Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 1155 (ORI)

Shiba Prasad Choudhury v. State of Orissa

2017-10-13

B.K.NAYAK, D.P.CHOUDHURY

body2017
JUDGMENT Dr. D.P. CHOUDHURY, J. - Challenge has been made to the illegal action of the opposite parties for compulsorily retiring the petitioner from the Government service. FACTS. 2. The infiltrated facts leading to the case of the writ petition is that the petitioner was appointed as a Stenographer Grade-III in the Court of the erstwhile Munsif, Balasore on 3.8.1966 forenoon. He was also promoted to the post of Senior Stenographer on 2.4.1988.While he was continuing as such in the establishment of Civil Judge (Senior Division), Balasore, he suddenly suffered from some Bleeding Piles and acute Acidity for which he took commuted leave from 6.4.2000 to 5.5.2000.Subsequently also he extended leave and same has been also allowed time to time by the authorities. While he was under treatment, he also met with an accident with a Scooter and sustained injury on his hand for which he got complete stiffness on right hand wrist and has to remain on leave for two years under the medical supervision. Accordingly, leave has been also granted from time to time but suddenly on 20.8.2002 an order was issued by the opposite party No.2 compulsorily retiring the petitioner under Clause (a) of Rule 71 of the Orissa Service Code (hereinafter called “the Code). Be it stated that, the petitioner was not awarded major penalty as provided under Rule 13 of the Orissa Civil Services (Classification, Control & Appeal) Rules but while review was held at the age of 55 years, he was compulsorily retired on public interest but petitioner challenged the same as arbitrary and without jurisdiction. 3. Be it stated that when the petitioner has no adverse C.C.R. and no disciplinary proceeding was pending against him but he was ailing which was also supported by medical documents and time to time granted leave, petitioner cannot be purportedly taken as incompetent or inefficient for further service. So, the petitioner filed the present writ petition challenging the order of compulsory retirement. SUBMISSIONS: 4. Learned Counsel for the petitioner submitted that the action of opposite party No.2 is arbitrary, illegal and improper because without giving proper opportunity to the petitioner of being heard, the petitioner has been compulsorily retired from service purportedly under Clause (a) of Rule 71 of the Service Code. SUBMISSIONS: 4. Learned Counsel for the petitioner submitted that the action of opposite party No.2 is arbitrary, illegal and improper because without giving proper opportunity to the petitioner of being heard, the petitioner has been compulsorily retired from service purportedly under Clause (a) of Rule 71 of the Service Code. According to him Clause 7 of the G.A. Department Circular dated 24.11.1987 has explained what is public interest under which an employee cannot be retained in service. 5. Learned Counsel for the petitioner further submitted that Sub-clause (b) of Clause 7 of the above circular states that when an employee has no doubtful integrity but his physical or mental condition is such as to make him inefficient for further service cannot be retained for the public interest. According to him the Review Committee has viewed the petitioner as physically incapable because of his prolonged illness to continue with the job and accordingly the learned District Judge-opposite party No.2 made the petitioner to retire compulsorily showing the same under Rule 71 (a) of the Code. When there is no Medical Board or any opportunity was given to the petitioner to resume his duty in spite of illness and the leave has been also time to time granted by the authority, it cannot be said that the petitioner has been physically incapable to continue in service. 6. Learned Counsel for the petitioner further submitted that Rule 71 (a) simply states that a review shall be conducted in respect of Government servant at the age of 55 years in order to determine whether he or she should be allowed to remain up to the age of completion of 58 years or retire on completion of 55 years of age in public interest. There is nothing under Rule 71 (a) to allow a Government servant to retire in a review on the ground taken by the opposite parties in this case. Since the ground taken by the opposite parties is neither covered by any material to show either to take action under Rule 71 (a) or Clause 7 of the Circular of G.A. Department (supra), the order of compulsory retirement passed vide Annexure-2 is not only without jurisdiction but also arbitrary and illegal. Since the ground taken by the opposite parties is neither covered by any material to show either to take action under Rule 71 (a) or Clause 7 of the Circular of G.A. Department (supra), the order of compulsory retirement passed vide Annexure-2 is not only without jurisdiction but also arbitrary and illegal. He further submitted that before taking action against the petitioner, he was not sent to any Medical Board to collect opinion as to permanent disability of the petitioner so as to form an opinion that he is physically inefficient to continue in service for which he cannot be said to have been retired in public interest under Rule 71 (a) read with Clause 7 of the Circular of G.A. Department (supra). So, he submitted to quash the impugned order of compulsory retirement vide Annexure-2 and allow the petitioner to retire at the age of 58 years with consequential service benefits. 7. Per contra, learned Additional Government Advocate relying upon the counter affidavit filed by the opposite party No.2 submitted that the writ petition is not maintainable in view of the peculiar facts and circumstances of the case. He submitted that the Review Committee held on 15.7.2002 considered the petitioner physically inefficient to continue in service for his long leave on the ground of stiffness of the right wrist and limbs. He submitted that the report of the attending physician submitted by the petitioner from time to time was enough to show the incapacity of the petitioner to work as Stenographer and rightly the petitioner has been compulsorily retired under Rule 71 (a) of the Orissa Service Code. 8. Learned Additional Government Advocate further submitted that for premature retirement the petitioner has been paid three months salary as per the proviso to Rule 71 (a) of the Code for which he was not served with any notice for premature retirement. Since the petitioner has been compulsorily retired from Government service under Rule 71 (a) of the Orissa Service Code, the question of application of Rule 13 of the O.C.S. (CC & A) Rule does not arise. When the employee remains absent for two and half years on health ground particularly with regard to stiffness of the right wrist and limbs and such physical incapacity hampers his job requirement, the action taken by the opposite parties without causing financial loss cannot be said to be unjustified. When the employee remains absent for two and half years on health ground particularly with regard to stiffness of the right wrist and limbs and such physical incapacity hampers his job requirement, the action taken by the opposite parties without causing financial loss cannot be said to be unjustified. He further submitted that when the attending physician has opined that the petitioner is required one year more for recovery and length of service of the petitioner was left only for two years on the date of forming opinion by the Review Committee to retire him compulsorily in public interest, is legal and proper. 9. Learned Additional Government Advocate submitted that there is no provision under the Code to send the petitioner to the Medical Board to obtain opinion whether the petitioner is physically incapable to discharge his official duty because in the present case from the opinion of the attending physician submitted by the petitioner was enough to show the physical incapacity of the petitioner to continue with the nature of job assigned to him. So, the contention of the learned Counsel for the petitioner in this regard is wholly untenable. Apart from this, the petitioner being retired compulsorily in no way caused financial loss as the petitioner is entitled to all service benefit except continuance of service till superannuation. Moreover, the compulsory retirement is not a stigma or punishment when a Government servant is compulsorily retired under Rule 71 (a) of the Code. So, he submitted to dismiss the writ petition. 10. POINT FOR CONSIDERATION. (i) Whether compulsory retirement of the petitioner in the facts and circumstances is illegal, improper and unjustified ? DISCUSSION. 11. It is admitted fact that the petitioner while attaining 55 years of age he was compulsorily retired on payment of three months pay and allowances in view of three months notice as per the first proviso to Rule 71 (a) of the Code. It is not in dispute that the petitioner has gone on Commuted Leave from 6.4.2000 to 5.5.2000 and from 9.5.2000 to 5.9.2000 vide Annexure-1 series. It is not in dispute that the said leave was taken on the ground of his illness and further leave from 6.9.2000 to 01.01.2001 and from 04.01.2001 to 31.7.2001 was also requested by the petitioner on the ground of self illness as Earned Leave and half pay leave respectively. It is not in dispute that the said leave was taken on the ground of his illness and further leave from 6.9.2000 to 01.01.2001 and from 04.01.2001 to 31.7.2001 was also requested by the petitioner on the ground of self illness as Earned Leave and half pay leave respectively. Said leave have been sanctioned vide Annedure-1 series. 12. No doubt Annexure-1 series consist of application for different kinds of leave filed by the petitioner and the Medical Certificates duly certified by the Physicians. It appears from the Doctor’s report that first he was suffering from Bleeding Piles and acute acidity and then he suffered from stiffness on his right hand wrist. In the counter it has been stated that as the petitioner remained on leave for two years and the Doctor further advised for one year leave for his treatment and physiotherapy on the ground of physical disability, the petitioner was made to retire from Government service by opposite party No.2.As per the provisions of Rule 71 (a) of the Code read with Clause 7 of the Circular of G.A. Department at first the matter was taken up before the Review Committee and after relying upon the opinion of the Review Committee, the learned District Judge made him to retire compulsorily vide Annexure-3. 13. Rule 71 (a) of the Code speaks like this :- “71.(a) Except as otherwise provided in the other clauses of this rule the date of compulsory retirement of a Government servant, except a ministerial servant who was in Government service on the 31st March 1939 and Class IV Government servant, is the date on which he or she attains the age of 58 years subject to the condition that a review shall be conducted in respect of the Government servant in the 55th year of age in order to determine whether he/she should be allowed to remain in service up to the date of the completion of the age of 58 years or retired on completing the age of 55 years in public interest. Provided that a Government servant may retire from service any time after completing thirty years qualifying service or on attaining the age of fifty years, by giving a notice in writing to the appropriate authority at least three months before the date on which he wishes to retire or by giving the said notice to the said authority before such shorter period as Government may allow in any case. It shall be open to the appropriate authority to withhold permission to a Government servant who seeks to retire under this rule, if he is under suspension or if enquiries against him are in progress. The appropriate authority may also require any officer to retire in public interest any time after he has completed thirty years’ qualifying service or attained the age of fifty years, by giving a notice in writing to the Government servant at least three months before the date on which he is required to retire or by giving three months pay and allowances in lieu of such notice”. The word “public interest” being not defined, Clause 7 of the notification issued by the State Government in General Admn. Deptt. No.30495-G.A., dated the 24th November, 1987 are as follows : “7. It will not be in public interest to retain an employee in service if – (a) he is clearly lacking in integrity, or (b) although his integrity is not in doubt, his physical or mental condition is such as to make him inefficient for further service, or (c) even though his work in a lower grade was satisfactory, he clearly lacks in the standard of efficient required to discharge the duties of the post he presently holds.” 14. In view of the aforesaid provisions, it appears that under the Code an employee can be compulsorily retired in public interest and what is public interest has been clarified by the circular issued by the State Government in General Administration Department. This is not the case where disciplinary proceeding was initiated and in the disciplinary proceeding he was awarded punishment of compulsory retirement. It will not be out of place to mention that an employee can be compulsorily retired by the employer either under Rule 13 of the Orissa Civil Services (Classification, Control and appeal) Rules or under Rule 71 (a) of the Orissa Service Code. The present case is under Rule 71 (a) of the Orissa Service Code. It will not be out of place to mention that an employee can be compulsorily retired by the employer either under Rule 13 of the Orissa Civil Services (Classification, Control and appeal) Rules or under Rule 71 (a) of the Orissa Service Code. The present case is under Rule 71 (a) of the Orissa Service Code. 15. The review record was called for by the Court and after going through the same it appears that the Review Committee has observed in the following manner:- “Shri Shiba Prasad Choudhury, Senior Stenographer in the Court of the Civil Judge (Sr. Div.), Balasore is suffering from “stiffness of right upper limb” since 09.05.2000 till date. He has been availing leave on medical ground since 13.05.2000 till date. He is physically inefficient for further continuance in Government service. Hence the Review Committee recommends to retire him pre-maturely from Government service. Sd/- Sd/- DISTRICT & SESSIONS JUDGE, DISTRICT & SESSIONS JUDGE, KEONJHAR. BALASORE-BHADRAK, BALASORE” 16. On perusal of the above observation, it is clearly spelt out that the petitioner remained absent for two years on the ground of self-illness as opined by the attending physician. It does not convey that further the physician opined that it would require for a period of one year more to cure his right hand and the Review Committee took note of the nature of job entrusted to petitioner, i.e., the job of Stenographer. It is not clear from the decision of the Review Committee that he has got physical incapacity and cannot remain in service in public interest. It is true that on the ground of physical incapacity an employee can be compulsorily retired but before taking such decision on the attending circumstances, the report of the Doctor and other factors are to be gone into. 17. For construing public interest, the employer has to balance between human ailment and public order before taking a stiff decision to take away the job. If the decision taken on insufficient evidence or reasons, that would amount to arbitrariness. 18. It is reported in AIR 1991 SC 537 l; Kumari Shrilekha Vidyarthi and others v. State of U.P. and others where Their Lordships observed the following: “36. The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. If the decision taken on insufficient evidence or reasons, that would amount to arbitrariness. 18. It is reported in AIR 1991 SC 537 l; Kumari Shrilekha Vidyarthi and others v. State of U.P. and others where Their Lordships observed the following: “36. The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by law and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that be you ever so high, the laws are above you’. This is what men in power must remember, always” 19. With due regard to the aforesaid decision, it appears that where the decision maker invested with the wide discretion is expected to exercise that discretion in accordance with the general principles governing exercise of power in a constitutional democracy unless of course the statute under which such power is exercisable indicates otherwise, there should not be unfair discrimination even if the authority is vested with power to exercise the same. This principle has been also well explained by Prof. De Smith, Woolf & Jowell in their book on “ Judicial Review of Administrative Action”. It is also observed in AIR 1952 SC 16 ; Commissioner of Police, Bombay v. Gordhandas Bhanji where Their Lordships observed in the following manner :- “9..... public orders, publicity made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. public orders, publicity made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public order made by the public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself”. 20. With due regard to the aforesaid authority, it appears that the employer has to use discretion in accordance with law but not to be used arbitrarily. Now adverting to the present fact and circumstances of the case, it appears that opposite party No.2-District Judge has allowed leave time to time to the petitioner on the ground of his illness,, of course supported by the Certificate of the Doctor. At no point of time the opposite parties have asked the petitioner to resume the work in public exigency. There is no medical report to show that the petitioner was physically incapable to discharge his duty in future. There is no document to show any percentage of disability incurable so as to take a decision that the petitioner would not be able for rest of the period to discharge his duty. It is true, the nature of job entrusted to the petitioner is affected by the stiffness of his right hand but it would have been appropriate for the employer to ascertain from the employee as to whether the job can be otherwise executed so as to satisfy that the decision taken for compulsory retirement is in the public interest. 21. Moreover, while an employee is dealt for the loss of his job on the ground of disability, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter called “the Act, 1995”) should be considered as same also relate to employees suffering from disability. As counter states that the case of the petitioner is dealt on physical disability, said Act, 1995 should be pressed into service. As counter states that the case of the petitioner is dealt on physical disability, said Act, 1995 should be pressed into service. In this regard, it is reported in (2013) 7 SCC 243 ; Anil Kumar Mahajan v. Union of India where Their Lordships observed at paragraph-19 in the following manner:- “19.There is a prohibition imposed under Section 47 to dispense with, or reduce in rank, an employee who acquires a disability during his service, which reads as follows: “47. Non-discrimination in Government employment .- (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier; (2) No promotion shall be denied to a person merely on the ground of his disability. Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as maybe specified in such notification, exempt any establishment from the provisions of this Section.” 22. With due respect to above decision, it must be observed that even if the petitioner is found physically incapable to execute the job entrusted, answer to such observation is not to compulsory retirement but to adjust him in other post as observed in above decision. So, in this regard, the impugned order of compulsory retirement suffers from infirmity. Hence, the decision of the Review Committee in our opinion is harsh, arbitrary and de hors the law for which it cannot be said that the decision of the opposite party No.2 to retire the petitioner compulsorily is in public interest. Moreover, there is neither any adverse ACR against the petitioner nor any departmental proceeding pending against him attributing his integrity doubtful. The point is answered accordingly. CONCLUSION. 23. In the writ petition it has been prayed to quash the order passed on 20.8.2002 vide Annexure-3 and allow the petitioner to continue in his post till the date of his superannuation on 31.8.2004. The point is answered accordingly. CONCLUSION. 23. In the writ petition it has been prayed to quash the order passed on 20.8.2002 vide Annexure-3 and allow the petitioner to continue in his post till the date of his superannuation on 31.8.2004. In terms of the above discussion, when the order of compulsory retirement is illegal and improper, same is liable to be quashed and the Court do so. As the date of superannuation has already passed, we direct the opposite parties to extend all service benefits including financial benefit by construing that the petitioner has continued Government service from 20.8.2002 to 31.8.2004.We also direct the opposite parties to extend the retiral benefits as he has already attained superannuation. The entire exercise shall be completed within three months from today. The Writ Petition is disposed of accordingly. B.K. Nayak, J. I agree. Petition disposed of.