The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C.(OA) No. 16 of 2019 In the matter of an application under Section 19 of the Administrative Tribunal’s Act, 1985. ……………… Pravakar Jena …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties For Petitioner : M/s. P.K. Mishra (Advocate) Mr. K.L. Kar (Advocate) For Opp. Parties : Mr. H.K. Panigrahy, Addl. Standing Counsel PRESENT: THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------------- Date of Hearing: 10.11.2023 & Date of Judgment: 10.11.2023 --------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. The Petitioner has filed the present writ petition inter alia with the following prayer:- “i. The Hon’ble Tribunal may be pleased to quash the impugned orders vide No. 1626 dated 11.08.2016 at Annexure-6 and vide No. 28365300302017/RD dated 09.08.2018 at Annexure-17. // 2 // ii. the Hon’ble Tribunal may be pleased to direct the Respondents to treat the applicant has been retired from Govt. service voluntarily w.e.f. the date of issue of order at Annexure-6 and allow him all pensionary benefits as per Rules and further direct the Respondents to disburse all pensionary benefits including arrears within a time to be stipulated. iii. To grant any relief/reliefs as deemed fit and proper.”
Legal Reasoning
This Court in Para 7, 8, 9 & 18 of the said Judgment has held as follows:- “7. The impugned order indicates that the service of the petitioner has been terminated with immediate effect as per Rule-15 of OCS (CCA) Rules, 1962. On perusal of the provisions contained in Rule-15 of the OCS (CCA) Rules, 1962, it appears that elaborate procedure has been prescribed for imposing penalties of termination from service. As per sub-rule (2) of Rule-15 of Rules, 1962, the disciplinary authority shall frame definite charges on the basis of the allegations on which the inquiry is to be held. Such charges together with a statement of the allegations on which they are based, shall be communicated in writing to the government servant and he shall be required to submit, within such time as may be specified by the disciplinary authority but not ordinarily exceeding one month, a written statement of his defence and also to state whether he desires to be heard in person. Sub-rule (3) of Rule-15 of Rules, 1962 prescribes that the government servant shall, for the purpose of preparing his defence, be supplied with all the records on which the allegations are based. He shall also be permitted to inspect and take extracts from such other official records as he may specify, provided that such permission may be refused if, for reasons to be recorded in writing in the opinion of the disciplinary authority such records are not relevant for the purpose or it is against interest of the public to allow him access thereto. Similarly, for causing inquiry, presenting officer and inquiry officer are to be appointed by the disciplinary authority as per sub- rule(5) of Rule-15. Rule-15(6) and (7) provides examination of witnesses. As per sub-rule 10(b) of the Rule-15, the disciplinary authority is to impose any of the penalties as specified in clauses (vi) to (ix) of Rule-13 of OCS (CCA) Rules, 1962. If such elaborate procedure has been prescribed under law, while imposing major Page 5 of 11 // 6 // penalty of termination from service vide order impugned in Annexure- 12 dated 16.12.2019, the aforesaid procedures have not been followed and more so there is non-compliance of principles of natural justice. Nothing has been placed on record to elucidate that due procedure has been followed to award the punishment of termination from service. 8. Furthermore, when report was called for from the Board of Secondary Education, Odisha on 11.11.2019 under Annexure-6, whether such report has been received from the Board or not, that has not been placed on record. Therefore, on the basis of mere allegation of an outsider, the action so taken for termination of service of the petitioner without following due procedure, cannot sustain in the eye of law. 9. It is the basic principles of law long settled that if the manner of doing a particular act is prescribed under any Statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor, (1875) 1 Ch D 426, which was followed by Lord Roche in Nazir Ahmad v. King Emperor, 63 Ind App 372: AIR 1936 PC 253 who stated as under:- -"where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all." The same view has also been taken by the apex Court in Babu Verghese and others v. Bar Council of Kerala & Ors., AIR 1999 SC 1281 at page 1288. In view of detailed procedure envisaged under Rule-15 of the OCS (CCA) Rules, 1962, if the same has not been followed in letter and spirit as to the law discussed above, any action taken in violation of such rules cannot sustain in the eye of law. XXX XXX XXX 18. In view of the facts and circumstances, as well as proposition of law, as discussed above, since the impugned order dated 16.12.2019 in Annexure-12 has been passed without following due procedure of law, i.e. Rule-15 of OCS (CCA) Rules, 1962 and without complying the principles of natural justice, inasmuch as no opportunity of hearing was given to the petitioner, the same cannot sustain in the eye of law and is hereby quashed. The opposite parties are directed to reinstate the petitioner in service with immediate effect.” Page 6 of 11 // 7 // 4.1. It is also contended that since by the time Petitioner was terminated from his service vide order dtd.11.08.2016 the statutory period of 3 (three) months had already elapsed from the date of making the application for VRS, Petitioner is required to be taken as a retired employee w.e.f.16.06.2016. In support of his aforesaid submission learned counsel for the Petitioner relied on the decisions of the Hon’ble Apex Court reported in (1977) 4 SCC 441 (Dinesh Chandra Sangma Vs. State of Assam Ors.) and another decision reported in 1995 Supp (1) SCC 76 (Union of India & Ors. Vs. Sayed Muzaffar Mir). 4.2. Hon’ble Apex Court in Para 7, 8 & 17 of the decision in the case of Dinesh Chandra Sangma has held as follows:- “7. Before we proceed further we may read F. Rule 56 as amended: “F. Rule 56. (a) The date of compulsory retirement of a Government servant is the date on which he attains the age of 55 years. He may be retained in service after this age with sanction of the State Government on public grounds which must be recorded in writing, and proposals for the retention of a Government servant in service after this age should not be made except in very special circumstances. (b) Notwithstanding anything contained in these rules the appropriate authority may, if he is of the opinion that it is in the public interest to do so, retire government servant by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice, after he has attained fifty years of age or has completed 25 years of service, whichever is earlier. (c) Any government servant may, by giving notice of not less than three months in writing to the appropriate authority, Page 7 of 11 // 8 // retire from service after he has attained the age of fifty years or has completed 25 years of service, whichever is earlier.” It is clear from the above that under F. Rule 56(b) the Government may retire a government servant in the public interest by giving him three months' notice in writing or three months' pay and allowances in lieu thereof after he has attained the age of fifty years or has completed 25 years of service, whichever is earlier. 8. As is well known government servants hold office during the pleasure of the President or the Governor, as the case may be, under Article 310 of the Constitution. However, the pleasure doctrine under Article 310 is limited by Article 311(2). It is clear that the services of a permanent Government servant cannot be terminated except in accordance with the rules made under Article 309 subject to Article 311(2) of the Constitution and the Fundamental Rights. It is also well-settled that even a temporary government servant or a probationer cannot be dismissed or removed or reduced in rank except in accordance with Article 311(2). The above doctrine of pleasure is invoked by the Government in the public interest after a government servant attains the age of 50 years or has is constitutionally completed 25 years of service. This permissible as compulsory termination of service under F. Rule 56 (b) does not amount to removal or dismissal by way of punishment. While the Government reserves its right to compulsorily retire a government servant, even against his wish, there is a corresponding right of the government servant under F. Rule 56(c) to voluntarily retire from service by giving the Government three months' notice in writing. There is no question of acceptance of the request for voluntary retirement by the Government when the government servant exercises his right under F. Rule 56 (c). Mr Niren De is therefore right in conceding this position. XXX XXX XXX 17. The High Court committed an error of law holding that consent of the Government was necessary to give legal effect to the voluntary retirement of the appellant under F. Rule 56(c). Since the conditions of F. Rule 56(c) are fulfilled in the instant Page 8 of 11 // 9 // case, the appellant must be held to have lawfully retired as notified by him with effect from August 2, 1976.” 4.3. Hon’ble Apex Court in Para 5 of the decision in the case of Sayed Muzaffar Mir has held as follows:- this Court three-Judge Bench of “5. The second aspect of the matter is that it has been held by a in Dinesh Chandra Sangma v. State of Assam [(1977) 4 SCC 441 : 1978 SCC (L&S) 7] , which has dealt with a pari materia provision finding place in Rule 56(c) of the Fundamental Rules, that where the government servant seeks premature retirement the same does not require any acceptance and comes into effect on the completion of the notice period. This decision was followed by another in B.J. Shelat v. State of Gujarat [(1978) 2 SCC 202 : 1978 SCC (L&S) 208] .” three-Judge Bench 5. Having heard learned counsel appearing for the Parties and after going through the materials available on record, it is found that the Petitioner joined as a regular Peon in the establishment of Opp. Party No. 5 on 12.03.1993. While so continuing, Petitioner remained on leave w.e.f.01.03.2015 to 26.12.2015 and submitted his joining on 27.12.2015 as reflected in Annexure- 4 along with the medical certificate. 5.1. As further found, Petitioner thereafter submitted an application to take voluntary retirement on 16.03.2016 under Annexure-5 before Opp. Party No. 3. But in the meantime without accepting the joining of the Petitioner so submitted on 27.12.2015 and without taking a decision on the application so submitted to take voluntary retirement, Petitioner was terminated from his Page 9 of 11 // 10 // service vide order dtd.11.08.2016 under Annexure-6 with retrospective effect from 28.12.2015. 5.2. Since Petitioner was a regular employee, no such order of termination could have been passed without initiation of a properly constituted proceeding in accordance with the provisions contained under OCS (CCA) Rules, 1962. Since in the instant case no such proceeding was ever imitated under the provisions contained under OCS (CCA) Rules, 1962, placing reliance on the decisions in the case of Biswanath Sethi as cited supra, the order of termination so passed against the Petitioner that too with retrospective effect vide order dtd.11.08.2016 under Annexure-6 is not sustainable in the eye of law. Accordingly, this Court is inclined to quash the order dtd.11.08.2016 and quash the same accordingly. 5.3. With regard to submission of the application for VRS, even though the said application was submitted by the Petitioner on 16.03.2016, but in the counter filed by the Opp. Parties, it has been admitted that the said application was received by the Opp. Party No. 3 on 29.06.2016. Even if accepting the said date as the date of receipt of the application for VRS, following the provisions contained under Rule 42 of OCS (Pension) Rules, 1992, it is to be treated that the VRS application submitted by the Petitioner is deemed to have been accepted w.e.f.28.09.2016, in absence of any rejection to that effect. Therefore, this Court taking into account the application submitted by the Page 10 of 11 // 11 // Petitioner to take VRS under Annexure-5 on 16.03.2016 and the admission of the Opp. Parties that it was received by Opp. Party No. 3 on 29.06.2016, held the Petitioner to have been allowed voluntary retirement from his service w.e.f.28.09.2016. By holding the said date as the date of voluntary retirement of the Petitioner, this Court directs Opp. Party No. 5 to take all effective steps for sanction of pension and other pensionary benefits as due and admissible under the provisions of 1992 Rules within a period of four (4) months from the date of receipt of this order.
Arguments
2. It is contended that while continuing as NMR, Petitioner was regularized as a Peon vide Order No. 1296 dtd.10.03.1993. Pursuant to the said order Petitioner joined as a regular Peon on 12.03.1993 and the said fact is also reflected in the service book of the Petitioner enclosed as Annexure-1. It is contended that while continuing as a regular Peon, Petitioner because of his illness remained on medical leave for the period from 01.03.2015 to 27.12.2015. After recovering from his illness when the Petitioner submitted his joining along with the medical certificate on 28.12.2015 under Annexure- 4, the same was not accepted by the Opp. Party No. 5. 2.1. Subsequently, Petitioner taking into account the fact that he has completed 20 years of qualifying service, submitted an application to take VRS on 16.03.2016 under Annexue-5 in terms of the provision contained under Rule 42 of OCS (Pension) Rules, 1992 (in short Rules 1992). It is contended that as provided under the proviso to Rule 42 of the 1992 Rules, such application submitted to take voluntary retirement if is not accepted within a period of three (3) months, then it is to be treated as deemed acceptance. However, on the face of such legal provision, Opp. Party No. 5 Page 2 of 11 // 3 // without following the provisions contained under Rule 42 of the Rules, terminated the Petitioner from his services vide the impugned order dtd.11.08.2016 under Annexure-6. It is contended that since the Petitioner was a regular employee, without following the provisions contained under OCS (CCA) Rules, 1962 (in short Rules 1962), Petitioner could not have been terminated from his service vide office order dtd.11.08.2016 and that too with retrospective effect from 28.12.2015. 2.2. It is further contended that since by the time the Petitioner was terminated from his service, period of 3 (three) months had already elapsed, the application so submitted on 16.03.2016 was to be treated as deemed acceptance w.e.f.16.06.2016 and Petitioner was required to be treated as a retired employee, having been allowed to take voluntary retirement from his service w.e.f.16.06.2016. It is accordingly contended that the order of termination so passed on 11.08.2016 under Annexure-6 and the rejection to even grant compassionate allowance vide order dtd.09.08.2018 under Annexure-18 are not sustainable in the eye of law. Petitioner in the alternate is entitled to get the benefit of pension and other pensionary benefits by treating the Petitioner to have been allowed voluntary retirement w.e.f.16.06.2016 or at least from 11.08.2016. 3. Mr. Panigrahi, learned Addl. Standing Counsel on the other hand made his submission basing on the stand taken in the counter affidavit so filed by the Page 3 of 11 // 4 // Opp. Party Nos. 1 to 5. It is contended that Petitioner after remaining on leave from 01.03.2015 to 27.12.2015, as contended that he submitted his joining on 28.12.2015 and that was not accepted by the Opp. Party No. 5, but no such joining letter was ever submitted. With regard to submission of the application for VRS on 16.03.2016, it is contend that such application was only received by Opp. Party No. 3 on 29.06.2016. But prior to submission of the joining report of the Petitioner on 28.12.2015, a show-cause was already issued to the Petitioner on 23.11.2015 vide Annexure-J/5 to the counter with the allegation that the Petitioner has submitted a forged transfer certificate. 3.1. It is contended that in view of such show-cause issued to the Petitioner on 23.11.2015, Petitioner was neither allowed to join nor his application to take voluntary retirement was accepted. It is further contended that on receipt of the reply to the show-cause on 22.12.2015 under Annexure-K/5, Opp. Party No. 5 passed the order of termination terminating the services of the Petitioner w.e.f.28.12.2015 vide office order dtd.11.08.2016 under Anenxure- 6. It is accordingly contended that no illegality has been committed in not accepting the application for VRS and terminating the services of the Petitioner w.e.f.28.12.2015 vide order dtd.11.08.2016 under Annexure-6 and so also rejection of the claim to get compassionate allowance as prayed for by the Petitioner. Page 4 of 11 // 5 // 4. To the submission made by the learned Addl. Standing Counsel, learned counsel for the Petitioner contended that since the Petitioner was working as a regular Peon in the establishment of Opp. Party No. 5, he could not have been terminated without following the provisions of 1962 Rules and with initiation of a proper proceeding. In support of such submission, learned counsel for the Petitioner relied on the decision of this Court passed on 28.01.2021 in W.P.(C) No. 26951 of 2019 (Biswanath Sethi Vs. State of Odisha & Ors.).
Decision
6. The writ petition is disposed of accordingly. Orissa High Court, Cuttack Dated the 10th of November, 2023/Sneha (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Dec-2023 19:09:45 Page 11 of 11