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2017 DIGILAW 1228 (ORI)

Sankar Kishna De v. State of Orissa

2017-10-31

SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S.N. Prasad, J. This writ petition under Article 226 and 227 of the Constitution of India has been filed praying therein to quash the order No.125 dated 04.06.2002 passed by the opposite party no.4-Managing Director, North Eastern Electricity Supply Company, Balasore under Annexure-2 whereby and whereunder the petitioner, who was working as Superintending Engineer (Works), has been compulsorily retired from service in exercise of the powers conferred under Clause 3(i) & (ii) of defunct OSEB, Employees Age of Retirement Regulation 1979 read with regulation 17 (2) of GRIDCO Officers Service regulation adopted by NESCO. 2. The grievance of the petitioner is that he has joined as Junior Engineer under the State of Orissa (Energy Department) on 17.7.1969 and continued in that post till 11.1.1972, promoted to the rank of Sub-Divisional Officer (Elect.) and then promoted to the post of Assistant Engineer and ultimately promoted to the post of Superintending Engineer. 3. After commencement of the Orissa Electricity Reforms Act, 1995, the services of the petitioner have been transferred to the GRID Corporation of Orissa and subsequently his services have been placed under one of the distribution unit, i.e., NESCO. 4. According to the petitioner, while he was working as Superintending Engineer (Works) in NESCO, he has been communicated with the order dated 4.6.2002 whereby and whereunder he has been superannuated from service in exercise of powers conferred under Clause 3(i) & (ii) of defunct OSEB, Employees Age of Retirement Regulation 1979 read with regulation 17(2) of GRIDCO Officers Service regulation adopted by NESCO, since he was attaining the age of 50 years. 5. The petitioner, being aggrieved with the action of the authorities, has approached this Court by assailing the order dated 4.6.2002 under Annexure-2 to the writ petition on the ground that he cannot be superannuated from service, since no adverse entry in his service record has communicated to him. 6. 5. The petitioner, being aggrieved with the action of the authorities, has approached this Court by assailing the order dated 4.6.2002 under Annexure-2 to the writ petition on the ground that he cannot be superannuated from service, since no adverse entry in his service record has communicated to him. 6. Learned counsel for the petitioner has argued that the powers exercised by the authority under Clause 3(i) & (ii) of defunct OSEB, Employees Age of Retirement Regulation 1979 read with regulation 17(2) of GRIDCO Officers Service regulation which has been adopted by NESCO does not confer any power upon the Review Committee to separate an employee from service on attaining the age of 50 years only on the ground of single instance rather, while exercising the said power, it is the duty of the authority concerned to look into the entire service career of an employee. He has further submitted that since the power conferred under the said provision is not by way of punishment, even then while exercising the said power, it is incumbent upon the authority concerned to look into the entire service career of an employee. It seems from the averment made in the counter affidavit especially the decision of the Review Committee that there is absence of application of mind, since the Review Committee in one line has taken a decision to give compulsory retirement to the petitioner by referring that he has found to be ineffective and is of doubtful integrity, but before coming to the conclusion, no document has been perused by the authorities so also no discussion has been made in the decision taken by the Review Committee. Hence, it is purely non-application of mind and as such, decision taken by the authorities vide order dated 4.6.2002 under Annexure-2 is not sustainable in the eye of law. He has further submitted that the Review Committee has taken decision with respect to one another employee, namely, Aparup Mohan Das, Superintending Engineer (Electrical). He had approached this Court by invoking writ jurisdiction of this Court being W.P.(C) No.189 of 2002 and the Division Bench of this Court vide judgment dated 25.11.2011 has quashed the decision of the Review Committee by directing the authorities to give him entire arrear salary from the date of such order till the date on which he would have retired on superannuation. 7. 7. According to the petitioner, his case is squarely covered to that of the case of Aparup Mohan Das, since the decision of his compulsory retirement also been taken by the same Review Committee where his name appears at Serial No.2, as would be evident from the contents of the order passed in W.P.(C) No.189 of 2002. He has further submitted that the order passed by the Division Bench of this Court in W.P.(C) No.189 of 2002 has been affirmed by Hon’ble the Supreme Court in SLP No.9308 of 2012. 8. Learned counsel appearing for the opposite party-NESCO has submitted that against the petitioner, there is pendency of a criminal case bearing Balasore Vigilance Case No.42 of 1998 in which charge-sheet has been submitted and as such, it is different to that of the case of Aparup Mohan Das in whose favour the Division Bench of this Court in W.P.(C) No.189 of 2002 has quashed the order dated 4.6.2002. 9. Heard the learned counsel for the parties and perused the documents available on record. 10. The petitioner has joined in service under the OSEB and subsequently due to reformation of Orissa Electricity Reforms Act, 1995 and reconstitution of Orissa State Electricity Power, his services have subsequently been transferred to GRIDCO and subsequently the decision has been taken to handover the distribution of electricity under four subsidiary establishments in which one of the NESCO where the petitioner service has been placed. While he was working there, the Review Committee has taken a decision in the light of the powers conferred under Clause 3(i) & (ii) of defunct OSEB, Employees Age of Retirement Regulation 1979 read with regulation 17 (2) of GRIDCO Officers Service regulation adopted by NESCO, which has been communicated to the petitioner under the signature of Managing Director dated 4.6.2002 whereby and whereunder the petitioner has been compulsory retired from service. The said order is under challenge on the ground that the order of retirement has been passed only four months prior to his actual date of superannuation, since petitioner was to superannuate w.e.f. 31.10.2002. The other ground has been taken that the Review Committee has not taken into consideration the entire service career as well as the CCR of the petitioner. 11. The other ground has been taken that the Review Committee has not taken into consideration the entire service career as well as the CCR of the petitioner. 11. The contention of the petitioner has been examined by this Court and from perusal of the decision of the Review Committee, which is evident that the decision has been taken to compulsory retire the petitioner in exercise of the said power is based upon the reason that he has been found to be ineffective and is of doubtful integrity. 12. This Court, after taking into consideration the submission of the learned counsel appearing for the opposite party-NESCO, is of the view that merely on account of pendency of a criminal case, the powers conferred under Clause 3(i) & (ii) of defunct OSEB, Employees Age of Retirement Regulation 1979 read with regulation 17 (2) of GRIDCO Officers Service regulation adopted by NESCO cannot be invoked and the Review Committee has not taken into consideration that aspect of the matter, since there is no reference of any reason as has been submitted by the learned counsel appearing for the opposite party-NESCO, the decision taken by the Review Committee is at Annexure-D/3 to the counter affidavit. This Court, for better appreciation, has referred the contents of the decision taken by the Review Committee on 4.6.2002 under Annexure-D/3 to the counter affidavit, which is reproduced herein below:- “Review of Performance of Superintend Engineers and Executive Engineers who have completed 50 years and above. On review of the performance of Sr. Executives of NESCO, it is observed that the following Officers need to be given compulsory retirement for the well being of NESCO. 1. Er. Bata Krushna Mohanty, S.E. (Elect.) 2. Er. Sahnkar Krushna Dey, S.E. (Elect.) 3. Er. Aparup Mohan Das, S.E. (Elect.) 4. Er. Chakradhara Behera, S.E. (Elect.) 5. Er. S.N. Sahoo, E.E. (Elect.), Manager (Revenue), Jajpur Road Electrical Division. All the above are more than 55 years of age. They have been found to be ineffective and are of doubtful integrity. In view of this, it is proposed that they may be given compulsory retirement as their continuation will be detrimental to NESCO. 13. Er. S.N. Sahoo, E.E. (Elect.), Manager (Revenue), Jajpur Road Electrical Division. All the above are more than 55 years of age. They have been found to be ineffective and are of doubtful integrity. In view of this, it is proposed that they may be given compulsory retirement as their continuation will be detrimental to NESCO. 13. It is trite law that while any decision has been taken by the Review Committee in exercise of the powers conferred under Clause 3(i) & (ii) of defunct OSEB, Employees Age of Retirement Regulation 1979 read with regulation 17 (2) of GRIDCO Officers Service regulation adopted by NESCO to separate an employee from service, it is incumbent upon the authorities to exercise its mind by taking into consideration the entire service record. It is necessary for the reason that the said power which is to be exercised for separating an employee from service is not on the basis of a departmental proceeding and no opportunity is being given to such employee and as such, it is the duty of the authority concerned to look into service record before coming to conclusion to separate such employee from service, since the employee has been separated from service on the ground for bad performance or for any other reason which is not in the interest of the establishment. 14. This Court, after going through the decision of the Review Committee, is of the considered view that the authorities in a very casual manner has taken decision to separate the petitioner from service under the provision of said law by taking decision to separate from service. 14. This Court, after going through the decision of the Review Committee, is of the considered view that the authorities in a very casual manner has taken decision to separate the petitioner from service under the provision of said law by taking decision to separate from service. It is also to take into consideration the judgment rendered by the Division Bench of this Court in W.P.(C) No.189 of 2002, which has been placed by the petitioner, not disputed by the opposite party-NESCO, that one of the employee, namely, Aparup Mohan Das holding the post of Superintending Engineer (Electrical) has also been dealt with under such provision and he has also been retired from compulsory service on attaining the age of 50 years by the decision taken by the Review Committee where his name appears at Serial No.3 and the Division Bench of this Court has taken into consideration the decision of the Review Committee and also considering the fact that the Review Committee has not considered the entire CCR, has quashed the order dated 4.6.2002, so far as it relates to him. 15. Although, this Court has given chance to the learned counsel appearing for the opposite party-NESCO to produce the relevant service record in order to assess the comparative CCR of the petitioner, but learned counsel has submitted that the record is not available. He has been granted time by passing a judicial order dated 16.10.2017, but no affidavit has been filed. Hence, this Court, instead of adjourning the case further, thought it proper to decide the matter on the basis of material available on record and since the Division Bench of this Court has taken into consideration the legality and propriety of the decision taken by the Review Committee by setting aside the order dated 4.6.2002, which has been affirmed by Hon’ble the Supreme Court in S.L.P. No.9308 of 2012 with some modification regarding the quantum of compensation, as such, this Court is also of the considered view that the order dated 04.06.2002 under Annexure-2 with respect to the petitioner based upon the decision taken by the Review Committee dated 4.6.2002 is not sustainable in the eye of law. Accordingly, the same is quashed. 16. Accordingly, the same is quashed. 16. So far as the modification having been made by Hon’ble the Supreme Court in affirming the judgment dated 25.11.2011 passed by the Division Bench of this Court in W.P.(C) No.189 of 2002, this Court is of the view that there is no need to make any modification in the line of the order passed by Hon’ble the Supreme Court in view of the fact that there is only question for making payment of salary for four months while in that case the period of retirement was of more than two years. 17. In view thereof, the opposite party-NESCO is directed to disburse the arrear salary of the petitioner within period of six weeks from the date of receipt of certified copy of this order. With the aforesaid observations and directions, the writ petition is disposed of.