The High Court
Case Details
Order No. 02. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.29175 of 2023 Kamal Kumar Dey State of Odisha & others -versus- …. …. Petitioner Mr. M.Pati,Advocate Opposite Parties Mr.A.P.Das, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 09.01.2024 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. 3. Rejoinder affidavit filed in Court be kept in record. Heard Mr. M. Pati, learned counsel for the Petitioner and Mr. A.P.Das, learned Addl. Standing counsel appearing for the Opp. Parties. 4. The Petitioner has filed the present writ petition inter alia challenging the communication issued by the Govt. in the Department of Water Resources on 31.08.2015 under Annexure-3 and consequential action taken vide communication dtd.20.11.2015 & 29.08.2023 under Annexure-5 & 9. 5. Learned counsel for the Petitioner contended that the Petitioner was engaged as NMR w.e.f. 01.08.1991. It is contended that while continuing as such, basing on the notification issued by the Department of Water Resources on 28.02.2009, Petitioner was brought over to the Work Charged Establishment vide order dtd.04.11.2009 under Annexure-2. It is contended that in the notification dtd.28.02.2009 it was clearly indicated that all the NMRs engaged prior to 12.04.1993 are to be brought over to the Work // 2 // Charged Establishment. 5.1. It is contended that while continuing in the Work Charged Establishment in terms of the office order under Annexure-2 Petitioner when came across the impugned communication under Annexure-3 and consequential communication issued under Annexure-5, apprehending disengagement from his service, Petitioner filed the present writ petition. 5.2. It is contended that the Tribunal while issuing notice of the matter on 07.12.2015, passed an interim order of status quo and in terms of the said interim order, Petitioner is continuing as on date in the Work Charged Establishment. 5.3. Learned counsel for the Petitioner contended that since admittedly Petitioner was engaged prior to 12.04.1993 and in terms of the decision taken by the Govt. in the Department of Water Resources on 28.02.2009, all such NMRs engaged prior to 12.04.1993 are to be brought over to the Work Charged Establishment, the ground on which the impugned communication under Annexure-5 has been issued while implementing the award so passed in I.D. Case Nos. 7/2011, 8/2011 and 6/2012 is not sustainable in the eye of law. 5.4. Learned counsel for the Petitioner also contended that Petitioner was neither a Party to the I.D. case nor prior to issuing Annexure-3 & 5, Petitioner was given any opportunity of hearing. The Department while implementing the award so passed in the aforesaid three (3) I.D. cases, suo moto took the decision to retrench the Petitioner by holding the Petitioner to be the junior most NMR and issued the impugned communication under Annexure-5 for his disengagement. It is also contended that by the time the impugned communication under Annexure-5 was issued, Petitioner since had already been brought over to the Work Charged Establishment, no such order of disengagement can be passed by treating the Petitioner to be an // 3 // NMR. 5.5. Making all such submissions, learned counsel for the Petitioner contended that the impugned communication issued under Annexure-3 & 5 are not sustainable in the eye of law and requires interference of this Court. 6. Mr. S.K. Samal, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that while implementing the award passed in I.D. case Nos. 7/2011, 8/2011 and 6/2012, since it was found that the Petitioner was the junior most NMR and the applicants in all the three I.D. cases are senior to him, while implementing the award so passed by the Tribunal, Govt. took the decision under Annexure-3 to retrench three junior most persons who are continuing including the present Petitioner. 6.1. It is contended that basing on Annexure-3, consequential communication was issued by the Superintending Engineer, Mechanical Circle under Annexure-5 directing for disengagement of the Petitioner. It is contended that since in the tentative seniority list of NMRs working under Superintending Engineer, Mechanical Circle, Petitioner was placed at Sl. No. 151 and persons placed at Sl. No. 155 to 161 except Sl. No. 159 were not in service, Petitioner was found to be the junior most along with the person placed at Sl. No. 101 & 159. Accordingly, the impugned communications under Annexure-3 & 5 were issued. It is accordingly contended that no illegality or irregularity has been committed by the authority in issuing Annexure-3 & 5. 7. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that the Petitioner was engaged as NMR w.e.f. 01.08.1991. In view of the stipulation contained in the notification issued by the Department on 28.02.2009 all such NMRs engaged prior to 12.04.1993 are to be // 4 // brought over to the Work Charged Establishment. In terms of the said decision of the Govt. Petitioner was also brought over the Work Charged Establishment vide order dtd.04.11.2009 under Annexure2. By the time the award was passed and the impugned communications were issued under Annexure-3 & 5, Petitioner was already brought over to the Work Charged Establishment in terms of the notification issued by the Govt. on 28.02.2009. 7.1. As per the considered view of this Court, Petitioner cannot be disengaged, as persons similarly situated and engaged prior to 12.04.1993 are continuing in the Work Charged Establishment in terms of the notification issued by the Govt. on 28.02.2009. It is also found that while implementing the award, Petitioner though not a party to the proceeding, but he was never issued with any showcause and given an opportunity of hearing prior to taking a decision to retrench him. In any view of the matter this Court finds that the action of the Opp. Party Nos. 1 & 4 in issuing Annexure-3 & 5 is not legal and justified. Therefore, this Court is inclined to quash the communication issued under Annexure-3 & 5 so far as it relates to the Petitioner. While quashing the same, this Court directs the Opp. Parties to allow the Petitioner to continue in the Work Charged Establishment in terms of the order issued on 04.11.2009 under Annexure-2. 8. The writ petition is disposed of accordingly. ( A.K. Mohapatra ) Judge Rubi Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: High Court of Orissa Date: 16-Jan-2024 10:31:31