Orissa High Court
Trinath Jena vs The State Of Orissa & Ors on 21 June, 2021
A.F.R
ORISSA HIGH COURT : C U T T A C K
WPC(OAC) No.1823 of 2015
An application under Article 227 of
the Constitution of India
Trinath Jena : Petitioner
-Versus-
The State of Orissa & Ors. : Opp. Parties
For Petitioner : M/s. B.P. Satapathy
For Opposite Parties : Mr. H.K. Panigrahi,
Standing Counsel
PRESENT:-
THE HONOURABLE MR. JUSTICE BISWANATH RATH
Date of hearing & Judgment :: 21.06.2021
Biswanath Rath, J. Initially the original application was filed on the file
of the State Administrative Tribunal, Bhubaneswar and registered as
O.A. No.1526 of 2014. On being transferred to the State
Administrative Tribunal, Cuttack Bench this proceeding had been
registered as O.A. No.1823(C) of 2015. Subsequently, on abolition of
the Tribunals and on the direction of the High Court the matter is
now transferred to this Court for disposal and accordingly registered
as WPC(OAC) No.1823 of 2015.
2
2. The main application involves the following prayer:
"Relief sought for:
It is therefore, prayed that this
Hon'ble Court/Tribunal may graciously be
pleased to admit the original application and
after hearing the parties, pass the following
reliefs:
(i) Let the impugned order dated
30.05.2014 issued under Annexure-
9 by the Govt. in the facts and
circumstances of the case be
declared as illegal so far as it relates
to the applicant; and,
(ii) Let the Respondents be directed to
bring over the applicant to the work
charged establishment w.e.f.
01.03.2009 as a Work Sarkar in
terms of the Annexure-8 with all
service and financial benefits within
a stipulated time;
(iii) Let, any other relief/ reliefs be
passed to which the applicant
entitled to;"
3. Background
involved in this case is that due to
illegal order of retrenchment, the Petitioner was compelled to raise
an industrial dispute before the Labour Court, Bhubaneswar, which
was registered as I.D. Case No.115 of 1993. The Labour Court
Bhubaneswar undertook the exercise involving the following
reference:
"Whether termination of services of Sri Trinath
Jena and 37 others (as per list enclosed) by the
Executive Engineer, Mayurbhanj, Investigation
Division, Udala with effect from dates mentioned
against their names is illegal and justified? If
not, what relief they are entitled to?"
Upon consideration of the dispute involved therein
and on contest the Labour Court finally by its award dated 26th July,
1999 while allowing the reference, ordered as follows:
"That the termination of services of Sri Trinath
Jena and 29 others by the Executive Engineer,
Mayurbhanj Investigation Division, Udala with
effect from dates mentioned against their names
is not legal and justified. All 30 workmen are
entitled to be reinstated in service with 50
percent back wages."
In working out the direction of the Labour Court
the Petitioner had been reinstated on 9.04.2008 along with 29
similarly situated persons and were all paid with 50% of back wages.
In the meantime pursuant to the decision of the Government of
Odisha in the Department of Water Resources, considering the claim
of the NMR employees like that of the Petitioner for their
regularization, decision has been taken vide Annexures-5 & 6 to
bring over the NMR employees engaged prior to 12.04.1993 to the
category of work-charged employees. As a consequence the persons
except Petitioner and rest 29 persons pursuing their litigation before
the Labour Court, who are continuing and not disengaged,
admittedly have already been brought to the category of work-
charged employees. On reinstatement in service, the Petitioner since
was standing at par with the persons who have already been brought
to the work-charged establishment, made a claim to be brought to
work-charged establishment and be placed above his juniors who
have been brought to work-charged establishment. Considering the
claim of the Petitioner the competent authority rejected the claim of
the Petitioner by its order vide Annexure-9 on the premises that
there is full compliance of the direction of the Labour Court and
since the Petitioner being an NMR employee along with similarly
situated persons involved therein had not worked continuously, the
Petitioner and similarly situated persons will not be eligible to be
brought over to the work-charged establishment and it is, in this
premises, the competent authority rejected the proposal.
4. Assailing the order vide Annexure-9 Mr. B.P.
Satapathy, learned counsel for Petitioner contended that for there
being illegal retrenchment the Petitioner had to go to the Labour
Court in raising Industrial dispute. Looking to the manner of
disposal of the dispute as it appears, there was direction for
reinstatement of the Petitioner and other 29 persons like that of the
Petitioner in service, but however with 50% back wages. The
direction of the Labour Court clearly indicates that the Petitioner and
other similarly situated persons are treated to be continuing in
service. It is, in this view of the matter and claiming parity with
similarly situated persons Mr. Satapathy, learned counsel for the
Petitioner made a submission that there is illegal consideration of the
request of the Petitioner and therefore, the order vide Annexure-9
should be interfered with and set aside and as a consequence the
Petitioner be provided with appropriate relief. Mr. Satapathy, learned
counsel for Petitioner also requested this Court to provide similar
benefit to the Petitioner by bringing him to the work-charged
establishment from the date his juniors were brought to the
establishment, with release of all consequential benefits accrued to
him in the meantime.
5. Mr. Panigrahi, learned Standing Counsel, however,
taking this Court to the observation made by the competent
authority in the order vide Annexure-9 contended that on his own
submission the Petitioner was disengaged from service and pursuant
to the direction of the Labour Court admittedly he was reinstated
and subsequently, the Petitioner, therefore, the Petitioner could not
have been treated at par with his juniors all through continuing in
the establishment. In such view of the matter, Mr. Panigrahi, learned
State Counsel contended that there is no wrong in the impugned
order requiring any interference of this Court in the same.
6. Considering the rival contentions of the parties
this Court finds, for the direction of the Labour Court the Petitioner
was directed to be reinstated into service after holding his
termination as bad. For the finality of the dispute involving Industrial
Dispute Case No.115 of 1993 and for the reinstatement of the
Petitioner into service with 50% back wages, the Petitioner is deemed
to be continuing in service as NMR employees. It is a different case;
whether the Petitioner's case was available to be taken over to work-
charged establishment along with similarly situated persons, who
were all through continuing at the relevant point of time but once the
Petitioner is reinstated into service, he would be deserved to be
continuing. This Court here observes, had there been no illegal
retrenchment of the Petitioner, Petitioner's case would have been
available to be brought to work-charged establishment and he
cannot be suffered for the latches of the establishment. This Court,
therefore, observes, for the reinstatement not only the Petitioner is
deemed to be continuing in service as NMR employee, but his case
should have also been considered at par with the NMR employee who
were all through continuing.
7. Now coming to the impugned order this Court
finds, considering the continuity of the Petitioner and pursuant to
the direction of the Labour Court the establishment has rightly
considered in recommending the case of the Petitioner for his
absorption in the work-charged establishment of the Water
Resources Department, Government of Odisha. Taking into account
the development through the award passed by the Labour Court and
reinstatement of the Petitioner into service as NMR employee and the
imports in the order at Annexures-5 & 6 requiring all the NMRs
engaged prior to 12.04.1993 to be brought to work-charged
establishment and also keeping in view that the Petitioner was
engaged as NMR on 1.01.1977 prior to the date fixed, this Court
observes, the Petitioner ought to have been brought to the work-
charged establishment from the date his juniors were brought to the
work-charged establishment. As the nature of dispute required to be
considered by the Water Resources Department, Government of
Odisha involving the Petitioner independently, there was no room to
apply the award passed by the Labour Court. There is wrong
application of mind in working out the direction of the Labour Court
particularly at the time of considering the case of the Petitioner to be
brought over to the work-charged establishment vide Annexure-9
which is not sustainable in the eye of law.
8. Keeping in view the observation made hereinabove
and the development bringing over the junior NMR employees to the
work-charged establishment and for the Petitioner's reinstatement
into service, this Court finds, only remedy available with the Water
Resources Department is to accept the proposal of the department
and place the Petitioner in the work-charged establishment just
above his juniors, who have already been brought to the work-
charged establishment. In such view of the matter, this Court finds,
the order vide Annexure-9 is not sustainable in the eye of law and
accordingly, interfering in the order vide Annexure-9 this Court sets
aside the same and directs the Water Resources Department,
Government of Odisha to treat the Petitioner to have been brought to
work-charged establishment from the date his juniors have been
posted in the work-charged establishment. As a consequence,
Petitioner also deserves to be entitled to all financial benefit accrued
in the meantime along with interest at the rate 6% per annum all
through and the whole arrear which shall be worked-out and
released in favour of the Petitioner within a period of two months
hence.
9. The Writ Petition succeeds. However, there is no
order as to the cost.
10. As the restrictions due to resurgence of COVID-19
situation are continuing, learned counsel for the parties may utilize a
printout of the order available in the High Court's website, at par
with certified copy, subject to attestation by the concerned advocate,
in the manner prescribed vide Court's Notice No.4587, dated 25th
March, 2020 as modified by Court's Notice No.4798, dated 15th
April, 2021.
...............................
(Biswanath Rath, J.)
Orissa High Court, Cuttack.
The 21st day of June, 2021
Ayaskanta Jena, Sr.Stenographer.
