R.N. Biswal, J. - (1.) On 9.3.1978 the petitioner was appointed as instrument mechanic in the Kalinga Iron Works, a unit under the Industrial Development Corporation, a Government of Orissa Undertaking and joined in the post on 21.3.1978. He was promoted to the post of Senior Supervisor on 17.4.1981. then to post of Foreman (Instrumentation) on 1.7.1986 and ultimately to the post of Asst. Manager (Instrumentation) on 17.7.1991. He was transferred to Ferro chrome Plant. Jaipur Road on 12.2.1992 and joined there on 4.3.1993. As per the case of petitioner during the last part of 1993, he having been suffered from serious diabetes and other allied complications was rendered incapable of doing the job assigned to him, for which he was compelled to remain on leave. While availing leave, he made a representation to the General Manager (opposite party No. 2) either to transfer him back to Kalinga Iron Works or to allow him to take voluntary retirement under the voluntary retirement scheme then in force. As there was no response, he made several representations for voluntary retirement vide Annexure-4 series, but instead of transferring him back to Kalinga iron works or allowing him to take voluntary retirement under the voluntary retirement scheme in force, during that time, opposite party No. 2 terminated his service vide order dated 28.1.1995 under Annexure-6. On 14.3.1995 the petitioner made a representation to opposite party No. 2 requesting him to review his termination order and allow him to take voluntary retirement under the voluntary retirement scheme in vogue. but it was rejected vide order dated 17.4.1995. Again he represented to the Chairman-cum-Managing Director. I.D.C.O. (opposite party No. 1) requesting to extend him the benefits of voluntary retirement scheme, but to no effect. Licence. he filed the present writ petition with prayer to quash the order under Annexure-6 and to direct the opposite parties to allo", him to avail the benefits of voluntary retirement scheme w.e.f.. January. 1995.
(2.) The opposite parties In a joint counter affidavit averred that while continuing as Asst. Manager (Instrumentation) at Barbil, the petitioner made a representation to the opposite party No. I for his transfer to Banspada Spinning Mill, so that it would be nearer to Balasore, where his wife was serving. During pendency of the said representation, the petitioner's wife, an employee of Chandi under Research and Development Organization, Ministry of Defence, Government of India. made a representation dated 2.12.1991 to her Commandant with a prayer to request opposite party No. 1 to transfer her husband to Baripada Spinning Mill. and in turn the Commandant made a request to the opposite party No. I to get the petitioner transferred from Kalinga Iron Works to Baripada Spinning Mill, Baripada. Since Baripada Spinning Mill is a unit of A.B.S. Spinning Orissa Ltd.. a distinct and separate limited company, the aforesaid representations could not be allowed. However, it was suggested that if the petitioner so liked he could be transferred from Kalinga Iron Works to Ferro Chrome Polan at Jaipur Road, a unit under opposite party No. 1 and. ultimately he was transferred there by opposite party No. I vide order dated 14.1.1992. The petitioner was relieved from Kalinga Iron Works on 24.2.1992 and resumed duty in his new assignment on 4.3.1992. From the next date of joining. he remained absent unauthorised) , for which, on 1 1.6.1992 he was issued with a letter to resume duty forthwith under Annexure-D/ I but he continued the habit of remaining absent unathorisedly. On the plea of i11 health he remained absent from 5.1 1.1993 to 4.4.1994, when he was issued with a letter under Annexure E/ 1 directing him to report to duty immediately and to explain as to why disciplinary action would not be initiated against him instead of reporting to duty, vide letter dated 20.4. 1994 he requested for grant of leave on health ground which was rejected and he was telegraphically asked to report to duty immediately. When the petitioner did not pay any heed to such communications, he was issued with a letter dated 27.5.1994 (Annexure-G/ 1) indicating therein the details of his unauthorized absence and asking him to resume duty immediately and to explain, within three days of receipt of the letter, as to why disciplinary action would not be initiated against him. He was also directed therein to report to the Corporation medical officer for medical check up within 3 days of receipt 3f the said communication. if at all he was suffering from any ailment. Instead of complying with such instructions the petitioner sent a telegram with request for extension of leave upto 31st July, 1994 which was received by the opposite parties on 3.6.1994. On 13/ 15.6.1994 the Corporation gave the ultimatum that the petitioner must report to duty. and if actually he was suffering from any disease, he must get himself examined by the Corporation Doctor on 25.6.1994. failing which it would be viewed that he had no intention to continue in service and that he had abandoned his employment (Annexure-J/ 1). On receipt of the said letter, again the petitioner made a representation for extension of his leave up to 23.7.1994 on medical ground. The plea for remaining absent having not been accepted opposite party No. 2 vide letter dated 7.7.1994 directed the petitioner to resume duty on 23.7. 1994 failing which he was forewarned that his name would be struck off the rolls of the company (Annexure-K/ 1). Despite such warning. vide letter dated 25.7.1994 the petitioner expressed his in--ability to resume duty on health ground and prayed to retire him under the V.R. Scheme, but due to acute financial crisis prevailing in the plant it was not possible to accept the prayer of the petitioner and he was directed vide letter dated 28.9.1994 to resume duty by 7.10.1994 (Annexure-M/ 1). Again. Instead of resuming duty. vide letter dated 8.10.1994 he expressed his inability to serve under the opposite party No. 2 and further prayed to reconsider his prayer for extension of the benefits of V.R. Scheme in his favour and in the alternate he prayed to transfer him back to Kalinga Iron Works, Barbil (Annexure-N/ 1). Both the Prayers having not been acceptable the same were rejected and as a last chance the petitioner was directed to resume duly by 12.12.1994 falling which it was forewarned that his services would be terminated in terms of contractual employment. without further reference to him (Annexure-0/ 1). but to no effect. As the petitioner constantly flouted the directions of the opposite parties and expressed his inability to report to duty. his services were terminated in terms of contractual employment vide letter dated 28.1.1995 (Annexure-6). Under the circumstances the opposite parties prayed to dismiss the writ petition.
(3.) As found from the pleadings of the parties, there is no dispute that the petitioner was appointed as an instrument mechanic on 9.3.1978 under corporation. He was promoted to different higher posts at different stages and ultimately to the post of Asst. Manager (Instrumentation) on 17.7.1991. He made representations to transfer him to Baripada Spinning Mill, a unit of A.B.S. Spinning mill. Orissa. so that he would be nearer to Chandipur where his wife was serving, but he was transferred to Ferro Chrome Plant at Jaipur Road. on 12.2.1992, where he joined on 14.3.1993. After joining there, he remained absent on different occasions as detailed in Annexure-G/ 1. On several occasions opposite parties asked him to resume his duty, but each time he went on extending his leave on healthy ground and ultimately on 13/15.6.1994 he was asked to report before the Corporation doctor for being medically examined. but he did not comply the order. As per pleadings of the opposite parties, his representation for allowing him to avail the benefits of voluntary retirement scheme could not be allowed due to poor financial condition of the corporation and final] y his services were terminated on 28.1.1995. in terms of para-5 of the letter of appointment bearing No. 16657 dated 9.3.1978 and para-6 of the terms contained in the office order/memo No. G-10541 dated 17.7.1991 enclosing therewith a draft of Rs. 5286/- drawn in his favour, which is equivalent to one month salary of the petitioner in lieu of one month's notice (Annexure-6).;