Premature retirement must not substitute for disciplinary action and should be based on clear evidence of public interest, not unsupported allegations.

JUDGMENT :

Biraja Prasanna Satapathy, J.

1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. Heard learned counsel appearing for the parties.

3. The present Writ Petition has been filed inter alia challenging order dtd.05.01.2021 so passed by the Government-Opposite Party No.1 under Annexure-6, whereby Petitioner was given premature retirement in exercise of the power conferred under Rule-71(a) of the Odisha Service Code (in short ‘code’) from the date of the order.

4. Learned counsel appearing for the Petitioner contended that Petitioner while continuing in service as a Jailor-cum Superintendent in Malkanagir Sub-jail, a proceeding was initiated against him vide Memorandum dtd.09.12.2016 under Annexure-1. In the said proceeding after completion of the enquiry, the Enquiry Officer submitted the report on 04.11.2019 under Annexure-3 with the following findings:-

“It is a fact that the Sub-jail, Malkangiri is heavily populated Jall. Being Jailor-Cum-Superintendent, he has to strive hard for smooth running of the jail administration. He has rectified most of his wrong accounting. Previously P.D.S rice was being supplied to Jails. Abruptly the same was stopped. So, the rice cost suddenly swelled-up. However, he has exceeded the diet cost fixed by Government He appears to have imperfect knowledge in accounts matter. So, he has committed some financial impropriety. However, the shortage of stock and excess payment to contractor have been recovered and accounted for. Hence, lenient view may be taken against him”.

4.1. Learned counsel appearing for the Petitioner contended that after receipt of the enquiry report, Petitioner was issued with the 1^st show cause and thereafter the 2^nd show cause on 08.10.2020 under Annexure-4, by proposing the punishment of reduction to the rank of Asst. Jailor as provided under Rule-15 (10)(i)(b) of the OCS (CCA) Rules, 1962 (in short ‘Rules’.

4.2. It is however contended that after issuance of such 2nd show cause vide office order dtd.08.10.2020 under Annexure- 4 and after submission of the reply by the Petitioner on 23.10.2020 under Annexure-5, the impugned order of premature retirement was passed by Government-Opposite Party No.1 on 05.01.2021 under Annexure-6, in exercise of the power conferred under Rule-71(a) of the Code. Petitioner as per the impugned order was given premature retirement w.e.f. 5.1.2021.

4.3. Learned counsel appearing for the Petitioner contended that since Petitioner in the proceeding initiated vide Memorandum dtd.09.12.2016 was found not guilty of the charges by the Enquiry Officer and against the 2nd show cause issued on 08.10.2020 under Annexure-4, Petitioner submitted the reply under Annexure-5, there was no occasion to make the Petitioner retired prematurely vide the impugned order dtd.05.01.2021 under Annexure-6.

4.4. It is also contended that such an action taken by the Government- Opposite Party No.1 is contrary to the guidelines issued by the Government in GA & PG Department in its resolution dtd.24.09.2019 under Annexure-7.

4.5. It is contended that Para-9 of the guideline dtd.24.09.2019 since was never followed in letter and spirit, the order of premature retirement is not sustainable in the eye of law.

“9.Premature retirement can be ordered in public interest only and not as a penalty to the employee concerned. Compulsory retirement is one of the major penalties listed under Rule 13 of the Orissa Civil Services (Classification, Control & Appeal) Rules, 1962 and before it is imposed on any employee, the procedure outlined the said Rules for imposition of major penalties must be complied with. Premature retirement under Clause (a) of Rule 71 of the ORISSA SERVICE CODE is not and must