The court emphasized the strict adherence to pension rules and the illegality of extending provisional pension after a criminal conviction, regardless of the pending criminal appeal.

JUDGMENT :

S.N. Prasad, J.

The instant writ petition has been filed for quashing the order dated 24.11.2017 as contained under Anenxure-3, whereby and where under the provisional pension sanctioned vide office order No.21091 dated 12.12.2017, has been withheld with immediate effect as per Rule-7(1) of OCS Pension Rules, 1992 till finalization of the appeal against the judgment of conviction in connection with a judicial proceeding instituted against the petitioner for the offence under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.

2. Case of the petitioner in brief is that he was appointed as Lower Division Clerk in the year 1965 under Orissa State Electricity Board (hereinafter referred to as “Board”) the Board after having been taken over by the GRIDCO, he became the employee of the GRIDCO. He was promoted to the rank of Upper Division Clerk and thereafter to the rank of Head Clerk, while continuing as such he was posted as Jr. Accountant and finally posted as Accountant, during the period he was working as Accountant has discharged his duty to the utmost satisfaction of all concerned. The Department of Energy, Govt. of Odisha issued a notification dated 19.06.2005 bringing out a transfer scheme called as Odisha Electricity Reform (Transfer of Transmission electrical activities) Scheme, 2005 for transfer of undertakings, assets liabilities, proceeding and personnel of GRIDCO related to transmission of electricity to OPTCL named as Odisha Power Transmission Corporation Ltd. (hereinafter called as OPTCL), as per the said Scheme all the employees of GRIDCO were transferred to OPTCL.

The petitioner while working there has been implicated in a criminal case related to an offence committed by him under Section 7 and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 and as such a T.R. Case No. 26 of 1993 has been initiated in which he was convicted to undergo rigorous imprisonment for 2 years and pay fine of Rs.1000/-. The petitioner has challenged the said judgment before this Court in Criminal Appeal No.322 of 2003 which has been admitted for final hearing by this Court vide order dated 18.12.2003 and stayed the realization of fine till disposal of the appeal and also released on bail by furnishing the sureties and bonds of Rs.20,000/-.

The petitioner on attaining the age of superannuation retired from service on 31.08.2004, but after his retirement, even though the Criminal Appeal was pending, his provisional pension was sanctioned vide order dated 5.4.2005. While the petitioner was getting the provisional pension, a show cause notice was issued to him on 23.10.2017 asking him to respond to the said show cause notice as to why provisional pension extended in his favour be not stopped since the provision to extend the benefit of provisional pension as stipulated under Rule 66 of the OCS (Pension) Rules, 1992 is only in case of departmental or judicial proceeding but the moment the conviction order is there, the provision as contained under Rule-66 of the OCS (Pension) Rules, 1992 will not be applicable.

The petitioner in the light of the said show cause has responded to it by filing response dated 30.10.2017 stating therein that under the provision of Rule-46 which provides that pension/gratuity shall be forfeited of a Government servant who is dismissed or removed from service. In the proviso, it is provided that the authority competent to dismiss or remove him from service may, if the case is receiving of special consideration, sanction a compassionate allowance not exceeding two-third of pension or gratuity or both which would have been admissible to him if he had retired on compensation pension, as such it was requested that he may be allowed to draw provisional pension. The authority thereafter has passed order on 24.11.2017 withholding the provisional pension with immediate effect by exercising the power conferred under Rule-7(1) of OCS (Pension) Rules, 1992 till finaliza