Orissa High Court
Odisha Small Industries vs Bibekananda Nayak .... Opposite Party on 9 January, 2024
Author: Arindam Sinha
Bench: Arindam Sinha, M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.1007 of 2023
Odisha Small Industries .... Petitioner
Corporation Ltd., Cuttack.
-versus-
Bibekananda Nayak .... Opposite Party
Learned advocates appeared in this case:
For petitioner : Mr. Jitendra Kumar Mohapatra, Advocate
For Opp. Party : Ms. Saswati Mohapatra, Advocate
W.P.(C) No.10101 of 2023
Bibekananda Nayak .... Petitioner
-versus-
Odisha Small Industries .... Opposite Party
Corporation Ltd., Cuttack.
Learned advocates appeared in this case:
For petitioner : Ms. Saswati Mohapatra, Advocate
For Opp. Party : Mr. Jitendra Kumar Mohapatra, Advocate
CORAM:
JUSTICE ARINDAM SINHA
JUSTICE M.S. SAHOO
Page 1 of 6
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JUDGMENT
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Dates of hearing: 10th May, 2022, 16th May, 2023
and 9th January, 2024
Date of judgment: 9th January, 2024
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ARINDAM SINHA, J.
1. The management and the workman have respectively filed the
writ petitions. W.P.(C) no.1007 of 2023 is by the management and
W.P.(C) no.10101 of 2023 by the workman. In both are impugned
award dated 4th December, 2021 of the Industrial Tribunal. Mr.
Mohapatra, learned advocate appears for the management and Ms.
Mohapatra, learned advocate, for the workman.
2. By the award there was direction for payment of
compensation assessed at ₹3,00,000/- in lieu of reinstatement and
back wages. Mr. Mohapatra submits, the workman was on contract
and when his client did not renew the contract, his service stood
terminated. In the circumstances, it was not retrenchment. The
situation fell under exception (bb) in definitions section 2(oo),
Industrial Disputes Act, 1947.
3. Ms. Mohapatra submits, it was a clear case of retrenchment.
Her client being, at retrenchment with effect from 28th February,
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2018, only 32 years old there should have been direction for
reinstatement with full back wages.
4. She submits, her client had applied pursuant to notice
disclosed as annexure-1 to her client's writ petition, in which
requirement was for the application to reach the Managing Director
on or before 24th April, 2012. The contractual appointment was said
to be for supervision of project work in the posts of Supervisor,
Assistant Manager and Data Entry Operator. Her client was appointed
as Area Sales Officer, clearly outside the project cited in the
advertisement. Hence, when her client demanded government
approved scale of pay there was allegation of non-performance and
termination.
5. On query from Court we have ascertained from Mr.
Mohapatra that his client is a state enterprise. It should be model
employer. However, it transpires that having embarked on a
procedure for recruitment on contract basis pursuant to an
advertisement, the workman having applied was made to sign a
contract for being engaged otherwise than as assistant manager, in an
inferior post of area sales officer. There was no question raised
regarding maintainability of the dispute. Mr. Mohapatra brings to our
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notice that the workman had filed affidavit dated 26th July, 2023
saying he would not claim compensation in future if he is reinstated in
service forthwith to submit, the contention militates against the claim
for compensation. In impugned award reason was given for directing
compensation on finding that his client had already engaged other(s).
In the circumstances, impugned award be set aside on allowing his
client's petition and dismissing the writ petition of the workman.
6. The management having engaged the workman on contract
basis otherwise than pursuant to the advertisement, appears to be a
situation where the workman being in an inferior position was
dominated to accept the contractual engagement. Be that as it may it
also appears from impugned award that stand subsequently taken by
the management was contrary to it earlier having found service of the
workman to be up to the mark and him having received letter of
appreciation. The turn round was for to say his service was
unsatisfactory and therefore, the contract not to be renewed. The
tribunal relied on judgment of the Supreme Court in Bharat Sanchar
Nigam Limited v. Bhurumal reported in (2014) 7 SCC 177,
wherein said Court declared the law on cases where there should be
compensation in lieu of reinstatement and back wages as most
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appropriate and in others, where there should be direction of
reinstatement with back wages.
7. As aforesaid, we are convinced the workman was in an
inferior position and in need of work, for him to have accepted
contractual engagement in a post below the one advertised and in
response to which he had applied. Our conviction is reinforced by the
affidavit dated 27th July, 2023 filed by the workman, to demonstrate
his pressing need for work and earning. It was an offer made to forgo
the compensation in getting reinstatement. The management is
consistent in denying reinstatement and compensation.
8. We do not find reason to interfere with impugned award. On
careful perusal of facts found by the tribunal we are of view that
paragraph-25 in Bhurumal (supra) stands attracted for application.
Conduct of the management, deemed to be model employer, in
inviting application for post of assistant manager, to select applicant
workman as area sales manager must be said to be practice unfair. In
the circumstances, we modify impugned award with direction for
forthwith reinstatement. Considering said affidavit dated 27th July,
2023 we direct lump sum compensation in lieu of back wages for
months subsequent to the affidavit, commencing from August, 2023
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till 31st January, 2024 on last drawn consolidated remuneration of
₹10,000/- per month at aggregate ₹60,000/-. The workman is to be
reinstated from 1st February, 2024 on terms appropriate.
9. With above directions, the writ petitions are both disposed of.
( Arindam Sinha )
Judge
( M.S. Sahoo )
Judge
Sks
Designation: PERSONAL ASSISTANT
