Orissa High Court
Oseb Bijuli Karmachari Sangha vs State Of Odisha & Others on 24 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 6842 of 2015
An application under Articles 226 and 227 of the
Constitution of India.
OSEB Bijuli Karmachari Sangha .... Petitioners
and others
Mr. Sidheswar Mohanty, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. T.K. Pattnaik, ASC
Mr. B.P. Tripathy, for OPTCL
CONTC No.670 of 2015
OSEB Bijuli Karmachari Sangha .... Petitioners
and others
Mr. Sidheswar Mohanty, Adv.
-versus-
Sri Santanu Kumar Rath, .... Opp.
Director (HRD), OPTCL Party/Contemnor
Mr. D.P. Nanda, Adv
// 2 //
W.P.(C) No.12554 of 2017
Kishore Chandra Mohanty .... Petitioner
Mr. Sidheswar Mohanty, Adv.
-versus-
State of Odisha & others .... Opp. Parties
Mr. T.K. Pattnaik, ASC
Mr. B.P. Tripathy, for OPTCL
W.P.(C) No.14510 of 2017
Kishore Chandra Mohanty .... Petitioner
Mr. Sidheswar Mohanty, Adv.
-versus-
State of Odisha & others .... Opp. Parties
Mr. T.K. Pattnaik, ASC
Mr. B.P. Tripathy, for OPTCL
// 3 //
W.P.(C) No.15031 of 2018
Kishore Chandra Mohanty .... Petitioner
Mr. Sidheswar Mohanty, Adv.
-versus-
State of Odisha & others .... Opp. Parties
Mr. T.K. Pattnaik, ASC
Mr. B.P. Tripathy, for OPTCL
W.P.(C) No.12689 of 2020
Kishore Chandra Mohanty .... Petitioner
Mr. Sidheswar Mohanty, Adv.
-versus-
State of Odisha & others .... Opp. Parties
Mr. T.K. Pattnaik, ASC
Mr. B.P. Tripathy, for OPTCL
// 4 //
W.P.(C) No.28262 of 2022
Kishore Chandra Mohanty .... Petitioner
Mr. Sidheswar Mohanty, Adv.
-versus-
State of Odisha & others .... Opp. Parties
Mr. T.K. Pattnaik, ASC
Mr. B.P. Tripathy, for OPTCL
CORAM:
JUSTICE A.K. MOHAPATRA
_____________________________________________________
Date of hearing : 16.12.2022 | Date of Judgment: 24.02.2023
______________________________________________________
A.K. Mohapatra, J. :
1.
Above noted writ application has been filed OSEB
Bijuli Karmachari Sangha represented by its General
Secretary, namely Kishore Chandra Mohanty by invoking
the jurisdiction of this court under Article 226 and 227 of
the Constitution of India. Further, the said writ application
has been filed with a prayer to quash the Office order
No.7698 dated 31.03.2015 under Annexure-2 in the
interest of workman those who are working in the opposite
party-Corporation. So far the impugned order dated
31.03.2015 under Annexure-2 is concerned, it is clarified
// 5 //
at the outset that the same was issued by the Director
(HRD) of Orissa Power Transmission Corporation Ltd.
(OPTCL in short and hereinafter referred to as OPTCL).
The OPTCL is a State owned corporation which has the
mandate to build, operate and maintain statewide
transmission and network of electricity all over the State. It
has also the responsibility of constructing the new projects,
timely commissioning of new grid substations, continuous
upgradation and regular repair/ maintenance of electricity
sub-stations, transformers and transmission lines
throughout the State. Therefore, it is needless to mention
here that the corporation is engaged in the business of
providing essential service of distribution of electricity to
the consumers in the State of Odisha.
2. By virtue of the impugned order under Annexure-2
the Director HRD of the corporation communicated a
policy decision of the competent authority i.e. the Board of
Directors of the Corporation whereunder a new system was
introduced. Under new system the leave and salary
management of the employees shall be regulated
depending upon the attendance of the employees through
the E-Shakti modules with effect from 01.04.2015 and
accordingly all the employees of OPTCL/ GRIDCO in
respect of the offices which have been specifically
mentioned in the said order were asked to record the
attendance in biometric machines installed in the office
// 6 //
premises, both at the time of entry into office as well as at
the time of leaving. Furthermore, it was also decided that
the period of presence in the office shall be counted from
the time of recording attendance at entry till the recording
at the time of final leaving on a particular day and the
attendance data obtained from the machines shall be
integrated with E-Shakti system for online access of the
same to all concerns. Additionally, the aforesaid impugned
order under Annexure-2 also lays down certain guidelines
with regard to implementation of the biometrics attendance
system as well as for recording of attendance, leave and for
the purpose of calculation of salary of the employees.
3. The factual background leading to filing of the
present writ application by the petitioner union, on a
narrow compass, is that the members of the petitioner's
union came to know that on 02.06.2012 an MOU has been
executed between the management and three unions with
regard to wage revision, recruitment, promotion, transfer
and biometric attendance system etc. without making any
discussion with the petitioner union. It is also alleged that
such discussion are against the interest of the workman.
Further, any action changing the service condition of
workman unilaterally without issuing a mandatory notice
as per Section 9A of the Industrial Disputes Act and that to
without affording any opportunity to the petitioner's union,
// 7 //
went ahead with singing of MOU with the representatives
of some union is highly illegal, arbitrary and high handed.
4. Challenging the aforesaid illegal conduct, the
petitioner's union approached this Court by filing W.P.(C)
No.5665 of 2013. This Court disposed of the writ petition
vide order 12.02.2014 by taking into consideration the
submission made on behalf of the petitioners to the effect
that since the petitioners representative was not a party to
the MOU dated 02.06.2012 under Annexure-5 to the
aforesaid writ petition, the decision agreed upon under the
said MOU is not binding on the petitioner and its
members. Finally, the writ petition was disposed of with an
observation that if the petitioner's union is not a party to
the MOU under Annexure-5, then they are not bound by
the MOU and the same is a bilateral settlement, therefore,
the petitioner was given liberty to raise their own demand
with the management. Moreover, it was also observed that
in the event any dispute with regard to the MOU arises, it
is open to the petitioner to seek redressal of such dispute in
an appropriate forum. During pendency of the above noted
writ application, the opposite parties made an attempt to
forcibly implement biometric attendance system which
was resisted by the petitioner by filing a writ petition
before this Court and in Misc Case No.7000 of 2013, this
Court vide order dated 09.04.2013 directed as an interim
measure, it is directed that any action taken pursuant to
// 8 //
Annexure-12 shall be subject to the result of the writ
petition. The said order dated 09.04.2013 was passed by a
Division Bench of this Court. Finally, said writ petition
was disposed of vide order dated 12.02.2014 as has been
discussed hereinabove.
5. After disposal of W.P.(C) No.5665 of 2013, the
petitioner's union raised some demand with the
management and requested them for an opportunity of
personal hearing to consider their grievance. However, no
action was taken by the opposite party authorities which
compelled the petitioner's union to file another writ
petition hearing no.25199 of 2014. This Court vide order
dated 05.01.2015 disposed of the writ petition with a
direction that the management will dispose of the demand
of the petitioners' union. However, although the
management had called upon the General Secretary of the
Union to submit his views, no final decision has been
taken as of now.
6. Thereafter, the opposite party No.4 vindictively
passed office order No.7698 dated 31.03.2015 to
implement the biometric attendance system with effect
from 01.04.2015. Although, the management raised the
issue of implementation of biometric attendance system
with the management by taking a ground that the same is
being sought to be implemented without a discussion with
// 9 //
the petitioner's union which is in violation of Industrial
Disputes Act.
7. A detailed counter affidavit has been filed by the
Deputy General Manger (HRD) representing opposite
party Nos. 3 & 4. In the said counter affidavit it has been
admitted that the petitioner's union is a registered body
under the Indian Trade Union Act, 1926. Initially, the
union was affiliated to OSEB Federation, however,
consequently, after the reform of the electricity industry,
the said federation is now functioning under the GRIDCO/
OPTCL and other power sector entities. In the counter
affidavit, it has been specifically mentioned that the
petitioner union was being represented by one Shri Kishore
Chandra Mohanty, as General Secretary of the Union and
by one Bhramarbar Rout also as General Secretary of
Union bearing the same Regd. Number. Since the very
same Union was being represented by two sets of office
bearers, the OPTCL sought for a clarification from the
Labour Commissioner-cum-Registrar of Trade Union.
However, no replies from the Labour Commissioner have
been received by the Corporation as of now.
8. It has also been stated in the counter affidavit that
since two groups of office bearers were claiming to be the
representative of the petitioner union, the opposite party
authorities thought it appropriate to wait till such a dispute
// 10 //
is decided by the appropriate court of law and till it is
decided as to who are the real office bearers of petitioner
union. With the aforesaid stand the opposite parties have
raised questions with regard to the maintainability of the
present writ application. Counter affidavit also reveals that
the biometric attendance system was implemented
pursuant to bipartite settlement dated 02.06.2012. Such
settlement having not been challenged before any
appropriate court/ authority, the same has attained finality.
Moreover, such bipartite settlement having been ratified by
the labour authorities the same has become a
comprehensive tripartite settlement. Further, since the
members of the petitioner union have already availed
benefit under such settlement they are estopped to
challenge only one portion of it. In other words the
members of the union having availed the financial benefits
under the Settlement cannot call in question the other
terms of the settlement which has remained unchallenged.
9. So far, office timing is concerned, it has been stated
in the counter affidavit that the competent authority of
OSEB vide order dated 10.09.1974 had directed that the
office hour shall be from 10 A.M. to 5 P.M. with a break
from 1.30 P.M. to 2 P.M. Earlier the employees used to
come to duty by recording their attendance by signing in
attendance register or by giving thumb impression therein.
With the invention of biometric attendance machines
// 11 //
which are convenient, reliable and flawless have been
introduced in many offices. The Employees working in
such offices have been getting used to it gradually,
although in the initial days of introduction some
difficulties were encountered. As a result of introduction of
such machines, a lot of valuable office time is being saved.
Further, the integration of biometric system with the salary
and leave management system of ERP has also been
implemented in OPTCL. Such introduction has also
reduced a lot of manual work that was being done earlier.
10. In the counter affidavit, the primary objective of the
E-integration of biometric attendance system with the pay
role and the advantages of the system has been highlighted.
For the sake of brevity the same is not repeated here.
Further, such system has been introduced, implemented
and has been working effectively in many other PSUs and
Government Offices. Use of biometric system helps the
management to maintain discipline and the same is to the
advantage of the employees. As such the new system has
reduced the burden of work of signing the attendance
register everyday. Moreover, employees are more punctual
under the new system and the data generated under such
system could be integrated with the salary and leave
management system and thereby reducing a lot of manual
work.
// 12 //
11. In counter affidavit, it has also been stated that
pursuant to the settlement all the employees including the
petitioner have availed all the financial and other benefits
without any formal protest. Therefore, it is no more open
to the petitioner who has challenged the introduction of the
new biometric attendance system which has become an
order of the day. Moreover, introduction of such system
does not change any condition of service more particularly
the working hours of the employees which remains the
same i.e. 10AM to 5PM. Finally, it has been specifically
mentioned in the counter affidavit that pursuant to order
passed by this Court in W.P.(C) No.5665 of 2013, the
opposite parties have considered the representation of the
petitioner union and the same has been disposed of vide
order dated 07.02.2015. A copy of which has also been
annexed to the counter affidavit as Annexure-C/5. Further,
in reply to para-9 of the writ application, in para-25 of the
counter it has been specifically stated that the
representation dated 02.04.2015 is in the process of
disposal. The pleadings in the counter affidavit reveals a
statement that the petitioners have admitted that they are
governed under the ID Act and trade union Act and
therefore, the petitioners should have approached the
appropriate authority for redressal of their grievance
instead of approaching this Court by invoking the writ
jurisdiction.
// 13 //
CONTC No.670 of 2015
1. The above noted contempt application arises out of
non-compliance of order No.3 dated 11.05.2015 passed in
Misc Case No.6747 of 2015 arising out of W.P.(C)
No.6842 of 2015. Vide order dated 11.05.2015, this Court
passed an interim order to the effect that introduction of
biometric attendance system for the staff of OPTCL shall
be subject to the result of the writ petition, provided the
system has been introduced and implemented. If the system
has not yet been introduced and implemented, status quo as
on date shall be maintained by the parties until further
orders.
2. It is alleged by learned counsel for the petitioner that
at the time of admission of W.P.(C) No.6842 of 2015, the
staff of OPTCL, who are members of the petitioner union,
were protected by an interim order dated 11.05.2015 to the
extent indicated hereinabove. It was also asserted that
although the biometric attendance system was to be
implemented w.e.f. 01.04.2015, but actually the same had
not been implemented till 11.05.2015. The employees
including the members of the petitioner union were
receiving their salary for the month of April, 2015 by
giving attendance manually. Further, they have also given
their attendance for the month of May, 2015 manually. In
support of such contention the learned counsel for the
// 14 //
petitioner has filed copies of the attendance statement along
with the contempt application.
3. In such view of the matter, learned counsel for the
petitioner has alleged that the opposite party-authorities
have violated the interim order dated 11.05.2015 and
compelling the petitioners to record their attendance
through biometric attendance system and most likely they
are also going to take coercive action against the members
of the petitioner union.
4. Learned counsel appearing for the opposite parties
submitted that although they have introduced the biometric
attendance system w.e.f. 01.04.2015, however they are not
insisting upon use of such machine by the members of the
petitioner union in obedience to the interim order passed by
this Court on 11.05.2015. As such it was submitted that
although the system has been introduced however, the same
has been made optional and it was further contended before
this Court that no coercive action whatsoever has been
taken which should be construed as violation of interim
order dated 11.05.2015.
W.P.(C) No.12554 of 2017
1. The present writ application has been filed by the
petitioner with a prayer for issuance of mandamus/
certiorari to quash the letter No.11394 dated 08.05.2017
// 15 //
under Annexure-5. On perusal of the impugned order dated
08.05.2017 under annexure-5, it appears that the petitioner
being aggrieved by the decision of the DGM(HRD),
OPTCL to the effect that the opposite parties/ corporation
which had earlier stopped the salary of the petitioner for the
month of March, 2017 had advised the petitioner to
appreciate the salary administration procedure adopted by
OPTCL and further advised the petitioner to give
attendance in the BAS in order to avoid such situation in
future. On further scrutiny of the said letter, it is revealed
that since the petitioner has not registering his attendance
through the BAS, therefore, the authorities have treated the
petitioner in a manner as if he was unauthorizedly absent
since 01.03.2017 post his reinstatement after suspension.
Such fact was ascertained from biometric attendance report
of non-executives of Headquarter office for the period from
21.02.2017 to 20.03.2017. In the said letter it has also been
stated that the BAS was integrated with ERP for salary
administration and leave management w.e.f.01.04.2015 and
that as no other system of attendance is in place, BAS is the
only system for registering petitioner's attendance and the
same is required for release of salary by DDO. Therefore,
the petitioner was informed that since his attendance for the
month of March, 2017 is not finalised by in the BAS, as
such his salary has not been released by the DDO.
// 16 //
2. The factual background of the present writ
application is almost identical to the facts of the other writ
petitions which have been elaborately discussed
hereinabove. Therefore, for the sake of brevity, such facts
are not repeated here. In the body of the writ application the
petitioner has quoted order dated 12.02.2014 passed in
W.P.(C) No.5665 of 2013 and order dated 11.05.2015 in
W.P.(C) No.6842 of 2015. Further, it has been
categorically asserted by the petitioner that under protest he
has not been registering his attendance on BAS, however,
he is regularly giving his attendance manually on the
attendance register. It has also been stated in the writ
application that the petitioner is protected by the interim
order passed by this Court on 11.05.2015 in Misc Case
No.6747 of 2015 arising out of W.P.(C) No.6842 of 2015.
Wherein this Court had passed an interim order to the
effect that if the system (BAS) has not yet been introduced
and implemented, status quo as on date shall be maintained
by the parties until further orders.
3. It is submitted by learned counsel for the petitioner
that authorities to put pressure on the petitioner and the
employees of the trade unions, the petitioner is
representing, placed the petitioner under suspension vide
order dated 22.02.2015. Thereafter, he was reinstated in
service vide order dated01.03.2017. After reinstatement in
service the opposite party Nos.3 to 6 again put pressure on
// 17 //
the petitioner to give his attendance through BAS instead of
manual attendance register. It is further alleged that the
opposite parties threatened the petitioner not to release his
salary if he does not register his attendance on BAS. In
support of his contention learned counsel for the petitioner
had drawn the attention of this Court to letter dated
21.03.2017, wherein the Opposite party No.6 has intimated
the petitioner to give attendance on Bas failing which the
petitioner shall not be paid his monthly salary. Again the
opposite party No.5 vide order dated 08.05.2017 intimated
the petitioner to give attendance through BAS system and
thereafter, since the petitioner did not yield to such request,
the petitioner has not been paid/ released his monthly salary
from 2017 onwards.
4. Learned counsel for the petitioner at this juncture
argued that the petitioner is working as a peon and as such
is getting a very meager salary. Moreover, such monthly
salary has been stopped from March, 2017 onwards. In
such background it is also argued that the petitioner is
finding is difficult to maintain his family. Leaerned counsel
for the petitioner further argued that the opposite parties are
insisting upon implementation of the BAS which is
contrary to the orders passed by this Court. He further
submitted that although the petitioner is attending office
performing his work however he has not been paid his
monthly salary and such conduct of the opposite parties are
// 18 //
indirect violation of Article 14, 16 and 21 of the
Constitution of India. Furthermore, he also argued that the
petitioner being a General Secretary of the Employee's
Union is being harassed and targeted by the management,
as the petitioner being authorised representative of the
Union has been raising lawful demands in the interest of
workman with the management. Accordingly, the petitioner
has approached this Court challenging the decision dated
08.05.2017 under Annexure-5.
5. The present writ application was taken up for
admission hearing on 12.07.2017. This Court after hearing
learned counsels for the parties issue notice to the opposite
parties pursuant to aforesaid notice issued by this Court the
opposite party Nos.1 to 6 represented by their Deputy
General Manager (HRD) filed a joint counter affidavit. On
perusal of the counter affidavit filed by the opposite parties
this Court is of the view that the averments made in the
said counter affidavit are almost identical to the averments
made in the counter affidavits filed earlier in the connected
matters which have been elaborately discussed
hereinabove. The opposite parties have once again
reiterated that the BAS system has been introduced and
implemented w.e.f.01.04.2015 and that all the employee's
OPTCL Headquarters, Office are registering their
attendance through BAS therefore, the petitioner is also
bound to give his attendance through BAS and accordingly,
// 19 //
the opposite parties have justified the order under
Annexure-5.
6. Furthermore, the opposite parties have categorically
stated that the none adherence to Bas by any employee
amount to unauthorised absent from duty. The petitioner on
the contrary has taken a stand that he has been attending
office regularly and performing his duties however he is
giving his attendance by signing the attendance register
manually. Therefore, it was argued by learned counsel for
the petitioner that since there is an interim order by this
Court to maintain status quo with regard to attendance in
the office of the oppoiste parties, the oppoiste parties
should not have compelled the petitioner to register his
attendance through BAS. Moreover, when physical records
are available showing that the petitioner has signed the
attendance register manually, the authorities have acted
illegally, arbitrarily and in a high handed manner by
denying the petitioner his monthly salary and other dues as
is admissible to the petitioner. He further argued that the
conduct of the opposite parties is in violation of the orders
passed by this Court earlier. In such view of the matter,
learned counsel for the petitioner submitted that the
impugned order is unsustainable in law and the same is
liable to be set aside.
// 20 //
W.P.(C) No.14510 of 2017
1. The present writ application has been filed by the
petitioner with a prayer to quash letter No.146 dated
15.10.2015 under Annexure-7 and letter No.21 under
Annexure-9 regarding appointment of Enquiry Officer and
to hold enquiry against the petitioner relating to Charge-
sheet No.92 dated 06.07.2015 and 122 dated 13.08.2015
and further for a direction to supply relevant documents
relating to charge-sheet No.92 and 122 before proceeding
further in the said enquiry and to provide a chance to file
show-cause reply/ written statement of defence and also to
direct the opposite parties to permit the petitioner to engage
advocate to represent him in the inquiry.
2. The factual background leading to filing the present
writ application in gist, is that the petitioner who is working
as a Peon in the office of OPTCL had been duly elected as
General Secretary of OSEB, Bijuli Karmachari Sangha
(petitioner in W.P.(C) No.6842 of 2015 w.e.f. 2008 and the
said sangha is a registered trade union. After the petitioner
was elected as the General Secretary of Union, in his
capacity as General Secretary, he has been raising various
demands with the management in the common interest of
the workman and the members of the trade union.
Therefore, he has become an eye-sore for the management
and the management has been searching for opportunities
// 21 //
to wreck vengeance against the petitioner. It has also been
stated that since the petitioner belong to the lowest rank in
the organization, he is being targeted and victimized by the
opposite party authorities.
3. The management of OPTCL took a decision to
introduce biometric attendance system and accordingly
signed MOU with certain trade unions ignoring the OSEB
Bijuli Karmachari Sangha. Accordingly, the petitioner
being the General Secretary of the OSEB Bijuli
Karmachari Sangha approached this Court by filing
W.P.(C) No.5665 of 2013 and the order passed therein has
been quoted in the preceding paragraph of this order. While
disposing of the earlier writ petition this Court observed
that since the union, of which the petitioner is the General
Secretary, is not a party to the MOU and as such the MOU
being bilateral settlement, the union that is being
represented by the petitioner is not bound by such
settlement and further this Court granted liberty to the
petitioner's union to seek redressal in appropriate forum.
4. After the aforesaid order passed by this Court, the
management started targeting the petitioner. With a
vindictive and revengeful attitude the management of
OPTCL started harassing the petitioner. Since the petitioner
was opposing the introduction of biometric attendance
system along with other workers and members of his union
// 22 //
under the protection of interim order passed in W.P.(C)
No.6842 of 2015, the management deliberately issued show
cause notice to the petitioner on 30.05.2015 treating him
unauthorizedly absent as he was not recording his
attendance through biometric attendance system although
the petitioner was signing his attendance register manually
provided by the management. As a result of which the
petitioner was compelled to approach this Court by filing
W.P.(C) No.10520 of 2015 challenging the aforesaid show
cause notice. This Court while admitting the writ petition
vide order dated 10.06.2015, was pleased to direct in Misc
Case No.10286 of 2015 as follows:-
"Order No.3 dated 10.06.2015-as an interim
measure, the opposite party No.5 is directed not to
take any coercive action against the petitioner
pursuant to the notice dated 03.05.2015 vide
Annexure-2 series, till the next date."
5. After the aforesaid interim order dated 10.06.2015,
the management became more vindictive, and placed the
petitioner under suspension vide letter dated 20.02.2017.
Accordingly, the petitioner again approach this Court by
filing W.P.(C) No.13724 of 2015 challenging the said order
of suspension.
6. Thereafter, the petitioner was reinstated in service
vide order dated 01.03.2017 pending finalization of
// 23 //
departmental proceeding No.92 dated 06.07.2015 and 122
dated 13.08.2015. Pursuant to the said order the petitioner
joined on duty on 01.03.2017. During the aforesaid
suspension period, the Director HRD issued charge sheet
No.92 and 122 behind the back of the petitioner.
Furthermore, the petitioner was asked to show cause with
regard to the aforesaid two charge sheets failing which
disciplinary proceeding was proposed to be taken against
him. However, the petitioner received both the charge sheet
in a single envelop on 10.10.2015. After receiving copies
of the charge sheet the petitioner immediately submitted his
reply on 13.10.2015 requesting the authorities to supply
relevant documents to prepare his show cause reply. The
petitioner has also submitted in his reply that he is being
victimized for approaching this Court against introduction
of biometric attendance system, however, he further stated
that unless relevant documents in support of the alleged
misconduct are supplied to the petitioner, the petitioner
may not give an effective show cause reply to the
authorities for consideration of his stand in its proper
perspective.
7. Although the petitioner requested for supply of
relevant documents relied upon by the management in
support of the charges brought against the petitioner,
however, they did not supply the copies of such documents
despite petitioner's request. On the contrary, the opposite
// 24 //
parties vide letter no.156 dated 17.11.2015 replied that no
document is available in respect of the allegations made
against the petitioner and further they have clarified that the
witness to such charges will be available at the time of
inquiry. Finally, the DGM (HRD) vide letter dated
15.10.2015 appointed the Enquiry Officer and Presenting
Officer to proceed with the inquiry in respect of Charge
Sheet Nos.92 and 122 with a copy to the petitioner. After
going through a copy of the said letter, the petitioner
immediately raised his objections on 03.11.2015. In his
objections the petitioner stated that no documents were
supplied to the petitioner and therefore, the petitioner has
not filed his written statement of defence accordingly the
conduct of the disciplinary authority to proceed further in
the matter in the aforesaid background would be highly
illegal and arbitrary. Moreover, the petitioner also raise
objection to the appointment of Inquiry Officer who is a
retired Government employee and has been engaged in the
corporation on contractual basis on the recommendation of
the Director, HRD. Similarly, the Inquiry Officer is not an
officer of the OPTCL which is contrary to the Staff Service
Rules.
8. After the petitioner raised his objection the
management did not proceed with the DP for a long time.
Most surprisingly, the General Manager (HRD Vigilance)
vide letter dated 20.02.2017 issued another letter by
// 25 //
modifying the appointment of Presenting Officer of the
proceeding, however, the Inquiry Officer remained the
same and he was not changed. Moreover, the said letter
also reveals that the AGM (HRD) was requested to collect
the relevant documents pertaining to charges and place the
same before the Inquiring Officer. Copies of such
documents were also not supplied to the petitioner by
taking a stand that no documents are available. It is alleged
in the writ petition at the instance of the petitioner that the
management has adopted double standard, so far the
present petitioner is concerned.
9. In the writ petition, it has also been stated that it is
an undisputed fact that the Inquiry Officer namely Nihar
Ranjan Mohanty (opposite party No.6) is a retired
Government Employee and after his retirement from
service he has been reengaged in the corporation on
contractual basis and such contractual period is being
extended from time to time. Further, it is also stated that
although his contract of service has ended in March, 2017,
the same was extended by DGM (HRD) vide order dated
31.03.2017 up to 30.09.2017. As such, it was submitted
that he is not competent to hold the inquiry. When the
petitioner approach the Inquiring Officer with a request to
engage an Advocate to conduct the case and appear on his
behalf in the Inquiry, the Inquiring Officer vide letter dated
07.04.2017 has refused such request made by the petitioner.
// 26 //
10. On perusal of letter dated 92 dated 06.07.2015 it
appears that the charge has been framed against the
petitioner, it appears that the charges have been framed on
the allegation that the petitioner reinstated the co-workers
to disobey the order of the authority to give their
attendance through biometric system, unruly behavior
showing disrespect to the Director, HRD and by forcibly
entering into the Office of the Director, HRD shouted "we
will not obey the order of management in any manner and
the management is bound to settle the salary which has
been withheld and demanded for fixation of pay."
11. Similarly, on perusal of letter No. 122 dated
13.08.2015, it appears the charges have been framed on the
allegation which are almost identical to the one made under
letter No.92 dated 06.07.2015 with the addition that on
15.07.2015 while the Director HRD was proceeding to the
Secretariate, the petitioner along with the co workers stood
in front of his vehicle and obstructed him to proceed.
12. In reply to the aforesaid two charge sheets it was
submitted before this Court that such allegations are false,
baseless and vague and that there is no documentary
evidence to support such allegation. Moreover, it was
contended that the petitioner being the Secretary of the
OSEB Bijuli Karmachari Sangha was peacefully agitating
against the decision of the management to implement
// 27 //
biometric attendance system as well as non-payment of
salary and other allowances and non-fixation of pay. Thus
it was said that all the charges have been exaggerated,
concocted and only designed to initiate a Disciplinary
Proceeding against the petitioner and place him under
suspension. It is further contended that no such allegations
have substantiated and that the elected Secretary of Union
is being victimized at the instance of the management. As
such the initiation of proceeding and further continuance of
the Inquiry is all vitiated and as such liable to be quashed.
Further, in para-16 of the writ petition a specific ground has
been taken on which the initiation of proceeding and
further continuance thereof has been assailed by the
petitioner.
13. The opposite party Nos.2 to 6 have filed a counter
affidavit through the Senior General Manager (HRD). In
the counter affidavit it has been stated that the opposite
parties have taken action pursuant to the certified standing
orders and that the matter has become infructuous as the
Inquiry Officer has completed the Inquiry by giving
reasonable opportunity to the petitioner. In his inquiry
report, the Inquiry Officer has found the petitioner guilty of
the charges. Further, it has been stated that it is open for the
petitioner, if he so likes, to prefer an appeal against the
final order under the certified standing orders against the
punishment imposed on the petitioner. Further, the opposite
// 28 //
parties have also raised the question with regard to
maintainability of the writ application as the matter is
covered under the provisions Industrial Disputes Act, 1947.
14. In the counter affidavit, the opposite parties have
also questioned the status of the petitioner as General
Secretary of the Union as another person namely Shri
Bhramarbar Rout has also submitted a representation
naming himself to be the General Secretary of the said
Union. Therefore, since there are two sets of Officer
bearers in respect of the self-same Union, the OPTCL
management has referred the dispute to the DLO, Khurdha
and thereafter to the Labour Commissioner Odisha for
clarification and the reply to which is still awaited.
15. On perusal of the counter affidavit, this Court is of
the view that there exists a disputes with regard to wage
revision and other allied issues in respect of Non-Executive
Employees of OPTCL. Although, the opposite parties have
claimed that those disputes have been settled through
tripartite settlement, however, it is also a matter of record
that the petitioner union is not a party to such settlement
accordingly, in the earlier writ application this Court had
directed the petitioner to approach the competent authority
for settlement of their dispute. The opposite parties have
also admitted in their counter that although there are 38
unions functioning in different parts of the State, however,
// 29 //
in course of discussion only 5 unions were invited for such
discussion/ settlement/ negotiation excluding the Union
represented by the petitioner. However, the opposite parties
have denied that they have fixed the terms and conditions
unilaterally without discussing the same with the
employee's union.
15. In their counter affidavit, the opposite parties have
also stated that it was agreed in W.P.(C) No.5665 of 2013
to implement the biometric attendance system in the office
and in such view of the matter the aforesaid writ
application was disposed of on 12.02.2014. However, on
perusal of order dated 12.02.2014 passed in W.P.(C)
No.5665 of 2013, this Court observed that the matter was
disposed of with an observation that since the petitioner's
representative was not a party to the said MOU, therefore,
the same is not binding on the petitioner and its members
and further liberty was granted to the petitioner to raise
their demand with the management by raising the issue
before the appropriate forum.
16. Additionally, the opposite parties have also taken a
stand in the counter affidavit that since the MOU in
question was a bipartite document when the earlier writ
petition was pending before this Court. Thereafter, with the
concurrence of the Government the same has become a
tripartite settlement, therefore, the same is binding on all
// 30 //
the employees including the petitioner's union. It is also
clarified that the management examined the demands of the
petitioner and the status of such demands have already been
communicated to the petitioner vide letter dated
26.06.2014. Moreover, the opposite parties have also
quoted the interim order dated 11.05.2015 passed in Misc
Case No.6747 of 2015 arising out of W.P.(C) No.6842 of
2015. Therefore, it can be safely presumed that the opposite
parties were aware of the orders, be it final or be it interim,
after the same was passed by this Court. Referring, to the
order dated 11.05.2015 it has also been stated that the
introduction of the new system, if the same has been
introduced, shall be subject to the result of the writ
application, however, if the same is not being installed or
implemented, then status quo as on the date of the order
shall be maintained. Therefore, it cannot be disputed that
there was an interim order of status quo protecting the
petitioner against any coercive action by the employer. The
opposite parties, to justify their action, have also stated that
the opposite party corporation had introduced biometric
system w.e.f. 01.07.2013 which was integrated with the
leave management system w.e.f.01.04.2015 and as such it
was contended that prior to 11.05.2015 the biometric
system was in operation. Further, the show cause notice
dated 30.05.2015 was issued after interim order dated
11.05.2015 was passed by this Court directing the parties to
// 31 //
maintain status quo. Further, it was clarified that the
suspension order dated 22.07.2015 is not related to
biometric attendance system. Rather the same was pursuant
to charge sheet vide memo No.92 dated 06.07.2015.
17. At this juncture, it would be relevant to note that the
observation of this Court after going through the counter
affidavit. On perusal of the counter affidavit this court
observed that the authorities have annexed documents as
Annexure-A/2 to Annexure X/2 i.e. almost about 24
documents. However, the allegation of the petitioner which
is supported by the letter of the opposite parties that there is
no document to be supplied to the petitioner in connection
with the charges brought against him appears to be not
based on the facts. On such grounds itself this Court has
every reason to come to a conclusion that the opposite
parties have not supplied the relevant documents which
was filed before this court along with the counter affidavit
and as such the same is valid ground to come to a
conclusion that all the relevant papers were not supplied to
the petitioner deliberately by the opposite parties. As a
result of which the disciplinary proceeding initiated against
the petitioner are vitiated.
// 32 //
W.P.(C) No.15031 of 2018
1. The above noted writ application has been filed by
the petitioner with a prayer to quash notice No.15103 dated
24.07.2018 under Annexure-6
2. On perusal of letter dated 24.07.2018 under
Annexure-6 it is reveal that the same is a letter written by
DGM (HRD) to the petitioner in the context of
unauthorized absence from duty since March, 2017. On,
further scrutiny of the said letter it is also revealed that the
petitioner was reinstated in service vide order dated
01.03.2017. When, it was observed by the opposite party
authorities that the petitioner remained unauthorisedly
absent from duty since 01.03.2017 onwards without prior
permission/ Sanction of such leave. In the said letter it has
also been stated that the petitioner has remained
unauthorisedly absent for a period of 16 months and that
such absence from duty is a serious misconduct under the
service rule. Accordingly, vide order dated 24.07.2018 the
petitioner was directed to join within 7 days.
3. Since, the background facts of the present case, are
also similar to the background facts of the cases discussed
hereinabove and for the sake of brevity the same is not
repeated here. On perusal of the writ petition it appears that
the petitioner has extracted order dated 12.02.2014,
11.05.2015 in the body of the writ application. Along with
// 33 //
the writ petition, the petitioner has also filed a copy of the
attendance register for the month of April and May, 2015
which were received by the petitioner under the Right to
Information Act. On perusal of the documents under
Annexure-1 series, it appears that the statement reveals that
the petitioner was present in office from 21.05.2015 to
20.05.2015. Further, under Annexure-2 the petitioner, who
was placed under suspension vide order dated 20.02.2017,
had been reinstated in service since 01.03.2017. Pursuant to
such reinstatement the petitioner has submitted his joining
report before the AGM (HRD) on 01.03.2017 under
Annexure-3. Although the petitioner was protected by an
interim order passed in the earlier writ petition, the
opposite party DGM (HRD) vide his letter dated
08.05.2017 has written to the petitioner that he was absent
since 01.03.2017. Moreover, the authorities, contrary to the
order passed by this Court, have issued a direction that
BAS is the only system for registering your attendance and
that since the petitioner has not marked his attendance
through the biometric system his salary has not been
released by the DDO. In a way, it is found that the
authorities have compelled the petitioner to give his
attendance through BAS for payment of his salary and such
order of the authorities are not in consonance with the
interim order passed earlier by this Court. Thereafter, the
impugned notice dated 24.07.2018 under Annexure-6 has
// 34 //
been issued informing the petitioner to join in service
within 7 days. Such letter dated 24.07.2018 under
Annexure-6 is sought to be challenged in the present writ
application.
6. The opposite party Nos.2 to 5 have filed a counter
affidavit through the Deputy General Manager (HRD) on
perusal of the counter affidavit this Court is of the
considered view that the averments made in the counter
affidavit are nothing but the repetition of the averments
made in counters filed in the writ petitions which have been
discussed in detail hereinabove.
W.P.(C) No.12689 of 2020
1. The present writ application has been filed by the
petitioner with a prayer to issue a writ in the nature of
mandamus / certiorari to quash the departmental
proceeding No.92 dated 06.07.2015 and No.122 dated
23.08.2015 under Annexure-3 series and to pay him his
dues with interest as admissible under the law and further
for a direction to opposite party Nos.2 to 5 to release his
pension and other retiral benefits to the petitioner within a
stipulated period of time. On perusal of the record, it
appears that the said writ application was listed for
admission on 29.05.2020. After hearing learned counsel for
the petitioner, this Court was inclined to issue notice to
// 35 //
opposite parties and further the opposite parties were
directed to file their counter affidavit within a period of six
weeks.
2. The background facts of the present case, are similar
to the facts which have been narrated hereinabove. The
departmental proceedings No.92 dated 06.07.2015 and
No.122 dated 28.03.2015 have been challenged in the
present writ application on the ground of delay in
finalisation of such proceedings. Further, it has been stated
that during the pendency of such disciplinary proceedings
the petitioner has retired from service w.e.f. 31.07.2019.
3. The disciplinary proceeding Nos.92 and 122 have
been assailed on the ground of delay in finalising the
proceeding, the petitioner has retired in the meantime on
31.07.2019 after he was duly permitted by the opposite
parties to take retirement from service and further on the
ground that once the petitioner has retired from service the
employer and employee relationship comes to an end,
therefore, the proceeding cannot proceed further after
retirement of the petitioner. After retirement from service,
although the petitioner has submitted his pension papers on
21.10.2019, however, no action has been taken by the
authorities for release of the pensionary benefits to the
petitioner in a most illegal and arbitrary manner. The
principal ground for withholding such service, retiral as
// 36 //
well as pensionary benefits and gratuity is that the above
noted two departmental proceedings are pending against
the petitioner.
4. It is submitted by learned counsel for the petitioner
that on the allegation of the Director, HRD , OPTCL
charges of misconduct on various grounds were framed
against the petitioner, however, most surprisingly the
complainant himself has not deposed anything against the
petitioner. Moreover, it is also contended that the said
Director, HRD, OPTCL was engaged on contractual
appointment by the OPTCL and after his tenure has come
to an end, he has already left the organisation. Therefore,
there is no possibility that the said Director, HRD, would
come back to depose against the present petitioner.
Additionally, it was also submitted that the allegation made
against the petitioner are all baseless and vague. Further, it
was also contended that the disciplinary proceedings were
initiated against the petitioner to harass and victimize him
as he was leading the agitations/ dharana/ obstructions
which were being organised by the OSEB Bijuli
Karmachari Sangha. The petitioner being elected General
Secretary of the said Sangha was leading the agitation of
the employees. It is further, contended before this Court
that the members of the employees union were agitating
against the management for fulfillment of their demand
which was being led by the present petitioner he was then
// 37 //
the General Secretary. The authorities, however, in a
discriminatory and arbitrary manner have singled out the
petitioner and on false and vague allegations initiated
proceedings against him to prevent the employees to agitate
against the management.
5. It is also contended by learned counsel appearing for
the petitioner that due to pendency of departmental
proceeding and by taking advantage of such pendency, the
management of the opposite party-corporation has been
denying to pay the petitioner his legitimate dues like arrear
salary pensionary benefits and other retiral dues like
gratuity etc. Learned counsel for the petitioner went to the
extent of alleging that the petitioner is being harassed and
victimised in the hands of the management and such
conduct of the management clearly violates the
fundamental right of the petitioner as has been guaranteed
under the Constitution of India.
6. In course of this argument learned counsel for the
petitioner submitted that although the petitioner has retired
on attaining the age of superannuation w.e.f.31.07.2019 on
being duly allowed by the opposite party authorities,
however, the opposite party authorities are not paying the
petitioner his legitimate dues and retiral benefits such as
gratuity, pension and arrear salary. He further submitted
that if the authorities are also not paying the provisional
// 38 //
pension as is due and admissible to the petitioner. As a
result of such illegal withholding of his service benefits as
well as retiral benefits, the petitioner is facing a lot of
financial hardships. It was also stated before this Court that
the petitioner had also approached this Court by filing
W.P.(C) No.25396 of 2019 seeking for a direction to the
opposite parties to release his pension, pensionary benefits
including gratuity and arrear salary. A coordinate bench of
this Court vide order dated 12.12.2019 disposed of the said
writ petition with a direction to Opposite party No.3 to the
following effect;
"as the petitioner has directly approached this
Court, the writ petition is not entertainable at
this stage. This Court, however, while disposing
of the writ petition directs the Opposite party
No.3 to treat this writ petition as representation
and take a decision in the matter within a period
of one month from the date of communication of
this order along with a copy of the writ petition
by the petitioner. In the event, there is no legal
prohibition, the provisional pension of the
petitioner may be released forthwith.
Issue urgent certified copy of this order as per
Rules.
Sd/-"
// 39 //
6. After disposal of the above noted writ application
the petitioner approached the Opposite Parties. Opposite
Party No.4 vide his letter dated 14.01.2020 considered the
case of the Petitioner pursuant to order dated 12.12.2019
and has released the provisional pension of the petitioner.
However, no reasoned order regarding release of gratuity
and arrear salary has been passed as of now. Therefore,
learned counsel appearing for the petitioner would argue
that the conduct of opposite party No.4 in the present case
is contemptuous as he has deliberately and willfully
violated the direction issued by the Coordinate Bench on
12.12.2019. Such conduct compels the petitioner to file a
contempt petition bearing CONTC No.592 of 2020 for
violation of this Court's order. This court vide order dated
24.02.2020 disposed of the contempt application by
granting one more opportunity to the contemnor to comply
with the order. Further, in compliance to order dated
24.02.2020, the opposite party No.3 intimated the petitioner
vide letter dated 10.04.2022 stating therein that the release
of the provisional pension is in compliance to order dated
12.12.2019 passed in W.P.(C) No.25396 of 2019. While
intimating such facts opposite party No.3 did not inform
anything about the arrear salary and gratuity of the
petitioner.
// 40 //
7. In reply to the pending disciplinary proceedings,
learned counsel for the petitioner submits that in both
charge sheets the Director, HRD has been narrated as a
victim and basically it is on the complaint of Director HRD
both the proceedings have been initiated against the
petitioner on the allegation of insubordination as well as
leading agitating workers of the opposite parties
corporation who were demanding their lawful dues.
Moreover, such disciplinary proceedings and it is stated,
are pending since last 6 years. No steps have been taken by
the opposite parties to conclude such disciplinary
proceedings pending against the petitioner. It is alleged by
learned counsel for the petitioner that such disciplinary
proceeding have been kept pending so that the opposite
parties would get a handled to deprive the petitioner of the
opportunity to get his legitimate dues.
8. Additionally, it is also alleged that the initiation of
disciplinary proceedings are bad in law moreover, the
complainant has not been examined by the Inquiry Officer.
Further, no opportunity was provided to the petitioner to
file an effective show cause reply/ written statement of
defence by providing him necessary documents. It was also
alleged that since the Director, HRD was appointed on
contractual basis and after completion of his contractual
period he has left the organization, therefore, a star witness
like the complainant (Director, HRD) could no more be
// 41 //
examined as a witness against the petitioner. Therefore,
learned counsel for the petitioner urged before this Court
that both the disciplinary proceedings are liable to be
quashed.
9. Learned counsel for the petitioner to substantiate his
argument that when the charges of misconduct as alleged is
not so serious for which the same will prolong the
Disciplinary Proceeding and as a result the petitioner would
be made to suffer, relied upon a judgment in the case of
Ananta R. Kulkarni Vs. YP Education Society reported in
(2018) AIR SCW 2573. In the aforesaid judgment the
Hon'ble Apex Court held that the court has to consider the
seriousness and the magnitude of the charges which is just
and proper considering the circumstances involved and
upon such consideration, the proceedings are allowed to be
terminated only on the ground of delay in their conclusion.
Moreover, this Court is also of the considered view that
while examining the nature and seriousness of the
allegations made in the present case, this Court is required
to consider the issue in its entirety and to consider the
entire factual background of the case. Factual foundation of
the charges sometimes gives an idea about the genuiness,
seriousness and authenticity of the charges brought against
the delinquent officer. Moreover, the background facts of
the present case taken in its entirety, does not give a clear
picture to come to a conclusion that the Delinquent Officer
// 42 //
is guilty of the charges. Therefore, this Court, in the interest
of justice, can always interfere in the disciplinary
proceedings and bring an end to the same in an appropriate
case.
10. So far, the present case is concerned, this Court
examined the entire factual background of the present case.
On such examination this Court found that the petitioner
who was an elected General Secretary of the Union had
rightly or wrongly opposed/ resisted the introduction of
new biometric attendance system. The dispute persisted for
a long time and during such time many agitations, protest
etc. took place to compel the management to consider the
demand of workman. The petitioner who was working as a
Peon in the corporation also happens to be the General
Secretary of the trade union, accordingly, he was leading
such protest. Finally, the matter landed in this Court. As
has been discussed earlier several orders/ directions have
been passed by this Court in connection with the present
dispute as would be seen from the preceding paragraph.
Such orders have been vividly discussed which were in the
context of the dispute with regard to introduction and
installation of BAS and protection granted to the petitioner
against any coercive action likely to be taken by the
Opposite Party-Corporation. Unfortunately, no efforts have
been made by the parties, neither the disciplinary
proceedings nor the writ petition pending before this Court,
// 43 //
to list the same and finalize in time. In the meantime, the
petitioner has retired from service on attaining the age of
superannuation w.e.f.31.07.2019. As a result of the pending
disciplinary proceedings against the petitioner the
background of which has a direct nexus with the
introduction and implementation of the BAS system as well
as non fulfillment of the demands made by the Employee's
union, the petitioner has not been paid his arrear salary as
well as retiral dues and pensionary benefits.
11. Although, this writ petition was filed in the year,
2020 and notices were issued vide order dated 29.05.2020
granting opposite parties time to file counter affidavit
however no counter affidavit has been filed till date. Thus,
the issue involved in the dispute which should have been
finalized expeditiously within a reasonable time has been
kept alive. This Court understands what as a result of
prolongation of such proceedings, the only sufferer is the
petitioner, who is not getting his legitimate dues and
pensionary benefits although he has retired from service
several years ago.
W.P.(C) No.28262 of 2022
1. The present writ application has been filed by the
petitioner with a prayer to issue a writ in the nature of
mandamus / certiorari directing the opposite parties more
// 44 //
particularly opposite party No.3 to release the arrear salary
and all retirement benefits such as pension, GPF, ACP and
7th pay as admissible to the petitioner along with interest at
the rate of 18% p.a. within a stipulated period of time.
2. The present writ application which was filed on
26.10.2022 was listed before this bench on 31.10.2022 for
admission hearing. After hearing the learned counsel for
the petitioner this Court was inclined to issue notice to
opposite parties. In the order dated 31.10.2022 it has been
clearly indicated that the matter shall be disposed of at the
stage of admission. Thereafter, the matter was listed on
15.11.2022, 17.11.2022, 28.11.2022, 02.12.2022,
12.12.2022, on perusal of the order sheet it appears that
vide order dated 28.11.2022 this matter has been directed to
be listed along with other similar matters pertaining to the
present petitioners. Finally, all these matters were listed
before this Court on 16.12.2022. With the consent of all the
learned counsels appearing for the parties, all matters were
finally heard together.
3. The factual background of the present case, is
similar to the factual background of other connected
matters which have been elaborately discussed
hereinabove. For the sake of brevity the facts are not
repeated here.
// 45 //
4. The present writ application has been filed by the
petitioner seeking for a direction to opposite party No.3 i.e.
Director, HRD, OPTCL to release the arrear salary and all
retiral dues including pensionary benefits, GPF, ACP and
7th pay as is due admissible as per Rule with interest for the
delayed payment. Learned counsel for the petitioner
contended that the petitioner is retired from service on
attaining the age of superannuation w.e.f. 31.07.2019,
however, he has not been paid his arrear salary, retiral
benefits as well as pensionary benefits as is due and
admissible to him.
5. It is also contended by learned counsel for the
petitioner that the authorities have illegally treated the
petitioner to be unauthorizedly absent from duty from the
date of his reinstatement in service w.e.f. 01.03.2017 till
the date of his retirement on 31.07.2019. He, further
contended that after reinstatement in service, the petitioner
has been attending his work regularly and he has been
signing the attendance register manually. However,
opposite party-corporation is so adamant that they want to
insist on implementation of the BAS system at any cost and
accordingly, they have not taken into consideration the
physical attendance register where the petitioner has been
putting his signature regularly. He further contended that
despite interim order having been passed by this Court, the
// 46 //
insistence on recording the attendance on BAS is highly
arbitrary and illegal.
6. That the opposite parties had earlier initiated two
disciplinary proceedings bearing Nos.92 and 122 while the
petitioner was in service. The factual background of which
has been elaborately discussed in the connected matters
referred to hereinabove. Further, the authorities allowed the
petitioner to retire from service on his superannuation
w.e.f. 31.07.2019. Learned counsel for the petitioner
further contended that the authorities are determined to
harass the petitioner and as a result, more than one year
after his retirement, a proceeding was initiated bearing
proceeding No.154 dated 18.08.2020. On the allegation of
unauthorize absence from duty w.e.f. 01.03.2017 to till his
retirement on 31.07.2019.
7. After the initiation of the aforesaid disciplinary
proceedings No.154 dated 18.08.2022, the petitioner
approached this Court by filing W.P.(C) No.23667 of 2020.
This Court after hearing the learned counsels for the parties
vide judgment dated 30.06.2022 quashed the said
disciplinary proceedings with a finding that there is no
unauthorized absence and that putting attendance through
the biometric attendance system was not mandatory at the
relevant point of time. In such view of the matter, learned
counsel for the petitioner submitted that there exists no
// 47 //
legal impediment to release the arrear salary as well as all
retiral benefits and pensionary benefits to the petitioner
within a stipulated period of time along with interest for the
delayed payment.
8. Learned counsel for the petitioner further contended
that after judgment dated 30.06.2022 in W.P.(C) No.23667
of 2020 the petitioner approached the opposite parties by
filing a representation which was received by the Office of
opposite party No.3 on 22.07.2022 along with a copy of the
aforesaid judgment. However, till date the opposite party
No.3 has not taken any action on it. Accordingly, aggrieved
by such inaction on the part of the opposite party, the
present writ application has been filed by the petitioner
with a prayer as has been indicated above.
9. It is further contended by learned counsel for the
petitioner that although the petitioner has retired from
service w.e.f. 31.07.2019, he has not been paid his arrear
salary, retiral dues as well as pensionary and other benefits.
As a result of which the petitioner is living in a distressful
condition with his other family members. He further
contended that because of delay in release of the financial
benefits as has been claimed by the petitioner, the
petitioner is unable to perform the marriage of his two
daughters. It is further contended that the petitioner's wife
is suffering from various ailments and due to non-
// 48 //
availability of money the petitioner is unable to provide
proper treatment to her. The entire family is passing
through a very difficult time and in such view of the matter
learned counsel for the petitioner urged before this Court
that unless this Court intervenes in this matter, the
petitioner and his family members are going to suffer a lot.
He also submitted that the petitioner was working as a Peon
in Class-IV Grade. Therefore, he has no savings to take
care of the basic needs of the family at the moment. The
sorrow of the petitioner is further multiplied by non-
payment of his salary by the authorities since last 7 years.
10. Although, the opposite parties have not filed any
counter affidavit, the learned counsels appearing for the
opposite parties advanced his arguments on legal issues and
tried to justify the conduct of the opposite parties in passing
the impugned orders. Mr. B.P. Tripathy, learned counsel
appearing for the OPTCL submitted that no doubt the
disciplinary proceedings bearing No.154 dated 18.08.2020
has been quashed by this Court vide judgment dated
30.06.2022 in W.P.(C) No.23667 of 2020, however, there
are two other disciplinary proceedings pending against the
petitioner. Therefore, even though this Court directed vide
judgment dated 30.06.2022, the learned counsel appearing
for the opposite party-Corporation submitted that the claim
of the petitioner in the present writ application cannot be
considered in view of the legal impediment in the shape of
// 49 //
two pending disciplinary proceedings against the present
petitioner. Accordingly, learned counsel for the opposite
party submitted that the present writ application in its
present form is not maintainable and the same is liable to
be dismissed.
Conclusion
I) W.P.(C) No.6842 of 2015
After hearing learned counsel for the parties and upon a
careful consideration of the factual backgrounds of the
present case, this Court is of the considered view that the
prayer made in the present writ application is unsustainable
in law in view of the fact that the office order dated
31.03.2015 which has been issued under the signature of
Director, HRD is for implementation of a policy decision in
the shape of introduction of BAS system in the office of the
OPTCL. Moreover, a perusal of the background facts given
in the said office order, this Court is of the view that the
system introduced has been accepted and adopted by many
offices including the High Court of Orissa for its
employees. Such a system is very convenient to operate
and it saves a lot of time, moreover, it provides additional
security to the establishment. Therefore, there can be no
second opinion with regard to the utility of such a system
and such a system has become a need of the day for all big
// 50 //
offices having number of employees. Additionally, such a
decision being a policy decision is within the exclusive
domain of the management of opposite party-Corporation.
Policy decision can be subjected to the judicial scrutiny of
this Court under Article 226 provided the same is hit by
any of the fundamental rights guaranteed to the citizens or
on the basis of reasonableness of such decision. In the
instant case, this Court upon hearing learned counsels
appearing for the parties and upon a perusal of the records
is of the considered view that the policy decision taken by
the opposite parties to implement BAS System is neither
unreasonable nor the same violates any of the fundamental
rights as has been provided under Part-III of the
Constitution of India. In such view of the matter, this Court
has no hesitation in coming to a conclusion that
implementation of BAS system is for the betterment of
employees as well as the establishment. Hence, the present
writ application is devoid of any merit accordingly, the
same is hereby dismissed. However, in the facts and
circumstances there shall be no order as to cost.
(II) CONTC No.670 of 2015
Since, this contempt application arises out of W.P.(C)
No.6842 of 2015 and in view of the final decision of this
Court as reflected hereinabove in the said writ application,
// 51 //
this contempt application is also devoid of merit.
Accordingly, the contempt proceeding is hereby dropped.
(III) W.P.(C) No.12554 of 2017
1. The impugned order dated 08.05.2017 under
Annexure-5 reveals that the petitioner was advised to give
attendance in the biometric attendance system. Such a letter
was written in reply to the petitioners claim for payment of
salary for the month of March, 2017 after he was reinstated
in service w.e.f. 01.03.2017. Nowhere in the counter
affidavit it has been stated that the petitioner was not
attending the office and not discharging his duties.
Moreover, the authorities treated the period from
01.03.2017 to till the date of his retirement as period of
unauthorize absence from duty as because the petitioner
was not registering his attendance on BAS. Therefore, the
authorities have come to a conclusion that since the
petitioner was not registering his attendance through BAS
therefore, the entire period has been treated to be
unauthorise absence from service.
2. The petitioner has produced material to establish
that he was attending his office and signing the attendance
register manually. This dispute has also been elaborately
discussed in the judgment dated 30.06.2022 rendered in
W.P.(C) No.23667 of 2020 filed by the petitioner. In para-
// 52 //
27 of the said judgment this Court has categorically held
that in view of the interim order passed by this Court in the
earlier writ petition, which were in force at the relevant
point of time, it was not mandatory on the part of the
petitioner to record his attendance through BAS. This point
has also been dealt with specifically an in detail in other
connected matters and this Court has already come to a
conclusion that the biometric attendance system was not
mandatory at the relevant point of time and implementation
of such a new system was the subject matter of dispute
before this Court which has also been considered and
decided along with the present writ application.
3. As such, this Court has no hesitation in coming to a
conclusion that the letter dated 08.05.2017 passed by the
DGM (HRD), OPTCL is unsustainable in law and
accordingly the same is hereby quashed. The writ petition
stands allowed, however there shall be no order as to the
cost to be paid.
IV) W.P.(C) No.14510 of 2017
In view of the order passed today, judgment passed in
W.P.(C) No.12554 of 2017 whereby the Disciplinary
Proceedings vide Chargesheet No.92 dated 06.07.2015 and
No.122 dated 23.08.2015 have been quashed, this writ
petition has become infructuous and nothing survives to be
// 53 //
adjudicated in the present writ application. Further, since
the D.P. No.92 dated 06.07.2015 and D.P. No.122 dated
23.08.2015 have already been quashed by this Court the
letters dated 15.10.2015 appointing Nihar Ranjan Mohanty
as Land Officer and Shri S.S. Paikray Officer on Special
Duty who were appointed as a Inquiring Officer and
Presenting Officer respectively is hereby quashed.
Similarly, order dated 20.02.2017 under Annexure-9 passed
by the General Manager (HRD), Vigilance appointing
substituted Presenting Officer that is AGM, HRD, NEE,
OPTCL is also hereby quashed. Accordingly, the writ
petition stands allowed. However, there shall be no order as
to cost.
V) W.P.(C) No.15031 of 2018
1. On a careful consideration of the facts and
circumstances and the materials placed before this Court
and after hearing learned counsel for the parties this Court
is of the view that the issue involved in the present case
was directly and substantially an issue in W.P.(C)
No.23667 of 2020 which has been decided by judgment
dated 30.06.2022. In the said judgment dated 30.06.2022,
in para-27, this Court has categorically observed that the
allegation against the petitioner regarding his unauthorized
absence from service may not be correct in view of the fact
// 54 //
that the petitioner was signing the manual attendance
register regularly as evident from Annexure-4 series to that
writ petition. It was also held that putting attendance
through biometric attendance system was not mandatory in
view of the interim order passed by this Court, which has
been discussed in the present writ application also.
Therefore, this court concluded that not putting attendance
through the biometric attendance system cannot be used
against the petitioner by his employer corporation and that
the initiation of the disciplinary proceeding one year after
the retirement of the petitioner that too by an Officer who
had joined after retirement of the petitioner does not inspire
confidence in the mind of this Court. Moreover, this Court
had also held that the then Manager, HRD under whom the
petitioner was working, had allowed the petitioner to retire
from service without any remark and without initiating any
proceeding against the petitioner for his unauthorized
absence. Accordingly, this Court is also of the humble view
that since the disciplinary proceeding is in respect of the
period of unauthorized absence from 01.03.2017 till his
retirement and which was also the subject matter of dispute
in the present writ application was initiated after retirement
of the petitioner without obtaining prior sanction of the
Government as is required under Rule-7 (2) (b) (II) of the
OCS Pension Rules, 1992. Such a disciplinary proceeding
is unsustainable in law and accordingly, this Court
// 55 //
unhesitantly declares such a proceeding to be a nullity in
the eye of law and thus the same is hereby quashed.
2. In view of the finding and the final verdict in the
judgment dated 30.06.2022 in W.P.(C) No.23667 of 2020,
this Court is of the considered view that nothing remains to
be decided in the present writ application and accordingly,
the impugned letter dated 24.07.2018 under Annexure-6 is
hereby quashed. Accordingly, the writ petition stands
allowed. However, there shall be no order as to cost.
VI) W.P.(C) No.12689 of 2020
This writ petition has been filed by the petitioner to quash
both disciplinary proceeding Nos.92 dated 06.07.2015 and
No.122 dated 23.08.2015. Upon hearing learned counsel
for the petitioner as well as learned counsels appearing for
the opposite party-Corporation and the Government and
upon a careful consideration of the materials placed before
this Court, this Court has no hesitation in coming to a
conclusion that the basic premise on which the charges
have been framed against the petitioner are directly
relatable to the conduct of the petitioner as the General
Secretary of the Employee's Union in question. It is an
undisputed fact that there was a dispute with regard to
introduction and implementation of biometric attendance
system in the office w.e.f. 01.04.2015. Such decision was
// 56 //
challenged before this Court by filing a writ petition at the
instance of the Employee's Union through the petitioner as
the General Secretary of the Union. Further, in the said writ
application this Court had passed an interim order
protecting the Employee's Union which has been
elaborately narrated in the preceding paragraphs. Moreover,
the procedure followed in the disciplinary proceeding by
appointing a retired officer who was appointed as a
Contractual Officer as Inquiring Officer and further the
petitioner was not provided with the documents to file an
effective reply to the allegations against him and further
taking into consideration the fact that there was a delay in
concluding such proceeding, all these facts raise a doubt
with regard to genuineness and bona fide of such
proceedings. Moreover, approval of the Government has
also not been obtained at least the same was not shown to
this Court for continuance of such proceedings after
retirement of the petitioner w.e.f. 31.07.2019 and further
keeping in view the finding arrived at by this Court in its
judgment dated 30.06.2022 in W.P.(C) No. 23667 of 2020,
this Court is of the considered view that permitting such
Disciplinary Proceedings to continue after retirement of the
petitioner on the charges brought against the petitioner, the
same would not be in the larger interest of justice.
Moreover, this Court had earlier accepted the writ petition
questioning the introduction and implementation of BAS
// 57 //
and after adjudicating the same, a final judgment has also
been delivered today by holding that the opposite parties
are well within their authority to implement such a new
system and accordingly the said writ petition was
dismissed, this Court deems it proper to bring an end to the
entire dispute to which the learned counsels for appearing
parties have also agreed to. Accordingly, the Disciplinary
Proceedings initiated against the petitioner bearing D.P.
Nos.92 dated 06.07.2015 and No.122 dated 23.08.2015 are
hereby quashed. The writ petition stands allowed.
However, there shall be no order as to cost.
VII) W.P.(C) No.28262 of 2022
1. The present writ application has been filed in the
year 2022 after the disciplinary proceedings bearing
No.154 was quashed with a prayer for a direction to the
opposite parties to release the arrear salary and all the
pensionary benefits such as pension, GPF, ACP and 7th Pay
as admissible under the Rules with interest @ of 18%
within a stipulated period of time. Learned counsel for the
petitioner contended that since the disciplinary proceedings
pending against the petitioner bearing D.P. No.154 was
quashed by judgment dated 30.06.2022 in W.P.(C)
No.23667 of 2020, there is no legal impediment in
releasing all the financial service and pensionary benefits in
// 58 //
favour of the petitioner, along with interest within a
stipulated period of time.
2. In the said context, learned counsel for the petitioner
relied upon a judgment of the Hon'ble Supreme Court in
the case of State of Andhra Pradesh vs. N. Radhakrishnan
reported in IV (1998) SLT 273 and submitted that the
disciplinary proceedings are bound to be terminated due to
delay in proceeding, more particularly when delay is
abnormal and there is no explanation for such delay. He
further submitted that the delay in concluding the
disciplinary proceedings will vitiate the entire proceeding
and the same will also cause prejudiced to the delinquent.
3. Further, learned counsel for the petitioner relying
upon the judgment of the Hon'ble Supreme Court in Dev
Prakash Tiwari vs. UP Cooperative Institution Service
Board reported in 2014 AIR SCW 5271 contended that no
disciplinary proceedings shall continue against a retired
employee. In such view of the matter, learned counsel for
the petitioner submitted that the opposite parties be directed
to clear the dues as is due and admissible to the petitioner
along with interest within a stipulated period of time.
4. Learned counsel for the opposite party-Corporation
submitted that there were allegation against the petitioner
and the petitioner was facing disciplinary proceedings.
Therefore, the authorities are under no legal obligation to
// 59 //
pay the service and financial benefits pending finalization
of the disciplinary proceedings. In such view of the matter,
learned counsel for the corporation as well as learned
counsel appearing for the Government justified the conduct
of the opposite parties in withholding the financial and
service benefits as well as the pensionary benefits of the
petitioner.
5. This court upon a careful consideration and the
submission made by the learned counsel for the respective
parties and materials placed before this Court and further
taking into consideration the decisions taken in the
connected matters as well as the judgment of this Court
dated 30.06.2022 in W.P.(C) No.23667 of 2020, this Court
is of the considered view that since the disciplinary
proceedings pending against the petitioner have been
quashed and the period from 01.03.2017 to 31.07.2019
have been accepted, regularized, and the opposite parties
are directed to treat the said period as on duty taking into
consideration the manual attendance register of the
petitioner.
6. Accordingly, the opposite parties are directed to
calculate the arrear salary, pensionary benefits, GPF, ACP
& 7th pay as is due and admissible to the petitioner and the
same be sanctioned and released in favour of the petitioner
within a period of two months from the date of this
// 60 //
Judgment, along with 7% interest, failing which the
opposite parties are liable to pay the entire amount to the
petitioner along with interest @ of 8 % till the date of
actual payment. Accordingly, the writ petition stands
allowed. However, there shall be no order as to cost.
(A.K. Mohapatra)
Judge
Orissa High Court, Cuttack
The 24th of February, 2023/ Anil.
