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2019 DIGILAW 348 (ORI)

Purna Chandra Pradhan v. Cesco

2019-04-25

B.R.SARANGI

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JUDGMENT : B.R. Sarangi, J. The petitioner, who was an erstwhile employee of Orissa State Electricity Board (OSEB) and after reformation whose services were placed under the opposite parties, has filed this writ petition to quash office order dated 18.07.2003 in Annexure-1 issued by opposite party no.3 retiring him from service on completion of 30 years of service/already attained the age of 50 years under CESCO, w.e.f.31.07.2003 A.N. paying him 3 months' wage/salary in lieu of 3 months' notice amounting to Rs.27,603/-, as per Regulation-3 of OSEB Employees Age of Retirement Regulation, 1979 applicable to CESCO under the Transfer Scheme Rules, 1998. 2. The factual matrix of the case, in brief, is that the petitioner joined as Lineman-C on 22.04.1970 in the establishment of erstwhile Orissa State Electricity Board. After completing only 9 years of service, he sustained electric burn, while discharging his official duty on 13.07.1979. Consequentially, he faced amputation of both the arms and discharged from S.C.B. Medical College and Hospital, Cuttack on 28.04.1979. But, he was allowed to continue in service even though he lost two limbs of his body for the cause of the establishment. After Orissa Reforms Act came into force, OSEB undergone reformation and accordingly, the petitioner continued under the opposite parties. In Regulation-3 of OSEB Employees Age of Retirement Regulation, 1979 ( in short "Regulation 1979") which was framed in exercise of powers conferred by sub-section (c) of Section 79 of the Electricity (Supply) Act, 1948, the age of retirement of an employee has been specified. While continuing in service under the opposite parties, as per Transfer and Reforms principle, the service benefits are admissible to the petitioner, cannot be disadvantage to him. Therefore, as per the provisions contained in Regulation 1979, the petitioner was to continue till he attained the age of retirement. But, while he was so continuing, he received an office order dated 18.07.2003 retiring him from service with effect from 31.07.2003 A.N. on completion of 30 years of service/already attained the age of 50 years, taking recourse to the provisions laid down under Regulation-3 of Regulation, 1979, which is applicable to CESCO under the Transfer Scheme Rules, 1998 paying 3 months' wage/salary in lieu of 3 months' notice amounting to Rs.27,603/-. Hence this application. 3. Miss. G. Patra, learned counsel, appearing on behalf of Mr. Hence this application. 3. Miss. G. Patra, learned counsel, appearing on behalf of Mr. P. Acharya, learned Senior Counsel, for the petitioner contended that the impugned order dated 18.07.2003 passed by the authority concerned is illegal, arbitrary and violative of Articles-14, 16 and 300-A of the Constitution of India. It is further contended that before retirement of the petitioner, the basic requirement, i.e., the principle of natural justice has not been complied with. As such, the petitioner has been prematurely retired from service though he had further 7 years of service left for superannuation. While superannuating the petitioner from service, the authority lost sight of the fact that he had lost two valuable limbs and he was permanently incapacitated for the cause of the opposite parties. Therefore, retiring him prematurely on completion of 30 years service/already attained the age of 50 years cannot have justification, save and except the petitioner should have been allowed to continue till he attained the age of retirement as per Regulation-3 of Regulation 1979. She further contended that due to incapacitation of the petitioner, he was allowed to continue in service on compassionate ground till superannuation and he was advised neither to opt for Employees Voluntary Retirement Scheme, as was being granted to other employees of the opposite parties, nor to claim compensation under the Workmens' Compensation Act, though he was otherwise entitled to claim adequate compensation for loss of two limbs depending upon the degree of incapacitation. The petitioner did not make any such claim, as because the employer had given assurance that he would continue in service till normal age of superannuation. The date of birth of the petitioner being 04.08.1951, normally he should have retired from service w.e.f. 31.08.2009. But, the action of the authorities in prematurely retiring the petitioner from service by issuing office order dated 18.07.2003, when he had to undergo further 7 years of service, is illegal, arbitrary and contrary to the law. Hence, the petitioner seeks for quashing of the office order dated 18.07.2003. 4. Mr. S.S. Parida, learned counsel appearing for the opposite parties, referring to counter affidavit filed by opposite party no.3, contended that the retirement of the petitioner has been done in compliance of the provisions contained under Clause-3(b)(ii) of the Regulation 1979. Hence, the petitioner seeks for quashing of the office order dated 18.07.2003. 4. Mr. S.S. Parida, learned counsel appearing for the opposite parties, referring to counter affidavit filed by opposite party no.3, contended that the retirement of the petitioner has been done in compliance of the provisions contained under Clause-3(b)(ii) of the Regulation 1979. Thereby, no illegality or irregularity has been committed by issuing the office order dated 18.07.2003 paying the petitioner 3 months wage/salary in lieu of 3 months notice amounting to Rs.27,603/-. It is further contended that CESCO has adopted Regulation 1979 for its employees. On a review being made on the performance and capabilities of its employees, the petitioner was called vide letter dated 14.05.2003 to appear before the Divisional Review Committee held on 03.06.2003, pursuant to which he appeared before the said Committee on the scheduled date. Though the Committee advised him for voluntary retirement, he did not comply with the same. Consequentially, the order impugned in Annexure-1 dated 18.07.2003 was issued. The Committee, having satisfied that the petitioner was incapable to discharge the duty assigned to his post took such step, thereby no fault can be found with the authority in retiring the petitioner from service in consonance with Clause3(b)(ii) of Regulation 1979. Accordingly, he prays for dismissal of the writ petition. 5. This Court heard Miss. G. Patra, learned counsel for the petitioner and Mr. S.S. Parida, learned counsel appearing for the opposite parties. Pleadings have been exchanged between the parties and with the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission as it is an old case of the year 2005. 6. The admitted fact is that the petitioner joined in service on 22.04.1970 and while discharging the official duty on 13.07.1979, he faced electric burn injury. Consequentially, there was amputation of his both arms and he was discharged from SCB Medical College and Hospital on 28.04.1979. The employer, considering his permanent incapacitation, allowed him to continue in service till he attained the age of superannuation and he was advised, neither to opt for Employees Voluntary Retirement Scheme, nor to claim compensation under the Workmens' Compensation Act. But, due to reformation in electricity organization, the services of the petitioner were placed under the opposite parties and consequentially, he was to continue till 31.08.2009 as his date of birth is 04.08.1951. 7. But, due to reformation in electricity organization, the services of the petitioner were placed under the opposite parties and consequentially, he was to continue till 31.08.2009 as his date of birth is 04.08.1951. 7. The Grid Corporation promulgated an Early Voluntary Retirement Scheme known as E.V.R.S. vide Corporate office circular No.2/97 dated 25.08.1997. The scheme is to provide the employee of the company an opportunity to seek early retirement with commensurate monetary benefit to achieve optimum manpower utilization and to rationalize manpower of the company in the light of the age and skill to increase productivity. The said scheme postulates E.V.R.S. benefits in clause-6.0 and the normal benefits in clause-7.0. Pursuant to such Scheme, most of the employees of the CESCO opted for early retirement those who had only less than four to five years of service for superannuation since they were getting salary for 54 months. But, the petitioner did not opt for the same as he was assured not to take voluntary retirement and was allowed to continue in service till the normal age of superannuation. Therefore, the petitioner was deprived of getting the benefit of the Scheme. The petitioner, who became physically incapacitated for his entire life because of electric burn, while discharging his official duty, he was permitted to remain in service till the age of his superannuation otherwise he would have been compensated for the loss of his two limbs for the establishment. But, the loss sustained by him cannot be compensated. Therefore, the erstwhile employer showing a good gesture to him advised him not to opt for any voluntary retirement scheme but to continue in service till attaining the age of superannuation as per Regulation 1979. 8. In exercise of power conferred under sub-section (c) of Section 79 of the Electricity (Supply) Act, 1948, the Orissa State Electricity Board has framed regulation called "The Orissa State Electricity Board Employees Age of Retirement Regulations, 1979". 8. In exercise of power conferred under sub-section (c) of Section 79 of the Electricity (Supply) Act, 1948, the Orissa State Electricity Board has framed regulation called "The Orissa State Electricity Board Employees Age of Retirement Regulations, 1979". Regulation-3 of Regulation 1979 states as follows: "3.(a) The age of retirement of an employee (sic) is 58 years; (b) The age of retirement of an employee in Category IV is 60 years; Provided that (i) an employee may retire at any time after completing 30 years of service or after attaining the age of 50 years by giving notice in writing to the appointing authority at least three months before the date on which he wishes to retire and it shall be open to the appointing authority to withhold permission to such an employee who seeks to so retire if he is under suspension of if any disciplinary proceedings against him are pending or is contemplation; (ii) the appointing authority or the authority to which the appointing authority is administratively subordinate may also require an employee to retire at any time, after he completes 30 years of service or attains the age of 50 years by giving three months' notice in written to the employee, for reasons to be recorded in writing that it is inexpedient or against the interest of the Board to continue to employ him in service; provided that an employee may be retired under this regulations forthwith without complying with the requirement of notice and on such retirement he shall be entitled to an amount equal to three months' wages/salary. The decision of the appointing authority or the authority to which the appointing authority is administratively subordinate requiring an employee to retire from service shall be final and binding on the employee". 9. On reorganization, the services of the petitioner were placed under opposite parties-CESCO, which adopted the Regulation 1979 of OSEB. Therefore, the provisions laid down under Regulation 1979 are applicable to CESCO under the Transfer Scheme Rules, 1998. Accordingly, the petitioner, who had completed 30 years of service/attained the age of 50 years, was called upon to appear before the Divisional Review Committee pursuant to letter dated 14.05.2003 to be held on 03.06.2003. In response to same, the petitioner appeared before the Committee on the scheduled date. Accordingly, the petitioner, who had completed 30 years of service/attained the age of 50 years, was called upon to appear before the Divisional Review Committee pursuant to letter dated 14.05.2003 to be held on 03.06.2003. In response to same, the petitioner appeared before the Committee on the scheduled date. Though the Committee advised him to go for voluntary retirement, but as per assurance given by the previous employer that he would continue till the age of superannuation, the petitioner did not opt for such retirement. Consequentially, office order dated 18.07.2003 was issued retiring him from service w.e.f. 31.07.2003 A.N. on payment of 3 months' wage/salary in lieu of 3 months' notice amount to Rs.27,603/-. Accordingly, the petitioner was compelled to retire with short notice which he sought for quashing. 10. The entire action has been taken against the petitioner contrary to the commitment made by his earlier employer and as such, he had 7 years to go for retirement. Without granting any compensation for the loss caused to him while in official duty, the action which has been taken now is contrary to the provisions of law. Considering from other angle, if a person has discharged his duty and sustained some injury, which led to permanent incapacitation, and if he is thrown out of the job, it will demoralize the employee, more particularly, when the previous employer had shown a good gesture and allowed him to continue till his age of superannuation. Without paying any compensation as due and admissible to him in accordance with law, the subsequent employer under the Transfer Scheme Rules, 1998 cannot act disadvantage to the service of the petitioner, who should have allowed the petitioner to continue till attaining the age of superannuation as per Regulation-3 of Regulation 1979. The petitioner was discharging his duty considering the commitment made by the earlier employer that he would continue till the age of superannuation, which would be a compensation for him for loss caused to him, and accordingly, he planned out the entire life scheme. 11. While considering compassionate appointment under the Steel Authority of India Limited, the apex Court in Balbir Kaur v. Steel Authority of India Ltd., (2000) AIR SC 1596 held in paragraph-8 as follows: "8. 11. While considering compassionate appointment under the Steel Authority of India Limited, the apex Court in Balbir Kaur v. Steel Authority of India Ltd., (2000) AIR SC 1596 held in paragraph-8 as follows: "8. xxxxxx It is in this factual backdrop, the issue needs an answer as to whether we have been able to obtain the benefit of constitutional philosophy of social and economic justice or not. Have the lofty ideals which the founding fathers placed before us any effect in our daily life-the answer cannot however but be in the negative-what happens to the constitutional philosophy as is available in the Constitution itself, which we ourselves have so fondly conferred on to ourselves. The socialistic pattern of society as envisaged in the constitution has to be attributed its full meaning." Further, in paragraph-13 of the said judgment, the apex Court held as follows: "13. The sudden jerk in the family by reason of the death of the bread earner can only be absorbed by some lump sum amount being made available to the familyThis is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the bread earner and insecurity thereafter reigns and it is at that juncture if some lump sum amount is made available with a compassionate appointment, the grief sticken family may find some solace to the mental agony and manage its affairs in the normal curse of events. It is not that monetary benefit would be the replacement of the bread earner, but that would undoubtedly bring some solace to the situation." The above observation made by the apex Court, so far as rehabilitation appointment is concerned, can mutatis mutandis apply to the present context, in view of the fact that the petitioner was permanently incapacitated, while he was discharging his official duty. Thereafter, he was rendering service with the hope that he will retire at the age of superannuation as per Regulation-3 of Regulation 1979. The socialistic pattern of society, as envisaged in the Constitution, has to be attributed its full meaning. Thereafter, he was rendering service with the hope that he will retire at the age of superannuation as per Regulation-3 of Regulation 1979. The socialistic pattern of society, as envisaged in the Constitution, has to be attributed its full meaning. If the bread earner of the family will be thrown out of his employment all on a sudden by paying three months salary, knowing fully well that for the cause of establishment he had sustained permanent incapacitation, without paying any compensation as due and admissible to him, this Court cannot remain as mute spectator in the matter of denial of relief to such an employee, who has suffered for the cause of establishment. As such, the sudden jerk in the family of the petitioner by reason of his permanent incapacitation was absorbed with assurance given by the employer that he would continue till the age of superannuation. In the process, the grief stricken family found some solace to the mental agony and managed its affairs in the normal course of events. Therefore, whatever loss was sustained by the petitioner had only been compensated by allowing him to continue till he attained the age of superannuation so that his family would not suffer. 12. Admittedly, for the loss sustained by the petitioner, no compensation was paid to him. The only compensation which was paid to the petitioner was that assurance given by the employer to continue in service till he attained the age of superannuation, as per Regulation-3 of Regulation, 1979. 13. In Jeejeebhoy v. Asst. Collector, Thana,1965 AIR SC 1069, the apex Court held as follows: "The expression 'compensation' means 'just equivalent of what the owner has been deprived of '." In State of Gujurat v. Shantilal Mangal Das, (1969) AIR SC 634, the apex Court held as follows: "'Compensation' means anything given to make things equivalent, a thing given to or to make amends for loss, recompense, remuneration or pay. It need not therefore necessarily be in terms of money." Similar view has also been taken by the apex Court in KSRTC v. Mahadeva Shetty, (2003) 7 SCC 197 . In Kiranbala Bandapat v. Secy. It need not therefore necessarily be in terms of money." Similar view has also been taken by the apex Court in KSRTC v. Mahadeva Shetty, (2003) 7 SCC 197 . In Kiranbala Bandapat v. Secy. Grid Corporation of Orissa Ltd., (1998) AIR Orissa 159, this Court held as follows: "'Compensation' means anything given to make things equivalent, a thing given or to make amends for loss, recompense, remuneration or pay; it need not, therefore, necessarily be in terms of money, because law may specify principles on which and manner in which compensation is to be determined as given. Compensation is an act which a Court orders to be done, or money which a Court orders to be paid, by a person whose acts or omissions have caused loss or injury to another in order that thereby the person damified may receive equal value for his loss or be made whole in respect of his injury; something given or obtained as equivalent; rendering of equivalent in value or amount an equivalent given for property taken or for an injury done to another, a recompense in value; a recompense given for a thing received recompense for whole injury suffered, remuneration or satisfaction for injury or damage or every description. The expression 'compensation' is not ordinarily used as an equivalent to 'damage' although compensation may often have to be measured by the same rule as damages in an action for a breach." 14. Keeping in view the aforementioned parameters, this Court is of the considered view that retirement of the petitioner on payment of compensation of 3 months' wage/salary in lieu of 3 months' notice amounting to Rs.27,603/-, pursuant to office order dated 18.07.2003, on completion of 30 years of service/already attained the age of 50 years, who suffered loss of permanent incapacitation for the cause of establishment, on the basis of the decision taken by the Divisional Review Committee, cannot sustain in the eye of law. Accordingly, the office order dated 18.07.2003 in Annexure-1 is liable to be quashed and is hereby quashed. 15. The opposite parties are directed to allow the petitioner to continue in service till he attains the age of superannuation in accordance with Regulation-3 of Regulation 1979, which is applicable to CESCO under the Transfer Scheme Rules, 1998, and grant all consequential service and monetary benefits as due and admissible to him. 15. The opposite parties are directed to allow the petitioner to continue in service till he attains the age of superannuation in accordance with Regulation-3 of Regulation 1979, which is applicable to CESCO under the Transfer Scheme Rules, 1998, and grant all consequential service and monetary benefits as due and admissible to him. As he has already attained the age of superannuation on 31.08.2009, his date of birth being 04.08.1951, the differential amount, after adjusting the amount already received by him, shall be paid to the petitioner. The entire exercise shall be completed within a period of three months from the date of production/communication of this judgment. 16. The writ petition is accordingly allowed. However, there shall be no order as to costs.