Orissa High Court
Pradeep Kumar Panda vs State Of Odisha And Others .... Opposite ... on 2 December, 2021
Author: Arindam Sinha
Bench: Arindam Sinha
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.C(OAC) No.912 of 2001
(Through hybrid mode)
Pradeep Kumar Panda .... Petitioner
Mr. B.K.Rout, Advocate
-versus-
State of Odisha and others .... Opposite parties
Mr. R.N.Acharya, Advocate
for S & ME Deptt.
CORAM: JUSTICE ARINDAM SINHA
ORDER
02.12.2021 Order No.
07. 1. Mr. Rout, learned advocate appears on behalf of petitioner and submits, under challenge is termination memo dated 31st March, 2001 whereby his client's employment as Junior Clerk was terminated with immediate effect. He relies on rule 10 in Orissa Civil Service (Rehabilitation Assistance) Rules, 1990 to submit, on appointment, termination can only be as provided therein.
2. He hands up copy of order no.4 dated 11th April, 2001 passed by the Tribunal in the writ petition, before its transfer. Following from said order is reproduced below:-
" Regarding the interim prayer, when it appears that posts are not available, an order to let them continue would Page 1 of 1 // 2 // not be of any help as it would only lead to a situation where they would claim to work but cannot get salary. If they would furnish an undertaking indicating that they are willing to work against any Class-III or Class-IV posts which are required to be manned in the respective circles and for which budget provision is available then the question of adjusting them temporarily in those vacancies may be considered without prejudice to their claims in these applications. Further, I am told that the Non-Formal Education Scheme is being replaced by some other scheme which is to be funded by the Govt. of India. If sanction and funds for such a scheme has been received and some non-teaching class-III or Class- IV posts are sanctioned in connection with this scheme, than these retrenched employees should be considered for adjustment in those posts. While adjusting them the principle to be followed should be the length of service put in by each, & those with longer service being adjusted first. Such adjustment should be in spells of 45 days so as to guard against any possible violation of the O.R.V. Act."
3. He submits further, petitioner cannot be said to have absented himself from work for there to be contention that he would get no pay for period between termination and reappointment on 24th July, 2003, when memo was forwarded to all Inspectors of Schools in the State requesting them to take immediate step for adjustment of retrenched of Junior Clerks, who had been appointed under rehabilitation scheme in their respective circles, according to their seniority and strictly taking into account the initial date of joining.
4. Mr. Acharya, learned advocate appears on behalf of School and Mass Education Department and submits, his client has filed counter as well as additional counter. He refers to annexure-A/3 in the counter and Page 2 of 6 // 3 // submits, the adjustment of retrenched Junior Clerks appointed under the scheme was on terms and conditions given therein and reproduced below:-
"i) If sufficient number of vacancies are not available in any circle for adjustment of retrenched Jr. Clerks, the surplus junior most Jr. Clerks may be adjusted in neighbouring circle.
ii) The period of absence with effect from 1.4.2001 till the date of joining in their new assignment will be treated as no work, no pay.
iii) Necessary orders to this effect may be issued forthwith under intimation to this Department."
Petitioner has not challenged this order. Furthermore, the appointment to adjust the retrenched Junior Clerks made by this order dated 18th July, 2003 was not under the rehabilitation scheme.
5. Perused order-sheet of the Tribunal. Court is satisfied petitioner was diligent in seeking to ventilate his grievance of unjust termination. His position created by the termination was appreciated by the Tribunal on said order no.4 dated 11th April, 2001. Text reproduced above goes to show that the Tribunal made observations on the position that petitioner was put in by the termination. Some options that the State Government might explore in giving relief to petitioner and others similarly situated were mentioned in that order. It cannot be said that thereby there was rejection of the prayer for interim relief or that the claim to relief was wholly rejected.
6. At this final hearing of the case, since transferred and to be dealt as a writ petition, the law must be looked into. The law as it stands Page 3 of 6 // 4 // is that the Rules of 1990 were duly framed. In rule 7 was provided, posts, to which appointment can be made. Rule 10 provides for termination of service. Annexure-1 in the writ petition, being office order dated 13th December, 1999, is the appointment order. Said order clearly says that petitioner was appointed under Rehabilitation Assistance Rules, 1990, but goes on to say that the appointment is purely temporary and shall be terminated at any time without any notice or assigned any reason thereof and will continue temporarily till post of Junior Accountant is filled up on regular basis. The department did not have the power to impose these conditions under the rules. Other pressing administrative exigencies the department may have had but, on invoking the rules to appoint, it was bound thereunder.
7. Annexure-A/3 in the counter is said order dated 18th July, 2003 giving conditions for reappointment, as reproduced above. Pursuant thereto memo dated 24th July, 2003 was issued giving effect to reappointment of petitioner. This reappointment was not made by the rules, has been contended on behalf of the department. There is no corresponding contention regarding how, then, the reappointment was made. But that is beside the point since the termination was illegal. It being so, petitioner, on operation of said order dated 18th July, 2003, cannot be said to have been absent from 1st April, 2001 till his date of reappointment. The reappointment has been termed to be adjustment, by said order. It is not understood how the adjustment was made, under which policy or rule of appointment followed by the Government.
8. Said order dated 18th July, 2003 and memo dated 24th July, 2003 issued pursuant thereto, were made during pendency of the writ petition in the Tribunal. Neither the order nor the memo issued pursuant Page 4 of 6 // 5 // thereto were addressed to petitioner though he got his reappointment thereby. Contention of the department that omission of petitioner to challenge this order or memo issued pursuant thereto, coupled with his acceptance of adjustment giving him reappointment, is fatal to his contention for getting back wages for the period he remained under wrongful termination, is without substance. Action of the Government in issuing said order dated 18th July, 2003, to give rise to contention of fatal omission on part of petitioner is rejected, as challenge of petitioner was already pending and the department cannot urge multiplicity of judicial proceedings.
9. Claim of petitioner for back wages for the period of wrongful termination till time of reappointment by adjustment appears to fulfill all the conditions necessary for Court to direct entitlement and payment. The period that petitioner remained under wrongful termination was on and from 1st April, 2001 till 24th July, 2003. Petitioner approached the Tribunal by this writ petition on 11th April, 2001, the day on which the Tribunal made observations regarding the prayer for interim relief of petitioner. That petitioner remained unemployed in the period and therefore there cannot be mitigation is proved by entries in the order sheet and petitioner's prompt acceptance of his adjustment, to be reappointed.
10. There will be order in the writ petition to give petitioner back wages for the period 1st April, 2001 till 24th July, 2003 at the rate of petitioner then drawing his salary and emoluments, if any, as Junior Clerk appointed under the rules. The aggregate of arrear back wages shall be disbursed to petitioner along with present bank interest on yearly fixed deposit calculated on simple basis for the period from 24th Page 5 of 6 // 6 // July, 2003 till date of payment. In event the payment is not made within six weeks from date of communication of this order, petitioner will be entitled same rate of interest on compound basis with yearly rests, for the period till payment.
11. The writ petition is disposed of.
(Arindam Sinha) Judge Prasant Page 6 of 6