The High Court
Case Details
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.18578 of 2015 Durga Charan Das and others …. Petitioners Mr. Nirmal Chandra Das, Advocate -Versus- State of Odisha and others …. Opposite Parties Mr. Bimbisar Dash, AGA Ms. Pami Rath, Senior Advocate W.P.(C) No.1018 of 2014 Rabinarayan Das and others …. Petitioners Mr. Budhadev Routray, Senior Advocate Mr. J. Biswal, Advocate -Versus- State of Odisha and another …. Opposite Parties Mr. Bimbisar Dash, AGA Ms. Pami Rath, Senior Advocate And W.P.(C) No.8554 of 2014 Odisha Mining Workers’ Federation, OMC House, Unit- V, Bhubaneswar …. Petitioner Mr. S.S. Das, Senior Advocate Ms. Sobhna Das, Advocate -Versus- State of Odisha and others …. Opposite Parties Mr. Bimbisar Dash, AGA Ms. Pami Rath, Senior Advocate Page 1 of 39 CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:13.05.2025 1. Since a common cause of action is involved, all the writ petitions have been clubbed together for disposal. 2. W.P.(C) No.1018 of 2014: Instant writ petition is at the behest of the petitioners, who are the ex-employees of the Orissa Mining Corporation (in short „the Corporation‟) seeking a direction to the opposite parties, particularly, opposite party No.2 therein to implement the decision of the Corporation as at Annexures-2 and 3 with effect from 1st April, 1989 and to extend the pensionary benefits to them and other retired employees and to quash the impugned order dated 28th April, 2014 under Annexure-9 declaring the same as not tenable in the eyes of law with consequential directions issued. 3. W.P.(C) No.8554 of 2014: The Odisha Mining Workers‟ Federation has filed the writ petition assailing the impugned decision of the State Government as at Annexure-14 therein and to quash the same with a further direction to implement the pension scheme for the employees of the Corporation after approval as per Annexure-3 within a stipulated period and to pass such orders and directions as deemed just and proper in the facts and circumstances of the case. Page 2 of 39 4. W.P.(C) No.18578 of 2015: The present writ petition is at the behest of the petitioners, who are also retired employees of the Corporation for issuance of a writ in the nature of mandamus directing opposite party Nos.1 and 2 therein to implement the order dated 8th October, 2012 of this Court in W.P.(C) No.19405 of 2009 as the pension scheme was not introduced and to issue such further orders as considered suitable and expedient. 5. The past events and facts of the case need a brief mention. In fact, all the writ petitions were disposed of by a common judgment dated 29th January, 2019 with a conclusion that the impugned order dated 28th April, 2014 of the State Govt. denying introduction of the pension scheme cannot be sustained and hence, the same is liable to be quashed and set aside with a direction to the State Government to reconsider the extension of pensionary benefits as per the scheme approved by them with the concurrence received from the Finance Department, Government of Odisha vide letter dated 5th October, 1991. Thereafter, intra-court appeals were filed by the State Government and the Corporation in W.A. Nos.445, 612 and 613 of 2019 and all were disposed of by a judgment dated 22nd June,2021, whereby, the Division Bench of this Court set aside the judgment and restored the writ petitions for a fresh decision and disposal on the points other than the one, for which, it was decided after hearing of the parties within a stipulated period, granting liberty to the State Government to file affidavit and such other documents considered relevant for the subject matter. Upon disposal of Page 3 of 39 the appeals, the writ petitions were freshly heard and finally disposed of by a judgment dated 23rd December, 2021 reiterating the earlier view expressed thereby quashing the impugned order dated 28th April, 2014 complying the directions issued in W.P.(C) No.19405 of 2009 and the opposite parties to reconsider the extension of the benefit of pension as per the scheme already approved by the State Government and duly concurred by the Finance Department as expeditiously as possible preferably within a period of four months from the date of receipt of a copy of the judgment. Upon such disposal, the State Government and the Corporation again filed W.A. Nos.584, 585, 586, 607, 608 and 609 of 2022. Since the State Government was allowed to file affidavit pursuant to the judgment dated 22nd June, 2021 in W.A. Nos.445, 612 and 613 of 2019 and the same was rejected by order dated 8th December, 2021 by the learned Single Judge, it was challenged by the State Government and the Corporation with such other grounds and contentions advanced. All the appeals were disposed of by the Division Bench by a common order dated 6th March, 2024 and found one of the grounds taken therein vis-à-vis rejection of the affidavit by order dated 8th December, 2021 consequent upon the judgment in W.A. Nos.445, 612 and 613 of 2019 to be manifestly erroneous on the premise that it could not have been in view of the liberty granted by the Division Bench and the same needed a consideration as was not to be rejected at the very threshold without adverting to such other grounds and contentions advanced. On the sole ground of rejection of Page 4 of 39 the affidavit filed on behalf of the State Government, the judgment of the learned Single Judge was interfered with and set aside restoring the writ petitions for a re-hearing and disposal. The above are the facts in precise, which led to the restoration of the writ petitions for disposal on merit considering the grounds advanced and taking into account the affidavit of the State Government rejected earlier.
Legal Reasoning
6. Heard Mr. Das, learned counsel in W.P.(C) No.18578 of 2015; Mr. Routray, learned Senior Advocate and Mr. Biswal, learned counsel in W.P.(C) No.1018 of 2014; Mr. Das, learned Senior Advocate in W.P.(C) No.8554 of 2014 besides Ms. Rath, learned Senior Advocate for the Corporation and Mr. Dash, learned AGA for the State. 7. For the sake of brevity, the facts pleaded on record in W.P.(C) No.1018 of 2014 have been referred to and discussed. As per such pleading, the Corporation is a Public Sector Undertaking (PSU) being controlled, managed and financed by the State Government. The petitioners happened to be the former employees of the Corporation and superannuated on attaining respective age of retirement. The petitioners while in service, the Board of Directors of the Corporation in their 268th meeting dated 25th March, 1989 decided in principle on the proposal for introduction of pension scheme for its employees at par with the benefit extended to the employees of the State Government with effect from 1st April, 1989. For the said purpose, a Committee was constituted comprising of the Chairman, Page 5 of 39 Managing Director, Joint Secretary (Finance), Government of Odisha), Secretary and Financial Advisor, Orissa Mining Corporation Ltd. to examine and submit a report in the matter of introduction of a pension scheme and accordingly, it was prepared and placed before the Board of Directors on 25th June, 1981, who on consideration of the same in their 282nd meeting unanimously resolved to approve such scheme, consequent thereto, a memorandum was prepared to obtain approval from the State Government and the Central Provident Fund Commissioner before its implementation. The aforesaid decision of the Board of Directors was forwarded and subsequently, it was approved by the State Government after due consideration and accordingly, on 5th October, 1991, the Under Secretary to the Government in the Department of Steel and Mines addressed a letter to the Chairman-cum-Managing Director of the Corporation indicating therein that the proposal for introduction of pension scheme was approved with due concurrence of the Finance Department with effect from 1st April, 1989 subject to modification to the effect that the age of superannuation of the employees of the Corporation shall be 58 years except in case of Class-IV employees, for whom, it would be 60 years. 7.1. With regard to grant of exemption as per Section 17(1)(a) of the Employees Provident Fund and Miscellaneous Provision Act, 1952 (in short „the EPF Act‟), the Regional Provident-cum-Commissioner had a correspondence with the State Government mentioning therein that the Government is the appropriate authority to consider it and issue necessary Page 6 of 39 concurrence in exercise of powers conferred thereunder. Consequent upon receiving the above, the Government in the Labour and Employment Department allowed such exemption with a notification dated 1st June, 1985 and it was duly complied with by the Corporation. 7.2. Notwithstanding the approval of the State Government upon receiving the concurrence of the Finance Department, the decision taken by the Board of Directors for introduction of pension scheme for the employees of the Corporation was not implemented, for which, the Board of Directors once again issued a memorandum on 30th March, 2000 for introduction of the scheme, wherein, it was stated that the same would be given effect to after receiving approval of the competent authority, which was not required, as it had already been approved by the State Government. 7.3. As far as the Corporation is concerned, it has been placed under the Gold category pursuant to the decision of the Government of Orissa in Public Enterprises Department as per Annexure-6 along with two other PSUs named therein. In the case of one of the PSUs, namely, Odisha Hydro Power Corporation (OHPC), pensionary benefits were extended to its employees way back in 2012. But, on some pretext or the other, the pension provision has not been allowed for the employees of the Corporation, as a result of which, the petitioners knocked the portals of this Court in W.P.(C) No.19405 of 2009 seeking a direction for the State Government and the Corporation to implement the pension Page 7 of 39 scheme and it was disposed of by order dated 8th October, 2012 with a direction to the State Government to take a call in that regard within a stipulated period, whereafter, the Corporation submitted its proposal on 9th April, 2013 on the strength of a resolution passed by the Board of Directors, however, the State Government by order dated 28th April, 2014 as at Annexure-9 refused such proposal thereby denying the pensionary benefits to its employees. 8. Considering the pleadings of the respective parties, the writ petitions, as earlier stated, were disposed of by a common judgment dated 29th January, 2019 and thereafter, the subsequent events followed, which need no reiteration, as are borne out of record. In the considered view of the
Decision
Division Bench in WA Nos.445, 612 and 613 of 2019 disposed of on 22nd June, 2021, the learned Single Judge had not taken into account such other grounds and the decision is rather on the premise that there is violation of Article 14 of the Constitution of India and that, the employees of the Corporation are to be treated on par with two others PSUs, with conclusion that the intrinsic merit of the proposal of Management of the Corporation way back in 1991 for introduction of a pension scheme was not examined, held that the same needs a re-consideration. Upon such remand, as stated before, learned Single Judge expressed the same view and concluded that non-extension of pensionary benefits to the petitioners, who are the ex-employees of the Corporation and others with effect from the given date would be discriminatory and opposed to the basic feature of the Page 8 of 39 Constitution of India and the concept of equality. Furthermore, the learned Single Judge declined to accept the affidavit of the State Government pursuant to the direction of the Division Bench upon disposal of the intra-court appeals. The State Government and the Corporation challenged the same and the matter suffered a remand once again with a view that the affidavit filed on behalf of the State Government pursuant to such liberty granted required consideration and could not have been discarded at the very inception. The aforesaid developments having taken place, this Court is to re-appreciate and examine such grounds advanced by the respective parties for a decision on merit. 9. At the cost of the repetition, it is stated and pleaded on record that the petitioners are the retired employees of the Corporation and had approached this Court in W.P.(C) No.19405 of 2009 for a direction to the opposite parties to implement the Pension Scheme for all the employees of the Corporation within a stipulated period and it was disposed of by an order dated 5th October, 1991 as at Annexure-1. When said the matter was subjudice before this Court, the Chairman-cum-MD, OMC issued a letter to the Government as per Annexure-2 to accord necessary approval for extension of pensionary benefits to the employees of the Corporation by following due rules and procedure of OCS (Pension) Rules indicating therein the fact that the Government has extended pension to the employees of OHPC, a Gold category PSU from the date of its incorporation i.e. on 1st April, 1996. In the meanwhile, W.P.(C) No.19405 of 2009 Page 9 of 39 was disposed of with a direction to the Government to take a decision in terms of the request of the Corporation. Since the said direction was not complied within the timeline fixed, CONTC No.539 of 2013 was filed, but at last, it was dismissed by order dated 22nd September, 2015. In any case, the claim of the petitioners is for implementation of the Pension Scheme to the employees of the Corporation with the pleading on record that the directions of the Government to take a decision in that behalf in W.P.(C) No.19405 of 2009 was openly flouted. In fact, the request was made to the Government by the Corporation and it was responded to vide Annexure-1 stating therein that the draft proposal for introduction of the Pension Scheme for the employees of the OMC w.e.f 1st April, 2009 had been approved subject to modification therein with regard to the age of superannuation of the employees of the Corporation. As earlier stated, such a request was received by the Government and in view of Annexure-1, it is revealed that the draft proposal of the Pension Scheme received approval of the Government with the concurrence of the Finance Department dated 9th August, 1999. The Corporation, thereafter, moved the CPF Commissioner for exemption referring to the recommendation for such exemption by the RPFC, Bhubaneswar. In response to the above, CPFC informed that RPFC has the authority to forward the proposal. It is claimed that exemption under Section 17(1)(c) of the EPF Act was granted by the Government way back in June, 1985, But, the same was not brought to the notice of the CPFC by the Page 10 of 39 Corporation or RPF Commissioner, Bhubaneswar. In 1995, the Public Enterprises Department, Government of Odisha directed all the PSUs to formulate suitable pension schemes for their employees. But by that time, the Corporation had already adopted a Scheme of its own with due approval of the State Government. In fact, the Board of Directors of the Corporation held their 321st meeting on 30th March, 2000 and decided to implement the Pension Scheme for the employees of OMC w.e.f. 1st April, 1989. However, it was advised to apply before the competent Authority. Followed by a long break, again on 23rd March, 2006, the Board approved the OMC Retiring Employees Benefits Scheme to be implemented prospectively upon receiving the Government approval and it was also resolved that the employees retiring after 1st April, 1989 are only to be eligible to receive the benefit under the Scheme. The pleading is that the RPF Commissioner, Bhubaneswar, since, had no authority to grant exemption under Section 17(1)(c) of the EPF Act, rejected the request, as such exemption had already been allowed by the Government in 1985. The fact that the Corporation, without referring to the earlier exemption granted by the appropriate Government, again approached the RPF Commissioner on 31st January, 2003, who has admittedly no power to consider the same under the EPF Act. Upon such rejection, the Management of the Corporation in order to overcome the financial condition of the retired employees, introduced OMC Retiring Employees Benefits Scheme in their 355th meeting of Board of Directors held on 23rd March, Page 11 of 39 2006 and it was sent to the Government for approval, received back with suggestions to add certain provisions and to resubmit but thereafter, there was no further progress. Finding no other way out, the retired employees filed the writ petitions for a direction to the Management of the Corporation to implement the Pension Scheme and in W.P.(C) No.19405 of 2009, the order dated 8th October, 2012 was passed with a direction to the Principal Secretary to Government, Steel and Mines Department to take a decision on the proposal received from the Corporation. On 26th April, 2013, the Under Secretary, Steel and Mines Department, Government of Orissa by letter No. 3719 requested the Corporation to inform as to why the Pension Scheme for the its employees was not given effect to in spite of approval of the Government and concurrence of the Finance Department but the OMC Management failed to reply. Since no decision was taken by the Corporation, W.P.(C) No.1018 of 2013 was filed, during pendency of which, the Government by Office Order dated 28th April, 2014 denied pension to the OMC employees in response to the letter No.4587 dated 9th April, 2013 of the CMD, OMC, which is stated to be in violation of the directions issued in W.P.(C) No.19405 of 2009. 10. The admitted fact is that the OMC Management in its 268th meeting of the Board of Directors held on 25th March, 1989 decided introduction of Pension Scheme for the employees of the Corporation and again in 282nd meeting dated 25th June, 1991, it was reiterated for the approval of the State Government and the CPF Commissioner having been Page 12 of 39 obtained. The State Government by letter dated 5th October, 1991 intimated the OMC that it has approved the scheme with the concurrence of the Finance Department. In fact, on the basis of the communication of the Government, the contention is that when the proposal for implementation of pension scheme has been duly approved and concurred by the Finance Department, there was no need to further consider the matter, inasmuch as, no further request could have been made by the Corporation for reconsideration. It is the contention that the Government failed to demonstrate that any such decision in the year 1991 for and in respect of the pension scheme vis-à-vis the employees of the Corporation to have either been annulled or varied or withdrawn at any point of time and therefore, the same having been approved, it could not be allowed to change the stand, all more when, the same to be a benevolent measure keeping in view the interest of the retired employees of OMC. It is pleaded that in view of Section 17 of the EPF Act, the State Government exempted the Corporation, but in 2014, such a decision not to extend the pensionary benefits to its employees is an arbitrary decision and without jurisdiction. Referring to Article 14 of the Constitution of India, the contention is that its strikes at arbitrariness for a cause of action, which must necessarily involve negation of equality, as such doctrine evenly to apply to Executive actions. Since, the Corporation instead of acting upon the approval of the pension scheme, remained aloof and did not seek any clarification and thereafter, the Government rejected such grant of pension, in view of Article 12 of the Page 13 of 39 Constitution of India, it is further pleaded, any such action could not have altered the position, unless and until, the same is in contravention of any statutory law. The contention is that the Government or for that matter, the authority is estopped from changing the stand already taken regard being had to the future of the employees of the Corporation. 11. The Corporation is a Public Sector Unit (PSU). Admittedly, the Board of Directors of the Corporation in 1989 proposed in principle to introduce a pension scheme for its employees. It is needless to mention that the Corporation is one of the oldest PSUs involved in exploration of mineral resources in the State, ever since its existence. As provided under the rules of the Corporation, the employees at the time of retirement would receive benefits of gratuity and also employer‟s contribution to the provident fund. In view of the fact that the benefits do not meet the ends of the employees, such a pension scheme was proposed with the decision of the Board of Directors of the Corporation. But as earlier stated, in spite of the approval of the State Government and concurrence of the Finance Department, it is could not be implemented. As has been discussed before, the Board of Directors of the Corporation failed to respond, as a result of which, the pension scheme was put to cold storage. In fact, after revision of the pay scale of Government employees in 1989, a resolution was passed by the Department of Public Enterprises, Government of Odisha with regard to rationalization of the pay and allowances of the employees in the Management cadres of the State Public Sector Enterprises Page 14 of 39 and even though, thereafter, the recommendation was made by the Board of Directors and it received concurrence of the Finance Department and approval of the State Government, it is best known to the authorities concerned, for having not implemented the same. 12. It is not in dispute that the appointment orders of the employees of OMC do have a condition that the appointees would be required to contribute CPF in accordance with the rules of the Corporation with its amendments made from time to time. In fact, the affidavit of the State Government dated 14th July, 2021 is filed with the copies of the appointment orders at Annexure-A/1 and B/1. A copy of the OMC Employees Provident Fund Rules is at Annexure-C/1 to the same. Furthermore, a copy of the advertisement of the year 2019 for recruitment of the Executives by the Corporation as at Annexure-D/1 is placed reliance on to plead that the OMC services to be not pensionable. In other words, the employees of the OMC joined with service conditions which excluded pension but with a provision of CPF. As per the said affidavit, the employees of the OHPC are not similarly situated and therefore, the employees of the Corporation cannot be treated equally. In fact, it is pleaded that OHPC has a pension scheme for its employees redeployed/transferred from various Hydro Projects of the erstwhile OSEB as well as Government of Odisha, who were absorbed therein from the date of its creation on 1st April, 1986. However, such is not the case of the Corporation, inasmuch as, its employees are entitled to CPF only and while claiming so, a copy of the Page 15 of 39 letter received as at Annexure-E/1 is referred to. It is further stated therein that OHPC extended the scheme of uniform pensionary benefits to its non-pensionary regular employees by a Notification dated 6th September, 2012 followed by an amendment dated 21st November, 2015 and the same is applicable only to such employees, who returned the employer‟s share with interest to OHPC on the date of retirement and that, payment of the TI as sanctioned by the Government from time to time is payable subject to certain stipulations and placed on record, the above notifications as at Annexures-F/1 and G/1 respectively. A copy of the letter received from OPGC without any pension scheme is also enclosed at Annexure-H/1 to the said affidavit further stating that its employees are provided only one-time payment towards pension as per Public Enterprises Department Circular from the 3rd March, 2017 as at Annexure-I/1 and therefore, the claim is that the employees of the Corporation cannot be considered to be on equal footing with them as well as the employees of OHPC for the purpose of grant of pension. Furthermore, it is pleaded that the Resolution of the Government in Steel and Mines Department dated 5th October, 1991 lost its relevance in view of Annexure-J/1. It is further pleaded that such exemption under Section 17(1)(c) of the EPF Act from the operation of the CPF Scheme could not be obtained by the Corporation from RPFC, inasmuch as, the exemption has been rejected thereafter by EPFO, Government of India with a letter issued by the Assistant Provident Fund Commissioner as at Annexure-K/1 and Page 16 of 39 during the intervening period, the State Government introduced a new restructured contribution pension scheme w.e.f. 1st January, 2005 vide dated 13th July, 2006 i.e. Annexure-L/1 thereby abandoning the traditional pension scheme. A letter from the OMC at Annexure-M/1 is referred to in the affidavit stating that pursuant to the order in W.P.(C).928 of 2011 dated 10th February, 2011 by a speaking order as per Annexure-1, the representations of the employees received were disposed of indicating therein the fact that the scheme approved in 1991 by the State Government was no more under consideration for implementation and that apart, the Corporation has already implemented the Circular dated 23rd March, 2019 of the Public Enterprises Department with regard to one-time payment of financial benefits to its retired employees as per Annexure-N/1. It is stated therein that OMC‟s Board of Directors, therefore, in their meeting held on 29th January, 2019 approved introduction of OMC Employees Superannuation Scheme and in that regard, several representations have been received from the employees and Union/Association requesting implementation of the same enclosed at Annexure-K/1 series, but it has been received with a response as to the following that the rules of business mandate the P.E. Department to lay down the general policy and guidelines for effective management etc. of the State Public Sector Undertakings referring to Annexure-Q/1 and since introduction of pension in any one PSU has wider ramification, it is, therefore, to be considered as a policy Page 17 of 39 matter to be dealt with by the Department for all State PSUs and even though OMC is a subject within its domain, any such advice of the Department is binding on the Administrative Department concerned. 13. It is contended from the side of the petitioners that at the time of disposal of the writ appeals, no liberty was granted to the Corporation, whereas, such an opportunity was only for the State Government and therefore, the findings rendered by this Court and in the judgment dated 29th January, 2019 having not been set aside, it has attained finality and apart from the above, none of the opposite parties filed any review questioning the same and most importantly the Corporation did not challenge consciously for the simple reason that it also questioned the Governmental action for not extending pensionary benefit to its employees. The submission is that the State Government filed the review against the judgment dated 26th June, 2021 which was dismissed on 15th July, 2021. The further contention is that the State Government at no stretch of imagination can be said to be an aggrieved party since there is no financial impact on the Government, if in case, the pension scheme is introduced and furthermore, the Corporation is separate and an independent entity and therefore, the Government has no pervasive control over it and that apart, it cannot take a stand which was never ever raised before, when the writ petitions were disposed of. 14. Mr. Das, learned Senior Advocate for the Odisha Mining Workers‟ Federation would submit that the principle of Page 18 of 39 denial of natural justice, a stand which has been taken by the State Government in the appeal is preposterous. It is contended that the Corporation sought approval of the CPFC vide letter dated 12th March, 1992 and was advised to submit the same after such further steps being taken and therefore, it cannot be said that such proposal was ever rejected. It is submitted that new scheme EPS, 95 was introduced by the Government of India in lieu of existing family pension scheme, 1972 and the Corporation devised a separate scheme and thereafter, sought exemption from RPFC but it was refused on the ground that the scheme in question is not applicable to all and under such circumstances, the decision cannot be said or treated to be a rejection of the PF Authority of the proposal vis-à-vis pension scheme of 1991. Rather, it was a refusal to introduce a substituted scheme to the EPS, 95 and besides that, since, the subject matter is a pension benefit for the retired employees w.e.f 1st April, 1989, the CPFC has no role to play and the corpus fund is structured from the contribution of the retired employees, which they have received as management contributions. Mr. Das, learned Senior Advocate further submits that the Board of Directors of OMC while considering the implementation of the pension scheme advised the M.D. on 30th March, 2000 to arrange funds required for implementation of the same, as was approved earlier by the Government and in that regard, steps for creation and registration of a Pension Trust were taken and for a certification of the Income Tax Authority in recognizing the Trust for exemption of its contribution under Page 19 of 39 the I.T. Act and virtually, the Trust was registered and I.T. certification was obtained and that alone, proves beyond doubt that the Corporation was interested in 1991, 2000 and lastly in 2012 to have it, which is evident from its letters to the Government dated 1st August, 2012, however, unfortunately, there was a U-turn. With the above developments having been narrated, the contention of Mr. Das, learned Senior Advocate is that the Corporation cannot take a contrary stand or a decision completely opposite to the one earlier proposed. 15. It is brought to the notice of the Court that the Government in Personal Enterprises Department classified all the PSUs in the State into the following categories viz; Platinum, Gold, Silver and Bronze on the basis of turnover, profit and other parameters and the Corporation along with OHPC, IDCO & OPGC have been placed in the Gold category. It is claimed that the OHPC after bifurcation recruited employees in a similar manner like OMC, who had not inherited the pension benefits similar to the Government employees or employees of OSEB and therefore, denial of pension benefit to the Corporation, while granting the same to OHPC is violative of Article 14 of the Constitution of India. It is further stated that the Personal Enterprises Department engaged a Management Consulting Agency of world repute to design a uniform pension scheme for all the Gold category PSUs and while the same was in process, the Government approved the pension scheme similar with that of the employees of OHPC in the year 2012, whereafter, the Page 20 of 39 Corporation requested the Government to allow it, a Gold category PSU like OHPC to implement the same and informed that the Government approval is already in place since 1st October, 1991, but despite such a request, it was rejected on 28th April, 2014. 16. The Corporation on its own proposed to introduce a pension scheme for the employees in 1989 after an elaborate exercise subject to Government sanction. It is contended that such a decision was also subject to the approval of the CPFC, which was unnecessary by claiming that one has the option not to transfer the employer‟s contribution with interest to the pension fund and hence, to continue with the CPF. It is claimed that when there is such a scheme and any such exemption from PF authority would have been a mandatory requirement, when an employee is required to divert and deposit the matching employer‟s contribution in any other scheme like pension but not in the CPF during his service tenure, against the aforesaid background, with approval of the Government having concurrence of the Finance Department, it was the duty of the Corporation to ensure implementation of the same and cannot, therefore, be allowed to challenge its own decision. It is further claimed that the OMC is cash rich PSU and can manage and afford to meet the entire burden of pension from its internal accruals availing Income Tax benefits. 17. Advancing an argument that OMC is an independent entity though a State-owned Corporation incorporated under Page 21 of 39 Section 617 of the Companies Act, 1956, the State Government does not have any control over the same and in that connection, Mr. Das, learned Senior Advocate submits that in a similar case, SAIL was not held to be a Department of Union of India and refers to a decision reported in AIR 1982 SC 694. It is contended that the Corporation is not a Department of the State, which, therefore, cannot interfere in its functions except otherwise permissible under law and admittedly, the case at hand does not lie within the domain of the Government and in any case, there has been an approval of the Government with the concurrence of the Finance Department, which has never been withdrawn thereafter and hence, a different stand from what has been approved by the parent Department cannot be taken at a later point of time and that too when, the Corporation was never intimated to resubmit the scheme for further approval, on the contrary, it only suggested modification, hence, the pension scheme was required to be implemented with the changes suggested. 18. Mr. Routray, learned Senior Advocate for other petitioners highlighted upon the decision of the Government initially approving the pension scheme upon receiving the concurrence of the Finance Department and it was all along through till such time when put to dormant file. The contention is that the Board of Directors of the Corporation examined the pension scheme and proposed the parameters and also the manner in which the fund is to be appropriated in order to provide the pensionary benefits and after having such an exercise so elaborate and received the Government Page 22 of 39 sanction duly concurred by the Finance Department, any such decision thereafter leading to the rejection of the scheme is unjustified, rather, a decision which blatantly undermined such approval and also frustrated the legitimate expectations of its employees. 19. On the contrary, Ms. Rath, learned Senior Advocate for the Corporation vehemently argued that there is no rule or any service condition for the employees of the Corporation for pension. The contention is that the petitioners joined in a non-pensionable posts and retired in the meantime and do not have any pre-existing right, rather, have approached the Court to create such a right, which is not permissible under law and whatever materials are on record, the same merely presupposes a preparation or intention of the Corporation to have a policy for a pension and as such, no substantive right of pension can be claimed by them. Referring to the documents annexed to W.P.(C) No. 8554 of 2014, Ms. Rath, learned Senior Advocate would further submit that it was an action merely in the nature of a proposal without any final decision being taken and that apart, the pension scheme was to be implemented by way of a rule, which did not exist and therefore, working towards any such proposal creates no right of pension and any such decision of Corporation was never finalized until approval of the State Government. It is also submitted that Rule 13 of the Pension Scheme would suggests that unless any such Rule under Article 309 of the Constitution of India was framed, pension cannot be granted. It is contended by Ms. Rath, learned Senior Advocate that the Page 23 of 39 State Government suggested changes in the draft scheme and hence, it shows that right to pension had never seen the light of the day. Referring to the memorandum of proceedings at Annexure-4 to the writ petition, it is claimed that the action was to have rules for being formulated and in so far as Annexure-4 is concerned, the Corporation at best can be said to have looking at the liability and scrutinizing the various financial aspects to have such a scheme. Referring to Annexure-6 thereof, it is claimed that there was a clear admission on that part of the OMC regarding the earlier scheme having not been implemented as on 1st August, 2012, hence was the request to follow the OCS (Pension) Rules and considering the entirety of the case, it has to be held that the Pension Scheme, 1991 was abandoned by the Corporation. In support of the contention that pension cannot be claimed unless it finds source from a statutory law, Ms. Rath, learned Senior Advocate cited a decision on the Apex Court in U.P. Roadways Retired Officials and Officers Association Vrs. State of U.P. and others MANU SC 0792/2024). It is also contended that a writ of mandamus cannot be issued directing the State Government to introduce a pension scheme and in that regard, the following decisions, such as, 1992 SUPP (1) SCC 548, 2008(2) SCC 280 and 1986(4) SCC 362 have been referred to. 20. Mr. Dash, learned AGA for the State justifies the impugned decision highlighting upon the materials on record with reference to the affidavit filed with the contention that Page 24 of 39 the employees of the Corporation cannot demand any such pension, when such a provision is not feasible. 21. Having considered the pleadings on record and submissions of learned counsels for the respective parties, a question may arise with regard to the stand of the Corporation vis-à-vis proposal of the pension scheme. One wonders, why and for what reasons, the Corporation changed its course mid-way in pursuing implementation of the pension scheme, especially when, the draft scheme had received approval of the State Government with the concurrence of the Finance Department. In fact, it can be said that the Corporation has taken a complete turnaround with a stand challenging the very pension scheme with the claim that despite the Government‟s approval, it was abandoned. The Court rather finds the Corporation is at shoulder to shoulder with the State Government in opposing the pension scheme for its employees and quite strangely for no obvious reasons. 22. Notwithstanding the above opinion of this Court regarding the conduct of the Corporation, a decision shall have to be taken as to if any such proposal of a pension scheme of the Corporation even opposed at present should be implemented with a direction to the State Government for its consideration with suitable modifications. On a reading of the Pension Scheme, as it was drafted and styled as the Orissa Mining Corporation Ltd. Employees‟ Pension Rules, 1991, the total qualifying service to be counted as per the Orissa Page 25 of 39 Pension Rules, 1977 is held to be applicable being stipulated in Rule 7 thereof. According to Rule 8 of the said Rules, pension fund of the Corporation would be constituted (i) from the accumulated employer‟s share as on 1st April, 1989 standing to the credit of the employees along with the interest optimum for pension scheme; (ii) initial contribution amount to be paid by the Corporation as decided by the Board of Directors; (iii) the annual contribution as may be required would be as per actuarial valuation from time to time. The draft Rules further stipulates as per Rule 9 that the pension fund shall be managed by the Board of Trustees with the detailed rules framed with the approval of the Management. Notwithstanding any such exercise being undertaken by the OMC and renewed after a break, which, according to Ms. Rath, learned Senior Advocate, has resulted in abandonment of such scheme. It is not known as to what really prevailed upon the Management not to respond to the suggestions of the State Government and to maintain a stony silence. Ironically, upon renewal of such a demand and for reconsideration by the State Government, it has led to the rejection of the scheme. 23. Whether pension can be claimed by the employees of the Corporation? In absence of any rule or statute, Mr. Rath, learned Senior Advocate would submit that no pension is permissible. In U.P. Roadways Retired Officials and Officers Association (supra), the Apex Court, while dealing with a similar question in relation to the employees of U.P. Roadways in juxtaposition to their service conditions Page 26 of 39 distinctly different from the employees of the Government held and observed that such employees are not entitled to pension as all of them held non-pensionable posts. In the decision (supra) referring to a case law in Prabhu Narain and others Vrs. State of U.P. and others (2004) 13 SCC 662, it is held that pension cannot be allowed to the employees of the U.P. Roadways. In Prabhu Narayan case, the Apex Court observed that no doubt pension is not a bounty, it is valuable right given to an employee but in the first place, it must be shown that the employee is entitled to pension under a particular rule or scheme, as the case may be. At the end referring to other decision in U.P. Roadways (supra) held and concluded that there is a common thread in all the case laws to the effect that pension is a constitutional right, for which, an employee is entitled at the time of superannuation, however, it can only be claimed, when permissible under the rules or a scheme. It is further observed therein that one who is not holding a pensionable post cannot claim pension nor a writ court can issue mandamus directing the employer to provide pension to him. 24. A.R. Zakki (supra), the Apex Court observed that a writ of mandamus cannot be issued to the Legislature to enact a particular legislation and same is as regards the Executive when it exercises the power to make rules, which are in the nature of sub-ordinate legislation and reiterated the view expressed earlier in Supreme Court Employees’ Welfare Association Vrs. Union of India and another (1989) 4 SCC 187, wherein, it was concluded that no High Court can direct Page 27 of 39 a Legislature or for that matter, an Executive exercising legislative powers to enact a law which it has been empowered to do. The above decision was in connection with recommendation made by the High Court with regard to the provisions of the Judicial Recruitment Rules since therein various aspects adverted to by the Public Service Commission needed an in-depth examination, which could not have been ignored while making any such recommendation. The law is well settled that a writ of mandamus cannot be issued by a High Court directing the Legislature and Executive Authority usurping powers by way of sub-ordinate legislature to make laws and there is no quarrel over the legal position. The decision in Oriental Bank of Commerce Vrs. Sunder Lal Jain and another (2008) 2 SCC 280 is referred to by Ms. Rath, learned Senior Advocate to contend that this Court cannot direct the State Government to grant pension and in view of the fact that a writ of mandamus cannot be issued for the same. In the above decision, the principles on which the writ of mandamus may be issued have been stated with reference to an authority in the Law of Extra Ordinary Legal Remedies, wherein, it is expounded that the mandamus is a highly prerogative writ usually issued requiring an inferior court or authority to do a particular thing specified which appertains to the officer‟s duty assigned. It has been further outlined therein that mandamus is not a writ of right and its issuance unquestionably lies in the sound judicial discretion of the Court subject always to the well settled principles which have Page 28 of 39 been established by the Courts; an action in mandamus is not governed by the principles of ordinary litigation whether the matters alleged on one side and not denied on other side are taken as true and judgment pronounced thereon as a course; while mandamus is class as a legal remedy, issuance of which, is largely controlled by equitable principles and before granting the writ, the Court may and should look to the larger public interest, which may be concerned. The above principles have been adopted in catena of decisions of the Apex Court, as further referred to in Sunder Lal Jain (supra) and it is apposite to make a mention of the relevant extract of the same, which is, hence, reproduced herein below: country. In Bihar “12. These very principles have been adopted in our Eastern Gangetic Fishermen Coop. Society Ltd. Vrs. Sipahi Singh after referring to the earlier decisions in Lekhraj Sathramdas Lalvani Vrs. N.M. Shah, Rai Shivendra Bahadur (Dr.) Vrs. Nalanda College and Umakant Saran (Dr.) Vrs. State of Bihar, this Court observed as follows: "15.....There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising their public functions within jurisdiction. It follows, therefore, that in order the that mandamus may to compel limit of issue the Page 29 of 39 authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance…." to compel Therefore, in order that a writ of mandamus may be issued, there must be a legal right with the the the writ party asking for performance of some statutory duty cast upon the authorities. The respondents have not been able to show that there is any statute or rule having the force of law which casts a duty on the appellant Bank to declare their account as NPA from 31.3.2000 and apply RBI Guidelines to their case.” 25. Mr. Rath, learned Senior Advocate refers to yet another Supreme Court decision in State of Kerala Vrs. Smt. A. Lakshmikutty (1986) 4 SCC 632 to argue that in the case at hand, this Court is not to issue a writ of mandamus in absence of any statutory duty imposed on the State Government. The sum and substance of the contention is that when there is no statutory obligation to grant pension to the employees of the Corporation, a writ of mandamus shall not lie. 26. This Court is well aware of the limitations prescribed. When there is no law in place or any legislation in force introduced either by the Legislature or the Executive in exercise of delegated authority to make legislation, the High Court is not to issue any such writ. In order to issue a writ of mandamus, there must be a legal right with the party aggrieved insisting upon the due performance by the authority on account of the statutory duty cast upon him. But, Page 30 of 39 at the same time, one has to make out a distinction in a case where a direction may be issued to consider a particular provision, like the present one, for a pension scheme asked for by the employees of an organization, a PSU, keeping in view the demand, necessity and the need, having regard to the attendant circumstances around. It may be an order or a direction instead of a writ of mandamus issued by the Court paving the way for the State Government to explore and examine all such possibilities to have a provision of pension in respect of the employees of a PSU. In the instant case, the Corporation is a Gold category PSU and has been on a successful run for quite some time and unquestionably, has profitable returns and taking in to account the draft scheme proposed, it would not be inappropriate or unjustified to issue a direction to the State Government to invent and be experimental to have such a beneficial pension provision for its retired employees. It is not to be equated with issuance of writ of mandamus by the Court. Any such direction is not to be misconstrued either. The Court is fully cognizant of the fact that the petitioners and other employees, retired in the meanwhile, had been in non-pensionable posts but at the same time, is of the view that a direction is needed to be issued to examine and explore the ways and means to have the pension scheme for the employees of the Corporation, a demand which is long pending and is feasible. The Court is also of the view that such demand should not be equated with any other PSUs and hence, is to be independently examined by not paying too much of emphasis on the right of equality. Page 31 of 39 27. A demand to have a pension scheme hinges on variety of factors also depending on the organizational structure of a unit. The State Government and its functionaries since are involved even though OMC is an independent entity and them having no direct control and management over it must have to respond in a manner expected taking into account all such parameters and consequences, while taking decision on a pension scheme. Whether a scheme to be brought in is really viable and acceptable for a PSU or State-owned organization is a question to be thought of and answered necessarily followed by suitable recommendations. But, to distinguish such a claim of the Corporation with reference to another PSU having a pension scheme and on the ground that there is a need for a universal pension policy for all the PSUs thereby not having a holistic approach especially when a long pending demand is abandoned half-way for whatever reasons, should not prevail upon the State Government which should rather examine it followed by such suggestions needed to make it possible. Interestingly, request for a pension scheme was examined, proposed and recommended by the OMC Management and it received approval of the State Government in 1991 and that again upon receiving concurrence of the Finance Department, it may well be said that the Management of the Corporation failed its employees for taking no steps in response to the suggestions received. It would not even be incorrect to hold that any such demand when renewed, the State Government was required to respond in a way, as is normally anticipated. The Court does Page 32 of 39 not cast any aspersion or bad intent against the Corporation while examining the demand of its employees, but somewhere and at some point of time, the process could not be streamlined, rather, the exercise stood derailed. No doubt, the State Government has examined the plea but as it appears, specifically considering the affidavit filed by opposite party No.1 pursuant to the direction in W.A. No.613 of 2019, the OMC employees, whether to have a pension scheme or otherwise, appears to have been scrutinized by having a comparative study with reference to the pension scheme of the employees of OHPC. The Court is of the view that the manner in which the OHPC was brought into existence, consequent upon, reform in power sector with the employees of the erstwhile OSEB and State Government being redeployed or transferred on the date of creation in 1996 may have played a pivotal role to have pension for their employees. But the Court is of the humble view that the demand of the OMC employees is not to be compared with OHPC and therefore, an independent examination is necessary. Such a demand of the employees of the OMC cannot even be turned down with a plea that all the PSUs need to have uniform pension scheme. At the cost of reiteration, it is stated that OMC has its own organizational structure and identity with required needs and demand, which are to be sincerely taken care of. According to the Court, the scheme could have been suitably modified with such further recommendation made. Page 33 of 39 28. The OMC with a changed plea at present can be said to have responded in an outlandish manner peculiarly extending support in backing the State Government, more so when, it has been the creator and has become the destroyer with a clear intention to abandon the scheme, it had once conceived and proposed. It may also be alleged that OMC Management failed to rise to the occasion. What the Court is intended to convey is that the entire exercise ended in futile despite so much of progress and therefore, the State Government, in view of intent and purport of the scheme, which is unlikely cause any real burden on the State‟s exchequer, is required to reconsider the same for the Corporation employees with whatever necessary and appropriate modifications. The Court is to reiterate the view that the direction as above is not to be misconstrued as a writ of mandamus issued to the State Government to grant the pension but to explore the possibility when it had received the approval earlier with the concurrence of the Finance Department. It is not a case, where, there is a law or rule in place but the direction is for exploring the ways to have pension scheme for the employees of the OMC as was suggested and recommended by its Board of Directors. Any such decision should be duly examined and explored to ensure that a more acceptable and viable pension scheme is put in place for the retired employees of the Corporation with all such stipulations therein, an exercise, which is needed to be undertaken without being influenced by the earlier decisions of the State Government and if Page 34 of 39 necessary, to have a Core Committee duly constituted to make it happen. 29. As far as the legitimate expectation of the employees of the Corporation is concerned, it was responded to by Ms. Rath, learned Senior Advocate by contending that there can be no such expectancy in absence of statutory duty or promises to provide them the pension. In law, a legitimate expectation refers to a reasonable and justifiable expectation held by individuals that an administrative authority to act in a particular way on a promise or consistent past practice. Admittedly, in the instant case, the petitioners and all other employees retired from OMC had the knowledge from the very beginning that they joined in non-pensionable posts. It cannot be said that any of them ever had any expectation on account of such past decision for a pension or at any point of time, the State Government did ever promise them to grant pension in future. The doctrine of legitimate expectation essentially imposes a duty on public bodies to act fairly, prevent them from acting in an arbitrary or unreasonable manner, which is to breach a promise or established practice. In other words, such an expectation may arise from an express promise made by a public authority or functionaries of the Government or from a consistent past practice followed by them which is not a legal right, so to say and hence, not enforceable in a court of law and it can be overridden with the public interest or demand. In essence, the doctrine ensures that public authority acts fairly and without prejudice to anyone. It is based on the principle that a man Page 35 of 39 should keep his words all the more when the promise is not a bare promise but made with the intention that the other party should act upon it. The doctrine is not a specific legal right engraved in a particular statute or rule book and for the first time, an attempt was made to establish its principles in the case of Council of Civil Service Unions and others Vrs. Minister of Civil Service (1985) AC 374. The Apex Court described the doctrine more precisely in Ram Pravesh Singh and others Vrs. State of Bihar and others 2006 AIR SCW 5312, wherein, it has been concluded that a person can be said to have a legitimate expectation of a particular treatment, if any representation or promise is made by an authority either expressly or impliedly or if the regular and consistent past practice of the authority gives room for such expectation in the normal course. The Court is not to further elaborate and burden the judgment with other case laws since the doctrine of legitimate expectation cannot be invoked in the case of the OMC employees, who all along were fully aware of the fact that they joined and held non-pensionary posts and as such, there was no any past practice or ever had any such promise for them to have the provision of pension. So, the Court is in agreement with the contention of Ms. Rath, learned Senior Advocate for the Corporation that its employees cannot demand pension with a plea that there has been a legitimate expectation. 30. In course of hearing, a decision of the Apex Court in Andhra Pradesh Dairy Development Corporation Federation Vrs. B. Narasimha Reddy and others (2011) 9 Page 36 of 39 SCC 286 has been referred to at the Bar to contend that the decision of the State Government is vitiated and suffers from arbitrariness. Mr. Routray, learned Senior Advocate submits that when there was approval of the State Government initially with the concurrence of the Finance Department to have a pension scheme for the OMC employees, it could not have been negated with the impugned decision thereafter and such an action with a decision to deny the same defeats Article 14 of the Constitution of India. It has been responded to by Mr. Dash, learned AGA for the State and also Ms. Rath, learned Senior Advocate for the OMC by contending that there is no arbitrariness as the State Government honestly responded to the demand with a final decision taken towards the end. In the decision (supra), the Apex Court held and observed that Article 14 of the Constitution of India strikes at the very root of arbitrariness because an action which is arbitrary must necessarily involve negation of equality and reiterated the doctrine of arbitrariness with a conclusion that the same is not restricted only to executive actions but also applies to the Legislature. It is also held therein that a party has to satisfy that the action was reasonable, not done in unreasonable manner or capriciously or at pleasure without adequate rationality and certainly does not depend on the will alone. In the instant case, in respect of the employees of the Corporation, the action is alleged as arbitrary for the reason that the State Government despite having offered approval to the pension scheme with the Finance Department concurrence, emerged with a decision contrary to the Page 37 of 39 viewpoint and a stand, which it had taken before. On what ground, the pension scheme was rejected later without any decision to vary or supersede the same, is not discernable from the last affidavit on record. Though, there is no vested right or a legitimate expectation, while demanding pension but the State Government failed to respond reaching at a decision taking into account all the relevant factors. Any such variance in the action may create a sense of arbitrariness, as in the present case, where the employees of the OMC and its Management had approached the State Government and even received the approval and concurrence of the Finance Department for a pension scheme and thereafter, there was a complete upside down. The conclusion of the Court is that even in absence of legitimate expectation to have a pension provision for the OMC employees, the State Government should not have taken a decision one way at a given point of time and without supersession, changed it later on by not really exploring all such possibilities to have the pension scheme in place instead of unduly comparing the Corporation with other PSUs and in particular, OHPC. A comparison though at times is necessary to examine different aspects but that does not mean, the OMC cannot have any such pension scheme, independently. The scheme cannot either be rejected in contemplation of an idea that a uniform pension policy should be in place for all the PSUs. It is reiterated that the entire effort and endeavour should rather be for the State Government and the Corporation to work in tandem and harmony to examine all the aspects to have the pension Page 38 of 39 scheme fine-tuned and finalized with suitable modifications keeping in view the fact that the same would be a beneficial piece of provision greatly desired by the employees of the Corporation. 31. With above conclusion being reached at, the Court, having examined the perspective of the Govt. with reference to the affidavit filed by the State pursuant to the liberty granted by order dated 8th December, 2021 of the Division Bench in W.A. Nos.445, 612 and 613 of 2019 and also that of the Corporation, is not in a position to hold that the whole of the exercise largely undertaken for a much anticipated pension scheme for the retired employees of the OMC should not be allowed to die down, rather, it is required to be brought to a logical end. Hence, it is ordered. 32. In the result, the writ petitions stand allowed. As a logical sequitur, the impugned decision dated 28th April, 2014 of the State Govt. is hereby set aside with the direction to reconsider the extension of the pension scheme for the retired employees of the OMC duly approved by the State Govt. with the concurrence of the Finance Department vide its letter dated 5th October, 1991 at the earliest preferably within a period of eight weeks from the date of receipt of a copy of this judgment regard being had to the observations made herein above. Tudu/Balaram/Kabita Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Reason: Authentication Location: OHC, CUTTACK Date: 17-May-2025 15:24:34 (R.K. Pattanaik) Judge Page 39 of 39