Orissa High Court
Afr vs P. Bholamadhab on 27 March, 2023
ORISSA HIGH COURT: CUTTACK
W.P.(C) No. 8735 OF 2011
In the matter of an application under Articles 226 and
227 of the Constitution of India.
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AFR
M/s Utkal Galvanisers (P) Ltd. ..... Petitioner
-Versus-
P. Bholamadhab ..... Opp. Party
For Petitioner : Mr. M.K. Mishra, Sr. Advocate
along with M/s P.K. Das,
A.K. Nayak, T. Mishra and
M.K. Rajguru, Advocates
For Opp. Party : M/s Bamadev Baral,
T. Lenka, Ch. B.K. Praharaj
and A.N. Das, Advocates
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
AND
HONOURABLE MR. JUSTICE M.S. RAMAN
Date of hearing and judgment: 27.03.2023
DR. B.R. SARANGI, J. Challenging the legality and propriety of
the award dated 21.01.2011 passed by the Industrial
Tribunal, Bhubaneswar in Industrial Dispute Case No.58
// 2 //
of 2008 (arising out of I.D. Case No. 34 of 1995 on the file
of Presiding Officer, Labour Court, Bhubaneswar) under
Annexure-3, by which the tribunal has awarded
compensation of Rs.1,50,000/- in favour of the opposite
party-workman, the petitioner-management is before this
Court.
2. The factual matrix of the case, in a nutshell, is
that opposite party-workman was working as a Fitter
under the petitioner-management since 1983 and was
taking active part in the trade union activities. Due to
non-payment of minimum wages to the workmen, the
union raised demand for payment of minimum wages by
submitting memorandum to that effect. In the said
memorandum it was also stated that if their demand was
not going to be accepted, then the memorandum should
be treated as their resignation w.e.f. 20.04.1992. But the
same was not worked out. Therefore, the opposite party-
workman raised industrial dispute and by entertaining
the same under Section 10 of the Industrial Dispute Act,
// 3 //
1947, Govt. of Orissa in Labour and Employment
Department, vide order dated 28.01.1995, referred the
matter to the Presiding Officer, Labour Court,
Bhubaneswar for adjudication. But, subsequently, vide
order dated 04.04.2008, the same was transferred to the
tribunal. The schedule of reference runs as follows:-
"Whether the action of the management of
Utkal Galvanisers (P) Ltd., Jagatpur, Cuttack
in terminating the services of Sri P.
Bholamadhab, Fitter by way of refusal of
employment with effect from 30.04.192 is
legal and/or justified? If not, to what relief
Sri Bholamadhab is entitled?"
2.1 After being referred, the opposite party-
workman filed claim statement reiterating the facts, as
mentioned above. In response thereto, the petitioner-
management filed reply stating therein that basing on the
offer of resignation the management noticed the workman
that his resignation would be accepted w.e.f. 14.05.1992,
i.e., one month from the date of receipt of the resignation.
It was also instructed to the opposite party-workman to
collect his dues after 15.05.1992. But at that point of
// 4 //
time, the opposite party-workman fell ill and remained on
leave from 20.04.1992 to 29.04.1992 and during that
period he was under treatment of the E.S.I. doctor. After
his recovery, when he wanted to resume his duty, the
petitioner-management refused him to enter inside the
factory premises. Thereafter, on 12.05.1992, the
petitioner-management asked him to give in writing that
he be permitted to join afresh, which he refused.
Consequentially, the management did not pay his arrear
dues. As the workman was under financial pressure, he
was compelled to submit in writing, as directed by the
management, that the management had paid him
Rs.4683/- and ultimately the management did not give
him any employment.
2.2 The industrial tribunal for an effective
adjudication of the dispute framed two issues to the
following effect:-
"1) Whether the action of the management of
Utkal Galvanisers (P) Ltd., Jagatpur, Cuttack
in terminating the services of Sri P.
Bholamadhab, Fitter by way of refusal of
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employment with effect from 30.04.192 is legal
and/or justified?
2) If not, to what relief Sri Bholamadhab is
entitled?"
2.3 During course of the proceedings, the opposite
party-workman examined himself as W.W. No.1. On
behalf of the management, although affidavit evidence of
one Pravat Kumar Jena was filed on 12.08.2010, the
witness did not turn up and ultimately the management
stopped appearing before the tribunal since 27.10.2010.
Therefore, finding no way out, the tribunal closed the
evidence from the side of the management and proceeded
to decide the dispute on the basis of the materials
available. So far as issue no.1 is concerned, the tribunal
held that as the management did not allow the opposite
party to work, it is presumed that the workman's services
were terminated w.e.f. 30.04.1992 and, as such, the said
termination is found to be illegal. With regard to issue
no.2, it is held that the opposite party-workman is
entitled to compensation of Rs.1,50,000/-.
// 6 //
3. Mr. M.K. Rajguru, learned counsel appearing
on behalf of Mr. T. Mishra, learned counsel for the
petitioner vehemently contended that the tribunal could
not have passed the aforesaid award, as the opposite
party-workman had voluntarily submitted his resignation,
which was accepted. Therefore, the opposite party-
workman is not entitled to get any benefit, as has been
directed by the tribunal. It is further contended that the
amount of compensation of Rs.1,50,000/- is also not
admissible to the opposite party-workman, as he has
already been paid the amount whatever due and
admissible to him in accordance with law.
Consequentially, he seeks for interference of this Court.
4. Mr. A.N. Das, learned counsel appearing on
behalf of Mr. Bamdev Baral, learned counsel for the
opposite party-workman contended that the opposite
party-workman has only received an amount of
Rs.4,683/- and except that nothing has been paid to him
though he is entitled to get arrear salary as due and
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admissible to him. As such, under compelling
circumstances, he has received such amount. Thereby,
the tribunal is well justified in passing the order
impugned which does not require any interference by this
Court at his stage. Consequentially, he seeks for
dismissal of the writ petition.
5. This Court heard Mr. M.K. Rajguru, learned
counsel appearing on behalf of Mr. T. Mishra, learned
counsel for the petitioner and Mr. A.N. Das, learned
counsel appearing on behalf of Mr. Bamdev Baral, learned
counsel for the opposite party-workman in hybrid mode
and perused the record. Pleadings having been exchanged
between the parties, with the consent of learned counsel
for the parties this writ petition is being disposed of
finally at the stage of admission.
6. On careful consideration of the rival
submissions made by the parties and the materials
available on record, including the impugned award passed
by the tribunal below, this Court finds that to
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substantiate his claim the opposite party-workman
examined himself as W.W. No.1 and the petitioner-
management though filed affidavit evidence of one Pravat
Kumar Jena, on 12.08.2010, but it did not prefer to
appear before the tribunal w.e.f. 27.10.2010. Therefore,
the tribunal was compelled to close the evidence from the
side of the petitioner-management. As such, while passing
the impugned award, the tribunal has taken note of the
fact that there was a dispute between the workmen and
the management with regard to payment of minimum
wages admissible to them. Due to non-payment of such
dues, a memorandum of demand was raised before the
management. But, instead of accepting the memorandum,
the management refused to pay the enhanced minimum
wages admissible to the workmen.
7. In the memorandum of demand filed by the
workmen, it was also raised that if their demand was not
going to be accepted then the memorandum should be
treated as their resignation w.e.f. 20.04.1992. But the
// 9 //
management neither complied with the demand raised by
the workmen nor accepted their resignation, which was
demanded w.e.f. 20.04.1992. Rather, a stand was taken
by the management that the opposite party-workman did
not resume duty in spite of invitation from the
management and a letter was issued to the opposite
party-workman that his resignation would be accepted
w.e.f. 14.05.1992. From the same, it is evident that the
management has given a different date, i.e., 14.05.1992
by accepting the resignation submitted by the opposite
party-workman. As a matter of fact, the management
should not have fixed a different date than that was fixed
by the workman for acceptance of his resignation.
Therefore, by automatic extending the time the
management has compelled the opposite party-workman
to join in the post without granting the enhanced
minimum wages and, thereby, the petitioner-management
has acted arbitrarily, unreasonably and contrary to the
provisions of law. The benefit, which is admissible to the
opposite party-workman, having not been extended, his
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resignation letter could have been accepted w.e.f.
20.04.1992. But the petitioner-management proposed to
accept the resignation w.e.f. 14.05.1992 and, as such, the
reason for fixation of such date has not been given
anywhere. The plea, which is taken now by the
management, that in compliance of the provisions
contained under Section 25-F of the Industrial Disputes
Act by giving one month's notice from 20.04.1992 the date
was fixed to 14.05.1992 by the management to accept the
resignation, was not taken before the tribunal.
8. Be that as it may, by accepting the resignation
w.e.f. 14.05.1992, if the opposite party-workman has been
deprived of the benefit of entering into the service and, as
it reveals from the impugned award, the opposite party-
workman was not permitted to join in the post w.e.f.
20.04.1992 and, as such, on 12.05.1992 the petitioner-
management asked the opposite party-workman to give in
writing that he be permitted to join afresh, but once the
opposite party-workman would have joined afresh his lien
// 11 //
of service benefit admissible to him could have been
affected and, therefore, he refused to join in the said post.
Therefore, it was directed by the tribunal that whatever
outstanding amount is there, the same should be
extended in favour of the opposite party-workman by the
petitioner-management.
9. Furthermore, it is the admitted fact that
besides Rs.4683/- nothing has been paid to the
petitioner. There is nothing on record to show that the
management has paid the amount as due and admissible
to the opposite party. Therefore, this Court is of the
considered opinion that the view taken by the tribunal is
well justified and, as such, the management is to pay
Rs.1,50,000/- as compensation to the opposite party-
workman, if the same has not been paid to the opposite
party-workman, within a period of three months from the
date of this judgment.
10. In the above view of the matter, this Court is
not inclined to interfere with the award dated 21.01.2011
// 12 //
passed by the Industrial Tribunal, Bhubaneswar in
Industrial Dispute Case No.58 of 2008, arising out of I.D.
Case No. 34 of 1995 on the file of the Presiding Officer,
Labour Court, Bhubaneswar under Annexure-3.
Consequentially, the writ petition merits no consideration
and the same is hereby dismissed. However, there shall
be no order as to costs.
..............................
DR. B.R. SARANGI,
JUDGE
M.S. RAMAN, J. I agree.
..............................
M.S. RAMAN,
JUDGE
Orissa High Court, Cuttack
The 27th March, 2023, Ashok/GDS
