Joint General Manager vs Akhilanath Sahoo And Another
2023 Latest Caselaw 3293 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                          W.A. No. 320 of 2014

     Joint General Manager, Orissa State ....               Appellants
     Financial Corporation, Cuttack and
     others


                                 -versus-
     Akhilanath Sahoo and another           ....          Respondents

   Advocates appeared in the case:

     For Appellants       :            Mr. C.A. Rao, Senior Advocate

     For Respondents      :           Mr. J.K. Rath, Senior Advocate
                                  Along with Mr. S.C. Dash, Advocate
                                                For Respondent No.1

     CORAM:
     THE CHIEF JUSTICE
     JUSTICE G. SATAPATHY

                              JUDGMENT

12.04.2023 Dr. S. Muralidhar, CJ.

1. This writ appeal by the Orissa State Financial Corporation (OSFC) is directed against a judgment dated 7th August, 2014 passed by the learned Single Judge allowing OJC No.8894 of 2000 filed by Respondent No.1, which sought the quashing of a letter dated 6th September, 2000 addressed by the Joint General Manger (PHO) of the OSFC to the Branch Manager, Rourkela informing him that the appointment letter dated 12th June, 2000 purportedly issued to the Respondent No.1 by the Secretary in the

OSFC appointing him as a Security Assistant (SA) in the OSFC was not issued by the Head Office (HO) of OSFC and thereby instructing the Branch Manager, Rourkela not to act upon the said letter.

2. In the impugned judgment, the learned Single Judge has further directed that Respondent No.1 was entitled to all the consequential service benefits "as if continuing in service with all back wages" which was directed to be paid to him within four months.

3. In the present writ appeal, notice was directed to be issued by this Court on 3rd February, 2015. At a subsequent hearing, on 5th February, 2016 a statement was made on behalf of Respondent No.1 by his counsel that he will not proceed with the contempt petition in the meanwhile.

4. The background facts are that Respondent No.1 was engaged by the OSFC as Security Assistant on 27th February, 1988 on daily wage basis for watch and ward duty. There were several others were engaged for that purpose. Respondent No.1 along with others working in a similar capacity, were retrenched from service by the OSFC with effect from 1st August, 1989. Thereafter, several writ petitions were filed by those retrenched, including Respondent No.1 in this Court questioning their removal from service without following the due process of law. In one such petition, i.e., OJC No.3833 of 1989 filed by one Muralidhar Rout, a Division Bench of this Court by an order

dated 14th March, 1995 constituted a Committee chaired by Justice V. Gopalswamy, a former Judge of this Court, to enquire into the matter and submit a report with regard to the workload of the organization and the requirement of the employees. The Committee submitted a report rendering inter alia the following findings:

"(1) During the relevant year 1989-90, considering the volume of work available, besides the existing strength of 113 regular Security Assistants, there was scope for fresh appointment of 164 regular Security Assistants for guarding the units seized by the Corporation. (2) In view of the present volume of work and the expected increase in the volume of work in the future years, besides the existing strength of 113 regular Security Assistants, there is scope for fresh appointment of 241 Security Assistants for guarding the Industrial Units seized by the Corporation."

5. Thereafter, OSFC appointed a Committee headed by its Managing Director (MD) to assess the scope of appointing daily rated Security Assistants on regular basis. The said Committee submitted a report to the Board of Directors of the OSFC which was accepted by the Board at its 298th Meeting held on 21st June, 1999. The MD of OSFC was authorized to place before the High Court hearing OJC No.3833 of 1989 the report of the Committee.

6. Meanwhile, OJC No.529 of 1990 filed by Respondent No.1 questioning his retrenchment was heard by a Division Bench of this Court and was disposed of by an order dated 12th January 1996, which reads as under:

"Having heard the learned Advocates for the Petitioner and the Opposite Parties it appears that the Petitioner has prayed, inter alia, for quashing the impugned order of retrenchment and for reinstatement with back wages and for absorption in regular service on reinstatement.

2. It is submitted by the learned Advocates for both the sides that in a similar matter arising out of O.J.C. No.3833 of 1989 together with a batch of cases a committee has been constituted which is considering about the alleged retrenchment and for scope of regularization. It is further submitted that the ultimate result relating to the aforesaid batch of cases will have an impact upon the grievance of the Petitioner. To satisfy the grievance of the Petitioner it will be open to the Petitioner to ventilate his grievance further after the finalization of the report by the committee concerned.

3. The writ petition is dispose of with the above observation and direction made above."

7. Thereafter, this Court disposed of OJC No.3833 of 1989 by an order dated 20th July, 1999. After considering the report of Justice V. Gopalswamy Committee as well as the Committee of the OSFC, the following directions were issued by the Court:

"(i) The OSFC will issue appointment orders to 100 persons (petitioners) as security Assistant in first phase on 1st of September, 1999.

(ii) In the second phase, 50 more such persons will be appointed as Security Assistants on 1st of November, 1999.

(iii) The appointment will be subject to the O.R.V. Act and in the event no candidate from the reserved category is available the posts would be de-reserved to accommodate persons covered under this order.

(iv) the appointees shall discharge any work assigned to them with priority of watch and ward duty. The fresh appointees meant for watch and ward duty will be placed under the General Manager (Recovery) who would be competent to place them on watch and ward duty for such time as may be necessary.

(v) In view of the finding of the Committee that there is scope for fresh appointment of 241 Security Assistants of present, the Corporation will create requisite number of posts to accommodate the petitioners and others who are similarly situated.

(vi) So far as ban order of the State Govt. Is concerned, it may be stated that he employment of the petitioner as indicated in the report of the Committee being of perennial nature, the Govt. Is directed to waive the ban so far as it relates to the appointment of Security Assistants governed by this order.

(vii) The petitioner will be given fresh appointment and his past services may be taken into account for the purpose of retiral benefits and notional seniority.

(viii) Each of the appointees will be paid a sum of Rs.2500/- as a token of compensation as he was out of employment for about a decade."

8. According to the OSFC, pursuant to the aforementioned order dated 20th July 1999, it published a notice in the local newspapers calling for applications with necessary documents/certificates/ proof of previous appointment for the post of Security Assistants.

Basing on the applications and documents received pursuant thereto, OSFC published a provisional list of candidates likely to be appointed as Security Assistants calling for objections within 15 days. According to the OSFC, the name of Respondent No.1 was not in the said provisional list. It is contended that once a

provisional list was finalised, appointment letters were to be issued to the enlisted persons for the post of Security Assistants. According to OSFC, no such letter was issued to Respondent No.1.

9. Nevertheless, Respondent No.1 appears to have produced before the Branch Manager of Rourkela Branch of OSFC a letter purportedly issued by the Secretary of the OSFC on 12th June, 2000 offering the Respondent No.1 fresh appointment as Security Assistant. The signatory to this letter was purportedly the Secretary of OSFC.

10. On the basis of the above letter, Respondent No.1 reported for duty at the Rourkela branch of OSFC and submitted a joining report dated 22nd June, 2000 to the Branch Manager. On 26th June, 2000, the Brach Manager, Rourkela Branch, OSFC confirmed to the Joint General Manager (EC), OSFC that Respondent No.1 had joined as Security Assistant. The certificates submitted by Respondent No.1 were forwarded along with the said letter to the Joint General Manager (EC).

11. The Joint General Manager on 6th September, 2000 wrote to the Branch Manager, OSFC, Rourkela as under:

"Dear Sir, We have been informed vide your above letter under reference that one Sri Akhilnath Sahoo has joined in your branch office as security asst. on 22.6.2K. In this connection I am directed to inform you to clarify the

circumstances under which you have accepted the joining of Sri Akhilnath Sahoo as security asst. in your branch without verifying the appointment letter when no proper endorsement of such appointment letter has been given to you with official memo no. Your clarification may reach us within a fortnight from the date of issue positively for placing the matter before the MD."

12. The consistent stand of OSFC, both before the learned Single Judge and this Court, has been that no such appointment letter was ever issued to Respondent No.1 at any point in time. It could be issued only by the MD in terms of the OSFC Staff Regulations, 1975. It is further pointed out that after the so-called joining report submitted by Respondent No.1 to the Manager, Rourkela branch of the OSFC on 22nd June 2000, he in fact did not work for a single day as Security Assistant; was not paid any amount and in fact did not sign any attendance register and, therefore, no duties were also allotted to him. This is evident from a letter dated 4th September, 2000 written by Respondent No.1 to the MD of OSFC that despite the lapse of three months, "I have not yet assigned any duty in writing" and further that "I have not been paid any salary since my joining although other Security Assistants have been getting salary except me".

13. Challenging the aforementioned letter dated 6th September, 2000, Respondent No.1 filed OJC No.8894 of 2000. Another letter of the same date written by the Joint General Manager,

OSFC to the Branch Manager, OSFC stating as under was also challenged:

"To The Br. Manager, O.S.F.C., Rkl. Branch Civil township Rourkela.

Sub: Appointment letter in respect of one Sri Akhilnath Sahoo for fresh appointment as Security Asst.

Ref: Your memo no.552 dtd. 13.7.2K.

Dear Sir Inviting a reference to above we would like to inform you that the appointment order received by you is not the letter issued by HO and therefore may be cancelled and you should not act upon the said letter from the date of receipt of the same.

You are further requested to lodge FIR with the local police station under intimation to his office."

14. Notice was issued in the writ petition on 19th October, 2000. On 7th November, 2000 an interim order was passed that in case the Petitioner had joined by virtue of the order of appointment, status quo shall be maintained till the next date. Respondent No.1 then filed MC No.11257 of 2000 to bring on record a clarificatory letter dated 21st September, 2000 addressed by the Branch Manager, OSFC, Rourkela to the Joint General Manager (PHO) OSFC purportedly stating that the appointment order of Respondent No.1 was genuine. This amendment was allowed by the learned Single Judge by an order dated 30th October, 2000.

15. On 14th December, 2000 a counter affidavit was filed in the writ petition by the Secretary, OSFC categorically stating that "the appointment letter as per Annexure-10 to the writ application bearing No.43 dt. 12.6.2000 was not issued. In fact letter No.43 was issued on 19.6.2000 to Cuttack Diesels (Copy of the Despatch Register Annexed as Annexure-'A')".

16. Inter alia it was stated that since the Respondent No.1 was junior to the persons given appointment in the unreserved (UR) category, he could not be considered for appointment. It was also added that the joining report submitted by Respondent No.1 was not accepted and he was "not asked to sign the Declaration of Fidelity and secrecy as is required under section 40(3) of the SFC's Act, 1951, which is mandatory before any employee enters duties".

17. It was added that OSFC has a right to nullify a joining report if it had been issued contrary to the directions issued by this Court in Muralidhar Rout (supra). It was further averred in the counter affidavit that:

"The allegation that the petitioner is working till date is completely false and without any basis. The petitioners joining report was not accepted nor any duties were allotted. The very fact that he had submitted a Medical certificate alleging that he was on leave and had returned from leave shows that he was not on duty. It is specifically mentioned here that he was never on duty nor had he made any leave application to be eligible to

join duties on availing leave. (Copy of the letter with Medical Certificate submitted by the petitioner is enclosed as Annexure-B)"

18. An additional affidavit was filed by OSFC as regards the letter dated 21st September, 2000 and it was explained as under:

"That Annexure-17 to the writ Application is only an explanation given by the Opp. Party No.3 addressed to Joint General Manager, P.H.O. in reply to an explanation called for from the Opp. Party No.3. In the said explanation the Opp. Party No.3 had only clarified his position of receiving the documents when there was no memo number in the alleged appointment letter. The memo number 44 is non-existent and as will be evident from Annexure-A to the counter affidavit, letter No.44 was issued to the Manager (IAC), OSFC, Bhubaneswar on 21.6.2000."

19. In the rejoinder, it was reiterated by Respondent No.1 that the letter dated 6th September, 2000 had been issued illegally and arbitrarily by the OSFC which had also lodged an FIR against him. Respondent No.1 asked for the signatures of Joint General Manager, OSFC to be collected and compared with that appearing in the so called appointment letter.

20. Interestingly, another 'additional affidavit' was filed by Respondent No.1 on 19th December, 2009 enclosing certain sample appointment letters which were similar to the one issued to Respondent No.1.

21. In the impugned judgment dated 7th August 2014, the learned Single Judge came to the following conclusions:

(i) Had the Respondent No.1 not been engaged as a Security Assistant, his name would have not found place in the list submitted before this Court in OJC No.3833 No.1989 consideration;

(ii) The Justice V. Gopalswamy Committee made a recommendation for giving appointment to 241 Security Assistants in which list, the name of Respondent No.1 was found place against Serial Nos.86 and 74;

(iii) Even if cases of 150 candidates were to be considered since the name of Respondent No.1 was found at Serial No.86 in the first list and Serial No.74 in the second list, he was entitled to get an engagement order;

(iv) Out of the list of 126 persons appointed by the OSFC, 29 were those who had not earlier filed writ petitions in this Court. Accordingly, it was concluded that "the authorities tried to overreach the orders of this Court without engaging the persons, whose cases had been considered and appropriate orders had been passed for giving engagement order to 29 persons who were neither before this Court nor any direction had been given in their favour";

(v) In view of the explanation offered by the Branch Manager, OSFC, Rourkela Branch in the letter dated 21st September, 2000 addressed to the Joint General Manager (PHO) of the OSFC, the letter dated 6th September, 2000 asking the appointment to cancel

was based on 'flimsy ground' and the letter dated 21st September, 2000 "itself indicates that there was camouflage approach to the problem caused by the Corporation by their own act in order to just deprive the legitimate claim of a person, who was entitled to continue in service by virtue of orders passed by this Court in the earlier writ applications";

(vi) The right of Respondent No.1 "having been adjudicated by this Court and whose name found place in the list produced by the opposite parties, he was eligible to continue in service. Ignoring the senior persons like the petitioner and giving engagement orders to juniors is itself violative of Articles 14 and 16 of the Constitution of India".

22. Accordingly, the writ petition was allowed. The impugned letter dated 6th September, 2000 was quashed and the Respondent No.1 was held entitled to the consequential benefits as if continuing in service with all back wages.

23. This Court has heard the submissions of Mr. C.A. Rao, learned Senior Counsel appearing for the Appellants and Mr. J.K. Rath, learned Senior Counsel appearing for Respondent No.1.

24. At the outset, it requires to notice that in terms of the order of the Division Bench in OJC No.3833 of 1989, appointment orders had to be issued to the Petitioners in the said writ petition in two phases, 100 in the first phase and 50 in the second phase subject to following the Orissa Reservation of Vacancies Act (ORV Act).

It is the case of OSFC that since it did not have the records of all the daily-rated Security Assistants who had been engaged in different branches at different times, a notice was published in the Daily Samaj on 14th October, 1999 calling for applications with necessary documents/ certificates/ proof of previous appointment in order to be considered the said persons for fresh appointment as Security Assistants in terms of the aforementioned order dated 20th July, 1999 of this Court. It is based on these applications and documents that a provisional list was prepared by the OSFC calling for objections within fifteen days. Respondent No.1 does not dispute the fact that his name did not figure in this list.

25. The list referred to by the learned Single Judge in the impugned order was the list submitted to the Division Bench hearing OJC No.3833 of 1989. That was not a seniority list and did not purport to be the list of persons eligible for re- appointment. Without the complete papers for each of the persons being available with the OSFC, it could not have been expected to straightaway issue orders of appointment without verification. This explains why a public notice had to be issued calling for applications and documents. Interestingly, in his writ petition, Respondent No.1 did not dispute that his name did not figure in the provisional list. The specific averment in para 11 of the writ petition reads as under:

"11. That the petitioner begs to submit that to his misfortune though a provisional list was prepared by the Secretary, O.S.F.C. for engagement of security assistants wherein the name of the petitioner did not

find place whereas name of many juniors to the petitioner found place and the petitioner was astonished to see that his name has been deliberately and wilfully omitted from the provisional list despite the order of this Hon'ble Court as well as the notice issued by the Secretary asking the petitioner to furnish the details particulars and medical certificate with regard to health of the petitioner from the C.D.M.O."

26. Respondent No.1 does not appear to have submitted an objection to the list within fifteen days but, made a representation after finding out that some others, who had joined much after he had joined initially, had been given letters of appointment.

27. It is inconceivable that despite the name of Respondent No.1 not figuring in the final list of candidates found eligible for appointment, he would still be issued an appointment letter. In fact, the central issue in the entire petition was about the genuineness of the letter dated 12th June, 2000 issued by the Secretary of OSFC purportedly under the orders of the MD.

28. The categorical stand of OSFC before the learned Single Judge was that such a letter was in fact never issued. Numerous discrepancies have been pointed out including the dispatch number written on the letter and with there being no proof of that particular letter had in fact been dispatched. That dispatch number pertained to some other letter issued by the OSFC to affirm by the name of Cuttack Diesels and that too on 19th June, 2000. It will be recalled that in the reply to the writ petition, OSFC had also enclosed copy of the relevant portion of the said dispatch register.

29. A careful perusal of the letter dated 21st September, 2000 issued purportedly as a clarification by the Branch Manager of the Rourkela Branch of the OSFC reveals the issues with it. The letter in fact seems to suggest that they proceeded as if the appointment letter dated 12th June, 2000 was a genuine one. The letter does not assert that it was in fact genuine. While acknowledging that "the branch office has neither entrusted any kind of job nor paid any salary to Sri A.N. Sahoo, since his joining", it states that after the branch office receives the exact texts in relation to the nature of the offence, "we shall lodge the FIR".

30. Respondent No.1 himself appeared to have been aware of the problems around the letter dated 12th June, 2000 and the fact that an FIR had been lodged. He added a specific prayer in the writ petition for an independent agency to be appointed to enquire into the matter by sending the signature of the Joint General Manager of OSFC, who issued the instructions, for comparison by a handwriting expert.

31. There was, therefore, a genuine problem as regards the authenticity of the letter dated 12th June, 2000 which was put in issue by the OSFC in the writ petition before the learned Single Judge. Without dealing with the central issue about the genuineness of the said letter, the learned Single Judge appears to have proceeded on the basis that the said question stood answered by the letter dated 21st September, 2000 addressed by the Branch Manager, Rourkela Branch of the OSFC to the Joint General

Manager of OSFC. In the considered view of the Court, the said letter dated 21st September, 2000 does not answer that question. It only explains on what basis the said letter was acted upon by the Branch Manager. The fact remains that as soon as the Branch Manager received the subsequent letter dated 6th September, 2000 the Branch Manager stayed his hands and proceeded to lodge an FIR.

32. The learned Single Judge also appears to have proceeded on the basis that since the name of Respondent No.1 figured in the lists submitted to the Court hearing OJC No.3833 of 1989, it was proof of his eligibility to be appointed as Security Assistant in terms of the said judgment. This again appears to be incorrect since the exercise of scrutinizing the applications and the documents of each of the Petitioners before the High Court was undertaken as a separate exercise pursuant to a public notice issued by the OSFC. Since the ORV Act had to be applied, the OSFC had to necessarily consider the reserved category candidates different from the unreserved ones. Admittedly, Respondent No.1 belonged to the UR category. In that category, it had to be further determined whether he qualified on the basis of his seniority. Therefore, the mere fact that he figured in the lists submitted to the High Court during the pendency of OJC No.3833 of 1989 could not decide conclusively his eligibility or entitlement to be appointed as a Security Assistant.

33. Without addressing the issue of genuineness of the letter dated 12th June, 2000 and overlooking the fact that Respondent No.1 in fact had not been allotted work or paid salary, even after acceptance of his joining report, the learned Single Judge could not have directed that he should be treated as having been continuously in service and entitled to the full back wages.

34. In the above background, the further finding of the learned Single Judge that the 'juniors' to the Respondent No.1 had been given preference over him and this was violative of Article 14, cannot be sustained in law. OSFC did not act arbitrarily in offering appointment to certain others after exhausting the list of eligible candidates prepared by it in the manner indicated hereinbefore.

35. For the aforementioned reasons, the Court is unable to sustain the impugned judgment of the learned Single Judge and, it is accordingly hereby set aside.

36. The writ appeal is accordingly allowed but in the circumstances with no order as to costs.

                                                   (S. Muralidhar)
                                                    Chief Justice


                                                   (G. Satapathy)
  S. Behera/ Jr. Steno.                                Judge