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2015 DIGILAW 125 (ORI)

Bijayananda Mohanty v. State of Orissa

2015-02-24

B.R.SARANGI

body2015
JUDGMENT : B.R. Sarangi, J. The petitioner, who was working as a Conductor under the Orissa State Road Transport Corporation (hereinafter referred to as ‘the OSRTC’) has filed this application seeking to quash his order of compulsory retirement dated 06.01.2001 vide Annexure-7 and consequential order in appeal by the appellate authority vide Annexure-21 dated 12.03.2004 confirming the order of compulsory retirement and further claims for grant of consequential relief with regard to arrear salary/duty pay as per the revised ORSP Rule 1998 and 2008 w.e.f.07.01.2001 till 30.04.2013 for the post of Conductor and further claims to extend all retirement dues such as gratuity, leave salary, unpaid salary prior to 07.01.2001, Bonus with interest at the rate of nine percent. 2. The short fact of the case in hand is that the petitioner was selected by the competent authority of the OSRTC and was appointed as Substitute Conductor on 12.10.1976 in the scale of pay of Rs.240-5-255-EB-5-280-7-315/- sanctioned by the Government from time to time, pursuant to which he joined in the office of the District Transport Manager (Admn.), OSRTC, Cuttack. But subsequently, he was terminated from service on 23.8.1977. Against the said order of termination, the petitioner preferred an appeal and upon hearing the appeal, the District Transport Manager (Admn.), OSRTC, Cuttack allowed the same and reinstated the petitioner in service w.e.f.28.12.1978. But all on a sudden, in November, 1997 without assigning any reason, his salary was stopped. Therefore, he filed an application before the District Transport Manager (Admn.), OSRTC, Cuttack vide letters dated 10.03.1998 and 30.06.1999, but the same were not considered by the authority. Due to revision of scale of pay under ORSP Rules, 1998, the scale of pay of Rs.800-1150/- has been revised to Rs.2560-4000/- w.e.f.1.1.1996. But the said revised scale of pay has not been implemented in the case of OSRTC though the benefit has been extended to all State Government employees and other corporation employees of the State. The EPF amount which has been deducted from the salary of the petitioner has not also been transmitted to the fund. The OSRTC decided to implement Voluntary Retirement Scheme under the Model Voluntary Retirement Scheme and the petitioner applied for the same, but no action has been taken on such application. The EPF amount which has been deducted from the salary of the petitioner has not also been transmitted to the fund. The OSRTC decided to implement Voluntary Retirement Scheme under the Model Voluntary Retirement Scheme and the petitioner applied for the same, but no action has been taken on such application. Due to none payment of the dues, the petitioner approached this Court by filing OJC No. 2044 of 2000 and this Court disposed of the said writ application on 1.11.2000 directing the authorities to take appropriate steps for payment of the arrear salary in the revised scale of pay till the date of voluntary retirement and also extend all the benefits as due and admissible to the petitioner. It is stated that the said order has not yet been complied with. It is further stated that though the petitioner was appointed as Conductor but he was attached to the office in Accounts section and subsequently transferred from accounts section to station office on 20.07.2000. It is stated that the petitioner was relieved from accounts section and joined in station office on 29.7.2000 and he was attached to emergency duty. The petitioner went for three days casual leave due to his illness and subsequently the same was extended. Thereafter, he was issued with an order of suspension dated 1.8.2000 which he received on 31.8.2000 along with charge sheet, to which, the petitioner submitted an explanation denying the allegations. The inquiry officer conducted the inquiry on 25.10.2000 and the petitioner attended the same. The petitioner claimed for supply of inquiry report which has been provided to him on 27.12.2000, to which, he himself made representation and without considering such representation, the petitioner was compulsorily retired from service on 6.1.2001 vide Annexure-7. Against the said order of compulsory retirement, the petitioner approached the appellate authority, but without considering the same in proper perspective, the appellate authority confirmed the order of compulsory retirement vide Annexure-21 dated 12.03.2004. Hence, this application. 3. Mr. S.K. Rath, learned counsel for the petitioner strenuously urged that the order of suspension dated 1.8.2000 is illegal as the petitioner has not committed any misconduct and as such the petitioner has not been paid any subsistence allowance as per the rules of the OSRTC. Hence, this application. 3. Mr. S.K. Rath, learned counsel for the petitioner strenuously urged that the order of suspension dated 1.8.2000 is illegal as the petitioner has not committed any misconduct and as such the petitioner has not been paid any subsistence allowance as per the rules of the OSRTC. The petitioner assailed the order of compulsory retirement on the ground that when this Court directed the authorities vide order dated 1.11.2000 to consider the application made by the petitioner under Voluntary Retirement Scheme and to pay the arrear and current salary, they should have complied with the same but instead of carrying out the order, the order of compulsory retirement has been passed without following due procedure of law inasmuch as the petitioner has not been supplied with any documents or list of witnesses or indicated that what is the allegation against him so as to give opportunity to rebut the same. Though the petitioner was served with copy of the inquiry report and he has filed representation thereto but the same has not been considered. It is stated that without following due procedure of law the order has been passed which is in gross violation of principles of natural justice. Hence, this Court should interfere with the same and quash the so called order of compulsory retirement passed by the OSRTC. It is further urged that even if such point has been raised before the appellate authority, but without application of mind, the appellate authority confirmed the order of compulsory retirement, therefore the same has also to be set aside. 4. Mr. A.K. Mohanty-A, learned counsel for the Corporation simply denied the allegations and without placing any materials before this Court stated that there is compliance of principles of natural justice and the petitioner was supplied with list of documents and witnesses relied upon for initiating the proceeding. Nothing has been placed justifying the compulsory retirement order passed by the authority against the petitioner. But it is stated that so far as the Provident Fund is concerned, for final settlement in Form-19 of the member has been partly settled for an amount of Rs.31,129, which has been drawn on State Bank of India, Main Branch, Bhubaneswar vide cheque No. 693583 dated 8.5.2001 with up-to date interest by taking the contribution up-to 1989-90. But it is stated that so far as the Provident Fund is concerned, for final settlement in Form-19 of the member has been partly settled for an amount of Rs.31,129, which has been drawn on State Bank of India, Main Branch, Bhubaneswar vide cheque No. 693583 dated 8.5.2001 with up-to date interest by taking the contribution up-to 1989-90. The provident fund dues from March, 1990 to the date of retirement i.e. 6.1.2001, could not be settled as the employer has not deposited the due in the account of the petitioner. The employer is a chronic defaulter and was not contributing regularly the statutory dues. Therefore, for the said period the amount has not been paid and the OSRTC has approached this Court by filing various writ petitions wherein this Court passed interim order restraining the EPF authorities from taking coercive action against the establishment. It is stated that this Court vide order dated 3.9.1997 in Misc. Case No. 11958 of 1997 arising out of OJC No. 13586 of 1997 directed the RPFC to refund back the amount of Rs.80,00,000/- to the Corporation. It is further stated that OJC No. 2931 of 2001 filed by the opposite party no.4 seeking for a direction to the Corporation to clear the entire outstanding provident fund dues is pending before this Court for adjudication. 5. Considering the above pleaded facts by the parties, it appears that the petitioner who was initially appointed as a substitute Conductor was discharging his duty and he was subjected to disciplinary proceeding. Consequently, he was placed under suspension and finally he was removed from service by passing an order of compulsory retirement vide Annexure-7 and in appeal also vide Annexure-21 the said order of compulsory retirement has been confirmed. As it appears from the record, nothing has been placed to indicate that while issuing the order of compulsory retirement, the petitioner has been given adequate opportunity of hearing and more so, while continuing the order of suspension, an inquiry officer was appointed to conduct an inquiry and on the basis of the inquiry report, the petitioner was compulsorily retired from service by passing a cryptic order in Annexure-7. The impugned order in Annexure-7 indicates that the petitioner was assigned duty in Cuttack-Kamakhyanagar route on 30.07.2000 which was scheduled to leave at 6.00 A.M. and as he did not turn up to attend the allotted duty and remained absent unauthorizedly, the order of compulsory retirement has been passed treating the period of suspension as such and period of his unauthorized absence is treated as absence without leave. It appears that no opportunity was given to the petitioner nor any documents have been produced along with annexures to substantiate the fact that the petitioner has been allotted with duty and he remained absent. But fact remains that the petitioner remained absent for a period of three days by taking casual leave. Subsequently, due to his illness, he extended the leave. Though he has been attached to the account section but subsequently transferred to the station office to discharge some emergency duty. The entire order of compulsory retirement has been passed without following due procedure of law. More so, the same has been passed without complying with the principles of natural justice and such action has been taken even without considering the rules governing the field. 6. In that view of the matter, this Court is of the considered opinion that the order of compulsory retirement has been passed without following due procedure of law and without compliance of principles of natural justice. The consequential order passed in appeal also suffers from the same irregularity. Therefore, both the orders dated 06.01.2001 vide Annexure-7 and consequential order passed in appeal by the appellate authority vide Annexure-21 dated 12.03.2004 confirming the order of compulsory retirement are hereby set aside and the matter is remitted back to the disciplinary authority, who can proceed with the matter from the stage of framing of charge against the petitioner treating him as if he was placed under suspension pursuant to order passed by the competent authority. Needless to say that this is an year old case of the year 2001. Therefore all endeavors should be made by the Corporation to conclude the proceeding within a period of six months from the date of passing of the judgment. Similarly, the petitioner is also directed to cooperate with the inquiry without adopting dilly dally tactics for early disposal of the matter. 7. With the above observation and direction, the writ petition is disposed of. No order to costs.