The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.36033 of 2023 Durga Madhab Dash and others Petitioners Ms.Saswati Mohapatra, Advocate …. -versus- State of Odisha and others …. Opposite Parties Mr.Nikhil Pratap, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA Order No. ORDER 03.01.2024 04. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as the learned Additional Standing Counsel for the State and learned counsel appearing for the Odisha Small Industries Corporation Limited.
Decision
Perused the Writ Petition as well as the documents annexed thereto. 3. A Counter Affidavit was filed, on behalf of the Corporation, today in Court. The same is also taken on record. 4. The present Writ Petition has been filed with the following prayer: “Under the aforesaid facts and circumstances, it is therefore, prayed that this Hon’ble Court may graciously be pleased to: i) direct/order the Opp.PartyNo.1 to release the Revision of Pay to the Petitioners as per compliance, submitted by the M.D., O.S.I.C. on 11.05.2023, within a stipulated period as may be prescribed by this Hon’ble Court; ii) deemed fit and proper in the bona fide interest of justice.” pass such other order(s) or issue direction(s) as may be // 2 // 5. The factual dispute involved in the present Writ Petition in a narrow compass is that on 12.03.2018 the Public Enterprises Department, Government of Odisha issued a Resolution with regard to revision of pay scale basing on the ORSP Rule, 2017 of the Public Sector Employees in the State of Odisha. In its Resolution dated 12.03.2018, the Public Enterprises Department has imposed certain eligibility criterias to be complied with by the respective Corporations for their Employees to get the benefit under the ORSP Rule, 2017. On perusal of the said Resolution dated 12.03.2018, which has been filed as Annexure-1 to the Writ Petition, it appears that the following eligibility criteria have been imposed by the State Government to be complied with by the respective Corporation. i) The Public Sector Undertaking must be a profit making one and its balance sheet must show cumulative profit at least for the last two consecutive years. ii) The Public Sector Undertaking must not have defaulted in payment of statutory dues of the employees such as Provident Fund and ESI etc. iii) The Public Sector Undertaking must not have defaulted in payment of loan to any financial institution or State Government. The PSU must be up to date in payment of guarantee fee/loyalty/dividend to the State Government whichever is applicable. iv) The Public Sector Undertaking must have completed up to date statutory audit. v) The Public Sector Undertaking has to meet the expenditure from its own sources and must not depend on Government for any financial support for payment of salary of the employees in revised scale of pay on the // 3 // basis of ORSP Rules, 2017.” Perusal of the record reveals that the Odisha Small Industries Corporation Ltd. vide its letter dated 11.05.2023 submitted a proposal before the Government seeking its concurrence for grant of benefit under the ORSP Rules, 2017 after complying with the conditions imposed by the Public Enterprises Department vide its Resolution dated 12.03.2018 under annexure-1. A close scrutiny perusal of the letter dated 11.05.2023 under Annexure-3 reveals that the Corporation in its letter has categorically stated in Point Nos.4,5 & 7 as follows: 4. 5. 7. The OSIC has already completed statutory Audit up to FY 2018-19 whereas the P.E. Department Resolution No.893/dt.12.03.2018 has stipulated for F.Y 216-17. The copies of the Statutory Audit Report for the F.Y 2016-17, 2017-18, 2018-19 are enclosed for reference in Annexure-4. As per provisional balance sheet for the F.Y. 2021-22 there is Reserve & Surplus of Rs.82.13 crore, OSIC has been earning profit from F.Y 2007-08 onwards. The expenditure to the tune of Rs.5.07 crores towards implementation of ORSP Rules, 2017 shall be borne from its own fund and will not depend on Govt. for any financial support. In Compliance to MSME Deptt. Letter No.9345 dt.16.12.2022, it is to intimate that the Statutory Audit up to F.Y 2018-19 have been completed & OSIC paid dividend to the tune ofRs.1,40,27,103/- to the Govt. of Odisha on 20.04.2022. However, the dividend shall be paid to Govt. after finali- zation of accounts for F.Y 2019-20 & 2020-21. 6. Learned counsel for the Petitioners contended that the employees of OSIC are entitled to get the benefit accruing under the ORSP Rule, 2017. He further contended that the Corporation has complied with the eligibility criteria as has been imposed vide // 4 // Resolution dated 12.03.2018. He further contended that that the up to date statutory audit report, as has been provided in letter dated 12.03.2018, has been submitted by the Corporation. Moreover, he emphatically argued that the entire financial burden of payment of benefit under ORSP Rules, 2017 would be borne by the Corporation out of its own fund and that will not depend upon any financial support from the Government. He further submitted that the Board of Director of the OSIC in its 196th meeting held on 22.06.2018 have already taken a decision for grant of scale of pay under ORSP Rule, 2017 to the employees of the Corporation keeping in view the Resolution of the Public Enterprises Department dated 12.03.2018. In such view of the matter, learned counsel for the Petitioner submitted that the Opposite Parties have committed an illegality in sitting over the matter and not granting approval to the Corporation to sanction and disburse the benefits to its employees under the ORSP Rules, 2017. 7. He further contended that the employees of many other public sector enterprises in the State have already extended such benefit to their employeesin the meantime. In such view of the matter, learned counsel for the Petitioner submitted that the Opposite Parties be directed to grant necessary concurrence for extending the benefit under the ORSP Rule, 2017 pursuant to the proposal submitted to the Corporation vide letter dated 11.05.2023 under Annexure-3 to the Writ Petition within a stipulated period of time as would be fixed by this Court. 8. Learned Additional Standing Counsel on the other hand contended that no-doubt the Public Enterprises Department, Government of Odisha has come up with a Resolution dated 12.03.2018 under Annexure-1 to the Writ Petition for grant of benefit // 5 // to the employees of the Corporation under ORSP Rule, 2017, however, such Resolution extending the benefit of ORSP Rule, 2017 is not unconditional. He further contended that five eligibility criteria have been laid down in the Resolution dated 12.03.2018. Before giving concurrence, the Pubic Enterprises Department as well as Finance Department is required to ensure that the conditions stipulated in the Resolution are fully complied with by the Corporation, who have submitted proposal before the Government for grant of benefit under ORSP Rule, 2017 to its employees. In addition to the above, the Opposite Party-Corporation has not submitted up to date statutory audit report for the year 2021-22, as a result of which no decision has been taken on the proposal submitted by the Petitioner under Annexure-3 to the Writ Petition. In such view of the matter, learned Additional Standing Counsel submitted that the grant of concurrence pursuant to the Resolution dated 12.03.2018 depends on the fact that the Opposite Party-Corporation has to submit statutory audit report as has been provided under the aforesaid Resolution. In such view of the matter, learned Additional Standing Counsel submitted that the Writ Petition is devoid of merit and accordingly the same should be dismissed. 9. Learned counsel appearing for the Corporation has filed a Counter Affidavit. On perusal of the Counter Affidavit, it appears that the Corporation has taken a stand that the State-Opposite Parties are unnecessarily delaying the release of revised salary. She further contended that the Corporation has already complied with all the requirements as has been stipulated in the Resolution under Annexure-1 to the Writ Petition. Learned counsel for the Corporation further contended that the Corporation has already furnished its statutory audit report up to the financial year 2020-21 and interim // 6 // dividend has already been paid to the State Government for the aforesaid period. For the balance period, it was submitted by the Corporation that steps have been taken to expedite the audit work. 10. In the Counter Affidavit, it has been stated that the Opposite Party Corporation is wholly a Government Corporation, guided and governed by the Rules and procedure of the Government of Odisha. She further contended that the opposite party No.3 Corporation vide its letter dated 04.09.2023 has already moved the Opposite Party No.2 for grant of 7th Pay benefit to the employees of the Corporation and that the Corporation is a profit making unit for last three years. With regard to compliance of filing of statutory audit report, learned counsel for the Opposite Party No.3 Corporation submitted that steps have been taken for such statutory audit. She further contended that the statutory audit work is required to be done by independent Auditors/Organisation, such process is taking some time. However, the Corporation anticipates that the same will be furnished at the earliest. On overall assessment of the Counter Affidavit, this Court is of the considered view that the Corporation has taken a stand that now the ball is in the State Government’s Court, and for the delay in releasing the benefit under ORSP Rule, 2017, the Opposite Party No.3-Corporation is no way responsible. Accordingly, the stand that has been taken in the Writ Petition against the Corporation, by Petitioners is not maintainable. 11. Having heard learned counsel for the respective parties, on a careful analysis of the submissions and on a close scrutiny of the materials on record, this Court observes that the State Government in its Public Enterprises Department issued a Resolution dated 12.03.2018 thereby imposing certain eligibility criterias for the State owned Public Sector Undertaking to extend the benefit under ORSP // 7 // Rule, 2017 to its employees. On a careful analysis of such eligibility criteria, this Court further observes that the Opposite Party No.3 Corporation has complied with all conditions except Condition No.4 with regard to which the State Government has some objection. So far Condition No.4 is concerned the same provides that the State owned Public Sector Undertaking shall have to complete up to date statutory audit. In the aforesaid context, learned counsel for the Petitioners submitted that the Petitioners are no way responsible for delay in such statutory audit by the Corporation, which is owned and controlled by the State Government. 12. She further contended that for non-compliance of such condition, the Petitioners should not be deprived of benefit which they are lawfully entitled to as per the decisions taken by the Government as well as the Board of Opposite Party No.3. She further contended that the Petitioners have been discriminated, against as many other corporations of the State Government have already extended such benefit in favour of their employees. Although learned Additional Standing Counsel appearing for the State-Opposite Parties opposes the claim in the Writ Petition, on the ground that condition No.4 in letter dated 11.05.2023 has not been complied with, however it is not disputed that other conditions have been complied with. This Court on a careful analysis of the proposal submitted by the Corporation under Annexure-3 further observes that the entire financial burden will be borne by the Corporation from their own fund and no financial burden will be shifted to the State Government. Moreover, it has been specifically asserted that the Corporation has reserved its surplus fund of Rs.82.13 crores and the Corporation is a profit making unit. 13. On a careful analysis of the materials on record, this Court // 8 // observes that the eligibility criteria No.4 is an issue between the Corporation and the State Government. It is needless to mention here that the Corporation is wholly owned by the State Government. Therefore, if there is any delay in submission of audit report, the Government can very well take action against the Corporation and against the Officers responsible for the delay in submission of statutory audit report. This Court is of the considered view that owing to the laches on the part of the Officers of the Corporation, the employees, who are working in the Corporation should not suffer. It appears that the Board of Directors of the Corporation in its 196th meeting has already taken a decision to extend the benefit under ORSP Rule, 2017 to the employees of the Corporation from out of their own fund without depending upon the State Government. In the aforesaid factual background, this Court deems it proper to allow the present Writ Petition. 14. Accordingly, the Opposite Party No.1 is directed to examine the whole issue in the light of the observation made herein above and further grant necessary approval to the Opposite Party No.3- Corporation subject to any terms and conditions, if any, within a period of four weeks from the date of communication of certified copy of this order. Upon receipt of such concurrence/approval the Opposite Party No.3 shall take immediate steps for disbursal of the benefits under the ORSP Rules, 2017 as decided by its Board. 12. With the aforesaid observation/direction the Writ Petition stands disposed of. RKS ( A.K. Mohapatra ) Judge // 9 // Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Reason: Authentication Location: High Court of Orissa Date: 05-Jan-2024 17:04:12