Birsingh Nial vs State Of Odisha And Others
2023 Latest Caselaw 9239 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK
                             W.P.(C) No. 9307 of 2019

Birsingh Nial                         .....                                 Petitioner
                                                           Mr. P.K. Dash, Advocate
                                      Vs.
State of Odisha and others            .....                          Opposite Parties
                                                               Mr. S.N. Nayak, ASC
                CORAM:
                      DR. JUSTICE B.R. SARANGI
                      MR. JUSTICE MURAHARI SRI RAMAN

                                             ORDER

14.08.2023

Order No. This matter is taken up through hybrid mode.

08.

2. Heard Mr. P.K. Dash, learned counsel for the petitioner and Mr. S.N. Nayak, learned Additional Standing Counsel for the State.

3. The petitioner has filed this writ petition seeking to quash the order dated 03.10.2018 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 3439 (C) of 2010, by which the claim of the petitioner for regularization of services has been rejected.

4. Mr. P.K. Dash, learned counsel for the petitioner contended that the petitioner had rendered service under work charged establishment for a longer period, i.e. for more than five years, for which his service should have been regularized in view of the decision of the apex Court. But the Tribunal has committed error by not taking into consideration such fact. Therefore, the petitioner

has approached this Court in the present writ petition.

5. Mr. S.N. Nayak, learned Additional Standing Counsel appearing for the State contended that the Original Application filed by the petitioner is barred by limitation and as such, the petitioner having accepted the benefit of work charged establishment, now he cannot turn around and ask for regularization of services with retrospective effect. Thereby, the claim so made cannot be sustained in the eye of law.

6. Having heard learned counsel for the parties and after going through the record, it appears that the petitioner had retired from service from work charged establishment on 31.05.2009. Thereafter he filed the Original Application before the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 3439 (C) of 2010, on 26.10.2010, i.e. after one year and five months of his retirement. As per the provisions contained in Administrative Tribunal's Act, the petitioner had to approach the Tribunal within a period of one year from the date of the cause of action. If that be so, then the Original Application would not have been entertained by the Tribunal. But the Tribunal having entertained the Original Application, came to a conclusion that the petitioner had worked under work charged establishment and in the meantime has retired on 31.05.2009 and received all the benefits as work charged employee. Now he cannot turn around and claim the benefit of regularization, which is not permissible.

7. Taking into such finding, it is made clear that in view of the observation made by the apex Court, there can be no question of

regularization of service after the work charged employee has retired from service. More so, in paragraph-19 of the counter affidavit filed the State opposite parties, specific pleading has been made to the following effect.

"So when the petitioner did not accept the regular(wages) post when offered specifically and preferred to retire as work charged employee, his claim for regularization after retirement is not possible in view of the judgment. Besides, he would get pension from Employees Provident Fund Office (EPFO) as retd. W/C/ employee as per provisions of the Orissa Work Charged Employees (Appointment and Conditions of Service) Instructions, 1974."

8. In view of the aforesaid facts and circumstances, since the petitioner did not accept the regular post when offered specifically and preferred to retire as work charged employee, the claim for regularization after retirement is not permissible. Thus this Court does not find any error apparent on the face of the impugned order passed by the tribunal.

9. Accordingly, the writ petition merits no consideration and the same stands dismissed.

(DR. B.R. SARANGI) JUDGE

Arun (M.S. RAMAN) JUDGE

Signature Not Verified Digitally Signed Signed by: ARUN KUMAR MISHRA Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-Aug-2023 15:04:47