The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAC) No.1763 of 2018 Sunakar Swain …. Petitioner Mr. S. Behera, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. S.K. Samal, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 13.12.2023 Order No 12. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. S. Behera, learned counsel for the Petitioner and Mr. S.K. Samal, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. The Petitioner has filed the present writ petition inter alia with the following prayer:- “(i) Admit the application. (ii) Call for relevant records. (iii) The Hon’ble Tribunal may kindly quash the order no.1350/W.E dtd.24.04.2018 and order no. 2510 dtd.25.04.2018 under Annexure-1 & 2 and order of termination dtd.31.03.2003 under Annexure-15 respectively to this application and reinstate the applicant in his previous post with all his financial and service benefits. (iv) And issue such other order/orders as will do complete justice to the applicant. And for this act of kindness, the applicant shall remain ever grateful.” // 2 // 4. It is contended that the Petitioner while continuing as NMR in Upper Indravati Canal Division, he was brought over to the Work Charged Establishment vide office order dtd.22.07.1981 under Annexure-3. It is further contended that on being appointed in the Work Charged Establishment in terms of office order dtd.22.07.1981, Petitioner was allowed to continue as such. It is also contended that in the gradation list published under Annexure-5 Petitioner was placed at Sl. No. 45 and one Mahendra Prasad Pandey was at Sl. No. 49 with Mr. Rabindra Chndra Rath at Sl. No. 50. It is contended that even though the aforesaid Mahendra Prasad Pandey and Rabindra Chandra Rath were junior to the Petitioner in the gradation list published under Annexure-5, but the Petitioner while was terminated on being found surplus vide notice dtd.31.03.2003 under Annexure-15, those two other persons were not only allowed to continue but also they were brought over to the wage establishment vide order dtd.26.06.2014 under Annexure-17. 4.1. In order dtd.26.06.2014, the names of Mahendra Prasad Pandey and Rabindra Chandra Rath appears at Sl. No. 185 & 186. It is also contended that since persons junior to the Petitioner as named above were not only allowed to continue beyond 31.03.2003, but also brought over to the wages establishment vide order dtd.26.06.2014, and sanctioned with pension after their retirement from service, Petitioner though was senior to the above two persons, was terminated from his service w.e.f.31.03.2003 vide notice issued under Annexure-15. 4.2. Mr. Behera further contended that since the Petitioner was allowed to continue in the Work Charged Establishment w.e.f.22.07.1981, by the time he was issued with the notice of Page 2 of 6 // 3 // termination on 31.03.2003, he had completed the required period of service in Work Charged Establishment to get the benefit of pension in terms of the decision of the Tribunal passed in O.A. No. 1189(C) of 2006 (Narusu Pradhan Vs. State of Odisha & Ors.). It is also contended that the order passed by the Tribunal in the case of Narusu Pradhan has been affirmed by this Court as well as by the Hon’ble Apex Court and benefit of pension has been extended in favour of Narusu Pradhan in the meantime vide order dtd.09.05.2013 annexed vide Annexure-20 series. 4.3. It is also contended that prayer of the Petitioner for his re- engagement and/or extend the benefit as is being given to Job Contract employees in terms of Finance Dept. Resolution dtd.15.05.1997 was also negatived on the face of the order passed by the Tribunal on 30.08.2007 in O.A. No. 1590(C)/2003 vide order dtd.24.04.2018 and 25.04.2018 under Annexure-1 & 2. 4.4. It is accordingly contended that since persons junior to the Petitioner were allowed to continue and are getting pension after being brought over to the wages establishment vide order under Annexure-17 series, Petitioner since was illegally terminated in terms of the notice issued under Annexure-15, termination of the Petitioner as per notice issued under Annexure-15 and rejection of the claim of the Petitioner to get the benefit of reinstatement and benefit extended in favour of Job-Contract employees vide order under Annexure-1 and 2 are illegal and not sustainable in the eye of law. It is further contended that Petitioner is also eligible and entitled to get the benefit of pension and other pensionary benefits as has been extended in favour of the two (2) juniors as named above. Page 3 of 6 // 4 // 5. Mr. Samal, learned Addl. Govt. Advocate initially when made his submission basing on the stand taken in the counter affidavit, this Court taking into account the contention raised by the learned counsel for the Petitioner that persons junior to him were allowed to continue and are getting pension and other pensionary benefits, passed an order on 13.11.2023 to the following effect:- “3. Considering the stand taken in the matter that persons placed at Sl. No. 14 & 15 of the Common Gradation list of Fitter, Grade-III were not only allowed to continue but also they are getting the benefit of pension and other pensionary benefits, learned Addl. Govt. Advocate is directed to obtain instruction on the said point.” 5.1. Pursuant to the said order, learned AGA produced the instruction so provided by the Superintending Engineer, Upper Indravati, Right Canal Division No. 1, Mukhiguda. Copy of the said instruction be kept in record. Basing on the instruction Mr. Samal contended that Petitioner along with the above noted two persons were found surplus in the year 2002. Since the other two persons were continuing at the relevant point of time in the establishment of Project Administrator, Upper Indravati Hydroelectric Project, Mukhiguda, the said authority was directed by the EIC, Water Resources to retrench those two persons vide letter dtd.30.01.2002. But on the face of such direction, other two persons were allowed to continue and subsequently they were brought over to the wages establishment vide order under Annexure-17. It is also contended that since the said two persons were brought over to the wages establishment and retired accordingly, they were extended with pension and pensionary benefits. However, it is contended that since the Petitioner has been retrenched w.e.f.31.03.2003, Petitioner is not Page 4 of 6 // 5 // eligible to get the benefit of pension and other pensionary benefits as prayed for in the present writ petition. 6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that the Petitioner while continuing as NMR, he was brought over to the Work Charged Establishment vide order dtd.22.07.1981 under Annexure-3. It is also found that in the gradation list published under Annexure-5, Petitioner while was placed at Sl. No. 45, other two persons were at Sl. No. 49 & 50. It is also found from the record that other two persons were not only allowed to continue but also they were brought over to the wages establishment vide order dtd.26.06.2014 under Annexure-17. After such retirement from service, both the employees are getting their pension also 6.1. In view of such position and taking into fact that persons junior to Petitioner were allowed to continue and are now getting pension and other pensionary benefits, this Court held the termination of the Petitioner so issued on 31.03.2003 under Annexure-15 as illegal and so also the order dtd.24.04.2018 and 25.04.2018 under Annexure-1 & 2. While holding so, this Court is inclined to quash the notice dt.31.03.2003 under Annexure-15, order dt.24.04.2018 and 25.04.2018 under Annexure-1 & 2 and quash the same accordingly. However, taking into account the continuance of the Petitioner in the work charged establishment from 22.07.1981 to 31.03.2003, and benefit extended in favour of his juniors, which is not disputed and placing reliance on the decision in the case of Narusu Pradhan, this
Decision
Court while disposing the writ petition, directs Opp. Party Nos. 2 & 5 to take effective step to bring over the Petitioner to the wages establishment for a day prior to his termination i.e.31.03.2003. By Page 5 of 6 // 6 // bringing over the Petitioner to the wages establishment for one day, pension and pensionary benefits as due and admissible be extended in favour of the Petitioner. Such an exercise shall be undertaken and completed by the Opp. Party Nos. 2 & 5 within a period of three (3) months from the date of receipt of this order. 7. The writ petition is disposed of accordingly. (Biraja Prasanna Satapathy) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Dec-2023 19:39:40 Page 6 of 6