The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No.584 of 2022 and batch In W.A. No.584 of 2022 State of Odisha Appellant Mr. M.K. Khuntia, Addl. Government Advocate …. -versus- Odisha Mining Workers Federation and another …. Respondents Mr. S.S. Das, Senior Advocate for Respondent No.1 Mr. A.K. Parija, Senior Advocate assisted by Mr. A.K. Panigrahi, Advocate for OMC In W.A. No.607 of 2022 Odisha Mining Corporation Limited …. Appellant Mr. Ashok Kumar Parija, Senior Advocate assisted by Mr. A.K. Panigrahi, Advocate -versus- Durga Charan Das and others
Legal Reasoning
Respondents Mr. N.C. Das, Advocate for Respondents 1 & 2 Mr. M.K. Khuntia, Addl. Government Advocate for the State …. In W.A. No.585 of 2022 State of Odisha Appellant Mr. M.K. Khuntia, Addl. Government Advocate …. -versus- Sri Rabinarayan Das and others …. Respondents Mr. Budhadev Routray, Senior Advocate assisted by Mr. J. Biswal, Advocate for Respondents 1 to 4 Mr. A.K. Parija, Senior Advocate assisted by Mr. A.K. Panigrahi, Advocate for OMC In W.A. No.586 of 2022 State of Odisha Appellant Mr. M.K. Khuntia, Addl. Government Advocate …. -versus- Durga Charan Dash and others …. Respondents Mr. N.C. Das, Advocate for Respondents 1 & 2 Mr. A.K. Parija, Senior Advocate assisted by Mr. A.K. Panigrahi, Advocate for OMC Page 1 of 8 In W.A. No.608 of 2022 Odisha Mining Corporation Limited …. Appellant Mr. Ashok Kumar Parija, Senior Advocate assisted by Mr. A.K. Panigrahi, Advocate -versus- Sri Rabinarayan Das and others Respondents Mr. Budhadev Routray, Senior Advocate assisted by Mr. J. Biswal, Advocate for Respondents 1 to 4 Mr. M.K. Khuntia, Addl. Government Advocate for the State …. In W.A. No.609 of 2022 Odisha Mining Corporation Limited Appellant Mr. Ashok Kumar Parija, Senior Advocate assisted by Mr. A.K. Panigrahi, Advocate …. -versus- Odisha Mining Workers Federation and others …. Respondents Mr. S.S. Das, Senior Advocate Mr. M.K. Khuntia, Addl. Government Advocate CORAM: THE CHIEF JUSTICE MR. JUSTICE MURAHARI SRI RAMAN Order No. 05. This matter is taken up through Hybrid mode.
Decision
ORDER 06.03.2024 2. These intra-Court appeals have been preferred by the State of Odisha and Odisha Mining Corporation Limited (OMC) respectively assailing a common judgment dated 23.12.2021 passed by learned Single Judge of this Court in W.P.(C) Nos.1018 and 8554 of 2014 and W.P.(C) No.18578 of 2015. Page 2 of 8 3. It is noteworthy that three writ petitions i.e., W.P.(C) Nos.1018 and 8554 of 2014 and W.P.(C) No.18578 of 2015 were filed by the employees of OMC seeking issuance of a writ of mandamus to the opposite parties therein to extend the benefit of pension scheme at par with the employees of similarly situated Public Sector Undertakings. All the three writ petitions were heard together by learned Single Judge. The learned Single Judge, by a common judgment dated 29.01.2019, allowed those writ petitions holding in paragraph 18 as under: “18. In view of Section 17 of the EPF and MP Act, 1952, the State Government has exempted OMC Ltd. and the impugned order dated 28.04.2014 in Annexure-9 refusing to extend the pensionary benefits to the employees of OMC Ltd. is arbitrary and without any authority of law. Needless to say that in similar circumstances the Orissa State Electricity Board, as it was then, was exempted from the ambit of EPF and MP Act, 1952, which was subject matter of consideration in a batch of cases in SLP (Civil) No. 1983 of 1994, and SLP (Civil) Nos. 3078, 3080, 3084, 3025 and 3086 of 1995 and the apex Court held that the EPF and MP Act, 1952 on introduction of pension scheme in April, 1965 is a matter which has to be determined and the same can be implemented by the State under Section 17. Therefore, if the State has already exercised its power under Section 17 of the EPF and MP Act, 1952 granting exemption, in that case subsequent non-extension of pensionary benefit to the employees of the OMC Ltd. amounts to arbitrary and unreasonable exercise of powers by the authorities concerned.” 4. Learned Single Judge further held in paragraphs 25 and 26 as under: “25. In Indra Sawhney v. Union of India, (1992) Supp.3 SCC 217: AIR 1993 SC 477 the apex Court held that the doctrine of equality is a dynamic and evolving concept. The concept of equality before Page 3 of 8 law means that among equals the law should be equal and should be equally administered and the likes should be treated alike. All that Article 14 guarantees is a similarity of treatment and not identical treatment. to the same which has received 26. In view of the law laid down by the apex Court and applying to the present context, since the similarly situated PSUs, such as, OPGC and OHPC, having come within the Gold category, have extended pensionary benefit their employees, non-extension of such benefit to the similarly situated PSU like OMC Ltd., even though as a matter of principle the State Government has approved the concurrence of the Finance Department, amounts to violation of Article 14 of the Constitution of India. As the equality is the basic feature of the Constitution and the concept of Article 14 was interpreted by the Supreme Court as a concept of equality confined to the aspects of discrimination and classification, this Court is of the considered view that in the order impugned dated 28.04.2014, which has been passed while complying with the order dated 08.10.2012 passed in W.P.(C) No. 19405 of 2009, this basic principles have been lost sight of. Therefore, the order impugned dated 28.04.2014 in Annexure-9 cannot sustain in the eye of law and accordingly the same is liable to be quashed and is hereby quashed. This Court directs the opposite parties to reconsider the extension of pensionary benefit, as per the pension scheme approved by the State Government and concurred by letter dated 05.10.1991 in Annexure-4, as expeditiously as possible, preferably within a period of four months from the date of communication of the judgment” the Finance Department in 5. The said judgment of the learned Single Judge became subject matter of challenge in intra-Court appeals filed by the State of Odisha giving rise to W.A. Nos.445, 612 and 613 of 2019. A Division Bench of this Court after having considered the rival Page 4 of 8 submissions advanced on behalf of the parties, by its common order rendered on 22.06.2021 concluded as under: “30. Therefore, the Court is not satisfied that the contesting Respondents have made out a case for the applicability of Article 14 of the Constitution vis-à-vis the pensionary benefits enjoyed by the employees of OHPC. Consequently, the Court is unable to agree with the conclusion of the learned Single Judge in the impugned order that the decision dated 28th April, 2014 of the Appellant rejecting the proposal for introduction of a pension scheme in OMC was violative of Article 14 of the Constitution and therefore required to be set aside on that ground. 31. However, this Court finds that there are other grounds urged by the contesting Respondents on the intrinsic merit of the pension scheme which had earlier been approved by the Government of Odisha and for the implementation of which a mandamus was sought. There was no occasion for the learned Single Judge to examine these other grounds in support of the prayers in the writ petition of the contesting Respondents herein. 32. Consequently, while setting aside the impugned judgment of the learned Single Judge dated 29th January, 2019 for the aforementioned reasons, this Court restores the writ petitions to the file of the learned Single Judge for a fresh consideration on grounds other than the ground already examined by the learned Single Judge. It is clarified that this Court has expressed no opinion on the merits of the other grounds urged in the writ petitions and leaves contesting Respondents herein (i.e. the writ petitioners) as well as the contentions of the present Appellant in opposition thereto open to be urged before the learned Single Judge in accordance with law.” contentions the the of 6. The Division Bench in the said common order further observed in paragraph 33 as under: Page 5 of 8 33. The writ petitions shall now be listed before the learned Single Judge on 1st August, 2021 for directions. The Appellant shall file not later than two weeks prior to that date, affidavits and the documents which according to it are relevant for the issues arising for consideration in the said writ petitions with advance copies to the counsel for the writ petitioners who shall file their response thereto by that date, i.e., 1st August, 2021. It is made clear that the learned Single Judge will not grant any adjournment to any of the parties for that purpose. [Emphasis added] 7. It is not in dispute that in the light of the observations made by the Division Bench in W.A. Nos.445, 612 and 613 of 2019 as noted above, an affidavit was filed by the State of Odisha within the time stipulated in the order of the Division Bench. The affidavit filed by the State of Odisha was however rejected by the learned Single Judge by an order dated 08.12.2021 passed in W.P.(C) Nos.1018 and 8554 of 2014 and W.P.(C) No.18578 of 2015 in the following terms: “2. An affidavit has been filed by opposite party no.1 in W.P.(C) No.18578 of 2015 incorporating certain documents which were not made part of the record when the matter was argued before the Single Bench. But as a matter of course, after remand from the Division Bench, this Court is to take into consideration whatever material available on record at the time when the matter was heard into before consideration extraneous documents which had been placed before the Division Bench and filed before this Court by way of affidavit on 14.07.2021. Thereby, such affidavit is hereby rejected.” this Court, but not by taking 8. It is one of the grounds taken on behalf of the appellants in the present batch of appeals that the rejection of the affidavit by the said order dated 08.12.2021 is manifestly in teeth of the observation Page 6 of 8 made by the Division Bench in the order dated 22.06.2021 in W.A. Nos.445, 612 and 613 of 2019. After having rejected the affidavit by the aforesaid order dated 08.12.2021, the learned Single Judge allowed all the three writ petitions on remand, by a judgment and order dated 23.12.2021. The said judgment dated 23.12.2021 is under challenge in the present batch of intra-Court appeals. 9. We have heard Mr. A.K. Parija, learned Senior Counsel for the OMC; Mr. M.K. Khuntia, learned Additional Government Advocate for the State of Odisha; Mr. S.S. Das, learned Senior Counsel for the respondent-Odisha Mining Worker’s Federation; Mr. Budhadev Routray, learned Senior Counsel and Mr. N.C. Das, learned counsel for the respective respondents. 10. It has been argued on behalf of the appellants that the impugned decision rendered by the learned Single Judge is in teeth of the decision of the Division Bench in W.A. Nos.445, 612 and 613 of 2019 whereby the State of Odisha was given liberty to file an affidavit which was rejected by the learned Single Judge. 11. Arguments have been advanced on behalf of the respondents on various aspects including the scope of intra-Court appeals. It has also been argued on their behalf that in the facts and circumstances of the present case, the State of Odisha did not have the locus standi to maintain the appeals. Per contra, it has been argued on behalf of the appellants that OMC has also preferred appeals and the State of Odisha being party to the writ petitions had a right to question the correctness of the decision of the learned Single Judge. 12. Learned counsel for the parties have relied on certain decisions of the Supreme Court which are not required to consider and refer Page 7 of 8 to in view of the opinion which we have formed and the nature of order which we intend to pass in the present matters. 13. We are satisfied that the affidavit filed on behalf of the State of Odisha pursuant to the liberty granted by the Division Bench of this Court in the order dated 22.06.2021 in W.A. Nos.445, 612 and 613 of 2019 required consideration by the learned Single Judge and could not have been rejected at the very threshold. 14. On the sole ground of rejection of the affidavits filed on behalf of the State of Odisha in tune with the observations made in paragraph 33 of the order dated 22.06.2021, the impugned judgment of the learned Single Judge deserves interference. Accordingly, the impugned judgment dated 23.12.2021 is hereby set aside. Consequently, let W.P.(C) Nos.1018 and 8554 of 2014 and W.P.(C) No.18578 of 2015 be restored to their original files to be heard by an appropriate Bench. 15. The writ appeals are allowed with the aforesaid observations. Chief Justice (Chakradhari Sharan Singh) Judge ( M.S. Raman ) S.K. Guin/PA Signature Not Verified Digitally Signed Signed by: SUBASH KUMAR GUIN Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Mar-2024 15:39:07 Page 8 of 8