Orissa High Court
Prasanna Kumar Pattanaik vs The Presiding Officer on 8 September, 2023
ORISSA HIGH COURT: CUTTACK
AFR
W.P(C) NO. 28448 OF 2013
In the matter of an application under Articles 226 & 227 of
the Constitution of India.
---------------
Prasanna Kumar Pattanaik ..... Petitioner
-Versus-
The Presiding Officer, Central
Government Industrial Tribunal-
cum-Labour Court, Bhubaneswar
and others
..... Opp. Parties
For petitioner : M/s. Shibashish Misra,
P.K. Mahapatra and
S.S. Sahoo, Advocates
For opp. parties : M/s. Shashi Bhusan Jena,
S. Behera, A. Mishra and
S. Soren, Advocates [O.P.2]
Mr. P.R. Barik, Advocate
[O.P. 3]
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
AND
THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN
Date of Hearing: 02.09.2023:: Date of Judgment: 08.09.2023
DR. B.R. SARANGI, J. By means of this writ petition, the award
dated 22.02.2013 passed by the Central Government
Industrial Tribunal-cum-Labour Court, Bhubaneswar in
Tr.I.D. Case No. 272 of 2001 under Annexure-1 is sought to
be quashed partially and modified to the effect that the
petitioner-workman is entitled to be reinstated with full
back wages and all consequential benefits including
temporary status as well as permanent absorption under
the pay roll of the opposite party-management, what he
would have got, had his services not been terminated by the
management.
2. The factual matrix of the case, as is borne out
from the record, precisely stated as follows:-
2.1 Bharat Sanchar Nigam Limited (BSNL), of which
opposite party nos. 2 and 3 are the officers, is a
Government of India Company, as defined under Section
617 of the Indian Companies Act, 1956. A dispute was
raised between the petitioner and the opposite parties-
management. As a consequence thereof, the Government of
India, Ministry of Labour, in exercise of the powers
conferred by clause (d) of sub-section (1) and sub-section
2(A) of Section 10 of the Industrial Disputes Act, 1947,
referred the industrial dispute existing between the
employers, i.e., the Management of the Director, Microwave
(Maintenance), Telecom; Director, Microwave (Projects) and
their workman, vide letter no. L-40012/10/99/1R(DU)
dated 19/21.07.1999, to the following effect:-
"Whether the action of the management of Project
Division/Maintenance Division, Deptt. of
Telecommunications by terminating the services of
Shri Prasanna Kumar Patnayak is legal & justified? If
not, to what relief the workman is entitled?"
2.2 The petitioner, being the workman, filed the
statement of claim stating inter alia that the Government of
India in the Ministry of Communication, through its
Department of Telecommunication, runs the Microwave
System of Telecommunication in the whole country. For the
convenience of administration, the entire industry was
divided into projects and maintenance, which form integral
and inseparable activities in Government Department,
which ultimately operates in circle. Though the project
work was in the initiation of the system, as the said work
gets completed in phases and stages, the maintenance
requirements becomes necessary. For operation and
upkeep of the system in the circle, the maintenance
requirement increases and continues co-extensive with the
operation of the system.
2.3 The project work consists of civil work,
construction work, laying down optical fibre cables etc.,
besides installation work of the system, generator,
microwave tower, antennas, etc. in both the work in
operation. Departmental workers are engaged on daily rate
of wages until they or any of them get absorbed in the
regular rolls of the management. On being taken to regular
rolls, they are given scale of pay with D.A., V.D.A and other
allowances and benefits.
2.4 The project work and so also the maintenance
work are not confined to specific areas or location, but
reveal a continuity of location of activities geographically.
Accordingly, as per work requirement, the workers engaged
in the project work and also maintenance get shifted from
place to place. In view of the inbuilt/ inherent nature and
condition of work, they are shifted from place to place, as
directed by the authority orally through telephonic system,
which is normal mode of communication to assign, allot
and control work, when physical presence is not possible.
Different controlling officers of the department are assigned
with different sections or stations of work. These officers
supervise the work of these workers, whether in the project
or maintenance job, maintains records of their attendance,
effect payment of wages month to month obtaining
necessary receipts from them and exercise control as
necessary. Officers of the Govt. of India in the Post and
Telegraph Department, exploit these workers by payment of
even less than subsistence rates of wages, denial of
overtime wages for working for extra hours, denial of weekly
holidays, annual leave, national and festival holidays and
various other allowances, benefits and perks and that are
available to the regular register borne workers and also in
many other aspects of their service conditions. The
disputant workman as also many others employed in the
project and/or maintenance work of the system have to live
in jungles, terrains, etc. with all the risks of life and
hardship of the places and have to undertake to all pains
and hazards or attending to the works in the system to earn
their livelihood.
2.5 The petitioner-workman had been engaged under
the opposite party-management no.3 initially on
01.04.1989 and had been placed under the Microwave
(Projects) in different stations and finally at Aska Station
(wrongly typed as Digapahandi Station in the statement of
claim) under the Bhubaneswar Division till 31.05.1997. On
completion of project work there, the workman was
assigned duties in the maintenance work at the same
station where he continued till 24.12.1997, when he was
refused employment and was forced to vacate the said
station with the help of police. While working in the
maintenance, besides doing maintenance job as per
requirement, he was also guarding the installation at the
said station. He, like several others, was not paid his
earned wages, for which with the help of their trade union,
they moved various authorities, including the Asst. Labour
Commissioner (Central), Bhubaneswar. Like the present
workman, there were other colleagues of him, who, more or
less suffered with the same maltreatment of the opposite
party-management no.2, in particular, the authorities in
maintenance system. They were in all ten such workmen
who had become the victims of the said harsh treatment.
While the petitioner-workman and some others, out of the
said ten workmen, were denied further employment, after
24.12.1997, some other colleagues of his had been denied
employment either on 26.12.1997 or on 29.12.1997, as the
case may be. After several approaches to the management
authorities as also to various Governmental Authorities,
including the Asst. Labour Commissioner (Central),
Bhubaneswar, finally all these ten workmen, including the
petitioner, were paid their earned wages w.e.f. 01.06.1997
till the dates of their individual refusal action. But they
were denied continuance of employment on various lame
pleas from the respective dates for each of them. This
petitioner-workman was denied employment after
24.12.1997.
2.6 The petitioner-workman had put in about 9 years
of continuous service under the opposite party-
management no.3 and while being refused continuance in
employment, he was not paid any wages and benefits under
the retrenchment law nor was there any consideration for
the length of his service, i.e., inter se seniority amongst the
workmen in the said category nor any permission for
effecting such retrenchment had been taken by the opposite
party-management, though the industry employed several
thousands of workmen. There was also no justification to
terminate their employment by way of refusal of service,
since their requirement in work continued and fresh
recruitments from open market were being made
clandestinely. While the petitioner-workman was refused
employment, several other workmen, who are juniors to
him in the said category, continued in employment without
interruption and many of them, either before such refusal
of employment or shortly thereafter, were brought over to
the regular roll of the opposite party-managements.
2.7 The petitioner-workman, along with nine others,
more or less similarly situated, had through their registered
trade union raised industrial dispute before the opposite
party-managements. There was conciliation proceeding in
respect of all these ten workmen, which eventually failed as
the opposite party-managements exhibited un-conciliatory
attitude. On consideration of report of failure submitted by
the A.L.C. (Central), Bhubaneswar, ten separate orders of
references were issued by the Govt. of India, the terms of
reference being more or less the same, which were all
adjudicated by the C.G.I.T. as transferred cases.
2.8 It was further pleaded in the said statement of
claim that the action of the opposite party-managements
which amounts to retrenchment, violates the retrenchment
law, as enshrined in Sections 25-F, 25-G and 25-H of the
Industrial Disputes Act, 1947. The project work and the
maintenance work of the project being the continuous
activities of the opposite party-managements, there could
be no justification to terminate the services of the
petitioner-workman, as had also happened in the cases of
nine others, who were also before the C.G.I.T. in Tr.I.D.
Case Nos. 273 to 281 of 2001. Further, lack of legality or
justification of the action is also patent on Courts record in
Tr.I.D. Case No.268 of 2001, wherein 158 workmen, with
similar history of employment under the opposite party-
management, are still continuing in employment including
many juniors to the petitioner-workman, which reveals the
blatant violation of Sec. 25-G of the 1ndustrial Disputes
Act, 1947.
2.9 The petitioner-workman had further pleaded
that the workmen similarly situated working under the
opposite party-managements, with much less length of
service rendered by them, have been taken into the regular
rolls of the Government. Thereby, such disparity in
treatment is arbitrary, illegal and discriminatory.
Accordingly, prayer was made to pass award holding that
the termination/retrenchment of service of the petitioner-
workman was neither legal nor justified, and that the
workman is entitled to the relief of reinstatement in service
with all service benefits, which would have due to him had
he continued in employment, and such other reliefs as due
to the workman may be granted.
2.10 The opposite party-managements in their written
statement disclosed that the petitioner-workman was never
engaged in the maintenance division, so the question of
termination of his service does not arise. The disputant
union is not a recognized trade union nor any authorized
person has raised any dispute and the claim statement has
not been signed and verified by the petitioner-workman and
the permanent address of the workman is not mentioned in
the cause title for proper identification. Thereby, while
denying the allegations/averments made in the statement
of claim, it was stated in the written statement that
Microwave (Project) Division and (Maintenance) Division are
two different Units of Telecom Department. Microwave
(Project) undertakes the construction work of Microwave
/OFC Systems. After completion of project work and
completion of the testing of the systems / stations, the
same are handed over to the Maintenance. The said two
Wings of Telecom Department are being controlled by two
different Chief General Managers and they get their working
staff on deputation basis from their respective territorial
Telecom Circle /Telecom District. Some time some works
are carried out by them through contractors or through
casual workers on contract basis on as and when need
basis observing the departmental rulings. Director,
Microwave (Maintenance) Division had never taken these
workmen from the Director, Microwave (Project) Division
and there are no such provisions or Rules in the
Department to make over/take over any working force from
Project to Maintenance or vice-versa, so the question of
regular rolls/ Pay/ D.A. / VDA and other allowances and
benefits does not arise.
2.11 It was further stated that there are ten
Maintenance Divisions in Odisha functioning under the
opposite party-managements and the project work
throughout Odisha are done through different Project
Divisions and after completion of the project work the
systems are handed over to the Maintenance Division. The
casual labourers engaged in one Project Division cannot be
engaged in another Maintenance Division simultaneously
and they are never taken by the Maintenance Division after
closure of project work. In fact, the Maintenance work of
different stations is generally managed by the respective
J.T.Os/SDEs/DEs through existing regular staff. No casual
labourer was engaged against any R.M./ Group -D
vacancies. Since 1997, the Department is carrying out the
departmental work through registered contractors
whenever necessary as per the DOT Order/ Instructions.
The said order emphasizes that due to ban order of any
kind of casual engagement, the departmental work should
be done through contractors. Therefore, it was contended
that the petitioner-workman was never engaged by the
opposite party-managements at any point of time nor the
alleged workman was paid by the Director (Maintenance)
Division at any point of time nor he was carrying on the
maintenance job and guarding the installation at the said
stations. The CGM, Microwave (Maintenance), ETR,
Kolkata, vide his letter dated 08.12.1995, had categorically
instructed the opposite party-managements not to engage
any kind of casual labour or take over from project division.
2.12 The Maintenance Division has no power to
appoint any staff. It works by taking its working staff on
deputation from the telecom circle in the State and some
time used to engage contractors for carrying out the works.
The opposite party-managements neither engaged the
alleged workman at any point of time by any manner nor
retrenched him. The 158 workmen in Tr.I.D. Case No.268 of
2001 are not continuing under the Management of Director,
Microwave (Maintenance) Division. They are being deployed
by the Contractor M/s Oriental Security Services in
different stations as per the contract between the contractor
and the opposite party-managements and are paid by M/s
Oriental Security Services. There is no employer and
employee relationship between the workman and the
opposite party-managements nor have the opposite party-
managements any relationship of employer and employee
with those 158 workmen related to Tr.I.D. Case No.268 of
2001 and other workmen of Tr.I.D. Case Nos. 273 to 281 of
2001 pending before the Tribunal.
2.13 The Director, Microwave (Project) filed a separate
written statement stating therein that the said project is an
organization of Telecom Department, now Bharat Sanchar
Nigam Limitede, and is being managed by the Chief General
Manager of Telecom, Project, Kolkata in different zones and
has been set up to carry out different telecom project work
in different zones of the country. To run the telecom
project, all the employees are pulled from the existing
strength of regular employees of the department of telecom.
The Director, Microwave (Project), Bhubaneswar has no
power to recruit the employees and/or cadre where-so-ever.
Therefore, the question of appointment or reinstatement on
the part of the opposite party-management does not arise.
The opposite party-management no.2 is an independent
wing of D.O.T., whose main work is to install long distance
microwave and optical fiver cable communication system,
etc. in the State of Odisha. On completion of the said
project, opposite party-management no.3 makes over the
said system / station to the opposite party-management
no.2 for maintenance. During continuance of the project
works, some casual workers are/were used to be engaged
in the site in charge on as and when required basis for
miscellaneous work since the work of the project are not
perennial nature. The casual workers engaged so are
compensated suitably according to the then rates of the
Government of India. After closure of the project work for
the systems and stations the maintenance division used to
maintain the same by taking staff from telecom circle on
deputation. The opposite party-management no.2 never
takes any casual workers from the project except on few
occasions for a short period. After closure of project no
work is available for the casual workers. Therefore, their
engagement is used to go along with the closure of the
project. The casual labourers are engaged for doing the
manual work, whereas the technical works are done by the
qualified persons of the department.
2.14 Therefore, the casual workers engaged in one
Project Division cannot be engaged in the Maintenance
Division. The site In-Charge of Project Division allot the
work to the casual labourer on the availability of casual
nature of work on as and when required basis. The casual
workers were not engaged continuously and being paid in
A.C.G-17 Vouchers by the JTOs/SDEs of the Site out of
their temporary advances. No casual labourer is engaged
against any R.M./Group D vacancies. Further, the D.O.T.
has banned engagement of casual labourers since
30.03.1985 and till now the same is continuing. Therefore,
during ban period any engagement of casual labour is
illegal and unauthorized.
2.14 Therefore, according to opposite party-
management no.3 that Optical Fibre cable work of project
at Aska was completed in all respect and handed over to
Maintenance Wing and within 31.05.1997 the Stores were
shifted. The workmen were paid with the wages till
31.05.1997. As there was no work available with the
project, the workmen were not provided with work. But the
petitioner-workman created disturbance at the site with
staff of Maintenance Division and did not vacate the
premises for which the Site In-charge of Maintenance
Division was forced to take help of police to vacate the
petitioner-workman from the premises. However, the
Project Division on intervention of the A.L.C. has paid full
wages to the workman till 29.12.1997 though he was not
engaged at the site since 01.06.1997 to 29.12.1997.
Thereby, no illegality committed towards the petitioner-
workman. It was also pleaded that the workmen were
engaged by the Site In-charge on as and when required
basis and after completion of project work they were not
engaged as there was no work to perform and the opposite
party-Management No.3 is not engaging the casual worker
and disengaging them. All the workmen of Tr.I.D. Case
Nos.272 to 281 of 2001, pending before the C.G.I.T.,
Bhubaneswar, were engaged in Project Divisions at Aska,
Purusottampur, Balipadar and Digapahandi. The project
works at these places have already been completed and the
stations have been handed over to the Director
(Maintenance) ETR, Bhubaneswar since 1996-97. Further,
when there is no requirement of casual labours and also
any vacancy in the Maintenance Stations, they are not
bound to take the workmen to their Divisions. The project
work is not perennial in nature and after closure of the
project work the casual labour cannot claim for
continuance in the project and since there is no work of
project at Aska station, the question of engagement of
casual worker does not arise.
2.15 Initially, on the basis of the reference, as
indicated above, I.D. Case No 86 of 1999 (c) was registered
on the file of the State Industrial Tribunal, Bhubaneswar.
Subsequently, on formation of the CGIT-Cum-Labour
Court, Bhubaneswar in the year 2001, the same being
transferred to the learned CGIT, was renumbered as Tr.I.D.
Case No.272 of 2001. Before the Tribunal, the petitioner-
workman filed its claim statement, whereas the opposite
party-managements filed their respective written statement
with the pleadings as mentioned above. As provided under
Rule 10-B (4) of the Odisha Industrial Disputes Rules,
1959, the petitioner-workman filed his joint rejoinder to the
said written statements denying/disputing the averments
made in the said written statements. The petitioner-
workman specifically pleaded in the rejoinder that the
reference is very much maintainable and the action of the
opposite party-managements is not in compliance of the
principles laid down under Section 25-F , 25-G , 25-H and
25-N of the Industrial Disputes Act, 1947 before his
removal from service. Therefore, he is liable to be reinstated
with full back wages from the date of termination of his
service. It was also pleaded that after 31.05.1997, the
petitioner workman was engaged directly by the department
in the maintenance work in Aska station, where he had
been working in the project. There was no discontinuity in
service. His continuance in employment in maintenance
work was as per the oral orders of his superiors, which was
also the practice in the Department of Telecommunication
in Odisha since beginning in respect of DRM workers.
Numbers of workmen of project wing, much juniors to the
petitioner-workman, namely, Shri Birendra Parida,
Balakrishna Pandit, Ajaya Kumar Pradhan, Sudhansu
Panigrahi, G. Mukunda Sahoo, Kajal Kumar Jena, etc.,
have been taken in as regular workmen and are being
continued in employment. However, the petitioner-
workman was not paid wages from June, 1997 and was
ultimately refused employment. The project work is not
confined to a particular place or site. It is a work in
continuity spread over hundreds of kilometer and is
continuing since inception of the departmental activities in
the State and not only the project work, but also the project
division continues to function in the State. Project workers
are shifted from one side to another depending upon the
work need. As such, no closure notification has been given
nor any notice pay and compensation in accordance with
law are given to the workman. As a matter of fact law
discounts such alleged closure action without taking prior
permission of the Central Government under Section 25-O
or adherence to Section 25-F, 25-FFF and 25-N of the
Industrial Disputes Act, 1947 and the plea that the
Maintenance Division functions on taking working staffs on
deputation from telecom circle is not correct. Every division
has its own employees, no deputation is known to the
workman since it never existed. The alleged engagement of
so-called contractors is an artificial cover to perhaps escape
demand for regularization for making unconscious saving
at the cost of the labour and to hoodwink law. The
employment of 158 workmen in Tr.I.D. Case No. 268 of
2001 is untruthful and further it is also untruthful to say
that only the regular employees of telecom department run
the project. The departmental activities in Odisha consists
of three divisions, namely, project division, maintenance
division, circle division and all the divisions are interlinked
and the expression "casual worker" also a deception and
misuse. The present workman was never a casual worker,
but had been continuously working since his employment
in the year 1989 and plea of taking staff from telecom circle
on deputation to the maintenance division is equally
contrary to truth and the workman had put in continuous
service within the meaning of Section 25-B of Industrial
Disputes Act, 1947 from the beginning of his employment
and is now over aged for any employment anywhere and, as
such, his right to life and living protected under Article 21
of the Constitution, has been violated.
2.16 To the above pleadings, the Tribunal framed two
issues, such as:
"1. Whether the action of the 1st Management by
terminating the services of their workman Prasanna
Kumar Pattanaik is illegal and justified?
2. To what relief the Petitioner Workman is
entitled?"
2.17 In order to substantiate his pleadings, the
petitioner-workman examined the General Secretary of the
disputant Union as WW-1 and himself as WW No. 2 and
exhibited documents under Exts. 1 to 31. Similarly, the
opposite party-management no.2 examined only one
witness, namely, Sri Nabaghan Panda, an officer of the
maintenance division, as the sole MW and the documents
were marked as Exts. A to H through MW-1, whereas the
opposite party-management no.3 did not adduce any
evidence in the said ID Case. To fortify the stand take by
the petitioner-workmen, he had also filed his written notes
of submission on 17.08.2011.
2.18 The Tribunal passed the final award after about
18 months from the date of closure of the said case by
passing the award on 22.02.2013 in Tr.I.D. Case No. 272 of
2001 holding therein that even if the termination of the
services of the workman-petitioner is found to be illegal or
unjustified, he is not entitled to be reinstated in service
with back wages and he is only entitled for a lump sum
amount of Rs 1.00 lakh in lieu of reinstatement and in
addition to the same, he is entitled for notice pay and
retrenchment compensation in terms of Section 25-F of the
Industrial Disputes Act, 1947 from the opposite party-
management no.3 and no relief can be granted against the
opposite party-management no.2 on the plea that there is
no proof that the petitioner-workman had ever worked
under the Director/Microwave (Maintenance). Hence, this
writ petition.
3. Mr. Shibashish Misra, learned counsel appearing
for the petitioner contended that the project wing is a
permanent wing, which undertakes different projects
depending upon the requirement of circle and after a
project work is completed, the same is either being handed
over to circle or to the maintenance division for its future
operation. Since a period of more than 15 years has passed
and the work at the project at Aska, where the petitioner
was engaged, has been completed long back, denial of the
relief of reinstatement is erroneous, contrary to law, against
the weight of evidence on record and, as such, the same is
liable to be set aside. Thereby, the Tribunal has committed
an error apparent on the face of record having not
appreciated the evidence available on record. According to
him, after closure of the project work, the petitioner-
workman was assigned the duties in the maintenance work
at Aska station after 31.07.1997. Thereby, he is entitled for
reinstatement with all consequential benefits, since he was
illegally refused employment in contravention of Sec. 25-F,
25-G and 25-N of the Industrial Disputes Act, 1947. It is
further contended that being confronted with Ext.31,
though the management witness admitted that Ext.31 is
the circular relating to temporary status to workers, the
Tribunal failed to take note of the said admitted piece of
evidence while passing the impugned order, which cannot
be sustained in the eye of law.
3.1 It is further contended that the Tribunal, while
passing the impugned award, failed to appreciate the
admission of the MW-1 regarding Ext.31, 31/1 and 31/2,
wherein the Director Maintenance, Bhubaneswar, i.e., the
present opposite party-management no. 2 had requested
the AGM (Admn.) ETR, Kolkata for creation of temporary
status posts, enclosing the list of workers thereto, which
was written in response to letter of the AGM dated
04.05.2002 and Ext.31/2, which reflects name of the
petitioner-workman, indicating therein the numbers of days
worked by him and also date of removal from the service.
3.2 It is further contended that the Tribunal also
failed to take note of the admission made by MW-1 during
his cross-examination, wherein he admitted that it is a fact
that Ext.18 is the letter dated 13.03.2001 of the DGM
(Maintenance) ETR, Bhubaneswar addressed to the AGM
(Admn.) ETR, Kolkata, enclosing thereto a proforma-wise
list of casual worker working under the jurisdiction of the
maintenance division bearing names of the petitioner-
workman and nine others, and erroneously gave an
observation in the impugned award that no written order or
documentary proof is there to the extent that the petitioner-
workman was assigned the duties in the maintenance work.
Therefore, due to non-consideration of the same in its
proper perspective, the Tribunal has committed gross error.
According to him, Exts.13 and 15 prove that labourers/
workers, including the petitioner-workman, were working
under the project for installation job and handed over to the
ETR Maintenance recommending their case for conferment
of temporary status and regularization and the name of the
petitioner-workman finds place in the said list appended to
Ext.13, but the Tribunal failed to take note of the said
admitted evidence while passing the impugned award.
3.3 Though series of DOT orders, with regard the
conferment of temporary status and regulation of services
of casual mazdoors, were exhibited before the Tribunal and
marked as Exts. 9, 10, 17 and 31, but the same have not
been taken care of by the Tribunal in their proper
perspective.
3.4 Even though the documents were produced
under Exts.17, 19, 27, 28 and 29 to prove that juniors to
the petitioner-workman were conferred with temporary
status and were regularized, though the Tribunal came to a
finding as to violation of Section 25 G of the 1ndustrial
Disputes Act, 1947, but, while granting relief, the same has
not been taken care of. Thereby, the award so passed
cannot be sustained in the eye of law.
3.5. Though MW-1 during his cross-examination
admitted that the circulars issued by DOT (Department of
Telecommunication) are applicable to the petitioner-
workman and similarly placed workers working under the
Project, Maintenance and Circle Divisions and that in
Tr.I.D. Case No 268 of 2001 award has been passed to give
temporary status to 168 workers, including the petitioner-
workman, as mentioned in Ext.18, which has been
confirmed by this Court in its order dated 22.06.2007
passed in W.P.(C). No 9101 of 2003 and reaffirmed in Writ
Appeal No 53 of 2007, to prove that the counterparts of the
petitioner-workman, whose services were also transferred to
maintenance division under the opposite party no. 2, were
directed to be conferred with temporary status, but the
Tribunal failed to take note of the said fact in its proper
perspective. Therefore, impugned award does not sustain.
3.6 Learned counsel further contended that in view
of the decisions rendered by this Court in W.P.(C) No. 9101
of 2003 disposed of on 22.06.2007, the conferment of
temporary status could have been granted in favour of the
petitioner-workman, though not regularisation as the
petitioner stands on the same footing with the workmen in
the said writ petition. According to him, out of 168
workmen, those who had raised industrial disputes, the
petitioner-workman and nine others, being terminated from
service, were segregated from those 168, whose cause had
been espoused by the Union, had approached the Tribunal
by raising industrial disputes independently. So far as
grant of temporary status is concerned, that is akin to the
relief sought in W.P.(C) No. 9101 of 2003 disposed of
22.06.2007. Thereby, the said relief should have been
extended in favour of the petitioner, if not regularisation.
3.7 To substantiate his contention, learned counsel
for the petitioner has placed reliance on Daily Rated
Casual Labour Employed under P&T Department
through Bhartiya Dak Tar Mazdoor Manch and Ors. v.
Union of India (UOI) and Ors., AIR 1987 SC 2342;
Management of Director, Microwave (Maintenance) v.
Workmen & Ors., CLT (2007) SUPP. 70; The Management
of Director, Microwave ETR v. Workmen Rep. By
president, O.T.M.M. Sangha & Anr., unreported order
dated 07.11.2008 passed in W.A. No.53 of 2007;
Chairman-cum-Managing Director, BSNL & Others Vrs.
Punia Sahoo & Others, unreported Judgment dated
01.07.2011 passed in W.P.(C) No. 14715 of 2011; Interim
Order dated 08.05.2009 passed in SLP (Civil) 9790 of 2009
(Management of Director, Microwave ETR Vs. Workmen
Rep. By pres. O.T.M.M. Sangha & Anr.), confirming the
judgment of learned Single Judge, reported in CLT (2007)
SUPP. 70.
4. Mr. S.B. Jena, learned counsel appearing for
opposite party-management no.2, reiterated the stand
taken in the written statement filed before the Tribunal and
further contended that ID Case is not maintainable against
the opposite party-management no.2, i.e., Director
Microwave (Maintenance), now re-designated as Deputy
General Manager (Maintenance), ETR, as the petitioner nor
any of its association member is the employee nor engaged
as casual labourer under opposite party-management no.2
at any point of time and disputed the fact of engagement of
the petitioner-workman in Microwave Maintenance
Division. Therefore, contended that question of termination
of services by the management of Microwave Maintenance
Division does not arise. It is further contended that
Microwave Mazdoor Sangh is neither a recognized trade
union nor the recognized trade union of the telecom
department. Therefore, Prasanna Kumar Patnaik,
petitioner-workman is not an authorized person to raise the
dispute.
4.1 Learned counsel for opposite party-management
no.2 further contended that the petitioner-workman had
never been engaged by the opposite party-management
no.2 at any point of time. Therefore, the question of
payment of wages or any benefit under the retrenchment
law, on consideration of length of service, does not arise.
He also contended that the project work and maintenance
work are totally distinct and different and does not run
concurrently, as has been alleged by the petitioner-
workman. Therefore, the project workers have no right to
continue after closure of the project. As such, the
maintenance division has no power to appoint any staff. It
works by taking its working staff on deputation from the
territorial telecom circle in the State and sometimes used to
engage through contractors for carrying out the works. As
the opposite party-management no.2 had neither engaged
the workman at any point of time by any manner nor
retrenched, therefore, the relief sought as against the said
opposite party cannot be sustained.
5. Mr. P.R. Barik, learned counsel appearing for
opposite party-management no.3 endorsed the argument
advanced by Mr. S.B. Jena, learned counsel appearing for
opposite party-management no.2 and also reiterated the
same and contended that the petitioner-workman is not
entitled to get the relief sought and justifies the award
passed by the CGIT-cum-Labour Court. Thereby, he prays
for dismissal of the writ petition.
6. This Court heard Mr. Shibashish Misra, learned
counsel appearing for the petitioner-workman; Mr. S.B.
Jena, learned counsel appearing for opposite party-
management no.2 and Mr. P.R. Barik, learned counsel
appearing for opposite party-management no.3 in hybrid
mode and perused the records. Pleadings have been
exchanged between the parties and with the consent of
learned counsel for the parties, the writ petition is being
disposed of finally at the stage of admission.
8. Admittedly, the opposite party-managements
have not challenged the award passed by the CGIT-cum-
Labour Court. The CGIT, for a just and proper adjudication
of the case, had framed two issues, as mentioned above. So
far as issue no.1 is concerned, it had come to a definite
finding that the action taken by the 1st party-managements
in terminating the services of Shri Prasanna Kumar
Pattnaik, the 2nd party-workman, cannot be held to be legal
and justified. Thereby, answered the issue no.1 against the
1st party-managements. So far as issue no.2 is concerned,
it was also directed that the petitioner-workman shall be
offered re-employment by the 1st party-management no.2
in case any casual worker is employed by it in future in
accordance with the provisions of Section 25-H of the
Industrial Disputes Act, 1947.
9. Since both the issues are answered in favour of
the petitioner-workman and the CGIT found that
termination of the services of the petitioner-workman
cannot be held as legal and justified, the consequential
corollary would be that the petitioner-workman should have
been reinstated in service with full back wages as well as
temporary status and permanent absorption in the pay roll
of the opposite party-managements.
10. While dealing with issue no.2, the Tribunal held
that the petitioner-workman shall be offered re-
employment by the 1st party-management no.2 in case any
casual worker is employed by it in future in accordance
with the provisions of Section 25-H of the Industrial
Dispute Act, 1947. Thus, the stand of the petitioner-
workman seeking for partial quashing of the award and
modification thereof seeking for reinstatement with full back
wages as well as temporary status and permanent
absorption has some justification, in view of the judgment
rendered by this Court in Management of Director,
Microwave (Maintenance) v. Workmen and Ors. [W.P.(C)
No.9101 of 2003, decided on 22.06.2007], wherein
grievances of 168 employees were espoused by the Union
and out of them, the petitioner-workman and 9 others,
whose services were retrenched, were excluded from the list
and they filed separate Industrial Dispute cases, wherein
the Tribunal has passed the impugned award. But, so far as
the claim of 158 employees is concerned, the Tribunal
passed the award dated 19.05.2003 in Tr.I.D. Case No.268 of
2001 directing the opposite party-managements to give
temporary status to the petitioner-workmen therein and
consider their case for regularization, if posts are created
and sanctioned in future. Therefore, learned Single Judge,
while adjudicating the matter, came to a definite conclusion
and directed that the number of year of service rendered by
each workman represented by opposite party-Union be
calculated and those, who satisfy the requirements for
temporary status in terms of the Scheme, be conferred with
such status. But so far claim of regularization of services is
concerned, the same was denied taking into consideration
the judgment of the apex Court in Secretary, State of
Karnataka & Ors. v. Uma Devi & Ors., AIR 2006
SC1806, wherein the Constitution Bench has referred to Dr.
D.C. Wadhwa and Ors. V. State of Bihar and Ors., 1987
(1) SCR 798 and Dr. Rai Shivendra Bahadur v. The
Governing Body of the Nalanda College, (1962) SUPP. 2
SCR 144. In that case, refusal to give promotion to the writ
petitioner therein as the Principal of a College was the
subject of consideration and the Court held that a writ of
mandamus may be issued to compel the authorities to do
something, it must be shown that the statute imposes a
legal duty on the authority and the aggrieved party had a
legal right under the statute or rule to enforce it. This
classical position continues and mandamus could not be
issued in favour of the employees directing the Government
to make them permanent since the employees cannot show
that they have an enforceable legal right to be permanently
absorbed or that the State has a legal duty to make them
permanent. Therefore, learned Single Judge has come to a
definite finding that no direction can be issued for
regularization of services and accordingly set aside a part of
the order of the Tribunal and directed the management to
consider regularization of the workmen, if posts are
created/sanctioned in future and it is for the management
to decide as to whether such workmen should be
regularized in posts they are holding or not and the Court
cannot issue mandamus directing regularization.
11. Mr. S. Mishra, learned counsel appearing for the
petitioner-workman contended fairly that so far as the claim
for permanent absorption and regularization of services in
the pay roll of the management is concerned, the petitioner-
workman has abandoned such prayer and in course of
argument has confined his relief to grant of temporary
status as the petitioner-workman stands on the same
footing as the petitioners in the judgment rendered by the
learned Single Judge in Management of Director,
Microwave (Maintenance) ETR (supra). It is further
contended that the said judgment of the learned Single
Judge was challenged before the Division Bench of this
Court in W.A. No.53 of 2007 by the management and the
Division Bench of this Court, vide order dated 07.11.2008,
dismissed the said W.A. and upheld the judgment rendered
by the learned Single Judge. Against the said order, the
management preferred SLP(C) No.9790 of 2009 and the
apex Court, vide order dated 08.05.2009, passed the
following order:-
"Leave granted.
No stay.
Appeal to be heard on the paper book.
Pleadings be completed in the next 12 weeks.
Interim Judgment of the learned single Judge shall be
worked out."
Finally, the said SLP was disposed of by confirming the
order of the learned Single Judge in W.P.(C) NO.9101 of
2003. Thereby, it is contended that since the petitioner-
workman stands on the same footing, he should be given
temporary status relying upon the judgment of the Division
Bench of this Court in Chairman-cum-Managing Director,
Bharat Sanchar Nigam Ltd. v. Sri Punia Sahoo (W.P.(C)
No.14715 of 2011, decided on 15.07.2011).
12. Mr. S.B. Jena, learned counsel appearing for the
opposite party-management no.2 and Mr. P.R. Barik,
learned counsel appearing for opposite party-management
no.3 dispute the fact of similarity of the petitioner-workman
with the workmen in W.P.(C) No.9101 of 2003. But, to
establish the similarity of the petitioner-workman with the
workmen of W.P.(C) No.9101 of 2003, a comparison
statement has been furnished by Mr. S. Mishra, learned
counsel appearing for the petitioner-workman.
Retrenchment Temporary Status and
Regularization
Award dtd.22.02.2013 W.P.(C) No. 9101 of 2003
passed in I.D.Case No. (Learned Single Judge)
272 of 2001.
Contention of the
Contention of Workmen Workman
1. Project work and 1. Project or
maintenance are no confined maintenance or circle is
to specific areas or location. inter-transferable -these
are the three activities of
2. The workers engaged in the eastern telecom region.
the project or in the
2. The activity of
maintenance work get shifted
telecom system starts from
from place to place as per
the project.
requirement.
3. After the project work
3. The petitioner-Workman is over, it is handed over
was placed at the Microwave to the maintenance section.
Project till 31.05.1997 and The workmen working in
after completion of the project the project are a l l o w e d
work he was assigned duties t o continue under
in the maintenance work. the maintenance
department.
Contention of the Contention of the
Management Management
1. Reference is not 1. Workmen are working
maintainable as the workman through a contractor on
is not an employee of the contract basis.
Management and never
engaged by them. 2. T h e pr o jec t an d
m ain ten anc e divisions
2. Microwave Project and are two separate and
Maintenance are two distinct wings of the
separate and independent telecom department.
wing.
3. The project work in 3. The workmen never
Odisha is done through worked in the
project divisions and after maintenance.
completion of the project; the 4. Initially the Union
systems are handed over to represented 168 Workmen
the maintenance division. for which the reference
The Casual Labourers was made.
engaged in the Project
Division cannot be engaged 5. Out of the 168
in another maintenance Workmen 10 raised
division after closure of the individual disputes for
Project Work. which separate reference
4. The 158 workmen in T.R. was made
I.D. Case No.268 of 2001
are deployed by the
Contractor in different
station and are paid by the
Contractor. There is no
employer and employee
relationship between the
Management and the
Petitioner, and also the 158
Workmen.
Findings of the Labour
Court
1. Issues- Whether the
action of the 1st Party
Management by terminating
the services of the workman
is legal and justified?
(a) The Management has
not complied with the
provision of Section 25-F of
the I.D. Act. Therefore, the
retrenchment of the Workman
who has rendered nearly 9
years of continuous service is
illegal.
2. What relief the 2nd
Party Workman is entitled ?
(a) The work at the project
has been completed long back
and he cannot be given the
relief of reinstatement.
(b) Rs. 1,00,000/-
compensation in the lieu of the
reinstatement.
13. On analysis being made to the fact mentioned
above, it is made clear that there is no dissimilarity between
the fact of the petitioner-workman vis-à-vis the fact of the
workmen in W.P.(C) No.9101 of 2003. Thereby, the
judgment passed by the learned Single Judge having been
confirmed by the apex Court, the ratio decided in the said
case may have application to the present case.
14. In the above premises, even though learned
counsel for the petitioner-workman has abandoned the
claim of the petitioner-workman for regularization and
permanent absorption, as directed by the Tribunal while
holding the termination of the petitioner-workman as illegal
and unjustified, but the claim for conferment of temporary
status on the petitioner-workman is justified, in view of
ratio decided by this Court in W.P.(C) No.9101 of 2003,
which has been confirmed by the apex Court, when there is
no dispute that the petitioner-workman is the employee of
the opposite party-managements, but, however, the
temporary status shall be conferred on the petitioner-
workman depending upon the number of years of service
rendered by him with reference to the Scheme made
pursuant to the decision of the apex Court. Thereby, this
Court modifies the impugned award passed by the Tribunal
to the aforesaid extent.
15. Accordingly, the writ petition is allowed in part.
But, 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 8th September, 2023, Arun/Alok
Signature Not Verified
Digitally Signed
Signed by: ARUN KUMAR MISHRA
Designation: ADR-cum-Addl. Principal Secretary
Reason: Authentication
Location: Orissa High Court
Date: 08-Sep-2023 16:14:28
