The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.22848 of 2016 Southco Meter Readers’ Sangha, Ganjam …. Petitioner -versus- The Executive Engineer, Electrical Division, Tata Power Southern Odisha Distribution Limited, Aska, Ganjam and others …. Opposite Parties Learned advocates appeared in this case: For petitioner : Mr. A. Patnaik, Advocate For Opp. Parties : Mr. Ramanath Acharya, Advocate W.P.(C) No.6956 of 2017 The Executive Engineer, Electrical Division (Southco), Aska and others …. Petitioners -versus- Southco Meter Reader Sangha and another …. Opposite parties Learned advocates appeared in this case: For petitioners
Legal Reasoning
: Mr. Ramanath Acharya, Advocate For Opp. Parties : Mr. A. Patnaik, Advocate CORAM: JUSTICE ARINDAM SINHA JUSTICE SIBO SANKAR MISHRA Page 1 of 11 // 2 // ----------------------------------------------------------------------------------- : 1st December, 2023 Date of hearing Date of judgment : 1st December, 2023 --------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. The two writ petitions have come up for hearing. Southco Meter Reader Sangha is petitioner representing 56 workmen in W.P.(C) no.22848 of 2016. Executive Engineer, Electrical Division, Southco (management) is petitioner in W.P.(C) no.6956 of 2017. Mr. Patnaik, learned advocate appears on behalf of the workmen and Mr. Acharya, learned advocate, for the management. Both have challenged award dated 17th August, 2016. 2. It appears industrial dispute was raised by the workmen on having some of them discontinued in the service from year 2005 and the rest from 2007. There was order of reference dated 18th March, 2009. The schedule is reproduced below. “(i) whether the termination of 56 meter Readers as listed in schedule-1 of the CFR by the management of Southern Electricity Supply Company of Orissa Ltd., Berhampur and Executive Engineer Aska Electrical Division, Aska Executive Engineer G.N.E.D. Chhatrapur and Executive Engineer GSED Digapahandi are legal W.P.(C) nos. 22848 of 2016 and 6956 of 2017 Page 2 of 11 // 3 // and or justified? If not to what relief the workman is entitled to? (ii) Whether demand of SOUTHCO Meter reader Sangha, At/Po-Khameswari Patna, Aska Ganjam for regularization of services of six meter reader by the management of Southern Electricity supply company of Orissa Ltd., Berhampur and E.E. Aska Electrical Division Aska E.E.G.N.E.D. Chhatrapur and Executive Engineer GSED Digapahandi as per list in schedule II of the report of the C.O. -cum- Dist. Labour Officer Berhampur is legal and or justified.” In all there were 56 workmen. All of them alleged wrongful retrenchment. Six of them also claimed regularization. 3. The reference was initially answered by the labour Court on award dated 26th September, 2012. There was clear finding the management had no control over the workmen as to coming for work or going from work or number of days of attending work. Hence conclusion was, there existed no employer and employee relationship between the parties. The points in the reference were answered against the workmen. 4. The Sangha impugned said award in their earlier writ petition W.P.(C) no.2823 of 2023. The writ petition was disposed of by W.P.(C) nos. 22848 of 2016 and 6956 of 2017 Page 3 of 11 // 4 // judgment dated 9th October, 2015 made by the learned single Judge. We reproduce below paragraphs 5 and 11 from the judgment. “5. Learned P.O., Labour Court, without discussing any evidence adduced by the parties, came to hold that there is no employer or employee relationship between the Management and the workmen, and on the basis of such finding the Reference was dismissed. xxx xxx xxx 11. Taking into consideration all the aforesaid facts and my discussion in paragraph-9 supra, I feel inclined to remand the matter for a de novo trial by the learned P.O., Labour Court, Jeypore. The parties are free to file any additional pleadings, if they so like, within a month of their appearance before the learned P.O., Labour Court, Jeypore. They are also free to lead further evidence, if they so feel like. The parties are directed to appear before the P.O., Labour Court, Jeypore on 18.11.2015. The matter
Decision
should be disposed of by the learned P.O., Labour Court within six months from the date of filing of additional pleadings, if any, by the parties. I feel inclined to observe here that, before arriving at any finding, learned P.O., Labour Court shall take into consideration the evidence adduced and discuss the same in the judgment to justify his finding.” (emphasis supplied) Both parties accepted the judgment and went before the labour Court for fresh adjudication on restoration. W.P.(C) nos. 22848 of 2016 and 6956 of 2017 Page 4 of 11 // 5 // 5. The reference was once again answered by impugned award dated 17th August, 2016. The workmen and the management both stand offended thereby. 6. Mr. Patnaik submits, there can be no scrutiny in impugned award regarding finding of wrongful retrenchment. Earlier award was made as not based on evidence. This time around the labour Court was conscious and duly came to the finding. Having done so, paltry sum of ₹30,000/- per workers was awarded. His clients have worked from year 1997 till their retrenchment lastly in year 2007. Long period of continuous service had been wrongfully terminated. In the circumstances, there be appropriate enhancement in the compensation as the amount directed had no relation to the facts and circumstances found. 7. Mr. Acharya draws attention to circular dated 13th July, 1999 issued by his client. Text of the circular is reproduced below. “It is observed that the distribution loss of the company for the month of June’ 99 is as much as 41%. You are well aware that we have to limit the distribution loss to 35%. The billing with respect to input should be 65%. Please calculate accordingly and ascertain the units to be billed for your division. The targeted billing W.P.(C) nos. 22848 of 2016 and 6956 of 2017 Page 5 of 11 // 6 // units of your division may be apportioned subdivision- wise and section wise and communicated to all SDOs and JEs under your control. A decision has been taken for meter reading and bill distribution departmentally. You may engage the departmental workers or outsider Agency and pay them incentive at the following rates. 1) Distribution of bills in Urban areas ... 35 paise 2) Distribution of bills in rural areas ... 50 paise 3) Meter reading in Urban areas ... 50 paise 4) Meter reading in Rural areas ... 75 paise The incentives may be promptly paid for ensuring correct and timely meter reading and bill distribution. The weekly progress may be intimated through S.E./General Manager for information of the undersigned. In case you observe there is much less consumption compared to contract demand, you may change the defective meters with a new one.” (emphasis supplied) He submits, above was the engagement document. The members of the Sangha were engaged on incentive basis for purpose of obtaining meter reading as and when they would. They were not required to report for duty and thereafter depart. He reiterates, there was no W.P.(C) nos. 22848 of 2016 and 6956 of 2017 Page 6 of 11 // 7 // control by his client on said persons as to how they would discharge their duty of meter reading and thereupon obtain the incentive. 8. Unfortunately, this case was not run before the labour Court on restoration. It appears from impugned award there was finding on fact that the workmen were working from year 1999 to 2005. Evidence relied upon for such finding were documents such as meter reading statements, pay bills, cheques, pay bill register, experience certificate etc. filed by the second party (Sangha), showing that they were working continuously under the management. The labour Court said, on the other hand no evidence was produced by the management to prove their contention that the workmen were working from seven to ten days each on the month and rest of the period they did not work. It emerges that the management did not dispute the period of service between year 1999 to year 2005. They contended that service rendered by the workmen did not come within the meaning of continuous service as defined in section 25-B in Industrial Disputes Act, 1947. This contention the management was unable to demonstrate before the labour Court. Hence, finding of retrenchment. 9. Considering the earlier award though contained finding of no employer employee relationship but was set aside and the reference W.P.(C) nos. 22848 of 2016 and 6956 of 2017 Page 7 of 11 // 8 // restored, it is clear the restoration was because the learned Judge was satisfied, the labour Court in making earlier award had not based its finding on evidence. There was liberty given to the parties to adduce additional evidence on restoration. We have already said about the evidence referred to and the finding on restoration in respect of the contentions raised before the labour Court. 10. Mr. Acharya relies on judgment of the Supreme Court in Punjab State Electricity Board v. Sudesh Kumar Puri reported in 2007-II-LLJ page-1, paragraphs 7, 9 and 10. The paragraphs are reproduced below. “7. At the outset, it has to be noted that the decision in Steel Authority's case (supra) has absolutely no relevance so far as the present dispute is concerned. That relates to a case of contract labour. Present dispute is not a case of that nature. On the contrary, it appears from the materials placed on record that there was an agreement governing engagement. The payment was made per meter reading at a fixed rate and there was no regular employment ever offered to any of the respondents. The provisions of Section 2(oo)(bb) of the Act clearly applies to the facts of the present case. xxx xxx xxx W.P.(C) nos. 22848 of 2016 and 6956 of 2017 Page 8 of 11 // 9 // 9. The material on record clearly established that the engagement of the respondent was for specific period and conditional. It appears that on the appointment of regular meter readers, the engagement has been dispensed with. The contracts clearly governed the terms of engagement. 10. Above being the position, the orders passed by the Labour Court and the High Court are clearly untenable and are quashed. In two cases the concerned respondents have been engaged again on contractual basis. It shall not be construed that we have expressed any opinion on such subsequent contractual engagement.” (emphasis supplied) In context of Punjab State Electricity Board (supra) examination of said circular dated 13th July, 1999, relied upon by the management as the terms of engagement, needs to be examined. It appears from the circular that decision had been taken for meter reading and bill distribution to be done departmentally. All executive engineers were told they may engage the departmental workers or outsider agency, to do so. We made query to Mr. Acharya regarding outsider agency engaged by the department. Nothing could be shown that there was such engagement. That left meter reading and bill distribution to be done by the departmental workers. Nothing also could be shown such W.P.(C) nos. 22848 of 2016 and 6956 of 2017 Page 9 of 11 // 10 // was done. There was engagement of the workmen to obtain the meter readings and distribute the bills. Hence, there was no contract of engagement. As such, the workmen were engaged for a purpose and paid remuneration calculated presumably on the basis given in the circular. So far as the workers are concerned they had engagement, they got paid for it and they worked continuously as found by the labour Court on restoration. 11. We have not been shown anything in impugned award that can be said to be perverse, including to address the claim for enhancement of compensation. The documentary evidence on payment to the workmen were considered by the labour Court. The compensation awarded in the facts and circumstances do not require interference. We note that the restoration was by aforesaid judgment dated 9th October, 2015 and the labour Court did not inordinately delay the adjudication on restoration, to answer the reference on 17th August, 2016. The Sangha presented its writ petition on 23rd December, 2016 and thereafter the management, their writ petition on 18th April, 2017. The writ petitions remained pending all this while. As such it cannot be said that the management deliberately did not comply with the direction in the award. W.P.(C) nos. 22848 of 2016 and 6956 of 2017 Page 10 of 11 // 11 // 12. In view of aforesaid, we dispose of the writ petitions leaving the workmen to find enforcement of impugned award. ( Arindam Sinha ) Judge ( S. S. Mishra ) Judge Sks Signature Not Verified Digitally Signed Signed by: SISIR KUMAR SETHI Designation: PERSONAL ASSISTANT Reason: Authentication Location: ORISSA HIGH COURT Date: 04-Dec-2023 16:58:06 W.P.(C) nos. 22848 of 2016 and 6956 of 2017 Page 11 of 11