Orissa High Court
Southco Meter Readers' Sangha vs The Executive Engineer on 1 December, 2023
Author: Arindam Sinha
Bench: Arindam Sinha
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.22848 of 2016
Southco Meter Readers' Sangha, .... Petitioner
Ganjam
-versus-
The Executive Engineer, Electrical .... Opposite Parties
Division, Tata Power Southern
Odisha Distribution Limited, Aska,
Ganjam and others
Learned advocates appeared in this case:
For petitioner : Mr. A. Patnaik, Advocate
For Opp. Parties : Mr. Ramanath Acharya, Advocate
W.P.(C) No.6956 of 2017
The Executive Engineer, Electrical .... Petitioners
Division (Southco), Aska and others
-versus-
Southco Meter Reader Sangha and .... Opposite parties
another
Learned advocates appeared in this case:
For petitioners : Mr. Ramanath Acharya, Advocate
For Opp. Parties : Mr. A. Patnaik, Advocate
CORAM:
JUSTICE ARINDAM SINHA
JUSTICE SIBO SANKAR MISHRA
Page 1 of 11
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Date of hearing : 1st December, 2023
Date of judgment : 1st December, 2023
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ARINDAM SINHA, J.
1. The two writ petitions have come up for hearing. Southco
Meter Reader Sangha is petitioner representing 56 workmen in
W.P.(C) no.22848 of 2016. Executive Engineer, Electrical Division,
Southco (management) is petitioner in W.P.(C) no.6956 of 2017. Mr.
Patnaik, learned advocate appears on behalf of the workmen and Mr.
Acharya, learned advocate, for the management. Both have
challenged award dated 17th August, 2016.
2. It appears industrial dispute was raised by the workmen on
having some of them discontinued in the service from year 2005 and
the rest from 2007. There was order of reference dated 18th March,
2009. The schedule is reproduced below.
"(i) whether the termination of 56 meter Readers
as listed in schedule-1 of the CFR by the management of
Southern Electricity Supply Company of Orissa Ltd.,
Berhampur and Executive Engineer Aska Electrical
Division, Aska Executive Engineer G.N.E.D. Chhatrapur
and Executive Engineer GSED Digapahandi are legal
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and or justified? If not to what relief the workman is
entitled to?
(ii) Whether demand of SOUTHCO Meter reader
Sangha, At/Po-Khameswari Patna, Aska Ganjam for
regularization of services of six meter reader by the
management of Southern Electricity supply company of
Orissa Ltd., Berhampur and E.E. Aska Electrical
Division Aska E.E.G.N.E.D. Chhatrapur and Executive
Engineer GSED Digapahandi as per list in schedule II of
the report of the C.O. -cum- Dist. Labour Officer
Berhampur is legal and or justified."
In all there were 56 workmen. All of them alleged wrongful
retrenchment. Six of them also claimed regularization.
3. The reference was initially answered by the labour Court on
award dated 26th September, 2012. There was clear finding the
management had no control over the workmen as to coming for work
or going from work or number of days of attending work. Hence
conclusion was, there existed no employer and employee relationship
between the parties. The points in the reference were answered
against the workmen.
4. The Sangha impugned said award in their earlier writ petition
W.P.(C) no.2823 of 2023. The writ petition was disposed of by
// 4 //
judgment dated 9th October, 2015 made by the learned single Judge.
We reproduce below paragraphs 5 and 11 from the judgment.
"5. Learned P.O., Labour Court, without discussing any
evidence adduced by the parties, came to hold that there is no
employer or employee relationship between the Management and
the workmen, and on the basis of such finding the Reference was
dismissed.
xxx xxx xxx
11. Taking into consideration all the aforesaid facts and my
discussion in paragraph-9 supra, I feel inclined to remand the
matter for a de novo trial by the learned P.O., Labour Court,
Jeypore. The parties are free to file any additional pleadings, if
they so like, within a month of their appearance before the learned
P.O., Labour Court, Jeypore. They are also free to lead further
evidence, if they so feel like. The parties are directed to appear
before the P.O., Labour Court, Jeypore on 18.11.2015. The matter
should be disposed of by the learned P.O., Labour Court within six
months from the date of filing of additional pleadings, if any, by the
parties. I feel inclined to observe here that, before arriving at any
finding, learned P.O., Labour Court shall take into consideration
the evidence adduced and discuss the same in the judgment to
justify his finding."
(emphasis supplied)
Both parties accepted the judgment and went before the labour Court
for fresh adjudication on restoration.
// 5 //
5. The reference was once again answered by impugned award
dated 17th August, 2016. The workmen and the management both
stand offended thereby.
6. Mr. Patnaik submits, there can be no scrutiny in impugned
award regarding finding of wrongful retrenchment. Earlier award was
made as not based on evidence. This time around the labour Court
was conscious and duly came to the finding. Having done so, paltry
sum of ₹30,000/- per workers was awarded. His clients have worked
from year 1997 till their retrenchment lastly in year 2007. Long
period of continuous service had been wrongfully terminated. In the
circumstances, there be appropriate enhancement in the compensation
as the amount directed had no relation to the facts and circumstances
found.
7. Mr. Acharya draws attention to circular dated 13th July, 1999
issued by his client. Text of the circular is reproduced below.
"It is observed that the distribution loss of the
company for the month of June' 99 is as much as 41%.
You are well aware that we have to limit the distribution
loss to 35%. The billing with respect to input should be
65%. Please calculate accordingly and ascertain the
units to be billed for your division. The targeted billing
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units of your division may be apportioned subdivision-
wise and section wise and communicated to all SDOs and
JEs under your control.
A decision has been taken for meter reading and
bill distribution departmentally. You may engage the
departmental workers or outsider Agency and pay them
incentive at the following rates.
1) Distribution of bills in Urban areas ... 35 paise
2) Distribution of bills in rural areas ... 50 paise
3) Meter reading in Urban areas ... 50 paise
4) Meter reading in Rural areas ... 75 paise
The incentives may be promptly paid for ensuring
correct and timely meter reading and bill distribution.
The weekly progress may be intimated through
S.E./General Manager for information of the
undersigned. In case you observe there is much less
consumption compared to contract demand, you may
change the defective meters with a new one."
(emphasis supplied)
He submits, above was the engagement document. The members of
the Sangha were engaged on incentive basis for purpose of obtaining
meter reading as and when they would. They were not required to
report for duty and thereafter depart. He reiterates, there was no
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control by his client on said persons as to how they would discharge
their duty of meter reading and thereupon obtain the incentive.
8. Unfortunately, this case was not run before the labour Court
on restoration. It appears from impugned award there was finding on
fact that the workmen were working from year 1999 to 2005.
Evidence relied upon for such finding were documents such as meter
reading statements, pay bills, cheques, pay bill register, experience
certificate etc. filed by the second party (Sangha), showing that they
were working continuously under the management. The labour Court
said, on the other hand no evidence was produced by the management
to prove their contention that the workmen were working from seven
to ten days each on the month and rest of the period they did not
work. It emerges that the management did not dispute the period of
service between year 1999 to year 2005. They contended that service
rendered by the workmen did not come within the meaning of
continuous service as defined in section 25-B in Industrial Disputes
Act, 1947. This contention the management was unable to
demonstrate before the labour Court. Hence, finding of retrenchment.
9. Considering the earlier award though contained finding of no
employer employee relationship but was set aside and the reference
// 8 //
restored, it is clear the restoration was because the learned Judge was
satisfied, the labour Court in making earlier award had not based its
finding on evidence. There was liberty given to the parties to adduce
additional evidence on restoration. We have already said about the
evidence referred to and the finding on restoration in respect of the
contentions raised before the labour Court.
10. Mr. Acharya relies on judgment of the Supreme Court in
Punjab State Electricity Board v. Sudesh Kumar Puri reported in
2007-II-LLJ page-1, paragraphs 7, 9 and 10. The paragraphs are
reproduced below.
"7. At the outset, it has to be noted that the
decision in Steel Authority's case (supra) has absolutely
no relevance so far as the present dispute is concerned.
That relates to a case of contract labour. Present dispute
is not a case of that nature. On the contrary, it appears
from the materials placed on record that there was an
agreement governing engagement. The payment was
made per meter reading at a fixed rate and there was no
regular employment ever offered to any of the
respondents. The provisions of Section 2(oo)(bb) of the
Act clearly applies to the facts of the present case.
xxx xxx xxx
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9. The material on record clearly established that the
engagement of the respondent was for specific period
and conditional. It appears that on the appointment of
regular meter readers, the engagement has been
dispensed with. The contracts clearly governed the terms
of engagement.
10. Above being the position, the orders passed by the
Labour Court and the High Court are clearly untenable
and are quashed. In two cases the concerned respondents
have been engaged again on contractual basis. It shall
not be construed that we have expressed any opinion on
such subsequent contractual engagement."
(emphasis supplied)
In context of Punjab State Electricity Board (supra) examination of
said circular dated 13th July, 1999, relied upon by the management as
the terms of engagement, needs to be examined. It appears from the
circular that decision had been taken for meter reading and bill
distribution to be done departmentally. All executive engineers were
told they may engage the departmental workers or outsider agency, to
do so. We made query to Mr. Acharya regarding outsider agency
engaged by the department. Nothing could be shown that there was
such engagement. That left meter reading and bill distribution to be
done by the departmental workers. Nothing also could be shown such
// 10 //
was done. There was engagement of the workmen to obtain the meter
readings and distribute the bills. Hence, there was no contract of
engagement. As such, the workmen were engaged for a purpose and
paid remuneration calculated presumably on the basis given in the
circular. So far as the workers are concerned they had engagement,
they got paid for it and they worked continuously as found by the
labour Court on restoration.
11. We have not been shown anything in impugned award that
can be said to be perverse, including to address the claim for
enhancement of compensation. The documentary evidence on
payment to the workmen were considered by the labour Court. The
compensation awarded in the facts and circumstances do not require
interference. We note that the restoration was by aforesaid judgment
dated 9th October, 2015 and the labour Court did not inordinately
delay the adjudication on restoration, to answer the reference on 17th
August, 2016. The Sangha presented its writ petition on 23rd
December, 2016 and thereafter the management, their writ petition on
18th April, 2017. The writ petitions remained pending all this while.
As such it cannot be said that the management deliberately did not
comply with the direction in the award.
// 11 //
12. In view of aforesaid, we dispose of the writ petitions leaving
the workmen to find enforcement of impugned award.
( Arindam Sinha )
Judge
( S. S. Mishra )
Judge
Sks
Designation: PERSONAL ASSISTANT
