Without statutory basis, pensionary benefits such as leave encashment cannot be withheld despite pending departmental proceedings.

JUDGMENT :

A.K. Mohapatra, J.

1. The sole grievance of the petitioner in the abovenoted writ application is with regard to inaction of the Opposite Parties in sanctioning and releasing the retiral benefits of the petitioner including the unutilized leave salary and final pension. He has further prayed for quashing of the order under Annexure-10 to the writ application.

2. Heard Sri. Jayananda Jena, learned counsel for the petitioner as well as learned counsel for the State-Opposite Parties. Perused the writ application as well as the documents annexed thereto. The factual background leading to the filing of the present writ application, in a nutshell, is that the present petitioner while he was working in the rank of a Jailer has taken retirement from service on attaining the age of superannuation w.e.f. 30.04.2017. Preceding his retirement, i.e. 04.10.2016, a departmental proceeding was wrongly instituted against the present petitioner. Challenging the initiation of the departmental proceeding the petitioner approached the learned Odisha Administrative Tribunal by filing O.A. No.4812 (C) of 2016 and obtained an interim order of stay on 29.12.2016. Since the petitioner was facing two departmental proceedings bearing D.P. No.4 of 2017 and D.P. No.5 of 2018 as well for his involvement in a vigilance proceeding, the retiral dues including the pensionary benefits of the petitioner have been withheld by the authorities.

3. The writ petition further reveals that on 17.01.2019, the petitioner submitted an application for encashment of his unutilized leave of 291 days. On 18.01.2019 he had submitted an application in Orissa Jail Form No.70 for the early release of his dues. Since the authorities did not disburse the dues of the petitioner, the petitioner upon being aggrieved by such inaction submitted the representation on 02.08.2019 with a specific prayer for an early release of his leave salary under Annexure-8 to the writ application. Similarly, another representation was submitted on 21.09.2021. Since no action was taken by the Opposite Parties, the petitioner was compelled to approach this Court earlier by filing W.P.(C) No.40648 of 2021. A coordinate Bench of this Court vide order dated 27.01.2022 disposed of the writ application with a direction to the Opposite Parties to consider the representation of the petitioner in a time bound manner and to dispose of the same as expeditiously as possible.

4. While the matter stood thus, the Opposite Party No.2 without proper analysis of the factual background of the case and in ignorance of the law governing the subject matter of the dispute, rejected the representation of the petitioner vide order dated 03.03.2022 under Annexure-10 to the writ application. Being aggrieved by the rejection of his representation vide order dated 03.03.2022, the petitioner has approached this Court by filing the present writ application.

5. Mr. Jena, learned counsel appearing on behalf of the petitioner at the outset contended that the Home Department resolution dated 22.08.2024 imposing an embargo on release of the pensionary benefits of the retired government employees, against whom vigilance case has been registered, was issued after the retirement of the present petitioner. He further contended that in the absence of any specific bar in law i.e. in any of the statute or the rules framed thereunder, the executive cannot usrup the power to legislature and by virtue of such executive power they cannot impose any restriction on the service conditions of the petitioner which is absent in the statute or the statutory rules. In the aforesaid context, learned counsel for the petitioner referred to the judgment of the Hon’ble Supreme Cour