Orissa High Court
Bichitrananda Panda vs Orissa Power Generation Corporation ... on 29 November, 2017
Author: S.N.Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.2376 of 2008
In the matter of applications under Article 226 and 227 of the Constitution
of India.
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Bichitrananda Panda ...... Petitioner
- Versus-
Orissa Power Generation Corporation
Limited and Others ........ Opposite Parties
Counsel for Petitioner :M/s. S. P. Mishra, S. Mishra, B. Mohanty, S.
Modi, D. Priyanka and Ekta Agarwal.
Counsel for Opp.Parties :M/s. D. P. Nanda, P. K. Mohapatra, M. K. Pati, R.
Kanungo and S. Rath.
PRESENT:
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment: 29.11.2017
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S. N. Prasad, J.This writ petition is under Article 226 and 227 of the Constitution of India wherein the order dtd.04.01.2008 passed by the authority on behalf of the competent authority designated as Sr. General Manager (P & A) I/c is under challenge whereby and where under the premature retirement of the petitioner passed by virtue of order No.1390 dtd.15.4.2006 has been affirmed.
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2. The brief fact of the case of the petitioner is that he was appointed as Senior Manager (Finance) on 4.6.1992, promoted to the post of Grade E-5 but his case was not considered for promotion to the post of Grade E-6 for which he is entitled, rather the opposite party no.3 has insisted him to submit application for voluntary retirement, being aggrieved with the said action of the authorities, he filed writ petition before this Court being W.P.(C) No.10702 of 2003 which is pending for disposal.
In the meanwhile opposite party no.5 has withdrawn the facilities of reimbursement of the residential telephone expenses w.e.f.23.6.2005, challenging the said action, he preferred a writ petition being W.P.(C) No.8214 of 2005.
Some of the co-employees have filed writ petition being O.J.C. No.16539 of 1997 being aggrieved with the decision of the authority in granting promotional benefits to the officers of the Corporation in which the petitioner has filed an intervention petition. This court, vide order dtd.4.12.1997 directed that any regularization made shall be subject to the result of the writ petition. Again vide order dtd.15.12.1997, this court directed that the interim order dtd.4.12.1997 shall also apply to any post upgraded. Thereafter opposite party no.2, vide order dtd.1.1.1998, promoted one Sri Nilamani Mohapatra, Deputy General manager (Finance) to the post of General Manager (Finance) on ad hoc basis which was extended vide order dtd.8.9.1998 and subsequently vide order dtd.16.4.1999 the Management regularized the said ad hoc promotion of Sri Nilamani Mohapatra, thus the 3 petitioner has been discriminated by ignoring his case for consideration for higher post.
In the meanwhile, opposite party no.3 has notified a new Rule known as 'Premature Retirement Rules' to eliminate officers above 50 years who could not otherwise be terminated under OPGC's conduct / discipline / appeal rules. Accordingly the petitioner has also been decided to be prematurely retired and accordingly he has been retired compulsorily vide order No.1390 dtd.15.4.2006, however the Management has given one year further time for assessment of his performance but subsequently the Management has given its opinion that the petitioner could not be able to improve his performance, as such the decision taken by them vide order No.1390 dtd.15.4.2006 has been given effect to.
The order of pre-mature retirement has subsequently been confirmed vide communication dtd.4.1.2008 which is impugned in this writ petition on the following grounds:-
(i) As per the procedure for premature retirement, the decision to retire the petitioner from service has been taken by the Managing Director while he is not the competent authority to take such decision, rather the competent authority to take decision is the Chairman since he is in Grade E-5 post, as such the decision taken by them for premature retirement is without jurisdiction.4
(ii) Remarks given by the opposite parties in the annual confidential report have not been supplied.
(iii) The petitioner is the only employee who has been retired compulsorily in between the period from 2005 to 2017, as such it is the malicious decision of the opposite parties, hence not sustainable.
(iv) The authorities, after taking decision to compulsorily retire the petitioner vide order dtd.15.4.2006, he has been allowed to continue in service for a period of one year for assessing his performance, as such, after completion of the period of one year, the order dtd.15.4.2006 has been given effect to, but before giving effect to the said order, the authorities ought to have given an opportunity of being heard to the petitioner, as such there is violation of principle of natural justice, hence the entire action of the opposite parties is not sustainable on this ground alone.
3. Opposite parties have appeared and filed detail counter affidavit. Learned counsel appearing for the opposite parties has submitted that the contention raised by the petitioner that the decision taken against him for compulsory retirement is without jurisdiction since it ought to have been passed by the Chairman instead of passing the said order by the decision of the competent authority, has got no substance in view of the fact that the decision for compulsory retirement has been taken against the petitioner in view of the decision taken by the authority under the procedure for premature 5 retirement which contains a provision to take decision for premature retirement conferring the said power upon the committee consisting of the Managing Director, Director (Operation) and Director (Finance), who has been held to be the competent authority, as such the said committee has assessed the performance of the petitioner and on being subjectively satisfied, the decision has been taken by the competent authority.
He submits that so far as the question of having power upon the Chairman, that is with respect to disciplinary action and if there is no dispute that the Chairman is the appointing authority of the petitioner, as such the Chairman will act by way of an disciplinary authority, but that is only for the purpose of taking disciplinary action but the compulsory retirement cannot be said to be a punishment and is not a punishment rather it is the decision taken in the public interest and it is on the basis of a policy decision taken by the authorities wherein the power has been conferred upon the committee consisting of members, as such it cannot be said that the committee has got no jurisdiction.
He further submits that since the petitioner has compulsorily been retired under the policy decision wherein the committee is the competent authority to take such decision, as such the petitioner ought to have challenged the same questioning the jurisdiction of the committee but the said policy decision has never been challenged by him at any time or even in this writ petition, as such this point is not available to him for questioning the decision taken by the competent authority under the policy decision. 6
So far as the contention raised by the petitioner regarding the single case of the petitioner which according to him has been taken under the policy decision, same is absolutely incorrect in view of the fact that 12 more employees of the Executive Cadres have been decided to be compulsorily retired who had attained the age of 50 years which is evident from the order dtd.15.04.2006, as such this argument of the petitioner is having no foundation.
Learned counsel for the opposite party, rebutting the argument advanced on behalf of the petitioner that after extension of time for a period of one year to assess his performance, notice ought to have been given, but according to him, this argument is not sustainable in view of the fact that the decision has been taken by the authority in public interest and that was on the basis of their subjective satisfaction, since the decision is for public interest having no punitive effect or stigmatic decision, hence there is no requirement to give opportunity of being heard to the petitioner. 4 Heard the learned counsels for the parties and on appreciation of their rival submission it is evident that the petitioner has challenged in the writ petition the confirmation of premature retirement dtd.4.1.2008. This confirmation is of the decision taken by the competent authority in public interest prematurely retiring the petitioner vide order no.1390 dtd.15.4.2006. It needs to clarify here that the order dtd.15.4.2006 as contained in order No.1390 has not been challenged by the petitioner since according to him the same has not been communicated, but even the said order has been 7 communicated by way of counter affidavit, even then efforts has not been taken by the petitioner to challenge it by filing any amendment application.
Be that as it may, the question fell for consideration regarding legality and propriety of the decision taken by the authority in prematurely retiring the petitioner from service on the grounds taken by the petitioner as stated hereinabove.
This court has thought it proper before going into the question of legality and propriety of the decision taken by the authority to deal with the power of the appointing authority in retiring a government servant prematurely in the public interest.
The settled proposition with respect to interference by court of law in the matter of compulsory retirement is that the order of compulsory retirement is neither punitive nor stigmatic, it is based on subjective satisfaction of the employer and a very limited scope of judicial review is available in such cases. Interference is permissible only on the ground of non- application of mind, mala fide, perverse, or arbitrary or if there is non- compliance of statutory duty by the statutory authority. Power to retire compulsorily the government servant in terms of service rule is absolute, provided the authority concerned forms a bona fide opinion that compulsory retirement is in public interest.
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It is also settled that for the purpose of considering compulsory retirement it is permissible for the employer to take into consideration the adverse entries which were either not communicated to the employee concerned or if communicated, representations made against those entries were still pending. The authorities in such circumstances need to examine the overall performance on the basis of the entire service record to come to the conclusion as to whether the employee concerned has become a deadwood and it is in public interest to retire him compulsorily. The authority must consider and examine the overall effect of the entries of the officer concerned and not an isolated entry, as it may well be in some cases that in spite of satisfactory performance, the authority may desire to compulsorily retire an employee in public interest, as in the opinion of the said authority, the post has to be manned by a more efficient and dynamic person and if there is sufficient material on record to show that the employee rendered himself a liability to the institution, there is no occasion for the court to interfere in the exercise of its limited power of judicial review (Rajsthan State Road Transport Corporation and Others Vrs. Babulal Jangir, reported in 2013 10 SCC 551, Baikuntha Nath Das Vrs. District Medical Officer, reported in (1992) 2 SCC 299) In view of such settled proposition, the fact of the instant case needs to be examined.
It is the position of this case that the petitioner has joined his service as a Senior Manager (Finance) and subsequently he was promoted to 9 the post of Executive Grade E-5, he has been denied promotion to Grade E-6. The authorities, in the meanwhile, have come out with a procedure for premature retirement which covers employees in Executive cadre who have attained 50 years on the ground of his / her being inefficient and if he / she is found medically unfit, irrespective of his / her age. Two grounds have been incorporated therein to prematurely retire the Executive Cadre; one is on medical unfitness and second is inefficiency.
The fact of this case pertains to inefficiency, as such this court is taking into consideration the procedure for the purpose of taking decision of compulsory retirement under the category of inefficient employee, which provides as follows:-
"2.2 Inefficiency:
a) An employee who has secured 'Fair' or 'Poor' ratings in his / her appraisal twice Or Who has secured 'Fair' or 'Poor' ratings in last four years;
Or Who has been considered but not recommended for promotion on four consecutive years;
Or Who has been awarded minor penalty / Advisory letters on three occasions or major penalty on two occasions in entire service career;
Or An employee who is 55 years of age and his last Appraisal Report has been 'Fair' or 'Poor', may be considered as a fit case for pre-mature retirement.
b) The committee deciding Premature Retirement:
The committee consisting of the Managing Director, Director (Operation) and Director (Finance) shall be the 'Competent Authority' under this procedure and they shall have the absolute right to retire prematurely an employee in the executive cadre who has attained the age of 50 years on the ground of his / her being inefficient or if he / she is found medically unfit, irrespective of his / her age, by giving him 1 month's basic pay and allowances under the terms and conditions of service.10
c) While taking the decision of premature retirement of any employee, the Committee will go through the complete records relating to performance of the persons as per Clause 2 on the basis of his / her records / documents / feedback from his / her Head of the Department as also the Performance Appraisal Reports."
It is evident from the aforesaid provision that under this category of employees assessment have been decided to be made, i.e. based upon the performance of one or the other employees belonging to the Executive Cadre. The decision is decided to be taken by the committee consisting of the Managing Director, Director (Operation) and Director (Finance) who have been declared to be the competent authority, while taking decision of premature retirement of any employee, the committee will go through the complete records relating to performance of the person as per Clause 2 on the basis of his / her records / documents/ feedback from his / her Head of the Department as also the Performance Appraisal Reports. The provision of appeal has also been made to be preferred before the Board within period of 15 days from issuance of such order.
It is evident from the material available on record that the petitioner has attained the age of 50 years and decided to be separated from service on the ground of inefficiency, that decision was taken upon review of complete service record and in course thereof, the competent authority has found that the petitioner was issued with more than three Advisory besides two caution / warning letter between 1995 till 2006. Further upon review of the performance appraisal of the petitioner, it was found by the competent authority that the overall rating of the petitioner for the appraisal year 2002- 03, 2003-04 and 2004-05 was poor, fair and fair respectively. Accordingly the 11 committee, while taking decision has taken into consideration the review of progress of work of the petitioner and in course of assessment, the General Manager (Finance) has reported lack of responsibility and sincerity on the part of the petitioner, the fortnight report as per the office order vide memo no.1173 dtd.4.5.2002 has not been sent even though it was due to be sent before the competent authority. The authorities have also came across the fact that the petitioner was on leave on health ground from 16.10.1995 to 21.10.1995 and during which the AG auditors conducted the review and audited Head Office and discussed the same with the Deputy General Manager (Finance) but the audit team was not duly been monitored by him, hence coupled with the annual performance, two advisory notes with all the incidents, decision was taken by the authority on 15.4.2006 to compulsorily retire him from service, i.e. under Annexure-D to the counter affidavit. It is evident from the said order that apart from the petitioner 11 other executives who have attained the age of 50 years have also been assessed.
It is evident from the decision taken by the authority dtd.15.4.2006 that the committee has taken into consideration the details of advisory / caution letter which are as follows:-
"1. Advised to attend the office in time and take permission while leaving office vide Memo No.8 dtd.27.10.1995 by DGM (Finance) for his late coming and leaving office without permission on 25.10.1995.
2. Warned for insubordination by the managing Director vide memo No.57/Con. Dtd.03.11.1995.
3. Advisory Memo issued for misbehavior with staff and for other matters by the General Manager In-charge vide No.4945 dtd.4.6.1998.12
4. Advisory letter issued for non submission of fortnightly report by the General Manager (Finance) vide letter No.1487 dtd.12.6.2002.
5. Advisory letter issued for lack of responsibility and sincerity by the General Manager (Finance) vide Memo No.17 dtd.20.09.2003.
6. The opinion of the Chairman, OPGC Ltd.'s comment that the performance of Sri Panda is not up to the mark was communicated along with a caution vide letter No.07 dtd.25.5.2005 by the Sr. General Manager (Finance)
7. Cautioned for lapses by the Sr. General Manager (Finance) vide Memo No.04 dtd.25.03.2006."
It is further evident that in addition to the above, the Competent Authority taken into consideration the Performance Appraisal Report of the petitioner and found the followings:-
Sl. Appraisal Overall Remarks of the Reviewer / Countersigning Authority.
No. Year Rating Reviewing Authority: The Self Appraisal Has Been Very Defensive. 1 2004-05 Fair (8) Particularly, In A, The Officer Tried To Defend His Action In A Negative Manner. In B He Had Tried To Criticize His Work Assignment.
Countersigning Authority: I Generally Agree With The Views Of The Reviewing Officer As Well As Reporting Officer. Mr. Panda, Being Such A Senior Officer Of The Company never conducted himself in a manner that would give him the respect of his colleagues and his own staff. His commitment to the Company not there and his conduct required attention of the senior Management as it was adversal. I am strongly of the view that on overall basis Mr. Panda was counter-productive to the interest of the Company.
Reviewing Authority: Shri Panda has very poor inter personal relation with 2 2003-04 Fair (8) others and cannot be a team leader which is required for a Senior Manager.
Countersigning Authority: I agree with the Reviewing Officer's assessment. Reviewing Authority: I would grade him as 'Poor'. As a Senior officer, Sh. 3 2002-03 Poor B. N. Panda should handle jobs of responsibility but unfortunately I would not give such jobs as he was not capable of handling jobs with responsibilities.
According to the petitioner the said order has not been communicated to him, as such the same has not been challenged, however in the meanwhile he was allowed to continue in service for a further period of one year in order to review his performance by keeping in abeyance the order of premature retirement dtd.15.4.2006 but even after completion of said 13 period of one year, when his performance was reviewed, he could not show any improvement in his performance and got overall rating of 'poor'. Subsequently the order of compulsory retirement has been confirmed vide order dtd.4.1.2008 which is challenged in this writ petition.
5. The petitioner has assailed the same on the ground of jurisdiction, violation of principle of natural justice, SCR not supplied and he has been singled out.
This court, after considering the policy decision taken by the authority under the procedure for premature retirement, has found that the authorities have taken a decision by formulating the said policy decision to dispense with the services of such executive cadres who have attained the age of 50 years in public interest on the ground of inefficiency or medical unfitness. The committee has been decided to be formulated consisting of the Managing Director, Director (Operation) and Director (Finance). The said committee has taken decision regarding review of the appraisal of performance of the petitioner and it is on the basis of their analysis of the said committee, decision has been taken.
So far as the contention that the petitioner since was in E-5 cadre, hence Chairman being the appointing authority can only take decision for premature retirement and to substantiate his argument, he has demonstrated this fact by way of a chat given at paragraph 49 of the rejoinder affidavit. There should not be any confusion that appointing authority will 14 only be the disciplinary authority. It is also not in dispute that the compulsory retirement in public interest is no way related with the disciplinary action since it carries no stigma or any punishment, rather it is in the public interest to be taken on the subjective satisfaction of the authority on appraisal of the entire service career, as such the contention raised by the petitioner that the Chairman will be the competent authority is not sustainable in view of the fact that it is not a case of disciplinary action since the decision of compulsory retirement has not been taken as a punishment rather it is in public interest in view of the power conferred upon the authority by virtue of a policy decision wherein the committee has been formed to decide the case of one or the other employees working under the opposite parties for premature retirement and decision to retire the petitioner has been taken by the said committee.
The policy decision has never been assailed by the petitioner, as such this point is not available to him at this juncture to assail the decision of the committee questioning its jurisdiction, moreover as stated herein above that the compulsory retirement herein is not in any way related to the disciplinary action, hence the concept of the 'appointing authority' will be the disciplinary authority will not be applicable in such situation.
6. The second contention raised by the petitioner that the annual confidential report since has not been supplied, hence the decision taken by the authority is not tenable, but this argument is also having no substance in view of the fact that it is available to the government or the competent 15 authority to take into consideration the adverse entries which were either not communicated to the employee concerned or if communicated, representations made against those entries were still pending, this aspect has been dealt with in the case of Rajasthan State Road Transport Corporation and Others Vrs. Babulal Jangir (supra) that even communicated or not communicated or even the promotion having been granted to such employee the adverse entry made cannot be ignored for the purpose of arriving at a conclusion to dispense with the service of the employee under the said provision that is in the public interest as because the Hon'ble Apex Court therein has been pleased to hold that since such an assessment is based on entire service record, there is no question of not taking into consideration the earlier old age adverse entries or record of the old period, rather such a record can be taken into consideration, at the same time, the service record of immediate past period will have to be given credence and weightage.
A three-Judge Bench of Hon'ble Apex Court in the case of State of Orissa Vrs. Ram Chandra Das reported in (1996) 5 SCC 331 has been pleased to emphatically hold that object behind compulsory retirement is public interest and, therefore, even if an employee has been subsequently promoted, the previous entries do not melt into insignificance. To quote:-
"7. xxxxx Merely because a promotion has been given even after adverse entries were made, cannot be a ground to note that compulsory retirement of the government servant could not be ordered. The evidence does not become inadmissible or irrelevant as opined by the Tribunal. What would be relevant is whether upon that state of record as a reasonable prudent man would the Government or competent officer reach that decision. We find that selfsame material after promotion may not be taken into consideration only to deny him further promotion, if 16 any. But that material undoubtedly would be available to the Government to consider the overall expediency or necessity to continue the government servant in service after he attained the required length of service or qualified period of service for pension." In the judgment rendered in the case of State of Gujarat Vrs. Umedbhai M. Patel reported in (2001) 3 SCC 314, Pyare Mohan Lal Vrs. State of Jharkhand and Others reported in (2010) 10 SCC 693 the Hon'ble Apex Court, after discussing a number of authorities, have held thus:-
"22. It clearly follows from the above that the clarification given by a two-Judge Bench judgment in Badrinath V. State of Tamil Nadu, reported in (2000) 8 SCC 395 is not correct and the observations of this Court in State of Punjab Vrs. Gurdas Singh, reported in (1998) 4 SCC 92 to the effect that the adverse entries prior to the promotion or crossing of efficiency bar or picking up higher rank are not wiped off and can be taken into account while considering the overall performance of the employee when it comes to the consideration of case of that employee for premature retirement.
23. The principle of law which is clarified and stands crystallized after the judgment in Pyare Mohan Lal Vrs. State of Jharkhand (supra) is that after the promotion of an employee the adverse entries prior thereto would have no relevance and can be treated as wiped off when the case of the government employee is to be considered for further promotion. However, this "washed-off theory" will have no application when the case of an employee is being assessed to determine whether he is fit to be retained in service or requires to be given compulsory retirement. The rationale given is that since such an assessment is based on "entire service record", there is no question of not taking into consideration the earlier old adverse entries or record of the old period. We may hasten to add that while such a record can be taken into consideration, at the same time, the service record of the immediate past period will have to be given due credence and weightage. For example, as against some very old adverse entries where the immediate past record shows exemplary performance, ignoring such a record of recent past and acting only on the basis of old adverse entries, to retire a person will be a clear example of arbitrary exercise of power. However, if old record pertains to integrity of a person then that may be sufficient to justify the order of premature retirement of the government servant."
Even recently in the judgment rendered in the case of Punjab State Power Corporation Ltd. & Ors. vrs. Hari Kishan Verma reported in 17 AIR 2015 SC 2426 the Hon'ble Apex Court has been pleased to hold that the entire service period is to be seen for the purpose of taking such decision.
On the basis of these legal propositions, the argument advanced on behalf of the petitioner regarding non-supply of adverse entries made in the Annual Confidential Report is not tenable, hence rejected.
7. So far as the argument advanced on behalf of the petitioner regarding issuance of notice after extension of period of one year is also not sustainable in view of the fact that since the decision to compulsory retire the petitioner has been taken in the public interest having no stigma or punitive action, hence the same will not come under the purview of Article 311(2) of the Constitution of India, as such there is no requirement to follow the principle of natural justice rather the principle to dispense with the service in the public interest is the subjective satisfaction of the employer that is to be taken on the basis of review of entire service record of the concerned employee, hence in such situation the principle of natural justice is not required to be followed.
Moreover, here in the instant case, the opposite parties have shown their bona fide by granting one year time from the date of final decision, i.e. from 15.4.2006 but even during such extension period the petitioner could not be able to improve his performance rather rating for the said period was 'Poor'.
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In view of such a situation and the legal proposition settled as stated above, the argument advanced on behalf of the petitioner is not sustainable.
8. So far as the argument of the petitioner that he has been singled out and from the date of implementation of the said policy till the year 2017 only the petitioner has been compulsorily retired in the public interest, but that is contrary to the factual situation since in the order dtd.15.4.2006 the performance of 12 employees under the executive cadre including the petitioner, who have attained the age of 50 years, have been assessed, as such this cannot be said to be the correct fact.
In view of entirety of facts and circumstances and on the basis of legal position settled as stated herein above, this court finds that the petitioner has failed to make out a case, accordingly writ petition fails and it is dismissed.
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S.N.Prasad, J.
Orissa High Court, Cuttack, Dated the 29th November, 2017 / Manas.