The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.12004 OF 2016 (An application under Article 226 of the Constitution of India) Butu Naik … Petitioner -versus- State of Odisha and others … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioner : Mr. Manmaya Ku. Dash, Advocate -versus-
Legal Reasoning
For Opposite Party Nos.1 to 5 : Mr.Iswar Mohanty, A.S.C. For Opposite Party No.6 : Mr. R. Achary, Advocate -------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA Page 1 of 6 JUDGMENT 22.9.2023. Sashikanta Mishra,J. The Petitioner has approached this Court seeking the following relief; “It is therefore humbly prayed that the Hon’ble Court may graciously be pleased to issue Rule Nisi calling upon the opposite parties to show cause, as to why order dated 30.6.2016 shall not be quashed and as to why the Petitioner’s legitimate remuneration shall not be disburse. And in case opp. parties do not show cause or show insufficient cause or wrong cause the Hon’ble Court may make the Rule absolute buy directing the opp. parties to allow the petitioner to continue in his engagement or in any other available vacancy and consequently direct to disburse the legitimate remuneration of the petitioner. And for this act of kindness, the Petitioner shall, as in duty bound shall ever pray.” 2. The Petitioner’s case is that pursuant to an advertisement issued by the Rogi Kalyan Samiti (RKS), District Headquarters Hospital (DHH), Nayagarh on 29th January, 2010, he attended the walk-in interview conducted on 3rd February, 2010 for selection as Ambulance Driver, DHH, Nayagarh. He was issued with an engagement letter by the Asst. District Medical Officer (Medical)- cum-Member Secretary, RKS, DHH, Nayagarh on 27th April, 2010. Thereafter he joined and rendered service as Ambulance Driver continuously to the satisfaction of his authorities. While working as such, by order dated 30th June, 2016, the Addl. District Medical Officer (Med), Nayagarh suddenly cancelled the W.P.(C) No. 12004 of 2016 Page 2 of 6 engagement of the Petitioner on the ground that his services were no longer required as decided in the Governing Body Meeting of RKS held on 3rd April, 2016. He has submitted his representation to the Chief District Medical Officer-cum-Member Secretary, G.B., RKS, DHH, Nayagarh on 4th July, 2016, the same is pending. 3. Heard Mr.M.K.Dash, learned counsel for the Petitioner, Mr. I. Mohanty, learned Addl. Standing Counsel for the State and Mr. R. Achary, learned counsel for the Opposite Party No.6. 4. It is submitted by Mr. M.K.Dash that the Petitioner, despite rendering satisfactory performance for a long time was suddenly disengaged causing him immense hardship. Further, there is no blemish in his career. Moreover he has been driving the Ambulance of the Hospital even till date which implies that the work of an Ambulance Driver is still necessary. It is further submitted by Mr. Dash that since the Petitioner had worked from March, 2015 to June, 2016, he is entitled to wages/remuneration for the said period, i.e. for 16 months, but the same has not been paid to him as yet. W.P.(C) No. 12004 of 2016 Page 3 of 6 5. Mr. I. Mohanty, learned Addl. Standing Counsel for the State, submits that the Petitioner’s engagement was purely on daily wage basis without creating any right of regular employment on him. Moreover, his present engagement is through outsourcing agency and therefore, it cannot have any bearing on the claim made for re-engagement. 6. Perusal of the advertisement, copy of which has been enclosed as Annexure-1, reveals that the same was issued to engage four Attendant-cum-Sweeper, one Gardener and one Ambulance Driver by the RKS on the basis of walk-in interview. Obviously, such engagement was not intended to be a regular appointment in Government. Further, the engagement order dated 27th April, 2010 (Annexure-2) also reveals that such engagement was on daily wage basis under FRU grant under the RKS. Therefore, by no stretch of imagination, it can be said that the Petitioner was appointed as a regular Government servant so as to acquire any vested right. Moreover, copy of the order of disengagement (Annexure-3) shows that the engagement was cancelled as the service of the Petitioner was no more required. Such decision was taken by the Governing Body of the RKS. W.P.(C) No. 12004 of 2016 Page 4 of 6 7. This Court finds no reason to find fault with such decision since it is for the employer to decide whether to continue with such daily wage engagement or not. To such extent therefore, the decision to disengage the Petitioner cannot be questioned. Significantly, it has been stated at the bar that the Petitioner is presently engaged through an outsourcing agency. This obviously implies that the RKS took a conscious decision to stop the practice of engaging persons on daily wage basis and to depute the work to an outside agency. This is a policy decision taken by the Samiti, which in the absence of anything on record to show that it was actuated with any malafides, is not open to judicial review. The prayer of the Petitioner for rejection of the impugned order is hence, not tenable. 8. However, if the Petitioner has rendered actual service even as a daily wage worker, he has to be remunerated appropriately. It is submitted by Mr. Dash that the Petitioner has not been paid his wages from March, 2015 to June, 2016, i.e. for 16 months. No reason has been cited for withholding the payment. It is submitted that there is adequate evidence in the form of muster roll maintained by the RKS, which would clearly show that the Petitioner had rendered work during the aforesaid period, but has W.P.(C) No. 12004 of 2016 Page 5 of 6 not been paid. In the absence of any material on record to show that the Petitioner was not entitled to such payment, the employer obviously is liable to pay the dues, which ought to have been paid at the relevant time. 9. For the foregoing reasons therefore, while not being inclined to grant the relief claimed for quashment of the impugned
Decision
order, this Court is inclined to allow the Writ Petition in part by directing the Chief District Medical Officer, Nayagarh (Opposite Party No.4) to disburse the unpaid wages to the Petitioner within a period of two weeks from the date of production of certified copy of this order by the Petitioner, if there is no other legal impediment, failing which the amount shall carry interest @ 9% per annum till the date of payment. ………..…….……………. Sashikanta Mishra, Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Designation: A.R.-CUM-SR.SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Sep-2023 11:22:33 W.P.(C) No. 12004 of 2016 Page 6 of 6