The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OA) No.506 of 2018 Pravati Mallik & Others …. Petitioners -versus- State of Odisha & Others …. Opposite Parties COROM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No ORDER 22.03.2023 06. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. The present Writ Petition has been filed by the legal heirs of the deceased employee inter alia with the following prayer:- “(i) Order directing the respondents to produce the relevant records along with return. (ii) Order directing the action of the respondent in passing the premature retirement order illegal and unconstitutional. is bad (iii) Order directing the respondent to draw and disburse the arear salary from 1.4.98 to 18.10.2000 i.e. death of Dhaneswar Mallick. (iv) Order allowing the applicants all the pecuniary service benefits as would be available to them under law. (v) Order allowing all or any other relief as would be available to the applicants under law. (vi) Order allowing the application with costs”.
Legal Reasoning
3. Learned counsel for the Petitioners contended that the deceased employee namely late Dhaneswar Mallick was initially appointed as a Legal Assistant (subsequently re- designated as an Assistant Legal Officer) on 05.07.1978. // 2 // But while continuing as such, he was placed under suspension w.e.f. 28.07.1983 and subsequently a proceeding was initiated against him. In the said proceeding, the deceased employee was terminated from his service w.e.f. 12.04.1984 vide notification issued by the Government in the Law Department. Even though the deceased employee challenging such order of termination moved the appellate authority, but the prayer for his reinstatement was rejected by the appellate authority. However, taking into account the prayer made before the Government, the deceased employee was reinstated in his service vide notification dated 12.05.1988. 3.1. After such reinstatement, when the deceased employee found that during his period of termination, his juniors have been given promotion to the next higher rank, the deceased employee moved the Tribunal in O.A No.2202 of 1996. The Tribunal vide order dated 12.03.1998 under Annexure-4 when directed the Secretary, Law Department to consider the claim of the deceased employee, the Opposite Parties with malafide intention and vide order dated 15.02.1999 under Annexure-5 made him to retire taking recourse to the provision contained under Rule- 71(a) of the Orissa Service Code. 3.2. It is contended that subsequent to the said order in making the deceased employee to retire prematurely at the age of 55 years, the deceased employee out of mental shock since died on 18.03.2000, he could not get any time to challenge the order at Annexure-5. Accordingly, the present Petitioners being the legal heirs of the deceased employee have approached this Court in the present Page 2 of 9 // 3 // matter challenging the order under Annexure-5 and for extension of other reliefs as prayed for. 4. Mr.M.K. Balabantaray, learned Addl. Government Advocate for the State on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that though the deceased employee was initially appointed as Legal Assistant on 05.07.1978, but he was removed from his service vide notification dated 12.04.1984 under Annexure-D to the counter after being found guilty in a proceeding initiated on 30.07.1983 under Annexure-C. The said order of removal was passed on conclusion of the disciplinary proceeding initiated against the deceased employee. 4.2. It is further contended that even though the appeal preferred by the deceased employee was rejected by the Government, but on compassionate ground and as provided under Rule-91(3) of the Orissa Service Code, he was reinstated in his service vide office order dated 12.05.1988 under Annexure-E to the counter. But while reinstating the Petitioner vide order dated 12.05.1988 under Annexure-E, it was clearly indicated in the said order that the period of suspension from 28.07.1983 to 12.04.1984 will be treated as such and the deceased employee will not be entitled to any pay and allowances during the period of termination. It is also indicated in the said order that the period of termination will only count towards pension and not for any other purposes. 4.3. It is contended that pursuant to such order of reinstatement so issued under Annexure-E, even though the employee concerned rejoined in his post, but his Page 3 of 9 // 4 // conduct all through was not in the better interest of the State and he was warned on different occasions for his misconduct and behaviour towards his higher officials. 4.4. It is further contended that taking into account the conduct of the deceased employee from his initial date of appointment, the Government decided to review his continuance on his attaining the age of 55 years. The Review Committee in its proceeding dated 30.01.1999 under Annexure-B to the counter held that the continuance of the employee beyond 55 years would be detrimental to the administration in public interest and the employee concerned should be compulsorily retired from the Government service. Basing on such recommendation of the Review Committee under Annexure-B to the counter, the Petitioner was allowed to retire at the age of 55 years in accordance with the provision contained under Rule-71(a) of the Orissa Service Code vide order at Annexure-5. 4.5. It is further contended that the deceased employee never challenged the condition imposed in the order of reinstatement passed on 12.05.1988 under Annexure-E nor he challenged the impugned order making him to retire at the age of 55 years so issued under Annexure-5 to the Writ Petition. It is also contended that after allowing the deceased employee to retire in terms of the order under Annexure-5, all the benefits as due and admissible was also paid to the deceased employee and after his death, the Petitioner No.1 has also been sanctioned with the family pension and other pensionary benefits as due and admissible. Page 4 of 9 // 5 // 4.6. It is accordingly contended that since the deceased employee during his short tenure faced two numbers of disciplinary proceeding and was warned on many occasion, Government in its wisdom decided to review his continuance beyond 55 years and basing on the report submitted by the Review Committee under Annexure-B, the Petitioner was rightly made to retire in accordance with the provision contained under Rule-71(a) of the Orissa Service Code. 4.7. It is further contended that since at no point of time prior to his death on 18.03.2000, the deceased employee ever challenged either the impugned order at Annexure-5 or the conditions stipulated in his order of reinstatement issued on 12.05.1988 under Annexure-E, the stand taken by the present petitioners to get the benefit as prayed for is not entertainable. 4.8. It is also contended that even though the Tribunal in its order under Annexure-4 directed the Secretary of the Department to consider the claim of the deceased employee, but when the same was not complied with, the deceased employee filed M.P. No.55/1999. But the Tribunal vide its order dated 19.04.1999 under Annexure-A to the counter rejected the said Misc. Petition. The order at Annexure-A also remained unchallenged. Therefore, the stand taken by the Petitioners that with malafide intention and to avoid the compliance of the direction so issued by the Tribunal under Annexure-4, the deceased employee was made to retire prematurely vide order under Annexure-5 is not correct. Page 5 of 9 // 6 // 5. To the submission made by the learned Addl. Government Advocate, Mr. K.C. Sahu, learned counsel for the Petitioners contended that the claim of the deceased employee for his promotion though was recommended to the commission in terms of the order passed by the Tribunal in O.A No.631/1992 and the said order was assailed by the aggrieved party before the Hon’ble Apex Court in SLP (Civil) No. 4017/1994, but Hon’ble Apex Court vide its order dated 07.12.1995 under Annexure-9 refused to interfere with the direction of the Tribunal. In spite of such order passed by the Tribunal, when the deceased employee was not given the benefit of promotion, he approached the Tribunal in O.A No.2202 of 1996 and the Tribunal in its order under Annexure-4 when directed for consideration of the claim of the Petitioner, the Opposite Party No.1 with malafide intention and to harass the deceased employee compulsorily retired him taking recourse to the provision contained under Rule-71(a) of the Orissa Service Code. 5.1. It is contended that from the action of the Opposite Parties, it is apparent that the Opposite Party No.1 in order to deprive the benefit of promotion to the deceased employee and to see that the order passed by the Tribunal under Annexure-4 is not complied with, constituted a Review Committee and basing on the report of the Review Committee so submitted under Annexure-B to the counter, the impugned order at Annexure-5 was passed. 5.2. It is also contended that since the deceased employee subsequent to the order under Annexure-5 died on 18.03.2000, he had no occasion to challenge the same and the Petitioners being the legal heirs have rightly challenged Page 6 of 9 // 7 // the said order with the further prayer to extend the benefit as due and admissible. Learned counsel for the Petitioner in support of his submission relied on a decision of the Hon’ble Apex Court in the case of Captain Pramod Kumar Bajaj vs. Union of India & Another reported in 2023 Livelaw (SC) 165. Hon’ble Apex Court in Para-38 has held as follows:- “38. The appellant has made allegations of institutional bias and malice against the respondents on the plea that the Chairman, CBDT who was a Member of the Review Committee, was facing three contempt proceedings relating to the appellant’s service dispute, wherein notices had been issued by the High Court as well as the Tribunal. There is no doubt that rule of law is the very foundation of a well-governed society and the presence of bias or malafides in the system of governance would strike at the very foundation of the values of a regulated social order. The law relating to mala fide exercise of power has been the subject matter of a catena of decisions [Refer: S. Pratap Singh v. State of Punjab23; Jaichand Lal Sethia v. State of W.B 24; J.D. Srivastava v. State of M.P And Others 25; and Express Newspapers Pvt. Ltd. And Others v. Union of India And Others26]. It has been repeatedly held that any exercise of power that exceeds the parameters prescribed by law or is motivated on account of extraneous or irrelevant factors or is driven by malicious intent or is on the face of it, so patently arbitrary that it cannot withstand judicial scrutiny, must be struck down. In the instant case, though the appellant has levelled allegations of institutional bias and prejudice against the respondents, particularly against the then Chairman, CBDT who was a Member of the Review Committee, the said officer was not joined by the appellant as a party before the Tribunal or the High Court, for him to have had an opportunity to clarify his stand by filing a counter affidavit. Hence, these allegations cannot be looked into by this Court”. 6. I have heard Mr. K.C. Sahu, learned counsel for the Petitioner and Mr.M.K. Balabantaray, learned Addl. Government Advocate for the State. On the consent of the learned counsels appearing for both the Parties, the matter was taken up for final disposal at the stage of
Decision
admission and disposed of by the present order. 7. Heard learned counsel for the Parties at length. Perused the materials available on record, it is found that even though the deceased employee was appointed as a Legal Assistant, which was subsequently re-designated as Page 7 of 9 // 8 // Asst. Law Officer on 05.07.1978, but subsequent to his appointment he was not only placed under suspension w.e.f. 28.07.1983, but also a proceeding was initiated against him vide proceeding dated 30.07.1983 under Annexure-C to the counter. In the said proceeding, the Petitioners being found guilty of the charges was removed from his service vide notification dated 12.04.1984 under Annexure-D. Against the order of termination, though the appeal filed by the deceased employee was rejected, but on compassionate ground the deceased employee though was reinstated in his service vide notification dated 12.05.1988, but in the said order it was clearly indicated that the period of termination will only count towards pension and it will not be counted for any other purposes. It is found that the said condition imposed in the order of reinstatement issued on 12.05.1988 under Annexure-E was never challenged by the deceased employee and he rejoined in his post in terms of the said notification. 7.1. It is also found that even after his reinstatement, the deceased employee never changed his attitude and because of that vide office order dated 18.01.1997 under Annexure-F, he was warned from repeating such misconduct and behavior in future. It is also found that subsequent to such warning another proceeding was also initiated against the deceased employee on 03.04.1998 and the Petitioner in the said proceeding was also found guilty of the charges by the enquiry officer while submitting his report on 24.12.1998 under Annexure-J to the counter. 7.2. It is also found from the record that taking into account the conduct of the deceased employee, the Page 8 of 9 // 9 // Government on his attaining the age of 55 years decided to review his continuance in accordance with the provision contained under Rule-71(a) of the Orissa Service Code. It is found that the Review Committee after a threadbare discussion with regard to the conduct of the deceased employee, came to a finding under Annexure-B that the continuance of the deceased employee beyond 55 years would be detrimental to the administration in public interest and accordingly recommended to compulsorily retired him from Government service. Basing on such recommendation of the Review Committee, the deceased employee was allowed to retire in terms of the provision contained under Rule-71(a) of the Orissa Service Code vide order under Annexure-5. 7.3. It is also found that the order passed under Annexure-5 was never assailed by the deceased employee and he also accepted the benefits as due and admissible. It is also found that the Petitioner No.1 has been sanctioned with the family pension and other retiral benefit as due and admissible to the deceased employee. 7.4. Therefore, taking into account the materials available on record, this Court finds no illegality or irregularity with regard to passing of the order under Annexure-5. The allegation of malafide is also not established. In view of such finding of this Court, the Petitioners are not entitled to get the relief as prayed for. Accordingly, the Writ Petition merits no consideration and dismissed. Judge (Biraja Prasanna Satapathy) Subrat Page 9 of 9