The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.18834 of 2016 Parsuram Panda @ Parshuram Panda …. Petitioner -versus- State of Odisha and others …. Opposite Parties Learned advocates appeared in the case: For petitioner : Mr. Arjuna Ch. Behera, Advocate For opposite parties : Mr. A. K. Sharma, Advocate (Addl. Govt. Advocate) CORAM: JUSTICE ARINDAM SINHA JUSTICE SIBO SANKAR MISHRA ----------------------------------------------------------------------------------- Date of hearing and judgment : 20.11.2023 ----------------------------------------------------------------------------------- ARINDAM SINHA, J. 1.
Legal Reasoning
Mr. Behera, learned advocate appears on behalf of petitioner (workman) and presses for hearing and order. Mr. Sharma, learned Page 1 of 8 // 2 // advocate, Additional Government Advocate appears on behalf of opposite party nos.1 to 4. None appears on behalf of opposite party no.5 series (management). 2. We earlier obtained satisfaction of service on the management. Paragraph 2 from our order dated 2nd November, 2023 is reproduced below.
Decision
“The writ petition was moved before co-ordinate Bench on 18th April, 2017. There was direction for issuance of notice on opposite party nos.5(a) to 5(d). Mr. Sharma, learned advocate, Additional Government Advocate appears on behalf of State and points out from order dated 19th May, 2015 of reference that address of the management given in the schedule is plot no.191 Maa Gouri Complex Lewis Road, Bhubaneswar. We find said address to be the address of opposite party no.5(c). Noting on service is that the postal article was returned with postal endorsement left. Per judgment of the Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed reported in (2007) 6SCC 555, paragraph 14 that is good service. We, for abundant caution had by our order dated 10th October, 2023 directed issuance of notice also on opposite party no.5 having address in Mumbai. Said opposite party is the company WP(C) no. 18834 of 2016 Page 2 of 8 // 3 // headquarters according to Mr. Panda. Postal article addressed to opposite party no.5 has also been returned un-served with endorsement ‘no such person’.” 3. Mr. Behera submits, impugned is award dated 30th April, 2016. The Labour Court disposed of the reference on saying that his client had failed to prove he had been illegally terminated from his service and, therefore, not entitled to any relief. The award is illegal and made with material irregularities. We have heard him. 4. The schedule of reference order dated 19th May, 2015 stands extracted in the award and we reproduce it below. “Whether the action of the Management of M/s.-Mission Bio-Fuels India, Pvt. Ltd., Plot No.191, Maa Gouri Complex, Lewis Road, Bhubaneswar in terminating the services of Sri Parsuram Panda, Field Assistant with effect from 03.04.2011 vide letter dtd. 03.04.2011 is legal and/or justified? If not, what relief Sri Panda is entitled to?” (emphasis supplied) Text of letter dated 3rd April, 2011 addressed by the management to petitioner is reproduced below. WP(C) no. 18834 of 2016 Page 3 of 8 // 4 // “This has a reference to your employment with Mission Biofuels India Pvt. Ltd., as Field Assistant. We observed that you have been irregular in attending duties, absenting without information and thus failing in desired discharge of duties. Therefore, as per the appointment letter and the terms and conditions mentioned therein under Schedule II, Clause 17(b) we discontinue your service with immediate effect on grounds of disciplinary action.” (emphasis supplied) In context of the termination letter we reproduce below clause 17 along with sub paragraph 1 thereunder. “17. The Company may terminate your employment without any notice, if you are:- a) Incapacitated or prevented by illness, injury, accident or any other circumstances control from discharging in full your duties a period exceeding three (3) months. b) Found guilty of grave misconduct or willful neglect in the discharge of duties or having breached any term in this contract. c) Found to be a bankrupt. d) Found to be of unsound mind. WP(C) no. 18834 of 2016 Page 4 of 8 // 5 // e) Convicted of any serious criminal offence. f) Found to have a past criminal record. g) Found to have given incorrect or untrue information to the Company. h) Found to be a drug addict. The above listing is not exhaustive but it is meant to serve as an indication only. 1. The Company shall also have the right to take suitable disciplinary action, in terms of suspension/dismissal without notice or withhold increment or payment in lieu of notice or any other compensation and without prejudice to any claim that the Company may establish against you for debt or damage, for misappropriating assets and / or property of the Company of breach of conditions of service or discipline or regulation or violation of the Confidentiality Agreement or habitual absence without leave for more than 10 consecutive days/overstaying the sanctioned leave without satisfactory explanation or committing any other act whatsoever, prejudicial to the Company’s interest.” (emphasis supplied) 5. It appears from paragraph 6 of impugned award that the labour Court was engaged in finding petitioner had nowhere alleged WP(C) no. 18834 of 2016 Page 5 of 8 // 6 // illegal termination. Consequently, we looked at the claim petition filed by petitioner before said Court. Prayer made therein is reproduced below. “Hence prayed your honour may be pleased to direct the Opposite parties to pay the arrear dues as detailed mentioned in the schedule below with admissible interest and subsequent wages to the petitioner and for which act the above named petitioner as in duty bound shall ever pray.” We also reproduce below enclosures mentioned in the petition. “i) Xerox copy of Employment paper vide Ref. No.MBIPL/HRD/217/2007 of MISSION BIO-FUELS INDIA PVT. LTD. – 8 Sheets. ii) Xerox copy of Advocate’s Notice of Dt.6.6.2011 consisting of – 3 sheets.” 6. The labour Court gave importance to pleading of petitioner filed before it. Omission therein to alleged illegal termination obscured from view of the labour Court that schedule in the reference was specifically on illegal termination by letter dated 3rd April, 2011. It appears, the labour Court in attaching importance to pleadings in WP(C) no. 18834 of 2016 Page 6 of 8 // 7 // the claim petition and omission therein, lost sight of the order of reference. By impugned award it cannot be said that the reference was answered. We express our anguish on petitioner’s suffering. 7. We note in passing the failure report. It clearly mentions termination letter dated 3rd April, 2011, enclosed therewith as annexure ‘G’ and the acknowledgement as annexure ‘G-1’. We are clear in our mind that there was no error on part of the appropriate Government to have made the reference. Mr. Behera submits, his client did not have assistance of learned advocate and thereby the workman may have poorly drafted the claim petition. 8. Impugned award is set aside and quashed. The order of reference is restored to the labour Court. Said Court will take note of our this order for purpose of issuance of notice to the management and thereafter to proceed on presumption of good service as permissible in law. There must not be any unnecessary delay and award is to be made on the restoration within four weeks of communication by official website copy of this order by learned WP(C) no. 18834 of 2016 Page 7 of 8 // 8 // advocate for petitioner. Said Court will ensure petitioner thereafter files certified copy of the order. 9. The writ petition is allowed and disposed of. ( Arindam Sinha ) Judge ( S. S. Mishra ) Judge 10. Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR SAHOO Reason: Authentication Location: Orissa High Court Date: 20-Nov-2023 17:46:05 WP(C) no. 18834 of 2016 Page 8 of 8