Mr. S.B. Mohanty relies on judgment of the Supreme Court in Lucknow University v. Akhilesh Kumar Khare, reported in
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 13542 OF 2022 Padmalochan Barik and others …. Petitioners -versus- The Chairman, Odisha Electricity Regulatory Commission, Bhubaneswar and others …. Opposite Parties Learned advocates appeared in this case: For petitioners : Mr. S. B. Mohanty, Advocate For opposite parties : Mr. B. Routray, Advocate (for opposite party no.1)
Legal Reasoning
Ms. S. Pattanayak, Advocate (for opposite party no.3) (for opposite party nos.4 & 5) Mr. P. K. Mohanty, Senior Advocate CORAM: JUSTICE ARINDAM SINHA JUSTICE SIBO SANKAR MISHRA JUDGEMENT --------------------------------------------------------------------------------- Dates of hearing: 12th and 22nd November, 2023 Date of Judgment: 22nd November, 2023 ARINDAM SINHA, J. 1. Mr. S.B. Mohanty, learned advocate appears on behalf of petitioners and submits, award was made directing reinstatement. Page 1 of 8 // 2 // There was unsuccessful challenge to the award by the management. They took their contention to the Supreme Court by Special Leave Petition, also dismissed. 2. The management did not comply with the direction for reinstatement in respect of all the employees. Some were given reinstatement. Others died in the meantime. His clients are those who did not get reinstatement but in the meantime achieved age of
Decision
superannuation. Hence prayer in the writ petition. 3. Mr. Routray, learned advocate appears on behalf of opposite party no.1. Opposite party no.2 goes unrepresented. Ms. Pattanayak, learned advocate appears on behalf of opposite party no.3. 4. Mr. P.K. Mohanty, learned senior advocate appears on behalf of opposite party nos.4 and 5 and submits, efficacious alternative statutory remedy under section 142 in Electricity Act, 2003 is available to petitioners since prayer in the writ petition is in nature of enforcement of paragraphs 46 and 47 in order dated 25th March, 2021 made by Odisha Electricity Regulatory Commission in suo moto case no.9 of 2021. WP(C) no.13542 of 2022 Page 2 of 8 // 3 // 5. True it is prayer of petitioners is in nature of enforcement of paragraphs 46 and 47 of said order dated 25th March, 2021 passed by the Commission but we are unable to accept the writ petition is not maintainable because of provision by section 142 regarding punishment on non-compliance of order. Petitioners are seeking relief before the writ Court. Whether or not they will seek punishment for non-compliance is a different matter altogether. 6. Mr. S.B. Mohanty relies on judgment of the Supreme Court in Lucknow University vs. Akhilesh Kumar Khare, reported in (2016) 1 SCC 521, paragraph 19 to submit, in similar situation where workmen who were to be absorbed/ regularized but were not and there was litigation pending, during which time they achieved age of superannuation, there was direction for payment of compensation. His clients are those of 38 workmen, in respect of whom there was order of reference dated 16th December, 1998 answered by award dated 17th August, 2011. Though there was direction in the award for their reinstatement, on refusal of the new management (opposite party nos.4 and 5), they were compelled to contest the writ petition. In this time present petitioners achieved age of superannuation while some, who still were eligible, ultimately got reinstated. WP(C) no.13542 of 2022 Page 3 of 8 // 4 // 7. On query from Court Mr. S.B. Mohanty submits, it appears from Akhilesh Kumar Khare (supra) workmen therein were getting interim relief under section 17-B in Industrial Disputes Act, 1947 on meagre amount of Rs.650/-. His clients were getting even less at Rs.575/-. 8. Mr. P.K. Mohanty submits, the award was unsuccessfully challenged by his client and Special Leave Petition filed in the Supreme Court stood dismissed. In the circumstances and pursuant to contempt proceeding initiated, his clients totally complied. Those who could be given reinstatement were given reinstatement. On query from Court he submits the contempt proceeding (CONTC no.2957 of 2020) is pending. 9. He draws attention to said award dated 17th August, 2011. He relies on order made therein. We reproduce it below. in refusing employment <12. Hence it is Ordered: That the action of the management of M/s. C.E.D. Balasore to Sri Kartikeswar Behera and 37 others as per Annexure-A from the date mentioned against each is illegal and unjustified. All the workmen under the present reference are entitled to be reinstated in service but without any back wages. The management is directed to implement this Award within one month from the date of its publication in the official Gazette. WP(C) no.13542 of 2022 Page 4 of 8 // 5 // The reference is answered accordingly.= (emphasis supplied) He draws attention to order dated 6th November, 2019 made by coordinate Bench on the writ petition impugning the award. He submits, there was slight modification of the award made thereby. Last two paragraphs in said order are reproduced below. <It is submitted by the learned counsel for the workmen that, in the meantime, some of the workmen have died and some have already crossed the age of superannuation. In view of the said fact, let the Management reinstate the workmen, who are eligible to be continued in service within a period of six weeks from today. The persons, who have already expired and crossed the age of superannuation are also entitled to get the statutory benefit and the same shall also be extended in favour of the legal heirs of the workmen who have died and to the workmen who have crossed the age of superannuation in case they approach the Management within the said period. Accordingly, the impugned award passed by the learned Presiding Officer, Labour Court, Bhubaneswar in I.D. Case No.213 of 1998 stands confirmed and the writ petition being devoid of merits, stands dismissed.= 10. Mr. Mohanty submits, on analysis of direction made in the award as modified by said order, it cannot be said there is anything outstanding for his client to still comply with. In the circumstances, in context of prayers made in the writ petition taken in the parts they WP(C) no.13542 of 2022 Page 5 of 8 // 6 // have been made, petitioners are not entitled to any relief in respect of them and the writ petition be dismissed. 11. We made two further queries to Mr. P.K. Mohanty. First, whether first party-management described in said award dated 17th August, 2011 is the utility of NESCO. Second, whether petitioners claiming to be 12 of 38 persons mentioned in reference order dated 16th December, 1998, answered by said award are 12 of the 38 persons. To both queries Mr. Mohanty replies in the affirmative. 12. We are convinced petitioners were entitled to the relief flowing from paragraphs 46 and 47 of order dated 25th March, 2021 made by Odisha Electricity Regulatory Commission in suo moto proceeding on sale of utility of NESCO. Said award directed relief to all workmen under the reference to be reinstated but without any back wages, with direction for implementation within one month from date of publication thereof. The award was challenged by present management culminating in aforesaid order dated 6th November, 2019, made more than after 8 years had passed after publication of the award. It is no surprise that coordinate Bench noticed some workmen had died and some of them had already crossed the age of superannuation. The award was confirmed by the High Court. Special WP(C) no.13542 of 2022 Page 6 of 8 // 7 // Leave Petition to the Supreme Court preferred against the order was dismissed. 13. Petitioners before us are 12 of 38, who did not get the relief directed by said award because of pendency of litigation. Mr. P.K. Mohanty submits, included in 12 petitioners are widows of some workmen who have died. Following Akhilesh Kumar Khare (supra) on compensation to be granted on the prayer of petitioners we direct opposite party nos.4 and 5 to pay Rs.6,00,000/- to each of petitioners except petitioners nos.8 and 12, within four months from date of receipt of this order. The payment shall be in addition to wages paid under section 17-B. As aforesaid we are making the direction for payment of compensation following Akhilesh Kumar Khare (supra) because facts regarding interim relief paid during pendency of litigation and thereby also the relief denied because the workmen had achieved the age of superannuation are similar, if not same. Further similarity in facts is interim relief paid to workmen in the case before the Supreme Court was Rs.650/- while on behalf of petitioners submission is they got Rs.575/-. The Supreme Court had granted Rs.4,00,000/- each to such workmen in year 2015. Considering rising cost of living we have directed as above, at Rs.6,00,000/-. WP(C) no.13542 of 2022 Page 7 of 8 // 8 // 14. We record submission made by Mr. Mohanty that petitioners who have been directed to be paid have already received retiral benefits. Mr. S.B. Mohanty disputes the submission. 15. The writ petition is allowed and disposed of. (Arindam Sinha) Judge (S.S. Mishra) Judge Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 23-Nov-2023 11:13:27 WP(C) no.13542 of 2022 Page 8 of 8