Samal Barrage Employees' vs State Of Odisha And Others .... Opposite ...
2025 Latest Caselaw 10684 Ori

Orissa High Court

Samal Barrage Employees' vs State Of Odisha And Others .... Opposite ... on 1 December, 2025

Author: Biraja Prasanna Satapathy

Bench: Biraja Prasanna Satapathy

AFR         IN THE HIGH COURT OF ORISSA AT CUTTACK

                           W.P.(C) No.9325 of 2022

        In the matter of an application under Articles 226 of the
      Constitution of India and Odisha Service Code.
                                         ..................

       Samal Barrage Employees'                    ....                    Petitioner
       Union
                                             -versus-

       State of Odisha and Others                  ....           Opposite Parties


              For Petitioner           : Mr. B.S. Tripathy (1), Sr. Advocate
                                         along with Mr. A. Sahoo, Advocate

               For Opp. Parties          :       Mr. A. Tripathy, AGA



      PRESENT:

           THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
      ---------------------------------------------------------------------------------
       Date of Hearing:17.10.2025 and Date of Judgment:01.12.2025
      --------------------------------------------------------------------------------

         Biraja Prasanna Satapathy, J.

1. Heard Mr. B.S. Tripathy(1), learned Senior

Counsel along with Mr. A. Sahoo, learned counsel for

the petitioner and Mr. A. Tripathy, learned Addl. Govt.

Advocate for the State.

// 2 //

2. The present Writ Petition has been filed inter alia

challenging order dated 31.12.2020, so passed by the

Govt.-O.P. No.1 under Annexure-25. Vide the said

order, claim of the petitioner-Union for regularization of

the members of the petitioner-Union was rejected.

3. It is the case of the petitioner-Union that 1224

members of NMRs employees working in Samal Barrage

Project, approached the State Administrative Tribunal

by filing different Original Applications bearing O.A.

Nos.1560(C)/ 1553(C)/ 1562(C)/1651(C)/ 1570(C) &

1781(C) of 1993 seeking regularization of their services.

All the original applications were disposed of by the

Tribunal vide a common judgment dated 02.06.1995

inter alia with the following direction:-

"29. We would accordingly dispose of the original applications with the following directions;

The applicants be brought over to work-charged establishment with effect from 02.09.1993 on which date the first original application No. 1553(C) of 1993 was failed. With effect from the said date they be treated as employees borne in work-charged establishment, not only for the purpose of their salary but also in respect of. other service conditions. They can be retrenched only in accordance with law. They cannot be replaced by persons drawn from other sources. They be paid salary at the initial stage in the scale of pay proved to their counterparts in the work-charged establishment. If in any case, total emoluments per month received at present by any of them exceeds the minimum in the scale his

// 3 //

counterparts in the work-provided charged establishment, the to same shall be protected.

We refuse the claim of the applicants for regularization or absorption in permanent establishment."

3.1. It is contended that common judgment passed by

the Tribunal on 02.06.1995 in all the aforesaid 6 (six)

Original Applications, was challenged by the State

before the Hon'ble Apex Court in SLP(Civil) No.5526-31

of 1996. However, during pendency of the matter before

the Hon'ble Apex Court taking into account the

Resolution issued by the Finance Department on

15.05.1997, wherein it was decided to regularize the

services of such NMR/DLR work charge employees on

completion of 10 years with preference to the work

charged employees, Hon'ble Apex Court vide order

dated 26.02.1999, directed the State-authority to file

an affidavit within a period of 4 (four) weeks with

regard to implication of the scheme issued vide Finance

Department Resolution dated 15.05.1997.

3.2. It is also contended that since no such affidavit

was filed by the State, SLP(Civil) No.5526-31 of 1996

were dismissed vide order dated 26.09.1999 under

// 4 //

Annexure-4. Not only that Review Petition filed seeking

review of the order was also dismissed vide order dated

19.04.2000 under Annexure-5. It is contended that

after dismissal of the matter before the Hon'ble Apex

Court vide order under Annexures-4 & 5, Govt.-O.P.

No.1 decided to implement the common judgment

passed by the Tribunal on 02.06.1995 and all the

applicants in the said Original Applications were

brought over to the work charge establishment w.e.f.

02.09.1993 vide order dated 24.05.2001 under

Annexure-6.

3.3. Learned Senior Counsel appearing for the

petitioner-Union contended that after being so brought

over to the work charge establishment w.e.f.

02.09.1993, when the employees affiliated to the

Union, were declared surplus and were issued with the

notice of termination, such action of the opp. Parties

was assailed by the employees along with Union by

filing O.A. Nos.122(C) to 126(C) of 2002. The tribunal

vide order dated 07.03.2002 under Annexure-7,

protected the interest of the applicants in all those 5

// 5 //

(five) Original Applications and petitioner-Union was

also one of the applicants in all the said 5 (five) Original

Applications. It is also contended that even though an

application was filed seeking clarification of order

passed on 07.03.2002 but vide order dated 04.07.2002

under Annexure-8, order passed on 07.03.2002 was

reiterated and Opp. Parties were directed to obey the

order passed on 07.03.2002.

3.4. It is contended that on the face of such order

passed by the Tribunal under Annexure-7 and 8, Govt.-

O.P. No.1 vide letter dated 13.03.2003 under

Annexure-9, sought for clarification from O.P. No.2 and

asked O.P. No.2 to take appropriate action against the

applicants involved in O.A. Nos.122(C) to 126(C) of

2002 as they have not been protected by the Tribunal.

Opp. Party No.2 was also requested to take appropriate

action as per the common order passed by the Tribunal

on 02.06.1995 under Annexure-1.

3.5. It is contended that subsequently vide another

letter issued by Opp. Party No.1 on 30.06.2003 under

// 6 //

Annexure-10, Opp. Party No.2 was directed to retrench

the NMR employees who have been brought over to the

work charge establishment in terms of order passed in

O.A. No.1560(C) of 1993 and batch under Annexure-1

by following the provisions of Industrial Dispute Act.

3.6. Learned Senior Counsel appearing for the

petitioner contended that challenging such letter issued

on 13.03.2003 and 30.06.2003 under Annexure-9 and

10, the Union approached this Court by filing W.P.(C)

No.7902 of 2003. This Court vide order dated

20.08.2003, while issuing notice of the matter, passed

an interim order to the following effect:-

"In the meanwhile, none of the NMR employees who have been brought over to work charge employees pursuant to common judgment dated 02.06.1995 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. Nos.1560(c), 1553(c), 1562(c), 1651(c), 1570(c) and 1781(c) of 1993 would be retrenched It is also made clear that in case any of the NMR employees or work- charge employees who has been taken in already pursuant to the orders passed by this Court in O.J.C. No.761/2002 and the Misc. Cases arising there from, they will not be thrown out of employment on account of the interim orders passed by this Court.."

3.7. It is contended that on the face of such order

passed by this Court on 20.08.2003, when the

employees affiliated to the Union were not allowed to

// 7 //

discharge their work, this Court passed the following

order:-

"1.Heard Mr. Ray, Learned counsel for the petitioner and Mr. Routray, learned Addl. Government Advocate for the State.

2. By order dated 20.8.2003 passed in Misc. Case No.8126 of 2003 this Court had directed that in the meanwhile none of the NMR employees who have been brought over to work-charge employees pursuant to the common judgment dated 2.6.1995 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A.Nos.1560(c),1553 (c), 1562(c), 1561(c), 1570(c) and 1781(c) of 1993 would be retrenched.

3. It is stated by Mr. Ray that the authorities are not allowing the petitioners to work since there is no express order by this Court to allow the said NMR employees to continue in work.

4. By the said order dated 20.8.2003, we have stayed retrenchment of the aforesaid NMR employees and accordingly, the said NMR employees have to be continued in service till further orders passed by this Court.

This matter will be listed in the week commencing from 20.10.2003 for orders.

A copy of this order be served on Mr. Routray by Friday."

3.8. It is contended that in the meantime some of the

similarly situated NMR/work-charge employees taking

into account the nature of order passed by this Court

on 20.08.2003 in W.P.(C) No.7902 of 2003, approached

this Court by filing W.P.(C) No.12734 of 2003 and with

a prayer to direct the Opp. Parties to release the

current salary and consequential benefits who have

// 8 //

been illegally restrained from discharging their duty. It

is contended that this Court vide order dated

22.12.2004, directed the Opp. Parties to calculate the

arrears of different individual persons and release the

same by end of June, 2005. Similar order was also

passed by this Court on 22.12.2004 in another Writ

Petition filed by similarly situated employees in W.P.(C)

No.12736 of 2003.

3.9. It is contended that on the face of such interim

orders passed by this Court on 20.08.2003 and further

order passed on 23.09.2003 in W.P.(C) No.7902 of

2003, employees of the petitioner-Union who had been

brought over to the work-charge establishment

pursuant to the common order passed on 02.06.1995

in O.A. No.1560(C) of 1993 and batch, were never

allowed to discharge their duty even though after

passing of the interim order on 20.08.2002, the

employees concerned submitted the applications on

22.08.2003 under Annexure-13 series with a prayer to

allow them to discharge their duty in the work-charge

establishment.

// 9 //

3.10. It is also contended that since order passed by

the Tribunal in O.A. No.1560(C) of 1993 and batch was

confirmed by the Hon'ble Apex Court with dismissal of

the SLPs vide order dated 19.03.2000 and the Review

Petition filed was also dismissed on 19.04.2000 and the

employees of the Union were brought over to the work

charge establishment w.e.f. 24.05.2001, there was no

occasion to declare them as surplus with issuance of

the notice of retrenchment.

3.11. It is also contended that even though petitioners

were issued with such notices proposing there

retrenchment but on the face of the interim order

passed by the Tribunal on 07.03.2002 in O.A.

No.122(C) of 2002 and batch under Annexure-7 and

further order passed on 04.07.2002 under Annexure-8,

petitioners were not allowed to discharge their duty in

terms of the letter issued by the Govt.-O.P. No.1 on

13.03.2003 and 30.06.2003 under Annexure-9 and 10.

Not only that W.P.(C) No.7902 of 2003 so filed by the

Union challenging the letters. This Court vide order

dated 20.08.2003, restrained the Opp. Parties to

// 10 //

retrenched the employees of the Union vide another

order passed on 23.09.2003, the Opp. Parties are also

directed to allow the petitioners to continue.

3.12. But it is regret to mention here that orders

passed by the Tribunal on 07.03.2002 and 04.07.2002

under Annexure-7 and 8, so also the order passed by

this Court on 20.08.2003 and 23.09.2003 were never

followed by the Opp. Parties in allowing the employees

of the Union to discharge their work. However, W.P.(C)

No.7902 of 2003 along with W.P.(C) No.9787 of 2003

were disposed of by this Court ultimately vide order

dated 13.04.2005 under Annexure-18 on the ground of

maintainability. Para-10 of the order dated 13.04.2005

reads as follows:-

"10. In the midst of hearing, the petitioners filed interim applications, which have been registered as Misc. Case No.2412 of 2005 and Misc. Case No.2411 of 2005. In these misc. cases, the petitioners have prayed for interim release of their current/arrear salaries. Mr. Roy submitted that some of the employees similarly situated like the petitioners have filed separate writ applications claiming for their current/arrear salaries, which have been registered as W.P,(C) Nos. 12734 and 12736 of 2003, which are now pending before this Court. In the said writ petitions, order has been passed by this Court for interim release of the arrear salaries basing upon the letter dated 20.12.2004 of the Executive Engineer, O.E.C.F. Division No.V, Sukinda, where the Government has conceded for release of salaries. After

// 11 //

perusal of the records of the aforesaid writ petition and the orders passed therein, this Court is of the considered view that the present petitioners are also entitled to the similar relief. But since this Court has already held that these writ applications are not maintainable, it is not proper to pass any further interim orders. This Court, however, observes that in the event the petitioners file interim applications before the Tribunal the Tribunal shall do well to pass appropriate orders in the light of interim orders passed in W.P(C) Nos.12734 and 12736 of 2003. This observation is made in order to maintain parity. This Court considering the nature and urgency of the matter directs the Tribunal to dispose of O.A. Nos. 122(C) to 126(C) of 2002 within four months of the receipt of this order. Till then, the interim orders dated 20.08.2003 and 23.09.2003 shall continue."

3.13. It is contended that order dated 13.04.2005 so

passed in W.P.(C) No.7902 of 2003 and further order

passed on 21.12.2006 in Review Petition No.40 and 41

of 2005 though was assailed before the Hon'ble Apex

Court in Civil Appeal No.675 of 2008, but the said

appeal was dismissed vide order dated 01.06.2010 with

the following order:-

"This appeal is directed against orders dated 13.4.2005 and 21.12.2006 passed by the Division Bench of Orissa High Court in Writ Petition (Civil) Nos. 7902 of 2003 and 9787 of 2003 and Review Petition Nos. 40 and 41 of 2005 respectively.

The appellants filed two petitions under Articles 226 and 227 of the Constitution of India questioning the legality of communications dated 13.3.2003, 29.3.2003 and 30.6.2003 issued by the State Government, Department of Water Resources and Chief Engineer and Basin Manager, Brahmani Left Basin, Samal in the matter of retrenchment of work-charged employees. The thrust of the case set up by the appellants was that in view of the order passed by the Orissa Administrative Tribunal (for short, 'the Tribunal') in O.A. No. 122 (C) of 2002, they could

// 12 //

not have been retrenched and the respondents were duty bound to take action in terms of the order passed in O.A. No. 1560 (C) of 1993 and batch.

In the counter affidavit filed on behalf of the respondents, an objection was to the maintainability of the writ petition on the ground that the only remedy available to the petitioners was to approach the Tribunal.

The Division Bench accepted the objection raised on behalf of the respondents and held that the writ petitions filed by the appellants are not maintainable. The relevant portion of the order passed by the High Court is extracted below:

"Undisputedly, the members of the Petitioner- Union have approached the Tribunal by filing O.A. Nos.122 (c) to 126 (c) of 2002. In those original applications, the Tribunal has passed interim order protecting the interest of the employees. Since the employees have already approached the Tribunal, the present writ applications their instance are not maintainable. Moreover, the employees represented by the Petitioner-Union are working in the work-charged establishment and as such are holder of Civil Post under the State Government. of the Administrative Tribunals Act, 1985 vests jurisdiction in the Administrative Tribunal to deal with all matters pertaining to service under the Government. Therefore, the Orissa Administrative Tribunal has ample power and jurisdiction to effectively deal with the grievances of the employees. In Deep Chand's case (supra), it was held by the Supreme Court that in respect of a claim by the daily wager employees, the remedy lies before the Tribunal not before the High Court. In view of such decision of the Apex Court, this Court is of the considered opinion that the remedy available to the present petitioners is to agitate their grievance before the Tribunal and not before this Court. Accordingly, this Court is constrained to hold that the present writ applications are not maintainable."

The Review Petitions filed by the appellants were that dismissed by the High Court with an observation order dated 13.4.2005 does not suffer from any error apparent and power of review cannot be confused with the appellate power.

We have heard learned counsel for the parties and perused the records. Since the directions given by the concerned authorities for termination of the services of the

// 13 //

employees fall within the definition of the term -service matters" contained in Section 3 (q) Administrative Tribunals Act, 1985 (for short, 'the Act'), the High Court rightly held that the writ petitioners should first avail remedy by filing application before the Tribunal and in view of the law laid down by the larger Bench of this Court in L. Chandra Kumar v. Union of India AIR 1997 SC 1125, we do not see any reason to take a different view.

The appeal is, accordingly, dismissed, leaving the appellants free to avail remedy by filing appropriate application before the Tribunal.

Since the matter remained pending before the High Court and this Court for sufficiently long period, we deem it proper to make it clear that if the appellants file an application before the Tribunal within a period of one month from today along with an application under Section 21 (3) of the Act for condonation of delay, then the same shall be entertained and the original application shall be decided on merits."

3.14. It is contended that pursuant to the liberty

granted by the Hon'ble Apex Court in its order dated

01.06.2010, the Union approached the Tribunal by

filing O.A. No.2000(C) of 2010. The said Original

Application in O.A. No.2000(C) of 2010 was disposed of

by the Tribunal vide order dated 08.02.2013 under

Annexure-20 inter alia with the following observation

and direction:-

"In that view of the matter, I am of the considered view, seniority list in respect of each project may continue in respect of DLR/NMR/work charged employees. But once the project is closed, for maintenance of the project a good number of NMR/DLR work charged employees are allowed to continue till they attain the age of retirement on superannuation. As such it will be appropriate if one common seniority list for all these employees, work charged/NMR/DLR who working are employees in as different - and Las major/minor/medium projects shall be

// 14 //

maintained and when any vacancy in work charged and regular establishment is available, on the basis of their seniority D.L.R. and N.M.R. establishment they can be brought over to the work charged establishment and work charged employees can be regularized as against those posts irrespective of the project in which they are working and once the work charged employees have been brought over to regular establishment, the vacant work charged posts shall be filled up by the available DLR/NMR employees."

3.15. It is contended that the order passed by the

Tribunal on 08.02.2013 in O.A. No.2000(C) of 2013

was assailed before this Court in W.P.(C) No.10562 of

2013. The said Writ Petition however was disposed of

by this Court vide order dated 24.10.2019 in the light

of the order passed in W.P.(C) No.7813 of 2003 on

07.02.2019. Order dated 07.02.2019 passed in W.P.(C)

No.7813 of 2003 reads as follows:-

"4. Perused the said order dated 07.02.2019 in detail. For ready reference, the said order is reproduced hereunder:

"Heard learned counsel for the petitioners and learned Addl. Government Advocate for the State-opposite parties.

By way of this writ petition, the petitioners, who are the work-charged employees w.e.f. 2.9.1993, have challenged the order of retrenchment dated 30.06.2003 at Annexure-6 issued by the opposite party No.1 and subsequent notices dated 25.7.2003 under Annexure-7 series issued by the respective Engineers of the projects.

On 20.08.2003, this Court while issuing notice, in the present case, passed the following order:

"Heard learned counsel for the petitioners and Mr. P.K. Mohanty, learned Addl. Government Advocate for the State

Issue notice.

// 15 //

Mr. Mohanty accepts notice on behalf of all the opp. parties. Extra copies of the writ petition be served on him by 22.8.2003, if not already served.

In the meanwhile, none of the NMR employees who have been brought over to work-charge employees pursuant to the common judgment dated 2nd June, 1995 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack, in O.A. Nos. 1560(c), 1553(c), 1562(c), 1651(c), 1570(c) and 1781(c) of 1993 would be retrenched. It is also made clear that in case any of the NMR employees or work-charge employees who has been taken in already pursuant to the orders passed by this Court in O.J.C. No.761/2002 and the Misc. Cases arising there from, they will not be thrown out of employment on account of the interim orders passed by this Court today.

This case requires early hearing and disposal and for the said purpose, we direct the matter to be listed on 3rd September, 2003 for orders.

Counter affidavit, if any, will be filed in the meantime."

Learned counsel for the petitioners fairly makes a statement that except one employee, all other employees are continuing in the service as on date.

Learned counsel for the petitioners has taken us to the order of the Supreme Court of India dated 26.02.1999 in S.L.P. (Civil) No. 10362, 10363/95 (State of Orissa & Ors. Vs. Dinesh Kr. Mohanty & Ors.) and contends that in view of the statement made before Supreme Court of India during the proceedings of the said case, the Supreme Court had passed the direction, which reads as under:

"We are giving a last opportunity to the State of Orissa to satisfy us that the Scheme that it has formulated has been put into operation. For this purpose, it must place on affidavit within four weeks, how many persons in the categories of daily wagers, NMRs and work charge employees are intended to be covered by the Scheme and how many out of them have actually been absorbed pursuant thereto. The affidavit shall indicate when all the persons who were affected shall be absorbed under the Scheme.

Adjourned for four weeks. No further adjournment shall be granted."

Ultimately, the aforesaid SLPs along with some other connected SLPs came for hearing on 26.3.1999, wherein after condoning the delay, the SLPs were dismissed.

However, on 30.6.2003 the opposite party No.1 passed the impugned order, which reads as under:

// 16 //

From

Shri Mayadhar Panigrahi, IAS, Additional Secretary to Govt.

To

The Chief Engineer & Basin Manager, Brahmani Left Basin, Samal.

Sub: OJC No.761/2002 Bijaya Kumar Nanda and Others Vrs. State of Orissa and Others.

Sir,

In inviting reference to your letter No. 12384/WE dt.24.6.03 on the subject noted above I am directed to say that balance employees out of the 1225 NMR employees who have been brought over to W/C establishment pursuant to the common judgment dt.2.9.93 No.1560(C)/93, 1553(C)/93, 1651(C)/93, 1570(C)/93,1781(C)/93, be retrenched forthwith following the provisions contained in the I.D. Act in order to comply the orders of the Hon'ble High Court in OJC No.761/02. in Ο.Α.

Yours faithfully, Additional Secretary to Govt."

Learned counsel for the petitioners has also taken us to the counter affidavit in reply and rejoinder filed therein and it is submitted that the petitioners are the work-charged employees w.e.f. 2.9.1993, as per the direction of the learned Tribunal, read with the order of the Hon'ble Apex court as stated supra. Further most of the petitioners in O.J.C. No. 761/2002 are juniors than the present petitioners in the Nominal Muster Roll and they entered as NMR employees on later dates than the present petitioners. As the petitioners are brought to the work-charged establishment in view of the judicial order of the Tribunal read with the order of the Supreme Court referred above and meanwhile more than 15 years have been passed, at this stage the petitioners should not be thrown out.

We have heard learned counsel for the petitioners and perused the records. It will not be out of place to mention here that petitioners, except few, are still continuing in services right from 1993 till today. Further, because of the impugned order of this Court dated 20.8.2003 (quoted above), they are continuing and in the meantime, fifteen years have elapsed. Further, by efflux of time, some of them have retired or might retire within a short span of time. In that view of the matter, taking into consideration the law prevailing as on today that the Work Charge and NMR employees are required to be paid minimum regular pay scale, we are of the view that retrenchment of the

// 17 //

petitioners at the fag end their services is inappropriate. Therefore, it is directed that the petitioners, who have not yet retired, will not be retrenched from the services.

In view of the above, the impugned order of retrenchment dated 30.6.2003 is required to be quashed and accordingly, the same is quashed.

No order as to costs."

3.16. It is also contended that on the face of such order

passed by this Court on 24.10.2019, employees of the

petitioner-Union were never allowed to continue.

However, taking into account the nature of order

passed in allowing the employees of the Union to be

brought over to the work charge establishment w.e.f.

02.09.1993 and the interim orders by the Tribunal as

well as by this Court on different occasion, the Union

once again approached this Court by filing W.P.(C)

No.3442 of 2020 seeking regularization of the services

of the members of the petitioner-Union.

3.17. It is contended that when order dated

29.01.2020 was not complied with, the Union filed

CONTC No.896 of 2021, this Court vide order dated

01.03.2021 when directed for compliance of order

dated 29.01.2020 in CONTC No.896 of 2021,

challenging the said order passed in CONTC No.896 of

// 18 //

2021, State moved the Hon'ble Apex Court in SLP(Civil)

No.4402 of 2021 along with some connected appeals

were disposed of by the Hon'ble Apex Court vide its

order dated 07.03.2022 under Annexure-24. Vide the

said order and taking into account the rejection of the

claim of the members of the Union for their

regularization so passed on 31.12.2020 pursuant to

order dated 29.01.2020 in W.P.(C) No.3442 of 2020,

Hon'ble Apex Court granted liberty to petitioner-Union

to challenge order dated 31.12.2020, which is now

impugned in the present Writ Petition.

3.18. While assailing the impugned order dated

31.12.2020 so issued under Annexure-5, learned

Senior Counsel for the petitioner vehemently contended

that members of the petitioner-Union while continuing

as NMRs, they moved the Tribunal by filing O.A.

No.1560(C) of 1993 and batch seeking regularization,

the tribunal vide order dated 02.06.1995 under

Annexure-1, directed the State-Machinery to bring over

the members of the Petitioner-Union to the work charge

establishment. After dismissal of the matter by the

// 19 //

Hon'ble Apex Court vide order dated 19.03.2000 and

dismissal of the Review Petition vide order dated

19.04.2000, members of the petitioner-Union were

brought over to the work charge establishment w.e.f.

02.09.1993.

3.19. However, on the face of such benefit extended in

bringing over the members of the petitioner-Union to

the work charge establishment w.e.f. 02.09.1993, when

they were declared Surplus and issued with notices

proposing their retrenchment, the matter was assailed

before the Tribunal in O.A. Nos.122(C) to 126(C) of

2002. However, on the face of the interim order passed

by the Tribunal on 07.03.2002 and further order

passed on 04.07.2002 restraining the Opp. Parties to

terminate the members of the petitioner-Union, Govt.-

O.P. No.1 vide letter dated 13.03.2003 and 30.06.2003

under Annexure-9 and 10, when directed the Opp.

Party No.2 to retrench the members of the petitioner-

Union who have been brought over to the work charge

establishment pursuant to the order passed in O.A.

Nos.1560(C) of 1993 and batch, the same was

// 20 //

challenged by the petitioner-Union before this Court in

W.P.(C) No.7902 of 2003.

3.20. It is contended that on the face of the order

passed by this Court on 20.08.2003 and subsequent

order on 23.09.2003, members of the petitioner-Union

were never allowed to continue. Letter dated

30.06.2003 though was quashed by this Court in its

order dated 24.10.2019 in W.P.(C) No.10562 of 2013

under Annexure-21, but on the face of such quashing

of the impugned letter dated 30.06.2003, petitioners

were never allowed to continue in the work charge

establishment in which they were brought over w.e.f.

02.09.1993. It is however contended that at no point of

time, any formal order of retrenchment was issued to

the members of the petitioner-Union by the Opp.

Parties.

3.21. It is contended that on the face of the interim

order passed by the Tribunal in O.A. No.122(c) of 2002

and batch and the interim order passed by this Court

in W.P.(C) No.7902 of 2003 and quashing of the letter

// 21 //

dated 30.06.2003 by this Court in W.P.(C) No.10562 of

2013, petitioners when were neither allowed to

continue nor regularized in their services, petitioner-

Union approached this Court seeking regularization of

its members in W.P.(C) No.3442 of 2020. This Court

vide order dated 29.01.2020, when directed Opp. Party

No.1 to take steps for regularization of the members of

the petitioner-Union, the same was rejected vide the

impugned order dated 31.12.2020 under Annexure-25.

3.22. It is accordingly contended that in view of the

nature of order passed by the Tribunal in O.A.

No.1560(C) of 1993 on 02.06.1995, confirmed by the

Hon'ble Apex Court with dismissal of the appeals vide

order dated 19.03.2000 and dismissal of the Review

vide order dated 19.04.2000, members of the

petitioner-Union though were brought over to the work

charge establishment w.e.f. 02.09.1993, but they were

illegally declared as surplus and were issued with the

notice of retrenchment in terms of the provisions

contained under I.D. Act. Even though such notice of

retrenchment was interfered with by the Tribunal vide

// 22 //

order dated 07.03.2002 in O.A. No.122(C) of 2002 and

batch but on the face of such interim order passed,

petitioners were directed to be terminated by the Govt.-

O.P. No.1 vide letter dated 13.03.2003 and 30.06.2003

under Annexure-9 and 10.

3.23. Not only that on the face of the interim order

passed by this Court on 20.08.2003 in W.P.(C) No.7902

of 2003 and further order passed on 23.09.2003 in the

said writ petition, members of the petitioner-union

were neither allowed to continue nor they were paid

with their salaries. However, since letter dated

30.06.2003 was quashed by this Court in its order

dated 24.10.2019 in W.P.(C) No.10562 of 2013 under

Annexure-21, rejection of the petitioners claim to get

the benefit of regularization vide order dated

31.12.2020 under Annexure-25 is not sustainable in

the eye of law. It is accordingly contended that the said

impugned order needs interference of this Court.

3.24. It is however contended that since in the

meantime most of the members of the petitioner-Union

// 23 //

have attained the age of superannuation save and

except around 80 members of employees, all those

employees who have attained the age of

superannuation in the meantime, be treated as regular

employees and those employees who have not yet been

attained the age of superannuation, be allowed to

continue and they be regularized in their services in

terms of Finance Department Resolution dated

15.05.1997 and the orders passed by the Hon'ble Apex

Court in the case of Secretary, State of Karnataka

vs. Uma Devi (3), (2006) 4 SCC-1, State of

Karnatak vs. M.L. Keshari, (2010) 9 SCC 247 and the

recent decisions of the Hon'ble Apex Court in the case

of Jaggo vs. Union of India & Ors., 2024 SCC

OnLine SC 3826; Shripal & Anr. vs. Nagar Nigam,

Ghaziabad, 2025 SCC OnLine SC 221, as well as

Dharam Singh & Ors. vs. State of U.P. & Anr. (Civil

Appeal No(s).8558 of 2018.

4. Mr. A. Tripathy, learned Addl. Govt. Advocate on

the other hand made his submission basing on the

stand taken in the counter affidavit so filed by the Opp.

// 24 //

Parties. It is contended that though pursuant to order

dated 02.06.1995, so passed by the Tribunal in O.A.

No.1560(C) of 1993 and batch and further confirmed by

the Hon'ble Apex Court in SLP(Civil) No.5526-31 of

1996 were brought over to the work charged

establishment on 02.09.1993, but in the said order, it

was clearly observed that members of the petitioner-

Union can be retrenched only in accordance with law

but it cannot be replaced by persons drawing from

other sources.

4.1. Vide order dated 31.05.2001 under Annexure-

C/3, applicants in O.A. No.1560(C) of 1993 and batch,

were appointed in the work charged establishment as

against clarification held by them NMR category w.e.f.

02.09.1993 with usual Dear allowances as applicable

on that date but they may be paid w.e.f. 01.04.2001 in

the initial scale of pay, order dated 31.05.2001 so

passed under Annexure-C/3 basing on the letter issued

by the Govt. on 24.05.2001 under Annexure-B/3 reads

as follows:-

// 25 //

"I am directed to say that pursuant to the decision in the common judgement of the Orissa Administrative Tribunal mentioned above, the SLP and review petition arising there from having been dismissed by the Supreme Court of India. Government have been pleased to decide that, the 1225 Nos of applicants involved in the aforesaid cases as intimated in your Memo. No 477/WE, dtd. the 06 January 2001 may be treated as Work-Charged employees with effect from the 2nd September 1993. The aforesaid employees will, for the present draw their initials in the initials and calculation on the basis of this entitlement of the employees immediately be made with effect from 02.09.1993 and intimated to this Deptt.

The aforesaid applicants may be allowed to draw salary in the above manner with effect from April 2001."

4.2. It is contended that not being satisfied with the

order dated 24.05.2001 and further order passed on

31.05.2001 under Annexure-B/3 and C/3. Such NMRs

employees were brought over to the work charged

establishment on 02.09.1993 with the benefit from

01.04.2001, approached the Tribunal by filing O.A.

No.122(C) of 2002 and batch. However, all those

Original Applications in O.A. Nos.122(C) to 126(C) of

2002 were disposed of by this Court on transfer vide

order dated 18.01.2023.

4.3. It is contended that even though members of the

petitioner-Union pursuant to the order passed by the

Tribunal in O.A. No.1560(c) of 1993 and batch, were

// 26 //

brought over to the work charged establishment w.e.f.

02.09.1993 vide communications issued vide

Annexure-B/3 and C/3 Govt.- in the department of

Water Resources in its letter dated 29.05.2001 to

review the cases of surplus staff of different project and

circulars and for their retrenchment. Basing on the

said letter issued by the Govt. on 29.05.2001 and the

members of the Petitioner-Union were declared surplus

and were issued with the notice of retrenchment vide

letter dated 13.03.2003 and 30.06.2003 under

Annexure-9 and 10, the same was challenged before

this Court in W.P.(C) No.7902 of 2003. However,

W.P.(C) N.7902 of 2003 along with W.P.(C) No.9787 of

2003 were disposed of by this Court vide order dated

13.04.2005 and Review Petition filed by the Petitioner-

Union was also dismissed vide order dated 21.12.2006

under Annexure-F/3 and G/3 respectively. Challenging

such order passed on 13.04.2005 and further order

passed on 21.12.2006 under Annexure-G/3, the Union

though moved the Hon'ble Apex Court by filing Civil

Appeal No.675 of 2008 but Hon'ble Apex Court

// 27 //

dismissed the appeal vide order dated 01.06.2010

under Annexure-H/3.

4.4. It is contended that pursuant to the order passed

by the Hon'ble Apex Court on 01.06.2010 under

Annexure-H/3, petitioner-Union though moved the

Tribunal by filing O.A. No.2000(C) of 2010 seeking

regularization of its members and the said original

applications were disposed of vide order dated

01.08.2013 under Annexure-J/3. Order passed under

Annexure-J/3 was subsequently challenged by the

petitioner-Union before this Court in W.P.(C) No.10562

of 2013 and the same was disposed of vide order dated

24.02.2019 in the light of the order dated 07.02.2019

passed in W.P.(C) No.7813 of 2003 under Annexure-

H/3.

4.5. Pursuant to such order passed by this Court on

24.10.2019 in W.P.(C) No.10562 of 2013, petitioner-

Union approached this Court once again by filing

W.P.(C) No.3442 of 2020 and with a further prayer to

direct the Opp. Parties to regularize the services of the

// 28 //

members of the petitioner-Union. Even though the said

order was assailed by the State but in compliance to

the order dated 29.01.2020 passed in W.P.(C) No.3442

of 2020, claim of the petitioner-Union was rejected vide

order dated 31.12.2020 under Annexure-25.

4.6. Learned Addl. Govt. Advocate accordingly

contended that since after being brought over to the

work charged establishment w.e.f. 02.09.1993

pursuant to common order passed by the Tribunal in

O.A. No.1560(C) of 1993 and batch, petitioners were

declared as surplus and were issued with the notice of

termination, rejection of their claim for regularization

has been rightly made vide the impugned order dated

31.12.2020 under Annexure-25.

4.7. It is accordingly contended that since members of

the petitioner-Union are not in service after

30.06.2003, their claim for regularization does not

deserve any consideration and the same has been

rightly rejected, which requires no interference.

// 29 //

5. To the submission made by the learned Addl.

Govt. Advocate, learned Senior Counsel appearing for

the petitioner-Union made further submission that

while making submissions as pleaded in the Writ

Petition initially, it is contended that on the face of the

interim order passed by the Tribunal in O.A. No.122(C)

of 2002 to 126(C) of 2002 and the interim order passed

by this Court in W.P.(C) No.7902 of 2003 with quashing

of the letter dated 30.06.2003 by this Court in its order

dated 24.10.2019 in W.P.(C) No.10562 of 2013, it is

contended that there was no occasion to treat the

members of the petitioner-Union as retrenched

employees w.e.f. 30.06.2003.

5.1. It is also contended that at no point of time,

petitioners were issued with any formal order of

retrenchment and no such document has also been

enclosed by the state in its counter. It is contended

that since at no point of time, petitioner was issued

with formal order of retrenchment, retrenching the

services of its members, taking into account the nature

of order passed in O.A. No.122(C) of 2002 to 126(C) of

// 30 //

2002 and further interim order passed by this Court, it

cannot be held that petitioners were terminated from

their services at any point of time. It is also contended

that the impugned notice of termination issued by the

Govt. order dated 30.06.2003 under Annexure-10 was

quashed by this Court in its order dated 24.10.2019 in

W.P.(C) No.10562 of 2013.

5.2. It is also contended that in the meantime and

during pendency of the Writ Petition in O.A. No.122(C)

to 126(C) of 2002, were disposed of by this Court vide

order dated 18.08.2023 under Annexure-32. Vide the

said order, State-Opp. Parties have been directed to

extend similar benefit in favour of the applicants in the

said Original Applications in the light of the benefit

extended in favour of one Narsu Pradhan, applicant in

O.A. No.1189(C) of 2006 decided on 11.06.2009. It is

also contended that such an order passed by this Court

on 18.01.2023 under Annexure-32 has not been

assailed by the State.

// 31 //

5.3. Making all these submission, learned Senior

Counsel appearing for the petitioner-Union contended

that since because of the illegal action of the Opp.

Parties in not following the order passed by the

Tribunal as well as by this Court, petitioners were not

allowed to continue on the face of their being brought

over to the work charged establishment w.e.f.

02.09.1993 vide order dated 24.05.2001 and further

order passed on 31.05.2001 under Annexure-B/3 and

C/3, all those employees who have now attained the

age of superannuation, be extended with the benefit of

a regular employee in the light of the order passed in

the case of Narsu Pradhan. All such members who

have not attained the age of superannuation as on

date, be allowed to continue and be treated as a regular

employee on completion of 5 years of engagement w.e.f.

02.09.1993.

6. Having heard learned counsel for the parties,

considering the submissions made and after going

through the materials available on record, this Court

finds that petitioner-Union seeking regularization of the

// 32 //

services of 1224 Nos. of NMR employees working in

Samal Barrage project, approached the Tribunal by

filing O.A. No.1560(C) of 1993 and batch. The said

batch of Original Applications were disposed of by the

Tribunal vide a common order dated 02.06.1995 and

with a direction on the Opp. Parties to bring over the

members of the Petitioner-Union to the work charged

establishment w.e.f. 02.09.1993.

6.1. The judgment passed by the Tribunal on

02.06.1995, though was assailed by the State before

the Hon'ble Apex Court in SLP(Civil) Nos.5526-31 of

1996, but all those original applications were dismissed

vide order dated 26.03.1999 under Annexure-4. The

Review Petition filed seeking review of order dated

26.03.1999 was also rejected vide order dated

19.04.2000 under Annexure-5.

6.2. After such dismissal of the matter by the Hon'ble

Apex Court, order passed by the Tribunal on

02.06.1995, was implemented in bringing over the

members of the petitioner-Union to the work charged

// 33 //

establishment w.e.f. 02.09.1993 vide order dated

24.05.2001 under Annexure-6. Even though all such

NMRs employees belonging to petitioner-union were

brought over to the work charged establishment w.e.f.

02.09.1993 vide order dated 24.05.2001 under

Annexure-6, but petitioners when were declared

surplus vide another communication issued by the

department on the very same day, and were issued

with the notice of termination, such notice of

termination was assailed by the employees concerned

in O.A. Nos.122(C) to 126(C) of 2002.

6.3. The Tribunal vide order dated 07.03.2002 under

Annexure-7, protected the interest of the applicants

therein. The application filed by the State seeking

clarification of order dated 07.03.2002 was also

disposed of vide order dated 04.07.2002 under

Annexure-8. While passing such an order under

Annexue-8, Opp. Parties were directed to obey the

order passed on 07.03.2002.

// 34 //

6.4. It is found that on the face of such order passed

by the Tribunal, Opp. Party No.1 vide letter dated

13.03.2003 under Annexure-9, while serving

clarification from Opp. Party No.2, directed Opp. Party

No.2 to take appropriate action against the applicants

in O.A. Nos.122(C) to 126(C) of 2002, as they have not

been protected by the Tribunal. Vide the said letter,

Opp. Party No.2 was also requested to take appropriate

action as per the common order passed by the Tribunal

on 02.06.1995 under Annexure-1.

6.5. It is also found that on the face of such interim

order passed by the Tribunal in O.A. Nos.122(C) to

126(C) of 2002 on 07.03.2002, Opp. Party No.1 vide

another letter issued on dated 30.06.2003 under

Annexure-10, directed Opp. Party No.2 to retrench the

members of the petitioner-Union who have been

brought over to the work charged establishment in

terms of the order passed in O.A. No.1560(C) of 1993

and batch under Annexure-1, by following the

provisions of the Industrial Dispute Act.

// 35 //

6.6. It is found that challenging the communication

issued by Opp. Party No.1 on 13.03.2003 and

30.06.2003 under Annexures-9 and 10, petitioner-

Union approached this Court by filing W.P.(C) No.7902

of 2003. This Court vide order dated 20.08.2003,

though passed an interim order, observing therein that

members of the petitioner-Union will not be thrown out

of the employment. But on the face of such order

passed by this Court on 20.08.2003, members of the

petitioner-Union when were not allowed to discharge

their work, this Court passed a further order, on

23.09.2003 holding therein that members of the

petitioner-Union have to be continued in their services,

till further order passed.

6.7. However, W.P.(C) No.7902 of 2003 was disposed of

vide order dated 13.04.2005 under Annexure-18 on the

ground of maintainability. While disposing the Writ

Petition vide order dated 13.04.2005 under Annexure-

18, this Court also observed that interim order passed

on dated 20.08.2003 and 23.09.2003 shall continue.

// 36 //

6.8. Order dated 13.04.2005, so passed in W.P.(C)

No.7902 of 2003 though was assailed by filing Review

Petition Nos.40 & 41 of 2005 and subsequently Hon'ble

Apex Court was also moved in Civil Appeal No.675 of

2008, but the appeal was dismissed vide order dated

01.06.2010. While not entertaining the appeal against

order dated 13.04.2005, Hon'ble Apex Court granted

liberty to the petitioner-Union to move a fresh

application seeking regularization of the services of the

members of the petitioner-Union. Accordingly O.A.

No.2000(C) of 2010 was filed by the Petitioner-Union

seeking regularization of the services of the members,

who were brought over to the work charged

establishment w.e.f. 02.09.1993, basing on the order

passed in OA No.1560(o)/1993 & batch.

6.9. The Tribunal vide order dated 08.02.2013 under

Annexure-20, disposed of the said original application,

observing that the vacant work charged post shall be

filled up by the available DLR/NMR employees.

However, order dated 08.02.2013, so passed in O.A.

No.2000(C) of 2013, was assailed before this Court in

// 37 //

W.P.(C) No.10562 of 2013. The said Writ Petition was

disposed of vide order dated 24.10.2019, in the light of

the order passed in W.P.(C) No.7813 of 2003 on

07.02.2019. Vide order dated 07.02.2019 in W.P.(C)

No.7813 of 2003, letter issued by the Opp. Party No.1

on 30.06.2003, directing Opp. Party No.2 to retrench

the members of the Petitioner Union who have been

brought over to the work-charged establishment w.e.f.

02.09.1993 pursuant to order passed in O.A.

No.1560(o) of 1993 & batch, by following due procedure

of law was quashed.

6.10.On the face of such order passed by this Court on

24.10.2019 in W.P.(C) No.10562 of 2013, members of

the petitioner-union were never allowed to discharge

their duty. Petitioner accordingly approached this

Court by filing W.P.(C) No.3442 of 2020 seeking

regularisation of their services.

6.11. It is found that order passed by this Court on

29.01.2020, when was not complied with and vide

order dated 01.3.2021, in the Contempt Petition, Opp.

// 38 //

Party No.1 was directed to comply order dated

29.01.2020, challenging such order, State moved the

Hon'ble Apex Court in SLP(Civil) No.4002 of 2021.

While disposing the appeal so filed, Hon'ble Apex Court

granted liberty to the petitioner-Union to challenge

order dated 31.12.2020, by which claim of the

Petitioner Union pursuant to order dated 29.01.2020

was rejected. Accordingly, order dated 31.12.2020 is

under challenge in the present Writ Petition.

6.12. This Court taking into account the nature of

order passed by the Tribunal on 02.06.1995 in O.A.

No.1560(C) of 1993 and batch and implementation of

the said order by bringing over the members of the

petitioner-Union to the work charged establishment

w.e.f. 02.09.1993 vide order dated 24.05.2001 under

Annexure-6, is of the view that after bringing over the

members of the petitioner-Union to the work charged

establishment w.e.f. 02.09.1993 pursuant to the order

passed by the Tribunal in O.A. No.1560(C) of 1993 and

batch, members of the petitioner-Union should not

// 39 //

have been treated as surplus with issuance of the

notice of retrenchment.

6.13. Such notice of retrenchment when was assailed

in O.A. No.122(C) to 126(C) of 2002, the Tribunal vide

order dated 07.03.2002 and order dated 04.07.2003

passed an order by protecting the interest of the

applicants in those O.A.s.

6.14. On the face of the interim order passed by the

Tribunal on 07.03.2002 and further order passed on

04.07.2002, Opp. Party No.1 vide letter dated

13.03.2003 and 30.06.2003 under Annexure-9 and 10,

when directed Opp. Party No.2 to retrench the NMR

employees who have been brought over to the work

charged establishment pursuant to the order passed by

the Tribunal in O.A. No.1560(C) of 1993 and batch by

following the provisions of I.D. Act, challenging such

communication issued on 13.03.2003 and 30.06.2003

under Annexure-9 and 10, petitioner-Union

approached this Court by filing W.P.(C) No.7902 of

2003. This Court also passed an interim order on

// 40 //

20.08.2003 and by restraining the Opp. Parties that

members of the petitioner-Union will not be thrown out

of the employment.

6.15. On the face of such order passed by this Court

on 20.08.2003, when the members of the petitioner-

Union were not allowed to discharge their work, this

Court directed the Opp. Parties to continue with the

services of such NMR employees until further orders.

However, W.P.(C) No.7902 of 2003 was remitted to the

Tribunal vide order dated 13.04.2005 under Annexure-

18. While remitting the matter to the Tribunal, this

Court clearly observed that interim order passed on

20.08.2003 and 23.09.2003 shall continue.

6.16. On the face of such order passed by this Court

on 13.04.2005, members of the petitioner-Union were

never allowed to discharge their duty. However,

challenge made to the said order dated 13.04.2005,

was not entertained by the Hon'ble Apex Court while

dismissing Civil Appeal No.675 of 2008 vide order

dated 01.06.2010.

// 41 //

6.17. On such remand of the matter as per order dated

13.04.2005, W.P.(C) No.7902 of 2003 was registered as

O.A. No.2000(C) of 2010. The said original application

however was disposed of vide order dated on

08.02.2013 under Annexure-20. Such order passed by

the Tribunal on 08.02.2013 was assailed before this

Court in W.P.(C) No.10562 of 2013. The said Writ

Petition was disposed of vide order dated 24.10.2019,

in the light of the order passed in W.P.(C) No.7813 of

2003. Vide order dated 07.02.2019, letter issued by the

Govt.-O.P. No.1 on 30.06.2003 directing the Opp. Party

No.2 to retrench the NMR Employees belonging to the

petitioner-Union was quashed.

6.18. But it is found that, on the face of orders passed

by the Tribunal as well as by this Court protecting the

interest of the petitioners, members of the petitioner-

Union were never allowed to discharge their duty after

issuance of the notice of retrenchment, which was the

subject matter of challenge in O.A. Nos.122(C) to

126(C) of 2002.

// 42 //

6.19. O.A. Nos.122(C) to 126(C) of 2002 in the

meantime were disposed of by this Court vide order

dated 18.08.2023 under Annexure-32. This Court vide

the said order, directed the Opp. Parties to extend

similar benefit in the light of the benefit extended in

favour of one Narsu Pradhan applicant in O.A.

No.1189(C) of 2006, so decided on 11.06.2009. Order

passed by this Court on 18.08.2023 under Annexure-

32 has not been assailed by the State.

6.20. In view of the aforesaid analysis and the fact that

members of the petitioner-Union have never been

retrenched with formal order of retrenchment, this

Court is of the view that rejection of the petitioner's

claim to get the benefit of regularization vide order

dated 31.12.2020 under Annexure-25, is not

sustainable in the eye of law. This Court while

quashing the said order, directs Opp. Party No.1 to

extend the benefit of regularization and pensionary

benefits as due and admissible under OCS(Pension)

Rules, 1992 in favour of those work-charged employees

who on the face of the interim order have attained the

// 43 //

age of superannuation in the meantime in the light of

the decision in the case of Narsu Pradhan.

6.21. This Court further directs O.P.No.1 to re-engage

such work-charged employees who have not yet

attained the age of superannuation and regularize their

services in terms of the Finance Department Resolution

issued on 15.05.1997 and the decision of the Hon'ble

Apex Court in the case of Uma Devi, M.L. Keshari as

well as the recent decisions in the case of Jaggo,

Shripal and Dharam Singh.

6.22. It is also the view of this Court that on the face

of the interim order passed by the Tribunal as well as

by this Court, since the members of the Petitioner

Union were not allowed to discharge duty, no fault lies

with the members of the petitioner-Union and it is to be

held that members of the Petitioner Union continued in

their services as work-charged employees although.

This Court directs O.P. No.1 to pass appropriate order

as directed here-in-above within a period of 3 (three)

months from the date of receipt of this order.

// 44 //

7. The Writ Petition stands disposed of accordingly.

(Biraja Prasanna Satapathy) Judge

Orissa High Court, Cuttack Dated the 1st December, 2025/Basudev

Location: High Court of Orissa, Cuttack