Rama Chandra Khuntia vs Union Of India And Others
2023 Latest Caselaw 289 Ori

  IN THE HIGH COURT OF ORISSA AT CUTTACK

                WP(C) No.32850 of 2021

                 (Through Hybrid mode)

Rama Chandra Khuntia                   ....           Petitioner

                            -versus-
Union of India and others              ....     Opposite Parties

Advocates appeared in this case :

      For Petitioner        : Mr. Jaganath Patnaik, Advocate
                              Mr. T. K. Pattanayak, Advocate

      For Opposite Parties : Mr. Biswajit Maharana, Advocate
                             (Central Government Counsel)
                             Mr. A.N. Das, Advocate
                             Mr. N. Sarkar, Advocate
                             (for N.T.P.C.)
                             Mr. Y.S.P. Babu, Advocate
                             (Addl. Govt. Advocate)

CORAM:
              JUSTICE ARINDAM SINHA
              JUSTICE SANJAY KUMAR MISHRA
                        JUDGMENT

09.01.2023

ARINDAM SINHA, J.

1. Mr. Pattanayak, learned advocate appears on behalf of petitioner, who says he is President, NTPC Men's Congress. He submits, impugned is order dated 12th July, 2021 of the

appropriate government and order dated 18th October, 2021 passed in review thereof.

2. He draws attention to application dated 1st April, 2021, for closure. He demonstrates that the closure was sought from date of the application itself. He demonstrates further from annexure 2 to the application that power generation had stopped since the night before, on 31st March, 2021. He submits, this was clearly in violation of provision in section 25-O (1) of Industrial Disputes Act, 1947.

3. When the application was not accepted by the appropriate Government, on it being pointed out that same was illegal, the management came up with another application dated 19th May, 2021. Contents of the application are reproduced below.

"Under Section 25-O of the Industrial Disputes Act, 1947 (14 of 1947), I/we hereby inform you that I/we propose to close down the undertaking specified below of Talcher Thermal Power Station, NTPC Talcher Thermal NTPC Limited, PO: Talcher Thermal, Dist. Angul, Odisha - 759101 Telephone No.06760-249101

with effect from 20.08.2021 for the reasons explained in the Annexure.

2. The number of workmen whose services will be terminated on account of the closure of the undertaking is NIL. Services of none of the workmen employed by NTPC

would be terminated on account of the (proposed) closure of the above undertaking.

3. Permission is solicited for the proposed closure.

4. I/we hereby declare that in the event of approval for the closure being granted, every workman in the undertaking to whom sub-section (8) of the said Section 25-0 applies shall be paid compensation as specified in that section."

(emphasis supplied)

Case of petitioner is that it being a power plant, this application too was illegal inasmuch as the power generation of the plant stood stopped from 31st March, 2021 and in the circumstances, it was not an application with intention to close down the undertaking. Illegal closure had already happened.

4. His client obtained relevant documents by intervention of Court and thereafter, applied for review. Review order dated 18th October, 2021 has also been impugned. He submits, this fundamental erroneous premise of the application having been made after closure, was not appreciated in review. Mr. Pattanayak submits, number of workmen was 889. On query from Court he submits, the workmen were working through contractor. He draws attention to serial no.11 under clause 25 in annexure 2 of the application to demonstrate that number of contract labour affected is stated to be 889. He submits further, after the purported closure, construction has started

for a new plant with persons other than members of the union, whose services were terminated.

5. Mr. Sarkar, learned advocate appears on behalf of National Thermal Power Corporation (NTPC). He submits, the closed unit was obsolete and power generation had been stopped. It was necessary for it to be closed under section 25-O. He submits, by the closure there was no retrenchment.

6. Mr. Moharana, learned advocate, Central Government Counsel appears on behalf of Union of India. He submits, the review order was passed in accordance with law. The original order has merged in the review order and there should not be interference. Mr. Babu, learned advocate, Additional Government Advocate appears on behalf of State.

7. We find from materials disclosed on record, particularly annexure 2 in the second application dated 19th May, 2021, contention of the management was clear in saying that number of workmen, whose services were terminated on account of closure of the undertaking was NIL. This would also appear from content of the application quoted above.

8. We have given our anxious consideration to interpretation and effect of provisions in section 25-O. It is true, sub-section (1) says an employer who 'intends' to close down an undertaking of an industrial establishment has to duly apply on serving simultaneously representatives of the

workmen in prescribed manner. Sub-section (2) provides for enquiry to be made by appropriate government. Sub-section (3) deems permission on omission of the appropriate government to either grant or refuse permission within specific time. Sub-section (4) provides that decision of the appropriate government shall be final and to remain in force for one year from date of the order. Sub-section (5) provides for review. Sub-section (6) provides for consequences of closure without application or closure in spite of refusal by the appropriate government. Sub-section (7) provides for exceptional circumstances, in which the appropriate government may direct that provision in sub-section (1) shall not apply, relating to the undertaking specified in the order and sub-section (8), for compensation to the workmen employed, on closure.

9. Petitioner's contention that the second application is illegal, as it cannot be said to be pursuant to intention to close, on fact of power generation in the unit having been stopped from 31st March, 2021, has to be tested against, inter alia, sub- section (1) of section 25-O. The consequence provision under sub-section (8) would also have to be read with sub-section (1), for working of the section in computing the compensation from and up to the date of closure, irrespective of power generation having been stopped prior to date of the application. In the circumstances, prior stopping of power

generation would not render the application dated 19th May, 2021, illegal.

10. By order dated 12th July, 2021, in giving permission for closure, same was made subject to final outcome of the Court case pending before the Hon'ble High Court and Industrial Tribunal. Two conditions were included in the order. They are extracted and reproduced below.

"(i) That the applicant TTPS-NTPC shall pay all the statutory dues to the retrenched workman, if any;

(ii) That the applicant TTPS-NTPC shall pay every workman, if being retrenched, and is employed in the undertaking immediately before the date of application for permission under this Section 25-O of the Industrial Disputes Act, 1947, due compensation which shall be equivalent of fifteen days' average pay for every completed year of continuous services or any part thereof in excess of six months;"

(emphasis supplied) By the review order there was modification to said order dated 12th July 2021. It be mentioned here that petitioner sought and obtained review pursuant to direction in order dated 21st August, 2021 passed in WP(C) no.22325 of 2021 (petitioner's own case). We extract the modification from operative part of the review order and reproduced it below.

"However, after hearing the parties, the order dated 12.05.2021 is being modified to

such an extent that in respect of the terms and conditions - (i) the expression "retrenched workmen" be substituted by the expression "workmen whose services are to be terminated as a result of this closure", and in (ii) the expression "if being retrenched" be substituted by the expression "if being terminated as a result of this closure"

(emphasis supplied)

11. We have perused impugned review order. We find all contentions of petitioner were dealt with therein. No perversity in the order could be pointed out to us. Petitioner in obtaining the review appears to have got relief. Effect of the modification, by substituting phrases 'retrenched workmen' and 'if being retrenched' both appearing in impugned original order dated 12th July, 2021, make the conditions to be fulfilled for the closure applicable to the contract workers. Hence, the contract workers became workmen, whose services were terminated and entitled to the relief directed by impugned original order. Thus, the contract workers have an entitlement to compensation, which, if not given to them, can be obtained by resort to appropriate provision in the Act.

12. Mr. Pattanayak submits, his client's entitlement should include a pronouncement that they are also entitled to re-employment as under provision in section 25-H since, the unit is again in operation. Mr. Sarkar submits, he does not have instruction regarding present operation status of the unit.

13. We are constrained to further observe that the management cannot be faulted in having applied for closure on declaring that workmen to be retrenched by it was NIL. By impugned review order the contract workers have been given the recognition for purpose of getting compensation by the two conditions directed in impugned original order but, there has been a conscious deletion of the phrases as aforesaid. Since, the contract workers have not been said to be 'retrenched workmen' by impugned orders giving permission for closure, they cannot invoke section 25-H in their aid.

14. In circumstances aforesaid, impugned original as well as review orders do not require interference. We have made our observations regarding effect of impugned review order, on the entitlement of the workmen represented by petitioner.

15. The writ petition is disposed of.

(Arindam Sinha) Judge

(S. K. Mishra) Judge

R.K.Sethi