Misc. Case No. 39 of 2013 · Orissa High Court
Case Details
ORISSA HIGH COURT : C U T T A C K W.P.(C) No.18754 of 2015 An application under Articles 226 & 227 of the Constitution of India Sri Kelu Charan Mohanty : Petitioner -Versus- The Chairman-cum-Managing Director, M/s. Odisha Power Transmission Corporation Ltd. & Anr. : Opposite Parties For Petitioner For Opposite Party No.1 : M/s. R. Acharya, B. Barik, P. Bhagat : M/s. S. Mishra, S.S. Sahoo, S.S. Tripathy For Opposite Party No.2 : None J U D G M E N T CORAM : JUSTICE BISWANATH RATH JUSTICE M.S. SAHOO Date of hearing & judgment : 13.04.2023 1. This Writ Petition involves a challenge to the award dated 25.06.2015 passed in I.D. Misc. Case No.39 of 2013. 2. The award involved herein arises out of a proceeding U/s.33-C(2) of the Industrial Disputes Act, 1947 hereinafter in short be reflected as <the Act, 1947=. Upon the parties being heard the Labour Court, Page 1 of 8 // 2 // Bhubaneswar finally by the order/award dated 25th June, 2015 came to hold that for there is already adjudication on the aspect of workmen being a Junior Engineer and not a Workmen, it has no jurisdiction to decide the contentions and the claim made by such persons involves an industrial adjudication.
Legal Reasoning
3. Mr. Acharya, learned counsel for Petitioner challenging the impugned award/order at Annexure-1 took this Court to the grounds of
Decision
challenge made out in the Writ Petition and submitted that the Presiding Officer, Labour Court, Bhubaneswar failed in appreciating the fact that the Junior Engineer involved herein clearly comes under the provision of Section 2(s) of the Act, 1947. To support his claim Mr. Acharya, learned counsel for Petitioner has raised the following grounds:- <GROUNDS A. For that the findings of the learned Labour Court, Bhubaneswar is erroneous, contrary to law and against the weight of evidence on record and as such the same is liable to be set aside. B. For that the learned Labour Court in order to arrive at certain material conclusion in respect of the definition of <workmen= on the part of the petitioner either distorted the evidence on record and settled principle of law and/or supplanted materials which are his own additions not borne out by the recorded materials. C. For that the learned Labour Court failed to appreciate the settled law as decided under the provisions of Section-33(c)(2) of the I.D. Act. Hence, the impugned order needs to be quashed. D. For that the learned Labour Court has categorically stated in its findings that the petitioner was holding the post of Junior Engineer who is not coming under the definition of <workmen= as defined under Section-2(s0 of the I.D. Act in view of the Award passed in I.D. Case No.32 of 1991 by the Industrial Tribunal, Bhubaneswar. The aforesaid finding of the learned Court below is not fare and proper as it is purely non-application of mind to examine the spirit of the said Award. In that respect it is categorically submitted that the status of workman under Section-2(s) of the I.D. Act relates to duties and performance assigned by the employer as a whole. The appropriate Government has referred the dispute under Section-10(1) of the I.D. Page 2 of 8 // 3 // Act before the Presiding Officer, Industrial Tribunal to adjudicate the sole question as Issue No.1 in I.D. Case No.32 of 1991. The issue No.1 is runs as follows:- <Issue No.1- Whether the Sub-Assistant Engineers (Now Junior Engineers) working under O.S.E.B. performs the duties of workman and come within the definition of the workman given in Section-2(s) of the Act? In the above context the learned Industrial Tribunal, Odisha, Bhubaneswar declined to exercise its jurisdiction over the issue No.1 relied upon Apex Court decision reported in 1994 (II) LLJ Page 1153 by name of S.K. Maini Vrs. Caroona Sahu as one9s name has nexus with status of workman. Finally the Industrial Tribunal referring Apex Court Judgment in a case of name of S.K. Maini, awarded simply formed opinion of law as reproduced as operating part in conclusive paragraph <17. Since in view of finding based on settled principle of law second party members cannot be declared as workman as defined under Section 2(s) of the Industrial Disputes Act, 1947, issues becomes infructuous and need not be gone into=. the other The learned Court below has not properly exercised its authority in respect of the facts involves in the proceeding under Section-33(c)(2) and overlooked, which is erred in law by not appreciating the aforesaid finding, as such the impugned order is liable to be quashed. E. For that the learned Labour Court failed to appreciate the observation of the Hon9ble Court in its judgment passed in O.J.C. No.344/73 in respect of principle of estoppels by res judicata wherein both the proceeding of conciliation and in writ proceeding, the question of status of 8workman9 which was at liberty of the then O.S.E.B. management in conciliation proceeding and Government in writ proceeding to raise, but so opted, failed to do so and the matter accordingly adjudicated in favour of petitioner9s Association. Having regards to those materials available in record, the Labour Court, Bhubaneswar very much influenced by the aid of result of I.D. Case No.32/91 by misinterpreting the concept and declined to maintain I.D. Misc. Case No.160/03 and accordingly dismissed. The aforesaid observation of the learned Court below is not only illegal but also improper and purely non-application of mind to examine the definition of workmen on the part of the petitioner. As such the impugned order is liable to be set aside. F. For that the opposite party no.1 at present the successor of defunct Odisha State Electricity Board by virtue of operation of law namely the Odisha Electricity Reform Act 1995 who accept all the rights and liabilities as an entity of public authority also did not take venture to extend this directive principle of State policy rather forced to allow lower pay for the reason that employee like the petitioner does not have the means to force of his own terms upon the employer and paying him less than admissible pay to others performing more than same kind of work would stand as an act of exploitation by the employer and may be Page 3 of 8 // 4 // treated as one of form of forced labour as envisaged under Article 23 of the Constitution of India ignoring the provisions of Article-14, 16(I) and 21 of the Constitution fighting for right of life as on today roaming from pillar to post at his age of 70 years since 1970 for availing all remedy available under statute of I.D. Act. The learned Court below has not considered the aforesaid aspects, as such the order of the learned Court below is erroneous in nature and liable to be set aside. G. For that it is categorically pointed out that the opposite party no.1 has filed his written statement in the proceeding before the learned Labour Court indicating therein only ground that the petitioner is not a workman and covered as per the decision of the Award passed in I.D. Case No.32 of 2001 passed by the Industrial Tribunal wherein it has only been decided that the post of <Junior Engineer= are not workmen as defined under Section-2(s) of the I.D. Act. The said principle is not applicable in the case of the petitioner. It is also further pointed out that the opposite party never disputed in their counter about the correctness of the amount. The learned Court below has erred in law by not examining the Counter of the opposite party property. The Xerox copy of the Counter filed by the opposite party no.1 before the learned Court below is annexed herewith as ANNEXURE-5. H. For that the learned Court below has erred in law by not properly appreciating the claim of the petitioner as the opposite party no.1 has technically dealt with the matter and contesting without merit of the case and also wilfully violating the direction of the Hon9ble High Court passed in O.J.C. No.344 of 1973 and principle decided in the writ petition vide O.J.C. No.4558 of 1995 which is very much affecting and harassing to the effect of basic rule of law <ignorantia legis neminem execusant= and violating Article 14, 16(i) of the Constitution which provided to every citizen equal opportunity in public employment which, very much un-sympathetic and unfortunate also that cause injury by loss of interest by continuous conductive defaults as i) Suppressing its own office order No.6283 dated 22.02.1985 prescribing more duty and responsibility what were in practice and un-expressed from some time past as on date 30.06.1971 prescribing job description as in Annexure-III of Order No.9442 which may evaluate more points of 648 in order to strengthen the support to claim of Supervisory-A and to help Court to determine the status of workman of technical category as non-supervisory which shall go against the arguments of managerial administrative capacity in order to bias the Court cunningly, not to touch the merit. The opposite party no.1 successfully avail to avoid the cross- examination unequally faced by the petitioner in the proceeding under Section 33-C(2) of the Act with a view to avail the chance of slip of the Labour Court which the opposite party no.1 availed such chance by confusing the language of Award of I.D. Case No.32/91. I. For that the learned Court below has not properly examined the office order dated the petitioner/workmen. In the said document the then Electricity Board has admitted that the petitioner is a workmen and coming under the definition of Section 2(s) of the I.D. Act. For better appreciation of this case Paragraph-6 (i) & (ii) of the said order reproduced herewith 30.6.1971 under Annexure-4 which was filed ii) by Page 4 of 8 // 5 // (i) (ii) the employees/workers are covered by the definition of <Workman= as given under Section 2(s) of the Industrial Dispute Act, 1947, and are drawing a salary upto Rs.750/- per month. It is pointed out that as per the aforesaid office order of Odisha State Electricity Board the salary in a pay scale of Supervisory-A category has been fixed to Rs.400-750. Here the claim of the petitioner to provide him Supervisory-B pay scale of Rs.300-655/-, which is within the salary of Rs.750/- per month. The aforesaid facts clearly indicate that the petitioner is coming under the purview of definition of Workmen under Section-2(s) of the I.D. Act which is an admitted fact by the opposite party. The learned Court below has not appreciated the aforesaid aspect as such it is liable to be set aside. J. For that the petitioner workman has already retired from his service w.e.f. 31.12.2002 from the establishment of the opposite party no.1, as such there is no relationship of master and servant is exist. But it is a fact that any admissible dues is pending before the opposite party no.1, so, the petitioner is competent to recover his legal dues by invoking the jurisdiction of the learned Labour Court by utilizing Section 33-C(2) of the I.D. Act. After retirement, the petitioner ceased the test of status of workman and fall under 2nd fold of definition of workman U/s.2(s) of the I.D. Act as a <discharge= employee categorized as 8such person9 as a consequence of Industrial Dispute. The learned Labour Court has not exercised his jurisdiction to compute the benefits of the petitioner which is highly illegal, improper and non-application of mind. K. For that the opposite party no.1 filed objection vide Annexure-A questioning the maintainability of the application U/s. 33-C(2) of the Act as the petitioner is not a workman under Section-2(s) of the I.D. Act supported by some executive order passed by Administrative Authority which should not be accepted by the learned Court below as it has not been passed by any judicial scrutiny. As such, the finding of the learned Labour Court is otherwise illegal, improper and liable to be set aside. L. For that the opposite party digested the language of opinion of law in its favour and committed as such that 8are not workman9 converting 8can not9 to 8are not9 is not applicable to the case as the decision of the I.D. Case No.32 of 1991 is completely separate entity. The learned Court below has not applied his judicial mind at the time of adjudication of the proceeding. M. For that accordingly to the provisions of Industrial Dispute Act, U/s2(i) of the said Act 8such person9 U/s. 2(s) be regarded as 8any person9 and connected with the dispute. The said aspect has not been examined by the learned Court below, as such the finding of the learned Labour Court is illegal and improper. N. For that it is categorically pointed out that there is no alternative remedy available before the petitioner to invoke any other forum other than the industrial forum to redressal his grievance which has been enforced U/s.7 of the I.D. Act in which the appropriate Government has categorically notified to constitute for adjudication of the industrial dispute. The O. For that the finding of the learned Labour Court is otherwise illegal, improper, perverse and against the settled principle of law as such it is required to be set aside.= Page 5 of 8 // 6 // It is, on the above grounds, Mr. Acharya, learned counsel sought for this Court9s intervention in the impugned order/award herein. 4. It is, at this stage of the matter and for there is no fair disclosure by Mr. Acharya, learned counsel for Petitioner on disposal of similar issue involving same establishment again and not only in the involvement Mr. Acharya, a counsel appearing therein for the Petitioner but also involving a case of a Sub-Assistant Engineer working at the relevant point of time as a Junior Engineer further also involving the same Petitioner Mr. Mishra, learned counsel for Opposite Party No.1-the Company involved herein brought to the notice of this Court a judgment involving similar issue rendered by a Co-ordinate Bench of this Court in the disposal of W.P.(C) No.3532 of 2012 and accordingly sought for coverage of this Writ Petition by the said judgment. 5. For the attempt of Mr. Acharya, learned counsel for Petitioner to make a distinction in the case at hand with the judgment sought to cover this case, we allowed Mr. Acharya, learned counsel for Petitioner to make his submission. 6. From the further submission of Mr. Acharya, learned counsel for Petitioner this Court finds, Mr. Acharya fairly admitted that the Petitioner herein was also a Petitioner in the case disposed of vide W.P.(C) No.3532 of 2012. Mr. Acharya, learned counsel for Petitioner further admitted the Page 6 of 8 // 7 // Petitioner to be in the post of Junior Engineer. It is, in this view of the matter and since the decision in W.P.(C) No.3532 of 2012 not only involved the same Petitioner but also involves the adjudication in the Industrial Misc. Case No.161 of 2003 under the provisions of Section 33- C(2) of the Act, 1947 again in the involvement of Mr. R. Acharya, learned counsel, this Court entering into the discussions in the judgment relied on by Mr. Mishra, learned counsel for Opposite Party No.1 and sought to be covering this case finds, the judgment in W.P.(C) No.3532 of 2012 sought to be covering this case not only involves the present Petitioner but also involved a serious question <as to whether the workman Sub-Assistant Engineers (Jr. Engineers) come within the definition of 8Workman9 given in Section 2(s) of the Act, 1947=. Reading through the judgment in W.P.(C) No.3532 of 2012 this Court finds, the adjudicatory authority involving the case therein of the very employee has come to hold that the Jr. Engineer the applicant in the establishment does not come within the definition of Section 2(s) of the Act, 1947, which view has been confirmed by a Co-ordinate Bench of this Court with the following order:- <15. In that view of the matter, the Court is unable to find any error having been committed by the Labour Court in rejecting the claim of the Petitioner. The writ petition is accordingly dismissed with no orders as to costs.= Page 7 of 8 // 8 // 7. Considering the rival contentions of the parties, this Court finds, the issue involved herein <as to whether the Jr. Engineer comes within the provision of Section 2(s) of the Act, 1947= has been set at rest by deciding that the Jr. Engineer does not come within the purview of the provision at Section 2(s) of the Act, 1947. The decision of the Division Bench in W.P.(C) No.3532 of 2012 is squarely applicable to the case at hand thereby giving no option to this Court to interfere in the impugned award/order at Annexure-1, which is hereby affirmed. 8. Writ Petition stands dismissed for having no merit. No cost. (M.S. Sahoo) Judge (Biswanath Rath) Judge Orissa High Court, Cuttack. The 13th day of April, 2023// Ayaskanta Jena, Senior Stenographer Page 8 of 8