The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 27938 of 2021 Prativa Rani Biswal …. Petitioner -versus- Director-cum-Vice President, Society for Prevention of Animal Diseases (SPAD), Cuttack and others Advocates appear in the case: …. Opposite Parties For Petitioner: Mr. B.S. Tripathy 1, Advocate For Opposite Parties: Mr. A.K. Nanda, AGA Mr. Sailaza Nandan Das, Advocate CORAM: THE HON’BLE MR. JUSTICE ARINDAM SINHA AND THE HON’BLE MR. JUSTICE M.S. SAHOO J U D G M E N T -------------------------------------------------------------------------------------------- Dates of Hearing: 29th January, 2024, 14th May, 2024 and 18th September, 2024 Date of Judgment: 18th September, 2024 -------------------------------------------------------------------------------------------- ARINDAM SINHA, J.
Legal Reasoning
1. Mr. Tripathy, learned advocate appears on behalf of petitioner, who has challenged award dated 16th April 2021. He submits, there ought to have been direction for reinstatement. Materials before the Industrial Tribunal included evidence of facts that his client had already rendered service for Page 1 of 9 more than 10 years. There was reliance by the Tribunal on rule 26 in Rules and Regulations of Society for Prevention of Animal Diseases (SPAD). The rule is reproduced below. “26. The staff and affairs of the Society shall be managed by the existing govt. employees and any employee other than Govt. employee required for the Society shall be engaged with the concurrence of the Govt./Finance Dept.” (emphasis supplied) Furthermore, his client had applied for enhancement and regularization. The Government/Finance Department issued communication dated 10th May, 2016. Text of it is reproduced below. “I am directed to intimate you that after careful consideration of the proposal received vide your letter No.35/SPAD, dt.27.04.2016, regarding enhancement of remuneration of contractual staff engaged in SPAD, Government have been pleased to order that SPAD being a society having its own fund and being governed by their By- law, can enhance the salary of their employees or regularize their services as per the By-law of the society and the guidelines stipulated in G.A. Department Resolution No.26108/Gen., dt.17.09.2013 keeping in view the objective of the society. This has also been concurred in by FA-cum-Addl. Secretary of the Department vide his endorsement, dt.28.04.2016. W.P.(C) no. 27938 of 2021 Page 2 of 9 You are therefore requested to take appropriate action on the matter at your end accordingly.” (emphasis supplied) 2. Mr. Tripathy then relies on letter dated 27th April, 2016, written on subject for enhancement of remuneration to contractual staff. He reiterates, response from the Government/Finance Department was that SPAD could enhance and regularize as empowered by its by-laws. He submits, also is a fact that after his client was terminated, others have been engaged, purportedly through contractor. 3. He next draws attention to paragraph-19 in impugned award to point out, the Tribunal purported to find candid admission made by his client. He submits, by additional affidavit dated 30th September, 2021 his client had disclosed certified copies of her examination in the Tribunal. There is no such admission as appears therefrom. He seeks interference and direction for re-instatement of his client with back wages. 4. Mr. Das, learned advocate, Additional Standing Counsel appears on behalf of opposite party no.1 and submits, at the time of appointment there was requirement but no sanctioned post. The requirement has since ceased. Persons who were regularized got their regularization in other
Decision
establishments. The writ petition be dismissed. W.P.(C) no. 27938 of 2021 Page 3 of 9 5. Mr. Nanda, learned advocate, Additional Government Advocate appears on behalf of opposite party nos.2 and 3 and submits, none of disengaged persons, including petitioner, were appointed or engaged by his clients. 6. We reproduce below paragraph-6 from our order dated 14th May, 2024. “6. Adjournment is granted for opposite parties to demonstrate the candid admission recorded in paragraph 19 of impugned award. It has been urged, the admission was relied upon by the tribunal for denying petitioner’s reinstatement. In event it turns out that the basis is or was non-existent, we will consider directing reinstatement or suitably enhance the compensation keeping in mind date of termination on 18th October, 2019 and last drawn salary.” 7. Mr. Das draws attention to paragraph-13 in evidence of affidavit filed by petitioner (workman) in the Tribunal. The paragraph is reproduced below. “13. That after receiving Grade Pay as per with Class-III employees with taking approval from the concerned authorities it reveled I am not a contractual employee, I am a regular Grade pay class-III employees. That disengagement order was issued only in respect of monthly remuneration contractual employees. That said disengagement order was communicated to me illegally. W.P.(C) no. 27938 of 2021 Page 4 of 9 That 1st party-management, establishment is functioning regularly with other officers and Govt. has been sanctioning budget provision in favour of the establishment and it runs heavy profit.” (emphasis supplied) He also relies on a passage in deposition dated 18th March, 2021 recording cross-examination of petitioner (workman) in the Tribunal. The passage is reproduced below. “xxx xxx Ext.13 is the true copy of order No.147/SPAD dtd.18.10.19 of the Director-cum-Vice President, SPAD regarding disengagement of contractual staff. xxx xxx” 8. On query from Court Mr. Das refers to section 17 in Indian Evidence Act, 1872, since repealed but applicable because the case was decided by the Tribunal, while it was in force. Sections 17 and 18 are reproduced below. “17. Admission defined.-An admission is a statement, [oral or documentary or contained in electronic form], which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned. 18. Admission by party to proceeding or his agent.-Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the W.P.(C) no. 27938 of 2021 Page 5 of 9 case, as expressly or impliedly authorised by him to make them, are admissions.” 9. On careful consideration of paragraph-13 in petitioner’s evidence on affidavit it is seen that by first sentence in it she says that after receiving grade pay it revealed she was not a contractual employee. However, she asserted she is a regular grade pay Class-III employee. She further asserted, the disengagement order was issued only in respect of monthly remuneration contractual employee but communicated to her illegally. Moving on to the cross-examination relied upon it appears therefrom she said, the document being exhibit-13 is what it is. We do not find, in her statement, admission of the content. 10. It is clear to us that the Tribunal committed illegality in construing candid admission. There was none. 11. Mr. Tripathy relies on judgments of the Supreme Court. (i) Judgment dated 11th December, 2013 in B.S.N.L. v. Bhurumal reported in AIR 2014 SC 1188, paragraphs 24 to 26 (Indian Kanoon Print). He submits, his client worked for more than 10 years continuously. Claim for regularization was sent for approval. The appropriate authority said that the authority was to proceed as it would, regarding the claim. In the facts, the authority illegally and wrongfully terminated his client’s service. As such, she is entitled to reinstatement. W.P.(C) no. 27938 of 2021 Page 6 of 9 (ii) Judgment dated 2nd September, 2021 in Civil Appeal no.4483 of 2010 (Ranbir Singh v. Executive Engineer, P.W.D.), paragraphs 7 and 8, reproduced below. “7. In such circumstance, noticing that, though the appellant was reinstated after the award of the Labour Court in 2006, the appellant has not been working since 2009 following the impugned order, and also taking note of the fact that the appellant was, in all likelihood, employed otherwise, also the interest of justice would be best subserved with modifying the impugned order and directing that in place of Rs.25000/- (Rupees Twenty Five Thousand), as lumpsum compensation, appellant be paid Rs.3.25 lakhs (Rupees Three Lakhs and Twenty Five Thousand), as compensation, taking into consideration also the fact that the appellant had already been paid Rs.25000/- (Rupees Twenty Five Thousand) as compensation. 8. Accordingly, the appeal is partly allowed. We modify the impugned judgment by directing that over and above, compensation directed of Rs.3.25 lakhs (Rupees Three Lakhs and Twenty Five Thousand), shall be paid to the appellant.” (emphasis supplied) Mr. Das and Mr. Nanda reiterate their opposition to interference. 12. In Bhurumal (supra) the Supreme Court considered position of respondent (workman) before it. Clear finding was, the workman was a W.P.(C) no. 27938 of 2021 Page 7 of 9 contractual employee and on direction for reinstatement he would again be exposed to termination. However, a caveat was added. Where termination of daily wage worker is found to be illegal on the ground, inter alia, of unfair labour practice, in such circumstances, the terminated worker could not be denied unless there are some other reasons. In this case the Tribunal attributed to petitioner a candid admission, she had never made. According to her she was a regular employee. The Tribunal granted her compensation based on its illegal finding on admission, at ₹3,00,000/-. In the circumstances, her claim for reinstatement and back wages. 13. In Ranbir Singh (supra) on behalf of petitioner reliance was placed because compensation directed at ₹25,000/- was enhanced to ₹3.25 lakhs. Contention is, in event of reinstatement not directed, there should be appropriate enhancement at a minimum of ₹30,00,000/-. 14. Facts are that petitioner served for more than 9 years and was terminated in year 2019. She prosecuted her claim under section 2-A(2) in Industrial Disputes Act, 1947 before the Tribunal and thereafter sought reinstatement by challenge to impugned award. The writ petition was presented on 8th September, 2021. In view of our finding of illegality in impugned award, considering other relevant facts and circumstances, we enhance the compensation to ₹6,00,000/-. The compensation is to be paid within four weeks from date, failing which it will carry interest at 6% per W.P.(C) no. 27938 of 2021 Page 8 of 9 annum simple calculated on and from date of presentation of the writ petition i.e., 8th September, 2021, till date. 15. The writ petition is disposed of. (Arindam Sinha) Judge (M.S. Sahoo) Judge Sks Signature Not Verified Digitally Signed Signed by: SISIR KUMAR SETHI Designation: Personal Assistant Reason: Authentication Location: ORISSA HIGH COURT Date: 18-Sep-2024 19:11:25 W.P.(C) no. 27938 of 2021 Page 9 of 9