The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC ) No.4672 of 2016 In the matter of an application under Section 19 of the Orissa Administrative Tribunal’s Act, 1985 ……………… JaJayakrushna Jena & Others … Petitioners … -versus- StState of Odisha & Others …… Opposite Parties For Petitioners : M/s. K.K. Swain,P.M. Mohanty, S.C.D Dash, U. Chhotrary, & P.K. Mohapatra, Adv. For Opp. Parties : M/s. S.K. Jee, Add. Govt. Advocate. M/s. A.K. Biswal, P.K. Rout,Adv. (for intervenor) PRESENT: THE HONBLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------------- Date of Hearing: 28.02.2025 and Date of Judgment: 28.02.2025 -------------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through hybrid mode. 1 2. Memo containing the respective initial date of engagement of the Petitioners so filed in Court be kept on record. 3. At the outset, it is also contended that since in the
Decision
meantime, during pendency of the Writ Petition, Petitioner Nos.5,14,28,46 & 47 have died, the Writ Petition be confined to other Petitioners save and except Petitioner Nos.5,14,28,46 & 47. 4. Heard learned counsel appearing for the parties. 5. The present Writ Petition has been filed inter alia with the following prayer: “Under the above circumstances, it is humbly prayed that the Original Application be allowed. And a) The impugned order dated 08.12.2016 so far as the post of Attendants are concerned, the same may be quashed and necessary direction be made to the respondents to regularize the services of the applicants against the sanctioned post of Attendants lying vacant under the State Government with all consequential benefits as they have completed more than six years of service in the capacity of contractual attendants and any other order/orders or direction/directions be issued so as to give complete relief to the applicants.” 6. It is contended that all the Petitioners though were engaged as MHU Attendant under the then National Rural Health Mission (in short, NRHM) starting for the period from 1995 till 2012, but in spite of their long continuance, 2 no step was taken to absorb them in the regular establishment. 6.1. It is also contended that considering the nature of engagement of the Petitioners as MHU Attendant under NRHM and the decision taken in the proceeding of the meeting dt.20.07.2013 under Annexure-12 by the High Power Committee that attendants working in MHU under NRHM will be withdrawn from MHU and they will be retained as attendants in other health facilities of respective districts after ascertaining the vacancy position from the concerned CDMOs, Director of Health Services, Odisha, Opp. Party No.3 vide his letter dt.02.09.2015 under Annexure-16 addressed to Opp. Party No.1 made the following request. “ It is therefore requested that Government may kindly consider to adjust the MHU staffs against the available vacancy in the regular establishment and communicate their orders to this effect at an early date.” 6.2. It is contended that on the face of such request made by Opp. Party No.3 under Annexure-16 and without taking necessary step in that regard to adjust the present petitioners against available vacancies in the regular establishment, when Opp. Party No.1 issued the impugned letter dt.08.12.2016 under Annexure-17 with a request on the self-same Opp. Party No.3 to fill up different categories of posts in the Department by way of direct recruitment on 08.12.2016 including the post of Attendant challenging the 3 said action of Opp. Party No.1, the present Writ Petition was filed inter alia with the prayer as indicated here-in-above. 6.3. It is also contended that the Tribunal while issuing notice of the matter vide order dt.20.12.2016 passed an interim order to the following effect. “xxx xxx xxx “So far as interim relief is concerned, no coercive action be taken against the Petitioners and equal number of posts of Attendants pursuant to Annexure-17 may not be filled up till filing of the counter.” 6.4. It is contended that in terms of the interim order passed on 20.12.2016, all the Petitioners since their respective date of initial engagement are continuing as MHU Attendant as on date, but without getting the benefit of regularization. 6.5. It is further contended that in view of the decision taken in the proceeding of the meeting dt.20.07.2013 under Annexure-12 and the request made by Opp. Party No.3 in his letter dt.02.09.2015 under Annexure-16, without taking step to adjust the Petitioners against available vacancies in the regular establishment, action of Opp. Party No.1 in issuing the impugned communication dt.08.12.2016 under Annexure-17 to fill up different posts by way of direct recruitment which also includes post of Attendants numbering 1161 is not sustainable in the eye of law and requires interference of this Court. 4 6.6. It is also contended that taking into account the long continuance of the Petitioners on daily age basis under the then NRHM to till date, claim of the Petitioners to get the benefit of regularization is squarely covered by a recent decision of the Hon’ble Apex Court in the case of Jaggo Vs. Union of India and others decided on 20.12.2014. Hon’ble Apex Court in Para 22 to 28 of the said decision has held as follows. 22. The pervasive misuse of temporary employment contracts, as exemplified in this case, reflects a broader systemic issue that adversely affects workers’ rights and job security. In the private sector, the rise of the gig economy has led to an increase in precarious employment arrangements, often characterized by lack of benefits, job security, and fair treatment. Such practices have been criticized for exploiting workers and undermining labour standards. Government institutions, entrusted with upholding the principles of fairness and justice, bear an even greater responsibility to avoid such exploitative employment practices. When public sector entities engage in misuse of temporary contracts, it not only mirrors the detrimental trends observed in the gig economy but also sets a concerning precedent that can erode public trust in governmental operations. 23. The International Labour Organization (ILO), of which India is a founding member, has consistently advocated for employment stability and the fair treatment of workers. The ILO’s Multinational Enterprises Declaration6 encourages companies to provide stable employment and to observe obligations concerning employment stability and social security. It emphasizes that enterprises should assume a leading role in promoting employment security, particularly in contexts where job discontinuation could exacerbate long- term unemployment. 24. The landmark judgment of the United State in the case of Vizcaino v. Microsoft Corporation7 serves as a pertinent example from the private sector, illustrating the consequences of misclassifying employees to circumvent providing benefits. In this case, Microsoft classified certain workers as independent contractors, thereby denying them employee benefits. The U.S. Court of Appeals for the Ninth Circuit determined that these workers were, in fact, common-law employees and were entitled to the same benefits as regular employees. The Court noted that large Corporations have 5 increasingly adopted the practice of hiring temporary employees or independent contractors as a means of avoiding payment of employee benefits, thereby increasing their profits. This judgment underscores the principle that the nature of the work performed, rather than the label assigned to the worker, should determine employment status and the corresponding rights and benefits. It highlights the judiciary’s role in rectifying such misclassifications and ensuring that workers receive fair treatment. in government 25. It is a disconcerting reality that temporary employees, face particularly multifaceted forms of exploitation. While the foundational purpose of temporary contracts may have been to address short-term or seasonal needs, they have increasingly become a mechanism to evade long-term obligations owed to employees. These practices manifest in several ways: institutions, often • Misuse of “Temporary” Labels: Employees engaged for work that is essential, recurring, and integral to the functioning of an institution are often labeled as “temporary” or “contractual,” even when their roles mirror those of regular employees. Such misclassification deprives workers of the dignity, security, and benefits that regular employees are entitled to, despite performing identical tasks. • Arbitrary Termination: Temporary employees are frequently dismissed without cause or notice, as seen in the present case. This practice undermines the principles of natural justice and subjects workers to a state of constant insecurity, regardless of the quality or duration of their service. • Lack of Career Progression: Temporary employees often find themselves excluded from opportunities for skill development, promotions, or incremental pay raises. They remain stagnant in their roles, creating a systemic disparity between them and their regular counterparts, despite their contributions being equally significant. to outsourcing roles performed by • Using Outsourcing as a Shield: Institutions increasingly resort temporary employees, effectively replacing one set of exploited workers with another. This practice not only perpetuates exploitation but also demonstrates a deliberate effort to bypass the obligation to offer regular employment. • Denial of Basic Rights and Benefits: Temporary employees are often denied fundamental benefits such as pension, provident fund, health insurance, and paid leave, even when their tenure spans decades. This lack of social security subjects them and their families to undue hardship, especially in cases of illness, retirement, or unforeseen circumstances. 6 26. While the judgment in Uma Devi (supra) sought to curtail the practice of backdoor entries and ensure appointments adhered to constitutional principles, it is regrettable that its principles are often misinterpreted or misapplied to deny legitimate claims of long-serving employees. This judgment aimed to distinguish between “illegal” and “irregular” in appointments. It categorically held that employees irregular appointments, who were engaged in duly sanctioned posts and had served continuously for more than ten years, should be considered for regularization as a one- time measure. However, the laudable intent of the judgment is being subverted when institutions rely on its dicta to indiscriminately reject the claims of employees, even in cases where their appointments are not illegal, but merely lack adherence formalities. Government departments often cite the judgment in Uma Devi (supra) to argue that no vested right to regularization exists for temporary employees, overlooking the judgment’s explicit acknowledgment of is appropriate. This selective application distorts the judgment’s spirit and purpose, effectively weaponizing it against employees who have rendered indispensable services over decades. cases where regularization procedural to 27. In light of these considerations, in our opinion, it is imperative for government departments to lead by example in providing fair and stable employment. Engaging workers on a temporary basis for extended periods, especially when their roles are integral to the organization’s functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines employee morale. By ensuring fair employment practices, government the burden of unnecessary litigation, promote job security, and uphold the principles of justice and fairness that they are meant to embody. This approach aligns with international standards and sets a positive precedent for the private sector to follow, thereby contributing to the overall betterment of labour practices in the country. institutions can reduce 28. In view of the above discussion and findings, the appeals are allowed. The impugned orders passed by the High Court and the Tribunal are set aside and the original application is allowed to the following extent: i. The termination orders dated 27.10.2018 are quashed; ii. The appellants shall be taken back on duty forthwith and their services regularised forthwith. However, the appellants shall not be entitled to any pecuniary benefits/back wages for the period they have not worked for but 7 would be entitled to continuity of services for the said period and the same would be counted for their post- retiral benefits. counted for their post-retiral benefits. 6.7. Reliance was also placed in another decision of the Hon’ble Apex Court in Civil Appeal No.8157 of 2024, Shripal and Another vs. Nagar Nigam, Ghaziabad decided on January 31, 2025. Hon’ble Apex Court in para 3.6,4,15 and Para 18(iv) of the said judgment has held as follows. 3.6. Through the impugned judgment, the High Court held that while the Labour Court was correct in exercising jurisdiction under the U.P. Industrial Disputes Act (since municipalities could be treated as “industry”), there remained factual complexities as to whether the workmen were genuinely on the rolls of the Nagar Nigam or were provided by contractors. The High Court also noted that the State Government had, by notifications/orders, placed a ban on fresh recruitments in Municipal Corporations, thereby restricting direct appointments to any post. Ultimately, the High Court partially modified the relief granted, directing re-engagement of the workmen on daily wages, with pay equivalent to the minimum in the regular pay scale of Gardeners, while allowing future consideration of their regularization if permissible by law. 4. Both the Appellant Workmen and the Respondent Employer have now approached this Court by way of Special Leave Petitions. The workmen primarily seek full reinstatement with back wages and a direction to secure their regularization, CIVIL APPEAL NO.8157 OF 2024 ETC. Page 6 of 23 whereas the Respondent Employer seeks to quash the modifications ordered by the High Court on the ground that the High Court exceeded its jurisdiction by granting partial relief akin to regular employees, contrary to constitutional provisions and the State’s ban on recruitment. 8 15. It is manifest that the Appellant Workmen continuously rendered their services over several years, sometimes spanning more than a decade. Even if certain muster rolls were not produced in full, the Employer’s failure to furnish such records—despite directions to do so—allows an adverse inference under well-established labour jurisprudence. Indian labour law strongly disfavors perpetual daily-wage or contractual engagements in circumstances where the work is permanent in nature. Morally and legally, workers who fulfil ongoing municipal requirements year after year cannot be dismissed summarily as dispensable, particularly in the absence of a genuine contractor agreement. At this juncture, it would be appropriate to recall the broader critique of indefinite “temporary” employment practices as done by a recent judgement of this court in Jaggo v. Union of India in the following paragraphs: led to an increase “22. The pervasive misuse of temporary employment contracts, as exemplified in this case, reflects a broader systemic issue that adversely affects workers’ rights and job security. In the private sector, the rise of the gig in precarious economy has employment arrangements, often characterized by lack of benefits, job security, and fair treatment. Such practices have been criticized for exploiting workers and undermining labour standards. Government institutions, entrusted with upholding the principles of fairness and justice, bear an even greater responsibility to avoid such exploitative employment practices. When public sector entities engage in misuse of temporary contracts, it not only mirrors the detrimental trends observed in the gig economy but also sets a concerning precedent that can erode public trust in governmental operations. 23. The International Labour Organization (ILO), of which India is a founding member, has consistently advocated for employment stability and the fair treatment of workers. The ILO’s Multinational Enterprises Declaration6 encourages companies to provide stable employment and to observe obligations concerning employment stability and social security. It emphasizes that enterprises should assume a leading role in promoting employment security, particularly in 9 contexts where job discontinuation could exacerbate long-term unemployment. It that is a disconcerting reality temporary 25. employees, particularly in government institutions, often face multifaceted forms of exploitation. While the foundational purpose of temporary contracts may have been to address short-term or seasonal needs, they have increasingly become a mechanism to evade long-term obligations owed to employees. These practices manifest in several ways: • Misuse of “Temporary” Labels: Employees engaged for work that is essential, recurring, and integral to the functioning of an institution are often labeled as “temporary” or “contractual,” even when their roles mirror those of regular employees. Such misclassification deprives workers of the dignity, security, and benefits that to, despite performing identical tasks. regular employees are entitled • Arbitrary Termination: Temporary employees are frequently dismissed without cause or notice, as seen in the present case. This practice undermines the principles of natural justice and subjects workers to a state of constant insecurity, regardless of the quality or duration of their service. • Lack of Career Progression: Temporary employees often find themselves excluded from opportunities for skill development, promotions, or incremental pay raises. They remain stagnant in their roles, creating a systemic disparity between them and their regular counterparts, despite their contributions being equally significant. • Using Outsourcing as a Shield: Institutions increasingly resort to outsourcing roles performed by temporary employees, effectively replacing one set of exploited workers with another. This practice not only perpetuates exploitation but also demonstrates a deliberate effort to bypass the obligation to offer regular employment. • Denial of Basic Rights and Benefits: Temporary employees are often denied fundamental benefits such as pension, provident fund, health insurance, and paid leave, even when their tenure spans decades. This lack 10 of social security subjects them and their families to undue hardship, especially illness, retirement, or unforeseen circumstances. in cases of from 18.IV. The Respondent Employer is directed to initiate a fair and transparent process for regularizing the Appellant Workmen within six months the date of reinstatement, duly considering the fact that they have performed perennial municipal duties akin to permanent posts. In assessing regularization, the Employer shall not impose educational or procedural criteria retroactively if such requirements were never applied to the Appellant Workmen or to similarly situated regular employees in the past. To the extent that sanctioned vacancies for such duties exist or are required, the Respondent Employer shall expedite all necessary administrative processes to ensure these longtime employees are not indefinitely retained on daily wages contrary to statutory and equitable norms. 6.8. Placing reliance on the aforesaid two decisions and the long continuance of the petitioners on daily wage basis as MHU Attendants, learned counsel appearing for the Petitioners contended that appropriate direction be issued to Opp. Party No.1 to regularize the services with due adjustment as against the post of Attendants in different districts to which the Petitioners belong. 7. Mr. S.K. Jee, learned Addl. Govt. Advocate placing reliance on the counter affidavit filed by Opp. Party No.3 on the other hand contended that since Petitioners were all engaged on daily wage basis as MHU Attendant under NRHM and that too under a particular Scheme, claim of the Petitioners to get the benefit of regularization does not arise. 11 7.1. It is also contended that all the Petitioners were engaged without facing due recruitment process by NRHM at different point of time and taking into account such nature of engagement made under NRHM, Petitioners are also not eligible and entitled to get the benefit of regularization. 7.2. It is also contended that Petitioners were never engaged against any vacant sanctioned posts in their respective districts and accordingly their claim to get the benefit of regularization is also not entertainable. It is accordingly contended that the prayer made in the Writ Petition to regularise the services of the Petitioner cannot be entertained. 8. To the submission made by the learned Addl. Govt. Advocate, Mr. K.K. Swain, learned counsel appearing for the Petitioners made further submissions taking into account the stand taken in the rejoinder affidavit. 8.1. It is contended that all the Petitioners were engaged basing on the recruitment process initiated by the respective CDMOs and on their such engagement, they were paid with consolidated remuneration. But subsequently all the Petitioners were allowed to continue on daily wage basis under NRHM, but as MHU Attendant all through. It is also contended that since on face of the letter issued under Annexure-16, 1161 posts of Attendant were required to be filled up by way of direct recruitment and in terms of the 12 interim order passed by the Tribunal on 20.12.2016, the Petitioners are all continuing as on date, in view of the decisions as cited (supra), they are eligible and entitled to get the benefit of regularization. 9. Having heard learned counsel for the parties and considering the submission made, this Court finds that all the Petitioners were engaged as Attendants basing on the recruitment process initiated by the then CDMOS at different point of time. While so continuing, all the Petitioners were allowed to continue as MHU Attendant under NRHM on daily wage basis. On the face of such continuance as MHU Attendant under NRHM and when grievance were raised for their regularization, in the preceding of the meeting dt.20.07.2013 under Annexure-12, a decision was taken to withdraw the Petitioners from NRHM and for their retention in other health facilities of respective districts after ascertaining the vacancy position. It is found that basing on such decision taken by the High Power Committee in its proceeding dt.20.07.2013 under Annexure-12, Opp. Party No.3 vide his letter dt.02.09.2015 under Annexure-16, requested the Government to consider and adjust the MHU staffs against the available vacancies in the regular establishment. However, on the face of such request made by Opp. Party No.3 under Annexure-16, when Opp. Party No.1 requested Opp. Party No.3 to fill up various posts on regular basis which includes 1161 numbers of post of 13 Attendants vide letter dt.08.12.2016 under Annexure-17, challenging the same, the present Writ Petition was filed. 9.1. As found, the Tribunal while issuing notice of the matter vide order dt.16.12.2016 passed an interim order inter alia directing therein not to take any coercive action against the Petitioners and not to fill up equal number of posts of Attendants as reflected in the impugned communication dt.08.12.2016 under Annexure-17. It is not disputed by the learned counsel appearing for the parties that in terms of the said interim order, Petitioners are all continuing as Attendants on daily wage basis as on date and required number of posts has not been filled up. 9.2. In view of the aforesaid analysis and placing reliance on the decision taken by the High Power Committee in its proceeding dt. 20.07.2013 coupled with the request made by Opp. Party No.3 in his letter dt.02.09.2015 under Annexure-16 and the decision in the cases of Jaggo as well as Shripal as cited (supra), this Court is of the view that claim of the Petitioner to get the benefit of regularization is required to be considered favourably by Opp. Party No.1 . 9.3. Therefore, while disposing the Writ Petition, this Court directs Opp. Party No.1 to take a decision with regard to claim of the Petitioner to get the benefit of regularization taking into account the decision taken by the High Power Committee in its proceeding dt.20.07.2013 under 14 1Annexure-12, request made by Opp. Party No.3 in his letter dt.02.09.2015 under Annexure-16 and the decision in the case of Jaggo and Shripal as cited (supra). Such a fresh decision as directed be taken within a period of three (3) months from the date of receipt of this order. Till a decision is taken as directed, interim order passed on 20.12.2016 shall continue. The Writ Petition accordingly stands disposed of. Judge ( Biraja Prasanna Satapathy) Orissa High Court, Cuttack Dated the 28th February, 2025/sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 05-Mar-2025 17:41:13 15