The Lieutenant Governor An ORS v. Shajan T Oommen And ANR

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WP.CT/28/2024 The Lieutenant Governor and Others Vs.

Shajan T. Oommen and Another Mr. Shatadru Chakraborty, Sr.Adv.

Mr. Rakesh Kumar Mr. Dibesh Dwivedi ... for the petitioners Mr. Deep Chaim Kabir, Sr. Adv.

Mr. S. Ajith Prasad ... for the respondents January 28, 2025 [SR] Item No.12

1. By presenting this writ petition challenge has been thrown to the interim order of the Tribunal dated 2nd February, 2024 passed in original application being OA 113 of 2024 (Port Blair) whereby the Tribunal as an interim measure directed the writ petitioner herein to grant provisional pension to the respondent no. 1 since length of his qualifying service is not disputed.

2. In order to buttress the stand taken as reflected from the order dated 16th November, 2023 passed by the Chief Engineer, APWD denying right of the respondent no. 1 to receive provisional pension it is submitted by Mr. Shatadru Chakraborty, learned Senior Advocate that the purport of the order of the Hon'ble Supreme Court dated 9th March, 2022 passed on Civil Appeal nos. 8255 -

8257/2009 does not confer right upon the respondent no. 1 to receive provisional pension.

3. Our attention has been drawn to the relevant part of the order dated 9th March, 2022 passed by the Hon'ble Supreme Court and it has been construed by the writ petitioner that the said order dated 9th March, 2022 only permits the authority to release consequential benefits due to voluntary retirement of the respondent no. 1 with effect from 31st March, 2022 after the conclusion of criminal proceedings and disciplinary proceedings which are pending against respondent no. 1. In other words, it is submitted on behalf of the writ petitioner that keeping criminal proceedings and disciplinary proceedings which have been initiated against the respondent no. 1 pending, authority was not directed by the Hon'ble Supreme Court to release benefits which are admissible to the respondent no. 1 in view of his voluntary retirement with effect from 31st March, 2022. Therefore according to the writ petitioners there is no ambiguity in the order dated 16th November, 2023 which is annexure P 11 to this writ petition passed by the Chief Engineer, APWD.

4. On the contrary Mr. Deep Chaim Kabir, learned Senior Advocate representing the respondent no. 1 has laid emphasis on the same order passed by the Hon'ble Supreme court on 9th March, 2022 in order to substantiate his claim of release of provisional pension as

directed by Tribunal vide interim order dated 2nd February, 2024.

5. It is further submitted that the order of the Tribunal dated 2nd February, 2024 was passed in terms of the order of the Hon'ble Supreme Court dated 9th March, 2022. Therefore the order of the Tribunal at this stage may not be interfered with which would entitle the respondent no. 1 to receive provisional pension.

6. We have considered the respective submissions made on behalf of the parties and perused the relevant materials available on record including the orders passed by Hon'ble Supreme Court dated 9th March, 2022 and the impugned order dated 2nd February, 2024 passed by the Tribunal.

7. For better understanding of the issue relevant part of the order of the Hon'ble Supreme Court dated 9th March, 2022 is quoted below:

"On having done so we come to a scenario as to what has to be done insofar as respondent No.1 is concerned. In view of the own offer made on behalf of the respondent No.1 by the learned counsel, we are of the view that it would be appropriate to accept the alternative suggestion of respondent No.1 that he is willing to retire voluntarily forthwith from the post he is working at the moment.

We permit him to retire with effect from 31st March, 2022.

We however, also put a caveat to the same that this will not, in any manner, prejudice the criminal trials pending against the respondent No.1 or the disciplinary proceedings already initiated against him which will work out with their natural consequences.

The period of service, however, for which the respondent No.1 has worked, will be counted in his favour and he will be treated as having voluntarily retired from the PWD with all the consequential benefits but the release of the benefits is bound to be

subject to the conclusion and fate of the proceedings pending against him".

[Emphasis Supplied]

8. From the order dated 9th March, 2022 it is found that the Hon'ble Supreme Court permitted the respondent No. 1 to retire voluntarily with effect from 31st March, 2022 and taking note of the voluntary retirement of the respondent no. 1 it was further directed that the period of service for which respondent no. 1 has worked will be counted in his favour or he will be treated as having voluntarily retired from PWD with all consequential benefits with a rider that release of consequential benefits shall be subject to conclusion and fate of the proceedings pending against him.

9. On careful perusal of the order dated 9th March, 2022 we do not find any impediment in releasing provisional pension at this stage in favour of the respondent no. 1 for his sustenance during pendency of the criminal proceedings and disciplinary proceedings, since it is not possible for us to assess the actual time which will be consumed for conclusion of such proceedings. Tribunal has passed order dated 2nd February, 2024 which appears to be in sync with the observations made by Hon'ble Supreme Court. We are in ad-idem with the view expressed by the Tribunal in the order dated 2nd February, 2024.

10.

Therefore at this stage we refuse to interfere with the order of the Tribunal dated 2nd February, 2024. Hence

writ petition stands dismissed. Tribunal is requested to expedite the hearing of the Original application being OA 113/2024 (Port Blair) as expeditiously as possible. 11.

Concerned authority is directed to release provisional pension to the respondent No. 1 with effect from the date of voluntary retirement of respondent no. 1 within a period of eight weeks from the date of communication of this order.

12.

Urgent certified Photostat copy of this order, if applied for, may be supplied to the parties upon compliance of the usual formalities.

( Saugata Bhattacharyya, J. ) (Partha Sarathi Chatterjee, J. )