BIRENDRA KUMAR NAYAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS writ petition has been filed with a prayer to quash the notification dated 24.02.2009 (Annexure-3) and order dated 13.11.2009 (Annexure-4). Annexure-3 has been issued by the Government of Odisha in Department of Law giving retirement to the petitioner, who was an officer in the cadre of Civil Judge working as S.D.J.M. with immediate effect. Annexure-4 has been issued under R.T.I. Act intimating the petitioner that after careful consideration of the entries made in his Confidential Character Role (CCR), this Court was of the opinion that the petitioner did not possess standard of efficiency required to discharge the duties of the post held by the petitioner and in the public interest as well as in the interest of betterment of administration of justice his continuance in service was thought not proper. Accordingly, his name was recommended to the Government of Odisha, Department of Home for premature retirement in public interest on payment of three months' salary and allowances in lieu of three months notice as provided under Rule 44 of the Orissa Superior Judicial Service and Orissa Judicial Service Rules, 2007 (for short, "O.S.J.S. & O.J.S. Rules, 2007").

(2.) PETITIONER 's case in a nutshell is that he was appointed as Munsif in the Odisha Judicial Service, Class-II as notified by the Law Department, Government of Odisha vide Notification No.IJ-5/84-393/I/L dated 10.04.1985. His service was confirmed with effect from April, 1987. While the petitioner was working in the cadre of Civil Judge as S.D.J.M., Athagarh, opposite Party No.2 notified retirement of the petitioner vide notification No.VJ-29/07(Pt) 2874/L dated 24.02.2009 in pursuance of Rule 44 of the O.S.J.S. & O.J.S. Rules, 2007 read with first proviso to Rule 71(a) of the Orissa Service Code with immediate effect in public interest. Hence, the present writ petition.

(3.) MR . Khuntia further submitted that after the first departmental proceeding culminated with a punishment in the year 2000, the petitioner was promoted to the rank of Munsif, higher in rank of the post of Additional Munsif-cum-JMFC. Obviously the promotion was accorded in consideration of the petitioner's service records and suitability, seniority and merit for holding the post of higher rank of Munsif. The order under Annexure-3 has been passed as a penalty instead of initiating the disciplinary proceeding. The subject matter of D.P. No.13 of 2005 could not have been taken into consideration for the purpose or to the disadvantage of the petitioner. Thus, the petitioner has been retired under Annexure-3 solely in consideration of the subject matter of D.P. No.13 of 2005 and the retirement stated to be in public interest has only been imposed as a measure of punishment. The petitioner was given retirement when D.P. No.13 of 2005 was pending. Instead of taking the proceeding to its logical end, the authorities have imposed the punishment of retirement on the petitioner. The authorities having come to the conclusion that the charges levelled against the petitioner would not stand scrutiny of law on the face of the written statement of defence filed by the petitioner, they have resorted to take aid of Rule 44 of the O.S.J.S. & O.J.S. Rules, 2007 and Rule 71(a) of the Odisha Service Code to punish the petitioner. Therefore, they have only tried to camouflage their intention of punishing the petitioner at any cost. The action of the authorities amounts to misusing the provisions of Rule 44 of the O.S.J.S. and O.J.S. Rules, 2007 and Rule 71(a) of the Odisha Service Code. Law is very clear that during pendency of a disciplinary proceeding, order of compulsory retirement ought not to be passed.