O.S.E.B. Shramik Mahasangha vs State Of Orissa And Another
2023 Latest Caselaw 9938 Ori

        ORISSA HIGH COURT : C U T T A C K
                       W.P.(C) NO. 25050 OF 2023
               An application under Articles 226 & 227 of
                        the Constitution of India.


O.S.E.B. Shramik Mahasangha,
Bhubaneswar                                            : Petitioner

                                   -Versus-

State of Orissa and another                          : Opposite Parties


      For Petitioner                       : Mr. Somnath Mishra, Adv.
                                             Mr. K.R. Mohanty, Adv.
                                             Mr. G. Tripathy, Adv.
                                             Mr. J. Mohanty


      For O.Ps.                            : Mr. U.K. Sahoo, ASC

                                   JUDGMENT

CORAM :

JUSTICE BISWANATH RATH JUSTICE M.S.SAHOO

Date of Hearing & Judgment : 24.08.2023

Per Biswanath Rath, J. This Writ Petition involves the following prayer:-

<It is, therefore, in the circumstances, humbly prayed that the Hon'ble Court be pleased to admit the writ petition, issue notice to the Opp. parties to show cause as to why this writ petition shall not be allowed and if the Opp. parties do not show cause or shows insufficient or false cause then after hearing

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the Counsel for the parties be pleased to allow the writ petition by directing the Opp. party No. 1 to refer all the leftover industrial disputes raised by the petitioner in response to the failure report in addition to the order of reference dt. 8.2.2023 as at Annexure-10 or in alternative quash Annexure-10 and direct the O.P. No. 1 to pass appropriate order and/or refer all the disputes raised by the petitioner in response to the failure report submitted by the Conciliation Officer and be further pleased to pass any other or further order/orders as deem fit and proper in the facts and circumstances of the case;

And for this act of kindness the petitioner shall as in duty bound ever pray.=

2. Taking this Court to the reference at Annexure-10 reading

together with the demands of the Union- the Petitioner involved

herein at Annexure-2, Mr. Mishra, learned counsel for the

Petitioner brings an allegation that even though the several Unions

including that of Petitioner/Union raised demands on several

aspects thereby raising seven demands altogether even in absence

of any reason assigned in the non-recommendation of issues for

reference, there has been abrupt dropping of the issues particularly

vide Demand Nos. 1 and 7 in making the reference by the

Competent Authority vide order dated 08.02.2023 at Annexure-10.

3. It is in the circumstance and for there has been several

demands and Demand Nos. 1 and 7 not being included in the

reference order, one of the Union-the Petitioner herein alleges that

there has been illegal dropping of above demands and claims,

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unless Demand Nos. 1 and 7 are also referred, there is serious

prejudiced to the Union involved therein.

4. Mr. Mishra, learned counsel in his attempt also placed

reference of third schedule in the Industrial Dispute Act, 1947 and

in the process Mr. Mishra, learned counsel for the Petitioner

advances his submission to substantiate that there has been illegal

and erroneous dropping of the demands vide Demand Nos. 1 and 7.

There is, however, clear statement that majority of the other issues

have either been referred for industrial adjudication by Industrial

Adjudicator or settled and the concerned Workmen-the Union

herein involving only on Demand Nos. 1 and 7 presently.

5. Mr. Sahoo, learned Additional Standing Counsel appearing

for the Authority making reference in the satisfaction of the order

of reference, taking this Court to the failure report, reading through

the same and again in reference to the third schedule making way

for giving particular aspects to be brought under reference for

industrial adjudication, contended there has been no illegal

dropping. Submission is also advanced by learned State Counsel

that considering the Demand Nos. 1 and 7 so far as the Demand

No. 1, it is contended that looking to the third schedule; there is no

provision for making such reference. So far as the Demand No. 7 is

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concerned, Mr. Sahoo, learned counsel contended that the Demand

No. 7 also does not come under the purview of the third schedule

of the Industrial Dispute Act and at the same time the Workmen

affected are not precluded from agitating such issue by way of

other remedies. It is in the circumstance, learned State Counsel

requested for rejecting the Writ Petition.

6. Considering the rival contentions of the parties and for better

appreciation of the proceeding, this Court likes to take down the

demands raised by the Petitioner herein, which remain as follows:-

<1. The managements of OHPC should immediately regularize the outsource workers in different power projects in regular posts.

2. The management of OHPC should immediately take appropriate action against the officer responsible for the miss-management of power Houses Burla, Balimeal, Upperkolab, Indrabati, Rengaji, Chiplima etc and the power projects should be functional as a workable condition.

3. The management of OHPC should immediately revise the allowances structure of OHPC per the demand of the coordination committee demanded in the year 2017 for wage revision from dt-01/04/2015. The present decision of the OHPC regarding the various allowances go against the interest of workers, should not be implemented. The management of OHPC creating discrimination among the officer5s and workers in HRA & Special allowances cases.

4. The management of OHPC should immediately release 10th wage revision Arrears w.e.f. 01/04/2015 as per settlement.

5. The management of OHPC should immediately revise the wages of worker w.e.f 01/04/2020.

6. The post of Executives under difference power projects & training centre should be filled by non- executive TNE categories of employees.

7. Uniform Pension Scheme should immediately be allowed to workers of OHPC.=

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7. It is at this stage of the matter, this Court finds as a first step,

the Petitioner-Union moved this Court vide W.P.(C) No. 27951 of

2021 and the same was decided by the Division Bench with the

following order:-

<1. Limited direction is sought for to the Labour Commissioner (Opposite Party No. 2) to issue a conciliation notice to Chairman-cum-Managing Director, Orissa Hydro Power Corporation (OHPC) (Opposite Party No. 3) on the basis of the letter submitted by the Union (Annexure-1).

2. In that view of the matter it is directed that, if not already done, the Opposite Party No. 2 will issue a conciliation notice to Opposite Party No. 3 on the basis of Annexure-1 not later than 4th October, 2021 and proceed in accordance with law by passing an appropriate order within a further period of one month thereafter.

3. The writ petition is disposed of in the above terms.

4. An urgent certified copy of this order be issued as per rules.=

8. It appears, pursuant to the above direction, the conciliation

proceeding commenced and as an outcome of the above direction.

Conciliation failure report under Section 12(4) of the Industrial

Dispute Act, 1947 was made on 11.02.2022. On perusal of the

failure report this Court finds, there has been threadbare discussion

on each of the demand raised by the Union involved herein and

finally the Conciliation Officer finding no settlement on valid issues

could have submitted the failure report before the Government for

necessary action. Unfortunately no reference order surfaced for

long time.

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9. It is at this stage of the matter, it appears, the Petitioner again

moved this Court vide W.P.(C) No. 7682 of 2022. This Writ

Petition involved inaction of the Competent Authority in taking

any decision even after receiving the failure report. This Writ

Petition was disposed of by a coordinate Bench of this Court vide

order dated 13.04.2022 with the following direction:-

<This matter is taken up through video conferencing mode.

2. Heard Mr. S. Mishra, learned counsel on behalf of Mr. P.K. Chand, learned counsel for the petitioner and Mr. H.M. Dhal, learned Additional Government Advocate.

3. According to Mr. Mishra, the petitioner which happens to be a Union is aggrieved by the inaction of the authorities more particularly, opposite party No.1 in taking any decision after receiving Conciliation Failure Report submitted by the Conciliation Officer-cum-Additional Labour Commissioner, Odisha vide letter No.814(7) dated 11.02.2022 under Annexure5. In such background, he prays that that a direction be issued to the opposite party No.1 to take a decision on the said Conciliation Failure Report within a specific time period in the background of provisions as contained in Sub-Section 5 of Section 12 of the Industrial Disputes Act, 1947.

4. Considering the submissions made and without expressing any opinion on the merits of the case, this Court directs the opposite party No.1 to take a decision on the Conciliation Failure Report under Annexure-5 in accordance with law by the end of May, 2022 and communicate the result of such exercise to the petitioner.

5. Accordingly, this writ petition is disposed of.

6. Urgent certified copy of this order be granted on proper application in course of the day.=

Following the aforesaid direction, it appears, as an outcome

there has been a reference for adjudication of the dispute as per the

order dated 07.05.2022 vide Annexure-6. It is unfortunate to note

here that there has been no indication on reference at all in the

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referral order. On perusal of the referral order, this Court finds, the

referring Authority in clear term indicated therein as follows:-

<And whereas the said Government consider it expedient to refer for adjudication the matters specified in the schedule appended hereto which appear to be the matter in dispute;=

10. While the matter stood thus and finding an innocuous

reference order, it appears, there has been another Writ Petition

moved to this Court by the Union itself vide W.P.(C) No. 30158 of

2022 making specific allegation on the referral order having no

indication on the subject of reference. Considering such allegation

a coordinate Bench of this Court in disposal of the W.P.(C) No.

30158 of 2022 came to observe as follows:-

<1. This matter is taken up through Hybrid Mode.

2. Heard Mr. Somanath Mishra, learned counsel appearing for the Petitioner-Union, Mr. D.P. Nanda, learned Senior Counsel assisted by Ms. S. Moharana, learned counsel appearing for the opposite party No.2 and Mr. D. Nayak, learned Addl. Government Advocate appearing for the opposite party No.1.

3. The grievance of the writ petitioner falls within a very short compass. The petitioner had approached this Court earlier twice on the first occasion, dispute for conciliation of the matter and on the second occasion, on failure of the conciliation, to refer the matter for reference of the dispute to the Industrial Tribunal for adjudication.

4. In terms of the order dated 13.04.2020, delivered in W.P.(C) No.7682 of 2022 [Annexure-5 to the writ petition], the reference was made under Section-12(5) read with Section-10(1), Clause-(d) of the Industrial Dispute Act, 1947, by the order dated 07.05.2022.

5. Mr. Mishra, learned counsel has submitted that the said order dated 07.05.2022 [Annexure-6 to the writ petition] is an incomplete order of reference, as no schedule of the

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dispute is appended thereto. As such, this is an order of no consequence.

6. The counsel for the parties have conceded without any reservation that the said order is required to be recalled and direction to pass the appropriate order with the schedule of disputes be issued for the competent authority, i.e. the appropriate Government represented by the Secretary to the Labour & ESI Department or his delegate.

7. In the face of the records, we are satisfied that the said order dated 07.05.2022 is an order of no consequence. Hence, we set-aside the order dated 07.05.2022.

8. As corollary, the opposite party No.1 is directed to pass the appropriate order of reference with the schedule of disputes within a period of three weeks from the date of receipt of a copy of this order.

9. In terms of the above, this writ petition stands allowed and disposed of.

10. Urgent certified copy of this order be granted as per rules.

11. A free copy of this order be supplied to Mr. D. Nayak, learned Addl. Government Advocate for onward transmission.=

11. This Court in its satisfaction that the order dated 07.05.2022

is an order of no consequence, therefore setting aside the order of

reference dated 07.05.2022 at Annexure-6, directed the Opposite

Party No. 1 to pass appropriate order of reference within three

weeks from the receipt of copy of communication. It is as an

outcome, there is order of reference by the Competent Authority

vide Annexure-10 scheduled therein appears to be as follows:-

<2. Whether the workmen of OHPC Ltd. are entitled to revision of wages and allowances w.e.f 1.04.2020 on expiry of long term wage settlement on 31.03.2020? If so, what should be the details of wage structure?=

12. It appears again at this stage of matter that there has been

presentation of another Writ Petition by the Union vide W.P.(C)

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No. 7135 of 2023. Considering the allegation made therein, this

Court vide order dated 01.05.2023 on the request of the learned

counsel for the Petitioner to pursue other remedies available,

permitted the Petitioner to withdraw the Writ Petition.

13. In course of submission, Mr. Mishra, learned counsel for the

Petitioner-Union brings to the notice of this Court that this Writ

Petition involved question on Demand No. 1 and even though this

Court gave the liberty to Petitioner to pursue other remedies, but

however claims, the order did not disclose the same. We appreciate

the information of Mr. Mishra, learned counsel for the Petitioner to

this Court involving the subject involving such Writ Petition and

finds there cannot be entertainment of any further Writ Petition on

the Demand No. 1 except the Petitioner, if so advised has to find

out other options, if any, available.

14. It is at this stage of the matter considering further submission

of Mr. Mishra, learned counsel for the Petitioner through

Annexure-12 that there has been reference on similar subject vide

Demand No. 1 though involving other establishment and inference

has been drawn through the same by the learned counsel for the

Petitioner, on perusal of the third schedule, this Court does not find

coverage of any such demand in the third schedule further such

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issue is already undertaken for consideration and decided by

disposal of the Writ Petition vide W.P.(C) No. 7135 of 2023, this

Court cannot sit over its own order as an Appellate Authority in the

entertainment of the further Writ Petition.

15. Coming to the Demand No. 7, this Court finds, there is an

attempt of Mr. Mishra, learned counsel for the Petitioner to bring

the Demand No. 7 under the provisions of Section 2(k) of the

Industrial Disputes Act, 1947. This Court here finds, Section 2(k)

reads as follows:-

<(k) <industrial dispute= means any dispute or difference between employees and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person;=

From the aforesaid, this Court finds, industrial dispute

including any dispute or difference between the employers and

employees, between employers and workmen or between workman

and workmen, which is connected with the employment and non-

employment.

16. The Demand no. 7 being considered, this Court here looking

to the third schedule finds, this is a provision emanated through

Section 7-A of the Industrial Dispute Act dealing with the

reference to Tribunal dependant on the subject in the third

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schedule. Since the third schedule does not include the nature of

Demand No. 7, this Court finds there is justification in not making

reference of Demand No. 7. However the Petitioner-Union is not

precluded to raise such issue by way of any other adjudication.

17. On scrutiny of the failure report, this Court finds, in the

conciliation process, there has been involvement of so many

Unions. The report has clear disclosure that the Unions dropped the

Demand No. 2 as find place at page-33 of the brief. So far Demand

No. 4, this Court on perusal of report finds, there is resolution

based on assurance of Management meeting such demand. Further

there is also no challenge to the order of reference by all other

Unions and the Writ Petition is filed at the instance of the Union-

the Petitioner presently.

18. It is in the above view of the matter, this Court finds, there is

no illegality in the reference order dated 08.02.2023. It appears, the

matter is already involved in several rounds of litigation. This

Court here likes to observe in the event Petitioner is not satisfied

with the order of reference particularly keeping in view with regard

to non-reference on demand of the Petitioner vide Demand Nos. 1

and 7, nothing prevents the Petitioner to proceed with industrial

adjudication and simultaneously moving appropriate proceeding.

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19. For the opinion of this Court, the reference being made on

28.07.2021 and reference is an outcome of several rounds of

litigations being indicated herein above, there appears, there is

sufficient delay in undertaking the industrial adjudication exercise.

This Court while dismissing the Writ Petition for its finding no

ground to substantiate the claims herein directs, in the event

Industrial Adjudicator is in receipt of the reference to proceed with

the matter immediately and as stated by Mr. Mishra, learned

counsel for the Petitioner the reference is already undertaken by

industrial adjudication. In such event industrial Adjudicator is

directed to show lawful conclusion of such adjudication but in the

involvement of the parties involved herein.

20. The Writ Petition stands dismissed. No Cost.

                                   (M.S.Sahoo)                                   (Biswanath Rath)
                                     Judge                                           Judge




                         Orissa High Court, Cuttack.
                         The 24th August, 2023//
                         Utkalika Nayak, Junior Stenographer
Signature Not Verified
Digitally Signed
Signed by: UTKALIKA NAYAK
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 30-Aug-2023 17:13:11