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2002 DIGILAW 708 (ORI)

DHANANJAY MISHRA v. STATE OF ORISSA

2002-10-30

PRADIP MOHANTY, R.K.PATRA

body2002
JUDGMENT : Pradip Mohanty, J. - The Petitioner in this writ petition seeks to assail the action of the Divisional Manager. Ferro Alloys Plant. Bamnipal under the Tata iron and Steel Company Limited in Dunging his service to an end in the guise of his premature retirement. 2. Briefly stated, case of the Petitioner is that he was appointed as a Chemist under the Orissa Mining Corporation (Alloys) Limited. Bamnipal on 29.2.1985. While he was serving as such, the State Government on 24.9.1991 promulgated Ordinance bearing No. 8 of 1991 for acquisition and transfer of the Charge Chrome Division of said Mining Corporation. As per the said Ordinance, the right, title and interest of the Company in relation to Charge Chrome Division were transferred and vested with the Government of Orissa. By notification dated 27.9.1991, in exercise of powers conferred by Sub-sections (i) and (ii) of Section 6 of the Orissa Mining Corporation Ltd. (Acquisition and Transfer of Charge Chrome Division) Ordinance. 1991, the State Government directed that the right, title and interest of the Charge Chrome Division of the Orissa Mining Corporation Ltd. shall vest in the Tata iron and Steel Company Ltd. (for short, the 'TISCO'). The said notification was published in the Official Gazette wherein it was made clear that alt the employees of the Charge Chrome Division shall be taken over by the transferee without interruption of services on their existing terms and conditions. The Petitioner asserts that he has a brilliant service record and has been granted several increments as well as certificates throughout his service career by the management in recognition of his outstanding performance. While this was the position, in the year 1997-98 ho was issued with a letter intimating that his performance for the year 1997-98 was not satisfactory. Thereafter, the increment for the next year i.e. 1999 was stopped. The Petitioner being aggrieved by such action of the management made several representations to opposite party No. 3. He suffered from rheumatic heart disease and had undergone an open heart surgery for replacement of Matral Valve in July. 1995. According to the Petitioner, on 12.10.1999 while he was working in the general Shift, he felt uneasiness and physical discomfort. The Petitioner being aggrieved by such action of the management made several representations to opposite party No. 3. He suffered from rheumatic heart disease and had undergone an open heart surgery for replacement of Matral Valve in July. 1995. According to the Petitioner, on 12.10.1999 while he was working in the general Shift, he felt uneasiness and physical discomfort. Since his condition deteriorated, he was forced to write a note on the direction of opposite parties 2 and 3 and he was served with the letter dated 11.10.1999 stating acceptance of his purported application for premature retirement. On the same day he was taken to E.S.I, doctor who referred him immediately to S.C.B. Medical College & Hospital, Cuttack. He was advised complete bed rest for seven days. On 13.11.1999 he went to join in his job, but he was not allowed for which he sent a joining report by post. On 14.12.1999 the TISCO authorities issued a letter expressing regret to consider his joining report on the plea that he had already retired prematurely. The Petitioner made a representation to the State Government on 18.1.2000 and the same was forwarded by the TISCO authorities on 30.1.2000. 3. The opposite party No. 1, the State of Orissa in its counter has stated that as per the Ordinance No. 8 of 1991 for public interest the Charge Chrome Division was sold to M/s. TISCO. As per the said Ordinance, all the right, title and interest of the company in relation to Charge Chrome Division vested with the Orissa Government were transferred. Subsequently, by Anr. notification dated 27.9.1991, in exercise of powers conferred by Sub-clauses (i) and (ii) of Section 6 of the Orissa Mining Corporation (Acquisition and Transfer of Charge Chrome Division) Ordinance. 1991, the same was transferred to M/s. TISCO. In the said Ordinance, all the rights and liabilities of the State Government in relation to said Charge Chrome Division shall be deemed to have become the rights and liabilities of M/s. TISCO. Opposite parties 2 and 3 in their counter replied that opposite party No. 2 is an existing company under the provisions of the Companies Act. 1956. In the said Ordinance, all the rights and liabilities of the State Government in relation to said Charge Chrome Division shall be deemed to have become the rights and liabilities of M/s. TISCO. Opposite parties 2 and 3 in their counter replied that opposite party No. 2 is an existing company under the provisions of the Companies Act. 1956. Therefore, the writ petition is not maintainable against it as it is not amenable to writ jurisdiction under Article 226 of the Constitution of India, and the said opposite parties are not "State" or "Authority" within the meaning of Article 12 of the Constitution. According to opposite party No. 2 it does not get any financial assistance from the State to meet its expenditure. Opposite parties 2 and 3 also admitted that they entered into agreement with the State Government whereunder the modalities of transfer of the Charge Chrome Division stood vested, with the State Government and the same was subsequently transferred by the agreement. 4. Shri Mishra. learned Counsel for the Petitioner, submitted that never did the Petitioner apply for premature retirement and. therefore, the action of opposite party Nos. 2 are 3 in terminating his services on purported ground of premature retirement is iliegal. There had been denial of natural justice and far play while bringing the services of the Petitioner to an end Shri Parija appearing for opposite party Nos. 2 and 3 on the other nana contended that the writ petition is not maintainable against TISCO According to him TISCO is a company registered under the Companies Act and. as such, is not amenable to writ jurisdiction. He further submitted that the Petitioner had no locus penetentiae to withdraw his offer of retirement after it was accepted. 5. In view of the rival contentions raised by the parties in the case, it would be appropriate if we first consider if the writ petition is maintainable against TISCO. The circumstances under which the relationship between the Petitioner and TISCO as employee and employer respectively has come to be established may be briefly noticed. Admittedly the Petitioner was working as a Chemist in the Charge Chrome Division of the Orissa Mining Corporation (Alloys) Limited which as a subsidiary of the Orissa Mining Corporation Limited, a Government of Orissa Undertaking. The circumstances under which the relationship between the Petitioner and TISCO as employee and employer respectively has come to be established may be briefly noticed. Admittedly the Petitioner was working as a Chemist in the Charge Chrome Division of the Orissa Mining Corporation (Alloys) Limited which as a subsidiary of the Orissa Mining Corporation Limited, a Government of Orissa Undertaking. There is no dispute that the Orissa Mining Corporation (Alloys) Limited merged with the Orissa Mining Corporation Limited by order No. S.O. 562(E) dated 30.8.1991 issued by the Department of Company Affairs of the Government of India and thereafter became the Charge Chrome Division of the Orissa Mining Corporation Ltd. which is an authority within the meaning of Article 12 of the Constitution and as such, is amenable to the writ jurisdiction. By Orissa Ordinance No. 8 of 1991, i.e. The Orissa Mining Corporation Limited (Acquisition and Transfer of Charge Chrome Division) Ordinance. 1991, the right, title and interest of the Orissa Mining Corporation (Alloys) Limited (Charge Chrome Division) were acquired by the Government of Orissa whereby all the existing employees on the role of the company were brought under the control of the State Government. Clause 10 of the Ordinance reads as follows: 10. In the event of the State Government transferring the Charge Chrome Division of the Company to any other company, the Government shall safeguard the interest and the rights and privileges of the employees of the Charge Chrome Division of the Company which they had been enjoying immediately before the date of acquisition of such Division by the State Government u/s 3, in conformity with the existing law. Subsequently the State Government entered into an agreement with TISCO by virtue of which the aforesaid Charge Chrome Division came to be transferred to TISCO. As a consequence, the State Government in the Department of Steel and Mines in exercise of powers conferred by Sub-sections (1) and (2) of Section 6 of Orissa Ordinance No. 8 of 1991 issued notification dated 27.9.1991 (Annexure-2) which reads as follows: Now therefore in exercise of the powers conferred by Sub-sections (1) and (2) of Section 6 of the Orissa Mining Corporation Limited, (Acquisition and Transfer or Charge Chrome Division) Ordinance. 1991 (Orissa Ordinance No. 8 of 1991) the State Government do hereby direct that. 1991 (Orissa Ordinance No. 8 of 1991) the State Government do hereby direct that. (ii) the right title and interest of the Charge Chrome Division of the Orissa Mining Corporation Limited which is vested in the State Government u/s 3 of the said Ordinance shall, on the date of publicatior of this Notification, vest in the Tata iron and Steel Company Limited and (ii) on and from the date of publication of this notification, the said Tata Iron and Steel Company Limited would be deemed to have become the owner in relation to the said Charge Chrome Division of the Orissa Mining Corporation Limited consisting of the Charge Chrome Plant together with its assets and liabilities and all rights and liabilities of the State Government in relation to the said Charge Chrome Division shall be deemed to have become the rights and liabilities of Tata iron and Steel Company Limited who are hereby put in possession of the properties of the said Charge Chrome Division of the Orissa Mining Corporation Limited. By virtue of the aforesaid notification dated 27.9.1991, the Petitioner came under TISCO. Therefore, we are inclined to hold for the limited purpose of the employees of the Charge Chrome Plant of the erstwhile Orissa Mining Corporation (Alloys) Limited that TISCO would be an authority within the meaning of Article 12 of the Constitution and as such, the same is amenable to the writ jurisdiction. 6. Now coming to the facts of the Case. opposite party Nos. 2 and 3 claim that the Petitioner was prematurely retired from service under the order dated 11.10.1999 at Annexure-6. This decision prematurely retiring him from service was said to have been made by the Petitioner. Opposite party Nos. 2 and 3 have not produced any such application before us. On the contrary, the Petitioner in his rejoinder enclosed Annexure-14 which indicates that tie on 12.10.1999 informed the concerned authority that for personal reasons he wished to apply for premature retirement with immediate effect and his gratuity and other retiral benefits may be paid to him. This application is dated 12.10.1999 whereas the impugned order prematurely retiring the Petitioner is dated 11.10.1999. There is. therefore, some force in Shri Mishra's contention that there was no request made by the Petitioner en the basis of which the decision as communicated in the impugned letter dated 11.10.1999 could have been taken. This application is dated 12.10.1999 whereas the impugned order prematurely retiring the Petitioner is dated 11.10.1999. There is. therefore, some force in Shri Mishra's contention that there was no request made by the Petitioner en the basis of which the decision as communicated in the impugned letter dated 11.10.1999 could have been taken. The aforesaid finding recorded by us gets full corroboration from the letter dated 13.10.1999 at Annexure-8 written by the Petitioner to the Executive in-charge (FA & MD). in para-2 of Annexure-8, the Petitioner has written as follows: ... At about 10.00 a.m. I was served with a letter No. 2050 dated 11.10.99 signed by Vice-President and on opening the same. I was shocked to note the contents which related to approval of my purported application seeking premature retirement from services. it may be noted that in the aforesaid letter dated 13.10.1999 at Annexure-8 the Petitioner has asserted that because of his ill-health and ailment, he scribbled some letters (which he obviously meant Annexure-14 dated 12.10.1999) without knowing its consequence and he asserted that neither did he apply seeking premature retirement acting on sound mind and health nor did he intend to do so. It the letter dated 13.10.1999 at Annexure-8 is read as a whole, there can be no doubt that the Petitioner sought withdrawal of his purported prayer made in the letter dated 12.10.1999 for premature retirement. Admittedly no decision has been taken on Annexure-8. Therefore, for the reasons aforesaid, the impugned decision communicated in the letter dated 11.10.1999 prematurely retiring the Petitioner cannot be sustained in law. 7. What relief the Petitioner would be entitled to? From the facts and circumstances narrated above, it is evident that Petitioner is responsible for the entire mess. We are not inclined to direct for reinstatement of the Petitioner in service. We are not specifically making any observation in this regard because it would affect the prospect of any future employment elsewhere. It appears that he has made alternative prayer to extend him the Early Separation Scheme. The benefit of the said scheme has been extended to some officers belonging to the Petitioners category. Therefore, ends of justice would be met if opposite party Nos. 2 and 3 extend him the benefit of Early Separation Scheme as well as other normal retirement benefits. 8. The writ petition is accordingly disposed of. R.K. Patra, J. 9. I agree.