Banamali Sasmal vs. State Of Odisha

Facts

The Petitioner, Banamali Sasmal, was appointed as a Peon in 1984 and retired on 30.11.2020. He was suspended in 2005 pending a Vigilance case, reinstated in 2008, and a disciplinary proceeding resulted in withholding of his annual increment without cumulative effect, with the suspension period treated as such. His appeal was rejected. After retirement, he received provisional pension, but his unutilized leave salary was not paid. His representation dated 26.07.2021 was rejected by the Joint Commissioner of CT & GST via an order dated 20.09.2021. The Petitioner sought quashing of this order and release of unutilized leave salary and other retirement benefits.

Held

The Court held that the order dated 20.09.2021 passed by the Joint Commissioner of CT & GST was unsustainable in law and liable to be set aside. The Court reasoned that in the absence of any provision in any law or rules, the unutilized leave salary could not have been withheld by the authorities through an executive order or action. The Court found that the Opposite Parties had not committed any illegality in rejecting the claim, but their reasoning was flawed based on the available legal framework. The Court relied on judgments of the Hon'ble Supreme Court and a Division Bench order of the Orissa High Court. The impugned order was set aside, and the matter was remanded back to the Commissioner of CT & GST to reconsider the Petitioner's claim afresh within two weeks of receiving the order and relevant judgments. If the Petitioner was found entitled, the benefits were to be calculated and disbursed within eight weeks thereafter, subject to the Petitioner furnishing an undertaking.

Key Issues

1. Whether the order dated 20.09.2021 passed by the Joint Commissioner of CT & GST, rejecting the Petitioner's claim for unutilized leave salary, is legally sustainable, particularly in the absence of any specific provision allowing withholding of such benefits based on an executive order or pending vigilance case? (Question of law) Petitioner's contention: The Petitioner argued that the unutilized leave salary could not be withheld by an executive order or action, especially in the absence of any specific provision in law or rules permitting it. He sought the quashing of the impugned order and release of his retirement benefits. Revenue's contention: The Opposite Parties, through the learned Additional Government Advocate, contended that the Petitioner's claim was rightly rejected. They relied on Office Memo No.7493 dated 26.03.2015, arguing that if a departmental/judicial proceeding is pending and likely to result in recovery, such amounts may be withheld from leave salary. Since a vigilance case was pending, the amount was unascertainable, and there was a possibility of recovery, hence the unutilized leave salary could only be sanctioned after the disposal of the vigilance case.