Miscellaneous Case No. 87 of 2007 · Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.12853 of 2014 & W.P.(C) No.14423 of 2014 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 W.P.(C) No.12853 of 2014 *** Ganeswar Panda Aged about 49 years Son of Rajendra Panda At: Ratagada, P.O.: Godisahi Mundali Colony District: Cuttack. … -VERSUS- Petitioner. 1. Orissa Infrastructure Development Corporation Represented through its Managing Director Janapatha, Bhubaneswar, District: Khordha. 2. State of Odisha Represented through its Secretary Industries Department, Secretariat Building Bhubaneswar, District: Khordha. 3. Management of the Executive Engineer M/s. Orissa Industrial Infrastructure Development Corporation (IDCO) Bhubaneswar Construction Division No.II IDCO Tower, Janapatha Bhubaneswar. … Opposite parties. W.P.(C) No.14423 of 2014 W.P.(C) Nos.12853 of 2014 & 14423 of 2014 Page 1 of 61 M/s. Odisha Industrial Infrastructure Development Corporation Represented through its Chairman-cum-Managing Director IDCO Tower, Janpath Bhubaneswar. … (First party— Management in the Industrial Tribunal). Petitioner -VERSUS- Ganeswar Panda Son of Rajendra Panda, Workman At: Ratagada, P.O.: Godisahi Mundali Colony District: Cuttack. … Opposite party (Second party— Workman in the Industrial Tribunal). Counsel appeared for the parties: W.P.(C) No.12853 of 2014 For the Petitioner : M/s. Sanjib Mohanty and For the Opposite party No.1 & 3 Bhagaban Biswal, Advocates : Mr. Surya Prasad Mishra, Senior Advocate with M/s. Soumya Mishra, A.K. Dash, Shruti Modi, Dipanwita Priyanka, Advocates For the Opposite party No.2 : Mr. Lalatendu Samantaray, Additional Government Advocate W.P.(C) No.14423 of 2014 For the Petitioner : Mr. Surya Prasad Mishra, Senior Advocate with W.P.(C) Nos.12853 of 2014 & 14423 of 2014 Page 2 of 61 M/s. Soumya Mishra, Ekta Agarwal, Shruti Modi, Dipanwita Priyanka, Advocates For the Opposite party : M/s. Sanjib Mohanty and Bhagaban Biswal, Advocates P R E S E N T: HONOURABLE CHIEF JUSTICE MR. CHAKRADHARI SHARAN SINGH AND HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 19.03.2024 :: Date of Judgment : 25.06.2024 J UDGMENT MURAHARI SRI RAMAN, J.— THE WRIT PETITIONS: In the writ petition, being W.P.(C) No.12853 of 2014, the petitioner-Ganeswar Panda (for convenience referred to as “the workman” hereinafter) questioned the legality of the Award dated 6th March, 2014 [vide Notification dated 11th April, 2014, published in Extraordinary issue No.757 of the Odisha Gazette, dated 3rd May, 2014] made in Industrial Dispute Case No.52 of 2012 by the Industrial Tribunal, Bhubaneswar denying wages from the date of refusal to work, i.e., 01.10.2000 till his W.P.(C) Nos.12853 of 2014 & 14423 of 2014 Page 3 of 61 reinstatement on the principle of “no work, no pay” with a prayer to regularise his service; WHEREAS, in writ petition, being W.P.(C) No.14423 of 2014, M/s. Odisha Industrial Infrastructrue Development Corporation (for brevity, “IDCO”) assails the said Award dated 6th March, 2014, whereby it has been held by the Industrial Tribunal that there was contravention of provisions of Section 25F of the Industrial Disputes Act, 1947, while effecting termination of service of the workman and as such, the workman is entitled to be reinstated in his previous post. THE FACTS: 2. The facts emanated from the pleadings reveal that the workman, employed as “Mate” with effect from 1st July, 1989, being entrusted with various nature of works, was discharging the duty of a “Typist”. The Executive Engineer, Bhubaneswar Construction Division-II, Bhubaneswar, utilised the services of the workman, being engaged as casual employee by the Management of M/s. IDCO on Daily Labour Report (“DLR”) basis. It is claimed by the workman that he had been assigned with job of permanent and perennial nature. 2.1. As the workman was being paid monthly wages, M/s. IDCO was depositing contribution in the account of the W.P.(C) Nos.12853 of 2014 & 14423 of 2014 Page 4 of 61 Management PF Code OR-2874/1235 as contemplated under the Employees’ Provident Fund Scheme, 1952, formulated in exercise of the powers conferred by Section 5 of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952. 2.2. Despite the fact that the workman had been rendering service for a considerable length of period, no step was taken by M/s. IDCO for regularisation in service, which led to filing of writ petition, being O.J.C. No.9103 of 1999, before this Court. Said matter got disposed of by Order dated 27.07.2007 with observation to take recourse of the machinery provided under the Industrial Disputes Act, 1947 (for brevity, “ID Act”). To ventilate his grievance with respect to recovery of money due from M/s. IDCO, i.e., back wages, the workman filed Industrial Dispute Miscellaneous Case No.87 of 2007 under Section 33C(2) of the ID Act before the Labour Court, Bhubaneswar, which by Order dated 06.09.2011 came to be rejected with an observation that in absence of Award, computation of claim for back wages was not possible. 2.3. It is the case of the Management of M/s. IDCO that complaining violation of ID Act and preventing to work on 3rd October, 2000, the Workman approached the District Labour Officer, Khordha on 14th August, 2007 with a grievance petition. The conciliation between the W.P.(C) Nos.12853 of 2014 & 14423 of 2014 Page 5 of 61 workman and Management of M/s. IDCO turned out to be a failure. Consequently, matter was referred to the Government, which made reference under Section 10 of the ID Act to the Industrial Tribunal on 23.11.2012. 2.4. It transpires from pleadings that the workman in addition to his prayer for reinstatement with back wages, made claim for regularization in service. It is the stand of M/s. IDCO that the workman was deployed by a labour contractor and the EPF Scheme, being mandatory in nature, the contribution was required to be made. It is further objected to by the Management of M/s. IDCO that there was abnormal delay. Therefore, the claim of the workman was stale one, as such, the same is not tenable. Moreover, it is the stand of M/s. IDCO that there was never employer-employee relationship between the employee and the Management of M/s. IDCO. Since the nature of job assigned to Ganeswar Panda does not fall within the connotation of the term “workman” as defined under Section 2(s) of the ID Act, compliance of provisions of Section 25F ibid. does not arise. 2.5. The Industrial Tribunal, Bhubaneswar formulated following three issues for adjudication in connection with the aforesaid reference being registered as Industrial Dispute Case No.52 of 2012: i. Whether the reference is maintainable? W.P.(C) Nos.12853 of 2014 & 14423 of 2014 Page 6 of 61 ii. Whether the action of the management of M/s. Odisha Industrial Infrastructure Development Corporation (IDCO), Bhubaneswar Construction Division No-II, Bhubaneswar in refusing
Legal Reasoning
employment to Sri Ganeswar Panda, DLR-Typist, with effect from 01.10.2000 is legal and/or justified? iii. If not, what relief Sri Panda was entitled to. 2.6. After analyzing evidence as adduced by the parties, taking note of contribution made under the Employees’ Provident Fund Scheme and maintenance of the Muster Roll as per the Odisha Contract Labour (Regulation and Abolition) Rules, 1975, and documents exhibited during the course of proceeding coupled with explanation furnished, the Industrial Tribunal came to conclude as follows: 7. Issue No.(ii) *** “Findings 8. When the second party workman has claimed that he was refused employment with effect from the 1st first party the stand of October 2000, management is that he was absconded with effect from the 1st October 2000, of course with a plea that he was engaged through a contractor. Since the stand of the first party management to the effect that the W.P.(C) Nos.12853 of 2014 & 14423 of 2014 Page 7 of 61 taken to produce satisfactory steps the second party workman was engaged through a contractor has not been negatived and it has been held that he was engaged as a DLR under the first party management and the first party management failed to substantiate the abandonment of service by way of any notice served upon the second party workman, the same is not acceptable. The aforesaid factors indirectly substantiate the claim of the second party workman that he was refused employment with effect from the 1st October 2000 and there is no Industrial compliance of the provisions of the Disputes Act to legalise the same. Therefore, it is held that the second party workman was engaged as a D.L.R. under the first party management and it terminated his service by way of refusal of employment with effect from the 1st October 2000, in violation of the provisions of Section 25-F of the Industrial Disputes Act, 1947. 9. Issue No. (iii) back wages justifiability of for his The second party workman claims reinstatement with and all regularisation of service. The reference has been made to adjudicate the dispute relating to the legality and refusal of employment made to the second party workman. In view of the aforesaid finding relating to the illegality of his termination from engagement, he is entitled to reinstatement in his previous post. Since he has not worked from the date of his refusal till this reinstatement, he is not entitled to any wages on the principle of ’no work no pay. As there is no reference the W.P.(C) Nos.12853 of 2014 & 14423 of 2014 Page 8 of 61 relating to regularisation of his service, I am not inclined to adjudicate the same in this reference. 10. Issue No.(i) challenged first party management The the maintainability of the case on the ground of limitation. Admittedly, the dispute has been raised on the 14th August 2007, i.e., after lapse of seven years. In the case of Karan Singh Vrs. Executive Engineer, Haryana State Marketing Board, reported in 2008 (116) FLR (SC) 237, the Hon’ble Supreme Court has held that the Tribunal has no authority to invalidate the reference, particularly when it has found that the order of termination violates Section 25-F of the Industrial Disputes Act, 1947. In the case in hand the first party management is found to have contravened the provisions of Section 25-F of the Industrial Disputes Act while effecting termination of service of the second party workman. In the is held to be aforesaid background, the case maintainable.” 2.7. Questioning the applicability of provisions of Section 25F of the ID Act to the employees engaged on DLR basis, who have no right to be entitled for reinstatement and the Industrial Tribunal having not taken into account the objection as to limitation in proper perspective while dealing with the reference, M/s. IDCO has filed writ petition bearing W.P.(C) No.14423 of 2014, wherein it assailed the Award dated 06.03.2014 made by the Industrial Tribunal, Bhubaneswar, with the following prayer(s): W.P.(C) Nos.12853 of 2014 & 14423 of 2014 Page 9 of 61 is, therefore, prayed that your Lordships may “It graciously be pleased to admit this writ petition, issue rule NISI in the form of writ of certiorari, calling upon the opposite parties to show cause as to why the Award dated 06.03.2014 vide Annexure-2 shall not be set aside/ quashed; And in the event the opposite party fails to show cause or shows insufficient cause, the said rule be made absolute and the Award dated 06.03.2014 vide Annexure-2 shall be set aside/quashed; And may pass any other writ(s), direction(s), order(s), relief(s) as it may be deemed fit and proper; And for this act of kindness, the petitioner shall in duty bound ever pray.” 2.8. Being aggrieved, challenge has been laid to the said Award dated 06.03.2014 by the workman in writ petition, W.P.(C) No.12853 of 2014, on the grounds inter alia that when it has been observed by the Industrial Tribunal that there was non-compliance of mandatory requirement stipulated in the provisions of Section 25F of the ID Act, and thereby preventing the workman from discharging duty with effect from 01.10.2000 was bad in law, in addition to the direction for reinstatement in previous post, the Management of M/s. IDCO should have been directed to disburse back wages. Following are the relief(s) prayed for by the workman: “Therefore, it is humbly prayed that this Hon’ble Court may kindly be pleased to admit the case of the petitioner W.P.(C) Nos.12853 of 2014 & 14423 of 2014 Page 10 of 61 and issue notice to the opposite parties to file their show cause as to why the case of the petitioner shall not be allowed and after hearing the parties the case of the petitioner be allowed And pass necessary order to set aside that portion of the Notification where the learned Presiding Officer, Industrial dated Tribunal, Bhubaneswar 11.04.2014 in Extraordinary issue No.757 of the Odisha Gazette, dated 03.05.2014] has held that the petitioner is not entitled to get any back wages [Award dated 06.03.2014, published vide Annexure-1 And further pass necessary order that the petitioner is entitled to get full back wages and continuity in service And necessary direction be given to the opposite parties for regularization of the service of the petitioner within a stipulated period. And/or pass any other order(s) which deems fit and proper for adjudication of the case. And for this act of kindness, the petitioner shall be ever prayed.”
Decision
HEARING OF THE WRIT PETITIONS: 3. These writ petitions— one by M/s. IDCO and the other by the workman— came up for hearing on 19.03.2024. Since challenge has been laid in both the writ petitions to the Award dated 6th March, 2014 made in Industrial Dispute Case No.52 of 2012 by the Industrial Tribunal, Bhubaneswar, by Order dated 22.02.2024 both the matters are tagged together. As conceded by the counsel W.P.(C) Nos.12853 of 2014 & 14423 of 2014 Page 11 of 61 for both the parties, analogous hearing of the writ petitions was taken up as the pleadings in both the matters are complete. Sri Surya Prasad Mishra, learned Senior Advocate assisted by Sri Soumya Mishra, learned Advocate, appearing for M/s. IDCO and Sri Sanjib Mohanty, learned Advocate for the workman advanced arguments for respective parties. THE RIVAL CONTENTIONS AND SUBMISSIONS: 4. In the counter affidavit filed by the workman in W.P.(C) No.14423 of 2014, refuting the averment of the M/s. IDCO in the petition that the workman “was engaged under the Executive Engineer, Bhubaneswar Construction Division-II from 01.07.1989 to 30.09.2000 by a contractor and while working in such capacity, absconded from his services from 01.10.2000”, the Management of M/s. IDCO did not allow the workman to discharge his duty with effect from 01.10.2000. It is asserted by the workman in said counter affidavit that as he had been continuously discharging his duty unblemished for about 11 years, there was no scope for the Management of M/s. IDCO to refuse engagement, but for adhering to the mandatory requirement provided under Section 25F of the ID Act. Therefore, the Industrial Tribunal has appropriately adjudicated that the workman was working as a DLR (Typist) under M/s. IDCO. Failure to substantiate the stand taken by M/s. W.P.(C) Nos.12853 of 2014 & 14423 of 2014 Page 12 of 61 IDCO that there was “abandonment of service” by the workman, it was rightfully concluded that “he was refused employment with effect from 01.10.2000”. 4.1. Drawing distinction on facts citing nature of work of the casual workman seeking regularization in service in the case of Madhyamik Shiksha Parishad, U.P. Vrs. Anil