Nimai Charan Mohanty and ors. Vs. State of Orissa and ors. - Court Judgment

Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - employees and were governed by the orissa pension rules, 1977 till march 31, 1992 and thereafter by orissa civil service pension rules, 1992. the retirement benefit rules, 1986 did not contain any provision excluding any period of service like those contained in rule 17 of the orissa civil services pension rules, 1992. accordingly, the conditions as contained in orissa pension rules, 1977 or orissa civil service pension rules, 1992 cannot be applied to the non-government fully aided primary school teachers who retired before september 5, 1989. it is well settled that an administrative order or circular cannot run contrary to the provisions of the statutory rules.pradipta ray, j.1. as similar questions are involved in all these writ petitions, these were heard analogously and are being disposed of by this common judgment.2. the writ petitioners of these cases initially served as teachers in various primary schools which were being managed and administered by the district boards or local boards under the control of the district boards. the district boards and the local boards were abolished and from 1961 all the primary schools run by those bodies were placed under the management of the zilla parishad, from 1967 those schools were placed under the management of the panchayat samities. from september 5, 1989 all those primary schools were taken over by the state government and the serving teachers became direct government employees.3. there is, however, some dispute about the exact status and nature of the primary schools in which the writ petitioners started serving. while the petitioners claim that those primary schools were fully aided by the state government although those were being managed by the district boards and local boards, the state-opp. parties, however, dispute the same and state that those schools were not or could not be treated as schools fully aided by the state government.4. common grievance of the petitioners in all these writ petitions is that the services rendered by them in different primary schools managed by the district boards or local boards prior to april 1. 1964 are not being counted for the purpose of computing their pension or other retirement benefits. they have challenged a letter/circular no. rio/928633/ad february 24,1992 issued by the deputy secretary, department of education, government of orissa to the director of treasuries and inspection, government of orissa instructing that - 'the legal services of the primary school teachers for which they have contributed towards their c.p.f. only will account for the purpose of allowing retirement benefit'.5. it appears that the writ petitioners were governed by different regulations or rules regulating their services and retirement benefits at different points of time. initially the local boards which were managing the primary schools had their own provident fund system. although by notification dated april 20, 1957 orissa primary and basic school teachers (non-pensionable service) provident fund rules, 1957 were brought into force, those were not made applicable to the teachers of the primary schools managed by the local bodies which were under the provident fund system of the local bodies at that point of time [vide rule 3 (4)]. with retrospective effect from april 1, 1964 the orissa non-government primary school teachers' contributory provident fund - insurance - pension rules scheme, 1966 (tripple benefit scheme) was brought into force which was popularly known as the 'triple benefit scheme'. teachers of non-government schools, who were not above 30 years of age on april 1, 1964 were entitled to the benefits of the said scheme. however, under rule 3 of the triple benefit scheme it was specifically provided that the various provident fund rules as were applicable to ex-district board primary schools and directly aided primary schools immediately before april 1, 1964 would continue to apply to their cases. the different provident funds rules applicable to different categories of primary school teachers were mentioned in annexure-a to the said triple benefit scheme. item nos. 3 & 4 of the said annexure dealt with the teachers of ex- district board primary schools and teachers of directly aided primary schools respectively. under the said triple benefit scheme the teachers covered under the scheme were entitled to pension and gratuity besides provident and insurance benefit (vide rule 8). rule 10 (a) dealt with computation of length of qualifying service. the said rule 10 (a) is reproduced below :' 10 (a)- in computing the length of qualifying service all previous continuous service whether temporary, officiating or permanent either in one or more than one aided institution shall, subject to the provisions of rule 5, be taken into account. service rendered prior to attainment of the age of 18 years shall not be reckoned as qualifying service.'6. the orissa aided educational institutions employees retirement benefit rules, 1981 (in short 'retirement benefit rules, 1981) came into force on and from april 1, 1982. these retirement benefit rules, 1981 repealed all rules, instructions, orders, resolutions etc. which were in force immediately before commencement of the rules of 1981 (vide rule 13). rule 3 dealt with the applicability of the rules of 1981. rule 3 is quoted below :'3. application of the rules - these rules shall apply to the teaching and non-teaching staff of all recognised non-government colleges, high schools, senior basic schools and m.e. schools which come under the direct payment system and all non-government primary schools including sanskrit tols and junior basic schools fully aided by government in education and youth services department directly or through panchayat samitis constituted under the orissa panchayat samiti act, 1959 or through a notified area council or municipality constituted under the orissa municipal act, 1950.'rule 6(1) dealt with computation of the length of qualifying service for the purpose of retirement benefit. the said rule is quoted below :'6. (1)- in computing the length of qualifying service of an employee retiring on or after the 1st of april, 1982, all previous services except those rendered prior to his attaining the age of eighteen years, whether temporary, officiating or permanent either in one or more than one recognised educational institutions, shall, subject to the conditions specified in sub-rules (2), (3), (4) and (5) be taken into account for the purpose of retirement benefits under these rules.'7. with effect from 1st of april, 1985, 1981 rules were replaced by orissa aided educational institutions (non-govt. fully aided primary school teachers') retirement benefit rules, 1986 (in short, '1986 rules'). these 1986 rules were applicable to the teachers of the non-govt. primary schools fully aided by government in education and youth services department directly or through a panchayat samiti. rule 6(1) of 1986 rules dealt with the computation of length of qualifying service. the said rule is quoted below :'6(1) - in computing the length of qualifying service of an employee retiring on or after the 1st day of april, 1985, all previous services rendered, except those rendered prior to his attaining the age of eighteen years, whether temporary, officiating or permanent either in one or more than one institutions, shall, subject to the conditions specified in sub-rules (2), (3) and (4) be taken into account for the purpose of retirement benefit under these rules.'it would appear from the above 1986 rules that an employee covered by the said rules of 1986 retiring on or after april 1, 1985 shall be entitled to get the benefit of all previous services rendered in one or more than one institutions. the institution was defined in rule 2 (2) as a non- government primary school, which is recognised by and is receiving full aid from the state government. thus, all services whether temporary, officiating or permanent rendered in any non-govt. primary school receiving full aid from the state government would be taken into account for the purpose of retirement benefits.8. as pointed out earlier, from september 5, 1989 all these non- government primary schools were taken over by the state government and the employees became direct government employees. retirement benefits of the government servants at that point of time i.e. in 1989 were governed by the orissa pension rules, 1977. the said orissa pension rules, 1977 were in force till march 31, 1992. from april 1, 1992 the said 1977 rules were replaced by orissa civil services (pension) rules, 1992.9. it appears that teachers serving in non-govt. fully aided primary schools on april 1, 1985 and retiring before september 5. 1989 were governed by the 1986 rules. in fact the education department by its office memorandum dated may 28, 1991 clarified that position in paragraph 4 of the memorandum, which is quoted below :'after careful consideration on the above points government have been pleased to decide that (i) the teachers of primary schools will be guided by the sets of rules, i.e. till 5.9.1989, they will be guided by the orissa aided educational institutions (non-government fully aided primary school teachers) retirement benefit rules, 1986 and from 5.9.1989 they will be guided by the orissa pension rules, 1977 till their date of retirement.'10. rule 17 of the orissa civil service pension rules, 1992 deals with counting of ex-district board service. rule 17 is as follows :'17. counting of ex-district board service - service rendered by employees of ex-district boards/ex-local boards, irrespective of the fact whether they came over to government service prior to the date of abolition or were absorbed in government service prior to the date of abolition or were absorbed in government service due to the abolition of the district boards/local boards, qualifies for pension subject to the following conditions namely :(i) the period of the service during which the employee did not subscribe to the contributory provident fund, even though under the rules of the ex-district board/ex-local board he was eligible or ineligible to subscribe, shall not count for pension.(ii) whether the employee has withdrawn his accumulation in contributory provident fund along with the employer's share of contribution in respect of any spell of service, such spell of service shall not count for pension unless he has refunded to the state government the employer's contribution received by him.'11. it appears that most of the writ petitioners excepting-only a few retired between april 1, 1985 and september 5, 1989. all those writ petitioners who retired on or after april 1, 1985 and before september 5, 1989 were governed by the retirement benefit rules, 1986. those, who retired after september 5, 1989 of course retired as govt. employees and were governed by the orissa pension rules, 1977 till march 31, 1992 and thereafter by orissa civil service pension rules, 1992. the retirement benefit rules, 1986 did not contain any provision excluding any period of service like those contained in rule 17 of the orissa civil services pension rules, 1992. accordingly, the conditions as contained in orissa pension rules, 1977 or orissa civil service pension rules, 1992 cannot be applied to the non-government fully aided primary school teachers who retired before september 5, 1989. it is well settled that an administrative order or circular cannot run contrary to the provisions of the statutory rules.12. on careful consideration and analysis of the provisions of different rules and regulations as stated herein before, we are of the view that :(a) the writ petitioners, who retired on or after april 1, 1982 and before april 1, 1986 were governed by the orissa aided educational institutions employees retirement benefit rules, 1981 and their length of qualifying service for the purpose of retirement benefits are to be computed in accordance with rule 6 thereof.(b) those teachers of non-govt. fully aided primary schools who retired on or after april 1, 1985 and before september 5, 1989 were governed by the orissa educational institutions non-government fully aided primary school teachers retirement benefit rules, 1986 and their length of qualifying service is to be computed in accordance with rule 6 of the aforesaid rules, 1986. the restrictions contained in orissa pension rules, 1977 or orissa civil services pension rules, 1992 regarding computation of the ex-district board services cannot be made applicable to those writ petitioners who were governed by the retirement benefit rules, 1981 or the retirement benefit rules, 1986 at the time of their retirement. the impugned circular dated february 27, 1992 being ve/r10/92-8633/e dated february 27, 1992 cannot be made applicable to those writ petitioners governed by retirement benefit rules, 1981 or 1986.13. whether the institutions in which the writ petitioners served during their period of service were fully aided by the state government is a question of fact which the concerned authorities are required to determine on the basis of the relevant materials. as already stated there is some dispute regarding the status of those schools and the writ petitioners will have to satisfy the concerned authorities that the services rendered by them were in institutions fully aided by the state government.14. for the foregoing reasons, we dispose of the writ petitions by directing the opp. parties to redetermine the pension amount of those writ petitioners who retired on or after april 1, 1982 and before september 5, 1989 in the light of the observations made in this judgment. in order to determine the status of the primary schools where the writ petitioners served the authorities may, if necessary, give an opportunity of hearing to the individual writ petitioner before taking any final decision. as most of the writ petitioners are very old, the authorities are directed to take prompt decision preferably within four months of the communication of this order.15. this year is being observed as the year for the senior citizens. all the writ petitioners are senior citizens and they served the cause of education under most unfavourable service conditions. we accordingly, hope and also desire that the authorities concerned would make sincere end eavour to grant such relief as are admissible to the writ petitioners.r.k. patra, j.16. i agree.