Clause (b) of Explanation appended to Rule 7 of the OCS (Pension) Rules.

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10.1. Sri Prasanta Kumar Mishra, learned Advocate for the petitioner submitted that such an issue is no more res integra in view of decisions of division bench of this Court in Brajasundar Patnaik Vrs. Government of Odisha, 2007 SCC OnLine Ori 272 = 105 (2008) CLT 490 = 2008 (I) OLR 384; State of Odisha Vrs. Sushanta Chandra Sahoo, 2022 (Supp.) OLR 447; inasmuch as in the present case no dispute could be set up by the learned Additional Standing Counsel that the cognizance under Section 13(2) read with Section 13(1)(c)/(d) of the Prevention of Corruption Act, 1988 has been taken much after the date of retirement.

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10.2. It is apt to first notice the decisions of this Court interpreting sub-clause (i) of Clause (b) of Explanation appended to Rule 7.

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i. Brajasundar Patnaik Vrs. Government of Odisha, 2007 SCC OnLine Ori 272 = 105 (2008) CLT 490 = 2008 (I) OLR 384 :

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―7. We have perused sub-rule (2), which is supplement to sub-rule (1) of Rule 66. Sub-rule (1) provides that where departmental or judicial proceedings are pending in respect of a Government servant on the date of his retirement, he shall be paid a provisional pension and in sub-rule (2), it has been provided that no gratuity shall be paid to the

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Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon.

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8. A cumulative reading of both the sub-rules quoted above shows that the same may apply only when on the date of retirement of a Government servant, departmental or judicial proceedings are pending against him, but this rule would not apply where no departmental or judicial proceedings are pending on the date of retirement against the Government servant. In the instant matter, it is admitted by the opposite parties that neither departmental proceeding nor any judicial proceeding was pending against the petitioner on the date of retirement. The judicial proceeding has started pursuant to the raid conducted in the house of the petitioner after his retirement and a first information report was lodged on the basis of the documents recovered from the house of the petitioner. Therefore, sub-rules (1) and (2) of Rule 66 of the Odisha Civil Services (Pension) Rules, 1992 would not be applicable in the case of the petitioner.

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9. It is also a matter of consideration that when the criminal proceeding was initiated against the petitioner in the year 1992, there should be some limit for its disposal. The petitioner retired in the year 1992. Thereafter criminal proceedings were initiated against him, which are allegedly still pending even after about fifteen years. Therefore, we do not think it

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proper to observe in the instant case that nonpayment of gratuity is justified even after fifteen years of the retirement of the petitioner. He is entitled to the gratuity with interest.

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10. As regards interest, the concerned rules are silent. In the case of H. Gangahanume Gowda Vrs. Karnataka Agro Industries Corporation Limited (2003) 1 ATT (SC) 95 = (2003) 3 SCC 40, the apex Court has fixed the interest at the rate of 10% per annum. In the case of Gorakhpur University Vrs. Shital Prasad Nagendra; AIR 2001 SC 2433, the apex Court, relying upon the earlier decisions in the case of R. Kapur Vrs. Director of Inspection (Painting and Publication) Income-Tax; (1994) 6 SCC 689, State of Kerala Vrs. M. Padmanabhan Nair; AIR 1985 SC 356, and Som Prakash Vrs. Union of India; AIR 1981 SC 212 , observed that the apex Court has been repeatedly emphasizing the position that pension and gratuity are no longer matters of any bounty to be distributed by Government but are valuable rights acquired and property in their hands and any delay in settlement and disbursement thereof should be viewed seriously and dealt with severely by imposing penalty in the form of payment of interest. Having regard to the facts and circumstances, as discussed in the foregoing paragraph, we fix the interest at the rate of 10% per annum.‖

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ii. State of Odisha Vrs. Sri Srikanta Pattnaik, 2016 (Supp.-I) OLR 1100:

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―In the view of the aforesaid provisions, pendency of the judicial proceeding will commence from the date of cognizance of offence by the concerned Court. In the instant case, opposite party No. 1 was placed under suspension basing on the two Vigilance cases started against him but the opposite party No. 1 challenged the same before the Tribunal which was placed to quash the order of suspension. Against such order, the petitioner has not filed any writ application before this Court to quash the same. No material is placed by Tribunal that charge sheet in Departmental Proceeding has been issued to opposite party No. 1 before his retirement to show pendency of departmental proceeding under Section 7(2) of the Rules. It is also admitted and available from the materials produced by both the parties that the opposite party No. 1 retired from Government service on 29.02.2000 whereas the cognizance of offence was taken on 03.01.2005 and 06.05.2000 in both the P.S. Case Nos. 2 and 4 1998, respectively. So, from the date of taking cognizance of the offence the judicial proceeding is started to have been pending and under Rules 7(2) on the date of retirement, i.e., 29.02.2000 no judicial proceeding was pending against him. Moreover, against the order passed by the Tribunal in O.A. No. 177 of 2011, a writ application vide W.P. (C) No. 19216 of 2014 has been filed in this Court but petitioner has not established that it has become successful in that writ application. When there is no judicial proceeding pending on the date of retirement and the original punishment awarded by the State Government in the disciplinary proceedings has been quashed by the Tribunal which has not been set aside by this

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Court, there remains nothing to withhold the pensionary benefits of the opposite party No. 1. On the other hand, there is nothing found from the order of the Tribunal that it is against the principle of law and it is illegal.‖

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iii. State of Odisha Vrs. Sushanta Chandra Sahoo, 2022 (Supp.) OLR 447:

¶389

―9. On perusal of aforementioned provisions, it is made clear by Rule 7(2)(c), Explanation (b) that judicial proceedings shall be deemed to be instituted from the date when in a criminal proceedings, on the complaint or report of a police officer the Magistrate takes cognizance. As per Rule 49(5)(a), where the sanction of payment of gratuity is delayed for more than a year from the date it is due under sub-rules (1) or (2), as the case may be, and such delay is attributable to administrative lapses, interest at the rate of 7 per cent per annum for the period beyond one year shall be payable on the amount of gratuity. Similarly, sub-rule (1) of Rule 66 provides that where departmental or judicial proceedings are pending in respect of Government servant on the date of his retirement, he shall be paid a provisional pension, whereas in sub-rule (2), which is supplement to sub-rule (1) of Rule 66, provides that no gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final order thereon. On cumulative reading of both the sub-rules, referred to above, it

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appears that the same will apply only when on the date of retirement of Government employee, departmental or judicial proceedings are pending against him. But these rules will not apply where there are no departmental or judicial proceedings against Government servant. But in the instant case, the petitioners have categorically stated that Vigilance P.S. Case No.7 dated 08.03.2007, by way of FIR, though was pending on the date of retirement of the opposite party No.1, i.e., 31.10.2012, but the judicial proceeding was started, pursuant to such Vigilance P.S. Case No.7 dated was 08.03.2007, after the charge sheet submitted on 22.07.2013, i.e., much after his retirement and, as such, no cognizance was taken by the time the opposite party no.1 had retired from service. Therefore, mere lodging of an FIR cannot be construed that a judicial proceeding is pending against opposite party No.1. As it appears, though for an incident of the year 2000, Bhubaneswar P.S. Case No.7 dated 08.03.2007, was lodged against the opposite party No.1, but charge sheet in the said case was submitted on 22.07.2013. Thereby, by the date the opposite party No.1 retired from service, i.e., on 31.10.2012, it can safely be construed that neither departmental proceeding nor any judicial proceeding was pending before the authority for debarring opposite party No.1 from getting pensionary benefits as due and admissible to him.

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10. The word ―cognizance‖ indicates that at the point of time when the Magistrate or Judge first takes judicial notice of the offence. More so, cognizance is being taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the court decides to proceed against the offenders against whom prima facie case is made out. More so, cognizance is taken of the offence and not of the offender and, therefore, once the court on perusal of the complaint/FIR is satisfied that the complaint/FIR discloses the commission of an offence and there is no reason to reject the complaint at that stage, and proceeds further in the matter.

¶396

11. The case of CREF Finance Ltd. Vrs. Shree Shanti Homes Pvt. Ltd., (2005) 32 OCR (SC) 425 = 2005 Supp.(2) SCR 873 = 2005 INSC 373, which was relied by Mr. B.P. Tripathy, has no assistance to him as the apex Court while considering the word ‗cognizance‘, held that if any judicial proceeding is started, it should be considered from the date of taking cognizance by the Magistrate not prior to that.

¶397

Therefore, applying the same to the present context, even if the FIR was lodged on 08.03.2007 in Bhubaneswar Vigilance P.S. Case No. 7, but the charge sheet was submitted on 22.07.2013 and till that date the Magistrate had not taken

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cognizance of the same. Therefore, it cannot be said that a judicial proceeding was pending, so as to deprive opposite party no.1 of getting the pensionary benefits, as due and admissible to him. Nothing has been placed on record by the petitioners to indicate that cognizance had been taken by the Magistrate before opposite party No.1 had retired from service. In absence of any material to such extent, it can safely be concluded that no judicial proceeding was pending at the time the opposite party No.1 had retired from service. Even after submission of charge sheet, if the Magistrate does take cognizance it cannot be construed that judicial proceeding was pending before the Court. Therefore, withholding of pensionary benefits as well as gratuity of opposite party No.1, cannot sustain in the eye of law and, as such, the tribunal is well justified by issuing direction to the petitioners to pay the pensionary benefits to opposite party No.1 along with interest.

¶401

12. In Gorakhpur University Vrs. Shital Prasad Nagendra, AIR 2001 SC 2433, the apex Court, relying upon the earlier decisions in the case of R. Kapur Vrs. Director of Inspection (Painting and Pulication) Income Tax, (1994) 6 SCC 589, State of Kerala Vrs. M. Padmanavan Nair, AIR 1985 SC 356 and Som Prakash Vrs. Union of India, AIR 1981 SC 212, observed that pension and gratuity are no longer matters of any bounty to be distributed by Government, but are valuable rights acquired and property in

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their hands and any delay in settlement and disbursement thereof should be viewed seriously and dealt with severely by imposing penalty in the form of payment of interest. Thereby, this Court is of the considered view that the tribunal is well justified in awarding interest of 7% per annum for delayed payment on the pensionary benefits admissible to opposite party No.1. But as regards the pension, interest @ 7% per annum shall be calculated and paid to opposite party No.1 on the differential amount of pension, as he is receiving provisional pension.‖

¶405

10.3. With the aforesaid perspective it is the date on which the Magistrate takes cognizance on the complaint or report of a police officer which is indicator for institution of the criminal proceeding in view of sub-clause (i) of Clause (b) of Explanation appended to Rule 7.

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10.4. The undisputed fact as unfurled by respective parties reveals that the petitioner have had retired on 30.06.2020 and the cognizance in T.R. No.30 of 2020 was taken by the Special Judge (Vigilance), Bhubaneswar on 26.11.2020 by passing the following order (Annexure-9):

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―Charge sheet No.38 dt.31.12.2018 along with other relevant documents are received from S.P. (Vigilance), Bhubaneswar Register.

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Perused the FIR, Charge Sheet, the sanction order vide No.1632/GP dt.31.12.2018 against accused Laxmidhar Das issued by Collector, Khurda and other connected papers.

¶411

The materials available on record prima facie makes out a case for the alleged offences under Section 13(2) read with 13(1)(c)(d), Prevention Corruption Act, 1988 against accused persons Laxmidhar Das, Smt. Tamala Devi (House wife), Smt. Pinky Pradhan (House wife), Smt. Sujata Dalei (House wife), Tulasi Bewa (House wife), Smt. Jhunu Dalai (House wife) and Smt. Subasini Jena @ Tumi Jena.

¶412

Cognizance is taken of offence under Section 13(2) read with 13(1)(c)(d), Prevention Corruption Act, 1988 against accused persons Laxmidhar Das, Smt. Tamala Devi, Smt. Pinky Pradhan, Smt. Sujata Dalei, Tulasi Bewa, Smt. Jhunu Dalai and Smt. Subasini Jena @ Tumi Jena. Issue summons to the accused persons fixing 09.02.21 for appearance. ‖

¶413

10.5. To fortify his contention Sri Prasanta Kumar Mishra, learned Advocate would submit that by the date of retirement on 30.06.2020, no cognizance was taken by the Special Judge (Vigilance), Bhubaneswar against the petitioner, which is apparent from the following orders passed in T.R. Case No.30 of 2020, which read thus:

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―Order dated 26.06.2020:

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F.F. in this case has not yet been received. Put up on 23.09.2020 awaiting F.F.

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Sd/-

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Spl. Judge, Vigilance, BBSR

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Order dated 28.09.2020:

¶421

Record is put today on reopening of the Court after the prohibitory order of BMC declaring containment zone of the Court complex. Final Form has not yet been received. Put up on 19.12.2020 awaiting F.F.

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Sd/-

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Spl. Judge, Vigilance, BBSR‖

¶424

10.6. To buttress his argument learned counsel for the petitioner has submitted that in view of interpretation put forth by this Court in Brajasundar Patnaik Vrs. Government of Odisha, 2007 SCC OnLine Ori 272 = 105 (2008) CLT 490 = 2008 (I) OLR 384; State of Odisha Vrs. Sri Srikanta Pattnaik, 2016 (Supp.-I) OLR 1100 and State of Odisha Vrs. Sushanta Chandra Sahoo, 2022 (Supp.) OLR 447 which are rendered in the context of cognizance in the criminal case, Rule 7 of the OCS (Pension) Rules has no application.

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10.7. By way of an Additional Affidavit dated 06.09.2024, Sri Prasanta Kumar Mishra, learned Advocate has enclosed a copy of instruction of Government of Odisha in Home Department vide Letter No.30339/Home-PEN-SANCP-

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0002-2024/Pen, dated 22.08.2024, which is reproduced as follows:

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―Government of Odisha

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Home Department

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***

¶432

No.Home-PEN-SANCP-0002-2024-30339/Pen, Dated 22.08.2024.

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From

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Smt. Sucharita Sarangi, OAS (SAG), Additional Secretary to Government.

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The DG & IG of Police, Odisha, Cuttack/

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The DG of Fire Services, Home Guards & Civil Defense, Odisha, Cuttack/

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The DG Prisons & DCS, Odisha, Bhubaneswar/ The Registrar, High Court of Odisha, Cuttack/ The Director of Public Prosecutions, Odisha, Bhubaneswar/ Home(OE-1/SE/BE/OSS/SGH/Election) Department.

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Subject: Release of pensionary benefits of the retired Government employees against whom vigilance cases have been registered prior to the date of retirement.

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Madam/Sir,

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It has been noticed that a large number of pension cases are pending at different levels due to pendency of vigilance cases registered against the Government employees prior to their retirement, but

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cognizance of the trial Court has not been taken as on the date of their retirement.

¶445

It has been provided under Rule 66 of the OCS (Pension) Rules, 1992 that where departmental or judicial proceedings are pending in respect of a Government servant on the date of his/her retirement, he/she shall be paid provisional pension only and no gratuity shall be paid to him/her until the conclusion of the departmental or judicial proceedings and issue of final orders thereon. But it has been explained under Rule-7 of the said rules that judicial proceeding shall be deemed to be instituted on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made.

¶446

In view of the above provisions contained in the OCS (Pension) Rules, 1992, confusion has arisen whether to release the pensionary benefits of a retired Government employee against whom a vigilance/criminal case has been registered prior to the date of his retirement and the concerned Magistrate has taken cognizance of the offence after retirement of the Government employee. Hence, one such matter has been referred to the Law Department for clarification.

¶447

It has been clarified by the Law Department that in the case where cognizance of the Court has been taken for an offence of a Government employee after the date of his retirement, it can be stated that no criminal proceeding is deemed to have been pending against him/her at the time of retirement.

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In view of the above opinion of the Law Department, all the Pension Sanctioning Authorities working under the administrative control of Home Department should take steps for disposal of the pending pension cases of the retired Government employees against whom Vigilance cases have been registered prior to retirement but cognizance of the Court to the offences has not been taken as on the date of retirement.

¶451

Yours faithfully.

¶452

Sd/-

¶453

Additional Secretary to Government, Home Department.

¶454

Memo No.30340/Pen. Dated 22.08.2024

¶455

Copy forwarded to all Departments with a request to process the similar pension cases of OSS Cadre employees of the aforesaid status, if any, to this Department for necessary follow-up action at this end.

¶456

Additional Secretary to Government, Home Department.‖

¶457

10.8. Conspectus of aforesaid judgments read along with clarification of the Government of Odisha in Home Department Letter dated 22.08.2024 would make it abundantly unambiguous that in case where cognizance of the Court has been taken for an offence of a Government employee after the date of his retirement, it can be stated that no criminal proceeding is deemed to

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¶460

have been pending against him/her at the time of retirement.

¶461

11. On the elaborate discussions on the questions formulated, this Court is of the considered view that on the date of retirement, i.e., 30.06.2020, the cognizance being taken on 26.11.2020 by the Special Judge, Vigilance, Bhubaneswar it can safely be said in terms of sub-clause (i) of Clause (b) of Explanation to Rule 7 of the OCS (Pension) Rules, no criminal proceeding can be stated to have been instituted. Such view of this Court is also countenanced by clarification issued by the Government of Odisha in Home Department vide Letter No. 30339—Home-PEN-SANCP-0002-2024/Pen, Dated 22.08.2024 read with the ratio of judgments rendered by this Court in the cases of Brajasundar Patnaik Vrs. Government of Odisha, 2007 SCC OnLine Ori 272 = 105 (2008) CLT 490 = 2008 (I) OLR 384; State of Odisha Vrs. Sri Srikanta Pattnaik, 2016 (Supp.-I) OLR 1100 and State of Odisha Vrs. Sushanta Chandra Sahoo, 2022 (Supp.) OLR 447.

¶462

11.1. On the other issue relating to initiation of disciplinary proceedings, since this Court has formed opinion that the expression “issued to Government servant or pensioner” used in Clause (a) of Explanation appended to Rule 7 of the OCS (Pension) Rules does not

¶463

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¶465

necessarily mean “served on the Government servant or pensioner”, sub-rule (1) of Rule 7 of said Rules vests in the Government the right of withholding 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—

¶466

i. in any departmental proceeding or

¶467

ii. judicial proceeding,

¶468

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. Further reading of sub-rule (2) of said Rule 7 it is ex facie made clear that such departmental proceedings, 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. It is pertinent for the present case that under clause (d) of sub-rule (2) of Rule 7 it is

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¶471

provided that a Government servant, retired on attaining the age of superannuation, is entitled to provisional pension under Rule 66 against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under the OCS (Pension) Rules.

¶472

11.2. Clause (d) of sub-rule (2) read with Explanation appended to Rule 7 would attract when either departmental proceeding is instituted or judicial proceeding is instituted. The conjunction “or” in the expression “against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under clauses (a) and (b)” is significant.

¶473

11.3. The circumstances under which the word „and‟ may be construed as „or‟ and vice versa should be somewhat rare. Otherwise if the two are taken to be interchangeable terms, then it would result in Parliament throwing into the statute the two expressions indiscriminately and leave them to the Courts to sort out the meaning. In ordinary usage „and‟ is conjunctive and „or‟ is disjunctive. [ CIT Vrs. Puthu Thotam Estates (1943) Limited, (1981) 127 ITR 481 (Mad) ] .

¶474

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¶476

11.4. It is a well-established principle of statutory interpretation that the word “or” is normally disjunctive and the word “and” is normally conjunctive. Both of them can be read as vice-versa , but that interpretation is adopted only where the intention of the legislature is manifest. Where provision is clear and unambiguous the word „or‟ cannot be read as „and‟ by applying the principle of reading down. But if the literal reading of the words produces an unintelligible or absurd result „and‟ may be read for „or‟ and „or‟ for „and‟ even though the result of so modifying the words is less favourable to the subject provided that the intention of the Legislature is otherwise quite clear. Conversely if reading of „and‟ and „or‟ produces grammatical distortion and makes no sense of the portion following „and‟, „or‟ cannot be read in place of „and‟. The alternatives joined by „or‟ need not always be mutually exclusive. [ Central Council for Research in Ayurvedic Sciences Vrs. Bikartan Das, (2023) 11 SCR 731 = 2023 INSC 733; State of Bombay Vrs. RMD Chamarbaugwala, (1957) 1 SCR 874; J. Jayalalitha Vrs. Union of India, (1999) 5 SCC 138; Mazagaon Dock Ltd. Vrs. CIT & Excess Profits Tax, (1959) 1 SCR 848; Spentex Industries Ltd. Vrs. CCE, (2015) 11 SCR 487. ] .

¶477

11.5. In Hyderabad Asbestos Cement Product Vrs. Union of India, 2000 (1) SCC 426 = AIR 2000 SC 314 , it has been

¶478

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¶480

held that „or‟ in its natural sense denotes an „alternative‟ and is not read as „substitutive‟. In Green Vrs. Premier Glynrhonwy State Co., (1928) I KB 561 , it has been held that „or‟ does not generally mean „and‟ and „and‟ does not generally mean „or‟. The same view has also been taken in Nasiruddin Vrs. State Transport Appellate Tribunal, (1975) 2 SCC 671 = AIR 1976 SC 331 and Municipal Corporation of Delhi Vrs. Tek Chand Bhatia, (1980) 1 SCC 158 = AIR 1980 SC 360 and State (Delhi Administration) Vrs. Puran Mal (1985) 2 SCC 589 = AIR 1985 SC 741 . In Mersey Docks and Harbour Board Vrs. Henderson Bros., (1888) 13 AC 595 , it has been held that as pointed out by LORD HALSBURY the reading of „or‟ and „and‟ is not to be resorted to, “unless some other part of the same statute or the clear intention of it requires that to be done”. In Union of India Vrs. Rabinder Singh, (2012) 12 SCC 787 , the apex Court held that where provision is clear and unambiguous the word „or‟ cannot be read as „and‟ by applying the principle of reading down.

¶481

11.6. In Kamta Prasad Aggarwal Vrs. Executive Engineer, Ballabhgarh, AIR 1974 SC 685, it has been held that depending upon the context, „or‟ may be read as „and‟ but the Court would not do it unless it is so obliged because „or‟ does not generally mean „and‟ and „and‟ does not generally mean „or‟.

¶482

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¶484

11.7. Thus being understanding as to the conjunction “or”, it is now apt to have reference to necessity of interpretation when language of the provision in the statute is plain.

¶485

11.8. It is trite that no word in a statute has to be construed as surplusage. No word can be rendered ineffective or purposeless. Courts are required to carry out the legislative intent fully and completely. While construing a provision, full effect is to be given to the language used therein, giving reference to the context and other provisions of the statute. By construction, a provision should not be reduced as a „dead letter‟ or „useless lumber‟. An interpretation which renders a provision an exercise in futility, should be avoided, otherwise it would mean that enacting such a provision in subordinate legislation was „an exercise in futility‟ and the product came as a „purposeless piece‟ of legislation and provision had been enacted without any purpose and entire exercise to enact such a provision was „most unwarranted besides being uncharitable‟. [ M.V. Elisabeth Vrs. Harwan Investment and Trading Pvt. Ltd., AIR 1993 SC 1014; Institute of Chartered Accountants of India Vrs. Price Water House, (1997) 6 SCC 312 = AIR 1998 SC 74; Martin Burn Ltd. Vrs. Corporation of Calcutta, AIR 1966 SC 529 Patel Chunibhai Dejibhai Vrs. Narayanrao K.

¶486

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¶488

Jambekar, AIR 1965 SC 1457; Sultana Begum Vrs. Prem Chand Jain, (1997) 1 SCC 373 = AIR 1997 SC 1006 State of Bihar Vrs. Bihar Distillery Ltd., AIR, 1997 SC 1511; South Central Railway Employees Co-operative Credit Society Employees‘ Union, Secunderbad Vrs. Registrar of Co-operative Societies, (1998) 2 SCC 580 = AIR, 1998 SC 703; Subash Chander Sharma Vrs. State of Punjab, (1999) 5 SCC 171 = AIR 1999 SC 2076 ] .

¶489

11.9. The language of the Act is very clear and it does not require any interpretation because there is no ambiguity in it. In case the language of a statute is unambiguous, there can be no need to interpret it or examine the intent or object of the Act and the Courts must give effect to it unless it leads to an absurdity or injustice. It is well recognised canon of interpretation that provision curbing the jurisdiction of the Court or Authority must normally receive strict interpretation unless the statute or the context requires otherwise. [ Abdul Waheed Khan Vrs. Bhawani, AIR, 1966 SC 1718; Sachida Nand Singh Vrs. State of Bihar, (1998) 2 SCC 493 = AIR 1998 SC 1121; Jagdish Ch. Patnaik Vrs. State of Odisha, (1998) 4 SCC 456 = AIR 1998 SC 1926; Arul Nadar Vrs. Authorised Officer, Land Reforms, (1998) 7 SCC 157 = AIR 1998 SC 3288 ].

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¶492

11.10. When the language of the law admits of no ambiguity and is very clear, it is not open to the Courts to put their own gloss in order to squeez out some meaning which is not borne out by the language of the law. Full Bench of Rajasthan High Court in Jairam Das Vrs. Regional Transport, AIR, 1957 Raj, 312, has held that

¶493

―where the case falls within the plain meaning of the provision of law, its application thereto cannot be denied on any a priori consideration as to the supposed of the intention of the legislature, even though the Court may be satisfied that the legislature had not contemplated a particular consequence. While invoking a law, the Court is still bound to give effect to its clear language.‖

¶494

11.11. In Manmohan Das Shah Vrs. Bishun Das, AIR 1967 SC 643, the Hon‟ble Supreme Court observed as under:

¶495

―The ordinary rule of construction is that a provision of a statute must be construed in accordance with the language used therein unless there are compelling reasons. Such as, where a literal construction would reduce the provision to absurdity or prevent the manifest intention of the legislature from being carried out. There is no reason why the word „or‟ should be construed otherwise than in its ordinary meaning. If the construction suggested by Mr. Desai were to be accepted and the word ‗or‘ were to be construed as meaning ‗and‘, it would mean that the construction should not only be such as materially alters the accommodation but is also such that it would

¶496

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¶498

substantially diminish its value. *** It seems to us that the legislature intended to provide for both the contingencies.‖

¶499

11.12. The aforesaid judgment has been approved and relied upon by the Hon‘ble Supreme Court in the Life Insurance Corporation of Inida Vrs. D.J. Bahadur, AIR 1980 SC 2181; R.S. Nayak Vrs. A.R. Antuley, AIR 1984 SC 684; Idul Hasan Vrs. Rajendra Kumar Jain, AIR 1990 SC 678.

¶500

11.13. In Hakim Ali Vrs. Board of Revenue, AIR 1991 SC 972, the Hon‟ble Supreme Court, while confronted with a similar problem, observed as under:

¶501

―It is no doubt, true that as a general rule, legislature may be presumed not to make a superfluous provision. But this presumption is not a strong presumption and it is not uncommon to find the legislature inserting superfluous provision under the influence of what may be abundant caution.‖

¶502

11.14. In State of Maharashtra Vrs. Nanded-Parbhani S.L.B.M.V. Operator Sangh, (2000) 2 SCC 69 = AIR 2000 SC 725, it has been held that

¶503

―if the language of the statute is fairly and reasonably clear then inconvenience and hardship are no consideration for refusing to give effect to that meaning unless giving effect to the plain meaning of the words used in the statute leads to an absurdity or would make the Statute offend any provision of the Constitution. Thus, the intention of the legislature is required to be gathered

¶504

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¶506

from the language used and, therefore, a construction which requires for its support and additional substitution of the word and which results in rejection of the word as meaningless, has to be avoided.‖

¶507

11.15. In Sussex Peerage case (1844) 8 ER 1034 (HL), wherein it has been observed as under:

¶508

―If the words of the statute are in themselves precise, and unambiguous, then no more can be, necessary than to expound those words in their natural and ordinary sense. The words themselves do alone, in such cases, best declare the intent of the law-giver.‖

¶509

11.16. In Mool Chand Vrs. Kedar, (2000) 2 SCC 528 = AIR 2000 SC 745, it has categorically been held that the basic rule of interpretation of the statute is that in order to find out the determination of the legislative intent, if the language of the statute is plain and simple, it must be considered literally and paradoxical results must be accepted.

¶510

11.17. On such exposition of law, when the use of the word “or” in clause (d) of sub-rule (2) of Rule 7 of the OCS (Pension) Rules is considered in disjunctive sense the two different situations would establish thus:

¶511

i. For the purpose of construing institution of disciplinary/departmental proceeding as on the date of retirement, it is sufficient if the Statement of

¶512

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¶514

Charges/ Memorandum of Charges is “issued” (not necessarily “served”) to the Government servant;

¶515

ii. For the purpose of construing institution of judicial proceeding/criminal proceeding as on the date of retirement, the Magistrate ought to have taken cognizance.

¶516

11.18. Delving further into the language of the Explanation appended to Rule 7 of the OCS (Pension) Rules would make it very much clear that legal fiction has to be created for ascribing its purpose. A legal fiction is created only for some definite purpose. The fiction is to be limited to the purpose for which it was created, and should not be extended beyond that legitimate field. A legal fiction presupposes the existence of the state of facts which may not exist, and then works out the consequences which flow from that state of facts. Such consequences have got to be worked out only to their logical extent having due regard to the purpose for which the legal fiction has been created. Stretching the consequences beyond what logically follows amounts to an illegitimate extension of the purpose of the legal fiction. A legal fiction should not be extended beyond the language by which it is created. A deeming provision cannot be pushed too far so as to result in an anomalous or absurd position. The fiction enacted by

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¶519

the Legislature must be restricted by the plain terms of the statute. The legal fiction is not to be extended beyond the purpose for which it is created, or beyond the language of the section by which it is created. A legal fiction cannot be extended by the Court on analogy or by addition or deleting words not contemplated by the Legislature. [ Bengal Immunity Co. Ltd. Vrs. State of Bihar, AIR 1955 SC 661; K Prabhakaran Vrs. P. Jayarajan, (2005) 1 SCC 754; Maruti Udyog Ltd. Vrs. Ram Lal, (2005) 2 SCC 638; CIT Vrs. Shakuntala, AIR 1966 SC 719; Mancheri Puthusseri Ahmed Vrs. Kuthiravattam Estate Receiver, (1996) 6 SCC 185; State of Maharashtra Vrs. Laljit Rajshi Shah, (2000) 2 SCC 699; Mancheri Puthusseri Ahmed, (1996) 6 SCC 185; State of West Bengal Vrs. Sadan K. Bormal, (2004) 6 SCC 59; Mancheri Puthusseri Ahmed, (1996) 6 SCC 185; State of Andhra Pradesh Vrs. Seven Hills Constructions, (2012) 54 VST 66 (AP); City Tex Pvt. Ltd. Vrs. CTO, (2012) 56 VST 86 (AP) ] .

¶520

11.19. Legal fiction created for the limited purpose of seniority, pay and pension cannot be extended for other purpose. [ State Bank of India Vrs. D Hanumantha Rao, (1998) 6 SCC 183 ].

¶521

11.20. With the above reasoning and discussion bearing in mind the delineated scope of the purport of legal fiction and the meaning of “or”, when this Court examines

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¶524

Clause (d) of sub-rule (2) of Rule 7 which in clear terms refers to provisions of Rule 66, the dissection of said provision would depict as follows:

¶525

―In the case of Government servant who has retired on attaining the age of superannuation or otherwise—

and

against whom

any departmental

judicial proceedings

¶531

are instituted

¶532

¶533

where departmental proceeding are instituted

¶534

¶535

where departmental proceedings are continued under clauses (a) and (b),

¶536

a provisional pension as provided in Rule 66 shall be sanctioned.‖

¶537

11.21. Aforesaid conspectus would not allow to take any other possible view than to express that whereas the petitioner, in the instant case, has had retired on 30.06.2020, the departmental/disciplinary proceeding is said to have been instituted by issue of Memorandum of

¶538

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¶540

Charges on 31.12.2018 (Annexure-8), i.e., prior to date of retirement, though the same could be served on him on 19.03.2021. Though judicial proceeding/criminal proceeding is not said to have been instituted on the date of retirement as cognizance in T.R. Case No.30 of 2020 was taken on 26.11.2020 by the Special Judge (Vigilance), Bhubaneswar, pension and other retirement benefits could be withheld by the Government of Odisha under Rule 66 read with Rule 7 of the OCS (Pension) Rules since for invoking such provision, it is enough consideration if any one of the contingences, i.e., institution of judicial proceeding/criminal proceeding or institution of department proceeding/disciplinary proceeding was in existence at the time of retirement.

¶541

11.22. With caveat it may be put as : once the Government frames rules, their action in respect of matters covered by Rules should be regulated by the Rules. The Rules framed in exercise of powers conferred under the proviso to Article 309 of the Constitution are solemn Rules having binding effect. [ A.K. Bhatnagar Vrs. Union of India, (1991) 1 SCC 544 ].

¶542

Conclusion:

¶543

12. In view of clear and umabiguous provisions contained in the OCS (Pension) Rules, the provisions of Rule 7 read

¶544

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¶546

with Rule 66 is attracted in the event either the judicial/ criminal proceeding or the departmental/disciplinary proceeding was “deemed” to be pending as on the date of retirement. In the instant case, though it is found that no criminal case is deemed to be pending on the date of retirement of petitioner as cognizance under Section 13(2) read with Section 13(1)(c)/(d) of the Prevention of Corruption Act, 1988 was taken on 26.11.2020, this Court on analysis of terms like “issue” and “deemed” comes to be persuaded that the departmental proceeding was pending as on 30.06.2020, the cause to the Government servant-pensioner would arise after the order is passed by the competent authority upon conclusion of the proceedings and findings returned thereon. In the opinion of the competent authority if the pensioner is guilty of the nature of charges mentioned in the Memorandum dated 31.12.2018 (Annexure-8), the consequences would follow. The Government servantpensioner would have to wait until such an order is passed before claiming full pension and gratuity. In other words, the cause to the Government servant of taking remedy would arise after order of the competent authority is passed upon conclusion of the proceedings and not during pendency of the proceedings. It is, therefore, not open to the petitioner to contend that he is

¶547

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¶548

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¶549

facing hardship on account of prolonged pendency of the proceedings.

¶550

12.1. Such view of this Court may be fortified by quoting the following observations made by the Hon‟ble Supreme Court of India in the case of State Bank of India Vrs. Ram Lal Bhaskar, (2011) 12 SCR 1036:

¶551

―We have perused the decision of this Court in UCO Bank and Another Vrs. Rajinder Lal Capoor, (2007) 6 SCC 694 = (2007) 7 SCR 543 and we find that in the facts of that case the delinquent officer had already superannuated on 01.11.1996 and the charge-sheet was issued after his superannuation on 13.11.1998 and this Court held that the delinquent officer having been allowed to superannuate, the charge sheet, the enquiry report and the orders of the disciplinary authority and the appellate authority must be held to be illegal and without jurisdiction. In the facts of the present case, on the other hand, we find that the charge sheet was issued on 22.12.1999 when the respondent No.1 was in service and there were clear provisions in Rule 19(3) of the State Bank of India Officers‘ Service Rules, 1992, that in case disciplinary proceedings under the relevant rules of service have been initiated against an officer before he ceased to be in the Bank‘s service by the operation of, or by virtue of, any of the rules or the provisions of the rules, the disciplinary proceedings may, at the discretion of the Managing Director, be continued and concluded by the authority ,by which the proceedings were initiated in the manner provided for in the rules as if the officer continues to be in service, so however, that he shall be deemed to be in service only for the purpose of

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¶554

the continuance and conclusion of such proceedings. We may mention here that a similar provision was also relied on behalf of UCO Bank in UCO Bank and Another Vrs. Rajinder Lal Capoor (supra) in regulation 20(3)(iii) of the UCO Bank Officers Employees Service Rules, 1979, but this Court held that the aforesaid regulation could be invoked only when the disciplinary proceedings had been initiated prior to the delinquent officer ceased to be in service. Thus, the aforesaid decision of this Court in UCO Bank and Another Vrs. Rajinder Lal Capoor (supra) does not support the respondent No.1 and there is no merit in the contention of the counsel for the respondent No.1 that the enquiry and the order of dismissal were illegal and without jurisdiction.‖

¶555

13. To sum up, it is emanated from the above discussions that:

¶556

i. The disciplinary proceeding being instituted on 31.12.2018 by the Disciplinary Authority (Annexure-8) being prior to date of retirement of the petitioner, i.e., 30.06.2020, the opposite parties are justified in invoking power under Rule 7 read with Rule 66 of the OCS (Pension) Rules.

¶557

ii. So far as criminal proceeding is concerned, since cognizance in T.R. Case No.30 of 2020 was taken on 26.11.2020, it was not seemly for the learned Additional Standing Counsel to argue that as FIR had already been drawn up prior to date of retirement of the petitioner, the same would be

¶558

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¶560

construed to perceive that criminal proceeding/ judicial proceeding was pending on the date of retirement; such a stance would run counter to Brajasundar Patnaik Vrs. Government of Odisha, 2007 SCC OnLine Ori 272 = 105 (2008) CLT 490 = 2008 (I) OLR 384; State of Odisha Vrs. Sri Srikanta Pattnaik, 2016 (Supp.-I) OLR 1100 and State of Odisha Vrs. Sushanta Chandra Sahoo, 2022 (Supp.) OLR 447 read with clarification issued by the Government of Odisha in Home Department vide Letter No. 30339—Home-PEN-SANCP-00022024/Pen, Dated 22.08.2024.

¶561

iii. As one of the contingencies, viz., disciplinary proceeding/departmental proceeding has been instituted against the petitioner on the evidence being glaring on the face of the record (Annexure8), Rule 7 read with Rule 66 of the OCS (Pension) Rules is attracted in the case of the instant petitioner.

¶562

14. In view of above discussions made above and reasons stated in the foregoing paragraphs, in answer to question No.(i) it can be said that the disciplinary proceeding could be “deemed” to have been initiated on the date of issue of Memorandum of Charges/Statement

¶563

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¶565

of Charges on the petitioner, but not service of Memorandum of Charges.

¶566

14.1. So far as question No.(ii) is concerned, cognizance of offence under Section 13(2) read with Section 13(1)(c)/(d) of the Prevention of Corruption Act, 1988, being taken on 26.11.2020, no judicial proceeding is “deemed” to be instituted as on the date of retirement, i.e., 30.06.2020.

¶567

14.2. In view of answer to question No.(i) being in the negative, being in favour of the opposite parties, Rule 7 read with Rule 66 of the OCS (Pension) Rules would be attracted, on the facts and in the circumstances of the present case.

¶568

15. In fine, this Court does not find scope to allow the prayers made in the writ petition. Accordingly, the writ petition, being devoid of merit, is dismissed, but in the circumstances, there shall be no order as to costs.

¶569

(MURAHARI SRI RAMAN) JUDGE

¶570

High Court of Orissa, Cuttack The 19^th September, 2024// Laxmikant/Suchitra

¶571

Signature Not Verified

¶572

Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Sep-2024 17:30:36

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Laxmidhar Das v. State of Odisha

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Laxmidhar Das v. State of Odisha

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