The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAC) No.410 of 2002 Damodar Hati …. Petitioner Mr. S. Patra-1, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. M.K. Balabantaray, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 19.12.2023 Order No 22. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. S. Patra-1, learned counsel appearing for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. The Petitioner has filed the present writ petition inter alia challenging the communication issued by the Engineer-in-Chief, Water Resources-Opp. Party No. 3 on 30.01.2002 under Annexure- 2, wherein Petitioner was declared as surplus while continuing as a Truck Driver in the establishment of Opp. Party No. 5 and consequential direction to retrench the Petitioner from his service. 4. It is the case of the Petitioner that Petitioner was appointed as a Truck Helper in the Work Charge Establishment of Anandpur Barrage Division, Bidyadharpur, where he joined on 16.01.1979. While so continuing, Petitioner was promoted to the post of Jeep // 2 // Driver w.e.f.01.09.1979 vide order dtd.01.09.1979 of the Executive Engineer, Anandpur Canal Division. 4.1. It is contended that Petitioner while so continuing as a Jeep Driver, he was promoted to the post of Truck Driver w.e.f.15.01.1988. Subsequently, Petitioner was transferred to Subarnarekha Irrigation Project, where he joined as a Truck Driver w.e.f23.12.1988. 4.2. It is contended that Petitioner though continued in the Work Charged Establishment w.e.f.16.01.1979, but in the year 2002 he was declared as surplus in the rank of Truck Driver and Annexure-2 when was issued by declaring the Petitioner as surplus and to take step to retrench him, Petitioner challenging Annexure-2 approached the Tribunal. It is contended that since basing on Annexure-2 no notice of termination was issued, the Tribunal did not pass any interim order in the matter. 4.3. It is contended that Petitioner was declared as a surplus while working as a Truck Driver, the post to which he was promoted while continuing as a Jeep Driver. But persons who remained and allowed to continue as Jeep Driver in the Work Charged Establishment, were never declared as surplus and accordingly they were allowed to continue as against the post of Jeep Driver. It is contended that Petitioner since was given promotion to the post of Truck Driver while continuing as a Jeep Driver, if at all Petitioner was found as a surplus in the rank of Truck Driver, instead of declaring him as a surplus and taking step to retrench him, Petitioner could have been adjusted as a Jeep Driver. Page 2 of 7 // 3 // 4.4. It is also contended that persons who were allowed to continue as Jeep Driver, were not only allowed to continue, but in the meantime, some of them were brought over to the Wages Establishment and thereby enabling them to get the benefit of pension and pensionary benefits. It is contended that because of the action of the Opp. Parties in giving him promotion to the post of Truck Driver where Petitioner was found as surplus, the authorities at the relevant point of time could have reverted the Petitioner to the post of Jeep Driver and allowed him to continue till he attained the age of superannuation. In support of his aforesaid submission, learned counsel for the Petitioner relied on the stand taken in the additional affidavit filed on 29.10.2023. The stand taken by the Petitioner in Para 2 & 3 of the said additional affidavit is reproduced hereunder:- “2. That, it is submitted that the petitioner was appointed as Truck Helper on 16.01.1979, and he was promoted to Jeep Driver on 01.09.1979 and to the post of Truck Driver on 04.01.1988. In view of Clause-V of Notification dtd.10.07.1986, the petitioner ought to have been reverted to the lower grade post and junior most person of lower grade should be retrenched. Without doing so the petitioner was retrenched as Truck Driver without reverting back to lower Grade post i.e. Jeep Driver though many juniors in the post of Jeep Driver were retained. For better appreciation the details of Jeep Drivers appointed promoted after the promotion of the petitioner to the post of Jeep Driver le on 01.09.1979 and most of the Jeep Driver junior to the petitioner have been brought over to regular establishment. Sl. Name No. Date of joining as Jeep Driver Sl. No. in Gradati List Sl. No. Regularization and date (W/C) Page 3 of 7 // 4 // 1 Sarat Kumar Das 07.03.1980 34 145 dtd.27.05.2014 2 Bipin Bihari Sahoo 07.12.1981 79 146 dtd.27.05.2014 3 Bhimsen Jani 07.12.1981 78 4 Benudhar Guru 01.12.1981 74 294 dtd.27.05.2014 5 Bhaktaram Thakur 05.10.1979 28 374 dtd.27.05.2014 6 M.V. Ramana 15.03.1980 36 475 dtd.27.05.2014 7 R. Tulsi Rao 21.07.1983 93 46 dtd.19.03.2016 8 Pratap Kishore Rana 31.03.1984 96 36 dtd.19.03.2016 Further the petitioner came to know that many other junior Jeep Drivers were also allowed to retain in service. Some names are given below. 1. Ram Chandra Sahoo. 2. Ramesh Chandra Panda 3. Rahas Bihari Pattanaik Copies of the relevant portion of common seniority Jest of Work Charged employees of major irrigation projects published in the year 2002 and Orders dtd.27.05.2014 with relevant portion of list, 26.02.2015 and 19.03.2016 and Notification dtd.10.07.1986 are filed herewith as Annexures-3 Series, 4 Series, 5, 6 & 7 respectively. 3. That, it is submitted that due to non availability of Jeep Drivers many employees belonging to other posts were allowed to drive Jeep and name of some are Akshaya Kumar Sahoo, Watchman ad Harmohan Sahoo, Helper, which would be evident from the Order dtd.05.07.2011, which is filed herewith as Annexure-8.” 4.5. It is contended that since because of the action of the Opp. Parties in allowing him to get the benefit of promotion to the post of Page 4 of 7 // 5 // Truck Driver w.e.f.15.01.1988, Petitioner was found as a Surplus and accordingly he was retrenched from his services w.e.f.31.03.2003 basing on the communication issued under Annexure-2, and the fact that Jeep Drivers, who were engaged subsequent to Petitioner in the Work Charged Establishment were allowed to continue, Petitioner instead of being retrenched being found as a surplus in the rank of Truck Driver, should have been allowed to continue as a Jeep Driver by following the principle of “last cum first go” in the said rank. 4.6. It is also contended that taking into account the continuance of the Petitioner in the Work Charged Establishment with effect from 16.01.1979 till he was retrenched on 31.03.2003, Petitioner since had rendered more than 20 years of service in the Work Charged Establishment, in view of the decision of the Tribunal in the case of Narusu Pradhan Vs. State of Odisha & Ors. (O.A. No. 1189(C) of 2006), which has been affirmed by this Court as well as the Hon’ble Apex Court, Petitioner is entitled to get the benefit of pension and pensionary benefits taking into account his continuance in the Work Charged Establishment from 16.01.1979 to 31.03.2003. It is also contended that the order passed in the case of Narusu Pradhan was complied by the State vide order dtd.09.05.2013. 5. Mr. S.K. Samal, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit and further affidavit filed by the Opp. Parties on 06.11.2023 and 12.12.2023. It is contended that Petitioner while continuing as a Truck Helper on his joining in the Work Charged Establishment on 16.01.1979, he was promoted to the rank of Jeep Driver vide order dtd.01.09.1979 of the Executive Engineer, Page 5 of 7 // 6 // Anandpur Canal Division. While so continuing, Petitioner was promoted to the rank of Truck Driver w.e.f.15.01.1988. Petitioner thereafter was transferred to Subarnarekha Irrigation Project and he joined there as a Truck Driver w.e.f.23.11.1988. Since in the year 2002 Petitioner while continuing as a Truck Driver was found as surplus, Petitioner basing on Annexure-2 was terminated from his services w.e.f.31.03.2003. 5.1. It is contended that since Petitioner has been terminated w.e.f.31.03.2003 and no such interim order is there in the writ petition protecting the interest of the Petitioner, Petitioner is not eligible and entitled to get any further benefits. It is also contended that on such retrenchment from his service, Petitioner has been paid with the retrenchment benefit as due and admissible at the relevant point of time. It is accordingly contended that Petitioner is not entitled to get any further benefit as prayed for. 6. Having heard learned counsel for the Parties and after going through the materials available on record, this Court finds that Petitioner was engaged as a Truck Helper in the Work Charged Establishment, where he joined on 16.01.1979. Petitioner thereafter was promoted to the rank of Jeep Driver w.e.f.01.09.1979 and to the rank of Truck Driver w.e.f.15.01.1988. As found from the record Persons engaged as Jeep Driver w.e.f.07.03.1980 onwards were allowed to continue as Jeep Driver, whereas Petitioner though was appointed as Jeep Driver on 01.09.1979, but he was found as a surplus and was retrenched because of his promotion and continuance in the rank of Truck Driver. Page 6 of 7 // 7 // 6.1. Since the stand taken by the Petitioner in the additional affidavit regarding continuance of Jeep Drivers, who were engaged subsequent to the Petitioner is not disputed, this Court taking into account the fact that Petitioner on his own since was promoted from the post of Jeep Driver to the post of Truck Driver, no fault lies with him in availing such benefit of promotion. Since persons engaged and appointed as Jeep Drivers were allowed to continue without facing the retrenchment as was done in the case of the Petitioner, this Court placing reliance on the decision in the case of Narusu Pradhan and the continuance of the Petitioner in the Work Charged Establishment from 17.01.1979 to 31.03.2003 is of the view that Petitioner is eligible and entitled to get the benefit of pension and other pensionary benefits as has been extended in the case of Narusu Pradhan. 6.2. Since Petitioner at the time of retrenchment was extended with the benefit of compensation as due and admissible, which is not disputed, this Court observe that Petitioner on being sanctioned with pension and pensionary benefits as due and admissible, the retrenchment compensation so disbursed in his favour be adjusted from his pensionary benefit. Petitioner since was retrenched w.e.f.31.03.2003, he will be eligible and entitled to get the benefit of pension w.e.f. April, 2003. The entire exercise shall be undertaken and completed by Opp. Party Nos. 1 & 5 within a period of three (3) months from the date of receipt of this order.
Decision
7. The writ petition is disposed of accordingly. (Biraja Prasanna Satapathy) Judge Page 7 of 7 Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 02-Jan-2024 16:58:44 Sneha