S. N. Prasad, J. - (1.) 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.
(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 In the meanwhile opposite party no.5 has withdrawn the facilities of reimbursement of the residential telephone expenses w.e.f.23.6.2005, challenging the said action, he preferred a writ petition being W.P.(C)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 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. (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 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. 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.;