Afr Mamata Manjari Mohanty vs State Of Odisha And Others
2021 Latest Caselaw 8605 Ori

                  ORISSA HIGH COURT: CUTTACK


                       WPC (OAC) No. 3077 of 2014

         In the matter of an application under Articles 226 of the
         Constitution of India.
                                ---------------

AFR Mamata Manjari Mohanty ..... Petitioner

-Versus-

         State of Odisha and others             .....     Opp. Parties


           For Petitioner     : Mr. M.K. Mohanty,
                                Advocate

For Opp. Parties : Mr. H.K. Panigrahi, Addl. Standing Counsel

P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI

Date of hearing: 11.08.2021: Date of judgment: 17.08.2021

DR. B.R. SARANGI, J. The petitioner, by means of this

writ petition, seeks to quash the order of retrenchment

dated 29.04.2011 in Annexure-10, and to issue

direction to the opposite parties to regularize her // 2 //

service under the work charged establishment, by

reinstating her in service and fixing her seniority, and

to pay all the consequential financial and service

benefits as due and admissible to her in accordance

with law.

2. The factual matrix of the case, in precise,

is that the petitioner was engaged as NMR Mate (Typist)

under the Executive Engineer, Mahanadi Barrage

Division, Cuttack on 21.03.1985. While she was

discharging her duty continuously, her service was

terminated by the Executive Engineer, Mahanadi

Barrage Division-opposite party no.4 on 01.03.1989

violating the provisions contained under Section 25-F

and 25-G of the Industrial Disputes Act, 1947.

Consequentially, the petitioner raised industrial dispute

before the appropriate Government and accordingly the

Government of Odisha in Labour and Employment

Department, vide order dated 15.10.2001, referred the

dispute for adjudication by the Presiding Officer, // 3 //

Labour Court, Bhubaneswar, which was subsequently

transferred to be adjudicated by the Presiding Officer,

Industrial Tribunal, Bhubaneswar, vide order dated

04.04.2008, with following reference:-

"Whether the termination of services of Smt. Mamata Manjari Mohanty, NMR Mate (Typist) by the Executive Engineer, Mahanadi Barrage Division, Cuttack is legal and/or justified, if not what relief Smt. Mohanty is entitled to?"

2.1 When the matter was pending before the

Industrial Tribunal, Bhubaneswar for adjudication,

Government of Odisha, vide notification no.7323 dated

28.02.2009, took a decision to bring the NMRs, who

were recruited prior to 12.04.1993, to the work charged

establishment w.e.f. 01.03.2009. Thereafter,

Government of Odisha in Water Resources Department,

vide order no.17229 dated 19.06.2009, directed the

Engineer-in-Chief, Water Resources to bring the NMR

employees recruited prior to 12.04.1993 to the work

charged establishment. Consequentially, the Engineer-

in-Chief, Water Resources, vide order no.8968 dated // 4 //

20.07.2009, directed the Superintending Engineer,

Drainage Circle, Cuttack to implement the order of the

Government by bringing the NMR employees, who were

engaged prior to 12.04.1993, to the work charged

establishment with effect from 01.03.2009. Thereafter,

the Superintending Engineer, Drainage Circle, Cuttack,

vide order no.3826 dated 25.08.2009, brought the NMR

employees recruited prior to 12.04.1993 to the work

charged establishment with effect from 01.03.2009.

Thereafter, the Presiding Officer, Industrial Tribunal,

Bhubaneswar, vide award dated 24.02.2010, answered

the reference in I.D. Case No.256 of 2008, paragraphs-8

and 9 of which read thus:-

"8. It may be stated here at the cost of repetition that the management has not complied with the mandatory requirement of Section 25-F of the Act while terminating the employment of the workman nor did it prove that the termination of employment of the workman was due to her misconduct. Hence, the action of the management is held to be neither legal nor justified.

9. In view of the discussions made in the foregoing paragraphs, the workman is held entitled to reinstatement in service with 50% back wages. The management is directed to // 5 //

implement the Award within a period of two months hence."

2.2 In terms of the above award, Government

of Odisha in Water Resources Department, vide order

no.19021 dated 29.07.2010, directed the Engineer-in-

Chief, Water Resources to reinstate the petitioner in

service with 50% back wages and thereafter to retrench

her by following mandatory provisions of statute.

Consequentially, vide order dated 21.08.2010, the

petitioner was reinstated in service and allowed to work

in the office of the Executive Engineer, Mahanadi

Barrage Division, Cuttack until further orders and also

paid the back wages from 01.03.1989 to 26.08.2010.

Pursuant to such order, the petitioner joined in service

in the office of the Executive Engineer, Mahanadi

Barrage Division on 27.08.2010. Thereafter, the

Superintending Engineer, vide order no.4823 dated

30.09.2010, intimated the Engineer-in-Chief that the

NMRs, who are junior to the petitioner, are continuing

in service and they have been brought to the work // 6 //

charged establishment and some of them have also

been brought over to the regular establishment. But the

Government, vide order no.28219 dated 10.11.2010,

directed the Engineer in Chief to retrench the petitioner

by following due procedure and mandatory requirement

of the statute. Thereafter, the Engineer in Chief, vide

order dated 01.01.2011, directed the Superintending

Engineer to retrench the petitioner from service. As a

consequence thereof, the Superintending Engineer, vide

office order dated 29.01.2011, retrenched the petitioner

with immediate effect, but, however, without complying

the mandatory provisions under Section 25-F of the

Industrial Disputes Act, 1947, and consequentially on

30.04.2011 a cheque amounting to Rs.4326/- was

offered to the petitioner, which she did not accept.

Aggrieved by the above action of the

authority, the petitioner filed O.A. No. 3077 (C) of 2014

before the Odisha Administrative Tribunal, Cuttack

Bench, Cuttack and on abolition of the tribunal, the // 7 //

same has been transferred to this Court and

renumbered as WPC (OAC) No.3077 of 2014.

3. Mr. M.K. Mohanty, learned counsel for

the petitioner contended that the order of retrenchment

dated 29.04.2011 under Annexure-10, having been

passed without following the provisions contained

under Sections 25-F and 25-G of the Industrial

Disputes Act, 1947, cannot sustain in the eye of law. It

is further contended that the petitioner, who was

engaged on 21.03.1985 as an NMR Mate (Typist), was

retrenched from service on 01.03.1989, and such order

of retrenchment, having been passed without following

the provisions contained under Section 25-F of the

Industrial Disputes Act, 1947, was held to be neither

legal nor justified by award dated 24.02.2010 passed by

the Industrial Tribunal in I.D Case No.256 of 2008 and

the petitioner was directed to be reinstated in service

with 50% back wages, pursuant to which she joined in

service on 27.08.2010 and continued to discharge her // 8 //

duty. In such circumstance, since the NMR employees,

who were engaged prior to 12.04.1993, were brought to

the work charged establishment with effect from

01.03.2009, the petitioner should have been brought

over the work charged establishment, as she had been

engaged prior to 12.04.1993. Besides, since the

Superintending Engineer, vide letter dated 30.09.2010,

intimated the Engineer-in-Chief that the NMRs who are

junior to the petitioner are continuing in service, the

petitioner should have been brought over to the work

charged establishment and allowed to continue in

service. It is further contended that some of the juniors

to the petitioner, having been brought over to the

regular establishment, she should have been brought

over to the regular establishment.

His further contention is that according

to the provisions contained in Section 25-F(b) at the

time of retrenchment the workman should be paid

compensation, which shall be equivalent to 15 days // 9 //

average pay for every completed year or continuous

service. Though the petitioner has worked for near

about 16 years, only Rs.1545/- has been paid towards

the compensation. So far as retrenchment due is

concerned, a cheque bearing no.875312 amounting to

Rs.4326/- was offered on 30.04.2011, but petitioner

did not accept the same. As per the provisions

contained under Sections 25-G of the Industrial

Disputes Act, 1947 the employer shall ordinarily

retrench the workman who was the last person to be

employed in the category, unless for reasons to be

recorded the employer retrenches any other workman.

It is contended that a number of junior workmen are

working in the establishment, so the last come first go

principle is very much applicable in the present case.

Thereby, the order of retrenchment passed by the

authority is in gross violation of the provisions

contained under Section 25-G of the Industrial

Disputes Act. At last but not the least, it is contended

that though the order of retrenchment was passed on // 10 //

29.04.2011, but one month's wages in lieu of notice, as

contemplated under Section 25-F, was offered to the

petitioner on 30.04.2011 and, as such, the same being

not simultaneous one, the impugned order of

retrenchment cannot sustain in the eye of law.

To substantiate his contention, he has

relied upon the judgments of the apex Court in the

cases of National Iron and Steel Co. Ltd v. State of

West Bengal, AIR 1967 SC 1206; Syed Azam

Hussaini v. Andhra Bank, AIR 1995 SC 1352;

Incharge Government Hide Flaying Centre v. Rama

Ram and another, (2003) 9 SCC 163; and Gouri

Shanker v. State of Rajasthan, (2015) 13 SCC 754.

4. Mr. H.K. Panigrahi, learned Addl.

Standing Counsel appearing for the State, supporting

the order of retrenchment passed by the authority in

Annexure-10, contended that since the petitioner

alleged violation of Industrial Disputes Act, 1947, this

petition is not maintainable. It is further contended // 11 //

that when the order of retrenchment dated 29.04.2011

in Annexure-10 was passed as per the provisions

contained in Section 25-F of the Industrial Disputes

Act, 1947, the petitioner was offered on 30.04.2011 one

month's pay, in lieu of one month notice, amounting to

Rs.4326/-, which the petitioner refused. Thereby, the

contention raised, that Section 25-F has not been

complied with, cannot sustain. As regards the claim of

the petitioner that she had joined as NMR Mate (Typist)

on 21.03.1985 and, in view of the Government

notification dated 28.02.2009, she should have been

brought over to the work charged establishment, as she

had been employed on or before 12.04.1993, and, in

view of the letter dated 30.09.2010 of the

Superintending Engineer, since her juniors have been

allowed to continue in service, she should have been

allowed to continue, it is further contended that vide

order dated 10.11.2010 Government directed the

Engineer-in-Chief to retrench the petitioner by following

due procedure and mandatory requirement of the // 12 //

statute and, as such, in compliance of the same, the

order impugned having been passed, no illegality or

irregularity has been committed by the authority so as

to warrant interference by this Court. Consequentially,

he seeks for dismissal of the writ petition.

5. This Court heard Mr. M.K. Mohanty,

learned counsel for the petitioner and Mr. H.K.

Panigrahi, learned Addl. Standing Counsel for the State

by hybrid mode and perused the records. Since

pleadings have been exchanged between the parties,

with the consent of learned counsel for the parties, this

writ petition is being disposed of finally at the stage of

admission.

6. On the basis of factual matrix, as

delineated above, and rival submissions made by

learned counsel for the parties, the moot question that

falls for consideration by this Court is, whether the

order impugned in Annexure-10 dated 29.04.2011 has

been passed in due compliance of the provisions // 13 //

contained under Sections 25-F and 25-G of the

Industrial Disputes Act, 1947.

7. Admittedly, the petitioner was engaged

as NMR Mate (Typist) under the Executive Engineer,

Mahanadi Barrage Division, Cuttack on 21.03.1985,

but her service was terminated on 01.03.1989 without

complying the provisions contained under Section 25-F

of the Industrial Disputes Act, 1947, as a result of

which she raised industrial disputes which was

registered as I.D. Case No.256 of 2008 and, after due

adjudication, the Industrial Tribunal, Bhubaneswar

directed the management to reinstate the petitioner

with 50% back wages, as there was non-compliance of

the provisions contained under Section 25-F of the

Industrial Disputes Act, 1947. In compliance thereof,

the petitioner was reinstated in service along with the

back wages, as directed by the Industrial Tribunal. But

subsequently, she was again terminated from service,

vide impugned order dated 29.04.2011 under // 14 //

Annexure-10, on the basis of the direction issued by

the Government to the Engineer-in-Chief, Water

Resource, vide Annexure-8 dated 10.11.2010, by which

it was directed to retrench the petitioner by following

due procedure and mandatory requirement of the

statute.

8. For just and proper adjudication of the

case, Sections 25-F and 25-G of the Industrial Disputes

Act, 1947, being relevant, are extracted hereunder:-

"25-F. Conditions precedent to retrenchment of workmen- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-

(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay [for every completed year of continuous service] or any part thereof in excess of six months; and

(c) notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate // 15 //

Government by notification in the Official Gazette].

xxx xxx xxx

"25-G. Procedure for retrenchment - Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman."

9. A bare perusal of the aforementioned

provisions would go to show that no workman

employed in any establishment, who has been in

continuous service for not less than one year under an

employer, shall be retrenched by that employer until

the workman has been given one month's notice in

writing indicating the reasons for retrenchment and the

period of notice has expired, or the workman has been

paid in lieu of such notice, wages for the period of the

notice, and that the workman has been paid, at the

time of retrenchment, compensation which shall be

equivalent to fifteen days' average pay for every // 16 //

completed year of continuous service or any part

thereof in excess of six months. For such retrenchment

a procedure has been envisaged that where any

workman in an industrial establishment, who is a

citizen of India, is to be retrenched and he belongs to a

particular category of workmen in that establishment,

in the absence of any agreement between the employer

and the workman in this behalf, the employer shall

ordinarily retrench the workman who was the last

person to be employed in that category, unless for

reasons to be recorded the employer retrenches any

other workman. The above mentioned provisions are

very clear and should be scrupulously followed while

retrenching a workman from an establishment.

10. The impugned order of retrenchment in

Annexure-10 dated 29.04.2011, on the face of it,

reveals that the petitioner has been retrenched from

service with immediate effect, as her service was no

more required under the organization due to reduction // 17 //

of work load and her retrenchment was expedient, and

she would be paid one month pay in lieu of one month

notice and other entitlements if any as per the

provisions under Section 25-F of the Industrial

Disputes Act, 1947. According to Section 25-F of the

Industrial Disputes Act, 1947, as has been referred to

above, a workman employed in any industry should not

be retrenched until he/she been given one month's

notice in writing indicating the reasons for

retrenchment and the period of notice had expired, or

the workman had been paid in lieu of such notice. The

notice in this case bears the date "29th April, 2011" and

the same was served on the petitioner on the very same

day. Therefore, she was supposed to be paid one

month's wages in lieu of notice of termination of her

service on the very same day, i.e, "29th April, 2011".

Admittedly, on 30.04.2011, the petitioner was offered

one month's wages, in lieu of one month's notice, by

way of cheque bearing no.875312, which she did not

accept. Thereby, the provision of Section 25-F, which // 18 //

was incumbent on the part of the employer to comply

by paying the workman wages in lieu of the notice

period, has not been complied. That is to say, if she was

asked to go forthwith, she had to be paid the wages at

the time when she was asked to go and should not be

paid on the subsequent date, i.e., 30.04.2011, rather it

should be simultaneously paid. This view has been

taken in M/s National Iron and Steel Co. Ltd.,

mentioned supra, which received supports from the

observation made by the apex Court in Bombay Union

of Journalists v. State of Bombay, AIR 1964 SC

1617.

11. In Syed Azam Hussaini, mentioned

supra, the apex Court held that retrenchment under

Section 2(00) of the Industrial Disputes Act, 1947,

could be done only in accordance with the provisions

contained in Section 25-F of the Industrial Disputes

Act, 1947 and since one month's wages in lieu of notice

has not been paid at the time of such retrenchment and // 19 //

was paid subsequently, it amounts to non-compliance

of Section 25-F of the Act and, as such, the termination

is not legal.

12. In view of such position, the contention

raised by Mr. M.K. Mohanty, learned counsel for the

petitioner, that the order of retrenchment dated

29.04.2011 under Annexure-10 and payment of wages

in lieu of one month notice of retrenchment, which was

offered on 30.04.2011 under Annexure-11, being not

simultaneously one, cannot be construed as full

compliance of Section 25-F of the Act, get ample

corroboration from the materials available on record,

and as such, has sufficient force. Thereby, in view of

the proposition of law laid down by the apex Court, as

discussed above, this Court holds that the impugned

order of retrenchment cannot be allowed to stand, since

there was sheer violation of the provisions contained

under Section 25-F of the Act.

                                  // 20 //




13.              So     far     as   non-compliance     of   the

provisions contained in Section 25-G of the Act is

concerned, admittedly the petitioner was engaged on

21.03.1985 as NMR Mate (Typist) under the Executive

Engineer, Mahanadi Barrage Division, Cuttack. Though

she was retrenched from service on 01.03.1989, by

virtue of the award dated 24.02.2010 passed by the

industrial tribunal in I.D. Case No. 256 of 2008, she

was reinstated in service with 50% back wages. In the

meantime, in terms of the resolution passed by the

Government, some of the juniors to the petitioner were

brought to the work charged establishment,

discriminating the petitioner though she was

continuing. Thereafter, though the Superintending

Engineer, vide letter dated 30.09.2010 intimated the

Engineer-in-Chief that the juniors to the petitioner were

continuing in service, without considering the same,

the order of retrenchment was passed in Annexure-10

dated 29.04.2011 on the basis of instructions issued by

the Government, on the ground that due to reduction of // 21 //

work load her retrenchment was expedient. In that

case, the provisions contained under Section 25-G were

to be followed scrupulously. Meaning thereby, the

junior most person had to go allowing the senior to

continue. Though the petitioner had been appointed

prior to 12.04.1993 and she was a senior most NMR,

she was to be brought over to the work charged

establishment and subsequently to the regular

establishment, instead of directing her to face

retrenchment due to reduction of work load. Thereby,

the provisions contained under Section 25-G have not

been complied with. Consequentially, on that count

also the order of retrenchment under Annexure-10

dated 29.04.2011 is also contrary to the provisions of

the Industrial Disputes Act, 1947. This view gets ample

support from the judgments of the apex Court in

Incharge Government Hide Flaying Centre and

Gauri Shanker, mentioned supra.

                              // 22 //




14.           In    view    of   the   factual     matrix   and

propositions of law, as discussed above, this Court is of

the considered view that the order dated 29.04.2011 in

Annnexure-10 retrenching the petitioner from service

with immediate effect cannot sustain in the eye of law,

as the same has been passed without complying the

provisions contained under Sections 25-F and 25-G of

the Industrial Disputes Act, 1947. Consequentially, the

order dated 29.04.2011 in Annexure-10 is liable to be

quashed and hereby quashed. The opposite parties are

directed to reinstate the petitioner in service and to

bring over her to the work charged establishment

forthwith, from the date her juniors have been brought

over to the work charged establishment, in pursuance

of the notifications dated 28.02.2009 and 19.06.2009

issued by the Government, and then bring over her to

the regular establishment forthwith, if her juniors have

been brought over to the regular establishment.

Further, keeping in view the fact that the petitioner has

been retrenched without following the prescribed // 23 //

procedure and, as such, the fault lies with the employer

for such illegal retrenchment, and also being aware of

the fact that the petitioner has not discharged her duty

since 29.04.2011, this Court directs the opposite

parties to pay 50% wages to the petitioner w.e.f.

29.04.2011 till she is reinstated in service. The above

exercise shall be completed within a period of four

months from the date of passing of this judgment.

15. In the result, the writ petition is allowed.

However, there shall be no order as to costs.

.............................

DR. B.R. SARANGI, JUDGE

Orissa High Court, Cuttack The 17th August, 2021, Ashok/GDS