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Laxmidhar Lenks Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtOrissa High Court
Decided On
Case NumberO. J. C. No. 2710 of 1981
Judge
Reported in1985(I)OLR34
ActsOrissa Pension Rules, 1977 - Rule 10
AppellantLaxmidhar Lenks
RespondentState of Orissa and ors.
Appellant AdvocateM.R. Panda, Adv.
Respondent AdvocateN.C. Panigrahi, Addl. Govt. Adv.
DispositionApplication allowed
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........institution of the departmental proceedings had to be obtained as the petitioner had retired from service. sanction from government has in the meanwhile been received and, therefore, the proceeding should continued and till its termination the petitioner is not entitled to pens or other pensionary benefits.5. mr. m.r. panda, learned counsel appearing for the petitioner, submitted that the alleged acts of misconduct levelled against the petitioner took place more than four years prior to the sanction government for institution of the departmental proceeding and as such the proceeding cannot be instituted because of the ban contained rule 10 of the orissa pension rules,1977. mr. n.c. panigrahi, learn addl. govt. adv. pointed out that the acts of misconduct of petitioner were found out.....
Judgment:

B.N. Misra, J.

1. Though notice on admission and hearing had been issued, with consent of Mr. M. R. Panda, learned counsel for the petitioner and Mr. N.C Panigrahi, learned Addl. Govt. Adv. this writ application is heard.

2. Admit.

3. The facts of this case may be briefly noted. The petitioner was working as a Forest Ranger under opposite party No. 1 until his retirement on superannuation on 31.8.1979. Opposite party No. 2 sanctioned provisional pension and provisional death-cum-retirement gratuity in favour of the petitioner on 2.6.1980, vide Annex-2. After the petitioner's retirement some instances of his misconduct during the period of his service came to the notice of opposite party No. 4, who called for the explanation of the petitioner, vide his letter dated 8. 7.1980, Annex-3. Annex-4. dated 7.11.1980 is the explanation submitted by the petitioner On the ground that the allegations of misconduct against the petitioner were proposed to be enquired into the payment of provisional pension and death-cum-retirement gratuity, vide Annex-2 was withheld and the sanction order was finally cancelled by order dated 7.3.1981, Annex-10. As representations by the petitioner to the opposite parties for payment of his pension and death-cum-retirement gratuity proved futile, the petitioner filed this writ application with the prayer that the proposed proceeding against him should be quashed and all his pensionary benefits including death-cum-retirement gratuity should be paid to him.

4. The opposite parties have pleaded in their counter that after the petitioner had retired from service, he was prima facie found to be guilty of certain serious acts of misconduct committed by him during the period of his service and, therefore, it was decided to initiate departmental proceedings against him. According to rules sanction from Government for institution of the departmental proceedings had to be obtained as the petitioner had retired from service. Sanction from Government has in the meanwhile been received and, therefore, the proceeding should continued and till its termination the petitioner is not entitled to pens or other pensionary benefits.

5. Mr. M.R. Panda, learned counsel appearing for the petitioner, submitted that the alleged acts of misconduct levelled against the petitioner took place more than four years prior to the sanction Government for institution of the departmental proceeding and as such the proceeding cannot be instituted because of the ban contained Rule 10 of the Orissa Pension Rules,1977. Mr. N.C. Panigrahi, learn Addl. Govt. Adv. pointed out that the acts of misconduct of petitioner were found out only after his retirement from service and therefore, the departmental proceedings should now commence and until termination of the proceedings payment of pension and gratuity would not be proper.

6. The following undisputed facts must be noted. It is not in dispute that all the incidents and events forming the subject-matter of the proposed departmental proceeding against the petitioner relate to the year 1979. It is also not disputed that sanction for institution of the departmental proceeding against the petitioner has been accorded by opposite party No. 1 on 12. 4. 1984, vide Annex-A. appended to additional affidavit of the opposite parties.

The Orissa Pension Rules, 1977 have been made by the Government under the proviso to Article 309 of the Constitution. Rule 10 the said rules provides:

'10. The Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if, in a departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service, rendered on re-employment after retirement:

Provided that-

(a) xx xx xx(b) Such departmental proceedings, if not instituted while he was in services, whether before his retirement or during his re-employment :

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

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

(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 ; XX XX XX'

No departmental proceeding was instituted against the petitioner while he was in service. The opposite parties propose to institute departmental proceedings after his retirement. Under Proviso (b) of Rule 10 extracted above, such a proceeding cannot be instituted except with the sanction of Government and also cannot be in respect of any event which took place more than four years before such institution. Therefore, in the present case though sanction of Government has been obtained, the proceeding cannot He in respect of events which took place more than four years before 12.4.1984, the date on which Government sanction was taken. As already noted, all the events alleged against the petitioner took place in the year 1979. Hence, no proceeding jot the said events can lie against the petitioner in 1984 after the expiry of four years from 1979.

7. For the reasons stated above, this writ application is allowed. The proposal to institute a departmental proceeding against the petitioner shall be dropped at once and the petitioner shall be paid his pension and other benefits admissible to him under law as early as possible. In the circumstance of this case there shall be no order as to costs.

K.P. Mohapatra, J.

8. I agree.


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