Orissa High Court
State Of Orissa vs Rajkishore Sethi & Another ....... Opp. ... on 24 March, 2025
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.2492 of 2011
(In the matter of an application under
Articles 226 & 227 of the Constitution of India, 1950)
State of Orissa ....... Petitioner
-Versus-
Rajkishore Sethi & another ....... Opp. Parties
Advocates appeared
For Petitioner : Mr. Swayambhu Mishra,
Addl. Standing Counsel
For Opp. Parties : None
CORAM:
MR. JUSTICE K.R. MOHAPATRA
MR. JUSTICE SANJAY KUMAR MISHRA
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Heard & Disposed of on 24.03.2025
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JUDGMENT
By the Bench:
1. This matter is taken up through hybrid mode.
2. Award dated 20th July, 2009 (Annexure-1) passed by the
learned Presiding Officer, Labour Court, Bhubaneswar (for brevity
„Labour Court‟) in Industrial Dispute Case No.50 of 2004 is under
challenge in this writ petition, whereby the Opposite Party No.1-
Workman has been directed to be reinstated in service with a lump
sum amount of Rs.20,000/- towards back wages.
3. Parties are described as per their respective status before
learned Labour Court for the sake of convenience in discussion. None
appears for the Opposite Party No.1-Workman on call.
4. The admitted facts on record, which led to filing of the
writ petition, are that, the Workman was appointed by the
Management as Cook, vide order dated 10.12.1998 on a consolidated
salary of Rs.2800/- per month in Kuntala Kumari Sabat Girls‟ Hostel,
Unit-II, Bhubaneswar till the appointment of a regular employee.
Accordingly, he joined the duty in the said hostel. While working as
such, vide order dated 03.04.1999, the Management revised the mode
of engagement of the Workman on 44 days basis on a monthly wage
of Rs.780/- with one weekly off day or Rs.1020/- per month in lieu of
the weekly off days with retrospective effect from 11.12.1998.
Accordingly, his salary was reduced from Rs.2800/- per month to
Rs.780/- or Rs.1020/- per month, as the case may be. But before
issuance of the said revised engagement order, the Workman had
already been paid salary @ Rs.2800/- per month for three months
from his date of joining, i.e., 11.12.1998. While working as such, the
Workman approached the Orissa Administrative Tribunal,
Bhubaneswar in O.A. No.131 of 2001 for regularisation of his service.
The said O.A. was disposed of vide order dated 08.02.2001 with a
direction that if any regular selection is held for filling up of a post of
a regular Cook in the said hostel, the Workman (Applicant in O.A.
No.131 of 2001) having served in the Institution for a period of pretty
long time, be allowed to compete with others in the regular selection,
provided he possesses the minimum educational qualification
prescribed for the post with further direction that till such regular
selection is made, the Applicant may be allowed to continue as an ad
hoc Cook subject to the conditions detailed in the said order.
4.1 However, instead of acting in terms of the observation
made in order dated 08.02.2001, passed in O.A. No.131 of 2001, the
services of the Workman were terminated on 22.03.2001 without
giving one month‟s prior notice or one month‟s salary in lieu of notice
period so also compensation in terms of Section 25-F of the Industrial
Disputes Act, 1947 (for brevity „the I.D. Act‟).
5. Being aggrieved by the said action of the Management,
the Workman raised an industrial dispute. Conciliation being failed
and a report being sent to the Labour and Employment Department,
Government of Odisha, the appropriate Government, in exercise of
power conferred under sub-section (5) of Section 12, read with Clause
(c) of sub-section (1) of Section 10 of the I.D. Act, vide order dated
30th June, 2004, referred the matter to the learned Labour Court for
adjudication of the dispute by answering the following reference;
"Whether the termination of employment of Sri
Raj Kishore Sethi, Ex-Cook of Kuntala Kumar
Sabat, Adibasi Girls Hostel by the Director, S.T.
& S.C. Development Department with effect from
25.03.2001 is illegal and/or justified? If not to
what relief Sri Sethi is entitled?
The matter so referred was registered as I.D. Case No.50 of 2004.
6. Being noticed, the Workman filed his statement of claim
reiterating the facts detailed above. In addition to the above, a stand
was also taken before the learned Labour Court, Bhubaneswar that
while reducing his salary so also terms of engagement, the
Management did not follow the pre-conditions prescribed under
Section 9-A of the I.D. Act. Allegation of violation of Section 25-H of
the I.D. Act was also made by the Workman.
7. Being noticed, the Management filed its written statement
admitting the facts alleged in the claim statement filed by the
Workman. Further, it was admitted that the Workman has been paid
remuneration @ Rs.2800/- per month for the period from 11.12.1998
to 03.04.1999 and thereafter Rs.1020/- per month till 10.11.2000 as
per the revised Management Order No.11735 dated 29.03.2000. A
further stand was also taken before the learned Labour Court that the
Workman was engaged on 44 days basis and there must be a gap in
between two spells of engagement. A stand was also taken in the
written statement that the Workman was engaged as temporary Cook
on the condition that the engagement is purely temporary and can be
terminated at any time without issuing any notice or assigning reason
thereof. As his services were no more required by the Government, the
Workman was disengaged from service and no fresh appointment has
been made in his place. Hence, Section 25-H of the I.D. Act is not
applicable to the case of the Workman. A stand was also taken before
the learned Labour Court that since the Workman was engaged on 44
days basis, he has not worked continuously for one year. As such,
Section 25-F of I.D. Act is not applicable.
8. Based on the pleadings and evidence on record, the
learned Labour Court, vide the impugned award held that even if it is
accepted that the Workman was being appointed for a period of 44
days in each spell and there was a gap of one day between two spells
of appointment, still it cannot be said that he had not worked for more
than 240 days during the preceding 12 calendar months from the date
of his termination. Further, it was held that the Workman was entitled
to prior notice or notice pay so also retrenchment compensation in
terms of Section 25-F (b) of the I.D. Act. As, admittedly, no notice or
notice pay or compensation, as provided under Section 25-F (a) and
(b) of the I.D Act, was given to the Workman at the time of
retrenchment, his retrenchment from service with effect from
22.03.2001 was illegal and unjustified.
8.1 While answering Issue No. II as to what relief the
Workman is entitled to, the learned Labour Court directed the
Management to reinstate the Workman in service. However, a lump
sum amount of Rs.20,000/- was awarded in lieu of back wages.
9. Being aggrieved by such award, the present writ petition
has been preferred by the State-Management basically on the ground
that the Opposite Party No.1 being engaged as a Cook attached to the
hostel under the S.T. and S.C. Development Department, does not
come under the purview of definition of „Workman‟ under Section
2(s) of the I.D. Act. Hence, the provisions under the I.D. Act are not
applicable to the case at hand. A further ground has been urged in the
writ petition that the Cook-cum-Attendants of residential schools run
under S.T. and S.C. Development Department are neither covered
under the I.D. Act nor the Minimum Wages Act. That apart, since the
Workman was engaged temporarily on 44 days basis as Cook on a
consolidated pay in different spells from 11.12.1998 to 10.11.2000,
unless the award passed by the learned Labour Court is set aside, that
would unsettle the settled position of law. Thus, the impugned award
being per se illegal, deserves to be set aside.
9.1 Further, it is urged that the State Government, at present,
is passing through acute financial stringency and if the impugned
award passed by the learned Labour Court is allowed to prevail, it will
result in financial burden on the State exchequer.
10. Though not raised by the Management either before the
learned Labour Court in its written statement or in the present writ
petition, Mr. Mishra, learned Additional Standing Counsel for the
State, submits that Kuntala Kumari Sabat Adivasi Girls‟ Hostel being
run by the Management, i.e., Director, S.T. and S.C. Development
Department, Bhubaneswar, is not an industry as defined under Section
2(j) of the I.D. Act.
11. Mr. Mishra further submits that since the Workman was
engaged for a fixed tenure on 44 days basis in different spells, the pre-
condition prescribed under Section 25-F of the I.D. Act was not
required to be complied with in view of the provision enshrined under
Section 2(oo) (bb) of the I.D. Act. However, learned Labour Court
failed to take note of the said legal provisions. Thus, finding recorded
by learned Tribunal that the action of the Management in terminating
the services of the Workman is illegal and unjustified, is perverse.
12. Though learned Counsel for the Workman is absent on
call, it is ascertained from the record that, apart from filing Counter
Affidavit on 19th August, 2011, a date chart-cum-notes of submission
has been filed by the learned Counsel for the Workman along with the
photocopies of the case laws reported in 2003 (II) OLR - 244 (Gopal
Chandra Sao and others Vs. Chief Engineer and Basin Manager,
Baitarani, Subarnarekha and Budhabalanga Basin, Laxmiposi and
others), 2010 (Supp.-I) OLR - 772 (Co-operative Urban Bank Ltd.,
Parlakhemundi Vs. Presiding Officer, Labour Court, Jeypore and
others), and 2008 (Supp.-I) OLR - 405 (Project Director, IDCWD
Project, Jeypore Vs. Sri Kailash Chandra Jena). We think it proper
to take the same into consideration for adjudication.
12.1. In the written notes of submission filed by learned
Counsel for the Workman, it has been urged that though in the claim
statement filed by the Workman before learned Labour Court, it was
specifically averred that his termination amounts to retrenchment
within the meaning of Section 2 (oo) of the I.D. Act., the same has not
been specifically traversed by the Management. Hence, principle of
non-traverse comes into play which speaks that pleadings not
traversed specifically are deemed to be admitted. Therefore, the
Management is deemed to have admitted that termination of Workman
amounts to retrenchment. Further, it has been urged in the written
notes of submission that in view of the settled position of law, giving
appointments on 44 days basis with some artificial breaks was adopted
by the Management in order to deprive the Workman from getting the
benefit under Section 25-F of the I.D. Act and therefore, exclusion
clause (bb) under Section 2 (oo) is not attracted to such cases.
12.2 Discussing the issue raised by Mr. Mishra, learned ASC
that the Opposite Party No.1 is not a 'workman‟, it has been urged in
the written notes of submission of the Workman that the Management,
in para-2 and 4 of the written statement filed before the learned
Labour Court, admitted that the Opposite Party No.1 is a Workman.
So far as industry is concerned, relying on the Seven Judges Bench
Judgment of the Hon‟ble Supreme Court, reported in AIR 1978 SC
548 (Bangalore Water Supply and Sewerage Board Vs. A. Rajappa
and others), it has been urged in the written notes of submission that,
as held by the Supreme Court in the said case, "industry" as defined in
Section 2(j) of the I.D. Act, has a wide import and three golden tests
are to be satisfied for declaring an institution to be an industry, viz, (i)
there must be systematic activity; (ii) there must be cooperation
between the employer and the employees and (iii) the activity should
be made for the production and/or distribution of goods and services
calculated to satisfy human wants and wishes. In the instant case, all
the three conditions are fulfilled.
12.3 It has also been stated that in view of the ratio in
Bangalore Water Supply and Sewerage Board (supra), educational
institutions are treated as "industry" and hostel being an integral part
of the educational institution, is to be treated as an industry and it
cannot be said that the employer was/is discharging its sovereign
functions.
12.4 It is further urged in the written notes that this Court has
clarified that even in a Government Organization, if an employee
wants to challenge the action of the employer regarding retrenchment,
then the appropriate remedy is to be invoked under the provisions of
the I.D. Act. Therefore, even if the Workman had earlier approached
the Orissa Administrative Tribunal for regularization of his service, he
is not debarred from approaching the forum under the I.D. Act relating
to his retrenchment and the plea taken in that regard by the
Management, is not sustainable.
12.5 It has also been urged in the written notes of submission
that this Court, vide order dated 31.03.2011, stayed the operation of
the award dated 20.07.2009 under Annexure-1 subject to payment of
wages at the rate of last pay drawn to the Workman with effect from
April, 2011 and it was directed to pay the same within first week of
each month. However, the Management stopped paying the wages
from March, 2014. Hence, in view of the Judgment of this Court in
Co-operative Urban Bank Ltd., (supra), the writ petition is liable to
be dismissed.
13. So far as the points urged before this Court that the
establishment, in which the Workman was working, is not an Industry
and the Opposite Party No.1 is not a Workman, as defined under
Section 2(s) of the I.D. Act, admittedly, such points were never raised
before the learned Labour Court in the written statement. For the first
time, such points have been urged before this Court. That apart, in
view of the definition of „Workman‟ as defined under Section 2(s) so
also the definition of „industry‟ as defined under Section 2(j) of the
I.D. Act and the settled position of law, this Court is of the view that
the Petitioner Management is an Industry and the Opposite Party No.1
is a Workman under the I.D. Act.
14. So far as the point as to approaching the Industrial
Tribunal, instead of Orissa Administrative Tribunal, it would be apt to
reproduce below Section 28 of the Administrative Tribunals Act, 1985
(for brevity „the Act, 1985‟) for ready reference;
"28. Exclusion of jurisdiction of courts except the Supreme
Court under article 136 of the Constitution.--On and from the
date from which any jurisdiction, powers and authority becomes
exercisable under this Act by a Tribunal in relation to
recruitment and matters concerning recruitment to any Service
or post or service matters concerning members of any Service or
persons appointed to any Service or post, [no court except--
(a) the Supreme Court; or
(b)any Industrial Tribunal, Labour Court or other
authority constituted under the Industrial Disputes Act, 1947
(14 of 1947) or any other corresponding law for the time being
in force,
shall have], or be entitled to exercise any jurisdiction,
powers or authority in relation to such recruitment or matters
concerning such recruitment or such service matters."
(Emphasis supplied)
15. From the said provision under Section 28 of the Act,
1985, it is amply clear that the Administrative Tribunal so also
Industrial Adjudicator have concurrent jurisdiction in relation to
recruitment and matters concerning recruitment to any service or post
or service matter concerning members of any service or persons
appointed to any service or post. Admittedly, the Opposite Party No.1-
Workman approached the Odisha Administrative Tribunal for
regularisation of his service. After disposal of the said O.A. on
08.02.2001, his services being illegally terminated with effect from
25.03.2001 despite direction/observation made by the Odisha
Administrative Tribunal, he chose to approach the forum under the
I.D. Act, which is permissible in terms of provisions under Section 28
of the Act, 1985.
16. That apart, in Gopal Chandra Sao and others (supra),
this Court referring to Section 15 of the Act, 1985, held that, as the
Petitioners‟ grievances are only with respect to the retrenchment and
they are coming within the definitions of „Workman‟ as defined in
Section 2(s) of the I.D. Act and the dispute qualifies to the term
„industrial dispute‟ as defined in Section 2(k) of the said Act;
therefore, proper forum for the Petitioners would be the Industrial
Tribunal and if they claim for regularisation in service while
challenging to the order of retrenchment, then it is the State
Administrative Tribunal, which has got the jurisdiction in view of the
provision in Section 15 of the Act, 1985.
17. Further, though the Management in its written statement
filed before the learned Labour Court specifically pleaded about filing
of O.A. No.131 of 2001 by the Opposite Party No.1-Workman so also
disposal of the said O.A. vide order dated 08.02.2001, never took a
stand as to maintainability of the reference made by the appropriate
Government at the instance of the Workman. However, in view of the
provision under the Act, 1985, as quoted above, the point urged before
this Court as to maintainability of the reference and legality of the
award pursuant to such reference is unsustainable.
18. So far as the point urged before this Court that the
engagement of the Workman was on 44 days basis with a consolidated
remuneration of Rs.780/- per month with one weekly off day or
Rs.1020/- per month in lieu of the weekly off days and exclusion of
the action of the Management in retrenching the Workman in view of
Section 2(oo) (bb) of the I.D. Act, it would be apt to reproduce below
para-3 of the written statement filed by the Management before the
learned Labour Court in I.D. Case No.50 of 2004.
"3. The aforesaid Office Order No.35140 dt. 10.12.98 was
superseded vide erstwhile Welfare Department O.O.
No.11596 dt. 3.4.99 (copy at Annexure-„B‟) basing on the
Circular No.18988 dt. 30.7.98 regarding payment of
remuneration of the Cook-cum-Attendants/Daftaries/
Attendants engaged as temporary basis under the Welfare
Department Institutions (copy at Annexure-„C‟).
Accordingly Sri Sethi was engaged on 44 days basis with
a consolidated remuneration of Rs.780/- p.m. with one
weekly off day or Rs.1020/- p.m. in lieu of weekly off
days as provided under the Minimum Wages Act. That
the averment that the 1st party management has reduced
the pay of the workmen from Rs.2800/- p.m., to Rs.780/- ,
Rs.1020/- p.m. by mala fide and arbitrary order is
baseless. It is a fact that Sri Sethi has been paid
remuneration @ Rs.2800/- p.m. for the period from
11.12.98 to 3.4.99 and thereafter Rs.1020/- p.m. till
10.11.2000 as per the revised Management Order
No.11735 dt. 29.3.2009 (copy at Annexure-'D')."
(Emphasis supplied)
19. As has been admitted in the written statement filed before
learned Labour Court, though the Workman was engaged as a
temporary Cook with a consolidated pay of Rs.2800/- per month vide
Office Order No.35140 dt. 10.12.98, the same was superseded vide
Welfare Department Office Order No.11596 dated 03.04.1999, based
on the circular No.18988 dated 30th July, 1998 regarding payment of
remuneration of the Cook-cum-Attendants/Daftaries/Attendants
engaged on temporary basis under the Welfare Department
Institutions. That apart, it has been specifically admitted in the said
paragraph that the Workman was paid his remuneration @ Rs.2800/-
per month for the period from 11.12.1998 to 03.04.1999 and thereafter
@ Rs.1020/- per month till 10.11.2000, as per the revised
Management Order dated 29.03.2000. In view of such admission in
the written statement, it is amply clear that the Workman, apart from
being engaged on 44 days basis, was also working on weekly off days,
for which he was paid Rs.1020/- per month instead of Rs.780/- per
month from 03.04.1999 till 10.11.2000.
20. Further, in para-5 of the written statement it was pleaded
by the Management before learned Labour Court that the Workman
was engaged on 44 days basis and there must be a gap between each
period of engagement. However, the Management failed to adduce
any evidence to substantiate such stand taken before the learned
Labour Court. Rather, as stated above, it was admitted before learned
Labour Court that the Workman was working from 11.12.1998 till
10.11.2000 continuously, that too on weekly off days also.
21. So far as continuous service as defined under Section 25-B
of the I.D. Act, in a recent Judgment dated 11.03.2025, this Court in
W.P.(C) No.20644 of 2017 (The Management of M/s. Hare Krushna
Mahatab Library, Bhubaneswar Vs. Prasanna Kumar Sethi), discussed
the definition of continuous service as defined under section 25-B of the
I.D. Act referring to the Judgments of the Supreme Court in Workman
of American Express International Banking Corporation Vs.
Management of American Express International Banking
Corporation; (1985) 4 SCC 71, so also in U.P. Drugs &
Pharmaceuticals Co. Ltd. Vs. Ramnuj Yadav and others; (2003) 8 SCC
334 and held that uninterrupted working for 240 days in the preceding
twelve months from the date of termination of service is not necessary to
constitute „continuous service‟. Even though a Workman has not worked
for more than 240 days during the preceding twelve months of his
retrenchment/termination, if he has worked for more than 240 days in
any of the preceding years, he would be deemed to be in continuous
service and his retrenchment would be illegal, if the same has not been
done by the employer without adhering to the provisions of the I.D. Act.
22. In similar facts and circumstances, where the Workman
was appointed as a Cook on ad hoc basis and being engaged on 89
days basis on three occasions and on 44 days basis on ten occasions,
relying on the decision of the Hon‟ble Supreme Court in Haryana
State Electronics Development Corporation Ltd. and others Vs.
Mamni, reported in 2006 AIR SCW 2979, this Court held that such
action of the Petitioner-Management was not bona fide and it was
adopted to deprive the Opposite Party-Workman from availing the
benefit under Section 25-F of the I.D. Act. As such, in view of the
ratio in the case of Haryana State Electronics Development
Corporation Ltd (supra), action of the Management in terminating the
Workman will not fall within the scope of Section 2(oo) (bb) of the
I.D. Act.
23. Further, the stand of the Management that it was not a
case of retrenchment in view of section 2(oo)(bb) of the I.D. Act, has
been advanced before this Court for the first time. Such stand was
neither taken in the written statement filed before the learned Labour
Court nor the impugned award shows that any evidence was led by the
Management to substantiate such a plea. Hence, this Court is of the
considered view that it is not open for the Petitioner-Management to
raise such a new plea at this stage.
24. Admittedly, the Workman was appointed as a Cook vide
order dated 10.12.1998 till the appointment of a regular Cook. The
Odisha Administrative Tribunal (OAT), vide order dated 08.02.2001,
in O.A. No.131 of 2001, also directed the Management to allow the
Workman to compete with others in the regular selection process,
provided he possesses minimum educational qualification prescribed
for the said post. A further direction was given to allow the Workman
to continue as ad hoc Cook till such regular selection is made. It is not
the case of the Management that pursuant to the said order passed by
the OAT, a regular selection process was held by giving due
opportunity to the Workman to compete with others and a Cook was
selected and appointed in such position/post, where the Workman was
working. Rather, a plea has been taken in the written statement before
learned Labour Court so also before this Court that after disengaging
the Workman, nobody has been engaged in the said post/position as a
Cook in the said hostel. It has further been admitted in the written
statement, as detailed above, that the Workman was continuously
working on 44 days basis including weekly off days. Hence, this Court
is of the considered opinion that such action of the Management
cannot be brought under the ambit of exclusion clause (bb) under
Section 2 (oo) of the I.D. Act to debar the Workman from the
protection under Section 25-F of the I.D. Act.
25. The Workman took a stand to dismiss the writ petition for
non-compliance of Section 17-B of the I.D. Act. In Dena Bank Vs.
Ghanshyam; (2001) 5 SCC 169, it is held by the Hon‟ble Supreme
Court that the wages last drawn, in terms of Section 17-B of the I.D.
Act, has to be paid to the Workman from the date of award during
pendency of the matter before High Court or Supreme Court. Though
in the present case, the impugned award was passed on 20th July,
2009, but in view of the order dated 31.03.2011 in the present writ
petition, the Opposite Party No.1-Workman was paid wages last
drawn with effect from the said date. As the said payment was stopped
by the State-Petitioner with effect from March, 2014, Misc. Case
No.21515 of 2014 was filed by the Workman. Considering the plea
taken, this Court on 17.01.2023, directed for compliance of the
previous order and file compliance Affidavit. On being so directed,
the State-Petitioner filed an Affidavit on 21.09.2023 indicating therein
that an amount of Rs.1,12,200/- has been paid to the Workman for the
period from April, 2014 to May, 2023. Admittedly, the Workman has
not been paid wages last drawn by him from 20th July, 2009, i.e., from
date of award, till 30.03.2011 and also for the subsequent period from
June, 2023 till date.
26. On perusal of the Judgment in Co-operative Urban Bank
Ltd., Parlakhemundi (supra), it is apparent that no such view has been
taken by the coordinate Bench for dismissal of the writ petition on the
ground of non-compliance of Section 17-B of the I.D. Act. Rather,
Hon‟ble Supreme Court in Hindustan Zinc Ltd. Vs. Industrial
Tribunal and another, reported in (2001) 10 SCC 211, held that the
High Court was not justified in dismissing the writ petition for non-
compliance of the Section 17-B of the I.D. Act and ought to have dealt
with the merits of the case.
27. In view of the discussions and observations made in the
foregoing paragraphs, there being no infirmity and illegality in the
impugned award, the writ petition stands dismissed. In the facts and
circumstances of the case, there shall be no order as to costs.
28. As the impugned award passed in I.D. Case No.50 of 2004 has
been confirmed, it is made clear that the Opposite Party No.1-
Workman, on his reinstatement, shall be entitled to all the benefits for
the post award period, what he would have been entitled to had he
been reinstated in service, till the date of his actual reinstatement.
(K.R. Mohapatra)
Judge
(S.K. Mishra)
Judge
Orissa High Court, Cuttack
The 24th March, 2025/Prasant
Signed by: PRASANT KUMAR PRADHAN
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 17-Apr-2025 10:26:56
