Orissa High Court
Managing Director vs Brahmananda Biswal on 10 April, 2025
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 16-Apr-2025 11:14:41
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 3985 OF 2023
(An application under Articles 226 and 227 of the Constitution of India)
*****
Managing Director, Odisha Forest Development
Corporation Limited (OFDC),
A/8, Kharvel Nagar, Bhubaneswar,
Dist: Khordha ...... Petitioner
-Versus-
Brahmananda Biswal,
son of late Giridhari Biswal,
AT: Biswal Sahi, PO: Palasahi,
Via: Pipili, PS: Nimapara, Dist: Puri
....... Opp. Party
Advocates appeared:
For Petitioner : Mr.Somanath Mishra, Advocate
For Opp. Party : Mr. Susanta Dash, Advocate
CORAM :
MR. JUSTICE K.R. MOHAPATRA
MR. JUSTICE SANJAY KUMAR MISHRA
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Heard and disposed of on 10.04.2025
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JUDGMENT
By the Bench;
1. This matter is taken up through hybrid mode.
2. Petitioner-Management in this writ petition seeks to
assail the Order dated 7th December, 2022 (Annexure-3) passed
by learned Labour Court, Bhubaneswar in Industrial Dispute
W.P.(C) No. 3985 OF 2023
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 16-Apr-2025 11:14:41
Misc. Case No.27 of 2020, thereby allowing an application under
Section 33-C(2) of the Industrial Disputes Act, 1947 (for brevity
'the Act') filed by the Workman-Opposite Party and directing the
Petitioner-Management to pay a sum of Rs.2,62,980/- towards
Un-utilized Leave Salary (ULS) to the Workman. It is also
directed that in the event the Petitioner-Management fails to pay
the aforesaid entitlement to the Workman within two months of
the said order it would carry interest at the rate of 6% per annum.
3. Mr. Mishra, learned counsel for the Odisha Forest
Development Corporation (OFDC)-Management submits that the
Opposite Party-Workman was working as Deputy Sub-divisional
Manager under the Management and retired from service on 28 th
February, 2013 on attaining the age of superannuation. Opposite
Party-Workman claiming that he was not paid his DA at the rate
of 13/16%, arrear RACP so also the ULS, filed an application
(ID Misc. Case No.27 of 2020) under Section 33-C (2) of the Act
before learned Labour Court after seven years from the date of
his superannuation. During pendency of ID Misc. Case No.27 of
2020, Petitioner-Management paid his DA and arrear RACP.
Thus, learned Labour Court directed for payment of ULS to the
Opposite Party-Workman.
3.1 Mr. Mishra, learned Counsel further submits that on the
date of superannuation, the retiral benefits, including ULS, should
be paid to the employee subject to submission of No Due
Certificate (NDC). Although gratuity amount was paid to the
Workman, but in view of the observation in the Special Audit
W.P.(C) No. 3985 OF 2023
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 16-Apr-2025 11:14:41
Report to the effect that the dues recoverable from the Opposite
Party- Workman was much more than his retiral dues, his ULS of
Rs.2,62,980/- was withheld. Learned Labour Court, relying upon
the case law in Bhagirathi Jena Vs. Board of Directors, OSFC
and others; 1999 SCC (L&S) 804, directed the Petitioner-
Management to pay the aforesaid ULS. The ratio in the case of
Bhagirathi Jena (supra) is not applicable to the instant case, as in
the said case, in absence of any provision in the Regulations,
Disciplinary Proceeding was initiated against said Mr. Jena, the
ex-employe of OSFC, after the date of his superannuation. But in
the instant case, no such disciplinary proceeding was initiated
against the Opposite Party-Workman. The retiral benefit of ULS
could have been released in favour of the Opposite Party on
production of NDC, which the Workman failed to comply. Thus,
there is no illegality in withholding the ULS of the Workman. This
material aspect was not taken into consideration by learned Labour
Court while adjudicating the matter. Hence, the impugned order is
not sustainable and is liable to be set aside. The matter should be
remitted back to learned Labour Court for fresh adjudication of the
matter keeping in mind the aforesaid position of law.
4. Mr. Dash, learned counsel for the Opposite Party-
Workman, refuting such submission, contended that at para-7 of
the Show Cause filed by the Management-Petitioner, it has been
categorically stated that due to non-receipt of the certificate from
the Division Office where the Opposite Party (Applicant therein)
was working during his entire service period as well as non-
W.P.(C) No. 3985 OF 2023
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 16-Apr-2025 11:14:41
receipt of the final NDC form Divisional Manager, Bhubaneswar
(Plantation) Division, wherefrom the Opposite Party got
superannuated, his terminal benefits, except gratuity, could not
be settled. He also referred to the observation of learned Labour
Court to the effect that "the OPW No.1 has stated at para-18 that
he cannot say if any communication was made to the applicant
regarding the non-submission of NDC against the applicant till
date, for which the outstanding dues of the applicant are not
settled." It is his submission that at no point of time any
communication was made to the Opposite party-Workman by the
Management for submission of NDC. In view of the categorical
admission of the Management Petitioner in its Show Cause to the
effect that NDC was required to be submitted by the Division
Offices and the Divisional Manager, Bhubaneswar (Plantation)
Division, the Opposite Party-Workman should not be made to
suffer. He, therefore, submits that learned Labour Court has
rightly held that the Opposite Party-Workman is entitled to ULS.
5. Heard learned counsel for the parties; perused the case
record. It is apparent from the submissions of learned Counsel for
the parties that although the application under Section 33-C(2) of
the Act was filed claiming unpaid DA at the rate of 13/16%
arrear RACP and ULS, during pendency of the said application,
DA and arrear RACP, as claimed, was paid. Thus, learned
Labour Court has categorically held that the Opposite Party-
Workman is not entitled to any amount towards DA and arrear
W.P.(C) No. 3985 OF 2023
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 16-Apr-2025 11:14:41
RACP, as claimed by him, as the same was already paid after
filing of the aforesaid application.
6. So far as un-paid ULS is concerned, Mr. Mishra, learned
Counsel for the Petitioner-Management emphatically submitted
that due to non-submission of NDC, ULS could not be settled
and released in favour of the Opposite Party. It is more so
because of the observation made in the Special Audit Report. But
the contention of the Management at para-7 of its Show Cause is
contrary to the same. For ready reference, the averments made at
para-7 of the Show Cause filed by the Management, is
reproduced here under:-
"7. That, due to non-receipt of no dues certificate
from the Division Offices where the applicant was
working during his entire service period as well as non-
receipt of final NDC from the Divisional Manager,
Bhubaneswar (Plantation) Division where from he
retired, his terminal benefits except Gratuity could not be
settled. It may be noted here that as per OFDC Letter
No.32080 dtd. 18.11.2002 the Corporations established
outstanding amount will be recovered by way of
adjustment from the ULS and arrear salary if any."
(Emphasis Supplied)
From the above, it is clear that ULS of the Opposite Party could
not be settled due to non-submission of the NDC by the Division
Offices where the Applicant/Opposite Party was working during
his entire service period as well as non-receipt of NDC from the
Divisional Manager, Bhubaneswar (Plantation) Division. There
W.P.(C) No. 3985 OF 2023
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 16-Apr-2025 11:14:41
is also no material on record to appreciate that any
communication was made to the Opposite Party for submission
of NDC. Be that as it may, the Opposite Party-Workman was not
at all required to submit the NDC as would be clear from the
averments made by the Management at para-7 of its Show Cause
(quoted supra). Thus, no fault can be attributed to the Workman
for non-submission of the NDC by the different Divisions of the
Petitioner-Management. It also appears from the letter under
Annexure-6 filed along with Affidavit of the Petitioner-
Management dated 23.02.2024 that the Workman has been paid a
sum of Rs.32,310/- towards ULS during pendency of the present
writ petition. Thus, it can be said in no ambiguous terms that the
Opposite Party-Workman was not required to submit the NDC
and further he is entitled to ULS. Law is well-settled that no
action can be taken against an employee on the basis of
observation in the Audit Report without affording an opportunity
to the concerned employee to explain the same following due
procedure of law. In the instant case, no such procedure appears
to have been followed.
7. Further, the Opposite Party-Workman was superannuated
from service in 2013, but the ULS of Rs.32,310/- was paid
during November, 2023, which is much after his retirement. In
absence of any adjudication there could not have been any
deduction from the ULS of the Opposite Party- Workman.
8. On cumulative assessment of the discussions made
above, this Court is of the considered opinion that learned Labour
W.P.(C) No. 3985 OF 2023
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 16-Apr-2025 11:14:41
Court has made no error in holding that the Workman-Opposite
Party is entitled to Rs.2,62,980/- towards ULS. Hence, we are not
inclined to interfere with the impugned under
Annexure-3.
8. At this stage, Mr. Mishra, learned counsel for the
Petitioner-Management submits that learned Labour Court, while
adjudicating the application under Section 33-C (2) of the Act,
has categorically observed that "However, if the alleged
recoverable amount will be finally decided by the OFDC through
its Triangular Committee in view of the special audit report, the
OP is at liberty to recover the said amount from the applicant, if
any, by due process of law. But, the OP should not deprive the
present old aged applicant from his legal rights as it would be
against the principle of natural justice." As such, the
Management was justified to deduct the recoverable amount from
the Applicant and paid him Rs.32,310/- under Annexure-6
towards ULS.
9. The action of the Management in deducting a substantial
amount and paying a meagre amount of Rs.32,310/- to the
Opposite Party towards ULS after ten years of his retirement,
during pendency of the present writ petition, without following
due procedure of law is without jurisdiction and unjustified, as no
proceeding whatsoever, was initiated against the Workman
before his superannuation on the basis of the alleged observation
made in the Special Audit Report.
W.P.(C) No. 3985 OF 2023
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 16-Apr-2025 11:14:41
10. In view of the discussions made above, the Opposite
Party-Workman is entitled to Rs.2,62,980/-, as computed by the
learned Labour Court, which should have been paid to him on the
date of his superannuation or at least within two months from the
date of passing of the order under Annexure-3, which is
impugned herein. Hence, there is no substance in the argument of
Mr. Mishra, learned counsel for the Petitioner-Management.
11. Accordingly, the writ petition, being devoid of any merit,
stands dismissed. However, in the facts and circumstances, there
shall be no order as to cost.
(K.R. Mohapatra)
Judge
(S.K. Mishra)
Judge
Orissa High Court, Cuttack,
Dated 10th April, 2025/s.s.satapathy
W.P.(C) No. 3985 OF 2023
