NILAKANTHA MISHRA Vs. STATE OF ORISSA AND ORS.

JUDGEMENT

(1.) THE Petitioner was recruited into Bihar and Orissa Government service in May 1926 as a temporary Subordinate Engineer and continued in various capacities until he was placed under suspension on 1 -11 -1954 pending a proceeding referred to the Administrative Tribunal for disposal on allegations of misconduct. The Petitioner 's superannuation became due, but his service was continued for some time obviously with a view to completing the proceeding then pending against him. Under the relevant rules the final orders in a proceeding enquired into by the Administrative Tribunal can only be passed by the Governor. As it appears, no such orders were ever passed. On 8 -11 -1959, the Petitioner ultimately retired. After his retirement the Chief Engineer passed an order saying that the period of suspension from 1 -11 -1954 until his retirement shall be treated as suspension, and after giving a notice to the Petitioner he reduced his pension by 50 percent long after the Petitioner 's superannuation. The Petitioner challenges both these orders as being without jurisdiction. In the counter affidavit attempts have been made to justify both the actions.

(2.) THE learned Government Advocate raises the question of delay and laches. There is no doubt that there has been some amount of delay on the part of the Petitioner in coming before this Court. Law has now been settled that there is no period of limitation as such prescribed for filing of a writ application though ordinarily the limitation for a civil action would be the time limit beyond which a Petitioner would not be allowed to invoke the extraordinary jurisdiction of the Court. There have been several instances, however, where taking the special facts of a particular case into consideration and the explanations of the Petitioner as to why he had not approached the Court earlier the principle indicated above has been overlooked and relief has been granted. In R.S. Deodhar v. State of Maharashtra : A.I.R. 1974 S.C. 259, the Constitution Bench of the Supreme Court overruling such an objection said:

(3.) Next is the question of reducing the pension of the Petitioner by 50 per cent. The Supreme Court has now clearly laid down that ' pension is property and a Government servant who has put in the specified period of service becomes entitled to pension unless pension full or partial can be withheld under the rules. Deokinandan Prasad v. State of Bihar and Ors., (1971) 2 S.C.W.R. 57. Recently we had occasion to examine in the case of Nilakantha Misra v. State of Orissa O.J.C. No. 300 of 1972 -D/20 -12 -1973, this point and held that the relevant rule (C.S.R. 470(b)) has no application to the pre -1936 entrants and after the Petitioner has superannuated there would be no occasion to take proceedings for reduction of the pension. The impugned order of 1963 is long after the superannuation. As already indicated, the Petitioner is a pre -1936 entrant into service and to him for the reasons indicated in the said decision the rule does not apply. Therefore, the proceeding of the Chief Engineer by which the Petitioner 's pension was reduced by 50 percent is an act without jurisdiction and cannot be sustained. That order must also get quashed.