M/S. Odisha Mining Corporation vs Govt. Of India And Others
2023 Latest Caselaw 4284 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK
                             W.P.(C) No.18541 of 2021
                              (Through Hybrid mode)


     M/s. Odisha Mining Corporation                 ....                          Petitioner
     Ltd.

                                            -versus-

     Govt. of India and others                      ....                  Opposite Parties


     Advocates appeared in this case:

For Petitioner              : Mr. Narendra Kishore Mishra, Senior Advocate
                              Mr. N. K.Mishra, Advocate

     For opposite parties : Mr. P. K. Parhi, Deputy Solicitor General
                            Mr. Nrusingha Charan Rout, Advocate


CORAM:
JUSTICE ARINDAM SINHA
JUSTICE SANJAY KUMAR MISHRA

--------------------------------------------------------------------------------------------
                   Dates of hearing: 16.02.2023 and 25.04.2023
                  Date of Judgment: 25.04.2023
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ARINDAM SINHA, J.

1. Petitioner management has challenged award dated 15th December,

2020 made by Central Government Industrial Tribunal-cum-Labour Court,

// 2 //

Bhubaneswar (CGIT). By it, there was direction to reinstate the workman,

represented here through the union being opposite party no.3. Mr. Rout,

learned advocate appears on behalf of said opposite party. The direction was

reinstatement, in the post he was continuing before his termination, with 50

percent back wages. It was to be complied within two months from

notification of the award, failing which the workman would be entitled to

simple interest of 7 percent per annum of the amount of entitlement in shape

of back wages directed thereby. Further direction was, the workman deemed

to have continued in service during the period of his disengagement and

thereby entitled to consequential service benefits, if any, on his

reinstatement.

2. Co-ordinate Bench by order dated 7th October, 2021 made following

directions as are reproduced below.

"1. Subject to the Petitioner depositing 50% of the back wages amount together with simple interest of 7% per annum, as directed in the impugned award, not later than 8th November 2021 in this Court, notice be issued to Opposite Party No.3 by Speed/Registered Post with A.D. making it returnable by the next date. Requisites be filed

WPC no.18541 of 2021 // 3 //

not later than 8th November, 2021. The tracking report be placed on record before the next date.

2. The amount when deposited will be kept by the Registry in a fixed deposit with a nationalized Bank initially for a period of three months and be renewed during the pendency of the writ petition."

(emphasis supplied)

3. Mr. Mishra, learned senior advocate appears on behalf of petitioner-

management and submits, memo dated 28th October, 2021 was filed to bring

on record deposit by his client of Rs.2,74,940/- by Demand Draft 862198

dated 26th October, 2021, drawn on Union Bank of India, Bhubaneswar. The

Demand Draft was in favour of Registrar (Judicial) of this Court. Mr. Parhi,

learned advocate and Deputy Solicitor General appears for opposite party

nos.1 and 2.

4. In earlier hearings, we ascertained few facts. They are that the

workman was engaged on 1st May, 1993, for period of six months, as

Compressor Operator Trainee. He continued as such, uninterruptedly till his

disengagement on 30th June, 2001. The termination gave rise to industrial

dispute, on which there was failure of conciliation report dated 26th

September, 2003, followed by order of reference dated 5th February, 2004

WPC no.18541 of 2021 // 4 //

and conclusion of the reference by aforesaid impugned award dated 15th

December, 2020.

5. On behalf of petitioner it was submitted, the challenge is twofold.

Firstly, against reference order dated 5th February, 2004, inasmuch as, it is

vague. The schedule says, inter alia, whether termination of services of the

workman working as Compressor Operator Trainee w.e.f. 1st January, 2001

is legal and justified. There being no dispute that termination was thereafter

or he had engagement till 30th June, 2001, the reference is incapable of

answer. There could not have been termination on 1st January, 2001 in spite

of engagement till 30th June, 2001. The two dates pose a contradiction in the

schedule, to make it vague. By the schedule itself, reference is to a trainee

having an engagement period. Therefore, the reference could not have been

made, as opposite party no.3 cannot espouse cause of a person not a

workman.

6. There was reference to engagement order dated 1st May, 1993 for

submission that the engagement was initially for period of six months and

renewed thereafter in tandem. The trainee had engagement till 30th June,

2001. He performed on his engagement till that date. In the circumstances, it

WPC no.18541 of 2021 // 5 //

was reiterated, the schedule of reference was incapable of answer. The order

of reference itself be interfered with, for it to be set aside and quashed.

7. Earlier, on query from Court, Mr. Mishra had drawn attention to

communication dated 26th September, 2003 being failure of conciliation

report. Allegations of the workman recorded therein are that there was

illegal termination of service, fixation of designation and scale of pay as per

nature of work of Compressor Operator Trainee. It was also submitted that

there cannot be compliance of direction for reinstatement made by an

award, adjudication of which took 19 years.

8. Today, Mr. Mishra relies on several decisions of the Supreme Court.

(i) BSNL v. Bhurumal, reported in 2014 (7) SCC 177,

paragraphs 33 and 34. Mr. Mishra submits, the judgment was

rendered regarding case of contract labourers. Compensation in lieu

of reinstatement was directed to be paid at Rs.3 lakhs to the workman,

who had worked for longer period than others, the latter having had

worked for merely 240 days.

WPC no.18541 of 2021 // 6 //

(ii) District Development Officer v. Satish Kantilal Amrelia,

reported in (2018) 12 SCC 298. It was also a case regarding direction

in award for reinstatement of a worker on daily wages. Compensation

in lieu of reinstatement was directed at Rs.2,50,000/- with interest.

(iii) State of Gujarat v. Kuberbhai Kanjibhai, reported in (2019)

4 SCC 307. Mr. Mishra submits, this too was decision regarding daily

wager, awarding compensation of Rs.1 lakh in lieu of right to claim

reinstatement.

(iv) Ranbir Singh v. Executive Eng. P.W.D, available at 2021

SCC online SC 670. In this case, there was direction for

reinstatement of an employee workman. Compensation in lieu of

reinstatement was assessed at Rs.3.25 lakhs and directed to be paid.

Mr. Mishra submits, above declarations of law were made consistently

directing compensation in lieu of reinstatement. It is the legal position to be

applied to the dispute between the parties. Attempts at settlement have

failed. In the circumstances, his client is ready and willing to pay Rs.5 lakhs

as compensation in lieu of back wages and reinstatement, on direction to do

WPC no.18541 of 2021 // 7 //

so accompanied by return of the deposit and accrued interest thereon, to his

client. On query from Court he submits, initially the stipend was Rs.750/-

per month and subsequently increased to Rs.1000/- per month.

9. Mr. Rout draws attention to letter dated 3rd August, 1992 written by

Manager (P & A)-II. Text of the letter is reproduced below.

"Your representation for retirement from service and giving a job to your son under Rehabilitation Assistance Scheme was put up to CMD for his kind consideration. Since, your retirement from Corporation Service on account of incapacitation as per rule, 55 of the Orissa Government Service Pension Rule, 1977 a certificate from Chief Medical Officer, of your district is to be produced for considerating your retirement and giving an employment to your son under the above scheme.

You are hereby directed to furnish the above certificate at an early date for the above purpose."

(emphasis supplied)

He submits, his client was given engagement and designation of

Compressor Operator Trainee but actually, he was working as Compressor

Operator. There was necessity of the function discharged by his client. He

then draws attention to appointment letter issued to the workman. It is office

WPC no.18541 of 2021 // 8 //

order dated 1st May, 1993. Reproduced below are the terms and conditions

and the paragraph following, in the order.

"TERMS AND CONDITIONS:

(1) During training period he would not be entitled to any leave.

(2) He shall be guided by OMC Rules relating to disciplinary proceedings during training period. (3) His training in OMC will have no right to get regular appointment in OMC Limited.

(4) During the training period his engagement can be terminated from OMC if his conduct or performance is not found satisfactory.

(5) He can be transferred to any other place where the OMC has its units.

If he accepts the above said terms and conditions he should report for training to General Manager, J. K. Road within a week failing which the offer shall be treated as cancelled automatically without any notice."

(emphasis supplied)

10. Mr. Rout submits, above documents taken together are sufficient for

purpose of judicial review, to conclude that there should not be interference

with impugned award. Clearly, the workman was given employment in lieu

his father's employment as Compressor Operator, on him having become

WPC no.18541 of 2021 // 9 //

progressively unfit due to physical ailment. He had been on long leave and

voluntary retirement happened just after the management had engaged the

workman in his place. He relies on judgment of the Supreme Court in

Jeetubha Khansangji Jadeja v. Kutchh District Panchayat, available at

2022 SCC Online SC 1284, wherein, inter alia, paragraph-34 in Bhurumal

(supra) was referred. He submits, his client does not accept the offer of Rs.5

lakhs as settlement. Court should dismiss the writ petition.

11. We have come across communication dated 12th August, 1993 made

by the Mines Manager to the Regional Manager. Text of the communication

is reproduced below.

"In inviting a reference to your Office letter Memo No.2944 dtd.25.5.93, this is to inform you that the work performance report of Sri Dipak Kumar Sahu, Trainee in Compressor of Kaliapani Chromite Mines with effect from 20.5.93 to 31.7.93 is found satisfactory."

(emphasis supplied)

We also noticed communication dated 5th January, 1998, forwarded by

Manager (Mining). Text of it is also reproduced below.

"Kindly refer the W/M on the subject cited above, Sri Deepak Kumar Sahoo, Compressor Operator Trainee has

WPC no.18541 of 2021 // 10 //

not been engaged after 31.8.97 as per the instruction of higher Management.

But it is for your kind information that Sri Sahoo was engaged to operate the IR Drill successfully as there is no Operator for the IR Drill. This was very much help to the Management for production. Now we are facing a lot of problem to operate the IR Drill. Sri Sahoo was also much experienced in the line and also most needful. Under the above circumstances it is suggested that Sri Sahoo may please be engaged for the better production and smooth operation of the Machine."

(emphasis supplied)

12. We have perused, inter alia, deposition in cross-examination of

Management Witness (MW 1) recorded on 19th August, 2019. The witness

was working as Labour Welfare Officer, posted at Barbil. He admitted,

there is no training school of the management for giving training on

Compressor Operator job. There is no specific rule to keep a person in

Compressor Operator training for number of period. He also said that the

management had not filed any document to show that the second party had

made request for extension of the engagement.

13. In context of above we looked at findings under issue no.2,

regarding relief the workman is entitled to since, there did not appear to be

WPC no.18541 of 2021 // 11 //

any dispute on the fact of disengagement/termination without notice. In this

connection contention of the management on the reference order being

vague we have not given importance to because, on query from Court Mr.

Mishra submits, this point was not taken by way of challenge to the

reference order and the management participated in the reference,

adjudication of which took abnormally long. In the reasoning given for

grant of relief, CGIT found that the workman was accommodated by the

first party management as Compressor Operator Trainee. He continued to

work as such for eight years and thereby lost opportunity to be engaged in

such equivalent post by his merit in other organisation. Lastly, it is not

disputed that the management being involved in mining activity is expected

to take services of Compressor Operator in the mining operation and,

therefore, it would not be difficult to accommodate the workman.

14. We are convinced that as on 30th June, 2001 the workman was

discharging duty of Compressor Operator, necessary for mining operation of

petitioner-management. However, the management thought best to

terminate him. Since his termination, 22 years have passed. The Supreme

Court had also in Deepali Gundu Surwase v. Kranti Junior Adhyapak,

reported in (2013) 10 SCC 324 (paragraph 22) observed on condition of a

WPC no.18541 of 2021 // 12 //

workman, who has to go through gamut of litigation against the

management, being denied, inter alia, relief pendente lite. So much so there

was observation that the workman may not live to see and get the benefit

assured to him by law, as unable to cross the hurdle of litigation obstructing

and standing between him and the relief.

15. The Supreme Court in Bhurumal (supra) by paragraph-34 observed

on position of a daily wager after his reinstatement, he being likely to be

then, again terminated. Paragraph-34 is reproduced below.

"34. The Reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation.

Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularization (See: State of Karnataka vs. Umadevi). Thus when he cannot claim regularization and he has no right to continue even as a daily-wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court

WPC no.18541 of 2021 // 13 //

itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose."

(emphasis supplied)

16. The findings on relief by impugned order appear to be well reasoned

and based on material, available on evidence adduced in the Tribunal.

However, keeping in mind situation of the workman, who continued in his

entire stint of service as a trainee, doing the job of operator, who was

engaged on ground of his father having been on extended leave and

ultimately voluntarily retired after his engagement, we think best to mould

the relief by directing compensation to be paid in lieu of reinstatement and

the consequential directions. This limited interference is also called for

because in spite of the workman having applied under section 17-B in

Industrial Disputes Act, 1947, the management has not paid on the relief

due to him under the provision. In the objection filed by the management

there is no allegation of the workman having had obtained employment in

WPC no.18541 of 2021 // 14 //

between. Adjudication on the application did not happen on adjournment

obtained by the management, to engage in talks of settlement.

SANJAY KUMAR MISHRA, J

17. So far as the judgments cited by Mr. Mishra, learned Senior Counsel,

in most of the cases the disputants were either contract labourers or daily

wagers and had worked for few years, whereas in the present case, it was

well proved that the workman though was engaged as "Compressor

Operator Trainee" on rehabilitation ground, the same was extended from

time to time. He was also engaged as Operator to operate the IR Drill and

there was a recommendation by the Manager (Mining), to engage the

workman for the better production and smooth operation of the machine.

Section 2(ra) read with Fifth Schedule under the Industrial Disputes Act,

1947 defines unfair labour practice. Under said Schedule, if the employer

employs workmen as "badlis", casuals or temporaries and continues with

them as such for years, with the object of depriving them of the status and

privilege of permanent workmen, said act of the employer amounts to unfair

labour practice. Hence, we are of the view that said decisions cited by Mr.

WPC no.18541 of 2021 // 15 //

Mishra, learned Senior Counsel for the petitioner, are not applicable to the

facts and circumstances of the present case.

18. Law is well settled that if the Industrial Adjudicator directs for

reinstatement of the disputant workman, the workman should be reinstated

for the post and position, which he was occupying as on the date of refusal

of employment. Since, admittedly, the opposite party (workman) was

working as a "Compressor Operator Trainee" as on the date of refusal of

employment, if the award is confirmed by this Court, he will be reinstated in

the said post and position and there is every possibility that the management

may again terminate his services by paying him retrenchment compensation.

19. In lieu of reinstatement petitioner-management will pay to the

workman Rs.3,00,000/-. This payment is to be made by 15th May, 2023.

That apart, Registrar (Judicial) is directed to forthwith encash the deposit

made by the management and held by this Court. On production of this

order by the workman, the Registrar will pay out the proceeds along with

accrued interest, to him. In addition, petitioner will also pay to the

workman, aggregate of last drawn wages on and from 15th December, 2020

(date of award) till date. The sum amounts to Rs.28,000/-. The Supreme

WPC no.18541 of 2021 // 16 //

Court in Regional Authority, Dena Bank v. Ghanshyam, reported in

(2001) 5 SCC 169 had declared the law for the amount to be paid under

section 17B, to be calculated from date of the award. Thus, petitioner

management will pay by 15th May, 2023 aggregate Rs.3,28,000/-, failing

which our modification of the award will automatically stand vacated and

thereupon, it open to the workman to seek enforcement thereof. This will be

inspite of payment by the Registrar.

20. The judgment be communicated to Registrar (Judicial) forthwith.

21. The writ petition is disposed of.

( Arindam Sinha ) Judge

( S. K. Mishra ) Judge Prasant

WPC no.18541 of 2021