Counsel for the parties:

For the complainant: Self

For the O.P:   AGP,Kalahandi

                                                    JUDGMENT

                   The facts of the complaint  in brief is that  the complainant  is a retired Government Servant  who retired on 31.03.2018 and he is entitle to get his arrear salaries  under ORSP 2017. Before his retirement the complainant requested the Opposite Party No.1- Tahasildar  on  16.03.2018  for drawl and disbursement of his arrears salaries  within 29^th March,2018 as per Notification No.6062 dt.12.03.2018  of Finance Department, Odisha and as per the said notification  the arrear salary of retiring government servant shall be drawn and disbursed before 29.03.2018. But the Opp.Party No.2 did not take any steps  to put up the file in spite of order passed by the Opp.Party No.1  vide  Note sheet No.6 dt.29.03.018 for drawl and  disbursement of the claims  till 31.03.2018 and till date the claim of the complainant has not  been drawn and disbursed  for which the complainant  is facing much financial difficulties. Finding no other option the complainant took shelter of the Forum and prayed to direct the Opposite Parties  to  draw  and disabuse the arrear salary  due from 01.01.2016 onwards with 12% interest and award compensation of Rs.1,00,000/- for mental agony and harassment .Hence this complaint.

                    On being noticed, the Opposite Party  No.1 & 2 appeared through AGP, Kalahandi and  filed  written version separately. It is submitted by the Opposite Party No.1 that  the complainant was working as Head Clerk in the office of the Opp.Party No.1 and retired on 31.03.208 from government service. During his incumbency, the complainant  was acting as Pay Fixation Officer under ORSP Rules  declared by the Government of Odisha vide G.O. No.28046 dt.22.09.2017 . The complainant  being  the Acting Pay Fixation Officer kept  himself silent  and did not  attend his job  for processing the pay fixation of the staff including himself and the process was  unattended by the complainant  in time.  However,  consequent upon  due advise and instruction of the Opp.Party No.1 the complainant  just before few days of his retirement on 31.03.2018 processed the  pay fixation horridly and obtained the signature of the Opp.Party No.1 and  submitted to the Sub-Collector ,Bhawanipatna for final approval vide letter No.1436 dt.27.03.2018.  The Sub-Collector, Bhawanipatna in adherence to principles of pay fixation, objected the statement of pay fixation schedule  on the ground of improper maintenance of service book which is not in accordance with the accuracy of Pay Acquaintance Roll of the staff and then the complainant retired from service on 31.03.2018 without complying the objection raised by the Sub-Collector.

                   It is further submitted by the Opposite Party No.1 that  in the meantime the objections raised by the Sub-Collector  have already been complied  by the in-charge dealing assistant  i.e. Opp.Party NO.2 and the same has been approved by the Sub-Collector, Bhawanipatna. The budget provision  for 2018-19  with its requirement have been submitted to Government for placement of funds and after receipt of funds from the government the amount will be drawn and paid to the staff as well as to the complainant. In view of the above  it is clear that the Opposite Party No.1  has no intention for non drawl and payment of arrear salary of the complainant and hence the complaint petition is liable to be dismissed.

                   It is submitted by the Opposite Party No.2 that  he is  working as a Dealing Assistant of Establishment Section of Kalahandi Tahasil at Bhawanipatna  as per order of the Tahasildar, Kalahandi Tahasil and he is supposed to  act as per the orders passed by the Head of the Office  and as such he is not responsible for any delay in drawl of any arrear salary under ORSP Rule 2017 and as such  the  allegation against the Opp.Party No.2  is not justified.  The petition filed by the complainant is not maintainable as the allegation is not coming under deficiency service as per the letter of Government of Ministry of Communication and Information Technology vide letter dt.5^th/6^th September,2012 and as per the decision of National Commission, New Delhi vided Revision Petition No.4550 of 2010.  Hence prayed  to dismiss the complaint petition  filed by the complainant.

                                                      FINDINGS

                    Heard both the parties on the merit of the case.  The main allegation of the complainant is that  as per the Government Notification No.6062 dt.12.03.2018  of Finance Department, Odisha   the arrear salary of retiring government servant shall be drawn and disbursed before 29.03.2018 but the Opp.Party No.2 did not take any steps  to put up the file and till date the arrear dues  of the complainant has not drawn and disbursed to the complainant.  On the other hand the Opp.Party No.1 submitted that the complainant  being  the Acting Pay Fixation Officer kept  himself silent  and did not  attend his job  for processing the pay fixation of the staff including himself and the process was  unattended by the complainant  in time and  just before few days of his retirement on 31.03.2018  he processed the  pay fixation horridly and obtained the signature of the Opp.Party No.1 and  submitted to the Sub-Collector ,Bhawanipatna for final approval but the Sub-Collector, Bhawanipatna in adherence to principles of pay fixation, objected the statement of pay fixation schedule  on the ground of improper maintenance of service book. It is further submitted by the Opp.Party No.1 that the budget provision  for 2018-19 for allotment of funds   with its requirement have been submitted to Government  and after receipt of funds from the government the amount will be drawn  to be paid to  the complainant. The complainant has alleged that the Opp.Parties with ulterior motive and to harass the complainant  intentionally  did not drawn the claim of the complainant and  surrendered the allotment and to substantiate his allegation he has filed one copy of surrender statement vide Memo No.999 dt.20.03.2018  signed by the Tahasildar, Kalahandi. We perused the said letter and found that huge amount have been surrendered which was allotted by the Government  for the financial year 2017-18 and the reason behind the surrender is best known to the Opp.Party No.1 & 2.

                   The Opposite Party No.1 has contended in his written version that the complainant was acting as a Pay Fixation Officer of the Establishment of Tahasildar, Bhawanipatna under ORSP Rules  declared by the Government of Odisha vide G.O. No.28046 dt.22.09.2017  but in this regard neither  the Opp.Party No.1 nor Opp.Party No.2  has filed any order passed which shows that the complainant has been appointed as Pay Fixation Officer.

                    The Opposite Party No.1 vehemently  argued and submitted that the complainant  just before few days of his retirement on 31.03.2018 processed the  pay fixation horridly and obtained the signature of the Opp.Party No.1 and  submitted to the Sub-Collector ,Bhawanipatna for final approval vide letter No.1436 dt.27.03.2018 and   the Sub-Collector, Bhawanipatna returned the same with objection. But on perusal of documents  it reveals that the Opp.Party No.1 has sent the pay fixation statement along with service book of the staff  and complainant  to the sub-collector, Bhawanipatna  vide letter No.941 dt.16.03.2018 to which the Sub-Collector, Bhawanipatna returned with objection  to the Tahasildar, Bhawanipatna i.e. Op.No.1 vide letter No.1436 dt.24.03.2018 where in the said letter it has been marked by the Opp.Party 1 as “Estt.Comply” which was marked to Opp.Party No.2 to comply but the Opp.Party No.2 remained silent till 31.03.2018  and in the meantime the complainant was retired. From the above it clearly shows the callous attitude and negligence on the part of the Opp.Party No.2 and it  is  a clear deficiency in service. 

                   The Opp.Party No.2 also liable for not intimating regarding any reason to comply the defect noted down by the Sub-Collector so as to enable the retired employees to get their arrear  dues within the stipulated time. The Opp. No.1 also has  overlooked an lightly taken the Government Notification no.6062 dt.17.03.2018 to disburse the arrear salary of the retired Govt. servant by 29.03.2018.

                   The Opp.Party No.1 has asserted that while the complainant was in charge of establishment he delayed in sending pay fixation detail, file in time and  send the same just prior to his retirement haphazardly. The Opp.Party No.1 has also taken the plea that due to negligence of duty and disobedience of official order and other allegation  departmental proceeding was initiated against the complainant by Collector, Kalahandi and draft charges had been framed against the complainant as per Orissa Civil Services (Classification Control  and Appeal)Rule 1962. We have nothing to say regarding the departmental proceeding as the same will be decided  in its own course. From the available documents  it is seen that the departmental proceeding has initiated  but  no action what so ever has been initiated against the complainant  further, no stand have been taken by the Opp.Parties that  the arrear salary had not been drawn  due to the departmental proceedings. So the  only point  for consideration as discussed above  whether the arrear salary could not been paid to the complainant prior to his retirement due to negligence of the Ops.

                   As per letter No.6062 dt. 12.05.2018  of the Government of Orissa in Finance Department the complainant and others are entitle to get 40% arrear salary  arising out of revision of pay  order ORSP Rule 2017 prior to his retirement. It is the duty of the Opp.Party  to comply the same. In the instant case  on  the application dt.16.03.2018  the Opp.Party No.1 has ordered in the note sheet in the personal file for  drawl of arrear salary   but Opp.Party No.2 did not place the file before the Opp.Party No.1 for necessary orders regarding drawl of arrear salary in question which the complainant was deprived up . The allegation of the complainant is that instead of drawl of arrear salary the Opp.Party surrendered the salary  which were allotted by the Government for salary purpose. On the other hand the Ops took the stand that the allotted salary  which was surrendered was not  for the purpose of arrear pay as per ORSP Rule 2017. The Ops further argued that  most of  pension benefit after retirement had been drawn and disbursed to the complainant but the arrear  arising out of pay fixation as per ORSP 2017 could not be drawn prior to the retirement of the complainant due to non receipt of allotment from 1.4.2018.The Ops further contended that  the allotment of salary which was surrendered was not  meant for the purpose of payment towards arrear under ORSP Rule 2017. But the allegation of the complainant is that  the OP No2 taking advantage of his position drew his own arrear salary  along with another employee violating the govt. order to pay the due of the retired employee in priority basis. To substantiate his allegations the  complainant has filed copies of  drawl particulars  of Kalahandi District Treasury. On perusal of the above documents it  reveals that  an amount of Rs. 46,229/-in the name of Sukanta Kumar Mahapatra  and Rs.38,219/- in the name of Nabin Karmakar vide Bill No.148/17-18,Voucher No.2029254 dt.27.03.2018 has been drawn and disbursed to the respective account of the above persons. Out of the above two names one is Opp.Party No.2. From which it  clearly shows gross negligence and misuse of position entrusted to the Op No.2. We also perused the letter No.6062 dt.12.03.2018 of Finance Department, Govt. of Odisha wherein the Finance Department has specifically directed the DDOs of the establishment  to draw the arrear salary of  40% and disburse by 29.03.2018. But the OP No.1 being the DDOs did not obey the order of the Finance Department  and the OP No.2 being the Dealing Assistant intentionally drawn his own salary and surrendered the rest amount.

                   The opposite parties   further averred that as the complaint relates to the service  matter , the case does not come within the purview of the C.P.Act,1986 and the complainant is  not a consumer and the complaint  is liable to be dismissed.  But it is not disputed by the Ops that the complainant on his superannuation became entitle for retired benefit and arrear salary as claimed by the complainant.  Arrear salary is the benefit which is  to be paid to the employee in recognition for  his continuous  service rendered by him. The complainant was an employee and the retired benefit are to be paid to an employee  for rendering service. Non payment  of arrear salary after retirement of the employee amounts to deficiency of service and the complainant can file consumer complaint under C.P.Act,1986 if he establishes that the Ops having availed service from the complainant. As such the complaint is maintainable. The non fixation of pay and non payment of arrear salary in time to  the  complainant by the Opposite Parties  and surrender of available funds  to the government  without  disbursing to the retired employee is a gross negligence on the part of the Opposite Parties.

                   Taking into consideration of the case  of the complainant, documents filed by him  and written version  of the Ops, we allow the case of the complainant in part and  hence it is ordered.

                                      ORDER

                   In view of the aforesaid findings, the Opp.Parties are   directed to take immediate  steps to obtain the allotment within 15 days of  receipt of the order. The OP No.2 who had deliberately harassed the complainant to get his arrear in time and availed  the arrear salary himself is found deficiency in service and he is  directed to pay compensation of Rs.5000/- towards mental agony, pecuniary loss of the complainant along with litigation expenses of Rs.2,000/-. If the Ops failed to comply the order  for taking step to obtain the allotment  as above, the Ops shall be jointly liable  for interest  on the arrear dues @ 9%  from the date 29.03.2018. The above order is to be complied   by the Opposite Party No. 1 & 2  within 30 days of receipt of this order, failing which proceeding U/s 27 of the C.P.Act shall be initiated.

                   Pronounced in open forum today on this 29th day of December,2018 under the seal and signature of this forum.

                   Member                                                        President

Documents relied upon:

By the complainant:

1. Copy of  letter No.1117 dt.31.03.2018
2. Copy of  letter to the Tahasildar, Kalahandi by the complainant dt.16.03.2018
3. Copy of  letter No.606 dt.12.03.2018 of Finance Department, Govt. of Odisha.
4. Copy of  Note Sheet dt.7.03.2018
5. Copy of  Case Laws
6. Copy of Bill Wise Beneficiary Payment Details & 
7. Copy of  Bill details of Kalahandi District Treasury
8. Copy of  Aadhar Card of the complainant
9. Copy of letter No.1127 dt.31.05.2018
10. Copy of application dt.5.07.2018  of the complainant.
11. Copy of letter No.941 dt.16.03.2019 of Tahasildar, Kalahandi.
12. Copy of letter No.1436 dt. 4.03.2018 of Sub-Collector, Kalahandi.
13. Copy of Memo No.999 dt.20.03.2018 of Tahasildar ,Kalahandi.
14. Copy of  order  in C.C. No. 7/2014 of DCDRF, Boudh.
15. Copy of Appeal No.536 /2017 of SCDRC, Cuttack.

By the Opp.Party:

1. Copy of  L.No.4551/10/580 dt.5.09.2012
2. Copy of Drawl particulars of Sri P.K.Challan, Ex-Head Clerk(Retd)
3. Copy of Form for fixation of pay under ORSP,2017 of employees of Tahasil Office, Kalahandi.

                                                                                President