Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK W.P.(C) No.12190 of 2020 Narendra Kumar Rath ..… Petitioner State of Odisha and others ….. Opp. Parties -Versus- W.P.(C) No.12191 of 2020 Kartik Basantaray ..… Petitioner -Versus- State of Orissa and others ….. Opp. Parties W.P.(C) No.12193 of 2020 Ashok Kumar Barik ..… Petitioner State of Orissa and others ….. Opp. Parties -Versus- For Petitioners (in all Writ Petitions) For O.P. No.1 (in all Writ Petitions)
Legal Reasoning
: Mr. Ashok Kumar Panigrahi, Adv. : Mr. G.N. Rout, ASC For O.P. Nos. 2 & 3) (in all Writ Petitions) : Mr. S.K. Mishra, Senior Advocate CORAM: JUSTICE SANJAY KUMAR MISHRA ----------------------------------------------------------------------------------------- Date of Hearing & Judgment: 10.07.2023 --------------------------------------------------------------------------------------- S.K. Mishra, J. The present Writ Petition has been listed along with other connected Writ Petitions, the Opposite Party-Employer of the Petitioners in the said Writ Petitions being same and identical issues being involved in all the said connected cases with identical prayers. Hence, all the matters are heard together and are disposed of vide this common judgment and W.P.(C) No.12190 of 2020 is taken up as lead case. 2. The Petitioner has preferred the Writ Petition challenging the Order dated 18.03.2020 passed by the Opposite Party No.2, wherein his representation to grant the benefit of ‘Until Further Order’ (UFO) status and extending the consequential financial benefits like annual increment, house rent allowance, leave salary and opening of service book, has been rejected allegedly contrary to order of this Court dated 23.07.2019 in W.P.(C) No.12305 of 2019. 3. The Petitioner was engaged as Sales Assistant-Cum- Godown Assistant since 06.12.1999 temporarily on daily wage basis or till regular appointment is made under the Odisha State Civil Supplies Corporation Limited, shortly, the Corporation. While working as such, the Board of Directors of the Corporation in its Minutes of 186th Meeting held on 04.06.2019, vide Item W.P.(C) No.12190 of 2020 Page 2 of 12 No.186/6, in the matter conferment of Until Further Order (UFO) status upon the left out employees of Corporation took the following decisions. “Item No.186/6: Conferment of the status of “Until Further Order” upon left out employees of OSCSC Ltd. The Managing Director apprised the Board Members about the text of the agenda note as well as the order of the Hon’ble High Court Fourteen employees of the Corporation have not yet availed financial benefit at par with UFO category employees in pursuance of the decision made in the 156th meeting of Board of Directors. The criterions of their disablement were audit recovery, departmental proceedings and Vigilance Cases. The Board of Directors were informed about the extension of financial benefits to one such employee, namely, Sri Bhramarbar Ojha, SA-cum-GA because of Court order and the context of the proposal to extend the same in others similarly footed employees. The Board supersession of the earlier decision agreed to confer the status of UFO upon the left out employees following the prescribed route barring the ones against whose Vigilance Proceeding is on. The number of the employees to be thus considered for scale up is 10(ten).” (Emphasis Supplied) 4. The grievance of the Petitioner is that one Bhramarbar Ojha, who is similarly placed person like the present Petitioner, has been extended with the benefit of UFO status though against him vigilance case is pending, in the guise of direction given by this Court. Similarly, it has been specifically averred that one Sunil Kumar Das, who is also similarly placed person like the Petitioner, has been extended the UFO status though against him vigilance case is pending. To demonstrate such discrepancy and W.P.(C) No.12190 of 2020 Page 3 of 12 disparity, the Petitioner has annexed Office Orders dated 17.04.2019, 03.07.2019 and 14.03.2019 as Annexure 4 to 6, respectively. It has further been averred that illegality has been committed by the Corporation in the matter of extending the benefits of UFO status in favour of some of the employees against whom vigilance cases are pending, vide draft list dated 08.03.2019 issued by the Corporation (Annexure-7), where from it can be well revealed illegality in the shape of discrimination has been meted out to the Petitioner by the Corporation. Further, the case of the Petitioner is that the Board of Directors, in its Meeting held on 30.03.2012, took a decision to extend the UFO status in favour of the employees, subject to their non- involvement in misappropriation of Corporation funds. But, contrary to the said decision, in some cases, despite pending of vigilance cases so also disciplinary proceeding against employees, the said benefits of UFO status were extended in favour of those similarly placed persons, where as the Petitioner has been debarred from such benefits. 5. Being noticed, the Opposite Party No.2-Corporation has filed Counter Affidavit almost admitting and reiterating facts, as detailed in the Writ Petition. However, in response to the averments made in Paragraphs 6, 7 and 8 of the Writ Petition, W.P.(C) No.12190 of 2020 Page 4 of 12 though the said allegations made by the Petitioner have been admitted, but the Corporation has taken a stand that the said benefits of UFO status were extended to those employees being so directed by this Court, followed by rejection of Review Application filed by the Corporation, so also confirmation of the Order of this Court by the apex Court and initiation of contempt proceeding against the Corporation for non-implementation of the said orders. Paragraphs 8 and 9 of the Counter Affidavit, being relevant for adjudication of the present lis, are reproduced below: to in reply the statements made in “8. That paragraphs-6, 7 and 10 of the writ petition it is humbly submitted that a vigilance Case has been instituted against Sri Ojha in Vigilance P.S Case (d) P.C. No.2 dated 31.03.2010 u/s13(2) Act,1988, 409/468/471/477-A/120-B IPC/7 EC Act-1955 and a D.P. bearing No.909 dated 17.01.2011 has also been initiated for recovery of Rs.4,09,385/-. (c) Sri Bhramarbar Ojha, SA-cum-GA (adhoc) had filed a Writ in W.P.(C) No.3773/2010 with a prayer to extend UFO status to him since he has not been given such benefit because of pendency of a disciplinary proceeding & vigilance case against him. The writ was disposed of on 28.02.2012 with a direction that all such benefit which is granted to an UFO employee may be extended to the petitioner w.e.f. 12.05.1998 within 02 months and regularization of the service of the petitioner shall be considered in due course as and when vacancy arises. Due to non-compliance of the court order dated 28.02.2012, the petitioner filed a contempt petition bearing No. CONTC No.1875/2012. In order No.08 dated 22.02.2019, this Hon’ble Court disposed of the contempt proceeding relying on the submission W.P.(C) No.12190 of 2020 Page 5 of 12 of the conducting lawyer of the Corporation that the order in question has already been complied with vide order dated 21.02.2019 passed by the M.D., OSCSC Ltd. Fact remains compliance was made in respect of 75 number of employees which did not include the applicant Sri Bhramarbar Ojha, SA-cum-GA. The matter of Sri Ojha could not be acted upon because of the decision by the Board of Directors not to confer the status of 'UFO' and extend financial benefit to the employees who are tagged with departmental proceedings, misappropriation and audit recovery. Accordingly, as per kind approval of the Chairman, OSCSCL, the order of this Hon'ble Court was complied with vide office order No.5894 dated 17.04.2019 and later on the matter was placed before the 186th Board of Directors Meeting held on 04.06.2019 (under item No 186/6) for its approval and accordingly the Board of Directors have converted the Adhoc & DLR employees carrying the tags of Departmental proceeding and Audit Recovery to UFO via the beaten route on the basis of inter-se-seniority, leaving the vigilance cases. Thus, in view of the order of this Hon’ble Court the Corporation implemented the same. In view of the circumstances as stated above, it is clear and conspicuous that the action taken earlier to extend the benefit of UFO status was not with an intention to deviate from the settled principles of Board but for due compliance of the order of this Hon’ble Court. 9. That in reply to the statements made in paragraphs-8 & 9 of the writ petition it is humbly submitted that Sri Sunil Kumar Das, S.A.-cum-G.A. was not considered for being upgraded to UFO status because of pendency of a vigilance case against him. Sri Das along with 11 others had filed a case before the Hon’ble High Court in W.P.(C) No.20495/2011 which was disposed of on 20.12.2011 with a direction to the Opposite the benefits of annual Parties increments/ HRA/Leave etc. w.e.f. 12.05.1998 and to consider regularization of their service in due course as and when vacancy arises. Though case of some of the co-applicants was considered the case of Sri Das was not considered due to pendency of a vigilance case against him and the Board's earlier to extend W.P.(C) No.12190 of 2020 Page 6 of 12 decision that ‘the benefits to be extended to the employee subject to non-involvement of any case of misappropriation, defalcation of Corporation funds’. A petition bearing No. REVPET No. 195/2012 was filed for review of order dt.20.12.2011 but the same was dismissed by the Hon’ble Court vide order No.03 dated 26.04.2018. Consequent upon dismissal of Review Petition by this Hon’ble Court, Corporation preferred SLP challenging the Order of this Hon’ble Court dismissing the Review Petition vide Diary No. 30239/2018 in the Hon'ble Supreme Court. However, the SLP was dismissed. 1n the Board of Directors Meeting (184th) held on 04.01.2019 the Board decided to comply with the order of this Hon’ble Court. In the meantime, Sri Pravat Kumar Senapati & 11 others including Sri Sunil Das had filed a contempt case in CONTC No.872/2012 for non- compliance of the order dated 20.12.2011 of this Hon'ble Court. While dismissing the Review petition, as per request of the conducting Advocate, this Hon’ble Court vide order dated 26.04.2018 allowed the O.P No.2 (M.D., OSCSCL) to comply the order within 03 months from that date. The contempt petition was dropped and in case of non-compliance within the stipulated period, the petitioner was given liberty to file application to recall the order. On account of non- compliance of the order dated 20.12.2011, the petitioners in the said case filed I.A No.20/2019 and prayed for recall of order dated 26.04.2018 and pass appropriate order. In view of dismissal of review petition, dismissal of SLP it was decided in the 184th Board of Directors Meeting on 04.01.2019 to implement the order of this Hon'ble Court forthwith. Accordingly, U.F.O status was given to the applicant Sri Sunil Kumar Das vide Office Order No.3905 dated 14.03.2019. Hence in the above circumstances the extension of UFO status to an employee was not due to deviation of principles decided by the Board due to direction of this Hon'ble Court.” (Emphasis supplied) 6. During pendency of the present Writ Petition and connected matters, one of the Petitioner namely, Mohan Kumar Sahu, who W.P.(C) No.12190 of 2020 Page 7 of 12 is the Writ Petitioner in W.P.(C) No.12188 of 2020, has died in the meantime . An Affidavit has been filed by the Petitioner in the present Writ Petition enclosing thereto various communications made by the Authority concerned of the Corporation, to demonstrate that the financial benefits, in terms of prayer made by Mohan Kumar Sahu in W.P.(C) No.12188 of 2020, have been extended in favour of the legal heirs of the deceased employee without any direction from this Court. 7. In response to the said Affidavit, a reply Affidavit has also been filed by the Opposite Party No.2-Corporation stating therein that after death of Mohan Kumar Sahu, the Superintendent of Police, Vigilance, Berhampur Division, Berhampur has intimated vide letter dated 17.08.2021 that the Vigilance Case No.GR 12 of 2010 pending against Mohan Kumar Sahu has been abated vide Order dated 26.07.2021. Accordingly the Corporation, vide Office Order dated 15.09.2021, dropped the domestic enquiry initiated against Mohan Kumar Sahu, as per G.A. Department Circular bearing No.19806 dated 21.08.2012. Since the vigilance case against Mr. Sahu got abated , as per the decision of the Board of Directors in its 156th Meeting held on 30.03.2012, the financial benefits in terms of the UFO status have been extended in favour of the legal heirs of late Mohan Kumar Sahu. W.P.(C) No.12190 of 2020 Page 8 of 12 8. Learned Counsel for the Petitioner submitted that in view of such clear-cut admission by the Corporation in its Counter Affidavit, since the benefits of UFO status have been extended in favour of the similarly placed employees of the Corporation despite pendency of vigilance case as well as departmental proceeding against them, his client deserves the extension of similar benefit at par of his co-employees and there is no justification on the part of the Corporation to debar the Petitioner from such benefits. 9. Mr. Mishra, learned Senior Counsel for the Corporation submitted that based on the Order dated 30.11.2011 in W.P.(C) No.9349/2009, a direction was given by this Court in W.P.(C) No.20495 of 2011 to extend the benefits of annual increment, house rent and leave salary to the Writ Petitioners with further direction to open regular service book. Review Petition preferred against the said Order was rejected, followed by dismissal of the SLP and initiation of the contempt proceeding against the Corporation. Under such compelling circumstances, the benefits of UFO status have been extended in favour of Sunil Kumar Das. He further submitted that it is not clear from the said Order passed by the coordinate Bench in W.P.(C) No.20495 of 2011 that there was a specific averment to the effect that against one of the W.P.(C) No.12190 of 2020 Page 9 of 12 Petitioners i.e. Sunil Kumar Das, despite pendency of disciplinary proceeding so also vigilance case, the benefits of UFO status has to be extended in favour of him. 10. From the pleadings on record, so also submissions made by the learned Counsel for Parties, it is amply clear that though there is a specific averment in the Writ Petition that despite pendency of vigilance cases against Bhramarbar Ojha and Sunil Kumar Das, UFO status was extended in their favour with consequential and financial benefit, there is no specific denial in the Counter Affidavit that the cases filed by Sri Bhramabar Ojha and Sunil Kumar Das were simply for extension of financial benefits like annual increment, house rent and leave salary and no prayer was made for extension of UFO status despite pendency of departmental as well as vigilance cases against them. Rather, it has been admitted in the Counter Affidavit that despite pendency of vigilance cases as well as departmental proceeding against them, being directed by this Court, all of them were conferred with UFO Status. Further, it is well revealed from the Affidavit filed by the Petitioner dated 13.11.2022, so also documents appended to the said Affidavit, Sri Mohan Kumar Sahu, who is the Petitioner in W.P.(C) No.12188 of 2020, approached this Court with similar W.P.(C) No.12190 of 2020 Page 10 of 12 prayer as of the Petitioner, against whom vigilance case so also departmental proceeding were pending during his life time. Mohan Kumar Sahu died during pendency of the Writ Petition. Thereafter, all the financial benefits have been extended in favour of the legal heirs of late Mohan Kumar Sahu, what he would have got had he been extended with UFO status, on the plea that after the death of Sri Sahu, the vigilance case so also departmental proceeding were dropped. Hence, his legal heirs are entitled to the said financial benefits in terms of the Resolution of the Board of Directors, as decided in its Meeting held on 30.03.2012. 11. In view of the admitted facts on record, as detailed above, this Court is of the view that it is a clear-cut case of discrimination meted out to the Petitioner with regard to extending the UFO status at par with similarly placed co- employees, in favour of whom the said benefits of UFO status have been extended since long with consequential and financial benefits and Office Order dated 18.03.2020 is a product of non- application of mind, illegal so also unjustified and is liable to be set aside. Accordingly, the Office Order dated 18.03.2020, as at Annexure-1, is set aside. W.P.(C) No.12190 of 2020 Page 11 of 12 12. The W.P.(C) Nos.12191 and 12193, both of 2020, being identical to W.P.(C) No.12190 of 2020 with identical prayer, the impugned Orders in the said Writ Petitions, both dated 18.03.2020, are also set aside. 13. The Opposite Party Nos. 2 and 3 are directed to extend the UFO status to all the Petitioners from the date their counter- parts were extended with such status with all consequential benefits at the earliest, preferably within a period of three months from the date of production of certified copy of this Judgment. 14. Needless to mention here that if the financial benefits, as directed, are not released in favour of the Petitioners within the stipulated time frame, the same shall carry interest @ 9% till the date of actual payment.
Decision
15. Accordingly, all the Writ Petitions are allowed and disposed of. No order as to cost. JUDGE (S.K. MISHRA) Orissa High Court, Cuttack Dated 10th July, 2023/Padma Signature Not Verified Digitally Signed Signed by: PADMA CHARAN DASH Designation: Secretary In-Charge Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Jul-2023 07:55:40 W.P.(C) No.12190 of 2020 Page 12 of 12