Research › Search › Judgment

Orissa High Court · body

2009 DIGILAW 903 (ORI)

PULIN BIHARI MOHANTY v. CHAIRMAN-CUM-MANAGING DIRECTOR, ORISSA FOREST DEVELOP. CORP. LTD.

2009-11-19

A.S.NAIDU, B.N.MAHAPATRA

body2009
JUDGMENT : A.S. Naidu, J. - The Petitioner was an employee of Orissa Forest Development Corporation (hereinafter called as "Corporation"). While working as Supervisor he retired from service on attaining the age of superannuation w.e.f. 28.2.2006. During the last phase of his service career, it is alleged, he was transferred indiscriminately in contravention of Rules thereby causing great prejudice. Consequently he had to approach this Court on several occasions. To appreciate the facts it would be prudent to probe into the background of the case, which is stated in brief hereunder: Admittedly in the year 1978, the Petitioner was appointed as an Assistant Supervisor in the Corporation & was posted at Boud Kendu Leaf Division. In the year 1992 he was promoted as Sectional Supervisor. In the year 1999 he was transferred from Boud Kendu Leaf Division to Bhubaneswar Plantation Division. The real problem commenced in the year 2003 in as much as on 30.7.2003 the Petitioner was transferred from Bhubaneswar Plantation Division to Nayagarh Budha Budhiani Plantation Section. He filed a representation before the concerned authorities requesting them to cancel the order of transfer on his own health ground & so also his wife's health ground. On being satisfied with the genuineness of such representation the Opposite Party-authorities were pleased to modify the order & transferred him to Ratanpur Plantation Section with headquarter at Gangapada under Chandaka Plantation Sub-Division by Order Dated 23.8.2003 (Annexure-2). 2. The Petitioner once again submitted a representation to the Opposite Party-authorities with a prayer to allow him to continue at Bhubaneswar Plantation Division as he was a Cardiac patient & no medical facilities are available at the place to which he was transferred. The authorities, however, did not consider the said representation & maintained stony silence. 3. Being aggrieved the Petitioner approached this Court in W.P.(C) No. 10544 of 2003 assailing the order of transfer dated 23.8.2003 (Annexure-2). The said Writ Petition was disposed of on 20.1.2004 with a direction to the Opposite Party-authorities to consider the representation filed by the Petitioner & to take an appropriate decision in the matter. It is alleged that being enraged, the authorities without considering the representation in proper perspective by a bald Order Dated 09.2.2004 (Annexure-3) rejected the same. 4. The Petitioner again approached this Court in W.P.(C) No. 2830 of 2004 with a prayer to quash the Order Dated 09.2.2004 (Annexure-3). It is alleged that being enraged, the authorities without considering the representation in proper perspective by a bald Order Dated 09.2.2004 (Annexure-3) rejected the same. 4. The Petitioner again approached this Court in W.P.(C) No. 2830 of 2004 with a prayer to quash the Order Dated 09.2.2004 (Annexure-3). During pendency of the said Writ Petition, Opposite Party No. 1, it is averred, once again transferred the Petitioner from Bhubaneswar (C) Division to Boudh (C-KL) Division vide Order Dated 07.6.2004 (Annexure-4). The Petitioner was relieved by the said order & was directed to move without waiting for any substitute. 5. The Petitioner once again filed a representation on 11.6.2004 before Opposite Party No. 1 with a prayer to allow him to continue at Bhubaneswar for some more time specially on the ground of his ill health. No orders having been passed on the said representation the Petitioner again approached this Court in W.P.(C) No. 6347 of 2004 assailing the transfer Order Dated 07.6.2004 (Annexure-4). The said Writ Petition was disposed of by this Court on 29.6.2004 directing Opposite Party No. 1 to consider the representation filed by the Petitioner & to pass appropriate order. 6. After receipt of the Order Dated 29.6.2004 the Chairman-cum- Managing Director-Opposite Party No. 1 by a reasoned Order Dated 07,10.2004 (Annexure-6) cancelled the order of transfer of the Petitioner to Bodh (C-KL) Division but then revived the earlier order of transfer of the Petitioner from Bhubaneswar Plantation Division to Ratnapur Plantation Section with headquarter at Gangapada under Chandaka Sub Division & the Petitioner was directed to join there at an early date. The said order was challenged by the Petitioner before this Court in W.P.(C) No. 5105 of 2005. This Court by Order Dated 02.6.2005 was pleased to issue notice to the Opposite Parties & directed that the Petitioner would be allowed to continue at Bhubaneswar Plantation Division till the next date. By virtue of the aforesaid interim order, it is submitted that the Petitioner was continuing at Bhubaneswar Plantation Division & retired from service on attaining the age of superannuation w.e.f. 28.2.2006. 7. By virtue of the aforesaid interim order, it is submitted that the Petitioner was continuing at Bhubaneswar Plantation Division & retired from service on attaining the age of superannuation w.e.f. 28.2.2006. 7. According to the Petitioner though he has retired from service, unfortunately the Opposite Party-authorities did not sanction his arrear salary, gratuity, pension, medical allowances, provident fund etc & unilaterally by Order Dated 13.9.2006 (Annexure-8) observed that the Petitioner is granted 920 days leave without pay for the period from 24.8.2003 to 28.2.2006 in the principles of "no work no pay" due to his unauthorized absence from duty. The Petitioner has filed this Writ Petition with a prayer to quash the Order Dated 13.9.2006 (Annexure-8) & also to direct the Opposite Party-authorities to disburse the dues like gratuity, commutation on medical grounds, leave on due, salary from 24.8.2003 to 28.2.2006, house rent, medical allowances, provident fund benefits etc. as more fully described in paragraph-14 of the Writ Petition. 8. After receiving the Rule a counter affidavit has been filed by Opposite Parties. Most of the factual aspects remained undisputed but then, it is averred that before communication of the Order Dated 02.6.2005 passed in W.P.(C) No. 5105 of 2005 the Petitioner was already relieved from the Divisional Office on 22.8.2003, thus there was no scope to allow him to continue at Bhubaneswar Division as per the said interim order. So far as payment of retirement dues are concerned it is stated that no due certificates from the places of earlier posting of the Petitioner were called from & on receipt of the same the amounts legally payable to the Petitioner shall be disbursed. Thus no malice whatsoever can be attributed to the Opposite Parties. 9. The Petitioner filed a rejoinder to the counter affidavit mainly taking the stand that he was never relieved from Bhubaneswar Plantation Division, on the other hand he was not permitted to discharge his duties in spite of the specific Order Dated 02.6.2005 passed by this Court in W.P.(C) No. 5105 of 2005 directing that the Petitioner would be allowed to continue at Bhubaneswar Plantation Division till the next date & as such the unilateral decision of the Opposite Parties vide Annexure-8 sanctioning 920 days leave without pay was unjustified. 10. In course of hearing Mr. 10. In course of hearing Mr. Panigrahi, Learned Counsel for the Petitioner tried his level best to satisfy this Court that the Opposite Parties were all along vindictive against the Petitioner & they had violated the transfer policy with an oblique motive of harassing the Petitioner & transferred him indiscriminately from one place to the other in close proximity that too during the fag end of his service. It is stated that even they have not hesitated to flout the specific order passed by this Court & it is a clear case where the Opposite Pany-authorities should be proceed against for committing Contempt of this Court. Drawing attention to the Order Dated 02.6.2005 passed in W.P.(C) No. 5105 of 2005, Mr. Panigrahi submitted that this Court had directed that the Petitioner would be allowed to continue at Bhubaneswar Planation Division till the next date. The said order was subsequently continued & was not varied. Copy of the said order was duly served on the Opposite Party-authorities. In spite of the said fact the period from 24.8.2003 to 28.2.2006 (when the Petitioner retired on attaining the age of superannuation) was unilaterally treated as leave without pay on the ground of 'no work no pay' According to Mr. Panigrahi the Petitioner was very much present in the office on each working day but if he was not assigned any duties, no laches whatsoever can be attributed to him. On the other hand as the Opp. Parties prevented the Petitioner from discharging his duties, a direction should be issued to pay the entire salary of the Petitioner without any deduction. 11. Mr. S.K. Pattnaik, Learned Counsel for the Corporation on the other hand strenuously took this Court through the pleadings of the Writ Petition, counter affidavit & rejoinder affidavit as well as the documents annexed to the same. According to him the Petitioner all along tried to overreach the orders of transfer passed by the authorities. Transfer being an incident of service & as the Petitioner was transferred in the routine administration course along with several other employees no malice should be attributed to the Opposite Parties. It is further submitted that the Petitioner without complying with the order of transfer filed Writ Petitions one after the other before this Court assailing the orders of transfer. Transfer being an incident of service & as the Petitioner was transferred in the routine administration course along with several other employees no malice should be attributed to the Opposite Parties. It is further submitted that the Petitioner without complying with the order of transfer filed Writ Petitions one after the other before this Court assailing the orders of transfer. This Court, however, did not quash the transfer order in any of the cases & disposed of the same granting liberty to the Petitioner to approach the authorities. In spite of such orders the Petitioner did not join at his new place of posting. According to Mr. Pattnaik the Petitioner was relieved from Bhubaneswar Plantation Division before the interim Order Dated 02.6.2005 passed by this Court in W.P.(C) No. 5105 of 2005 was received. However, he preferred not to join at his new place of posting & discharge his duties & remained absent all through. Thus after he was superannuated from service the authorities had no other option but to. treat the period from 24.8.2003 to 28.2.2006 as leave without pay applying the principles of "no work no pay" as he unauthorizedly remained absent from duty. 12. Heard Learned Counsel for the parties at length. Perused the documents meticulously & consider the inter se submissions diligently. The Orissa Forest Development Corporation has a transfer policy of its own. According to the said policy an employee who has completed six years of service in a zone is mature for transfer to another zone. It appears that the Petitioner had not completed six years in Bhubaneswar Zone. Thus his transfer from Bhubaneswar Plantation Division to Boudh (C-KL) Division does not appear to be in accordance with the rules. In consonance with the direction issued by this Court the Chairman-cum-Managing Director of the Corporation considered the representation filed by the Petitioner & disposed of the same by Order Dated 07.10.2004 (Annexure 6). In the concluding paragraph of the said order it was observed as follows: On perusal of his Service Book, it is learnt that Sri Mohanty is going to retire from Corporation Service on February, 06 & it is only 1 & 4 months away. Going through the representation, I am of the view that when Sri Mohanty was already under a transfer order, may it be within the division, he need not have been transferred back to Boudh again. Going through the representation, I am of the view that when Sri Mohanty was already under a transfer order, may it be within the division, he need not have been transferred back to Boudh again. As per the transfer policy of the Corporation an employee, who has completed six years of service in a zone is due for transfer to another zone. But in this case, Sri Mohanty has not completed six years in Bhubaneswar (C) Zone. Considering the above aspects & on humanitarian ground, the transfer of Sri Pulin Bihari Mohanty from Bhubaneswar (C) Division to Boudh (C-KL) Division vide office order No. 579 dated 07.6.2004 is cancelled. But his earlier transfer order by D.M., Bhubaneswar (PL) Division to Ratanpur Plantation Section with headquarters at Gangapada under Chandaka Sub-Division stands. The observations made supra would clearly reveal that the Chairman-cum- Managing Director of the Corporation was satisfied that the order of transfer of the Petitioner to Boudh (C-KL) Division was not justified more so because he was in close proximity of attaining the age of superannuation. The Managing Director rightly set aside the Petitioner's order of transfer from Bhubaneswar Plantation Division to Boudh (C-KL) Division but then in the last line of the order the said authority observed that his earlier order of transfer to Ratanpur Plantation Section with headquarters at Gangapada under Chandaka Sub- Division shall revive. 13. The scenario of facts reveal that the Petitioner was transferred to Nayagarh Budha Budhiani Plantation Section on 30.7.2003 from Bhubaneswar Plantation Division. The said transfer was varied by the Opposite Parties by Order Dated 23.8.2003 (Annexure-2). For the sake brevity the Order Dated 23.8.2003 is quoted hereunder: In partial modification of this office order No. 107 dated 30.7.2003 Sri Pullin Bihari Mohanty, Sectional Supervisor is hereby transferred & reposted as such to Ratanpur Plantation Section with headquarters at Gangapada under Chandaka Plantation Sub- Division with immediate effect. Thereafter it appears that by Order Dated 07.6.2004 (Annexure 4) on administrative grounds the Petitioner along with some others were transferred from Bhubaneswar Plantation Division to Boudh "(C-KL) Division. By virtue of the Order Dated 07.6.2004 the earlier order transferring the Petitioner to Ratanpur Plantation Section with headquarters at Gangapada under Chandaka Plantation Sub-Division stood annulled or at best varied. Thereafter it appears that by Order Dated 07.6.2004 (Annexure 4) on administrative grounds the Petitioner along with some others were transferred from Bhubaneswar Plantation Division to Boudh "(C-KL) Division. By virtue of the Order Dated 07.6.2004 the earlier order transferring the Petitioner to Ratanpur Plantation Section with headquarters at Gangapada under Chandaka Plantation Sub-Division stood annulled or at best varied. In view of the aforesaid clear position, the direction issued by the Chairman-cum-Managing Director of the Corporation by his Order Dated 07.10.2004 (Annexure-6) that the earlier order of transfer of the Petitioner to Ratanpur Plantation Section with headquarters at Gangapada under Chandaka Plantation Sub-Division stands, is not correct. After arriving at a conclusion that the order of transfer of the Petitioner from Bhubaneswar Plantation Division to Nayagarh Budha Budhiani Plantation Section was not justified & canceling the same the Chairman-cum- Managing Director of the Corporation transgressed his limits by directing that the Petitioner's earlier order of transfer vide Annexure-2 which was subsequently modified by Annexure-4 still remains valid, is unjustified. 14. Looking the entire facts from a different angle, it appears that the Petitioner being aggrieved by the Order Dated 07.6.2004 under Annexure-4 transferring him from Bhubaneswar Plantation Division to Boudh (C-KL) Division filed his representation before the Chairman-cum-Managing Director of the Corporation. As the said representation was not considered he had approached this Court & in consonance with the direction issued by this Court the Chairman-cum-Managing Director considered his representation. Thus the jurisdiction of the Chairman was only confined to decide as to whether the order transferring the Petitioner from Bhubaneswar Plantation Division to Boudh (C-KL) Division was just, proper or not? The Chairman after analyzing all the facts & circumstances as well as the transfer policy laid down by the Corporation arrived at a conclusion that the said transfer was not valid & was pleased to cancel the same. The issue before him only being whether the transfer order was valid or not, after arriving at a conclusion that the same was not valid he should have stopped there. The observation made by him that though the order of transfer of the Petitioner from Bhubaneswar Plantation Division to Boudh (C-KL) Division was invalid, the order of transfer to Ratanpur Plantation Section with headquarters at Gangapada under Chandaka Plantation Sub-Division was unjustified, being excess of jurisdiction, cannot be sustained. 15. The observation made by him that though the order of transfer of the Petitioner from Bhubaneswar Plantation Division to Boudh (C-KL) Division was invalid, the order of transfer to Ratanpur Plantation Section with headquarters at Gangapada under Chandaka Plantation Sub-Division was unjustified, being excess of jurisdiction, cannot be sustained. 15. The next question which needs to be considered in this Writ Petition is as to whether the authorities acted within their jurisdiction in taking an unilateral decision to grant 920 days leave without pay covering the period from 24.8.2003 to 28.2.2006 to the Petitioner applying the principles of "no work no pay" by nomenclaturing the said period to be unauthorized absence from duty. Admittedly no leave application was filed by the Petitioner Treating the period to be leave without pay in the absence of any application or even in the absence of initiation of any proceeding and/or calling upon the employee concerned to show cause as to why such period should not be treated as leave without pay amounts to gross violation of principles of natural justice & equity. Treating a period of service as unauthorized absence & directing to treat the same as leave without pay" amounts to a punishment. Such a unilateral decision vitiates the fundamental principles of audi alteram partem. Admittedly the order of transfer of the Petitioner from Bhubaneswar Plantation Division to Boudh (C-KL) Division was cancelled by the Chairman-cum- Managing Director of the Corporation by Order Dated 07.10.2004 (Annexure-6). The said authority however, held that the earlier order transferring the Petioner to Ratanpur Plantation Section with headquarters at Gangapada under Chandaka Plantation Sub-Division stands. Assailing the said order the Petitioner had approached this Court in W.P.(C) No. 5105 of 2005. In the Misc. Case No. 7215 of 2005 arising out of the said Writ Petition this Court had specifically directed that the Petitioner would be allowed to continue in Bhubaneswar Plantation Division till the next date which direction subsequently continued. Thus not permitting the Petitioner to continue at Bhubaneswar appears to be not justified. 16. According to Mr. Pattnaik the interim Order Dated 02.6.2005 passed by this Court in W.P.(C) No. 5105 of 2005 was received by the authorities much after the Petitioner was relieved. This fact is disputed by Mr. Panigrahi. 17. Thus not permitting the Petitioner to continue at Bhubaneswar appears to be not justified. 16. According to Mr. Pattnaik the interim Order Dated 02.6.2005 passed by this Court in W.P.(C) No. 5105 of 2005 was received by the authorities much after the Petitioner was relieved. This fact is disputed by Mr. Panigrahi. 17. Be that as it may, fact remains, the transfer of the Petitioner to Ratanpur Plantation Section with headquarters at Gangapada under Chandaka Plantation Sub-Division stood annulled vide Order Dated 07.6.2004 (Annexure-4) by which the Petitioner was transferred from Bhubaneswar (C) Division to Boudh (C-KL) Division. As has been stated earlier the Chairman- cum-Managing Director-Opposite Party No. 1 found the order transferring the Petitioner to Boudh (C-KL) Division to be not-just & proper, & cancelled the same. Therefore, it was incumbent upon to the Opposite Parties to pass another order transferring the Petitioner from his place of posting to Ratanpur Plantation. Section with headquarters at Gangapada under Chandaka Plantation Sub- Division or any place if exigency still existed. In other words after the order transferring the Petitioner to Ratanpur Plantation Section with headquarters at Gangapada under Chandaka Plantation Sub-Division was modified the same no longer existed in the eye of law & merged with the later transfer order, transferring the Petitioner to Boudh (C-KL) Division. Once the authority found that the transfer of the Petitioner to Boudh (C-KL) Division was not justified, it would not be just & proper to say thereafter that the earlier transfer order automatically revived. On the other hand it should be presumed that the Petitioner was continuing in the place where he was posted before he was transferred to Boudh (C-KL) Division i.e. at Bhubaneswar Plantation Division. This Court had also directed the Opposite Parties to allow the Petitioner to continue at Bhubaneswar Plantation Division by interim Order Dated 02.6.2005 passed in W.P.(C) No. 5105 of 2005. 18. Even otherwise according to this Court, all these facts have become redundant now, more so because the Petitioner has retired from service on attaining the age of superannuation w.e.f. 28.2.2006. No doubt controversies surrounded around the continuance of the Petitioner at Bhubaneswar Plantation Division vis-a-vis several transfer orders passed transferring him to different places. Mr. 18. Even otherwise according to this Court, all these facts have become redundant now, more so because the Petitioner has retired from service on attaining the age of superannuation w.e.f. 28.2.2006. No doubt controversies surrounded around the continuance of the Petitioner at Bhubaneswar Plantation Division vis-a-vis several transfer orders passed transferring him to different places. Mr. Pattnaik forcefully submitted that in fact the Petitioner had not discharged any duties w.e.f. 24.8.2003 to 28.2.2006 & as such the principles of "no work no pay" should be strictly applicable & that the authorities have rightly taken a decision under Annexure-8 treating the said period as leave without pay. But then before taking such a decision no opportunity was granted to the Petitioner to explain his case. Treating the period of service as leave without pay definitely curtails the rights conferred upon an employee & such a decision being punitive in nature cannot be taken unilaterally. Be that as it may, fact remains that the Petitioner has not discharged his duties for the period from 24.8.2003 to 28.2.2006. It is well settled that when substantial justice & technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred. (See Dal Singh v. King Emperor of India reported in AIR 1917 P.C. 25 ). The same principles also has been reiterated by the Supreme Court in the case of Mohammad Swalleh and Others Vs. Third Addl. District Judge, Meerut and Another, . 19. Considering the facts & circumstances of the case & after giving a conscious thought, this Court feels that treating the entire period from 24.8.2003 to 28.2.2006 as leave without pay is unjustified, However, fact remains the Petitioner has not discharged his duties for the aforesaid period, for the reasons good, bad or indifferent. Considering the financial condition of the Corporation & the fact that the Petitioner has retired from service in the meanwhile, this Court feels that ends of justice & equity will be better served if the Writ Petition is allowed with a direction to the Corporation' to pay 50 % of the salary of the Petitioner for the periods from 24.8.2003 to 28.2.2006 & directs accordingly. The said amount shall be calculated along with all other arrears which the Petitioner is otherwise legally entitled to & disbursed to the Petitioner within a period of six months from the date of communication of this Judgment and/or production of certified copy of the same by the Petitioner, failing which the Corporation shall be liable to pay interest ' 9 % per annum from the date the Petitioner become eligible till the amount is paid. With the aforesaid observation the Writ Petition is disposed of. B.N. Mahapatra, J. 20. I agree.