Gopalpur Port Employee vs Exe.Engnr Port &Inla
2013 Latest Caselaw 3676 Del

W.P.(C) No. 10891 of 2010

3. 22.8.2013 A memo has been filed for deleting the name of Sri S.Mishra, advocate appearing for the petitioner.

In view of the memo filed, the name of Sri S.Mishra be deleted from the brief.

Heard learned counsel for the parties.

This writ petition has been filed by the petitioner Union challenging the action of the opposite parties in not taking steps for re-employment of the workmen of the petitioner Union, as per clause of the Voluntary Separation Scheme ('VSS', for short) implemented in response to and in furtherance of the award dated 23.12.1999, passed by the Industrial Tribunal, Orissa, Bhubaneswar, in I.D. Case No.38 of 1996.

The brief facts of the case is that the petitioner Union raised an industrial dispute for regularization of the employees, who are its members and were working under the Gopalpur Port Project for many years and for equal pay for equal work. Conciliation having failed, the said dispute was referred by the State Government to the Industrial Tribunal for adjudication. The schedule of reference was as under:

"Whether the demands of Gopalpur Port Employees Union, Arzipalli for regularization of 261 N.M.R and two HRS (as per list annexed to the conciliation failure report) or alternatively employees in regular establishment of Port or alternatively payment of equal pay and other allowances as per with the regular employees till their regularization in

regular post are justified ? If so, what should be the details ?"

Learned Industrial Tribunal after hearing the parties and considering the materials available on record, both oral and documentary, in its award dated 23.12.1999, came to hold that the members of the petitioner Union are entitled to equal pay with their counterparts and directed the Management of M/s. Gopalpur Port Project to prepare a scheme for regularization of the members of the petitioner Union, if necessary, in a phased manner. Learned Tribunal accordingly directed that the scheme for regularisation should be finalized within six months from mp the date of publication of the award.

Being aggrieved by the award of the learned Tribunal dated 23.12.1999, the Management of M/s. Gopalpur Port Project assailed the same before this Court in O.J.C. No.6785 of 2000, which was dismissed by order dated 25.10.2000. Against the said order of this Court dated 25.10.2000, the Management of M/s. Gopalpur Port Project filed S.L.P.(C) No.23328 of 2002 before the Hon'ble Apex Court. During pendency of the case before the Hon'ble Supreme Court, the Management of M/s. Gopalpur Port Project introduced the VSS in 2004. As all the workmen of the petitioner Union accepted their dues under the VSS of 2004 in full and final settlement of all their claims, the Management of M/s. Gopalpur Port Project withdrew the Special Leave Petition from the Hon'ble Supreme Court.

It is the case of the petitioner Union that they have

been compelled to accept the VSS, which the Management of M/s. Gopalpur Port Project had framed to avoid the direction of the Industrial Tribunal given in the afore mentioned award dated 23.12.1999. It is further submitted that though the members of the petitioner Union have accepted the VSS, the condition enumerated therein provides that the State Government shall endeavour to request the future developer for the Gopalpur Port to offer preferential treatment for the gainful employment of the NMR's staff, who would have opted for VSS, to the extent possible, given their skill profile, have not be implemented.

Accordingly, a prayer has been made to direct the opposite parties to take immediate steps for re-employment of the members of the petitioner Union under the new Management of Gopalpur Port or any other Port in the State.

Learned counsel for the State, appearing for the opposite parties with reference to the counter affidavit submits that the VSS of 2004 formulated and notified by the M/s. Gopalpur Port Project has been voluntarily accepted by all the workmen of the petitioner Union, without any coercion or duress. It is further submitted in the counter affidavit with regard to clause in the VSS referred to above, the State Government had requested the Private Port Developer to implement the said provision of the VSS and give preferential treatment to the retrenched NMR employees of M/s. Gopalpur Port Project, basing on

their skill profile. However, in reply to the said request, the Private Port Developer, namely M/s. Gopalpur Ports Ltd. have intimated the State Government that they have already invested Rs.120 Crores to complete the Phase-1 work and to make the port operational. At that stage of operation, they have already given employment to 21 numbers of retrenched NMR/DLR employees, basing on their skill profile and requirement. It has been further intimated by the said Private Port Developer that they are not in a position to take any additional burden of labour, specifically of the retrenched employee of the erstwhile Management, who had opted to take voluntary separation from their service.

Learned counsel for the opposite parties further submits that as the VSS was a voluntary scheme and members of the petitioner Union had accepted all dues payable under the said scheme without any demur, it cannot be said that the workmen were forced to accept the said scheme or there was any coercion on the part of the Management or the State.

Considering the submissions made and keeping in view the fact that the members of the petitioner Union have accepted the VSS and all the dues have been received by them in full and final satisfaction of their claims, as has been reflected in the order of the Hon'ble Apex Court in S.L.P.(C) No.23328 of 2002, no direction can be issued to provide re-employment to them.

However, in view of the clause contained in the VSS,

the State Government is directed to explore the possibility of providing engagement to the members of the petitioner Union, either under the Private Port Developer of Gopalpur Port or under any other Port Authorities under the administrative control of the Opposite parties expeditiously.

Writ petition is accordingly disposed of.

Issue urgent certified copy as per rules.

(S.C.PARIJA, J.)