The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) (OA) No.1555 of 2019 Ratnakar Pattanaik …. Petitioner Mr. B.B. Mohanty, Advocate State of Odisha & Others -versus- …. Opposite Parties Mr. R.N. Mishra, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No. ORDER 12.09.2023 06. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. B.B. Mohanty, learned counsel for the Petitioner and Mr. R.N. Mishra, learned Addl. Government Advocate for the State. 3. The Petitioner has filed the present Writ Petition challenging the order dtd.11.02.2019 so passed by Opposite Party No.2 under Annexure-14. 4. Learned counsel for the Petitioner contended that the Petitioner while working as a Wireman Grade-III in the work charged establishment, he was issued with the order of retrenchment vide office order dtd.07.05.2013 under Annexure-3, so issued in terms of the direction issued by Opposite Party No.2 on 04.05.2013 under Annexure-2. Petitioner challenging the order of retrenchment // 2 // approached the Tribunal in O.A No.1342(C)/2013. The Tribunal vide order dtd.08.05.2013 under Annexure-4 while issuing notice of the matter passed the following interim order:- “So far as interim prayer is concerned, since the applicant is going to be retrenched from his services with effect from 8.5.2013 After Noon( Today) for adjustment of one Dhruba Charan Jena, Wireman Grade-III, who has already expired since 10.12.2011, the order dated 4.5.2013 (Annexure-2) and order dated 7.5.2013 (Annexure-3) shall not be given effect to without leave of this Tribunal and the applicant shall be allowed to continue in the post as before till our order is modified”. 4.1. It is contended that on receipt of the order passed by the Tribunal on 08.05.2013, the order dtd.07.05.2013 so issued by the Executive Engineer-Opposite Party No.3 was withdrawn and the Petitioner was allowed to continue as against the post of Wireman Grade-III vide order dtd.16.07.2013 under Annexure-5. 4.2. It is contended that even though the Petitioner was allowed to continue as usual, but when his junior namely Madan Mohan Sahu was regularized vide order under Annexure-7 dtd.26.06.2014, Petitioner claiming similar benefit approached the authority under Annexure-8. When the said prayer was not considered, Petitioner approached the Tribunal in O.A. No.4139(C)/2015 and the Tribunal vide order dtd.21.12.2015 under Annexure-9 while disposing the matter directed Opposite Party No.2 to take a decision on the claim made by the Petitioner under Annexure-8. Page 2 of 8 // 3 // 4.3. It is contended that without proper appreciation of the claim of the Petitioner, when the prayer was rejected vide order dtd.28.03.2016 under Annexure-10, the Petitioner challenging the said order once again approached the Tribunal in O.A No.2549(C)/2016 under Annexure-13. The Tribunal took up both O.A.
Decision
No.2549(C)/2016 and 1342(C)/2013 and disposed of both the matters vide order dtd.26.03.2018 under Annexure-13. 4.4. It is contended that since the retrenchment order so issued against the Petitioner on 07.05.2013 under Annexure-3 was withdrawn by Opposite Party No.3 vide his order dtd.16.07.2013 under Annexure-5, the Tribunal in its order dtd.26.03.2018 held that the prayer made in O.A No.1342(C)/2013, has become infructuous as the order of retrenchment which was under challenge has since been withdrawn. The Tribunal while holding so in respect of the prayer made in O.A No.1342 (C)/2013 was pleased to quash the rejection of the Petitioner’s claim so made vide order dtd. 28.03.2016 under Annexure-10. While quashing the rejection of the Petitioner’s claim vide Annexure-10, the Tribunal directed the Opposite Parties to consider the case of the Petitioner for regularization at par with Madam Mohan Sahu. The relevant portion of the order passed by the Tribunal dtd.26.03.2018 is quoted hereunder:- “ In view of such averments and as the earlier O.A. has become in fructuous in view of the order dtd.7.5.2013 and 16.7.2013, Page 3 of 8 // 4 // there appears no impediment for regularization of the applicant excepting due to pendency of the O.A. “Accordingly, the O.A is disposed of with a direction to the respondent/authority to consider the case of the applicant for regularization at par with Madan Mohan Sahoo, who is admittedly junior to the applicant, with effect from 26.6.2016 with consequential benefit as due and admissible. Such action be taken within a period of two months from the date of receipt of a copy of this order, preferably before the retirement of the applicant and accordingly, the order vide annexure-10 is quashed”. 4.5. It is contended that even though the prayer made by the Petitioner to get the benefit of the order so issued in favour of Madan Mohan Sahu under Annexure-10 was quashed and direction was issued to consider the case of the Petitioner at par with that of Madan Mohan Sahu, but Opposite Party No.2 once again without proper appreciation rejected the claim vide the impugned order dtd.11.02.2019 under Annexure-14. 4.6. It is contended that in both the orders under Annexure-10 as well as the order under Annexure-14, it is the stand of the Opposite Party No.2 that the Petitioner since continued by virtue of the interim order passed in O.A. No.1342(C)/2013 and he retired while continuing as such, he is not eligible and entitled to get the benefit as has been extended in favour of Madan Mohan Sahu. However, it is contended that in the said order Opposite Party No.2 admits that Madan Mohan Sahu is junior to the Petitioner in the grade of Wireman-III. 4.7. It is contented that since the order of retrenchment so issued against the Petitioner on 7.5.2013 under Anneuxre-3 was withdrawn by Opposite Party No.3 vide Page 4 of 8 // 5 // order dtd.16.7.2013 under Annexure-5, the stand taken by the Opposite Party No.2 that the Petitioner continued in his service by virtue of the interim order is not acceptable and not justified. 4.8. It is accordingly contended that on a wrong notion, Opposite Party No.2 rejected the claim of the Petitioner under Annexure-10 initially. Even though the said order was quashed by the Tribunal vide its order dtd.26.03.2018 under Annexure-13, but by taking similar view, the prayer of the Petitioner once again was rejected vide order dtd.11.02.2019 under Annexure-14. 4.9. It is accordingly contended that the impugned order dtd. 11.02.2019 is not sustainable in the eye of law and the Petitioner is entitled to get the benefit of the order so passed by the Tribunal in its order under Annexure-13. 5. Mr. R.N. Mishra, learned Addl. Government Advocate on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opposite Party No.3. It is contended that since the Petitioner was retrenched vide order dtd.07.05.2013 and the Tribunal while issuing notice of the matter passed an interim order on 08.05.2013 under Annexure-4 with a direction on the Opposite Parties to allow the Petitioner to continue and the Petitioner continued in terms of the said interim order till he attained the age of superannuation, the Petitioner is not entitled to get the benefit as has been extended in favour of Madan Mohan Sahu. Page 5 of 8 // 6 // 5.1. It is also contended that in view of such position, even though the Tribunal directed for consideration of the claim of the Petitioner by quashing Annexure-10, the claim of the Petitioner has been rightly rejected vide impugned order under Annexure-14. 6. Having heard learned counsel for the Parties and after going through the materials available on record, this Court finds that the Petitioner was issued with the notice of retrenchment vide order dtd.07.05.2013 under Annexure-3 in terms of the direction issued by Opposite Party No.2 in his letter dtd.04.05.2013 under Annexure-2, Petitioner challenging both the orders approached the Tribunal in O.A. No.1342(C)/2013. The Tribunal vide order dtd.08.05.2013 under Annexure-4, while issuing notice of the matter passed an interim order by directing the Opposite Parties to allow the Petitioner to continue in his post till further order is passed by the Tribunal. However, it is seen from the record that after receipt of the interim order passed by the Tribunal on 08.05.2013 under Annexure-4, the order of retrenchment issued by the Opposite Party No.3 on 07.05.2013 under Annexure-3 was suo motu withdrawn and the Petitioner was allowed to continue. Since the order of retrenchment issued against the Petitioner was withdrawn vide order dtd.16.07.2013 under Annexure-5, it cannot be held that the Petitioner continued in his service beyond 07.05.2013 by virtue of the interim order. Page 6 of 8 // 7 // 6.1. Therefore, the stand taken by Opposite Party No.2 while rejecting the claim of the Petitioner vide order under Annexure-10 and now again vide the impugned order under Annexure-14 that the Petitioner continued in his service because of the interim order passed by the Tribunal in O.A. No.1342(C)/2013 is not sustainable in the eye of law. Since it is not disputed that Sri Madan Mohan Sahu though is junior to the Petitioner has got the benefit of regularization vide order dtd.26.06.2014 under Annexure-7 and the Tribunal taking into account that fact directed the Opposite Parties to consider the extension of similar benefit at par with Shri Madan Mohan Sahu, the ground on which the claim of the Petitioner has been rejected once again vide the impugned order dtd.11.02.2019 under Annexure-14 as per the considered view of this Court is not sustainable in the eye of law. 7. Therefore, this Court is inclined to quash the order dtd.11.02.2019 so issued by Opposite Party No.2 under Annexure-14. While quashing the same, this Court directs Opposite Party No.2 to extend the benefit in favour of the Petitioner in terms of the order passed by the Tribunal on 26.03.2018 under Annexure-13. Such a fresh order shall be passed by Opposite Party No.2 from the date of receipt of this order. Petitioner is directed to produce a copy of this order before Opposite Party No.2 for compliance. Page 7 of 8 // 8 // 8. With the aforesaid observations and directions, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: .. Location: HIGH COURT OF ORISSA, CUTTACK Date: 15-Sep-2023 18:37:47 Page 8 of 8