M/s. M. Pati & S. Kar, Advocate v. For Opp. Parties
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C.(O.A.) No. 2749 of 2018 Application under Articles 226 and 227 of Constitution of India. --------------- Susil Kumar Behera …. Petitioner -versus- State of Odisha and Others …. Opp. Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : M/s. M. Pati & S. Kar, Advocate Vs. For Opp. Parties : Mr. S.N. Patnaik, [Addl. Government Advocate] __________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 04.09.2025 SASHIKANTA MISHRA, J. The petitioner is aggrieved by the rejection of his representation for regularization of his service by the Dean Page 1 of 17 & Principal, VIMSAR, Burla (Opposite Party No.3) and in the present writ petition, he seeks quashment of said order of rejection and for a direction to the opposite parties to regularize his services in any class-IV post. CASE OF THE PETITIONER:- 2. The petitioner claims to have been appointed as Sweeper on 07.02.2000 by the Principal of VIMSAR, Burla on daily wage/ad-hoc basis. 2.1. By letter dated 19.09.2006, the Principal moved the Director of Medical Education and Training, Odisha to fix daily wages @ Rs.55/- per day and recommended for contractual appointment. Despite such letter of recommendation, no action was taken by the authorities for which the petitioner and others approached the erstwhile Odisha Administrative Tribunal in O.A. No. 1089(C) of 2000 with prayer for regularization of their services. 2.2. The Tribunal, by order dated 24.04.2007 directed the authorities to consider the representation of Page 2 of 17 the petitioner within six weeks with further direction that if the petitioner has not been disengaged, he shall not be disengaged. The petitioner accordingly continued in such engagement. 2.3. The authorities regularized the services of his juniors vide order dated 09.10.2013 ignoring him. The petitioner again approached the Tribunal in O.A. No.2973 of 2016. The Tribunal, by order dated 02.01.2017 directed the Opposite Party No.3 to dispose of the representation of the petitioner submitted on 03.06.2015 within three weeks. 2.4. Pursuant to such order, Opposite Party No.3 by his order dated 04.07.2018, rejected the representation on the ground that the petitioner had never been appointed as full time contractual employee and that he was working as outsourced Sweeper through outsourcing agency since three years. It was further stated that his case is not similar to employees who were selected on full time contractual basis following ORV Act by 02.01.2006 and their services were regularized as per G.A. Deptt. resolution Page 3 of 17 dated 17.09.2013 upon completion of six years of continuous service. 2.5. It is the further case of the petitioner that he was initially engaged in the department of Forensic Medicine and Toxicology in VIMSAR to assist in postmortem examination and other works of mortuary. Looking at his experience, the HOD of the department by letter dated 07.02.2000 recommended his name for engagement as casual Labourer-cum-Sweeper against the vacancy arising due to expiry of one of the Sweepers, namely, Bideshi Tandia on 01.02.2000. 2.6. The authorities have extracted postmortem work from the petitioner since 07.02.2000, which most of the employees are not interested to do. As per information obtained by the petitioner under the RTI Act, it can be ascertained that he has worked continuously since 2007. CASE OF THE OPPOSITE PARTIES:- 3. The case of the opposite parties is that the petitioner despite claiming to have been appointed as Page 4 of 17 Sweeper on 07.02.2000 has failed to submit a copy of the appointment order. 3.1. The petitioner’s appointment, if at all, being in the nature of back-door entry, his case for regularization cannot be considered. He had approached the Labour Court, Sambalpur claiming compensation and arrear wages under Section 33-C(2) of the Industrial Disputes Act but the same was rejected as not maintainable. 3.2. It is the further case of the opposite parties that the petitioner was working from March, 2000 to October, 2002 for 15 days in a month and from November, 2002 to May, 2007 for 8 days in a month and was paid wages accordingly which was acknowledged by him by signing on the voucher of daily wages. 3.3. He did not work under opposite party No.3 from 01.06.2007 to 31.01.2016. The documents enclosed to his pleadings might have been obtained by him by unfair means. Page 5 of 17 3.4. The petitioner is in fact an outsourced employee engaged by L & K services in the department of FMT under opposite party No.3 from 01.02.2016. There is no proof of service rendered by the petitioner after 31.05.2007 in VIMSAR. 3.5. Thus, there is no existence of employer and employee relationship between VIMSAR and the petitioner. SUBMISSIONS:- 4.
Legal Reasoning
Heard Mr. Manas Pati, learned counsel for the petitioner and Mr. S.N. Patnaik, learned Addl. Government Advocate for the State. 5. Mr. Pati would argue that the opposite parties have admitted in their counter that the petitioner was working on daily wage basis from 2000 to 2007. The petitioner has also produced materials to show that he was engaged till 2016. The authorities, however, have tried to disown liability by showing his engagement as that of an outsourced employee thereafter. The petitioner was engaged in postmortem work and also engaged as Sweeper at other times. This is a perennial work of the institution Page 6 of 17 but only to nullify his claim for regularization, he has been shown to be an outsourced employee. In support of his contentions, Mr. Pati has relied upon the judgments of the Supreme Court in the case of Jaggo v. Union of India and others, reported in 2024 INSC 1034 and Dharam Singh and Others v. State of U.P. and another, reported in 2025 INSC 998. 6. Mr. Patnaik, on the other hand, would argue that from the records available in the institution, it is ascertained that the petitioner was working for 15 days in a month from March, 2000 to October, 2002 and for 8 days in a month from November, 2002 to May, 2007. Accordingly, he was paid wages. There is no record of the petitioner working in the establishment from 01.06.2007 to 31.01.2016 in VIMSAR. The petitioner was thereafter gainfully engaged as an outsourced employee since 01.02.2016 in the Department of FMT. Thus, there is no employer and employee relationship between VIMSAR and the petitioner since 31.01.2016 for which his claim for regularization bears no merit. Page 7 of 17 ANALYSIS AND FINDINGS:- 7. From the facts pleaded and the materials placed on record, it can be clearly discerned that the petitioner was engaged from March, 2000 to October, 2002 on daily wage basis. Said engagement was for 15 days in a month. He was also engaged from November, 2002 to May, 2007 for 8 days in a month. From the letter dated 25.07.2024 of the Dean and Principal, VIMSAR addressed to the learned Advocate General, Odisha and placed before this Court by the learned State Counsel, some vouchers have been enclosed containing the following certificate. “Certified that Sri Sushil Kumar Behera, daily labourer was engaged for the above period for clearing of bushes etc. surrounding of FMT department, Mortuary area and in P.M. works as per order of Principal. The work is found satisfactory and the rate is genuine. The amount is paid by me”. The above certificate has been given by the Professor and HOD of FMT, VIMSAR. Similar certificates are endorsed in each of the vouchers so appended. This proves two things- first, the petitioner was indeed engaged as a daily labourer and second, his claim of being engaged in postmortem work is correct. It is stated at the bar that the postmortem Page 8 of 17 examination does not happen everyday. While the State Counsel submits that this suggests intermittent engagement of the petitioner, learned counsel for the petitioner submits that the petitioner was engaged on other works on other days. It is further submitted that the petitioner being a poor labourer was engaged throughout the month but was made to sign on vouchers showing to have worked for 15 days or 8 days in a month, which is not believable. It cannot be denied that postmortem examination is a regular work of the medical college and hospital. The petitioner’s assertion that he was always engaged in such works finds support from the documents obtained under the RTI act, enclosed as Annexure-10. In fact, one Narayan Bag obtained certified copy of duty register of postmortem duties for the month September, 2002, December, 2007, July, 2008, September, 2008, June, 2010, October, 2011, November, 2011, April, 2012 and October, 2015 of FMT Department of VIMSAR. In each of these documents, which contain the names of Doctors assigned to postmortem duties, the signature of the petitioner finds place at the bottom which fortifies his claim Page 9 of 17 of assisting in postmortem duties. These materials have been attempted to be brushed aside by the authorities on the ground that they were obtained by one Narayan Bag and not the petitioner. This Court fails to understand as to how this helps the case of the opposite parties. It is immaterial who obtained the information. What is material is the information obtained. In the instant case, the information so obtained goes to show that the petitioner was in fact engaged in postmortem duties. It cannot therefore be simply said that there is no record of the petitioner working under the administration of opposite party No. 3 from 01.06.2007 to 31.01.2016. 8. The opposite parties have produced a document showing engagement of the petitioner on outsourcing basis from 01.02.2016. Since this Court finds force in the petitioner’s assertion that he was engaged right from the year 2000 till 2016 on daily wage basis, the subsequent attempt to portray him as an outsourced employee cannot wipe away the effect of his past engagement completely. It must be kept in mind that the petitioner is an employee at Page 10 of 17 the lowest rung of the ladder. It would be too much to expect him to come forward with clinching evidence supporting his claim of being continuously engaged for more than sixteen years. Having extracted work from the petitioner for such a long period it would be unjust and iniquitous for the authorities to describe him as a backdoor entrant. This is a self contradictory argument for the reason that if at all the petitioner was found to be a backdoor entrant, why was he allowed to continue for so long, though in an adhoc capacity. This is nothing but sheer exploitation of labour by the authorities concerned, which cannot be countenanced in law, more so as VIMSAR is an institution under the administrative control of the State. At this stage, it would be profitable to refer to the following observations of the Supreme Court In the case of Dharam Singh (supra):- “17. Before concluding, we think it necessary to recall that the State (here referring to both the Union and the State governments) is not a mere market participant but a constitutional employer. It cannot balance budgets on the backs of those Page 11 of 17 in who perform the most basic and recurring public functions. Where work recurs day after day and year after year, the establishment must reflect that reality its sanctioned strength and engagement practices. The long-term extraction of regular labour under temporary labels corrodes confidence in public administration and offends the promise of equal protection. Financial stringency certainly has a place in public policy, but it is not a talisman that overrides fairness, reason and the duty to organise work on lawful lines thrives where administration 18. Moreover, it must necessarily be noted that “ad-hocism” is opaque. The State Departments must keep and produce accurate establishment registers, muster rolls and outsourcing arrangements, and they must explain, with evidence, why they prefer precarious engagement over sanctioned posts where the work is perennial. If “constraint” is invoked, show what alternatives were considered, why similarly placed workers were treated differently, and how the chosen course aligns with Articles 14, 16 and 21 of the Constitution of India. Sensitivity the human consequences of prolonged to insecurity is a is not sentimentality. constitutional discipline that should inform every decision affecting those who keep public offices running. should record the It 19. Having regard to the long, undisputed service of the appellants, the admitted perennial nature of their duties, and the material indicating vacancies and comparator regularisations, we issue the following directions: Regularization of and Supernumerary posts:- All appellants shall stand regularized with effect from 24.04.2002, the date on which the High Court directed a fresh creation Page 12 of 17 shall Commission) in recommendation by the Commission and a fresh decision by the State on sanctioning posts for the appellants. For this purpose, the State and the successor establishment (U.P. Education Services create Selection supernumerary posts the corresponding cadres, Class-III (Driver or equivalent) and Class- IV (Peon/Attendant/Guard or equivalent) without any caveats or preconditions. On regularization, each appellant shall be placed at not less than the minimum of the regular pay-scale for the post, with protection of last-drawn wages if higher and the appellants shall be entitled to the subsequent increments in the pay scale as per the pay grade. For seniority and promotion, service shall count from the date of regularization as given above. ii. Financial consequences and arrears: Each appellant shall be paid as arrears the full difference between (a) the pay and admissible allowances at the minimum of the regular pay- level for the post from time to time, and (b) the amounts actually paid, for the period from 24.04.2002 until the date of regularization /retirement/death, as the case may be amounts already paid under previous interim directions shall be so adjusted. The net arrears shall be released within three months and if in default, the unpaid amount shall carry compound interest at 6% per annum from the date of default until payment. iii. Retired appellants: Any appellant who has already retired shall be granted regularization with effect from 24.04.2002 until the date of superannuation for pay fixation, arrears under clause (ii), and recalculation of pension, gratuity and other terminal dues. The revised pension and terminal dues shall be paid within three months of this Judgement. Page 13 of 17 In during iv. Deceased appellants: the case of Appellant No. 5 and any other appellant who has died legal pendency, representatives on record shall be paid the arrears under clause (ii) up to the date of death, together with dues recalculated consistently with clause (i), within three months of this Judgement. terminal/retiral his/her all v. Compliance affidavit: The Principal Secretary, Higher Education Department, Government of Uttar Pradesh, or the Secretary of the U.P. Education Services Selection Commission or the prevalent competent authority, shall file an affidavit of compliance before this Court within four months of this Judgement.” 9. In view of the authoritative pronouncement of the Supreme Court nothing further remains for this Court to add in the context of the present case except for reiterating that this is a classic case of exploitation of labour by an instrumentality of the State. CONCLUSION 10. From the forgoing narration, this Court is of the considered view that the case of the petitioner cannot be viewed from the narrow prism of technicalities, rather the constitutional mandate of Article 21 guaranteeing right of livelihood would come to the fore. The petitioner’s assertion that he has been engaged in postmortem work and most of Page 14 of 17 the other employees are not interested in such work comes out as a plausible assertion. Significantly, such assertion has not been specifically denied by the opposite parties. This Court is therefore, convinced that the petitioner has made out a good case for interference. The opposite party No.3 has not considered these vital aspects while rejecting the representation of the petitioner for which the impugned order cannot be sustained in the eye of law. 11. Having held as above, this Court would now consider what relief is to be granted to the petitioner in the present writ petition. As has already been held, there are materials to show that the petitioner has been working since the year, 2000 on daily wage/adhoc basis. It has also been found that he was engaged from 01.06.2007 to 31.01.2016. The opposite parties-authorities have attempted to portray his subsequent engagement as outsourced. This Court fails to understand the logic behind this move by the authorities. It is understandable if such engagement is being made for the first time in the establishment. But to bring existing employees, regardless Page 15 of 17 of their status, within the ambit of outsourcing is another example of exploitation of labour, which cannot be countenanced in law. To amplify, a person already in engagement and that too in an important and regular work of the establishment is suddenly relegated to the status of an outsourced employee. The reason for such decision by the authorities is only obvious, i.e. to disown any liability in respect of the petitioner. This Court is therefore, not inclined to accept that the petitioner can be treated as an outsourced employee. Notwithstanding the arrangement made and the records generated by the authorities, the petitioner shall be deemed to be engaged under the direct administrative control of the opposite party No.3. 12. In the result, the writ petition is allowed. The impugned order dated 04.07.2018 is hereby quashed. The opposite parties-authorities are directed to regularize the services of the petitioner in any available Class-IV post. It is made clear that such regularization of services shall be w.e.f. 01.02.2016 but the petitioner shall not be entitled to any financial benefits for his past period of engagement, Page 16 of 17 though such period shall count notionally for other service benefits, if any. It is further made clear that if no post is available to accommodate the petitioner, a supernumerary post shall be created for him to be abolished on his demitting the same for whatever reason. These directions shall be carried out within three months from today. ..……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 4th September, 2025/ B.C. Tudu, Sr.Steno Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Reason: Authentication Location: Orissa High Court, Cuttack Date: 05-Sep-2025 13:29:18 Page 17 of 17