Research › Search › Judgment

Orissa High Court · body

2026 DAILYLAW 27091 (ORI)

Upendra Bisoyi v. Chairman-cum-MD, OMFED BBSR

2026-01-29

Sashikanta Mishra

body2026
JUDGMENT : SASHIKANTA MISHRA, J. The petitioner is aggrieved by order dated 25.09.2021 passed by the General Manager, Cuttack Cooperative Milk Producers Union Limited (Opposite Party No.3), deducting the alleged misappropriated amount of Rs.12,64,800/- from his total retirement benefits. 2. The facts of the case, briefly stated are that pursuant to an advertisement issued by Odisha State Cooperative Milk Producers’ Federation Limited (OMFED) in month of May 1988, the petitioner, after undergoing a selection process was selected and appointed as Jr. Assistant in Cuttack Co-Operative Milk Producers Union, which is a subsidiary of OMFED. His services were regularized with effect from 01.04.1994 as Jr. Accountant and Establishment Assistant. In course of his service, he was transferred to various units and ultimately retired on 31.03.2021 on attaining the age of superannuation. 3. While in service in the year 2019, a departmental proceeding was initiated against one Santosh Kumar Samal (Plant Operator, Gr.-I), on the allegation of misappropriation of money. The petitioner was appointed as the Presenting Officer by the management. The delinquent was held guilty in the enquiry to the effect that he had misappropriated Rs.12,91,500/. Accordingly, he was terminated from service and directed to deposit the misappropriated amount. By letter dated 17.12.2019, the Opposite Party No.3 sought for an explanation from the petitioner, informing him that from the enquiry report it was found that the delinquent had committed fraud and misappropriation due to callousness of the petitioner. It was alleged that the petitioner had not paid any attention towards verification of documents and had released the amount towards loading and unloading etc. In response, the petitioner submitted his explanation on 26.12.2019 mentioning the challan numbers and cattle feed bags and by stating that payments were never released in respect of the said challans. Moreover, the payment was never released towards loading charges of cattle feed at Tirtol Diary. 4. The petitioner was assured that his explanation was accepted. Since he was due to retire on 31.03.2021, Opposite Party No.3 requested all units in-charge to furnish no due certificates in respect of the petitioner. All the in-charge head of units, including Tirtol Diary furnished no due certificate in favour of the petitioner. Accordingly, the petitioner was permitted to retire with effect from 31.03.2021. Since his retirement benefits towards gratuity and leave encashment were not released, he submitted a representation on 08.04.2021 to the Opposite Party No.3 but no action was taken. All the in-charge head of units, including Tirtol Diary furnished no due certificate in favour of the petitioner. Accordingly, the petitioner was permitted to retire with effect from 31.03.2021. Since his retirement benefits towards gratuity and leave encashment were not released, he submitted a representation on 08.04.2021 to the Opposite Party No.3 but no action was taken. The petitioner therefore, approached this Court in W.P.(C) No.19494 of 2021. By order dated 14.07.2021, this Court disposed of the writ application directing the Opposite Party No.3 to take a decision on the representation within a stipulated period. Pursuant to such order, Opposite Party No.3, by the impugned order, informed that since the petitioner was involved in misappropriation of cattle feed amounting to Rs.12,64,800/- during 2017-18 and 2018-19, the said amount shall be deducted from the total retirement benefits and that he is entitled to the rest amount of Rs.3,87,060/. The petitioner contends that when nothing was communicated to him even after three years of conclusion of enquiry against Santosh Kumar Samal, the impugned order cannot be legally justified. Further, all units have issued no due certificates in his favour, including Tirtol Diary. The authorities are also not sure of the exact misappropriated amount. In any case, there has been no determination of the amount allegedly misappropriated by the petitioner in any departmental proceeding against him. So only on the basis of a vigilance enquiry, he cannot be penalized. 5. Counter affidavit has been filed by the Opposite Party No.3, wherein it is, inter alia, stated that one day prior to the retirement of the petitioner i.e., on 30.03.2021, Opposite Party No.3 received a letter from the Superintendent of Police, Vigilance, Cuttack Division informing that the petitioner along with said Santosh Kumar Samal had entered into criminal conspiracy in connivance with each other and misappropriated a sum of Rs.12,64,800/- by showing supply of excess amount of cattle feed to registered diary and society members. Accordingly, the impugned letter was issued. The petitioner was clearly informed by letter dated 19.04.2021 about pendency of vigilance case against him but by suppressing such fact, he had approached this Court in the earlier writ application. 6. Accordingly, the impugned letter was issued. The petitioner was clearly informed by letter dated 19.04.2021 about pendency of vigilance case against him but by suppressing such fact, he had approached this Court in the earlier writ application. 6. It is further stated that as per Government of Odisha, Finance Department Memo No.7493/26-03- 2015, the authority can withhold whole or part of the cash equivalent of unutilized leave salary if, in the opinion of such authority, there is a possibility of some money becoming recoverable from him after conclusion of departmental/criminal proceeding against him. It is further reiterated that because of callousness of the petitioner, the delinquent Mr. Samal was able to committee fraud and misappropriation. 7. The petitioner has filed a rejoinder denying receipt of letter dated 19.04.2021 of Opposite Party No.3 informing him of the pendency of vigilance case against him. It is further stated that the Finance Department memo referred to in the counter relates only to the cash benefit in lieu of unutilized leave salary and not in respect of any other retiral benefit. In the instant case, the entire gratuity and leave encashment amount has been withheld. It is further reiterated that mere pendency of a vigilance case does not prove the allegation of misappropriation as long as the same has not been determined in accordance with law. 8. Heard Mr. N. Lenka, learned counsel for the Petitioner and Mr. A.S. Nandy, learned counsel for the Opposite Party No.3. 9. Mr. Lenka would argue that this is a clear case of colorable exercise of power and victimization of an employee by the authorities inasmuch as his retirement benefits have been withheld without any finding of guilt against him. He submits that the petitioner acted as the Presenting Officer on behalf of the department in the enquiry conducted against Santosh Kumar Samal. It was clearly proved in the enquiry that said delinquent was guilty of the charges. There was not a whisper of allegation against the petitioner either in the enquiry or otherwise. Three years later, the authorities could not have come up with such allegation, that too without any determination of the alleged misappropriation. 10. Mr. It was clearly proved in the enquiry that said delinquent was guilty of the charges. There was not a whisper of allegation against the petitioner either in the enquiry or otherwise. Three years later, the authorities could not have come up with such allegation, that too without any determination of the alleged misappropriation. 10. Mr. Nandy, on the other hand, seeks to justify the impugned action of the authorities by submitting that at the time of enquiry against Santosh Kumar Samal, the involvement of the petitioner had not come to the light but subsequently on the basis of a vigilance enquiry, it was revealed that he too was involved. On such premises, the authorities have acted strictly following the Government norms to withhold his pensionary entitlements. 11. The facts of the case are not disputed. The petitioner was the Presenting Officer for the department in the enquiry conducted against another employee namely, Santosh Kumar Samal. The Enquiry Officer, after considering the evidence and materials on record, returned a finding of guilt against Mr. Samal. It is common ground that there is not a whisper regarding the so-called involvement of the petitioner in the misconduct of the delinquent. Be that as it may, this Court finds that the delinquent was visited with the penalty of termination of service besides a direction to deposit the misappropriated amount way back on 31.12.2019. 12. A few days prior to that date, the petitioner was asked to explain with regard to his involvement. He submitted his explanation on 26.12.2019. The matter seems to have remained in cold storage since then. Significantly, in view of his impending retirement, all the concerned unit heads issued no due certificates in his favour. Accordingly, he was allowed to retire on superannuation. In paragraph 3 of the counter affidavit, it is stated that on 30.03.2021, that is, one day prior to his retirement, the deponent (O.P. No.3) received a letter from the S.P., Vigilance, informing of the petitioner’s alleged involvement in the misappropriation along with the punished employee. This contradicts the further stand taken that by letter dated 19.04.2021 (Copy enclosed as Annexure-D/3) the petitioner was informed about the pendency of the vigilance case against him. This discrepancy has not been explained during hearing. 13. This contradicts the further stand taken that by letter dated 19.04.2021 (Copy enclosed as Annexure-D/3) the petitioner was informed about the pendency of the vigilance case against him. This discrepancy has not been explained during hearing. 13. Leaving aside the above anomalies, this Court finds that there has been no determination as such of the amount allegedly misappropriated by the petitioner by way of any departmental proceeding. The criminal case against him has also not attained finality. Under such circumstances, the question that arises for consideration is whether the authority was justified in recovering any amount from the petitioner’s retirement benefits. Reliance has been placed on the Finance Department Memorandum dated 26.03.2015, which is reproduced below: 14. Firstly, this Court finds that the same relates to withholding of cash equivalent of unutilized leave salary to Government servants. It does not contain anything as regards gratuity and other retirement benefits. Therefore, reliance on the said memorandum appears to be misconceived. The Supreme Court in State of Jharkhand V. Jitendra Kumar Srivastava , (2013) 12 SCC 210 has held that pension, gratuity and leave encashment are not bounties, but statutory rights of an employee, and that the State Government cannot withhold or take away any part thereof in the absence of any statutory provision. It has been further held that deprivation of such retiral benefits under the umbrage of administrative instructions, without the authority of law, cannot be countenanced. 15. That being so, in the absence of any finding of guilt of misappropriation against the petitioner in a lawfully constituted proceeding, there is no way by which his retirement benefits could be withheld. True, a vigilance case is pending against him but the same ipso-facto cannot be a ground to deprive him of his legitimate retirement benefits unless and until it is finalized with finding of guilt against him by the Court of law. 16. Therefore, as things stand at present, the action of the authority in withholding a major portion of the retirement benefits of the petitioner’s retirement benefit cannot be sustained in the eye of law. Moreover, it has not been demonstrated as to how the explanation submitted by the petitioner on 26.12.2019 was unacceptable. Assuming that it was so, this Court fails to understand what stopped the authorities from initiating appropriate proceedings against him at the relevant time. Moreover, it has not been demonstrated as to how the explanation submitted by the petitioner on 26.12.2019 was unacceptable. Assuming that it was so, this Court fails to understand what stopped the authorities from initiating appropriate proceedings against him at the relevant time. Even otherwise, the misappropriated amount being to the tune of Rs.12,91,500/-, which the delinquent employee has already been directed to deposit, withholding the same amount from the petitioner’s retirement benefits cannot be justified as the same would amount to unjust enrichment on the part of the Opposite Parties. 17. Thus, from a conspectus of the analysis of facts and the contentions raised, this Court is of the considered view that the impugned order cannot be sustained in the eye of law. 18. Resultantly, the writ application is allowed. The impugned order under Annexure-11 is hereby quashed. Opposite Party No.3 is directed to release the retirement benefits admissible to the petitioner without any further delay and in any case, not later than three months from today.