The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.1007 of 2023 Odisha Small Industries Corporation Ltd., Cuttack. …. Petitioner Bibekananda Nayak …. Opposite Party -versus- Learned advocates appeared in this case: For petitioner
Legal Reasoning
: Mr. Jitendra Kumar Mohapatra, Advocate For Opp. Party : Ms. Saswati Mohapatra, Advocate W.P.(C) No.10101 of 2023 Bibekananda Nayak …. Petitioner -versus- Odisha Small Industries Corporation Ltd., Cuttack. …. Opposite Party Learned advocates appeared in this case: For petitioner : Ms. Saswati Mohapatra, Advocate For Opp. Party : Mr. Jitendra Kumar Mohapatra, Advocate CORAM: JUSTICE ARINDAM SINHA JUSTICE M.S. SAHOO Page 1 of 6 // 2 // J U D G M E N T ----------------------------------------------------------------------------------- Dates of hearing: 10th May, 2022, 16th May, 2023 and 9th January, 2024 Date of judgment: 9th January, 2024 --------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. The management and the workman have respectively filed the writ petitions. W.P.(C) no.1007 of 2023 is by the management and W.P.(C) no.10101 of 2023 by the workman. In both are impugned award dated 4th December, 2021 of the Industrial Tribunal. Mr. Mohapatra, learned advocate appears for the management and Ms. Mohapatra, learned advocate, for the workman. 2. By the award there was direction for payment of compensation assessed at ₹3,00,000/- in lieu of reinstatement and back wages. Mr. Mohapatra submits, the workman was on contract and when his client did not renew the contract, his service stood terminated. In the circumstances, it was not retrenchment. The situation fell under exception (bb) in definitions section 2(oo), Industrial Disputes Act, 1947. 3. Ms. Mohapatra submits, it was a clear case of retrenchment. Her client being, at retrenchment with effect from 28th February, W.P.(C) nos. 1007 of 2023 and 10101 of 2023 Page 2 of 6 // 3 // 2018, only 32 years old there should have been direction for reinstatement with full back wages. 4. She submits, her client had applied pursuant to notice disclosed as annexure-1 to her client’s writ petition, in which requirement was for the application to reach the Managing Director on or before 24th April, 2012. The contractual appointment was said to be for supervision of project work in the posts of Supervisor, Assistant Manager and Data Entry Operator. Her client was appointed as Area Sales Officer, clearly outside the project cited in the advertisement. Hence, when her client demanded government approved scale of pay there was allegation of non-performance and termination. 5. On query from Court we have ascertained from Mr. Mohapatra that his client is a state enterprise. It should be model employer. However, it transpires that having embarked on a procedure for recruitment on contract basis pursuant to an advertisement, the workman having applied was made to sign a contract for being engaged otherwise than as assistant manager, in an inferior post of area sales officer. There was no question raised regarding maintainability of the dispute. Mr. Mohapatra brings to our W.P.(C) nos. 1007 of 2023 and 10101 of 2023 Page 3 of 6 // 4 // notice that the workman had filed affidavit dated 26th July, 2023 saying he would not claim compensation in future if he is reinstated in service forthwith to submit, the contention militates against the claim for compensation. In impugned award reason was given for directing compensation on finding that his client had already engaged other(s). In the circumstances, impugned award be set aside on allowing his
Decision
client’s petition and dismissing the writ petition of the workman. 6. The management having engaged the workman on contract basis otherwise than pursuant to the advertisement, appears to be a situation where the workman being in an inferior position was dominated to accept the contractual engagement. Be that as it may it also appears from impugned award that stand subsequently taken by the management was contrary to it earlier having found service of the workman to be up to the mark and him having received letter of appreciation. The turn round was for to say his service was unsatisfactory and therefore, the contract not to be renewed. The tribunal relied on judgment of the Supreme Court in Bharat Sanchar Nigam Limited v. Bhurumal reported in (2014) 7 SCC 177, wherein said Court declared the law on cases where there should be compensation in lieu of reinstatement and back wages as most W.P.(C) nos. 1007 of 2023 and 10101 of 2023 Page 4 of 6 // 5 // appropriate and in others, where there should be direction of reinstatement with back wages. 7. As aforesaid, we are convinced the workman was in an inferior position and in need of work, for him to have accepted contractual engagement in a post below the one advertised and in response to which he had applied. Our conviction is reinforced by the affidavit dated 27th July, 2023 filed by the workman, to demonstrate his pressing need for work and earning. It was an offer made to forgo the compensation in getting reinstatement. The management is consistent in denying reinstatement and compensation. 8. We do not find reason to interfere with impugned award. On careful perusal of facts found by the tribunal we are of view that paragraph-25 in Bhurumal (supra) stands attracted for application. Conduct of the management, deemed to be model employer, in inviting application for post of assistant manager, to select applicant workman as area sales manager must be said to be practice unfair. In the circumstances, we modify impugned award with direction for forthwith reinstatement. Considering said affidavit dated 27th July, 2023 we direct lump sum compensation in lieu of back wages for months subsequent to the affidavit, commencing from August, 2023 W.P.(C) nos. 1007 of 2023 and 10101 of 2023 Page 5 of 6 // 6 // till 31st January, 2024 on last drawn consolidated remuneration of ₹10,000/- per month at aggregate ₹60,000/-. The workman is to be reinstated from 1st February, 2024 on terms appropriate. 9. With above directions, the writ petitions are both disposed of. ( Arindam Sinha ) Judge ( M.S. Sahoo ) Judge Sks Signature Not Verified Digitally Signed Signed by: SISIR KUMAR SETHI Designation: PERSONAL ASSISTANT Reason: Authentication Location: ORISSA HIGH COURT Date: 10-Jan-2024 13:26:22 W.P.(C) nos. 1007 of 2023 and 10101 of 2023 Page 6 of 6