Sri Sanatan Dhal vs State Of Odisha

4. Regional Provident Fund Commissioner (Bhavisyanidhi Bhawan) At/P.O.: Saheed Nagar (Rupali Square) Munsif: Bhubaneswar District: Khordha. ... Opposite parties.

Counsel appeared for the parties:

For the Petitioner : Mr. Subir Palit, Senior Advocate M/s. Amitabh Mishra, Abhisek Kejriwal, Ananya Pradhan Satyajeet Das, Advocates

For the Opposite party : Mr. Pravakar Behera No.1 Standing Counsel Commerce & Transport (Transport) Department

For the Opposite party : M/s. Anand Prakash Das, Nos.2 and 3 Piyush Panda, Advocates

P R E S E N T:

HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN

Date of Hearing : 02.07.2024 :: Date of Judgment : 18.07.2024

J UDGMENT

MURAHARI SRI RAMAN, J.--

THE CHALLENGE:

W.P.(C) No.33641 of 2023 Page 2 of 81 Assailed in this writ petition is the Order dated 22.08.2023 of the Principal Secretary to Government of Odisha in Commerce and Transport (Transport) Department vide Office Order No.9808-TRN-CORP-PEN- 0004-2023/T., dated 22.08.2023 (Annexure-8) purported to have been passed in compliance of observations made in Order dated 04.04.2023 of this Court in W.P.(C) No.10349 of 2023, which was filed by the present petitioner.

1.1. Seeking to show indulgence in the aforesaid assailed Order, the petitioner has invoked provisions of Articles 226 and 227 of the Constitution of India with prayer to grant following relief(s):

"Under the above circumstances, it is therefore humbly prayed that this Hon'ble Court may be graciously pleased to quash the Order dated 22.08.2023 of the opposite party No.1 in rejecting the claim of the petitioner under Annexure-8 on arbitrary, whimsical and illegal grounds and direct the opposite parties to extend the pension and other pensionary benefits to the petitioner forthwith without further delay, as the same has been extended to the similarly situated persons;

And further this Hon'ble Court be pleased to direct the opposite parties to calculate the arrear pension of the petitioner and release the same forthwith, failing which the petitioner will be highly prejudiced;

And/or pas any other appropriate writ/writs, order/ orders and direction/directions in the fitness of the case;

W.P.(C) No.33641 of 2023 Page 3 of 81 And for the act of kindness as in duty bound the Petitioner shall ever pray."

THE FACTS:

2. Prior to transfer of assets and liabilities of the State Transport Service ("STS", for short) in favour of the Odisha State Road Transport Corporation ("OSRTC", for brevity) with effect from 15.05.1974, the petitioner claims to have been temporarily appointed as 'Cleaner' on 01.11.1973. On being relieved from his duty, with effect from 22.04.1974, he was reappointed as 'Cleaner' on 04.05.1974. He was again relieved from his duty on 20.08.1974 while working as 'Cleaner', but was appointed as Tyreman on the very date by Office Order No.4044 dated 20.08.1974. The petitioner retired from service with effect from 11.03.2001 under the Model Voluntary Retirement Scheme while working with the OSRTC as Ex-STS employee.

2.1. The petitioner was directed to deposit Rs.3,89,975/- with up to date interest towards the employee's share received by the petitioner from Employees' Provident Fund, against which the petitioner deposited Rs.4,01,000/- with the authority of EPF on 16.07.2021; and further being directed by the authority of the OSRTC, on 10.02.2022 the petitioner made deposit of Rs.3,42,532/- towards employer's share on 11.03.2022. Accordingly, the petitioner's account was closed with

W.P.(C) No.33641 of 2023 Page 4 of 81 EPF and closure certificate was furnished to the Government for release of pension.

2.2. The Transport Department rejected the claim of the petitioner on 03.11.2022; however, the OSRTC has again recommended the case of the petitioner on 15.11.2022. Being approached, this Court recording the facts, vide Order dated 04.04.2023 passed in W.P.(C) No.10349 of 2023, directed the opposite party to reconsider and pass necessary order.

2.3. In pursuance thereto, the Transport Department has rejected the claim of the petitioner for grant of pension, challenging which the petitioner is before this Court in the instant writ petition.

Response of the Transport Department:

3. The opposite party No.1, the Principal Secretary to Government, Commerce and Transport (Transport) Department through Under Secretary filed counter affidavit by affirming as follows:

"5. ***

(ii) As an Ex-STS employee, he was deputed/ transferred to OSRTC and served in OSRTC till 08.03.2001 and retired voluntarily. His service condition was governed by OSRTC (CR & CS) Regulation, 1978. The District Transport Manager being the appointing authority has condoned the eleven days break in service, i.e., 23.04.1974 to

W.P.(C) No.33641 of 2023 Page 5 of 81 03.05.1974 and regularised the service of the petitioner. As he was an Ex-STS employee in view of Notification dated 05.04.2003, and the Letter dated 06.02.2007 he was entitled to pensionary benefits according to the provisions of Odisha Civil Services (Pension) Rules, 1992. ***

(v) In order to consider the case of the petitioner as directed by this Hon'ble Court, the Opposite Party No.1 in its letter dated 10.07.2023 sought for detailed report regarding copy of relieve Order No.334 dated 22.04.1974 of the petitioner. The Assistant Manager (Depot), OSRTC, Bargarh vide letter No.520 dated 18.07.2023 intimated the General Manager (Admn.), OSRTC, Bhubaneswar that the case relates to the year 1973, the old records of this Office kept in open space of the upstair building and most of the records were eaten by white ants and damaged. However, the records were thoroughly searched but could not trace out the relevant file. ***

(vi) Vide Letter No.1841(E)/OSRTC, dated 25.07.2023 the General Manager (Admn.), OSRTC, Bhubaneswar intimated that the concerned records could not trace out and the relevant files are destroyed. Moreover, information was also called from the petitioner and he was intimated that no such records available with him. It is also mentioned that there is no entry made in the service book regarding retrenchment, termination or dismissal. As regards the proposal for condonation of eleven days break in service, i.e., from 23.04.1974 to 03.05.1974 of the petitioner, the proposal was already sent to the Government in Transport Department vide letter No.1110, dated 03.05.2023."

W.P.(C) No.33641 of 2023 Page 6 of 81 3.1. Disputing the transfer or the deputation of the petitioner as Ex-STS to the OSRTC, it is asserted that the entries in the service book having not been reflected such fact, he is not treated as STS employee. At paragraph 11 alleging ill-motive of the OSRTC, the Transport Department has made following statement in the counter affidavit:

"From the service book it is found that the petitioner was appointed as a Cleaner in the scale of pay Rs.48-1-60 and posted at Bargarh vide this Office Order No.5246, dated 05.11.1973 joined his duty on 01.11.1973. The said entry made in the service book is unbelievable since the petitioner was joined on 01.11.1973 by virtue of Office Order No.5246 issued on 05.11.1973. Apart from that it has also been mentioned that the petitioner was relieved from his duty with effect from 22.04.1974 and again appointed as such vide Office Order No.2161, dated 04.05.1974. It is also ascertained from the service book of the petitioner that the Office Order for condonation of break period of service has been issued on 19.01.2022 but the same is entered in the service book on 30.12.2021. All such entries were made by the OSRTC with dishonest intention."

3.2. Further objecting to the fact as stated by the petitioner, the Transport Department has made assertion that he neither worked continuously under the erstwhile STS nor was the OSRTC formed with effect from 15.05.1974. It is affirmed by the Transport Department that as the OSRTC was formed since 01.05.1974, but not 15.05.1974 (as asserted by the petitioner), owing to

W.P.(C) No.33641 of 2023 Page 7 of 81 break in service period from 23.04.1974 to 03.05.1974, the petitioner is treated as employee of the OSRTC with effect from 04.05.1974.

Response of the OSRTC:

4. By way of counter affidavit filed on 28.06.2024 by the General Manager of OSRTC (for the opposite party Nos.2 and 3), it is asserted that the petitioner having joined the STS on 01.11.1973 and continued in service till 22.04.1974; and thereafter, he was reappointed as 'Cleaner' on 04.05.1974. Being relieved on 20.08.1974, he was appointed as 'Tyreman' on the very same day and continued in service till he was allowed to retire with effect from 11.03.2001 vide Office Order dated 08.03.2001 (Annexure-3 to the counter affidavit).

4.1. It is submitted that the OSRTC was formed with effect from 15.05.1974, but not on 01.05.1974, as disowned by the opposite party No.1. The petitioner being appointed on 04.05.1974, i.e., prior to formation of the OSRTC, he continued till the date of his retirement under the Model Voluntary Retirement Scheme (MVRS), i.e., 08.03.2001. Accordingly, his service book was updated.

4.2. Submitting that the Order dated 22.08.2023 rejecting the claim of the petitioner by the opposite party No.1 being violative of Order dated 04.04.2023 passed by this

W.P.(C) No.33641 of 2023 Page 8 of 81 Court in W.P.(C) No.10349 of 2023, supporting the case of the petitioner the General Manager of OSRTC explained that,

"9. *** The petitioner was continuously working/ serving in Ex-STS and, as such, he is eligible / entitled to get the pension as STS employee. It is humbly submitted that without considering the fact on record showing that the petitioner was not eligible for pension as per Odisha Civil Services (Pension) Rules, 1992 on account of joining as Tyreman on 20.08.1974 in regular basis, i.e., after formation of Corporation, his claim has been rejected which is not genuine and justified. Actually, the petitioner joined in service on 04.05.1974 prior to formation of Corporation, i.e., 15.05.1974 and the break period of eleven days was also condoned by the DTM(A), OSRTC, Sambalpur who is a competent authority / appointing authority of the petitioner to do the same as per Office Memorandum dated 02.02.1981 of Secretary to Government of Odisha vide No.5059 dated 02.02.1981 (Annexure-6).

13. *** the petitioner joined as Ex-STS employee along with other similar category of employees. After continuous service as Ex-STS employee and working in OSRTC which was formed in the year 1974 (15.5.1974) were treated as Ex-STS employee (on deputation to OSRTC) and finally the petitioner was allowed to retire from service w.e.f. 11.03.2001 under Model Voluntary Retirement Scheme but not on superannuation which is wrong. Accordingly, he is eligible to get pensionary benefits as other similar STS employees who have been extended such benefits.

W.P.(C) No.33641 of 2023 Page 9 of 81 14. *** as per decision of Government in Commerce & Transport Department dated 06.02.2007 for release of pension of Ex-STS employee who had been allotted EPF Account and refund of EPF both shares. Accordingly, the petitioner has surrendered the EPF shares to the EPF authority as well as OSRTC as mentioned in Paragraph No.7. Finally pension paper of the petitioner was submitted before the Government along with closure certificate on 22.09.2022 for release of pensioner benefits to the petitioner which has been later rejected.

15. *** as per Notification dated 02.02.1981 of Government of Odisha, the break period of employees appointed under the Govt. can be condoned up to a maximum period of 02 years by the competent authority and accordingly in view of above notification the break period of petitioner (11 days i.e. from 23.04.1974 to 03.05.1974) was condoned by the D.T.M.(A), OSRTC, Sambalpur who is the competent/appointing authority of the petitioner and hence the said action has been taken as per the power conferred under law.

16. *** in spite of Order dated 04.04.2003 of Hon'ble High Court of Odisha the petitioner was not allowed to get his legitimate claim i.e. pensionary benefits as he is eligible to get the same basing on the records available in view of the fact that pensionary benefits of similar category employee has been extended.

17. *** in pursuance of Memorandum No. 5059 dated 02.02.1981 of Government Of Odisha (Finance Department) as well as Corporate Office Circular No. 7437 dated 09.07.2014, the break period of service of the petitioner was condoned by the D.T.M. (A), OSRTC, Sambalpur (Competent & Appointing W.P.(C) No.33641 of 2023 Page 10 of 81 Authority) and no irregularity was made in the matter. However, records of the service book of the petitioner has been damaged by white ants and hence not available and the same has been intimated to the opposite party No.3 by the Assistant Manager (Depot), Bargarh vide Letter dated 18.07.2023."

Hearing of the writ petition:

5. This second round of litigation being related to claim for grant of pensionary benefit by the petitioner as is being made available to the similarly situated employees, who were transferred/deputed from the STS to the OSRTC and refusal by the Transport Department, the pleadings of both sides being complete, as conceded by counsel for respective parties, this matter is taken up for final hearing on 02.07.2024.

5.1. Heard Sri Subir Palit, learned Senior Advocate assisted by Ms. Ananya Pradhan, learned Advvocate for the petitioner, Sri Pravakar Behera, learned Standing Counsel for the Transport Department (opposite party No.1) and Sri Anand Prakash Das, learned Advocate for the OSRTC (opposite party Nos.2 and 3).

5.2. Hearing was concluded on 02.07.2024, and the matter has been kept reserved for preparation of Judgment and delivery thereof.

ARGUMENTS ADVANCED BY THE COUNSEL FOR THE PARTIES:

W.P.(C) No.33641 of 2023 Page 11 of 81 6. Sri Subir Palit, learned Senior Counsel submitted that the service conditions of the petitioner is guided by the Odisha State Road Transport Corporation (Classification, Recruitment and Conditions of Service) Regulations, 1978 ("Regulation, 1978"). In 1948, the State Government took over operation of bus services run by erstwhile princely States under the State Transport Services ("STS") of Transport Department. In 1950, the Central Act, viz., the Road Transport Corporation Act (Act No. 64 of 1950) was enacted which required creation of Road Transport Corporations under respective State Governments. The OSRTC was created with effect from 15.05.1974 by virtue of Notification dated 13.05.1974 issued by the Government of Odisha in Works and Transport (Transport) Department, but not with effect from 01.05.1974, as averred in the counter affidavit of the opposite party No.1; rather it has correctly been asserted by the authorities of OSRTC in their counter affidavit. Laying emphasis on the fact that the petitioner being temporarily appointed as Cleaner on 01.11.1973 under the erstwhile STS, having got relieved from duty on 22.04.1974, was reappointed on 04.05.1974. With the following Office Order vide Annexure-3, the petitioner was allowed to retire as per the Model Voluntary Retirement Scheme while working as Tyreman:

"Orissa State Road Transport Corporation : Sambalpur

W.P.(C) No.33641 of 2023 Page 12 of 81 No._________/OSRTC, Dated 08.03.2001

In pursuance of the Order No.5543/OSRTC, dated 08.03.2001 of the Managing Director, OSRTC, Bhubaneswar the following employee of Sambalpur Unit is allowed to retire with effect from 11.03.2001, afternoon under Model Voluntary Retirement Scheme.

Name Designation

Sri Sanatan Dhal, Tyreman

Accordingly, Sri Sanatan Dhal, Tyreman, OSRTC, Sambalpur is relieved of his duties with effect from 11.03.2001 afternoon and ordered to handover complete charges of his seat to Assistant Foreman, OSRTC, Sambalpur.

Sd/- District Transport Manager (A) OSRTC, Sambalpur

Memo No. 832 Dated 09.03.2001

Copy to party concerned for information and necessary action.

Sd/- District Transport Manager (A) OSRTC, Sambalpur"

6.1. The pension papers being processed by the OSRTC and the petitioner having deposited the employee's share of EPF and the employer's share in terms of calculations as made by the authority of EPF, the EPF account being closed, he should not have been denied pension merely because there was break in service for 11 days from

W.P.(C) No.33641 of 2023 Page 13 of 81 23.04.1974 to 03.05.1974, which period has already been condoned by the competent authority in consonance with Finance Department Office Memorandum No.5059--CS-1-35/80/F., dated 02.02.1981.

6.2. Stemming on the Transport Department Notification No.4563--CASE.4/2003/T, dated 05.04.2003, by virtue of which temporary employees of the STS were treated as on deputation to the OSRTC and its Letter No.1032-RT- IV-Pen-176/06/T., dated 06.02.2007, clarifying that the temporary employees of the STS being transferred to the OSRTC with effect from 15.05.1974, their dues were required to be decided according to the provisions of the Odisha Civil Services (Pension) Rules, 1992 ("Pension Rules", for convenience), Sri Subir Palit, learned Senior Advocate forcefully submitted that the petitioner being reappointed as Cleaner on 04.05.1974, he should have been allowed to reap the pensionary benefit as is being made available to other similarly situated transferred/ deputed employees to the OSRTC from the STS.

6.3. Having not sought for modification/variation of Order dated 04.04.2023 of this Court passed in W.P.(C) No.10349 of 2023, in absence of verification of documents, which are stated to be damaged while in custody of the OSRTC, the Principal Secretary to Government failed to appreciate the entitlement of the

W.P.(C) No.33641 of 2023 Page 14 of 81 petitioner in proper perspective even though the competent authority of the OSRTC has condoned the break in service period.

7. Pravakar Behera, learned Standing Counsel for the Transport Department vehemently opposing the contentions of the Senior Counsel for the petitioner urged that there has been doubtful entries in the service book maintained by the OSRTC, and non-production of the documents for verification led the opposite party No.1 to infer that there was manipulation in the service book. Such fact disentitles the petitioner from getting the pension as per the Pension Rules, 1992.

7.1. He further submitted that the petitioner being not retrenched employee nor was he treated as transferred/ deputed Ex-STS employee, the Office Memorandum dated 02.02.1981 has no application. The authority in OSRTC had no competence to condone the break in service period of 11 days. As such, the condonation as stated to have been made by the authority of the OSRTC in its counter affidavit is irregular.

7.2. Justifying the order refusing pensionary benefit to the petitioner Sri Pravakar Behera, learned Standing Counsel submitted that as the General Manager (A) could not produce Letter No.334, dated 22.04.1974 and Letter No.91, dated 19.01.2022 for verification on the ground of being damaged by white ants, the approach of

W.P.(C) No.33641 of 2023 Page 15 of 81 the opposite party No.1 cannot be stated to be irrational or illogical in rejecting the claim of the petitioner.

8. Sri Anand Prakash Das, learned counsel appearing for the OSRTC submitted that the condonation of eleven days break period in service was made by the appointing authority, who is the competent authority to do so, pursuant to Office Memorandum dated 02.02.1981. He contended that the approach of the opposite party No.1 is fallacious. On assumption that the records do not depict true and correct factual position, the opposite party No.1 ought not to have jumped to the imprudent conclusion that the entry in the service book was incorrect. He, therefore, submitted that the OSRTC has condoned the break in service period of the petitioner; as such, he is entitled to the pension as claimed for.

8.1. Sri Anand Prakash Das, learned Advocate reiterated that on 10.02.2022 the OSRTC directed the petitioner to deposit Rs.3,42,532/- towards the employee's share, in pursuance of which on 11.03.2022 the claimant has already deposited a sum of Rs.3,45,000/- with the OSRTC towards employer's share. On 21.04.2022 the EPFO refunded the pension contribution of the OSRTC and ultimately, the EPF Account of the petitioner was closed with EPFO. He would, thus, submit that as per Letter No. 1032, dated 06.02.2007, the petitioner is eligible for pension and pensionary benefit after

W.P.(C) No.33641 of 2023 Page 16 of 81 cessation of EPF Account. Accordingly, on 22.09.2022 the pension paper of the petitioner along with closure certificate were submitted before the Government for release of pensionary benefit to the petitioner.

8.2. It is contended that having not chosen to avail the liberty granted for modification/variation of Order dated 04.04.2023 of this Court passed in W.P.(C) No.10349 of 2023, the opposite party No.1 could not have outdone the direction contained therein by digging into new facts.

ANALYSIS AND DISCUSSIONS:

9. Before delving into the merit of the matter, it may be expedient to discuss the effect of Order dated 04.04.2023 of this Court passed in W.P.(C) No.10349 of 2023.

9.1. The Principal Secretary to Government (opposite party No.1) has extracted the following paragraph of the said Order of this Court:

"8. On a careful consideration of the submissions made by the learned counsel for the Petitioner as well as on an analysis of the factual background facts of this case, this Court is of the considered view that even accepting the fact that the OSRTC had no authority to condone the break period of 11 days, while rejecting the claim of the Petitioner, the Government should have considered the same and keeping in view the Office Memorandum dated 02.02.1981 should

W.P.(C) No.33641 of 2023 Page 17 of 81 have considered for condonation of such break period by itself. In such view of the matter, this Court is of the considered view that the impugned rejection Order under Annexure-5 is unsustainable in law. Accordingly, the same is hereby set aside. Further, the matter is remanded back to the Opposite Party No.1 to consider the condonation of break period in service of the Petitioner while he was in the State Transport Service (STS) by taking into consideration the Office Memorandum dated 02.02.1981. The Opposite Party No.1 is further directed to consider the case of the Petitioner keeping in view the fact that similar benefits are extended in favour of the similar employees, who are ex-STS employees and deputed to OSRTC. Further, the Petitioner in the meantime has closed the EPF Account and the amount has already been surrendered before the EPF authority. In view of the aforesaid analysis, the Petitioner is directed to approach the Opposite Party No.1 along with certified copy of this Order within a period of two weeks. In the event the Petitioner approaches the Opposite PartyNo.1, the Opposite Party No.1 shall do well to consider the matter afresh keeping in view the analysis made in the aforesaid direction given by this Court and shall take a decision as per law, within a period of eight weeks from the date of presentation of certified copy of this Order. The decision, so taken be communicated to the Petitioner within two weeks thereafter.

9. Since the Writ Petition is being disposed of at the stage of admission without issuing notice to the Opposite Parties, liberty is granted to the Opposite Parties seeking variation/ W.P.(C) No.33641 of 2023 Page 18 of 81 modification of the Order in the event they feel that there is suppression of material facts at the instance of the Petitioner."

9.2. This Court, while making aforesaid observations, seems to have recorded the submissions of the learned Senior Counsel in the presence of the State Counsel. The facts narrated in the foregoing paragraphs, as adumbrated in the instant writ petition, do find place in the Order dated 04.04.2023. Nonetheless, the Co-ordinate Bench while disposing of aforesaid writ petition [W.P.(C) No. 10349 of 2023] had afforded liberty to the opposite party No.1 to seek "variation/modification of the Order in the event they feel that there is suppression of material facts at the instance of the Petitioner". Since nothing is placed on record by the Standing Counsel (Transport) to show that any such opportunity was availed by the opposite party No.1 for variation or modification of Order dated 04.04.2023 demonstrating "suppression of material facts", the facts stated therein, in the humble opinion of this Court, has become final and binding between the parties, particularly between the petitioner and the opposite party No.1.

9.3. Instead of preferring any application to vary or modify the Order dated 04.04.2023, as observed in paragraph 9 thereof, the Principal Secretary to Government having proceeded without "keeping in view the analysis made" as directed in paragraph 8 of said Order, transgressed

W.P.(C) No.33641 of 2023 Page 19 of 81 the direction of this Court. Hence, the opposite party No.1 has traversed beyond the scope of consideration of the case as directed by this Court vide Order dated 04.04.2023. Needless to observe that during the course of consideration had he noticed suppression of material fact qua W.P.(C) No.10349 of 2023, instead of passing Order by returning independent finding in contradiction to the facts stated in Order dated 04.04.2023, the opposite party No.1 ought to have sought for liberty as reserved by this Court vide paragraph 9 of said Order. By passing the Order dated 22.08.2023 the opposite party No.1 has nullified the effect of Order dated 04.04.2023 of this Court and thereby frustrated the issue of writ.

10. Be that be, this Court on the basis of material available on record proceeds to decide whether the petitioner was working with the STS on the date of Notification dated 13.05.1974, which came into force with effect from 15.05.1974.

10.1. Facts as emanate from the pleadings transpire that there was break in service period of 11 days from 23.04.1974 to 03.05.1974. It is specific stance of the Transport Department at paragraph 7 of the counter affidavit that "the OSRTC was formed from 01.05.1974 and started functioning from 15.05.1974". Such fact stated by the Transport Department is objected to by the OSRTC and

W.P.(C) No.33641 of 2023 Page 20 of 81 urged to be fallacious relying on Transport Department Letter No.1032-RT-IV-Pen-176/06/T., 06.02.2007, which is extracted hereunder:

"Government of Orissa Commerce and Transport (Transport) Department

No 1032--RT-IV-Pen-176/06/T Bhubaneswar, dated the 6th February, 2007

From Shri N.R. Pati Deputy Secretary to Government

To The Gerieral Manager (Admn), OSRTC, Bhubaneswar.

Sub.: This Department Letter No.9906, dated 18.11.2006.

Sir,

I am directed to invite a reference to your letter No.20422 6.12.2006 on the subject cited above and to say that the following decisions have been taken in respect of your proposal vide your letter No 27658 dt.11.11.2004 for change of E.P.F. Account to C.P.F. Account of Ex-S.T.S. employees for sanction of pension who have been declared to be on deputation to OSRTC for the purpose of pension only.

1. The Notification No.4563-T, dated 05.04.2003 is applicable to all Temporary employees of defunct STS who were transferred to OSRTC with effect from 15.05.1974 and their pensionary dues will be decided according to the provisions of Odisha Civil Services (Pension) Rules, 1992. W.P.(C) No.33641 of 2023 Page 21 of 81 2. Pensionary dues if any availed by such employees in any other form le pension from E.P.F. commission along with Employers share etc. without sanction of Govt. from any source shall be recovered/refunded from them before sanction of their pensionary dues as per Odisha Civil Services (Pension) Rules, 1992 by Government. Necessary certificate regarding ceasure of their membership in E.P.F. Account issued by the Competent authority along with a copy of the letter of E.P.F./C.P.F. commission in this effect shall be furnished in all such cases while referring to Government for sanction.

3. Steps may be taken by OSRTC in respect of such employees of erstwhile S.T.S. who were transferred to O.S.R.T.C. with effect from 15.05.1974 and now in service to change their employees Provident Fund Account to C.P.F./G.P.R. as the case may be in consultation with A.G.(A & E), Orissa.

4. The Head of Office, i.e. General Manager (A), OSRTC shall furnish a certificate in all such individual cases to this effect i.e. such as recovery/adjustment/refund of Employers' share/refund of pensionary dues paid to such employees and ceasure of their membership from E.P.F. Scheme while furnishing pension papers of each individual employees.

It is, therefore, requested that necessary steps may be taken at your end to regularize the matter as suggested above and such cases may be examined carefully to avoid any irregular payment/excess payment/double pensionary benefits etc. as well as any sort of dispute in this regard. W.P.(C) No.33641 of 2023 Page 22 of 81 Yours faithfully, N.R.Pati Deputy Secretary to Government."

10.2. In exercise of powers conferred by sub-section (1) of Section 34 of the Road Transport Corporation Act, 1950, the State Government in Commerce and Transport (Transport) Department issued general instruction to be followed in the OSRTC vide Notification dated 05.04.2003, which is extracted hereunder for ready reference:

"Government of Orissa Commerce and Transport (Transport) Department

Notification Bhubaneswar, dated the 05.04.2003

Case.4/2003/4563/T In exercise of the powers conferred by Sub-Section (1) of Section 34 of the Road Transport Corporation Act, 1950 (64 of 1950) and in partial modification of the Notification of the Government of Orissa in the Commerce and Transport (Transport) Department No.16233/T dated the 24th September, 1962, the State Government, after consultation with the Orissa State Transport Corporation do hereby give the following general instructions to be followed by the said Corporation, namely:

INSTRUCTION

Notwithstanding anything contained in para 10(1) of the notification of the Government of Orissa in the erstwhile works and Transport (Transport) Department No.7205 dated the 15th Nov. 1994, as W.P.(C) No.33641 of 2023 Page 23 of 81 subsequently amended, the temporary employee of the erstwhile State Transport Service shall be treated to be on deputation to the Orissa State Road Transport Corporation without deputation allowance till their actual date of retirement/vacation of employment in the said Corporation for the purpose of getting their pension.

By Order of the Governor Sd/- R.P. Das Deputy Secretary to Government"

10.3. In pursuance of provisions of Section 34, the OSRTC has been conferred with general jurisdictions with respect to absorption of staff of the State Undertaking under the Corporation by virtue of Notification dated 13.05.1974, which stands thus:

"Government of Orissa Works and Transport (Transport) Department

Notification The 13th May 1974

No. 7205-T.-- In exercise of the powers conferred by sub-section (1) of Section 34 of the Road Transport Corporation Act, 1950, (64 of 1950), the State Government after consultation with the Orissa State Road Transport Corporation, hereby give the following general jurisdictions to be followed by the said Corporation.

ABSORPTION OF STAFF OF THE STATE UNDERTAKING UNDER THE CORPORATION

W.P.(C) No.33641 of 2023 Page 24 of 81 1. All. persons employed by the State Government in the . State Transport Services (except those in foreign servies) and. appointed substantively to permanent· posts·therein, who would have continued in the service of the State Government but for the Transfer of the management of the State Transport Services, to the Corporation, shall be treated subject to paragraph 10(f) hereof as permanently transferred to the Corporation for appointment under Section 14(2) of the Road Transport Corporations Act, 1950 and on such transfer they will be deemed to have vacated office under the State Government and to have been offered and to have accepted employment under the Corporation subject to option under sub-clause (f) of paragraph 10 of the instructions.

Provided that nothing in this paragraph shall apply to persons who are working in the State Transport Services on deputation from various services, namely; Indian Police Service, Orissa Administrative Service, Orissa Finance Service or from any other State or Central service.

2. The Corporation shall guarantee continued employment, to all such personnel as are transferred for service under the Corporation, under terms and conditions of appointment and of service including retirement benefits not less favourable as were application to them under the State Government immediately before such transfer except in respect of prospects of promotion under the State Government.

3. The amount due from Government as Government's share of the pensionary liability of the said employees based on the qualifying service rendered by them under Government, will be paid by Government the Corporation by commuted payment at the time the Corporation sanctions retirement benefits in each case. Government's W.P.(C) No.33641 of 2023 Page 25 of 81 share of such liability in respect of each case will be fixed based on the ratio the qualifying years of service under Government with reference to the total qualifying years of service both under Government and Corporation in respect of each employee.

4. The provident fund accounts with the State Government relating to the said employees of the State Undertaking shall be transferred to the Corporation.

5. The staff employed in the State Transport Services who have lien in other Departments of the State Government, shall be treated as on deputation to the Corporation on foreign service terms and. The Corporation shall pay to the State Government leave and pension contribution for such officers;

Provided that the Corporation may offer permanent employment to any such person and on his acceptance of' such employment, he shall become a permanent employee of the Corporation and cease to be a State Government employee.

Provided further that such deputation may be terminated at the option of either the Corporation or the Government from which the deputationist has been drafted.

6. The Corporation shall count the past services under the State Government of employee transferred. Together with their services under the Corporation, for purposes of increment, leave and such other service benefits.

7. (a) all persons employed by State Government in the State Transport Service who have not been appointed substantively to any post in any Government Department, whether employed as acting, temporary, provisional or otherwise including W.P.(C) No.33641 of 2023 Page 26 of 81 contingent employees, who would have continued to be so employed by Government but for the Transfer of the management of the State Transport Services to the Corporation, shall continue to be so employed by the Corporation in the same manner as the State Government would have done if the State Transport Services had continued under the State Government and on such employment they shall be deemed to have vacated their Offices under government and to have been offered and to have accepted employment under the Corporation:

Provided that the conditions of appointment and service applicable immediately after the Corporation takes over the State Undertaking to the case of the person so appointed by the Corporation shall not be less advantageous as a whole than their existing conditions under Government service, except in the matter of promotion.

(b) The service of such employees under the State Government prior to such employment under the Corporation along with their service under the Corporation will count for service benefits under the Corporation and for this purpose the vacation of their offices under the Government as under instruction 7(c) will not amount to an interruption of their service.

8. The services of the employees in the Orissa Transport Engineering Service and Orissa Subordinate Transport Engineering Service working in the State Transport Service on the date of taking over be taken over by the Corporation. But the existing Personnel both under Director, S.T.S. and Commissioner, Transport be asked to give their option within a period of six months if they would permanently come over to the Corporation service. W.P.(C) No.33641 of 2023 Page 27 of 81 Such officers as do not opt to serve under the Corporation be transferred to State Transport Authority. In case more persons opt to come to Corporation than what is required, then the Corporation would have the option to absorb such of them according to the requirement of the Corporation as the Corporation thiks fit.

Similarly, if the number of engineering personnel who opt to remain under the S.T.A. is more than the required strength, the Government would retain such of them as they think fit according to their requirement.

The surplus employees will be retired or retrenched as per the instructions under para. 10(f) hereunder:

DISCIPLINARY CONTROL OVER STAFF OF ERSTWHILE STATE TRANSPORT DEPARTMENT

9. (a) All disciplinary powers exercised by the state Government and the officer of the State Transport Services under the relevant rules applicable in each case, shall pending passing of necessary Regulations by the Corporation in respect of Disciplinary Proceedings relating to its employees, be exercised mutatis mutandis by the Corporation and its corresponding officers respectively in respect of persons in the employment of the Corporation who, immediately before the taking over of the management of the State Transport Services by the Corporation were employees of State Transport Service.

Provided that it shall not be necessary for the Corporation to consult Public Service Commission, on any such disciplinary matter wherever such consultation is prescribed under the said Rules.

W.P.(C) No.33641 of 2023 Page 28 of 81 Provided further provided that disciplinary proceedings against Gazetted Government Servants prior to their absorption in the Corporation should be disposed of in constiltation with the State Government.

(b) All representations or memorials received from the employees of the State Transport Services before the date of taking over of the State Undertaking by the Corporation and pending on that day with the Government, and/or officers of the State Transport Services shall in respect of employees taken over for Service under the Corporation be continued and completed by the State Government and corresponding officers of the Corporation respectively.

The decisions taken by Government shall be followed by the Corporation in respect of all such above mentioned cases.

The disciplinary control of the staff deputed to the Corporation will be with the Corporation subject to the relevant provisions of the Orissa Civil Service (Classification, Control and Appeal) Rules, 1962 as amended from time to time.

GENERAL CONDITIONS FOR ALL EMPLOYEES OF THE STATE TRANSPORT SERVICES TRANSFERRED TO THE CORPORATION

10. (a) Leave.-- The Orissa Leave Rules, 1939, as liberalised from time to time shall be applicable to all employees of the State Transport Services who are transferred to the Corporation, till the Corporation formulates its own Rules.

(b) Travelling Allowance.-- The employees of the State Transport Services who are transferred to the W.P.(C) No.33641 of 2023 Page 29 of 81 Corporation shall draw travelling allowance according to the provisions of the Orissa Travelling Allowance Rules as amended from time to time, till the Corporation formulates Rules in this regard.

(c) Free Pass.-- The employees of the State Transport Services who are transferred to the Corporation shall be entitled to free passes and privilege ticket orders according to the provision of the Rules regulating issue of free passes and privilege ticket order for travel in the State Transport Buses.

(d) House Rent.-- All employees of State Transport Service who are getting house rent allowances shall be paid such allowances at the rate fixed by Government, by the Corporation when they are transferred to the Corporation, till the Corporation frames Rules in this regard.

(e) Procedure for disposal of Disciplinary Proceedings.-- All disciplinary proceedings pending against the employees of the State Transport Service on the date of their transfer to the Corporation and disciplinary proceedings that may be drawn up against such employees in future shall be disposed of in the manner prescribed in the Orissa Civil Service (Classification, Control and Appeal) Rules, 1962.

(f) Option.-- All employees of the State Transport Services, shall exercise their option if they want to be permanently absorbed in the Corporation Service under the terms and conditions contained in these, instructions. If any employee is unwilling to serve under the Corporation, he will have the option to retire or be retrenched from service if there is no suitable post under Government acceptable to him in which he can be accommodated. The option as

W.P.(C) No.33641 of 2023 Page 30 of 81 mentioned above should be exercised by an employee within a period of six months from the date on which he is deputed for service under the Corporation as mentioned above. If a person opts to retire within the period stipulated above, he shall be eligible for the retirement benefits under the relevant Government Rules applicable to him immediately before his transfer for service under the Corporation.

The service of the employees after transfer to the Corporation till the expiry of the period allowed for exercising option will be treated as on deputation without deputation allowance.

(g) No employee transferred for service under the Corporation shall be eligible to any retirement benefits immediately on transfer of his services to the Corporation merely by reason of the cessation of his services Under Government as provided under instruction above.

These instructions shall come into force on and from the 15th May 1974.

By Order of the Governor N. C. Behuria Secretary to Government"

10.4. Scrutiny of Notification dated 13.05.1974 would manifest that the same came into force with effect from 15.05.1974. Further reading of Letter dated 06.02.2007 would clarify that the employees of Ex-STS who got transferred to the OSRTC with effect from 15.05.1974 were required to change their Provident Fund Account to CPF/GPR, as the case may be, in consultation with

W.P.(C) No.33641 of 2023 Page 31 of 81 Accountant General (A&E), Odisha. In Notification dated 05.04.2003, it has been considered that the temporary employees of the erstwhile STS would be treated as on deputation to the OSRTC without deputation allowance till their actual date of retirement/vacation of employment in the OSRTC for the purpose of getting their pension. Thus, for all practical purposes the employees of the STS as on that date got transferred/ deputed to the OSRTC.

10.5. It is not disputed nor could be objected to that the petitioner has deposited the amounts of employee's and employer's share of EPF and got his EPF account duly closed on the assurance that he would be entitled to pensionary benefits as are available to the similarly situated employees. It is complained by the petitioner that though similarly situated employees have been extended the pension and pensionary benefits, the petitioner has been singled out and discriminated by the Government.

10.6. On the analysis of the documents available on record it is depicted that the petitioner being appointed on 01.11.1973 as "Cleaner", though he was relieved from duty on 22.04.1974, got reappointed by the STS on 04.05.1974 in the said position of "Cleaner". The Notifications referred to above and the correspondences of the Department would clarify the position that the

W.P.(C) No.33641 of 2023 Page 32 of 81 personnel continued in the STS as on 15.05.1974 were allowed to continue in the OSRTC. The petitioner being reappointed prior to 15.05.1974, he was treated to be Ex-STS employee and therefore, the claim of the petitioner for extending pension and pensionary benefits at par with the other similarly situated employees, who have been allowed to draw such benefit, should not have been rejected.

11. Objection has been raised by the Transport Department vide Annexure-5, which is a letter addressed to the General Manager (Admin), OSRTC citing break in service period from 23.04.1974 to 03.05.1974, which was condoned by the OSRTC by Office Order No.91, dated 19.01.2022. It is stated in the said letter that during the said period the petitioner was employee of the STS, as such the OSRTC was not within its power to condone the period. In such view of the matter, it is strongly objected to by Sri Pravakar Behera, learned Standing Counsel for the Transport Department that the Office Memorandum dated 02.02.1981 could, therefore, be not stemmed upon by the OSRTC to exercise power to condone the break in service period.

11.1. For better understanding, the Office Memorandum dated 02.02.1981 is extracted hereunder:

W.P.(C) No.33641 of 2023 Page 33 of 81 "No. C.S.1-35/80-5059/F. Governrnent of Orissa, Finance Department.

OFFICE MEMORANDUM

Bhubaneswar the 2nd February 1981.

Sub.: Protection of pay/condonation of break in service etc. of retrenched Government employees on subsequent appointment under the Government.

New appointments are at times made in Government Departments/offices by giving preference to retrenched employees Government have decided that in such cases, benefits of condonation of break in service, protection of pay etc. may be allowed as indicated below:

i) where a retrenched employee is appointed to a post carrying a higher or lower scale, of pay than that of his previous post or on an equal scale of pay, his initial pay in the new post should be fixed at a stage equal to the pay drawn in the previous post, except where a retrenched, person is re-appointed to the ease post, if the pay last drawn by him a temporary post has been inflated by grant of premature increments, the pay which he would have drawn but for the grant of .such increments should be treated as pay last drawn by him in the temporary post. If there be no stage in the time scale of the new post equal to such pay, the initial pay should be fixed at the stage next below that pay, the difference being allowed as reducible personal pay to be merged in future increments. Fixation of pay in such cases would be regulated by the provisions of Rule 80 of the Orissa Service Code. The next increment in the

W.P.(C) No.33641 of 2023 Page 34 of 81 time scale of pay of the new post would accrue after completion of one year from the date of appointment.

ii) The appointment will be subject to satisfactory result of verification of character and conduct during the period subsequent to retrenchment for which the procedure prescribed for verification of character and antecedents in Home Department Memo No.3697(34) dated 19.09.1947 and subsequent instructions issued from time to time on the subject will be followed.

iii) Where a retrenched employee is appointed under the Government within two years from the date of retrenchment, the breaking service upto a maximum period of two years may be condoned by the authority competent to make the appointment. Past service, except the period of break itself, in quo cases, would count for purposes of pension and. leave.

iv) The age limit for entry into any post under any rule regulating recruitment may be relaxed in the above cases. Relaxation in age may be granted equal to the period of service rendered under the Government prior to retrenchment.

v) For posts requiring passing of Department examination/test, three clear chances may be allowed to retrenched employees, failing which their cases may be decided in accordance with the prescribed rules/instruction. This Order shall not apply to work-charged employees and to those whose services have been terminated on account of failure to qualify in an entrance test or due to resignation, removal or dismissal from service.

W.P.(C) No.33641 of 2023 Page 35 of 81 S. Kanungo Secretary to Government"

11.2. As on 15.05.1974, when the Notification dated 13.05.1974 came into force, the petitioner, re-appointed on 04.05.1974, was treated to be employee of the STS and transferred to the OSRTC on or after 15.05.1974. Vide Order dated 04.04.2023 while disposing of W.P.(C) No.10349 of 2023 clearly mentioned that the petitioner having deposited sums towards the employee's share and the employer's share, his EPF account was closed with EPFO. It has been mentioned that "On perusal of Annexure-5, it appear that the authority while rejecting the claim of the petitioner has taken a ground that the period of break in service i.e. from 23.04.1974 to 03.05.1974 near about 11 days break has not been condoned by the competent authority." It has been further observed that although in the very same letter the authority has admitted that such break in service period has been condoned by the OSRTC vide Office Order No.91 dated 19.01.2022. However, while admitting such position the Government has questioned the authority of the OSRTC to condone such period.

11.3. After noticing the aforesaid submissions of the petitioner, it has been directed to the opposite party No.1 to consider the condonation of break period in service, while the petitioner was with the STS by taking into consideration the Office Memorandum dated

W.P.(C) No.33641 of 2023 Page 36 of 81 02.02.1981. Having not preferred to take step by availing the liberty reserved at paragraph 9 of the said Order dated 04.04.2023, the opposite party No.1 could not have denied to take into consideration the Office Memorandum dated 02.02.1981. At this stage, the learned Standing Counsel cannot be allowed to argue that the said Office Memorandum is not applicable to the employees like the petitioner.

11.4. By virtue of Notification dated 13.05.1974, all employees of the STS are treated to have been transferred to the OSRTC and on such transfer, they are deemed to have vacated office under the State Government. It is also envisaged in the said notification that the OSRTC is required to count the past services of employee under the State Government, who got transferred, together with their services under the OSRTC for purposes of increment, leave and such other service benefits. It is also provided in the said Notification that the conditions of appointment and service applicable immediately after the OSRTC takes over the State Undertaking to the case of the person so appointed by the OSRTC shall not be less advantageous as a whole than their existing conditions under the Government Service, except in the matter of promotion.

11.5. On a specific query from this Court, learned Standing Counsel for Transport Department conceded that the

W.P.(C) No.33641 of 2023 Page 37 of 81 OSRTC is the appointing authority. The Transport Department has in its Letter dated 06.02.2007 (Annexure-2) accepted that pensionary dues are to be decided in respect of "temporary employees of defunct STS who were transferred to OSRTC with effect from 15.05.1974" in accordance with the provisions of the Odisha Civil Services (Pension) Rules, 1992. Clause (q) of sub-rule (1) of Rule 2 of said Pension Rules stands thus:

"PENSION SANCTIONING AUTHORITY means the Appointing Authority competent to make appointment to the post held by the retiring Government servant:

Provided that where the Appointing Authority in the Government or the Principal, Secretary, Commissioner- cum-Secretary or the Secretary to Government, the authority to sanction pension under these rules may be delegated by the said Appointing Authority to any subordinate officer under his/her direct control authorised to authenticate Government Order under the Rules of Business.

Provided further that in case of sanction of provisional pension of a retired Government servant as provided under Rule 65 and Rule 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."

11.6. Having noticed said definition, there is no iota of doubt that the OSRTC, being the appointing authority competent to make appointments, is the "PENSION SANCTIONING AUTHORITY". Then, the relevant provisions, W.P.(C) No.33641 of 2023 Page 38 of 81 being Rules 36 and 42 of the Pension Rules are worth noticing:

"36. Condonation of interruption in service.--

(a) Upon such conditions as it may think fit in each case to impose, the authority competent to fill the appointment held by a Government servant at the time condonation is applied for, may condone all interruptions in his service.

(b) In the absence of a specific indication to the contrary in the service book, an interruption between two spells of civil service rendered by a Government servant under Government shall be treated as automatically condoned and the pre-interruption service treated as qualifying service. The period of interruptions itself shall not count as qualifying service.

(c) Nothing in clause (a) and (b) shall apply to interruption caused by resignation, dismissal or removal from service.

Explanation (1)-- Counting of military service towards pension carries with it condonation of break, but the period of break itself does not count for pension.

Explanation (2)-- In the case of ex-State employees absorbed under Government after the merger of the ex-State in Odisha, the entire period of ex-State service rendered prior to the date of merger although interrupted by breaks due to resignation or otherwise shall count for pension subject to the

W.P.(C) No.33641 of 2023 Page 39 of 81 conditions prescribed in Rule 16 but the period of interruption will not count.

42. Voluntary Retirement on completion of 20 years Qualifying Service.--

(1) At any time after a Government servant has completed twenty years qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service.

(2) The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority.

NOTE.-- Such acceptance may be generally given in all cases except those:

(a) in which disciplinary proceedings are pending or contemplated against the Government servant concerned for the imposition of a major penalty and the disciplinary authority, having regard to the circumstances of the case, is of the view that the imposition of the penalty of removal or dismissal from service would be warranted in the case or

(b) in which prosecution is contemplated or have launched in a Court of Law against the Government servant concerned.

If it is proposed to accept the notice of voluntary retirement in such cases, approval of the Government should be obtained:

Provided that where the appointing authority does not refuse to grant the permission for retirement

W.P.(C) No.33641 of 2023 Page 40 of 81 before the expiry of the period specified in the said notice, the retirement shall become effective from the date that of expiry of the said period.

(3) (a) A Government servant desirous of retiring under sub-rule (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than three months giving reason therefor.

(b) On receipt of a request under clause (a), the appointing authority subject to the provision of sub-rule (2), may consider such request for the curtailment of the period of notice of three months on merits and if he is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the Government servant shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months.

(4) This rule shall not apply to a Government servant who retires from Government service for being absorbed permanently in an autonomous body or a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement.

Explanation.-- For the purpose of the rule the expression "appointing authority" shall means the authority which is competent to make appointment to the service or post from which Government servant seeks voluntary retirement.

W.P.(C) No.33641 of 2023 Page 41 of 81 (5) The qualifying service as on the date of intended retirement of the Government servant retiring under this rule, with or without permission shall be increased by the period not exceeding five years, subject to the condition that the total qualifying service rendered by the Government servant does not any case exceed twenty five years and it does not take him beyond the date of superannuation with effect from 01.12.2008.

(6) The pension and retirement gratuity of the Government servant retiring under this rule shall be based on the emoluments as specified under rule 48 and the increase not exceeding five years in his qualifying service not entitle him to any notional fixation of pay for the purposes of calculating pension and gratuity."

11.7. Faced with such situation, this Court is of the considered opinion that the opposite party No.1 should have acted upon on the already condoned break in service period of 11 days by the OSRTC in terms of provisions of the Pension Rules. Reading of aforesaid provision makes it abundantly clear that it is the appointing authority, i.e., OSRTC (on the date of consideration of the condonation of break in service period) which is competent to condone such interruption in service. The OSRTC having condoned the 11 days break in service period, the petitioner should have been treated as continuing since his date of appointment seamlessly till he was allowed to retire with effect from 11.03.2001 by the opposite party No.1 and therefore, he

W.P.(C) No.33641 of 2023 Page 42 of 81 should have been allowed to avail benefit of pension and pensionary benefit as claimed for.

12. Instead of proceeding to decide the case of the petitioner on the basis of the observation and direction made in Order dated 04.04.2023 passed in W.P.(C) No.10349 of 2023, the opposite party No.1 could not have found ways to reject the claim for pension on consideration of different aspect, which was never before this Court in the earlier writ petition. At the first blush the decision taken by the opposite party No.1 is liable to be set aside.

12.1. Consequent upon direction of this Court in W.P.(C) No.10349 of 2023 vide Order dated 04.04.2023, the Principal Secretary to Government passed Office Order dated 22.08.2023 (Annexure-8) with the following observation:

"***

And whereas, Opposite Party No.1 examined the pension papers with reference to the service book of the Petitioner. Sri Dhal and found that Sri Dhal was initiaily appointed as a cleaner in erstwhile STS, Bargarh with effect from 01.11.1973. While working under STS as such he was relieved from his duty as cleaner on 22.04.1974 and again joined in duty on 04.05.1974 after a gap of 11 (eleven) days. Nothing is mentioned in the service book about reason of such absence from duty. Without any specific entry in the service book, relieve from duty cann't be treated as retrenched from service.

W.P.(C) No.33641 of 2023 Page 43 of 81 And whereas, the letter No.334 dated 22.04.1974 and No.91 dated 19.01.2022 which are recorded in his service book could not be produced by the G.M. (A), OSRTC for examination by this department. The ground of non- availability of such records was stated to be 'destroyed by white ants'. As such, period of absence of eleven days could not be verified by this Department as on date.

And whereas, as recorded in Service Book, Office Order for condonation of the break period of the service has been issued on 19.01.2022, but the same is entered in the service book on 30.12.2021 which is not possible and therefore, confirms the entry as a manipulated one. Further, the dated entries in service book in an ink other than the blue ink on 11.02.1975 about relief of Sri Dhal from duty on 22.04.1974 and subsequent entry dated 10.02.1975 allowing him to join on 04.05.1974, goes on to substantiate the fact that, these entries were made with dishonest motive.

And whereas, the Finance Department Office Memorandum dated 02.02.1981, envisages that the protection of pay/condonation of break in service of retrenched Government employee is applicable only on subsequent reappointment under Government. In the instant case, as discussed above, Sri Dhal was neither retrenched from service nor was he subsequently appointed under Government Rather, Shri Dhal had joined in OSRTC a State owned PSU on 04.05.1974.

And whereas, the cases of erstwhile STS employees whose pensions have been settled by Department are not similar to this case so far as condonation of break periods is concerned.

And therefore, the undersigned, being the O.P. No. 1 in this writ petition is of the view that, due to suppression of

W.P.(C) No.33641 of 2023 Page 44 of 81 material facts in the Writ Petition, as well as fake and manipulated entries in service book, as noted above, there is no merit in the instance case for condonation of 11 days of break period in service i.e. from 23.04.1974 to 03.05.1974 which is regretted. Consequently the claim of Shri Dhal for pension is denied. With this, the Order of the Hon'ble High Court dated 04.04.2023, stands complied with."

12.2. As is apparent from the aforesaid impugned Order, the opposite party No.1 sought to rest onus on the petitioner. It is fallacious to say that there was dishonest motive on the part of the petitioner. It is not in dispute that the maintenance of service book is upon the OSRTC. It cannot also be gainsaid that the custody of the service book is with the OSRTC. Thereby, there is little scope for attributing role of the petitioner in tinkering with the entries made in the service book.

12.3. It is well-established vide Mohinder Singh Gill Vrs. The Chief Election Commissioner, (1978) 2 SCR 272,

"We may here draw attention to the observations of Bose J. in Gordhandas Bhanji, AIT 1952 SC 16:

'Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.' W.P.(C) No.33641 of 2023 Page 45 of 81 Orders are not like old wine becoming better as they grow older."

12.4. Under such circumstance, there was no occasion for the petitioner to have access to manipulate entries in the service book. The circumstances under which there was scope for the petitioner to tamper with the service book has not been discussed by the opposite party No.1 nor did he conduct inquiry into the same with due confrontation. As is manifest from the Order dated 22.08.2023, the opposite party No.1 appears to have doubted the entries in the service book and suo motu assumed the facts to be untrue.

12.5. It is asserted by the opposite party No.1 in the counter affidavit that the relieve order vide Letter No.334 dated 22.04.1974 and the Letter No.91 dated 19.01.2022 as found mentioned in the service book could not be produced by the General Manager (Administration), OSRTC for examination. To sustain the observation made in the impugned Order dated 22.08.2023, in the counter affidavit it has been submitted that eleven days break period in service being condoned has been issued from the Office of the OSRTC on 19.01.2022. However, on suspicious bent of mind no positive finding with respect to veracity of entry in the service book could be returned in order to deny pension and pensionary benefit of the employee, who was allowed to retire since 11.03.2001 and close the EPF Account by making

W.P.(C) No.33641 of 2023 Page 46 of 81 deposits towards the employee's share as also the employer's share.

12.6. The opposite party No.1 having not sought for modification/variation of Order dated 04.04.2023 in terms of paragraph 9 thereof, the factual position with observations made therein attained finality qua the petitioner and the opposite parties arrayed as parties in W.P.(C) No.10349 of 2023. Therefore, it is to be considered that the facts as stated and the observations made in the Order dated 04.04.2023 are binding between the parties. By way of passing fresh Order dated 22.08.2023 in the garb of compliance of Order dated 04.04.2023, the opposite party No.1 without adhering to principles of natural justice was not within his jurisdiction to take a different stance other than what has been stated in the said Order of this Court in W.P.(C) No.10349 of 2023. It is also noteworthy from the impugned Order itself that the opposite party No.1 could not verify the document directed to be produced by the General Manager (Admin), OSRTC for examination as the same was not available. At this juncture it may be worthwhile to refer to Letter No.2393-TOE-132/22, dated 15.11.2022 of the General Manager (Admin), OSRTC, which is to the effect that,

"In pursuance of Office Memorandum No.35/80/5059/F., dated 02.02.1981 of Government of Odisha, Finance Department, Commerce and Transport (Transport)

W.P.(C) No.33641 of 2023 Page 47 of 81 Department Notification No.4563--CASE.4/2003/T, dated 05.04.2003, the break service period from 23.04.1974 to 03.05.1974 = 11 days has been condoned by the Appointing Authority for the purpose of pension vide Office Order No.91, dated 19.01.2022. The DTM (A) Hqrs., OSRTC, Bhubaneswar is the Appointing Authority in respect of Tyreman of Sambalpur Division of OSRTC. As such the said period may please be regularised for the purpose of pension as per above notification.

Hence the pension documents along with Original Service Book Volume-I, II, III and Notification are submitted herewith for consideration of the pension case of Sri Sanatan Dhal, Ex-Tyreman, OSRTC, Sambalpur."

12.7. On the contrary, nothing is emanating from the impugned Office Order dated 22.08.2023 that the observations made with regard to manipulation has been confronted to the authority of the OSRTC, who maintained the service book and signed on the service book nor did he comply with the principles of natural justice by putting the petitioner to notice. Untested material cannot lead to render positive observation and, therefore, ill-motive on the part of the petitioner cannot be attributed on account of non-production of document by the OSRTC authority. No adverse inference can be drawn against the petitioner, who is not the custodian of the record.

12.8. The learned Standing Counsel during the course of the proceeding laid much stress on Annexure-C/1 enclosed to the counter affidavit filed by the opposite party No.1

W.P.(C) No.33641 of 2023 Page 48 of 81 to contend that the same being extracted copy of service book, the entries therein pose suspicion. This Court on perusal of said document finds that the said document stated to have been scrutinised by the opposite party No.1 was hazy and not readable (see, Annexure-C/1 enclosed to the counter affidavit of the opposite party No.1). It is surprising to note that such a document could form the basis to reject the valuable right of the petitioner that too in flagrant violation of the principles of natural justice.

12.9. Per contra, from the copy of Letter dated 18.07.2023 enclosed as Annexure-D/3 to the counter affidavit of the opposite party Nos.2 and 3, it is revealed that "the case record relates to the year 1973. The old records of this Office were kept in the open space of the up-stair building years together and most of the records were eaten by white ants and damaged". Such vital fact could not have been ignored by the opposite party No.1.

12.10. Therefore, this Court is of the view that no adverse inference can possibly be drawn against an employee for denying his valuable right to pension and pensionary benefit for non-production of documents as sought for by the opposite party No.1 from the custody of the OSRTC.

12.11. For the recording the finding of fact by drawing inference of manipulation and, thereby jumping to a

W.P.(C) No.33641 of 2023 Page 49 of 81 conclusion without due confrontation of material fact to the concerned parties, the impugned Office Order dated 22.08.2023 cannot be held to be sustained and the same deserves to be set aside particularly when maintenance of service book is not within the control of the petitioner and no role in manipulation could be attributed to him.

Legal perspective of pension:

13. Before taking a decision whether the petitioner-employee of the OSRTC, deemed to have been transferred from the STS, being in service as on 15.05.1974 having joined in service as Cleaner since 01.11.1973 and reappointed on 04.05.1974 with condonation of break in service period from 23.04.1974 to 03.05.1974, who was allowed to retire on 11.03.2001 under the Model Voluntary Retirement Scheme, is entitled to pension and other pensionary benefits, which are granted to the similarly situated employees, the conceptual perspective of "voluntary retirement" vis-a-vis "pension" does require consideration.

13.1. Conceptual understanding of "resignation" vis-à-vis "voluntary retirement" has been succinctly given in BSES Yamuna Power Ltd. Vrs. Sh. Ghanshyam Chand Sharma, (2019) 14 SCR 546:

"11. The Court in Senior Divisional Manager, LIC Vrs. Shree Lal Meena ("Shree Lal Meena II"), (2019) 4 SCC 479 elucidated the distinction between

W.P.(C) No.33641 of 2023 Page 50 of 81 resignation and voluntary retirement in the following terms:

"22. ... [quoting RBI Vrs. Cecil Dennis Solomon (2004) 9 SCC 461] In service jurisprudence, the expressions "superannuation", "voluntary retirement", "compulsory retirement" and "resignation" convey different connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation it can be tendered at any time, but in the case of voluntary retirement, it can only be sought for after rendering the prescribed period of qualifying service. Another fundamental distinction is that in case of the former, normally retiral benefits are denied but in case of the latter, the same is not denied. In case of the former, permission or notice is not mandated, while in the case of the latter, permission of the employer concerned is a requisite condition. Though resignation is a bilateral concept, and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary." ***"

13.2. In H.N. Sharma Vrs. Government of NCT, Delhi, vide Judgment dated 21.08.2020 delivered in W.P.(C) No.1724 of 2017 [AIRONLINE 2020 DEL 1183], the Delhi High Court referred to S.K. Dua Vrs. State of Haryana, (2008) 3 SCC 44 = (2008) 1 SCR 395, and observed that, the issue before the Supreme Court was whether the W.P.(C) No.33641 of 2023 Page 51 of 81 appellant was entitled to interest on his retirement benefits which were kept pending due to certain charges pending against the appellant. The retirement benefits in that case were paid to the appellant four years after his superannuation. The emphatic words used by the Supreme Court are set out below:

"14. In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well founded that he would be entitled to interest on such benefits. If there are statutory rules occupying the field, the appellant could claim payment of interest relying on such rules. If there are administrative instructions, guidelines or norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence of statutory rules, administrative instructions or guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution. The submission of the learned counsel for the appellant, that retiral benefits are not in the nature of "bounty" is, in our opinion, well founded and needs no authority in support thereof. In that view of the matter, in our considered opinion, the High Court was not right in dismissing the petition in limine even without issuing notice to the respondents."

13.3. On the question of entitlement of interest in the context of withholding of pension and retirement benefits, the Hon'ble Supreme Court in the case of D.D. Tewari Vrs.

W.P.(C) No.33641 of 2023 Page 52 of 81 Uttar Haryana Bijli Vitran Nigam Ltd., (2014) 8 SCC 894 observed as follows:

"4. The learned Single Judge has allowed the writ petition vide Order dated 25.08.2010 [CWP No. 1048 of 2010, decided on 25.08.2010 (P&H)] , after setting aside the action of the respondents in withholding the amount of gratuity and directing the respondents to release the withheld amount of gratuity within three months without awarding interest as claimed by the appellant. The High Court has adverted to the judgments of this Court particularly, in State of Kerala Vrs. M. Padmanabhan Nair, (1985) 1 SCC 429 = AIR 1985 SC 356, wherein this Court reiterated its earlier view holding that: (SCC pp. 429- 30, para 1)

'1. [the] pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but have become, under the decisions of this Court, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment [to the employees].'

***

6. It is an undisputed fact that the appellant retired from service on attaining the age of superannuation on 31.10.2006 and the Order of the learned Single Judge after adverting to the relevant facts and the legal position has given a direction to the respondent employer to pay the erroneously withheld

W.P.(C) No.33641 of 2023 Page 53 of 81 pensionary benefits and the gratuity amount to the legal representatives of the deceased employee without awarding interest for which the appellant is legally entitled, therefore, this Court has to exercise its appellate jurisdiction as there is a miscarriage of justice in denying the interest to be paid or payable by the employer from the date of the entitlement of the deceased employee till the date of payment as per the aforesaid legal principle laid down by this Court in the judgment referred to supra [M. Padmanabhan Nair, (1985) 1 SCC 429]. We have to award interest at the rate of 9% per annum both on the amount of pension due and the gratuity amount which are to be paid by the respondent."

13.4. In the case of Union of India Vrs. Dr. J.K. Goel, 1995 Supp. (3) SCC 161 it was observed that:

"Before any interest can be granted on equitable considerations, it is necessary that the facts of the case should be examined to ascertain whether there are any special equities which would justify the grant of such interest although there is no provision in law for such grant."

13.5. In A. Selvaraj Vrs. C.B.M. College, (2022) 4 SCC 627 it has been discussed as follows:

"10. Having heard the learned counsel for the respective parties, we are of the opinion that as there was a delay in making the payment of retirement benefits and settling the dues for which the appellant employee is not at all responsible, he is entitled to the interest on the delayed payment. Even the Division Bench of the High Court has also observed in the impugned judgment and Order that the W.P.(C) No.33641 of 2023 Page 54 of 81 appellant is entitled to the interest on the delayed payment. However, there is an inter se dispute between the Secretary, Management and the Government as to who is responsible for the delay in making the payment to the appellant and therefore, he has been denied the interest on delayed payment though entitled to."

13.6. In Dr. Uma Agarwal Vrs. State of U.P., (1999) 3 SCC 438 = AIR 1999 SC 1212, the Supreme Court observed as follows:

"We have referred in sufficient detail to the Rules and instructions which prescribe the time-schedule for the various steps to be taken in regard to the payment of pension and other retiral benefits. This we have done to remind the various Governmental departments of their duties in initiating various steps at least two years in advance of the date of retirement. If the rules/instructions are followed strictly much of the litigation can be avoided and retired Government servants will not feel harassed because after all, grant of pension is not a bounty but a right of the Government servant. Government is obliged to follow the Rules mentioned in the earlier part of this Order in letter and in spirit. Delay in settlement of retiral benefits is frustrating and must be avoided at all costs. Such delays are occurring even in regard to family pensions for which too there is a prescribed procedure. This is indeed unfortunate. In cases where a retired Government servant claims interest for delayed payment, the Court can certainly keep in mind the time-schedule prescribed in the rules/instructions apart from other relevant factors applicable to each case."

W.P.(C) No.33641 of 2023 Page 55 of 81 13.7. It may be fruitful to refer to the view expressed by the Hon'ble Supreme Court in State of Andhra Pradesh Vrs. Dinavahi Lakshmi Kameswari, (2021) 1 SCR 694, which is to the following effect:

"14. The direction for the payment of the deferred portions of the salaries and pensions is unexceptionable. Salaries are due to the employees of the State for services rendered. Salaries in other words constitute the rightful entitlement of the employees and are payable in accordance with law. Likewise, it is well settled that the payment of pension is for years of past service rendered by the pensioners to the State. Pensions are hence a matter of a rightful entitlement recognised by the applicable rules and regulations which govern the service of the employees of the State."

13.8. In Pallawi Resources Limited Vrs. Protos Engineering Company Private Limited, (2010) 3 SCR 847 the Supreme Court with regard to interpretation of a provision in a statute has held as under:

"13. A cardinal principle of statutory interpretation is that a provision in a statute must be read as a whole and not in isolation ignoring the other provisions of that statute. While dealing with a statutory instrument, one cannot be allowed to pick and choose. It will be grossly unjust if the Court allows a person to single out and avail the benefit of a provision from a chain of provisions which is favourable to him. Reference may be made to a constitutional bench decision of this Court in the case of Prakash Kumar Vrs. State of

W.P.(C) No.33641 of 2023 Page 56 of 81 Gujarat, (2005) 2 SCC 409. The Court in para 30 of that judgment observed as follows:

'30. By now it is well settled principle of law that no part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is also trite that the statute or rules made thereunder should be read as a whole and one provision should be construed with reference to the other provision to make the provision consistent with the object sought to be achieved.'

14. We wish to also refer to a latest judgment of this Court reported as SAIL Vrs. S.U.T.N.I. Sangam and Ors., (2009) 12 SCR 929 wherein this Court, very succinctly reiterated the aforesaid position in para 79 as follows:

'79. The learned Counsel, however, invited our attention to take recourse to the purposive interpretation doctrine in preference to the literal interpretation. It is a well-settled principle of law that a statute must be read as a whole and then chapter by chapter, section by section, and then word by word. For the said purpose, the Scheme of the Act must be noticed. If the principle of interpretation of statutes resorted to by the Court leads to a fair reading of the provision, the same would fulfil the conditions of applying the principles of purposive construction.

15. From these authorities, it is amply clear that a provision in a statute ought not to be read in isolation. On the contrary, a statute must be read as

W.P.(C) No.33641 of 2023 Page 57 of 81 an integral whole keeping in view the other provisions which may be relevant to the provision in question in order to correctly arrive at the legislative intent behind the provision in question. ***"

13.9. In State of Odisha Vrs. Manju Naik, (2019) 14 SCR 473, it has been laid down that,

"20. An employee becomes entitled to pension by stint of his long service for the employer and, therefore, it should be seen as a reward for toiling hard and long for the employer. The Pension Rules provide for a qualifying service of 10 years for such entitlement. When the question arises as to how certain provisions of the Pension Rules are to be understood, it would be appropriate to read the provision in its context which would mean reading the statute as a whole. In other words, a particular provision of the statute should be construed with reference to other provisions of the same statute so as to construe the enactment as a whole. It would also be necessary to avoid an interpretation which will involve conflict with two provisions of the same statute and effort should be made for harmonious construction. In other words, the provision of a Rule cannot be used to defeat another Rule unless it is impossible to effect reconciliation between them. Pension as already stated is earned by stint of continuity and longevity of service and minimum qualifying service should therefore be understood as the requirement for invalid pension as well. The Pension Rules can be harmoniously construed in this manner and in that event, there shall be no clash between different provisions in the said Rules."

W.P.(C) No.33641 of 2023 Page 58 of 81 13.10. A Division Bench of this Court in Dhruba Charan Panda Vrs. State of Odisha, 88 (1999) CLT 637 = 1999 (II) OLR 433 has given to understand the history of "pension" with reference to the OCS (Pension) Rules, 1992, as follows:

"10. In Corpus Juris Secundum, Volume 70 at page 423, it stated that the title 'pension' includes pecuniary allowances paid periodically by Government to persons who have rendered services to the public or suffered loss or injury in the public service, or to their representatives; who are entitled to such allowances and rate and amount thereof; and proceedings to obtain and payment of such pensions.

A pension is a periodical allowance of money granted by the Government in consideration or recognition of meritorious past service, or of loss or injury sustained in the public service. A pension is a periodical allowance of money granted by the Government in consideration or recognition of meritorious past services, or of loss or injury sustained in the public service. A pension is mainly designed to assist the pensioner in providing for his daily wants, and it presupposes the continued life of the recipient.

In its strict sense a pension is not a matter of contract, and is not founded on any legal liability; it is a mere bounty or gratuity 'springing from the appreciation and graciousness of the sovereign', and it may be given or withheld at the discretion of the sovereign. It may be bestowed on such persons and on such terms as the law-making body of the

W.P.(C) No.33641 of 2023 Page 59 of 81 Government prescribes, and it is, at most, an expectancy granted by the law.

The term 'pension' has been compared and distinguished from 'bonus' 'compensation', 'profits', and 'retirement payment'. A pension fund is to be distinguished from an annuity fund derived in part from voluntary contributions under a statutory opinion to contribute or refrain from contributing. The term 'pension' is frequently, particularly in recent years, used in the broad sense of retirement pay or compensation in which it may partake of the nature of a contractual right rather than of gratuity, and, as used in this sense with respect to persons in the service of the Government, the term is fully discussed in Officers g. 92. A pension is a gratuity only where it is granted for services previously rendered which at the time they were rendered gave rise to no legal obligation.

11. A somewhat discordant note on the question whether pension and gratuity are bounty to be distributed by the Government to its employees on their retirement vis-a-vis the position as indicated in Corpus Juris Secundum. A similar view was also expressed in State of Kerala and others Vrs. Padmanabhan Nair, AIR 1985 SC 356. It was observed that pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but are valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment. The view has been recently reiterated in Dr. Uma Agarwal Vrs. State of U.P. and another, AIR 1999 SC 1212.

W.P.(C) No.33641 of 2023 Page 60 of 81 12. It is to be noted that in certain countries wrongful withholding of pension money has been made a criminal offence and it has been observed in some of the western countries that the federal statute making the wrongful withholding of pension money a criminal offence must be strictly construed. The purpose of the statute, it was held, to protect the pensioner against fraud until the unconditional payment of the money to him.

13. In Halsbury's Laws of England, Fourth Edition, Reissue-- Volume 16, it has been observed on the subject as follows:

"Pension means, a periodical payment or lump sum by way of pension, gratuity or superannuation allowance as respects which the Secretary of State is satisfied that it is to be paid in accordance with any scheme or arrangement having for its object or one of its objects to make provision in respect of persons serving in particular employments for providing them with retirement benefits and, except in the case of such a lump sum which had been paid to the employee, that:

(1) the scheme or arrangement is established by Act of Parliament or of the Parliament of Northern Ireland, or other instrument having the force of law, or

(2) the benefits under the scheme or arrangement are secured by an irrevocable trust which is subject to the laws of any part of Great Britain; or

W.P.(C) No.33641 of 2023 Page 61 of 81 (3) the benefits under the scheme or arrangement are secured by a contract of assurance or an annuity contract which is made with:

a. an insurance company to which the Insurance Companies Act, 1982 applies; or

b. a registered friendly society; or

c. an industrial and provident society registered under the Industrial and Provident Societies Act, 1965; or

(4) the benefits under the scheme or arrangement are secured by any regulation or other instrument, not being a regulation or instrument having the force of law, made with the authority of a Minister of the Crown or with the consent of the Treasury for the purpose of authorising the payment to persons not employed in the Civil Service of the State of such pensions, gratuities of other like benefits as might have been granted to person so employed; or

(5) the scheme or arrangement is established enactment or other instrument having the force of law in any part of the Common Wealth outside the United Kingdom;

and that the provision made to enable benefits to be paid, taking into account any additional resources which could and would be provided by the employer, or any person connected with the employer, to meet any deficiency, is adequate to ensure payment in full of such benefits. W.P.(C) No.33641 of 2023 Page 62 of 81 'Pension' includes any part of a pension. 'Pension' does not include:

(i) a payment to an employee which consists of solely of a return of his own contributions, with or without interest;

(ii) that part of a payment to an employee which is attributable solely to additional voluntary contributions by that employee made in accordance with the scheme or arrangement;

(iii) a periodical payment or lump sum, represents compensation under statutory compensation scheme and is payable under a statutory provision, whether made or passed before, on or after 31 July, 1978.

If in any case the Secretary of State is satisfied that benefits under the scheme or arrangement are wholly of mainly provided for the benefit of persons not resident to Great Britain, he may, if he thinks fit and subject to such conditions, if any, as he thinks proper, waive the requirement contained in head (2) above in respect of a scheme or arrangement the benefits under which are secured by an irrevocable trust or the requirements of heads (3)(a), (3)(b) or (3)(c) above in the case of a scheme or arrangement the benefits under which are secured by a contract of assurance or an annuity contract."

13.11. In Dhruba Charan Panda (supra), the Division Bench of this Court has threadbare discussed provisions

W.P.(C) No.33641 of 2023 Page 63 of 81 of the OCS (Pension) Rules with reference to general understanding of "pension" and after taking cognizance of provisions contained in Rules 57, 58, 59, 60, 61, 62 and 65 appearing in Chapter VIII of the OCS (Pension) Rules, observed that:

"Chapter IV deals with conditions of grant of pension. Sanctity is attached to expeditious payment to a pensioner is revealed from the modalities prescribed; some of them being time-bound and even specifying the officials who are to take steps."

In the said case it has been directed as follows:

"We dispose of this application with a direction to the State Government to administratively instruct all the Heads of Departments and concerned officials to ensure that different steps prescribed to be taken under the Rules are rigidly followed and any non-observance thereof is to be strictly viewed. If there is any delay in payment of pension the pensioner shall be entitled to 18% interest per annum for the period of delay and this interest shall be recovered from the person/persons responsible for the delay. While fixing the rate of interest, we have kept in view the minimum bank rate of interest charged for borrowing from bank. This aspect shall also be notified to all concerned. We are sure, if such stringent steps in addition to those, which the State Government may feel necessary to impose, are taken there shall be strict compliance of the requirement of law and in future the old retired persons shall not be required to move in the corridors of the Courts with tears in their eyes and a faint ray of hope of getting remedy early, and not posthumous."

W.P.(C) No.33641 of 2023 Page 64 of 81 13.12. In Bhuban Mohan Dash Vrs. State of Odisha, 2024 (I) ILR-CUT 406 entire gamut of "pension" has been discussed and observed as follows:

"45. In Poonamal Vrs. Union of India, AIR 1985 SC 1196 : (1985) 3 SCC 345, the apex Court referring to the judgment in Deakinandan Prasad v. State of Bihar, AIR 1971 SC 1409, held that "Pension" is not merely a statutory right but it is the fulfilment of a constitutional promise, inasmuch as it partakes the character of public assistance in case of unemployment, old-age, disablement or similar other cases of undeserved want. Relevant rules merely make effective the constitutional mandate. Pension is a right not a bounty or gratuitous payment.

46. In Kerala State Road Transport Corporation v. K.O. Varghese, AIR 2003 SC 3966, it has been held that the title 'pension' includes pecuniary allowances paid periodically by the Government to persons who have rendered services to the public or suffered loss or injury in the public service, or to their representative; who are entitled to such allowances and rate and amount thereof; and proceedings to obtain and payment of such pensions. Pension means a periodical payment or lump sum by way of pension, gratuity or superannuation allowance as respects which the secretary of State is satisfied that it is to be paid in accordance with any scheme of arrangement having for its object or one of its objects to make provision in respect of persons serving in particular employments for providing with retirement benefits and, except in the case of such a lump sum which had been paid to the employee. In

W.P.(C) No.33641 of 2023 Page 65 of 81 the aforesaid judgment the word 'pension' has also been analyzed, which reads as under:

'On analysis of the word 'pension' three things emerge:

(i) that the pension is neither bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to the statute, if any, holding the field;

(ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and

(iii) it is social welfare measure rendering socio- economic justice to those who in the 'hey days' of their life ceaselessly toiled for employers on an assurance that in their ripe old age they would not be left in lurch.

It must also be noticed that the quantum of pension is a certain percentage correlated to the emoluments earlier drawn. Its payment is dependent upon additional condition of impeccable behavior even subsequent to retirement. Pension is not a bounty of the State. It is earned by the employee for service rendered to fall back, after retirement. It is a right attached to the office and cannot be arbitrarily denied. Conceptually, pension is a reward for past service. It is determined on the basis of length of service and last pay drawn. Length of service is determinative of eligibility and quantum of pension."

47. In V. Sukumaran Vrs. State of Kerala, (2020) 8 SCC 106, it has been held that pension is succor for post retirement period, which is not a bounty payable at W.P.(C) No.33641 of 2023 Page 66 of 81 will, but social welfare measure as post-retirement entitlement to maintain dignity of employee.

***

53. In Kerala State Road Transport Corporation Vrs. K.O. Varghese, (2003) 12 SCC 293, referring to corpus juris secundum, it is stated that the title 'pension' includes pecuniary allowances paid periodically by the Government to persons who have rendered services to the public or suffered loss or injury in the public service, or to their representative; who are entitled to such allowances and rate and amount thereof; and proceedings to obtain and payment of such pension.

56. In U.P. Raghavendra Acharya Vrs. State of Karnataka, (2006) 9 SCC 630, the apex Court held that 'pension' is treated to be a deferred salary. It is not a bounty. It is akin to right of property. It is correlated and has a nexus with the salary payable to the employees as on date of retirement.

***

70. In Pepsu Road Transport Corporation, Patiala Vrs. Mangal Singh, AIR 2011 SC 1974, the apex Court held as follows:

'48. The concept of pension has also been considered in Corpus Juris Secundum, Vol. 70, at pg. 423 as thus: 'A pension is a periodical allowance of money granted by the government in consideration or recognition of meritorious past services, or of loss or injury sustained in the public service. A pension is mainly designed to assist the pensioner in providing

W.P.(C) No.33641 of 2023 Page 67 of 81 for his daily wants, and it presupposes the continued life of the recipient.'"

13.13. In the context of pension, the case of State of Rajasthan Vrs. Mahendranath Sharma, (2015) 9 SCC 540 = (2015) 8 SCR 32 is noteworthy, wherein it has been observed as follows:

"19. *** It is a well known principle that pension is not a bounty. The benefit is conferred upon an employee for his unblemished career. In D.S. Nakara Vrs. Union of India, (1983) 1 SCC 305, D.A. Desai, J.

speaking for the Bench opined that:

'18. The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalised? Is the employer, which expression will include even the State, bound to pay pension? Is there any obligation on the employer to provide for the erstwhile employee even after the contract of employment has come to an end and the employee has ceased to render service?

19. What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition.

20. The antiquated notion of pension being a bounty a gratuitous payment depending upon

W.P.(C) No.33641 of 2023 Page 68 of 81 the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad Vrs. State of Bihar (1971) 2 SCC 330 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an Order to that effect but the right to receive pension flows to the officer not because of any such Order but by virtue of the rules. This view was reaffirmed in State of Punjab Vrs. Iqbal Singh, (1976) 2 SCC 1.'

20. We may hasten to add that though the said decision has been explained and diluted on certain other aspects, but the paragraphs which we have reproduced as a concept holds the filed as it is a fundamental concept in service jurisprudence. It will be appropriated and apposite on the part of the employers to remember the same and ingeminate it time and again so that unnecessary litigation do not travel to the Court and the employers show a definite and correct attitude towards employees. We are compelled to say so as we find that the intention of the State Government from paragraph 5 of the W.P.(C) No.33641 of 2023 Page 69 of 81 circular/memorandum has been litigated at various stages to deny the benefits to the respondents. It is the duty of the State Government to avoid unwarranted litigations and not to encourage any litigation for the sake of litigation. The respondents were entitled to get the benefit of pension and the High Court has placed reliance on the decision of another High Court which has already been approved by this Court. True it is, there is slight difference in the use of language in the Haryana Pension Rules 2009 and the circular/ memorandum issued by the State of Rajasthan, but a critical analysis would show that the final consequence is not affected."

13.14. Pension is, thus, not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-

economic justice which renders economic security in the fall of life when physical and mental prowess is ebbing corresponding to ageing process and, therefore, one is required to fall back on savings. One such saving in kind is when you give your best in the hey-day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to an employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation or for service

W.P.(C) No.33641 of 2023 Page 70 of 81 rendered. In one sentence one can say that the most practical raison d'etre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon. [These observations are from H.N. Sharma Vrs. Government of NCT, Delhi, AIRONLINE 2020 DEL 1183. With the aforesaid conspectus of "pension" and consideration, this Court now comes to the conclusion that the petitioner is entitled to grant and release of pension and pensionary benefits.

Conclusion and decision:

14. Aforesaid backdrop of factual scenario with the applicable legal conspectus of "pension" vis-à-vis "voluntary retirement" leaves this Court with no uncertainty that the technicalities in consideration of entitlement of pension would not come in the way to extend the benefit. Nonetheless, pension is chiefly designed to assist the pensioner in providing for his daily wants, and it presupposes the continued life of the recipient. Pension is a reward for past service. It is determined on the basis of length of service and last pay drawn. Length of service is determinative of eligibility and quantum of pension. It is a right and the payment of it does not depend upon the discretion of the Government/employer, but is governed by the rules and

W.P.(C) No.33641 of 2023 Page 71 of 81 an employee coming within those rules is entitled to claim pension.

14.1. In other words, it is only for the purpose of quantifying the amount, having regard to service and other allied matters, that it may be necessary for the authority to pass an order to that effect, but the right to receive pension flows to the employee not because of any such order but by virtue of the rules.

14.2. In the present case the employer-OSRTC, the appointing authority, has condoned the break in period of service of 11 days from 23.04.1974 to 03.05.1974. Therefore, it is perceived that the petitioner, being initially appointed as "Cleaner" on 01.11.1973 with the State Transport Service worked seamlessly till he was allowed to retired on 11.03.2001 under Model Voluntary Retirement Scheme while working as "Tyreman" under the OSRTC, as the employees of erstwhile STS has been transferred to the OSRTC with effect from 15.05.1974 by virtue of Notification No.7205-T, dated 13.05.1974 in terms of modalities contained in "Absorption of staff of the State Undertaking under the Corporation" therein. The petitioner being reappointed as "Cleaner" on 04.05.1974 after being relieved from duty on 22.04.1974, the break in period of 11 days in service has been condoned by the OSRTC, the appointing authority. Thus, being an employee of the STS on the date of promulgation of

W.P.(C) No.33641 of 2023 Page 72 of 81 Notification dated 13.05.1974, it is apparent that the petitioner had worked for more than 27 years including condoned period of 11 days break in service.

14.3. This apart, the narration of facts with regard to the employee of STS being transferred to the OSRTC and the position of condonation of break in service was discussed elaborately in the Order dated 04.04.2023 passed in W.P.(C) No.10349 of 2023, wherein it has been observed that "this Court is of the considered view that even accepting the fact that the OSRTC had no authority to condone the break period of 11 days, while rejecting the claim of the petitioner, the Government should have considered the same keeping in view the Office Memorandum dated 02.02.1981 should have considered for condonation of such break period by itself". However, the opposite party No.1 instead of taking recourse of liberty granted at paragraph 9 of the said Order, in the event of being prejudiced, could not have taken a divergent view other than what has been accepted in the Order dated 04.04.2023 and decided to refuse the entitlement of the petitioner for pensionary benefit and, thereby the opposite party No.1 has overstepped his jurisdiction by nullifying the effect of Order in earlier writ petition, particularly when the said opposite party No.1 has not been able to attribute the role of the petitioner for alleged manipulation of service book, while it is admitted that maintenance and custody of service

W.P.(C) No.33641 of 2023 Page 73 of 81 book was with the authorities in the STS and the OSRTC.

14.4. The Pension Rules, 1992 being a benevolent piece of legislation framed in exercise of power under proviso to Article 309 of the Constitution of India, a pragmatic approach would be taken keeping in view the following provisions having regard to the object of pension as discussed in the foregoing paragraphs:

"2. Definitions.--

(1) In these rules, unless the context otherwise, requires.--

***

(r) QUALIFYING SERVICE means the service rendered by a Government servant which shall be taken into account for the purpose of pension and gratuity admissible under these Rules;

(s) RETIREMENT means discharge of an Officer on pension and/or gratuity as admissible under these Rules;

(t) RETIREMENT BENEFITS includes pension or service gratuity and death gratuity, retirement gratuity where admissible;

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3. Application.--

(1) Save as otherwise provided in these rules, these rules shall apply to Government servants, appointed to posts and services in connection with the affairs W.P.(C) No.33641 of 2023 Page 74 of 81 of the State which are borne on pensionable establishment, but shall not apply to--

(a) Persons in casual and daily rated employment;

(b) Persons paid from contingencies;

(c) Persons entitled to the benefit of Contributory Provident Fund;

(d) Members of the All India Services;

(e) Persons employed on contract except when the contract provides otherwise;

(f) Persons whose terms and conditions of service are regulated by or under the provisions of the Constitution or any other law for the time being in force.

(2) A Government servant who is transferred permanently to a service or post to which these Rules apply from a service or post to which these Rules do not apply shall become subject to these Rules:

Provided that it shall be open to him, within six months of the date of issue of the order of his permanent transfer, or if he is on leave on the said date, then, within six months of his return from leave, whichever is later, to opt to be governed by the pension Rules to which he was subject immediately before the date of his transfer. The option shall be exercised in writing and communicated to the authority making such order of transfer.

(3) The option, once exercised, shall be final.

*** W.P.(C) No.33641 of 2023 Page 75 of 81

10. Commencement of qualifying service.--

Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity:

Provided that except for compensation gratuity, a Government servant's service does not qualify for pension till he has completed eighteen years of age:

Provided further that nothing contained in this rule shall apply to the persons who were in service on the 8th September, 1962 and in whose case a lower age-limit had been prescribed.

***

47. Amount of Pension.--

(1) The amount of pension that may be granted shall be determined by the length of completed six monthly periods of service rendered by the retired Government servant.

***

(3) In calculating the length of qualifying service, a fraction of a year equal to three months and above but less than six months shall be treated as a completed one-half year and the period of nine months and above shall be reckoned as two-half years."

14.5. Emphasising that "it becomes the bounden duty of the Courts to advance the cause of the social justice. While giving interpretation to a particular provision, the Court is

W.P.(C) No.33641 of 2023 Page 76 of 81 supposed to bridge the gap between the law and society. *** The role of the Court is to understand the purpose of law in society and to help the law achieve its purpose. But the law of a society is a living organism. It is based on a given factual and social reality that is constantly changing. Sometimes change in law precedes societal change and is even intended to stimulate it. In most cases, however, a change in law is the result of a change in social reality. Indeed, when social reality changes, the law must change too. Just as change in social reality is the law of life, responsiveness to change in social reality is the life of the law. It can be said that the history of law is the history of adapting the law to society's changing needs. In both constitutional and statutory interpretation, the Court is supposed to exercise discretion in determining the proper relationship between the subjective and objective purposes of the law.", as has been made in Badshah Vrs. Urmila Badshah Godse, (2014) 1 SCC 188, the Hon'ble Supreme Court in Deepika Singh Vrs. Central Administrative Tribunal, (2022) 7 SCR 557 referred to the following principles in order to appreciate consideration qua beneficial social security legislation:

"15. The provisions of Rule 43(1) must be imbued with a purposive construction. In KH Nazar Vrs. Mathew K Jacob, (2020) 14 SCC 126 this Court noted that beneficial legislation must be given a liberal approach:

W.P.(C) No.33641 of 2023 Page 77 of 81 '11. Provisions of a beneficial legislation have to be construed with a purpose-oriented approach. The Act should receive a liberal construction to promote its objects. Also, literal construction of the provisions of a beneficial legislation has to be avoided. It is the Court's duty to discern the intention of the legislature in making the law. Once such an intention is ascertained, the statute should receive a purposeful or functional interpretation.

12. In the words of O. Chinnappa Reddy, J., the principles of statutory construction of beneficial legislation are as follows: (Workmen case, SCC p. 76, para 4)

'4. The principles of statutory construction are well settled. Words occurring in statutes of liberal import such as 'social welfare legislation and human rights' legislation are not to be put in Procrustean beds or shrunk to Lilliputian dimensions.

In construing these legislations the imposture of literal construction must be avoided and the prodigality of its misapplication must be recognised and reduced. Judges ought to be more concerned with the "colour", the "content" and the "context" of such statutes [we have borrowed the words from Lord Wilberforce's opinion in Prenn Vrs. Simmonds, (1971) 1 WLR 1381 = (1971) 3 All ER 237 (HL)].

In the same opinion Lord Wilberforce pointed out that law is not to be left behind in some island of literal W.P.(C) No.33641 of 2023 Page 78 of 81 interpretation but is to enquire beyond the language, unisolated from the matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations. In one of the cases cited before us, that is, Surendra Kumar Verma Vrs. Central Government Industrial Tribunal-cum-Labour Court , we had occasion to say : (Surendra Kumar Verma case, SCC p. 447, para 6)

'6. ... Semantic luxuries are misplaced in the interpretation of "bread and butter" statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the court is not to make inroads by making etymological excursions.'

13. While interpreting a statute, the problem or mischief that the statute was designed to remedy should first be identified and then a construction that suppresses the problem and advances the remedy should be adopted."

14.6. Thus being the principle propounded with respect to legislation of social security measures, reading provisions of the Odisha Civil Services (Pension) Rules, 1992 juxtaposed with Notification dated 05.04.2003 (Annexure-1) and Letter dated 06.02.2007 (Annexure-2) harmoniously, the appointing authority (OSRTC) having condoned the break in service for 11 days from

W.P.(C) No.33641 of 2023 Page 79 of 81 23.04.1974 to 03.05.1974 for the purpose of pension by taking into consideration the factual aspect that being reappointed in the position of "Cleaner" on 04.05.1974, i.e., prior to 15.05.1974, the date when the STS employees are transferred/deputed to OSRTC, and allowed to retire on 11.03.2001 under the Model Voluntary Retirement Scheme, the pension and other pensionary benefit deserve to be extended to the petitioner.

15. Under aforesaid premises, there is no scope to sustain the Order dated 22.08.2023 passed by the opposite party No.1-Principal Secretary to Government in Commerce & Transport (Transport) Department. Accordingly this Court sets aside the said Order and directs the opposite party No.1 to treat the break in service period of 11 days as condoned, as conceded by the OSRTC. The opposite party No.1 is, therefore, directed to take further effective steps to disburse the pension and the pensionary benefit as are admissible, as expeditiously as possible preferably within a period of three months, bearing in mind that the petitioner is now at the age of about 74 years and in the meanwhile more than 23 years have been passed since he was allowed to retire under the Model Voluntary Retirement Scheme with effect from 11.03.2001. Needless to reiterate that the petitioner has already deposited the employee's

W.P.(C) No.33641 of 2023 Page 80 of 81 share and the employer's share and his account with EPF authority has been duly closed.

16. With the aforesaid observation and direction, this writ petition stands disposed of, but in the circumstances without any order as to costs.

(MURAHARI SRI RAMAN) JUDGE

Signature Not Verified Digitally Signed Signed by: SUCHITRA BEHERA Designation: JUNIOR STENOGRAPHER High Court of Orissa, Cuttack Reason: Authentication TheOF Location: HIGH COURT 18ORISSA, th July, 2024//MRS/Suchitra CUTTACK Date: 18-Jul-2024 18:04:53

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