Orissa High Court

The Management Of Orsac vs State Of Odisha And Others on 23 December, 2021

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                           W.P.(C) No.12703 of 2011
                                      &
                           W.P.(C) No.2179 of 2011


     (In the matter of applications under Articles 226 and 227 of the
     Constitution of India.)

    W.P.(C) No.12703 of 2011
                                                 ....
    The Management of ORSAC                                     Petitioner
                                      -versus-
    State of Odisha and Others                   ....       Opposite Parties


   Appeared in this case:-
          For Petitioner          :         Mr. B.P. Tripathy, D. Pradhan,
                                           C.R. Panda, Ms. P. Tripathy and
                                                               Y.G.S. Das

          For Opp. Parties        :              Mr. S. Pattanaik, S, Dash,
                                                 S. Mohanty and A. Barik

   W.P.(C) No.2179 of 2011

    The Chief Executive, ORSAC                   ....             Petitioner
                                      -versus-
    State of Odisha and Others                   ....       Opposite Parties

     Appeared in this case:-
          For Petitioner          :         Mr. B.P. Tripathy, D. Pradhan,
                                           C.R. Panda, Ms. P. Tripathy and
                                                               Y.G.S. Das

          For Opp. Parties        :              Mr. S. Pattanaik, S, Dash,
                                                 S. Mohanty and A. Barik

W.P.(C) Nos.12703 of 2011 & 2179 of 2011                      Page 1 of 19
                                   // 2 //




     CORAM:
     THE CHIEF JUSTICE
     JUSTICE A.K. MOHAPATRA

                                  ORDER

07.12.2021 A.K. Mohapatra, J.

1. W.P.(C) No.12703 of 2011 has been filed by the Management of

ORSAC assailing the award dated 21st February, 2011 passed in

Industrial Dispute Case No.30 of 2007 by the Presiding Officer, Labour

Court, Bhubaneswar. Similarly, W.P.(C) No.2179 of 2011 has been filed

by the Chief Executive, ORSAC challenging the award dated 30th

November, 2010 passed in Industrial Disputes Case No.38 of 1999 by

the learned Presiding Officer, Labour Court, Bhubaneswar.

2. Since the facts of the cases involved in both the writ petitions are

identical, the same are taken up together for hearing and is being

disposed of by a common order.

3. Heard Mr. B.P. Tripathy, learned counsel for the Petitioner, Mr. S.

Pattnaik, learned counsel for the Opposite Party No.2 and Mr. S.N. Das,

Additional Standing Counsel for the Opposite Party No.1.

4. Perused the records. Bereft of unnecessary details, the factual matrix

of the above noted two writ petitions are as follows:-

// 3 //

The Petitioner organization i.e. Orissa Remote Sensing Application

Center was established in the year 1984 by the Department of Science

and Technology and Environment, Government of Odisha to provide

Research and Development support to the teaching, research

organizations and the Universities of the State in the specified areas of

application of remote sensing technological service in their fields of

interest and to carry out on-field investigation connected with the

activities of remote sensing etc. During the initial formative years, the

activities of the centre were carried on as per specific requirements under

different schemes and projects assigned to the centre by the State

Government as well as Central Government. Therefore, persons have

been appointed on different terms and conditions with different pay

scales and sometimes on consolidated pay including engaging daily-

wagers, who were being engaged depending upon availability of jobs

pertaining to different projects assigned to the petitioner at different

points of time.

5. Subsequently, when the work load increased with the rise in number

of projects that were assigned to the centre, the State Government and

the Governing Body of the Petitioner's organization, keeping in view the

necessity of engagement of some workforce on regular basis, constituted

a Technical Committee to look into the matter of regularization of

// 4 //

service of different employees who were working under the Petitioner's

organization at the relevant point of time. However, before such exercise

could be undertaken by the Technical Committee, the ORSAC

Employees' Association submitted a six point charter of demands dated

2nd July, 1996 to the petitioner which also includes regularization and

fitment of the employees engaged under the petitioner on different terms

and conditions. The said charter of demand was admitted into

conciliation and after various rounds of discussion, eventually, the said

charter on demands was finally and fully settled between the parties by

virtue of a tripartite settlement dated 1st January, 1997.

6. In Clause (1) of the settlement, it is categorically agreed to by the

parties that the service of workmen will be regularized "except daily-

wagers, who are employed from time to time intermittently". Thereafter,

appointment letters were issued to qualifying workmen those who came

within the zone of consideration by the 30th January, 1997.

7. It is submitted by the learned counsel for the Petitioner that the

Opposite Party No.2, who was not in regular deployment of the

Petitioner and if at all, was covered under the exception clause referred

to in the settlement mentioned hereinabove. It is further submitted that

the Opposite Party No.2 being a daily-wager, was engaged from time to

// 5 //

time intermittently depending upon availability of extra work load of a

particular project that was undertaken by the Petitioner. As such, the case

of the Petitioner was beyond the zone of consideration for the purpose of

regularization and as such his case was never considered for

regularization by the Petitioner Management. It has also been stated that

after 30th August, 1997, the Opposite Party No.2 had no job to perform

and as such, his engagement automatically ceased as the job contract

with him came to an end in accordance with terms of contract of

engagement. The management, to substantiate its claim, has filed certain

job cards along with the writ petition.

8. The case of the Opposite Party No.2 as pleaded before the learned

Labour Court, in a nut shell, is that he was engaged by the Management,

as a Tracer with effect from 4th February, 1991, on a daily wage of

Rs.30/- per day on monthly payment basis. Thereafter, his service was

being extended from time to time in different spells. Although the work

orders were being issued to the Opposite Party No.2 in different spells,

he worked continuously without any interruption till his termination.

Further, considering the work assignment of cartography to the Opposite

Party No2, his wage was revised to the highly skilled Cartography at the

rate of Rs.45/- per day on monthly basis. Opposite Party No.2 was

// 6 //

assigned the work of Cartography Assistant under the Petitioner

Management.

9. While this was so, as per the decision of 13th Governing Body meeting

of the ORSAC Technical Committee, sub-committees were formed to

consider the fitment of different staff working under the Petitioner and

for their regularization against sanctioned post. Every worker working

under the Management was called upon to furnish his/her personal

particulars to the management, which was duly complied with by such

workmen in the prescribed format. The Opposite Party No. 2 has alleged

that the Petitioner did not act as per the recommendations of the

committee.

10. Opposite Party No.2 had admitted before the Labour Court that a

tripartite settlement was arrived at between the Petitioner and the

ORSAC employee's association in presence of a Conciliation officer on

1st January, 1997. As per the said settlement, the employees who were

engaged from time to time intermittently were to be regularized under

the Petitioner. Although the Opposite Party No.2 was working on daily

wage basis, nature of his work was not intermittent. All the workmen

working under the petitioner were regularized except the Opposite Party

No.2 and the Management illegally terminated his service with effect

// 7 //

from 30th January 1997 without complying with mandatory requirements

under the Industrial Disputes Act. Opposite Party No.2 has alleged that

although he has worked for more than 240 days continuously without

any break for the period from 4th February, 1991 to 30th January, 1997

and had completed 240 working days during a period of twelve calendar

months immediately preceding to the date of his termination, his service

was not regularized.

11. After such illegal termination on 30th January, 1997, Opposite Party

No.2 on several occasions requested the Petitioner to consider his case

sympathetically and regularize his employment, but the Management did

not pay any heed and by adopting unfair labour practice further engaged

the Opp. Party No.2 in Cartographic work with effect from 21st

February, 1997 on contractual basis. This was done only with the

intention to deprive Opposite Party No.2 of his legitimate claim over the

post in regular establishment. Moreover, the work of Cartography was

regularly available in the establishment of the Petitioner and the same is

perennial in nature. The Petitioner with a mala fide intention terminated

the service of Opposite Party No.2 with effect from 30th January, 1997.

12. The Opposite Party No.2 has specifically pleaded that although the

work of Cartography is perennial in nature for the Petitioner's

// 8 //

organization, the Petitioner instead of allowing him to continue in

service in the Cartography Section engaged two other employees,

namely, Saroj Kumar Das, Surveyor from Engineering Section and Sri

Bijay Kumar Ray, Junior Investigator from Data Section to the

Cartography Section. The above named two persons did not possess the

requisite qualification to hold the said post of Cartographer.

13. In the aforesaid backdrop, the Opposite Party No.2 had raised an

Industrial Dispute before the Labour authority and when the conciliation

failed, the dispute was informed to the Government. The Government of

Odisha after due consideration had made a reference to the Labour Court

and accordingly, the I.D. Case has been initiated wherein the Opposite

Party No.2 has prayed for reinstatement in service with full back wages.

14. The Government of Odisha in exercise of powers conferred by

Section 12(5) read with Section 10(1)(c) of the Industrial Disputes Act

referred the matter in dispute to the Labour Court vide its order dated

27th July, 2007 with the following terms for reference:-

"Whether the action of the management of M/s. Orissa Remote Sensing Application Centre, Bhubaneswar in terminating the employment of Sri Prasanta Kumar Das, Cartographer with effect from 30th January, 1997 is legal and / or justified? If not, what relief Sri Das is entitled to?"

// 9 //

15. Learned Labour Court, Bhubaneswar after considering the pleading

of the respective parties framed the following issues:

      i)     Whether the action of the management of M/s.
      Orissa    Remote       Sensing      Application Centre,

Bhubaneswar in terminating the employment of Sri Prasanta Kumar Das, Cartographer with effect from 30th January, 1997 is legal and / or justified?

ii) If not, what relief Sri Das is entitled to?

16. In order to substantiate his plea, the Opposite Party No.2 has

examined himself as W.W.1 and proved documents marked as Exts.1 to

15. Similarly, the management has examined its Section Officer,

Accounts as M.W.1 and proved documents marked as Exts. A to G; for

convenience the learned Labour Court took up both the issues together.

17. The Management Petitioner raised a preliminary objection with

regard to maintainability of the I.D. Case on the ground that the

establishment of the Management is not an industry within the meaning

of Section 2(j) of the Industrial Disputes Act and as such reference is not

maintainable. Further according to the Petitioner, the establishment is not

a profit-making organization as because it is not engaged in any

commercial / industrial activities. The learned Labour Court while

discussing the aforesaid objection of the Petitioner has referred to

Section 2(j) of the Industrial Dispute and by referring to a decision of the

// 10 //

Hon'ble Supreme Court in Bangalore Water Supply and Sewerage

Board vs. A. Rajappa, reported in (1978) 2 SCC 213, has arrived at a

conclusion that the establishment of the Petitioner is in fact an industry

and as such reference made is maintainable. After thorough scrutiny of

the pleadings, evidence and upon reading of the aforesaid Supreme Court

judgment, this Court finds that the P.O., Labour Court has not committed

any illegality in taking the view that the activities carried on by the

petitioner brings the Petitioner within the definition of industry as

defined under Section 2(j) of the Industrial Disputes Act.

18. The next question that was considered by the P.O. Labour Court,

Bhubaneswar was whether the retrenchment / termination of the service

of the Opposite Party No.2 is bad in view of the provision under Section

2(oo)(bb) of the Industrial Disputes Act. It is argued on behalf of the

Management that the Opposite Party No.2 was engaged on contractual

basis with daily wages and the period of his engagement was specific in

the letter of engagement relying upon a judgment of the Hon'ble

Supreme Court of India in Kishore Chandra Samal vs. The Divisional

Manager, Orissa State Cashew Development Corporation Ltd.,

reported in 2006 (108) FLR 143 (S.C.). Learned counsel for the

Petitioner submitted that no award reinstating the Petitioner should be

passed as in all orders of the engagement of the Opposite Party No.2

// 11 //

issued by the Petitioner, specific periods were mentioned. While

considering the plea, the learned Labour Court has taken note of

evidence of M.W.1 who in his cross-examination has admitted that the

workman was working on daily wage basis from 4th February, 1991 to

30th January, 1997. Further the Labour Court has also taken note of the

fact of unfair labour practice by the Petitioner and in the said context has

also referred to a judgment reported in AIR 2001 S.C. 706 (Gujarat

Agricultural University vs. Rathod Labhu Bechar and Ors.).

19. Further in his cross-examination, M.W.1 has stated that he has not

filed the attendance register and wage register of the Opposite Party

No.2 so also his progress report. When an employer fails to produce the

service record of the workman, an adverse inference could be drawn by

court against the employer as has been held in Sita Ram and others vs.

Moti Lal Nehru Farmers Training Institute, reported in 2008 LLR 549

S.C.(2008) 5 SCC 75.

20. The learned Labour Court has also observed in the impugned award

that the termination in the instant case amounts to unfair labour practice

and violation of section 25-A. Further, no material was produced by the

Management to show that the work ceased to exist. Therefore,

appointing fresh persons after termination of the Opposite party No.2

// 12 //

goes against the stand of the Management that the nature of work was

not permanent. In the present case, not only two persons, namely, Sri

Bijay Kumar Ray and Saroj Kumar Das were engaged immediately after

termination of service of the Opposite Party No.2, but the Opp. Party

No.2 was engaged on contractual basis even after termination. In the

aforesaid context, learned Labour Court has referred to a Kerala High

Court judgment reported in 1993 LLR 640 (Jayabharat Printers and

Publishers Private Limited vs. Labour Court, Koshikode and another)

to come to a conclusion that the nature of employment will have to be

determined with reference to nature of duties performed by the workman

and type of job of the workman and not on the basis of letters issued by

the employer. In the aforesaid reported judgment, it has also been held

that stipulation in the contract that employment would be for a specific

period till completion of work may also fall within the scope and ambit

of the of this sub-clause. However, if the employer resorts to contractual

employment as a device to simply take it out of the principal clause (oo)

irrespective of the fact that the work continues or the nature of duties

which the workman was performing are still in existence, such

contractual engagement will have to be tested on anvil of fairness,

propriety and bona fides. Further, Section 2(oo)(bb) has to be strictly

interpreted and it is necessary to find out whether the letter of

// 13 //

appointment is a camouflage one to circumvent the provisions of the

Industrial Disputes Act which confers the benefit of permanency on

workers who worked continuously for a period of more than 240 days. In

the present case, the workman has completed 240 days of service in

twelve calendar months immediately preceding the date of termination of

service.

21. So far the Opposite Party No.2 workman's assertion that he has

worked continuously for a period of 240 days during the period of

twelve calendar months preceding the date of termination is concerned,

the Opposite Party No.2 workman had produced documentary evidence

such as job cards and other relevant documents to establish his case apart

from his oral evidence. In reply, the management has failed to counter

such assertion duly supported by the documentary evidence. In effect,

the management was silent on the aforesaid issue. Relying upon the ratio

laid down by the Hon'ble Supreme Court of India in the matter of

Director, Fisheries Terminal Division vs. Bhikubhai Meghajibhai

Chavda, reported in AIR 2010 SC 1236, the Labour Court has taken a

view that the burden of proof for proving the fact that the Opposite Party

No.2 had in fact worked for 240 days shifts to the employer to prove that

the workman did not complete 240 days of service within the relevant

period to constitute continuous service.

// 14 //

22. Having heard the learned counsels for both sides, this Court is not

convinced by the plea taken by the Management Petitioner. The

Management Petitioner was found lacking in adducing evidence to rebut

the allegation made by the workman in this case. Therefore, the Labour

Court was completely justified in coming to the conclusion that it is a

clear case of termination of service by way of refusal of employment and

not a contractual service.

23. The stand of the Management Petitioner which is primarily based on

the judgment of Hon'ble Supreme Court in the case of Krushna

Chandra Samal vs. Divisional Manager, OSCDC Ltd. Technical

reported in AIR 2006 SC 3613 is completely ill-founded. In the

aforesaid reported judgment, the Hon'ble Supreme Court had come to a

definite conclusion on the basis of a well laid down case that the

engagement was for a specific purpose and for a specific period and

there were gaps in between different engagement letters. Further, in the

said reported decision, it has been observed that there was no evidence to

the effect that the post of Typist was a permanent post. Moreover, the

Hon'ble Supreme Court in the said reported judgment has also not

accepted the plea on behalf of the workman that the period fixed in the

engagement letter was camouflaged to avoid regularization. However, in

the present case, in view of the evidence of M.W.1 well supported by the

// 15 //

documentary evidence produced by the workman coupled with the fact

that two other persons were appointed to do the similar nature of work

immediately after termination of the Petitioner compels this court to

come to a conclusion that the nature of work that was being performed

by the Opp. Party No.2 was perennial in nature and is a regular job of the

Petitioner's establishment and that the engagement letters were in fact,

camouflaged to avoid the rigorous provisions of I.D. Act. In such view

of the matter, the aforesaid judgment relied upon by counsel for the

petitioner is distinguishable on facts and as such is not applicable to the

facts of the present case.

24. Finally in view of the discussion made hereinabove, this Court is of

the considered view that the learned Labour Court has not committed

any error of law while arriving at a finding that the termination of

employment of the Opposite Party No.2 Cartographer with effect from

30th January, 1997 by the Petitioner management is neither legal nor

justified and as such, the Opposite Party No.2 is entitled to be reinstated

in service.

25. So far as payment of wages are concerned, the Labour Court has

rightly held that full back wages would not be automatically granted only

because the termination was found to be illegal. Relying upon a

// 16 //

judgment reported in 2004 (Suppl.) OLR 694 (Divisional Manager,

OFDC Ltd., Boudh Commercial Div. vs. Kanista Bisoi & another), it

has held that when the workmen had not worked for the management

during the period in question and he had not proved by adducing

evidence that he was not gainfully employed elsewhere during such

period, payment of back wages is not justified. However, keeping in

mind the materials available on record, the Labour Court has granted a

lump sum amount of Rs.40,000/- in lieu of back wages. In our

considered view, the same does not call for any interference by this

Court.

26. Accordingly, the W.P.(C) No.12703 of 2011 filed by the

Management Petitioner is devoid of any merit and the same is hereby

dismissed.

W.P.(C). No.2179 of 2011

27. The present writ petition has been filed by the Chief Executive,

Orissa Remote Sensing Application Centre (in short 'ORSAC'),

Bhubaneswar, Khurda challenging the award dated 30th November, 2010

passed by the Labour Court, Bhubaneswar in I.D. Case No.38 of 1999,

wherein he has held that the action of the Managing Committee, ORSAC

in not regularizing the service of the Opposite Party No.2 as

// 17 //

Cartographer is illegal and unjustified and further order that the

workman, i.e. Opposite Party No.2 is entitled to be regularized in his

service with effect from 1st January, 1997.

28. Facts of the present case are identical to W.P.(C) No.12703 of 2011,

arising out of I.D. Case No.30 of 2007 at the instance of Opposite Party

No.2. Hence, the facts are not repeated here.

29. The Government of Odisha in exercise of power conferred under

Section 12(1) read with Section 10(1)(c) of the Industrial Dispute Act,

1947 (in short 'I.D. Act') have referred the matter in dispute to the

learned Labour Court, Bhubaneswar, vide Order dated 7th April, 1999

with the following terms of reference:

"i) Whether the action of the management of M/s. Orissa Remote Sensing Application Centre (ORSAC), Bhubaneswar in not regularizing the services of Sri Prasanta Kumar Das, Cartographer is legal and/or justified?

ii) If not, what relief and from when Sri Das is entitled to?"

30. The Labour Court at Bhubaneswar on the basis of the pleadings of

the parties framed two issues for adjudication for the dispute involved in

I.D. Case. The workman in order to substantiate his claim examined

three witnesses and relied upon documentary evidence marked as Ext.1

// 18 //

to 27 series. Similarly, the Management has examined its Section Officer

(Accounts) as the only witness to prove the documentary evidence

marked as Exhibits in this case.

31. The Labour Court took up both the issues together for consideration.

The Labour Court after discussing the evidence on record on a

threadbare has arrived at the following findings:

"(i) The reference is also maintainable at this point.

(ii) No sufficient evidence has been adduced by the Management to show that the workman was working intermittently.

(iii) Evidence on record clearly reveals that the workman was working continuously for a long period and is entitled to absorption in regular post.

(iv) The action of the Management in not regularizing the service of the workman as Cartographer is neither legal nor justified. He is entitled to be regularized in service in the Cartography section as per settlement in Form-K dated 1st January, 1997."

32. It is apt to mention here that in the connected writ petition which

arose out of I.D. Vase No.37 of 1999, this Court after evaluating the

facts on record has come to a definite conclusion that learned Labour

Court has not committed any illegality in passing the award and

accordingly held that the termination of service of the Opposite Party

// 19 //

No.2 is bad in law and as such, the connected writ petition has been

dismissed.

33. In the present writ petition, after going through the evidence on

record and considering the submission made by learned counsels for

both the sides, this Court is of the considered opinion that learned

Labour Court has not committed any illegality in passing the impugned