Patna High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.A. No.688 of 2022 In the matter of an Appeal under Article 4 of the Orissa High Court Order, 1948 read with Clause 10 of the Letters Patent constituting the High Court of Judicature at Patna and Rule 6 of Chapter-III and Rule 2 of Chapter-VIII of the Rules of the High Court of Orissa, 1948 *** 1. State of Odisha Represented through its Principal Secretary to Government Water Resources Department Bhubaneswar. 2. Engineer-in-Chief Water Resources Department Government of Odisha Bhubaneswar. 3. Superintending Engineer Drainage Circle, Gandarpur Town/District: Cuttack. 4. Executive Engineer Mahanadi Barrage Division At: Gandarpur Town/District; Cuttack … Appellants (Opposite party Nos.1 to 4 in the Writ Petition). W.A. No.688 of 2022 Page 1 of 80 -VERSUS- Smt. Mamata Manjari Mohanty Aged about 53 years Wife of Iswar Prasad Das At/P.O. : Teishpur District : Puri. … Respondent (Petitioner in the Writ Petition). Counsel appeared for the parties: For the Appellants : Manoj Kumar Khuntia, Additional Government Advocate : Mr. Goutam Kumar Acharya, Senior Advocate with M/s. Dr. Besura Das, D.K. Naik, Adhishree Mishra and Nikhilesh Barik, Advocates For the Respondent P R E S E N T: HONOURABLE CHIEF JUSTICE MR. CHAKRADHARI SHARAN SINGH AND HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Dates of Hearing : 10.04.2024, 19.04.2024 and 22.04.2024 Date of Judgment : 15.05.2024 :: J UDGMENT MURAHARI SRI RAMAN, J.— W.A. No.688 of 2022 Page 2 of 80 THE CHALLENGE IN THE INTRA-COURT APPEAL: Challenge being laid to Judgment dated 17.08.2021 rendered by the learned Single Judge in the writ petition bearing WPC (OAC) No.3077 of 2014 in the matter of an application under Article 226/227 of the Constitution of India, the opposite parties therein aggrieved thereby, preferred this intra-Court appeal beseeching to invoke provisions of Article 4 of the Odisha High Court Order, 1948 read with Clause 10 of the Letters Patent constituting the High Court of Judicature at Patna and Rule 6 of Chapter-III and Rule 2 of Chapter-VIII of the Rules of the High Court of Orissa, 1948, and prayed for grant of the following relief(s): “Under these circumstances the Appellants most humbly pray that this Hon’ble Court may graciously be pleased to admit this appeal, call for the records and after hearing the parties be pleased to set aside the impugned order dated 17.08.2021 passed by the Hon’ble Single Judge in WPC (OAC) No.3077 of 2014 under Annexure-1 and further be pleased to pass any other order/orders as may be deemed fit and proper; And for this act of kindness the Appellants shall as in duty bound ever pray.” 1.1. Questioning legality of the Office Order of retrenchment dated 29.04.2011 as directed by the Superintending Engineer, Drainage Circle, Cuttack, the respondent approached this Court by way of filing a petition being W.A. No.688 of 2022 Page 3 of 80 W.P.(C) No.14006 of 2011 which came to be disposed of vide Order dated 05.05.2014 with an observation that the petitioner sought to withdraw the writ petition stating that she would move the State Administrative Tribunal. 1.2. Accordingly, the respondent approached the Odisha Administrative Tribunal by way of an application under Section 19 of the Administrative Tribunals Act, 1985, which was registered as O.A. No.3077(C) of 2014. 1.3. After abolition of said Tribunal by virtue of Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) Notification F. No. A- 11014/10/2015-AT [G.S.R.552(E).], dated 2nd August, 2019), the said case having been transferred to this Court, O.A. No. 3077 (C) of 2014 has been re-registered as WPC (OAC) No. 3077 of 2014. GRIEVANCE OF THE APPELLANTS: 2. Few facts, to avoid prolixity, are recited as they appear from the pleadings. 2.1. The respondent, Nominal Muster Roll employee as Mate (Typist) under the Executive Engineer, Mahanadi Barrage Division, Cuttack, engaged on 21.03.1985, was terminated on 01.03.1989. Industrial Dispute being Case No.256 of 2008 was set up between the Executive W.A. No.688 of 2022 Page 4 of 80 Engineer, Mahanadi Barrage Division, Gandarpur, Cuttack (first party-Management) and Smt. Mamata Manjari Mohanty (second party-workman) alleging violation of the provisions contained in Section 25-F and 25-G of the Industrial Disputes Act, 1947 (for brevity “ID Act”), before the Labour Court, Bhubaneswar, which was subsequently got transferred to the Industrial Tribunal, Bhubaneswar vide Order dated 04.04.2008. 2.2. While the matter was thus pending before the Industrial Tribunal, Bhubaneswar, by virtue of Notification bearing No. 7323, dated 28.02.2009, Government of Odisha took a decision to bring the NMRs, who were engaged prior to 12.04.1993 to the work-charged establishment with effect from 01.03.2009, consequent upon which directions were issued to the Engineer-in-Chief of the Water Resources Department to bring such employees to the work-charged establishment. 2.3. Thereafter an Award dated 24.02.2010 has been made by the learned Industrial Tribunal with the following conclusion: “8. It may be stated at the cost of repetition that the management has not complied with the mandatory requirements of Section 25F of the Act while terminating the employment of the workman nor did it prove that the termination of employment of the workman was due to her misconduct. Hence, the W.A. No.688 of 2022 Page 5 of 80 action of the management is held to be neither legal nor justified. 9. the workman In view of the discussions made in the foregoing paragraphs, to reinstatement in service with 50% back wages. The management is directed to implement the Award within a period of two months hence.” is held entitled 2.4. To implement the terms of aforesaid Award, the Government of Odisha in the Department of Water Resources vide Letter No.LC-I-30/10— 19021, dated 29.07.2010 instructed the Engineer-in-Chief, Water Resources, Odisha, as follows: to say that after “I am directed to invite reference to the I.D. Case mentioned-above and careful consideration Government have decided to implement the Award/Order, dated 24.02.2010 passed by the Presiding Officer, Industrial Tribunal, Bhubaneswar in above ID Case by reinstating Smt. Mamata Manjari Mohanty, in service with 50% back wages and thereafter she may be retrenched following the mandatory-statutory provisions. This has been concurred in by the Law Department vide their UOR No.703/L dated 5.5.2010 and Finance their UOR No. 383/W-II, dated Department vide 20.05.2010. You are therefore, requested to take immediate necessary follow up action in the matter to avoid further legal complicacy under intimation to this Department for record and reference.” W.A. No.688 of 2022 Page 6 of 80 2.5. In pursuance thereof, vide Office Order dated 21.08.2010, the Superintending Engineer, Drainage Circle, Cuttack complied with the aforesaid direction, which is reflected as follows:
Legal Reasoning
“In pursuance with the order of the Hon’ble Labour Court passed vide Order dated 24.02.2010 and subsequent instruction of Government in DoWR, Odisha, communicated in Memo No.19022, dated 29.07.2010 and Engineer-in-Chief, Water Resources, Bhubaneswar Letter No.6592, dated 05.08.2010, Smt. Mamata Manjari Mohanty, Ex-NMR Mate is hereby reinstated in service and allowed to work in Office of the Executive Engineer, M.B. Division, Cuttack until further orders.” 2.6. The respondent was, accordingly, reinstated in service and paid 50% of back wages from 01.03.1989 (date of termination from service) to 26.08.2010 (as she joined in service in the Office of Executive Engineer, Mahanadi Barrage Division on 27.08.2010). Subsequent thereto, the Government of Odisha in Department of Water Resources issued Clarification vide Letter No.28219-LC- I-30/2010/WR, dated 10.11.2010 addressing the Engineer-in-Chief, Water Resources, Odisha as follows: “I am directed to invite reference to your Office Letter No.13984, dated 28.10.2010 in the above noted case and to say that it is clarified here that mandatory direction has not been issued for retrenchment of Smt. Mamata Manjari Mohanty, NMR employee. If her retrenchment is expedient, she may be retrenched strictly following the mandatory statutory provisions as laid down under Section 25 of the Industrial Dispute Act, 1947 under intimation to this Department.” W.A. No.688 of 2022 Page 7 of 80 2.7. The Director, Personnel in the Office of the Engineer-in- Chief, Water Resources, Odisha, Bhubaneswar instructed the Superintending Engineer, Drainage Circle, Cuttack vide Memo No.3, dated 01.01.2011 as follows: “Apropos, I am directed to say that the orders of Government in Department of Water Resources in two fold, but you have simply issued an order for re- engagement of the workman and pay of the back wages leaving her retrenchment. You are therefore requested to follow the ‘mandatory statutory provisions under Section 25 of the ID Act, 1947’ and retrench the workman forthwith. Compliance to this effect may please be intimated to all concerned.” 2.8. The Superintending Engineer, Drainage Circle, Cuttack vide Office Order No.2032, dated 29.04.2011 directed retrenchment of the respondent with immediate effect as her services was no longer required under the Organisation due to reduction of work load and her retrenchment is considered expedient. As a consequence thereof, Smt. Mamata Manjari Mohanty, the respondent, was also directed to be paid one month’s pay in lieu of period of notice and other entitlements, if any, as per provisions under Section 25F of Industrial Disputes Act. 2.9. Said retrenchment Order dated 29.04.2011 is reproduced hereunder: W.A. No.688 of 2022 Page 8 of 80 “Office of the Superintending Engineer, Drainage Cirle, Gandarpur, Cuttack-3 Office Order No. 2032 Dated, 29.04.2011 In pursuance with the Engineer-in-Chief, Water Resources, Odisha, Bhubaneswar Letter no.1, dated 01.01.2011 and as per Letter No.4583, dated 14.12.2010 of the Executive Engineer, Mahanadi Barrage Division, Cuttack, Cuttack, Smt. Mamata Manjari Mohanty, NMR Mate is hereby retrenched with immediate effect as her services is no longer required under this Organisation due to reduction of work load and her retrenchment is expedient. Smt. Mohanty shall be paid one month pay in lieu of one month notice and other entitlements if any as per provisions under Section 25-F of Industrial Disputes Act. Sd/- (M.R. Mishra) Superintending Engineer, Drainage Circle, Cuttack. Memo No.2033 Dated 29.04.2011 Copy to Smt. Mamata Mohanty, NMR Mate through the Executive Engineer, Mahanadi Barrage Division, Cuttack for information and necessary action.” 2.10. On the very next date, i.e., 30.04.2011, the Executive Engineer, Mahanadi Barrage Division, Gandarpur, Cuttack has made arrangements for requisite payment towards one month’s advance pay with compensation amount: “Office of the Executive Engineer, Mahanadi Barrage Division, Cuttack W.A. No.688 of 2022 Page 9 of 80 No. / Dated, the To Smt. Mamata Manjari Mohanty, NMR-Mate, Mahanadi Barrage Division, Cuttack. (Through S.D.O., M. B. Sub-Division No. III) Sub.: Payment of Notice Pay and Compensation amount Madam, Pursuant to Memo No. 2033 Dated 29.04.2011 of Superintending Engineer, Drainage Circle, Cuttack to your address and under Clause (a) and (b) of Section 25-F of Industrial Disputes Act, 1947 a sum of Rs.4,326/- (Rupees Four thousand three hundred twenty-six) only as detailed below is paid to you in shape of cheque bearing No. 875312 date 30.4.2011. Details of Payment 1. One month advance pay for May 2011 in lieu of notice Rs.2,781.00 2. Compensation amount Total: Rs.1,545.00 Rs.4,326.00 Yours faithfully, Executive Engineer, Mahanadi Barrage Division Gandarpur, Cuttack-3.” 2.11. Said retrenchment Order dated 29.04.2011 was assailed before this Court which led to registering petition as W.P.(C) No.14006 of 2011. This Court passed the following Order on 05.05.2014: W.A. No.688 of 2022 Page 10 of 80 “Heard. Having regard to the averments made in paragraphs 8 and 9 of the counter affidavit filed by opposite party No.2 & 3 (Mahanadi Barrage Division, Gandarpur, Cuttack-3 and Superintendent Engineer Drainage Circle Gandarpur, Cuttack), learned counsel for the petitioner wants to withdraw the writ petition stating that he shall move the State Administrative Tribunal.
Decision
In view of such submission the writ petition is disposed of as withdrawn.” 2.12. Availing such liberty, the respondent moved the Odisha Administrative Tribunal by way of filing application under Section 19 of the Administrative Tribunals Act, 1985, being registered as O.A. No.3077(C) of 2014, and subsequently the said application got transferred to this Court. Said case got disposed of by a learned Single Judge vide Judgment dated 17.08.2021 with the following observation and direction: “12. In view of such position, the contention raised by Mr. M.K. Mohanty, learned counsel for the petitioner, that the order of retrenchment dated 29.04.2011 under Annexure-10 and payment of wages in lieu of one month notice of retrenchment, which was offered on 30.04.2011 under Annexure-11, being not simultaneously one, cannot be construed as full compliance of Section 25-F of the Act, get ample corroboration from the materials available on record, and as such, has sufficient force. Thereby, in view of the proposition of law laid down by the apex Court, as discussed above, this Court holds that the Page 11 of 80 W.A. No.688 of 2022 impugned order of retrenchment cannot be allowed to stand, since there was sheer violation of the provisions contained under Section 25-F of the Act. the petitioner (Typist) under 13. So far as non-compliance of the provisions contained in Section 25-G of the Act is concerned, admittedly the petitioner was engaged on 21.03.1985 as NMR Mate the Executive Engineer, Mahanadi Barrage Division, Cuttack. Though she was retrenched from service on 01.03.1989, by virtue of the Award dated 24.02.2010 passed by the Industrial Tribunal in I.D. Case No. 256 of 2008, she was reinstated in service with 50% back wages. In the meantime, in terms of the Resolution passed by the Government, some of the juniors to the petitioner were brought to the work-charged establishment, though she was discriminating continuing. Thereafter, though the Superintending Engineer, vide Letter dated 30.09.2010 intimated the the Engineer-in-Chief the that petitioner were continuing in service, without considering the same, the order of retrenchment was passed in Annexure-10 dated 29.04.2011 on the basis of instructions issued by the Government, on the ground that due to reduction of work load her retrenchment was expedient. In that case, the provisions contained under Section 25-G were to be followed scrupulously. Meaning thereby, the junior most person had to go allowing the senior to continue. Though the petitioner had been appointed prior to 12.04.1993 and she was a senior most NMR, she was to be brought over to the work-charged establishment and subsequently to the regular establishment, instead of directing her to face load. retrenchment due to reduction of work juniors to W.A. No.688 of 2022 Page 12 of 80 14. Thereby, the provisions contained under Section 25- G have not been complied with. Consequentially, on that count also the order of retrenchment under Annexure-10 dated 29.04.2011 is also contrary to the provisions of the Industrial Disputes Act, 1947. This view gets ample support from the judgments of the apex Court in In-charge Government Hide Flaying Centre and Gauri Shanker, mentioned supra. [Incharge Government Hide Flaying Centre Vrs. Rama Ram and another, (2003) 9 SCC 163; and Gouri Shanker Vrs. State of Rajasthan, (2015) 13 SCC 754]. the Act, Disputes Industrial In view of the factual matrix and propositions of law, as discussed above, this Court is of the considered view that the order dated 29.04.2011 in Annnexure- 10 retrenching the petitioner from service with immediate effect cannot sustain in the eye of law, as the same has been passed without complying the provisions contained under Sections 25-F and 25-G of 1947. Consequentially, the order dated 29.04.2011 in Annexure-10 is liable to be quashed and hereby quashed. The opposite parties are directed to reinstate the petitioner in service and to bring over her to the work charged establishment forthwith, from the date her juniors have been brought over to the work charged establishment, in pursuance of the notifications dated 28.02.2009 and 19.06.2009 issued by the Government, and then bring over her to the regular establishment forthwith, if her juniors have been brought over to the regular establishment. Further, keeping in view the fact that the petitioner has been the prescribed procedure and, as such, the fault lies retrenched without following W.A. No.688 of 2022 Page 13 of 80 with the employer for such illegal retrenchment, and also being aware of the fact that the petitioner has not discharged her duty since 29.04.2011, this Court directs the opposite parties to pay 50% wages to the petitioner with effect from 29.04.2011 till she is reinstated in service. The above exercise shall be completed within a period of four months from the date of passing of this judgment. 15. In the result, the writ petition is allowed. However, there shall be no order as to costs.” 2.13. Aggrieved, the appellants-functionaries of State of Odisha sought to question the propriety and legality of the Judgment dated 17.08.2021 of the learned Single Judge by contending that there was failure of appreciation that the respondent had worked as NMR Mate (Typist) with effect from 21.03.1985 to 31.05.1985, 11.06.1985 to 20.06.1985 and 01.07.1985 to 10.11.1985 for a total period of 215 days under the defunct Mahanadi Barrage Division No.l, Cuttack. She also worked for 31 days from 01.05.1986 to 31.05.1986 under the defunct Mahanadi Barrage Division No.II, Cuttack and on her own volition left the job/engagement from 01.06.1986 onwards from her work place without informing the authority concerned. Thus, she had not worked continuously under the management for a period of 240 days in one calendar year till she remained absent from her duty. Hence there was no continuity of service after 01.06.1986 and till she was reinstated in W.A. No.688 of 2022 Page 14 of 80 service with effect from 01.03.1989 as per Award dated 24.02.2010 of the Industrial Tribunal. 2.14. It is further case of the appellants before this Court in this intra-Court appeal that the terms of Award dated 24.02.2010 of the Industrial Tribunal was duly complied with by reinstating the respondent and making payment of 50% of the back wages and, as the continuance of the respondent was subject to availability of work load the respondent was retrenched. 2.15. It is urged by the appellants that the impugned Judgment/Order is not sustainable in view of the fact that Section 25-F of the ID Act was complied with prior to retrenchment of the respondent. It is emphatically pointed out that after compliance of requirements envisaged under Section 25-F of the ID Act, the retrenchment of the respondent has been made effective. 2.16. The submission of the appellants has been amplified by explaining that as required under Section 25-F of the ID Act, the order of retrenchment had been communicated to the respondent with the amount of one month’s pay in lieu of one month notice coupled with the amount of compensation. However, due to absence of the respondent from her duty without leaving any information in the office on 30.04.2011, the said amount could not be paid to her. But, subsequently, the W.A. No.688 of 2022 Page 15 of 80 retrenchment notice and the benefits had been sent to her permanent address by Registered Post, which was returned with a remark “Refused to receive”. Thus, it is error apparent on the face of the Judgment of the learned Single Judge holding that the Order dated 29.04.2011 indicating retrenchment of the respondent from service with immediate effect cannot be sustained in the eye of law. Inasmuch as the Order of retrenchment was passed adhering to the requirements of provisions contained in Section 25-F and Section 25- G of the ID Act, the impugned Judgment is not tenable. REPLIES OF THE RESPONDENT AND COUNTER REPLY OF THE APPELLANTS IN THE WRIT APPEAL: 3. Notice in writ appeal being issued vide Order dated 22.08.2022, the respondent appeared through counsel and accepted notice and filed response by way of counter/objection on 21.09.2022. 3.1. It has been candidly stated by the respondent by swearing affidavit that in compliance of Award of Industrial Tribunal dated 24.10.2010 in ID Case No.256 of 2008, after issuance of the reinstatement order the respondent joined in service on 27.08.2010 and received her back wages @ 50% as directed by the Tribunal for the period from 01.03.1989 to 26.08.2010 and started working as usual in the Office of Appellant No.4- W.A. No.688 of 2022 Page 16 of 80 Executive Engineer, Mahanadi Barrage Division, Gandarpur as NMR-Mate. 3.2. The respondent after being reinstated in service made a representation to the appellant No.3-Superintending Engineer to bring her to work-charged establishment as “NMR-Mate” in view of the fact that the employees junior to her have already been brought over to the work- charged establishment pursuant to the Notification No.7323, dated 28.02.2009 and such NMR employees who were brought to the work-charged establishment were employed prior to 12.04.1993, which is the cut-off date. 3.3. The concerned authority directed for retrenchment of the respondent on 29.04.2011, but she was issued with cheque dated 30.04.2011 showing one month’s pay in lieu of notice period and amount of compensation after retrenchment having taken place. Such an action is in contravention of requirement under Section 25-F of the ID Act. Nevertheless, it is asserted that “the said amount was never received by the respondent as the said amount was not paid on the date of retrenchment”. 3.4. Said action of the authorities, being questioned in the subject writ petition, the learned Single Judge leaned in favour of the respondent and issued certain directions which being not complied with, contempt petition being W.A. No.688 of 2022 Page 17 of 80 CONTC No.2909 of 2022 was pursued before said Judge. Contempt petition was disposed of vide Order dated 29.04.2022 with the direction to comply the terms of Judgment within a period of four weeks from the date of production of certified copy of the order. 3.5. Enclosing Office Order bearing File No. MBD-08-L-OA- 01/2014-3077(C)/2325, dated 07.06.2022 passed by the Superintending Engineer, Mahanadi Barrage Division, Cuttack as Annexure-N to the counter/objection, the respondent has laid emphasis on the following operative portion of said Order: “*** Whereas, the petitioner does not file an application along with the certified copy of the order before the opposite parties in due time i.e. one week as directed by the Hon’ble High Court vide their Order dated 29.04.2022 rather the said was submitted on 19.05.2022 through registered dak as received on 20.05.2022 by the Contemnor No.3 and hence the opposite party fails to comply the Order of Hon’ble High Court in time. Pursuant to the Order dated 17.08.2021 of the Hon’ble High Court of Orissa, the opposite parties prefer to file an Writ Appeal before the Division bench which was duly approved by Law Department on dt.06.04.2022 and accordingly an writ appeal was also filed before the Hon’ble High Court of Orissa vide No. W.A. 688 of 2022 along with the Interim application on dated 12.05.2022. W.A. No.688 of 2022 Page 18 of 80 In consideration of above facts and positions of law, the Order of Hon’ble High Court of Orissa dated 17.08.2021 passed in W.P.C. (OAC) No. 3077/2014 will be considered after the Judgment of the W.A. No. 688/2022. The prayer of the petitioner dated 12.05.2022 as received on dated 20.05.2022 is disposed of accordingly.” 3.6. To support the justification of direction contained in the Judgment of the learned Single Judge dated 17.08.2021 in WPC (OAC) No. 3077 of 2014, it is submitted by the respondent that the juniors to the respondent have been placed under the work-charged establishment with effect from 20.07.2009 based on the cut-off date as decided by the Government, i.e., 12.04.1993. 3.7. The respondent sought to place reliance on the Letter bearing Memo No.17229/WR, dated 19.06.2009, which runs thus: “Government of Orissa Department of Water Resources No. FE-IV (NMR)-30/08 _____/WR, dated the From: Sri S.C. Mahapatra, IAS Commissioner-cum-Secretary To The E.I.C, WR Sub: Regularisation of NMR employees to work-charged employees under W.R. Department. W.A. No.688 of 2022 Page 19 of 80 Sir, After careful consideration, Government have been pleased to bring over NMR employees of Department of Water Resources to work-charged Establishment (Recruited prior to 12.04.1993) w.e.f. 01.03.2009; vide Notification No.7323, dated 28.02.2009. E.I.C., WR is to issue detail notification after, detail scrutiny of the date of birth, name, present place of posting and duty particulars. Following instructions the may please be notification: followed before issue of 1. Only NMRs joined before 12.04.1993 will be eligible. 2. NMRs-in respect of whom cases are pending will not be considered unless cases are disposed off and they are found eligible. 3. NMRs who are over-aged, irregular and against whom allegations are pending will not be considered to be work-charged employees. 4. It was found that in some projects and offices, there are large number of NMRs without corresponding work load. Hence, the EIC, WR will make a detailed analysis and deploy excess manpower to other areas during/before making them work-charged employees. 5. If NMRs do not agree for deployment, their cases to become work-charged employees, should not be entertained. W.A. No.688 of 2022 Page 20 of 80 6. Until sufficient budget provision is made revised salary/wages should not be given/drawn for work- charged employees. 7. The Service Conditions of brought over work-charged employees will be regulated as per the provisions laid down (Appointment und Conditions of in Service) Instructions, 1974. The EIC, WR is directed to adhere to the above conditions strictly and satisfy himself that no irregular appointment is made to work-charged establishment. Action taken in this regard may be intimated to Government from time to time. Yours faithfully, Sd/- Commissioner-cum-Secretary Memo No. 17229/WR, dated 19/06/2009. Copy forwarded to CE, MI/Director, GWS&I for favour of information and necessary action. They are requested to bring over NMR employees to work- charged employees under M.I./GWS&I and issue notification. Sd/- FA-cum-Addl. Secretary” 3.8. It, therefore, emanates from the reply of the respondent that she was aggrieved by Order of retrenchment from service dated 29.04.2011 as the appellants failed to adhered to necessary compliance of Section 25-F of the ID Act, i.e., the Order of retrenchment ought to be issued W.A. No.688 of 2022 Page 21 of 80 simultaneous with the payment of one month’s wage and amount of compensation. 3.9. It is further plea of the respondent that the specious plea that there was less work load in the Organisation which justified retrenchment cannot hold water inasmuch as the NMR employees, who joined the service later to the respondent as NMR-Mate, have been brought over to the work-charged establishment in consonance with what has been spelt out in Letter dated 19.06.2009. 4. A rejoinder affidavit has come to be filed by the appellants on 10.07.2023, whereby it has been brought to the notice that the respondent was terminated from service during 1989 and after a long lapse, she had taken recourse under the ID Act during 2008. However, the Award dated 24.02.2010 passed in ID Case No.256 of 2008 by the Industrial Tribunal was complied with and such compliance was subject to stipulation that after re-engagement, the respondent was to be terminated along with all terminal benefits, because of reduced work load in the Organisation and there being non-availability of new project. In view of the above, the retrenchment order was issued in favour of the respondent in compliance of provisions of Section 25-F and Section 25-G of the ID Act. W.A. No.688 of 2022 Page 22 of 80 4.1. The respondent remained absent at the work site/office on and after 30.04.2011 and therefore, the retrenchment notice could not be served and payment of benefits on account of termination could not be made. Later, the Order of retrenchment as well as the cheque showing payment due was sent to the permanent address of the respondent, which she refused to receive. 4.2. Strongly objecting to the averments of the respondent, it is submitted by the appellants that there being no new project work available, there was no necessity for the Organisation to continue with the services of the respondent; otherwise, it would affect adversely the financial condition of the State exchequer. Refuting, therefore, the appellants urged that the employees who joined later to the respondent were continuing in the service and such employees, who were stated to be continuing, could not be said to have stood on similar footing, because the respondent left the job since 1989 of her own volition. It is further submitted that when the respondent was never removed from the service during 1989 and left the service due to reason best known to her, the question of claiming parity with similarly situated person does not arise. HEARING OF THE WRIT APPEAL: W.A. No.688 of 2022 Page 23 of 80 5. This matter was on board on 10.04.2024, 19.04.2024 and 22.04.2024. Counsel for both the sides advanced arguments citing that short point involved in the present matter is whether it can be treated as sufficient compliance of requirement under Section 25-F of the ID Act whereas the Order of termination from service bore the date 29.04.2011 and the cheque showing one month’s wage in lieu of period of notice and amount of compensation being dated 30.04.2011. The pleadings being completed, this Court took up the matter for hearing and heard Sri Manoj Kumar Khuntia, learned Additional Government Advocate and Sri Goutam Kumar Acharya, learned Senior Advocate along with learned Advocate for the respondent. ARGUMENTS ADVANCED BY THE COUNSEL FOR THE RESPECTIVE PARTIES: 6. Learned Additional Government Advocate for the appellants, Sri Manoj Kumar Khuntia, advanced his submission by stating that while the notice of retrenchment bears the date “29.04.2011” and the amounts due being shown to have been drawn by way of cheque on the next day, i.e., 30.04.2011, for such procedural defect it could not have been held by the learned Single Judge to be fatal for the purpose of ascertaining compliance of stipulation envisaged under Section 25-F of the ID Act. W.A. No.688 of 2022 Page 24 of 80 6.1. Relying on Bharat Sanchar Nigam Limited Vrs. Bhurumal,
Decision
11. In our considered opinion, the Courts below completely failed to see that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order favour and directed his in his reinstatement in service. 12. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee. 13. In some cases, the Court may decline to award the back wages in its entirety whereas in some cases, it may award partial depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. The questions, how the back wages is required to be decided, what are the factors to be taken into consideration awarding back wages, on whom the initial burden lies etc. were elaborately discussed in several cases by this Court wherein the law on these questions has been W.A. No.688 of 2022 Page 64 of 80 settled. Indeed, it is no longer res integra. These cases are, M.P. State Electricity Board Vrs. Jarina Bee (Smt.), (2003) 6 SCC 141, G.M. Haryana Roadways Vrs. Rudhan Singh, (2005) 5 SCC 591, U.P. State Brassware Corporation Vrs. Uday Narain Pandey, (2006) 1 SCC 479, J.K. Synthetics Ltd. Vrs. K.P. Agrawal, (2007) 2 SCC 433, Metropolitan Transport Corporation Vrs. V. Venkatesan, (2009) 9 SCC 601, Jagbir Singh Vrs. Haryana State Agriculture Marketing Board, (2009) 15 SCC 327) and Deepali Gundu Surwase Vrs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.), (2013) 10 SCC 324. 14. The Court is, therefore, required in consideration several factors, which are set out in the aforementioned cases, and then to record a finding as to whether it is a fit case for award of the back wages and, if so, to what extent. to keep 15. Coming now to the facts of the case at hand, we find that neither the Labour Court and nor the High Court kept in consideration the aforesaid principles of law. Similarly, no party to the proceedings either pleaded or adduced any evidence to prove the material facts required for award of the back wages enabling the Court to award the back wages. 16. On the other hand, we find that the Labour Court in one line simply directed the appellant (employer) to pay full back wages for a long period to the deceased workman while directing his reinstatement in service. 17. We cannot, therefore, concur with such direction of the Courts below awarding full back wages to the W.A. No.688 of 2022 Page 65 of 80 workman which, caused prejudice to the appellant (employer).” in our opinion, has certainly 11.7. In State of Odisha Vrs. Kamalini Khilar, (2021) 4 SCR 221, it has been observed as follows: “24. Deepali Gundu Surwase Vrs. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.), (2013) 10 SCC 324 the matter arose under the Maharashtra Employees of Private Schools (condition of service) Regulation Act, 1977. This Court undoubtedly laid down that in the case of wrongful termination of service reinstatement with the continuity of service and back wages is the normal rule. It was subject to the qualification that the Court may inter alia take into consideration the length of service and the nature of misconduct if any proved, the financial condition of the employer and similar other factors. For the reasons which we have indicated in the facts of this case Respondent No. 1 cannot be permitted to draw any benefit from the said pronouncement. The High Court rightly set aside the direction for creation of the supernumerary post. We find that there is no basis for the High Court to have thereafter directed the Respondent No. 1 in any vacancy available.” the appointment of 11.8. It may not be out of place to refer to decision of this Court vide Order dated 07.12.2018 passed in W.P.(C) No.14814 of 2018 [Management of Cuttack Municipal Corporation, Cuttack Vrs. Kalandi Barik, Rabindra Kumar W.A. No.688 of 2022 Page 66 of 80 Das, Padmanav Behera], the relevant observation therein is quoted: “*** The parties have adduced their evidence and the Tribunal recorded a finding that order of termination does not reflect compliance of Section 25-F of the I.D. Act by giving notice or in lieu thereof notice pay and any amount towards compensation. As such the termination was not justified and since the NFCP unit is functioning under the 1st party management after the date of retrenchment the it was workmen are entitled to reinstatement and awarded a sum of Rs.10,000/- as compensation in lieu of back wages to each of the workmen. The Apex Court in the case of Asst. Engineer, Rajasthan Dev. Corp. & Another Vrs. Gitam Singh reported in 2013 LLR 225 has held that when the termination of a workman is held illegal, it can be said without any fear of contradiction that the Supreme Court has not held as an absolute proposition that in cases of wrongful dismissal, the dismissed employee is entitled to reinstatement in all situations. It has always been the view of the Court that there could be circumstance(s) in a case which may make it inexpedient to order reinstatement. Hence, the normal rule that the dismissed workman is entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception. relief of The principles as reinstatement when termination of workman is held to be illegal. Before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute. Now there is no such principle that for granting relevant W.A. No.688 of 2022 Page 67 of 80 for an illegal termination of service, the normal rule is reinstatement with back-wages and instead the Labour Court can award compensation. The Apex Court further held that the compensation in lieu of reinstatement, should have been proper to a daily wager who has completed merely 240 days service hence the Single Judge as well as the Division Bench of the High Court also erred in not considering that the reinstatement with back(cid:2)wages is no longer a rule without exceptions. While granting a relief of reinstatement to a workman whose termination is held to be illegal, i.e. violating of Section 25F of the Industrial Disputes Act, 1947, the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute. In case of violation of the provisions of Section 25-F, order of reinstatement can be passed in exceptional cases and the normal rule is to award compensation in place of reinstatement. Reference in this regard may be made to the judgments of the Hon’ble Apex Court in the case of State of M.P. and others Vrs. Lalit Kumar Verma (2007) 1 SCC 575, Utaranchal Forest reported Development Corporation Vrs. M.C.Joshi reported in (2007) 9 SCC 353, Sita Ram and others Vrs. Motilal Nehru Farmers Training Institute reported in (2008) 5 SCC 75, Ghaziabad Development Authority and another Vrs. Ashok Kumar and other reported in (2008) 4 SCC 261 and Jagbir Singh Vrs. Haryana State Agriculture Marketing Board and another reported in (2009) 15 SCC 327. The aforesaid view has also been reiterated by this Court in the case of Executive Engineer, Badanala Irrigation Division, Kenduguda Vrs. Ratnakar Sahoo and another reported in 2011(Supp.1) OLR 556. In view of the Page 68 of 80 in W.A. No.688 of 2022 aforesaid settled position of law as pronounced by the Apex Court and reinstatement is not sine qua non for non-compliance of Section 25-F of the I.D. Act, this Court modifies the award to the following extent: to get compensation of The workmen are entitled Rs.1,30,000/- (one lakh thirty thousand) each in lieu of reinstatement and rest part of the award is confirmed.” The aforesaid matter has been carried by Rabindra Kumar Das, one of the writ petitioners in the above writ petition, preferred leave to appeal before the Hon’ble Supreme Court of India, which got registered as Special Leave to Appeal (C) No(s). 14619 of 2019. Said matter has been disposed of by the said Court with the following observation and direction vide Order dated 01.10.2021: “*** We see no reason to interfere in the matter except to the extent indicated hereinafter. The Tribunal had granted prayer of reinstatement alongwith compensation in the sum of Rs.10,000/-. The High Court, however, modified the order passed by the Tribunal and awarded compensation in the sum of Rs.1,30,000/- to each of the claimants without the relief of reinstatement. Considering the fact and circumstances on record, in our view, ends of justice would be met if the compensation awarded by the High Court is enhanced to the level of Rs.2 lakhs to be made over to each of the claimants. ***” W.A. No.688 of 2022 Page 69 of 80 11.9. Under the aforesaid premise, considering that claim of reinstatement with back wages is not matter of right and is not sine qua non in the event of failure of the employer to resort to provisions of Section 25-F of the ID Act, and that no pleading is available on record to suggest that the respondent was not in gainful employment during the period after retrenchment, a lump sum amount would meet the ends of justice OBJECTION OF THE APPELLANTS WITH RESPECT TO MAINTAINABILITY OF WRIT PETITION: 12. The primary objection of Sri Manoj Kumar Khuntia, learned Additional Government Advocate with respect to the maintainability of the writ petition is liable to be repelled for the reason that in the challenge being laid to the Order of retrenchment dated 29.04.2011 before this Court in W.P.(C) No.14006 of 2011 by the respondent, on the basis of statement made in the counter affidavit filed therein by the opponents-State of Odisha, the same was allowed to be withdrawn vide Order dated 05.05.2014 and the submission of the respondent to approach the Odisha Administrative Tribunal has been recorded while disposing of said writ petition. While the matter was pending in O.A. No.3077 (C) of 2014, said Tribunal being abolished, the same got transferred to this Court and got registered as WPC (OAC) No.3077 of 2014. After hearing the counsel for both the sides, the W.A. No.688 of 2022 Page 70 of 80 impugned Judgment has been delivered by the learned Single Judge on 17.08.2021. At this stage such a plea urged by the learned Additional Government Advocate is unwholesome. 12.1. Perusal of record of writ petition/original application filed under Section 19 of the Administrative Tribunals Act, 1985, reveals that on 17.03.2016 when the matter was taken up for “admission” by the Odisha Administrative Tribunal, objection at the behest of Additional Standing Counsel appearing for the State of Odisha was raised to the effect that the Original Application as laid against the Order of retrenchment dated 29.04.2011 was not maintainable. The said Tribunal, after hearing the counsel for the respondent herein and the Additional Standing Counsel for the appellants herein, has passed the following Order on the said date, which remained unchallenged by the appellants, the functionaries of the State of Odisha: “*** On going through the contents of the O.A. and the annexure appended thereto, we find that the applicant was engaged on 21.03.1985 as NMR Mate (Typist) under the Executive Engineer, Mahanadi Barrage Division, Cuttack. But as her service was terminated by the respondent No.4 on 01.03.1989, violating the. provision of Section 25-F and 25-G of the ID Act, she, had approached the Industrial Tribunal and the Industrial Tribunal vide order dtd.24th February, 2010 as at Annexure-1 directed for her reinstatement in service with 50% back wages and W.A. No.688 of 2022 Page 71 of 80 dated accordingly she was allowed to join and to work in the office of Executive Engineer, Mahanadi Barrage Division, Cuttack vide Order dated 21.08.2010 and was paid 50% of back wages. But again she has been retrenched vide impugned order at Annexure-10, which is the Office Order the 29.04.2011 No.2032, Superintendent Engineer, Drainage Circle, Gandarpur, Cuttack-3. She has not only challenged Annexure-10, but also prayed for regularization of her service in terms of Annexure-4, 5 & 6. So, one of the main prayers in the O.A. is for regularization of her service by bringing to work- charged establishment. In such circumstance, prima facie there is no bar for this Tribunal to adjudicate the dispute as the applicant cannot seek the relief for regularisation of her service before the Industrial Tribunal. passed by Hence, the O.A. is admitted. As already notice has been issued, the State-respondents are directed to file counter within four weeks.” 12.2. In a similar fact-situation where retrenchment of NMR employees, working under work-charged establishment, was under challenge, this Court in the case of Samal Barrage Employees’ Union &c. Vrs. State of Odisha, 2005 (II) OLR 1, held as follows: “9. Undisputedly, the members of the petitioner-Union have approached the Tribunal by filing O.A. Nos. 122 (C) to 126 (C) of 2002. In those original applications, the Tribunal, has passed interim order protecting the interest of the employees. Since the employees have already approached the Tribunal the present writ applications at their instance are employees not maintainable. Moreover, the W.A. No.688 of 2022 Page 72 of 80 represented by the petitioner-Union are working in the work-charged establishment and as such are holders of civil post under the State Government. Section 15 of the Administrative Tribunals Act, 1985 vests jurisdiction in the Administrative Tribunal to deal with all matters pertaining to service under the Government. Therefore, the Orissa Administrative jurisdiction to Tribunal has ample power and effectively deal with the employees. In Union of India Vrs. Deep Chand Pandey, AIR 1993 SC 382, it was held by the Supreme Court that in respect of a claim by the daily wager employees, the Tribunal not before the High Court. In view of such decision of the Apex Court, this Court is of the considered opinion that the remedy available to the present petitioners is to agitate their grievance before the Tribunal and not before this Court. Accordingly, this Court is constrained to hold that the present writ applications are not maintainable.” the grievances of the remedy lies before 12.3. At this juncture this Court may have regard to the enunciation of the Hon’ble Supreme Court in the case of State of U.P. Vrs. Ehsan, (2023) 13 SCR 905, which is as follows: “25. In the above backdrop, the foremost issue which arises for our consideration is: Whether in exercise of writ jurisdiction the High Court should have refrained from adjudicating the contentious issue with regard to taking of actual possession of the surplus land from the landholder, when the same was not decided in the previous W.A. No.688 of 2022 Page 73 of 80 round of litigation even though it had arisen for consideration? *** 28. We are conscious of the law that existence of an alternative remedy is not an absolute bar on exercise of writ jurisdiction. More so, when a writ petition has been entertained, parties have exchanged their pleadings/affidavits and the matter has remained pending for long. In such a situation there must be a sincere effort to decide the matter on merits and not relegate the writ petitioner to the alternative remedy, unless there are compelling reasons for doing so. One such compelling reason may arise where there is a serious dispute between the parties on a question of fact and materials/evidence(s) available on record are insufficient/inconclusive to enable the Court to come to a definite conclusion. 29. Bearing the aforesaid legal principles in mind, we would have to consider whether, in the facts of the case, the High Court ought to have dismissed the third writ petition of the first respondent and relegate him to a suit as there existed a serious dispute between the parties regarding taking of possession. More so, when the High Court, in the earlier round of litigation, refrained from taking up the said issue even though it had arisen between the parties. 30. No doubt, in a writ proceeding between the State and a landholder, the Court can, on the basis of materials/evidence(s) placed on record, determine whether possession has been taken or not and while W.A. No.688 of 2022 Page 74 of 80 that the person for whose benefit doing so, it may draw adverse inference against the State where the statutory mode of taking possession has not been followed [See State of U.P. Vrs. Hari Ram, (2013) 4 SCC 280]. However, where possession is stated to have been taken long ago and there is undue delay on the part of landholder in approaching the writ Court, infraction of the prescribed procedure for taking possession would not be a determining factor, inasmuch as, it could be taken the procedure existed had waived his right thereunder [See State of Assam Vrs. Bhaskar Jyoti Sarma & Others (2015) 5 SCC 321]. In such an event, the factum of actual possession would have to be determined on the basis of materials/evidence(s) available on record and not merely by finding fault in the procedure adopted for taking possession from the land holder. And if the writ court finds it difficult to determine such question, either for insufficient/ inconclusive materials/evidence(s) on record or because oral evidence would also be required to form a definite opinion, it may relegate the writ petitioner is otherwise if maintainable.” to a suit, the suit 12.4. In yet another case being Genpact India Private Limited Vrs. Deputy Commissioner of Income Tax, (2019) 17 SCR 139, the observations of the Hon’ble Supreme Court of India runs thus: “In State of U.P. Vrs. U.P. Rajya Khanij Vikas Nigam Sangharsh Samiti, (2008) 12 SCC 675, this Court dealt with an issue whether after admission, the Writ Petition could not be dismissed on the ground of W.A. No.688 of 2022 Page 75 of 80 alternate remedy. The submission was considered by this Court as under: ‘38. With respect to the learned Judge, it is neither the legal position nor such a proposition has been laid down in AIR 1992 All 331 (Suresh Chandra Tewari Vrs. District Supply Officer) that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. It is no doubt correct that in the headnote of All India Reporter (p. 331), it is stated that “petition cannot be rejected on the ground of availability of alternative remedy of filing appeal”. But it has not been so held in the actual decision of the Court. The relevant para 2 of the decision reads thus: (Suresh Chandra Tewari case, AIR p. 331) ‘2. At the time of hearing of this petition a threshold question, as to its maintainability was raised on the ground that the impugned order was an appealable one and, therefore, before approaching this Court the petitioner the appellate should have approached authority. Though there is much substance in the above contention, we do not feel inclined to reject this petition on the ground of alternative remedy having regard to the fact that the petition has been entertained and an interim order passed.’ Even otherwise, the learned Judge was not right in law. True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ Court. It has been so held even by this Court in several cases that even if alternative remedy is available, it W.A. No.688 of 2022 Page 76 of 80 cannot be held that a writ petition is not maintainable. In our Judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ petition albeit wrongly and granted the relief to the petitioner.” 12.5. Such being position, for the compelling circumstance that led the respondent to ventilate her grievance before the Odisha Administrative Tribunal, as conceded to by the appellants in the counter affidavit filed in W.P.(C) No. 14006 of 2011, the objection of Sri Manoj Kumar Khuntia, learned Additional Government Advocate stands overruled. CONCLUSION & DECISION: 13. Thus being the legal perspective of possibility of entertainment of writ petition, even if there existed alternative remedy to assail the Order of retrenchment under the realm of the Industrial Disputes Act, 1947, on consideration of pertinent relevant facts for adjudication of the present contentious issues being not in dispute, the learned Single Judge was justified in proceeding to decide the matter under writ jurisdiction. W.A. No.688 of 2022 Page 77 of 80 14. The discussions on facts upon analysis of evidence on record would unequivocally show that there was gap between date of passing the Order of retrenchment and date of making the cheque representing the amount of dues. Therefore, this Court in this intra-Court appeal would sustain the observation of the learned Single Judge that there has been violation of requirement as envisaged to be carried out by the employer under Section 25-F and Section 25-G of the ID Act. 15. In the aforementioned factual matrix, this Court is of the opinion that the direction issued by the learned Single Judge in the Judgment dated 17.08.2021 while disposing of WPC (OAC) No.3077 of 2014 to reinstate the respondent in service with further direction to bring her over to the work-charged establishment forthwith, from the date her juniors have been brought over to the work- charged establishment, and then to bring her over to the regular establishment forthwith, if her juniors have been brought over to the regular establishment and with further direction to pay 50% of the wages to the respondent with effect from 29.04.2011 till she is reinstated in service would not meet the ends of justice. Rather this Court keeping in mind the principle propounded by the Hon’ble Supreme Court of India does require the appellants to pay lump sum amount. W.A. No.688 of 2022 Page 78 of 80 16. As the workman has worked only for a period of about four years and he has already at the age of about 55 years, it is a fit case for modification of the relief granted by the learned Single Judge. The reinstatement with back wages is not automatic in every case, where retrenchment is found to be not in accordance with the requirement stipulated in Section 25-F or Section 25-G of the ID Act. 16.1. Considering the fact that the respondent was in effective service only for about four years and eight months in toto, and out of service since 1989 till 2010 and subsequently since 2011, and no scrap of paper has been furnished to this Court to show that she was not in gainful employment during the said period(s), this Court deems it appropriate that the direction of the learned Single Judge at paragraph 14 of the impugned Judgment requires modification. Therefore, the appellants are now required to pay lump sum monetary compensation to the tune of Rs.2,00,000/- (rupees two lakhs only). 16.2. This Court, accordingly, directs payment of lump sum compensation of Rs.2,00,000/- (rupees two lakhs only) to the respondent, within a period of eight weeks from today, failing which said amount shall carry interest @ 6% per annum, till actual payment. W.A. No.688 of 2022 Page 79 of 80 17. In fine, the Judgment dated 17.08.2021 of the learned Single Judge in WPC (OAC) No.3077 of 2014 stands modified to the extent indicated above, but in the circumstances, there shall be no order as to costs. (MURAHARI SRI RAMAN) JUDGE MR. CHAKRADHARI SHARAN SINGH, CJ. I agree. (MR. CHAKRADHARI SHARAN SINGH) CHIEF JUSTICE High Court of Orissa, Cuttack The 15th May, 2024//MRS/Suchitra Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 15-May-2024 19:17:01 W.A. No.688 of 2022 Page 80 of 80