Bhubaneswar Thakur vs Thomas M. Cherian
2023 Latest Caselaw 8418 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                               CONTC No. 1126 of 2017

Bhubaneswar Thakur                    .....                                 Petitioner
                                                                          In person
                                      Vs.
Thomas M. Cherian, The General        .....              Opposite Parties
Manager (OMQ) & Another                           Mr. S.P. Sarangi, Adv.
            CORAM:
                   DR. JUSTICE B.R. SARANGI
                   MR. JUSTICE MURAHARI SRI RAMAN

                                             ORDER

02.08.2023 Order No. This matter is taken up by hybrid mode.

05.

2. Heard Mr. Bhubaneswar Thakur, the petitioner, who is appearing in person, and Mr. S.P. Sarangi, learned counsel for the opposite party.

3. The petitioner has filed this writ petition seeking direction to the opposite parties to release the consequential benefits within a stipulated time.

4. The fact leading to filing of this contempt application is that the petitioner, who is an Ex-Serviceman, joined under the organization of opposite party nos.1 and 2 (TISCO) on 15.06.1985 as a Driver-cum-Havildar at Joda Division. While on duty, on 29/30.07.1998, some miscreants attacked him within the leasehold area of the employer causing injuries on his person. An F.I.R. in respect of the occurrence was lodged at Joda Police Station and the petitioner was admitted in TISCO Hospital, Joda on 30.07.1998 and was discharged from hospital on 01.08.1998 with medical advice for taking three days rest. While on leave, unfortunately, on 03.08.1998, the petitioner fell down in bathroom and sustained fracture on his left arm and was again admitted in TISCO Hospital where the doctor declared him unfit for six weeks from 04.08.1998 and referred to TISCO Hospital, Jamshedpur where the petitioner was treated from 04.08.1998 to 21.08.1998 for his fracture injury. The

petitioner, on 15.08.1998, made a complaint before the Managing Director of the Hospital that some outsiders, who were related to some doctors of the said hospital, were forcibly taking away food prepared for the patients. Since the complaint of the petitioner was detrimental to the interest of the doctors, he was referred to the Psychiatrist. The psychiatrist declared him unfit for mental problem due to mala fide and ulterior motive, though the petitioner was in normal state of mind. The petitioner was then referred to TATA Main Hospital (TMH), Jamshedpur where he was admitted on 14.09.1998. On 17.09.1998, the company Medical Board declared the petitioner unfit for a period of six months on Psychiatric grounds. After six months, the petitioner was again examined by the Medical Board at Jamshedpur Hospital and was declared unfit for a further period of six months. Thereafter, the petitioner made a representation before the opposite parties to allow him to resume his duty but he was not allowed. As a result, the petitioner raised an industrial dispute. The attempt for conciliation of the dispute having failed for non-cooperation of the management, the Conciliation Officer of the appropriate Government made a reference to the Tribunal which was registered as I.D. Case No. 81 of 2001. The reference in the said I.D. case was only with respect to the demand of the petitioner for payment of salary/wages for the period of injury on working from 04.08.1998 till the date of his so called retirement. The petitioner, having found that a wrong reference had been made, filed a representation before the appropriate Government to make necessary correction in the schedule of the reference. While such representation was pending, the tribunal answered the reference in I.D. Case No.81 of 2001 in favour of the petitioner. The petitioner, thereafter filed W.P.(C) No. 7240 of 2003 before this Court challenging the award passed in I.D. Case No. 81 of 2001. The said

writ petition was disposed of vide order dated 09.07.2004 at the stage of admission with a direction to the Ministry of Labour, Government of India to look into the grievance of the petitioner and pass appropriate order in accordance with law. In compliance of the said order, the Central Government made the following reference:-

"Whether the actions of the Management of Joda Iron Mines of TISCO Ltd., Joda in terminating the services of Shri Bhubaneswar Thakur, Driver- cum - Havildar on Medical Separation Scheme with effect from 02.11.1999 is legal and justified? If not, what relief the workman is entitled to?"

5. On the basis of the above reference, the Central Government Industrial Tribunal, Bhubaneswar registered I.D. Case No. 6 of 2005 and by award dated 31.08.2007 came to hold that the petitioner has taken voluntary retirement under the Medical Separation Scheme, which does not amount to any retrenchment, dismissal or discharge and that raising of the dispute after severance of employer and employee relationship makes the reference non-maintainable and accordingly rejected the claim of the petitioner. The said order of the tribunal was challenged by the petitioner by filing W.P.(C) No. 1008 of 2008 and after due adjudication, this Court, vide order dated 09.07.2013, passed the following orders:-

"The above aspect having not been considered by the Tribunal, the award of the Tribunal is indefensible. Accordingly, it is held that the acceptance of the petitioner's application under the scheme amounts to illegal retrenchment. It is, therefore, directed that in case the petitioner has not reached age of superannuation, he shall be reinstated in service with 25% back wages and his past service from the date of voluntary retirement shall be taken into account for the purpose of retiral benefits. The retirement dues, which the petitioner had already received pursuant to acceptance of his application under the Medical Separation Scheme, shall be adjusted towards back wages."

6. Against the order dated 09.07.2013 passed by this Court in W.P.(C) No. 1008 of 2008, the petitioner preferred writ appeal bearing W.A. No. 378 of 2013, which was dismissed vide order dated 04.05.2015 with the following orders:-

"After going through the writ appeal, we find that the appellant is raising serious disputed questions of fact. It is writ large on the fact of the record that on 02.11.1999, the petitioner's application for voluntary retirement was accepted. On 17.11.1999 and 22.11.1999 he has received all the retiral benefits under the Medical Separation Scheme. Once the appellant's application for voluntary retirements has been accepted, to raise any grievance against such retirement which was on his own volition does not stand to reason."

7. After dismissal of the writ appeal, the petitioner filed CONTC No. 840 of 2015, which was dropped by this Court to the following effect:

"Mr. Rajguru appearing on behalf of Mr. M. K. Mishra, learned counsel for the petitioner states that the judgment of this Court dated 09.07.2013 passed in W.P.(C) No.1008 of 2008 has not been complied with. Even though challenging the said judgment, Writ Appeal No.378 of 2013 was filed, vide order dated 04.05.2015 a Division Bench of this Court has dismissed the same. In such view of the matter, if the judgment of this Court dated 09.07.2013 has not been complied with in the meantime, the same shall be complied with within three months.

The contempt proceeding is hereby droped."

8. The present contempt petition has been filed by the petitioner alleging once again that the judgment passed by this Court on 09.07.2013 in W.P.(C) No. 1008 of 2008 has not been complied with.

9. Pursuant to notice, opposite parties entered appearance and filed affidavit contending that the petitioner is not entitled to any benefits for the following reasons:-

"(a) The judgment dated 09.07.2013 is conditional and the benefits are subjected to the fact that "IF THE

PETITIONER HAS NOT ATTAINED THE AGE OF THE SUPERANNUATION"

(b) The Petitioner has already attained the age of retirement which he himself admits the he retired before the judgment was passed.

(c) The order passed by the Hon'ble Division Bench while dismissing the writ appeal filed by Mr. Bhubaneswar Thakur governs the case and the said order is binding on the Petitioner.

(d) The Division Bench has clearly stated that once the Petitioner accepted the voluntary retirement he cannot raise any grievance any further.

(e) The Petitioner himself is aware of the situation and he filed a petition for modification of the judgment which coild not be pressed after disposal of the writ appeal on 04.05.2015."

10. It is contended that since the judgment of this Court has been complied with by paying his legitimate dues and by the time the judgment was passed on 09.07.2013, the petitioner was no more in employment, question of any reinstatement in service and payment of back wages does not arise. As such, since the petitioner is out of employment since 1999, question of re-employment does not arise. Furthermore, whatever benefit he is entitled to get under law, the same has already been paid to him. Today also an affidavit has been filed by the opposite parties, after serving copy thereof on the petitioner in Court today, and he has also acknowledged the same. On perusal of the affidavit filed, it is made clear that the petitioner was discharged from service with effect from 06.11.1999 under the Medical Separation Scheme and, as such, he has already received all his retrial benefits on 17.11.1999, 20.11.1999 and 22.11.1999. Therefore, any order now the petitioner claims, that having been merged with the writ appeal order, where this Court already observed that the petitioner raised serious disputed questions of fact and it is writ large on the face of the record that on 02.11.1999, the petitioner's application for voluntary retirement was accepted and

that on 17.11.1999 and 22.11.1999 he has received all the retiral benefits under the Medical Separation Scheme. Once the petitioner's application for voluntary retirements has been accepted, to raise any grievance against such retirement, which was on his own volition, does not stand to reason.

11. In such view of the matter, the judgment passed by this Court on 09.07.2013 in W.P.(C) No. 1008 of 2008 having been merged with the order dated 04.05.2015 passed in W.A. No. 378 of 2013, question of any payment of back wages or reinstatement in service, after superannuation from service, does not arise. As such, this Court is of the firm opinion that the order of the writ Court having been complied with, nothing remains to be adjudicated in this application.

12. Accordingly, the contempt proceeding is hereby dropped.

              Ashok                                                   (DR. B.R. SARANGI)
                                                                            JUDGE




                                                                         (M.S. RAMAN)
                                                                            JUDGE




Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR JAGADEB MOHAPATRA
Designation: Personal Assistant
Reason: Authentication
Location: HIGH COURT OF ORISSA
Date: 03-Aug-2023 11:24:37