The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CONTC No.1696 of 2021 Govinda Chandra Sahu …. Petitioner Mr.Sibaprasad Pati, Advocate -versus- Anu Garg & others …. Contemnors Mr.P.K.Rout, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA Order No. ORDER 06.01.2023 04. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Additional Government Advocate. 3. The present contempt application is in the shape of second journey of the Petitioner to this Court for non-compliance of the order dated 03.12.2020 passed in CONTC No.3485 of 2020. 4.
Legal Reasoning
The factual background of the case in brief, is that initially the applicant approached the Orissa Administrative Tribunal by filing O.A.No.620 of 1999 along with one Indramani Mallick, who had also filed O.A.No.610 of 1999. The case of the Petitioner in those Original Applications are that the applicant in O.A.No.610 of 1999 was initially appointed as Turner Grade II and joined on 12.11.1965 under Stores and Mechanical Division, Balimela in Work Charged establishment. The applicant (present Petitioner) in O.A.No.620 of 1999 joined in service as a Mechanic Grade III on 16.04.1964 in the // 2 // work charged establishment under the said Stores and Mechanical Division, Balimela. In course of his employment the Petitioner was given promotion to the post of Mechanic Grade-II. Both the applicants have retired from service on attaining the age of superannuation with effect from 31.12.1998 and 30.11.1998 respectively. 5. The grievance in the aforesaid Original applications are that though they have rendered a long period of service under the Government yet they were not absorbed in any regular establishment and as such they did not get the post-retiral benefits and pensionary benefit as due and admissive to the regular employees. Further, while lodging the claim for regularization of their services in regular establishment, the abovenamed two applicants including the Petitioner referred to Government instruction to the effect that if a work charged employee completes five years of services and the post is of a permanent nature and is not likely to abolished, the work charged employees will qualify for absorption. However, since the Petitioner who had worked for a quite long period of time was not absorbed in any regular post, he is compelled to approached the Orissa Administrative Tribunal. 6. The Orissa Administrative Tribunal took both O.A.Nos.610 of 1999 and 620 of 1999 together and vide order dated 19.04.1999 directed that the applicants be absorbed in any establishment post from the date they completed five years continuous service till the date when they retired from service, for the purpose of pension and other pensionary benefits. After such absorption, their pension and other pensionary benefits shall be computed on the basis of the notional fixation of pay in the regular establishment by adding annual increments which fell due and also taking into account various // 3 // revisions of pay scale that were introduced and the process was directed to complete within three months. The aforesaid order passed by the Tribunal was assailed by the State Government in O.J.C.No.7024 of 2000. The said O.J.C. came up before a Division Bench of this Court and the Division Bench of this Court vide order dated 12.05.2017 was pleased to confirm the order passed by the Tribunal and accordingly the writ application preferred by the State has been dismissed. Thereafter the matter was carried to the Hon’ble Supreme Court by filing SLP No.019131/2018. On perusal of the record, it appears that the matter was listed on 05.07.2018 before the Supreme Court and vide order dated 05.07.2018 the SLP has been dismissed thereby the order passed by the Tribunal confirmed by this Court has attained the finality. 7.
Legal Reasoning
Additionally, it is further contended by the learned counsel for the Petitioner that other similarly placed employees namely Chaitana Gouda and others approached the learned Tribunal by filing
Decision
O.A.No.622 of 999 which was also disposed of on identical orders on 22.03.1999. It is further contended by the learned counsel for the Petitioner after disposal of the Original Application, the relief sought for and as has been directed by the Tribunal which was also confirmed by this Court in OJC No. 2087 of 1999 and further confirmed by the Hon’ble Supreme Court with dismissal of SLP vide order dated 10.04.2003 has been given effect to by the authorities vide their letter dated 28.08.2009 under Annexure-6. On perusal of the Annexure-6, it appears that the abovenamed Chaitanya Gauda has been absorbed by creating a post and the scale of pay has been fixed at Rs.2610-60-3150-65-3540/- by creating a post in the Office of the Upper Kolab, Head Works Division. Further, the very same order date 28.08.2009 reveals that the post was also created in the // 4 // Office of the Upper Kolab Mechanical Division for M.N.Baig, Arakhita Nayak and Pangi Madhu befitting to their qualification. 8. So far as the present Petitioner is concerned, it is submitted by the learned counsel for the Petitioner referring to Paragraph-11 to the compliance Affidavit filed by the contemnor learned counsel for the Petitioner submits that the service of the Petitioner has been regularized and has been absorbed under CCE,Potteru Irrigation Project, Balimela. Paragraph-11 of the compliance Affidavit filed by the contemnor is as follows: “11. That in the meantime, the EIC WR, Odisha vide Memo No.33451(WE/SB) dated 14.12.2022 has directed the CCE, Potteru Irrigation Project, Balimela, who in turn has directed the Superintending Engineer, Earth Dam Division, Chitrakonda vide Memo No.2201 dated 15.12.2022 to regularise the applicant under regular establishment subject to sanction of the pension with effect from 01.12.1998. Finally, the Superintending Engineer, Earth Dam Division, Chitrakonda has sanctioned Provisional Pension in favour of the applicant, Sri Gobinda Chandra Sahu, Ex-Peon vide Office Order No.2432 dated 16.12.2022 and already deposited the same in Bank Account of the applicant. Copies of Memo No.33451 (WE/SB) dated 14.12.2022, Memo No.2201 dated 15.12.2022 and Office Order No.2432 dated 16.12.2022 have been annexed as Annexure-2, Annexure-3 & Annexure-4 respectively. Referring to order dated 14.12.2022 under Annexure-2 to the Compliance Affidavit, learned counsel for the Petitioner submits that the present Petitioner was brought over to the regular establishment to the post of Peon with effect from dated 01.03.1979 against the existing vacancy in the time scale of pay of Rs.200-2-202-3-250/- as per ORSP Rules, 1974 in the of the erstwhile Executive Engineer, Earth Dam Division, Chitrakonda now Superintending Engineer Earth Dam Division, Chitrakonda). In such view of the matter, learned counsel for the Petitioner submits that although similarly // 5 // placed other persons have been brought over to regular establishment in the post and cadre they were serving and their pay was protected by creating temporary post. However, in the case of the Petitioner he has been brought over to the regular establishment in the post of Peon which is admittedly a Junior Grade Post so far as the present Petitioner is concerned and in such view of the matter, learned counsel for the Petitioner submits that the order passed by the Tribunal confirmed by this Court and upheld by the Hon’ble Supreme Court has not been implemented in letter and spirit. 9. Learned Additional Government Advocate on the other hand referring to the compliance affidavit submits that pursuant to the direction issued by the Tribunal as confirmed by this Court and eventually confirmed by the Hon’ble Supreme Court, the Petitioner has been brought over to the regular establishment and in support of such contention, learned counsel for the State referred to letter under Annexue-2. It is further contended by the learned counsel for the State that the order passed by the Tribunal which has been confirmed by this Court as well as the Hon’ble Supreme Court has not been specifically stated that the post and Grade in which the Petitioner is to be regularized. Therefore, the authorities have take a decision and in compliance of the order passed by the Tribunal has regularized the Petitioner in the post of Peon against the existing vacancy in the time scale of pay. Therefore, it is further contended by the learned counsel for the Petitioner that the order passed by the Tribunal has been complied with in its entirety and as such it is urged that the Contempt Petition is devoid of merit and the same be also dismissed. 10. After hearing learned counsel for both the parties and upon a careful consideration of the rival contentions as well as the pleadings and materials placed before this Court for consideration, this Court // 6 // finds that although the direction of the Tribunal as confirmed by this Court and the Hon’ble Supreme Court has been complied with. However taking into consideration the fact that similarly situated persons have been regularized in the grade and post in which they were working before their retirement and accordingly they have been extended with the benefit as is due and admissible to such post. However, the same has not been considered in the case of the Petitioner. The Petitioner although was working as Mechanic (Grade- II) at the time of his retirement has been brought over to the regular establishment and absorbed against a vacant post of Peon with lesser pay scale. Therefore, such compliance affidavit falls short of consideration and the obligation caste upon the authority to implement the order passed by this Court as well as the Hon’ble Supreme Court in its letter and spirit. 11. In view of the aforesaid analysis and further taking into consideration the peculiar facts and circumstances of the case, this Court grants a last opportunity by directing the Contemnor to comply with the direction of the Tribunal as confirmed by this Court as well as Hon’ble Supreme Court within a period of three months hence keeping in view the order passed in case of similarly placed persons Chaitanya Gauda and others. Accordingly service benefit as is due and admissible be calculated, sanctioned and disbursed in favour of the Petitioner within the aforesaid time. The Opposite Party- Contemnors are directed to act upon on production of certified copy of this order. 12. With the aforesaid observation the CONTC stands disposed of. 13. In the event, the order is not complied with as has been directed above, it is open for the Petitioner to file a fresh contempt petition for drawing a contempt for non-compliance of the direction // 7 // issued by the Tribunal as well as by this Court and Hon’ble Supreme Court. 14. Issue urgent certified copy of this order as per Rules. RKS ( A.K. Mohapatra ) Judge