Nabakishore Sahoo vs State Of Odisha And Others
2023 Latest Caselaw 11546 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK


                W.P.(C) No.30191 OF 2023

(An application under Article 226 of the Constitution of India)


  Nabakishore Sahoo                                 ...     Petitioner


                                -versus-


  State of Odisha and others                         ...     Opposite Parties



  Advocates appeared in the case through hybrid mode:


    For Petitioner                             : Mr. Kunja Sundar Das,
                                                 Advocate

                                -versus-


    For Opposite Parties
                                              : Mr.Iswar Mohanty,
                                                A.S.C.

    --------------------------------------------------------------------------
    CORAM:

                 JUSTICE SASHIKANTA MISHRA

                           JUDGMENT

22.9.2023.

Sashikanta Mishra,J. The Petitioner has approached this Court

seeking the following relief;

"Therefore, it is humbly prayed that, this Hon'ble Court may graciously be placed to issue Rule Nisi Calling upon the Opp.Parties to show cause as to why order dated 11.7.2022 and 30.6.2016 shall not be quashed and as to why the Petitioner's legitimate dues shall not be disburse with 12% interest from the date of disengagement order."

2. The Petitioner's case is that pursuant to an advertisement

issued by the Rogi Kalyan Samiti (RKS), District Headquarters

Hospital (DHH), Nayagarh on 29th January, 2010, he attended the

walk-in interview conducted on 3rd February, 2010 for selection

as Ambulance Driver, DHH, Nayagarh. He was issued with an

engagement letter by the Asst. District Medical Officer (Medical)-

cum-Member Secretary, RKS, DHH, Nayagarh on 27th April,

2010. Thereafter he joined and rendered service as Ambulance

Driver continuously to the satisfaction of his authorities. While

working as such, by order dated 30th June, 2016, the Addl. District

Medical Officer (Med), Nayagarh suddenly cancelled the

engagement of the Petitioner on the ground that his services were

no longer required as decided in the Governing Body Meeting of

RKS held on 3rd April, 2016. He submitted several

representations and also approached this Court in W.P.(C)

No.12003/2016 in which notice was issued. He also approached

this Court in another Writ Petition being W.P.(C).

No.30488/2021. By order dated 7th October, 2021, a coordinate

Bench of this Court disposed of the Writ Petition directing the

C.D.M.O., Nayagarh to consider the representation submitted by

the Petitioner and to pass orders in accordance with law within a

stipulated time. Since the representation remained pending despite

such order of this Court the Petitioner filed CONTC

No.3919/2022, which was disposed of on 8th July, 2022 directing

the Opposite Party-contemnor to comply with the order passed in

the Writ Petition within two months. Pursuant to such order the

C.D.M.O., Nayagarh vide order dated 11th July, 2022 rejected the

representation of the Petitioner mainly on the ground that he was

engaged on daily wage basis earlier and no such posts are required

as on date. Said order, copy of which has been enclosed as

Annexure-8, is impugned in the present Writ Petition.

3. Heard Mr.K.S.Das, learned counsel for the Petitioner and

Mr. I. Mohanty, learned Addl. Standing Counsel for the State.

4. It is submitted by Mr. K.S.Das that the Petitioner, despite

rendering satisfactory performance for a long time was suddenly

disengaged causing him immense hardship. Further, there is no

blemish in his career. Moreover he has been driving the

Ambulance of the Hospital even till date which implies that the

work of an Ambulance Driver is still necessary. It is further

submitted by Mr. Das that since the Petitioner had worked from

March, 2015 till rejection of his representation on 11th July, 2022,

he is entitled to wages/remuneration for the said period, i.e. for 16

months, but the same has not been paid to him as yet.

5. Mr. I. Mohanty, learned Addl. Standing Counsel for the

State, submits that the Petitioner's engagement was purely on

daily wage basis without creating any right of regular employment

on him. Moreover, his present engagement is through outsourcing

agency and therefore, it cannot have any bearing on the claim

made for re-engagement.

6. Perusal of the advertisement, copy of which has been

enclosed as Annexure-1, reveals that the same was issued to

engage four Attendant-cum-Sweeper, one Gardener and one

Ambulance Driver by the RKS on the basis of a walk-in

interview. Obviously, such engagement was not intended to be a

regular appointment in Government. Further, the engagement

order dated 27th April, 2010 (Annexure-2) also reveals that such

engagement was on daily wage basis under FRU grant under the

RKS. Therefore, by no stretch of imagination, it can be said that

the Petitioner was appointed as a regular Government servant so

as to acquire any vested right. Moreover, copy of the order of

disengagement (Annexure-3) shows that the engagement was

cancelled as the service of the Petitioner was no more required.

Such decision was taken by the Governing Body of the RKS.

7. This Court finds no reason to find fault with such decision

since it is for the employer to decide whether to continue with

such daily wage engagement or not. To such extent therefore, the

decision to disengage the Petitioner cannot be questioned.

Consequently, the order of rejection of his representation

(Annexure-8) also cannot be questioned. Significantly, it has been

stated at the bar that the Petitioner is presently engaged through an

outsourcing agency. This obviously implies that the RKS took a

conscious decision to stop the practice of engaging persons on

daily wage basis and to depute the work to an outside agency.

This is a policy decision taken by the Samiti, which in the absence

of anything on record to show that it was actuated with any

malafides, is not open to judicial review. The prayer of the

Petitioner for rejection of the impugned order is hence, not

tenable.

8. However, if the Petitioner has rendered actual service even

as a daily wage worker, he has to be remunerated appropriately. It

is submitted by Mr. Das that the Petitioner has not been paid his

wages from March, 2015 to June, 2016, i.e. for 16 months. No

reason has been cited for withholding the payment. It is submitted

that there is adequate evidence in the form of muster roll

maintained by the RKS, which would clearly show that the

Petitioner had rendered work during the aforesaid period, but has

not been paid. In the absence of any material on record to show

that the Petitioner was not entitled to such payment, the employer

obviously is liable to pay the dues, which ought to have been paid

at the relevant time.

9. For the foregoing reasons therefore, while not being

inclined to grant the relief claimed for quashment of the impugned

order, this Court is inclined to allow the Writ Petition in part by

directing the Chief District Medical Officer, Nayagarh (Opposite

Party No.4) to disburse the unpaid wages to the Petitioner within a

period of two weeks from the date of production of certified copy

of this order by the Petitioner, if there is no other legal

impediment, failing which the amount shall carry interest @ 9%

per annum till the date of payment.

..................................

Sashikanta Mishra, Judge

Ashok Kumar Behera

Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Designation: A.R.-CUM-SR.SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Sep-2023 11:22:33