Orissa High Court
Deepak Kumar Sahu vs Orissa State Road Transport ... on 5 March, 1999
Equivalent citations: (1999)IILLJ1039ORI
Author: P.K. Mohanty
Bench: P.K. Mohanty
JUDGMENT P.C. Naik, J.
1. As these two writ petitions have been filed by the same petitioner and heard analogously, they are being disposed of by this common judgment.
2. The petitioner holds the post of a permanent conductor in the Orissa State Road Transport Corporation (in short 'O.S.R.T.C.')- He was initially appointed by the Divisional Transport Manager, Dhenkanal (in short 'D.T.M.') and was posted within the jurisdiction of the said D.T.M. Subsequently, the Chairman-cum- Managing Director of O.S.R.T.C. in exercise of powers vested in him, transferred the petitioner outside Dhenkanal (sic) accordingly, he was posted at various places like Kalahandi, Bolangir, Joypore and Baripada. It is the petitioner's case that as there was no one to look after his old and ailing parents and he is staying away from home, without regular payment of salary, he is facing acute hardship. On November 11, 1995, he submitted a representation to the authorities for transferring him to a place nearby his home town. The representation was duly recommended by the D.T.M. Rourkela within whose jurisdiction the petitioner was posted. However, to his surprise, the petitioner, at the instance of opposite party No. 2 was suspended. Subsequently, having been found 1 not guilty of any misconduct he was reinstated. As his representation for some reason or the other was not disposed of till January, 1996, he had approached this Court by way of filing writ petition bearing O.J.C, No. 121 of 1996 which was disposed of on January 18, 1996 with a direction to the opposite party No. 2, the Chairman-cum-Managing Director to consider and dispose of the representation within a period of two months from the date of receipt of the order. Accordingly, the representation was disposed of sometime in April, 1996 in the following terms:
"The Chairman-cum-Managing Director. O.S.R.T.C., Bhubaneswar has been" pleased to reject your representation dated November 11, 1995."
3. Aggrieved therewith, the petitioner has filed O.J.C. No. 4069 of 1996 praying therein:
to direct the Chairman-cum-Managing Director to reconsider his representation after quashing the cryptic order rejecting the same and for a further direction to transfer him to a place nearby his home town.
4. The prayer in the other writ petition (O.J.C. No. 10033 of 1997) is for a direction to the opposite parties 2 and 3 i.e. O.S.R.T.C. and the D.T.M., Rourkela to make up-to-date deposits towards the employees' provident fund dues of the petitioner for the entire period and for a further direction to opposite party No. 1 Regional Provident Fund Commissioner to ensure that such deposits are made, as required by law, regularly. The allegation of the petitioner in this writ petition is that though the statute obliges the employer to make regular deposits of its share and also that of the employee, regular deposits are not being made with the result that the petitioner's account is not up-to-date for which reason, his application for a loan of Rs. 30,000/- could not be favourably considered.
5. The prayer for transferring the petitioner to a place nearby his home town, upon reconsideration of his representation, is opposed by opposite party No. 1 on the ground that his posting near the home town would not be in the interest of the O. S.R.T.C. According to the opposite parties, when the petitioner was posted at Puri and Dhenkanal zones of the O.S.R.T.C., a number of G.R. Cases were registered and many allegations were levelled against him as a result of which, he was transferred out of the zones. Thus, as the performance of the petitioner was not good but rather detrimental to the interest of the O.S.R.T.C. he is kept at far off places. Even in Rourkela zone, as the petitioner gives low income as compared to other conductors, it has been decided by the management not to allot any duty on the Express Routes. Accordingly, a prayer is made for dismissal of O.J.C. No. 4069 of 1996.
6. In O.J.C. No. 4069 of 1996, Misc. Case No. 9367 of 1996 was filed by the petitioner complaining that as the employer had failed to make regular deposits he was being deprived of the legitimate and statutory benefits under the welfare legislation, namely, the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. He had accordingly prayed for compensation apart from appropriate action against the employer-management. In the aforesaid Misc. Case, this Court on December 19, 1996 passed the following order:
"Let the R.P.F. Commissioner, Orissa, at Bhubaneswar, be impleaded as opposite party No. 3.
2. Issue notice on the newly added O.P. No. 3 returnable within three weeks.
3. In the meantime, we direct the Corporation-opposite party No. 1 to deposit the contribution so far made by the petitioner and the share of the Corporation in respect of the petitioner within two weeks from today, which shall be accepted by the R.P.F. Commissioner. xx xx xx xx xx"
7. Reference may be made to the affidavit of the Chairman-cum- Managing Director of the O.S.R.T.C. wherein he has clearly admitted that neither the employer's share nor that of the employee was regularly deposited with the R.P.F. Commissioner. Admittedly, neither the employee's share for the period from November 28, 1986 to June 8, 1988, June 9, 1988 to December 22, 1989, December 23, 1989 to February 15, 1990, February 15, 1990 to June 20, 1990, June 21, 1990 to November 12, 1991, November 13, 1991 to November 30, 1993 and December 1, 1993 to till date nor that of the employer for the said periods was deducted. It is also submitted that though for the period from November 23, 1989 to February 15, 1990, a sum of Rs. 168/- was deducted from the petitioner's salary, the same was not deposited with the R.P.F. Commissioner. According to the Chairman-cum-Managing Director, the main reason for non-deposit is paucity of funds. The State Government has been moved from time to time and as and when funds are made available, necessary deposits are being made.
8. Counter-affidavit has been filed on behalf of opposite party No. 2 in O.J.C. No. 10033 of 1997 wherein it has been admitted that contributions of both, the employer and the employee, have not been regularly made. It is, however, submitted that it is not possible on the part of opposite party No. 2 to give details about the deduction, non-deduction of deposit, non-deposit of the employee's provident fund dues of the petitioner and in case, deductions were not made, the petitioner ought to have filed necessary representation. It is further stated that if there has not been deduction of the employees' provident fund dues at the time of payment of salary for the periods in question, deposits cannot be made at this stage. It is, however, stated that necessary instruction has been issued to the respective Zonal Officers to deposit the deducted employees' provident fund dues and if the petitioner supplies information about non-deposit of the deducted amount since 1979 onwards, necessary instructions will be issued to the Zonal Officers to deposit the same amount, if not already deposited.
9. Having stated the facts, we may now deal with the question which requires consideration in these writ petitions which are:
(a) The prayer of the petitioner regarding the transfer; and
(b) The prayer relating to bringing the employees' provident fund account up-to-date by directing the employer to make up-to-date payments.
As regards transfer, it cannot be denied that the petitioner needs a nearby posting and that the employer is the best person to decide as to where a particular employee should be posted, but it cannot also be denied that exceptions can be made in suitable cases and looking to the peculiar circumstances or situation, the employer may reconsider the transfer of an employee. In the case at hand, the prayer for transfer is resisted on the ground that the performance of the petitioner was not good but was rather detrimental to the interest of the O.S.R.T.C. However, no material has been placed on record regarding the conduct of the petitioner. Though it is stated that the petitioner gives low payment as compared to the other conductors but it has not been pointed out whether the higher income shown by other conductors is on the very same route on which the petitioner's vehicle is operating or on some other routes. Though it is alleged that while posted at Puri, number of G.R. cases have been registered against the petitioner, but no details thereof have been declared. No reason is also assigned as to what prevented the O.S.R.T.C. from bringing on record, if not all, at least some material relating to the aforesaid matters. This apart, it is also, more or less, the admitted position that the petitioner and many members of the staff are not being paid their salary regularly and have to go without any salary for months together. If this is the position, was it not incumbent upon the authorities meaning the O.S.R.T.C. to consider as to how an employee and his family, who was not being paid regular wages for months together, would survive? More so, how such an employee would maintain himself at far off places? It is high-time that the appropriate authorities should apply their mind to these problems and take steps to remedy the malady and in case the authorities honestly look into the question, they may find that in many cases non-payment of salary for months together may be the reason for giving low income on the route and pilferage which, we learn, is rampant in this establishment. Be that as it may, we feel that in the peculiar circumstances of the case, it would be in the interest of justice to direct opposite party No. 1 to consider the petitioner's prayer for his transfer to a place nearby his home town. We order accordingly. We, however, make it clear that our direction should not be construed as one directing retransfer. That question is to be reconsidered by taking all relevant matters into consideration non-payment of salary and how would an employee maintain himself far away from his home town without salary also being a relevant factor.
10. This brings us to the question regarding the irregularity in the provident fund account of the petitioner. As there is an admission of the opposite parties that the employer's share of the deposit has not been made and employees' share towards the same has also not been deposited, we need not further delve into the other factual aspects. Needless to say that the statute, namely, the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 makes it incumbent upon the employer to deposit its share and that of the employees for which necessary deduction can be made from the salary of the employee to the extent of his share. Once the provisions of the said Act are made applicable, such deposits have to be made. Non-deposit leads to consequences enumerated in the statute. As admittedly, the petitioner's account has not been regularised, we direct the employer, within a period of two months from the date of communication of our order, to take steps, if not already taken in the meantime, to make the deposits up-to-date and we direct the Regional Provident Fund Commissioner-opposite party No. 3 to take appropriate and prompt action against those who are responsible for the default/delay in complying with the requirements of the provisions of the Act in accordance with the law.
11. In conclusion, we may say that in case the O.S.R.T.C. has no money and the State does not find it convenient to run the O.S.R.T.C. it is for the State Government to decide as to what is to be done with such a Corporation. But one thing is clear that non-payment of salary on the ground of paucity of funds is not proper nor is it proper to deprive the employees of the benefits available to them under the various provisions of welfare legislation on that count.
12. With the aforesaid observations and directions, both the writ petition are disposed of. There shall be no order as to costs.
P.K. Mohanty, J.
13. I agree.