Orissa High Court
State Of Odisha vs Smt. Mamata Manjari Mohanty on 15 May, 2024
ORISSA HIGH COURT : CUTTACK
W.A. No.688 of 2022
In the matter of an Appeal under Article 4 of
the Orissa High Court Order, 1948
read with
Clause 10 of the Letters Patent constituting
the High Court of Judicature at Patna
and
Rule 6 of Chapter-III and Rule 2 of Chapter-VIII
of the Rules of the High Court of Orissa, 1948
***
1. State of Odisha Represented through its Principal Secretary to Government Water Resources Department Bhubaneswar.
2. Engineer-in-Chief Water Resources Department Government of Odisha Bhubaneswar.
3. Superintending Engineer Drainage Circle, Gandarpur Town/District: Cuttack.
4. Executive Engineer Mahanadi Barrage Division At: Gandarpur Town/District; Cuttack ... Appellants (Opposite party Nos.1 to 4 in the Writ Petition).
W.A. No.688 of 2022 Page 1 of 80-VERSUS-
Smt. Mamata Manjari Mohanty
Aged about 53 years
Wife of Iswar Prasad Das
At/P.O. : Teishpur
District : Puri. ... Respondent
(Petitioner in
the Writ Petition).
Counsel appeared for the parties:
For the Appellants : Manoj Kumar Khuntia,
Additional Government Advocate
For the Respondent : Mr. Goutam Kumar Acharya,
Senior Advocate with
M/s. Dr. Besura Das, D.K. Naik,
Adhishree Mishra and
Nikhilesh Barik, Advocates
P R E S E N T:
HONOURABLE CHIEF JUSTICE
MR. CHAKRADHARI SHARAN SINGH
AND
HONOURABLE
MR. JUSTICE MURAHARI SRI RAMAN
Dates of Hearing : 10.04.2024, 19.04.2024 and 22.04.2024
::
Date of Judgment : 15.05.2024
J UDGMENT
MURAHARI SRI RAMAN, J.--
W.A. No.688 of 2022 Page 2 of 80
THE CHALLENGE IN THE INTRA-COURT APPEAL:
Challenge being laid to Judgment dated 17.08.2021 rendered by the learned Single Judge in the writ petition bearing WPC (OAC) No.3077 of 2014 in the matter of an application under Article 226/227 of the Constitution of India, the opposite parties therein aggrieved thereby, preferred this intra-Court appeal beseeching to invoke provisions of Article 4 of the Odisha High Court Order, 1948 read with Clause 10 of the Letters Patent constituting the High Court of Judicature at Patna and Rule 6 of Chapter-III and Rule 2 of Chapter-VIII of the Rules of the High Court of Orissa, 1948, and prayed for grant of the following relief(s):
"Under these circumstances the Appellants most humbly pray that this Hon'ble Court may graciously be pleased to admit this appeal, call for the records and after hearing the parties be pleased to set aside the impugned order dated 17.08.2021 passed by the Hon'ble Single Judge in WPC (OAC) No.3077 of 2014 under Annexure-1 and further be pleased to pass any other order/orders as may be deemed fit and proper;
And for this act of kindness the Appellants shall as in duty bound ever pray."
1.1. Questioning legality of the Office Order of retrenchment dated 29.04.2011 as directed by the Superintending Engineer, Drainage Circle, Cuttack, the respondent approached this Court by way of filing a petition being W.A. No.688 of 2022 Page 3 of 80 W.P.(C) No.14006 of 2011 which came to be disposed of vide Order dated 05.05.2014 with an observation that the petitioner sought to withdraw the writ petition stating that she would move the State Administrative Tribunal.
1.2. Accordingly, the respondent approached the Odisha Administrative Tribunal by way of an application under Section 19 of the Administrative Tribunals Act, 1985, which was registered as O.A. No.3077(C) of 2014.
1.3. After abolition of said Tribunal by virtue of Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) Notification F. No. A- 11014/10/2015-AT [G.S.R.552(E).], dated 2nd August, 2019), the said case having been transferred to this Court, O.A. No. 3077 (C) of 2014 has been re-registered as WPC (OAC) No. 3077 of 2014.
GRIEVANCE OF THE APPELLANTS:
2. Few facts, to avoid prolixity, are recited as they appear from the pleadings.
2.1. The respondent, Nominal Muster Roll employee as Mate (Typist) under the Executive Engineer, Mahanadi Barrage Division, Cuttack, engaged on 21.03.1985, was terminated on 01.03.1989. Industrial Dispute being Case No.256 of 2008 was set up between the Executive W.A. No.688 of 2022 Page 4 of 80 Engineer, Mahanadi Barrage Division, Gandarpur, Cuttack (first party-Management) and Smt. Mamata Manjari Mohanty (second party-workman) alleging violation of the provisions contained in Section 25-F and 25-G of the Industrial Disputes Act, 1947 (for brevity "ID Act"), before the Labour Court, Bhubaneswar, which was subsequently got transferred to the Industrial Tribunal, Bhubaneswar vide Order dated 04.04.2008.
2.2. While the matter was thus pending before the Industrial Tribunal, Bhubaneswar, by virtue of Notification bearing No. 7323, dated 28.02.2009, Government of Odisha took a decision to bring the NMRs, who were engaged prior to 12.04.1993 to the work-charged establishment with effect from 01.03.2009, consequent upon which directions were issued to the Engineer-in-Chief of the Water Resources Department to bring such employees to the work-charged establishment.
2.3. Thereafter an Award dated 24.02.2010 has been made by the learned Industrial Tribunal with the following conclusion:
"8. It may be stated at the cost of repetition that the management has not complied with the mandatory requirements of Section 25F of the Act while terminating the employment of the workman nor did it prove that the termination of employment of the workman was due to her misconduct. Hence, the W.A. No.688 of 2022 Page 5 of 80 action of the management is held to be neither legal nor justified.
9. In view of the discussions made in the foregoing paragraphs, the workman is held entitled to reinstatement in service with 50% back wages. The management is directed to implement the Award within a period of two months hence."
2.4. To implement the terms of aforesaid Award, the Government of Odisha in the Department of Water Resources vide Letter No.LC-I-30/10-- 19021, dated 29.07.2010 instructed the Engineer-in-Chief, Water Resources, Odisha, as follows:
"I am directed to invite reference to the I.D. Case mentioned-above and to say that after careful consideration Government have decided to implement the Award/Order, dated 24.02.2010 passed by the Presiding Officer, Industrial Tribunal, Bhubaneswar in above ID Case by reinstating Smt. Mamata Manjari Mohanty, in service with 50% back wages and thereafter she may be retrenched following the mandatory-statutory provisions.
This has been concurred in by the Law Department vide their UOR No.703/L dated 5.5.2010 and Finance Department vide their UOR No. 383/W-II, dated 20.05.2010.
You are therefore, requested to take immediate necessary follow up action in the matter to avoid further legal complicacy under intimation to this Department for record and reference."W.A. No.688 of 2022 Page 6 of 80
2.5. In pursuance thereof, vide Office Order dated 21.08.2010, the Superintending Engineer, Drainage Circle, Cuttack complied with the aforesaid direction, which is reflected as follows:
"In pursuance with the order of the Hon'ble Labour Court passed vide Order dated 24.02.2010 and subsequent instruction of Government in DoWR, Odisha, communicated in Memo No.19022, dated 29.07.2010 and Engineer-in-Chief, Water Resources, Bhubaneswar Letter No.6592, dated 05.08.2010, Smt. Mamata Manjari Mohanty, Ex-NMR Mate is hereby reinstated in service and allowed to work in Office of the Executive Engineer, M.B. Division, Cuttack until further orders."
2.6. The respondent was, accordingly, reinstated in service and paid 50% of back wages from 01.03.1989 (date of termination from service) to 26.08.2010 (as she joined in service in the Office of Executive Engineer, Mahanadi Barrage Division on 27.08.2010). Subsequent thereto, the Government of Odisha in Department of Water Resources issued Clarification vide Letter No.28219-LC- I-30/2010/WR, dated 10.11.2010 addressing the Engineer-in-Chief, Water Resources, Odisha as follows:
"I am directed to invite reference to your Office Letter No.13984, dated 28.10.2010 in the above noted case and to say that it is clarified here that mandatory direction has not been issued for retrenchment of Smt. Mamata Manjari Mohanty, NMR employee. If her retrenchment is expedient, she may be retrenched strictly following the mandatory statutory provisions as laid down under Section 25 of the Industrial Dispute Act, 1947 under intimation to this Department."W.A. No.688 of 2022 Page 7 of 80
2.7. The Director, Personnel in the Office of the Engineer-in- Chief, Water Resources, Odisha, Bhubaneswar instructed the Superintending Engineer, Drainage Circle, Cuttack vide Memo No.3, dated 01.01.2011 as follows:
"Apropos, I am directed to say that the orders of Government in Department of Water Resources in two fold, but you have simply issued an order for re- engagement of the workman and pay of the back wages leaving her retrenchment.
You are therefore requested to follow the 'mandatory statutory provisions under Section 25 of the ID Act, 1947' and retrench the workman forthwith. Compliance to this effect may please be intimated to all concerned."
2.8. The Superintending Engineer, Drainage Circle, Cuttack vide Office Order No.2032, dated 29.04.2011 directed retrenchment of the respondent with immediate effect as her services was no longer required under the Organisation due to reduction of work load and her retrenchment is considered expedient. As a consequence thereof, Smt. Mamata Manjari Mohanty, the respondent, was also directed to be paid one month's pay in lieu of period of notice and other entitlements, if any, as per provisions under Section 25F of Industrial Disputes Act.
2.9. Said retrenchment Order dated 29.04.2011 is reproduced hereunder:
W.A. No.688 of 2022 Page 8 of 80"Office of the Superintending Engineer, Drainage Cirle, Gandarpur, Cuttack-3 Office Order No. 2032 Dated, 29.04.2011 In pursuance with the Engineer-in-Chief, Water Resources, Odisha, Bhubaneswar Letter no.1, dated 01.01.2011 and as per Letter No.4583, dated 14.12.2010 of the Executive Engineer, Mahanadi Barrage Division, Cuttack, Cuttack, Smt. Mamata Manjari Mohanty, NMR Mate is hereby retrenched with immediate effect as her services is no longer required under this Organisation due to reduction of work load and her retrenchment is expedient. Smt. Mohanty shall be paid one month pay in lieu of one month notice and other entitlements if any as per provisions under Section 25-F of Industrial Disputes Act.
Sd/-
(M.R. Mishra) Superintending Engineer, Drainage Circle, Cuttack.
Memo No.2033 Dated 29.04.2011 Copy to Smt. Mamata Mohanty, NMR Mate through the Executive Engineer, Mahanadi Barrage Division, Cuttack for information and necessary action."
2.10. On the very next date, i.e., 30.04.2011, the Executive Engineer, Mahanadi Barrage Division, Gandarpur, Cuttack has made arrangements for requisite payment towards one month's advance pay with compensation amount:
"Office of the Executive Engineer, Mahanadi Barrage Division, Cuttack W.A. No.688 of 2022 Page 9 of 80 No. / Dated, the To Smt. Mamata Manjari Mohanty, NMR-Mate, Mahanadi Barrage Division, Cuttack.
(Through S.D.O., M. B. Sub-Division No. III) Sub.: Payment of Notice Pay and Compensation amount Madam, Pursuant to Memo No. 2033 Dated 29.04.2011 of Superintending Engineer, Drainage Circle, Cuttack to your address and under Clause (a) and (b) of Section 25-F of Industrial Disputes Act, 1947 a sum of Rs.4,326/- (Rupees Four thousand three hundred twenty-six) only as detailed below is paid to you in shape of cheque bearing No. 875312 date 30.4.2011.
Details of Payment
1. One month advance pay for May 2011 in lieu of notice Rs.2,781.00
2. Compensation amount Rs.1,545.00 Total: Rs.4,326.00 Yours faithfully, Executive Engineer, Mahanadi Barrage Division Gandarpur, Cuttack-3."
2.11. Said retrenchment Order dated 29.04.2011 was assailed before this Court which led to registering petition as W.P.(C) No.14006 of 2011. This Court passed the following Order on 05.05.2014:
W.A. No.688 of 2022 Page 10 of 80"Heard.
Having regard to the averments made in paragraphs 8 and 9 of the counter affidavit filed by opposite party No.2 & 3 (Mahanadi Barrage Division, Gandarpur, Cuttack-3 and Superintendent Engineer Drainage Circle Gandarpur, Cuttack), learned counsel for the petitioner wants to withdraw the writ petition stating that he shall move the State Administrative Tribunal.
In view of such submission the writ petition is disposed of as withdrawn."
2.12. Availing such liberty, the respondent moved the Odisha Administrative Tribunal by way of filing application under Section 19 of the Administrative Tribunals Act, 1985, being registered as O.A. No.3077(C) of 2014, and subsequently the said application got transferred to this Court. Said case got disposed of by a learned Single Judge vide Judgment dated 17.08.2021 with the following observation and direction:
"12. In view of such position, the contention raised by Mr. M.K. Mohanty, learned counsel for the petitioner, that the order of retrenchment dated 29.04.2011 under Annexure-10 and payment of wages in lieu of one month notice of retrenchment, which was offered on 30.04.2011 under Annexure-11, being not simultaneously one, cannot be construed as full compliance of Section 25-F of the Act, get ample corroboration from the materials available on record, and as such, has sufficient force. Thereby, in view of the proposition of law laid down by the apex Court, as discussed above, this Court holds that the W.A. No.688 of 2022 Page 11 of 80 impugned order of retrenchment cannot be allowed to stand, since there was sheer violation of the provisions contained under Section 25-F of the Act.
13. So far as non-compliance of the provisions contained in Section 25-G of the Act is concerned, admittedly the petitioner was engaged on 21.03.1985 as NMR Mate (Typist) under the Executive Engineer, Mahanadi Barrage Division, Cuttack. Though she was retrenched from service on 01.03.1989, by virtue of the Award dated 24.02.2010 passed by the Industrial Tribunal in I.D. Case No. 256 of 2008, she was reinstated in service with 50% back wages. In the meantime, in terms of the Resolution passed by the Government, some of the juniors to the petitioner were brought to the work-charged establishment, discriminating the petitioner though she was continuing. Thereafter, though the Superintending Engineer, vide Letter dated 30.09.2010 intimated the Engineer-in-Chief that the juniors to the petitioner were continuing in service, without considering the same, the order of retrenchment was passed in Annexure-10 dated 29.04.2011 on the basis of instructions issued by the Government, on the ground that due to reduction of work load her retrenchment was expedient. In that case, the provisions contained under Section 25-G were to be followed scrupulously. Meaning thereby, the junior most person had to go allowing the senior to continue. Though the petitioner had been appointed prior to 12.04.1993 and she was a senior most NMR, she was to be brought over to the work-charged establishment and subsequently to the regular establishment, instead of directing her to face retrenchment due to reduction of work load.W.A. No.688 of 2022 Page 12 of 80
Thereby, the provisions contained under Section 25- G have not been complied with. Consequentially, on that count also the order of retrenchment under Annexure-10 dated 29.04.2011 is also contrary to the provisions of the Industrial Disputes Act, 1947. This view gets ample support from the judgments of the apex Court in In-charge Government Hide Flaying Centre and Gauri Shanker, mentioned supra. [Incharge Government Hide Flaying Centre Vrs. Rama Ram and another, (2003) 9 SCC 163; and Gouri Shanker Vrs. State of Rajasthan, (2015) 13 SCC 754].
14. In view of the factual matrix and propositions of law, as discussed above, this Court is of the considered view that the order dated 29.04.2011 in Annnexure- 10 retrenching the petitioner from service with immediate effect cannot sustain in the eye of law, as the same has been passed without complying the provisions contained under Sections 25-F and 25-G of the Industrial Disputes Act, 1947. Consequentially, the order dated 29.04.2011 in Annexure-10 is liable to be quashed and hereby quashed. The opposite parties are directed to reinstate the petitioner in service and to bring over her to the work charged establishment forthwith, from the date her juniors have been brought over to the work charged establishment, in pursuance of the notifications dated 28.02.2009 and 19.06.2009 issued by the Government, and then bring over her to the regular establishment forthwith, if her juniors have been brought over to the regular establishment. Further, keeping in view the fact that the petitioner has been retrenched without following the prescribed procedure and, as such, the fault lies W.A. No.688 of 2022 Page 13 of 80 with the employer for such illegal retrenchment, and also being aware of the fact that the petitioner has not discharged her duty since 29.04.2011, this Court directs the opposite parties to pay 50% wages to the petitioner with effect from 29.04.2011 till she is reinstated in service. The above exercise shall be completed within a period of four months from the date of passing of this judgment.
15. In the result, the writ petition is allowed. However, there shall be no order as to costs."
2.13. Aggrieved, the appellants-functionaries of State of Odisha sought to question the propriety and legality of the Judgment dated 17.08.2021 of the learned Single Judge by contending that there was failure of appreciation that the respondent had worked as NMR Mate (Typist) with effect from 21.03.1985 to 31.05.1985, 11.06.1985 to 20.06.1985 and 01.07.1985 to 10.11.1985 for a total period of 215 days under the defunct Mahanadi Barrage Division No.l, Cuttack. She also worked for 31 days from 01.05.1986 to 31.05.1986 under the defunct Mahanadi Barrage Division No.II, Cuttack and on her own volition left the job/engagement from 01.06.1986 onwards from her work place without informing the authority concerned. Thus, she had not worked continuously under the management for a period of 240 days in one calendar year till she remained absent from her duty. Hence there was no continuity of service after 01.06.1986 and till she was reinstated in W.A. No.688 of 2022 Page 14 of 80 service with effect from 01.03.1989 as per Award dated 24.02.2010 of the Industrial Tribunal.
2.14. It is further case of the appellants before this Court in this intra-Court appeal that the terms of Award dated 24.02.2010 of the Industrial Tribunal was duly complied with by reinstating the respondent and making payment of 50% of the back wages and, as the continuance of the respondent was subject to availability of work load the respondent was retrenched.
2.15. It is urged by the appellants that the impugned Judgment/Order is not sustainable in view of the fact that Section 25-F of the ID Act was complied with prior to retrenchment of the respondent. It is emphatically pointed out that after compliance of requirements envisaged under Section 25-F of the ID Act, the retrenchment of the respondent has been made effective.
2.16. The submission of the appellants has been amplified by explaining that as required under Section 25-F of the ID Act, the order of retrenchment had been communicated to the respondent with the amount of one month's pay in lieu of one month notice coupled with the amount of compensation. However, due to absence of the respondent from her duty without leaving any information in the office on 30.04.2011, the said amount could not be paid to her. But, subsequently, the W.A. No.688 of 2022 Page 15 of 80 retrenchment notice and the benefits had been sent to her permanent address by Registered Post, which was returned with a remark "Refused to receive". Thus, it is error apparent on the face of the Judgment of the learned Single Judge holding that the Order dated 29.04.2011 indicating retrenchment of the respondent from service with immediate effect cannot be sustained in the eye of law. Inasmuch as the Order of retrenchment was passed adhering to the requirements of provisions contained in Section 25-F and Section 25- G of the ID Act, the impugned Judgment is not tenable.
REPLIES OF THE RESPONDENT AND COUNTER REPLY OF THE APPELLANTS IN THE WRIT APPEAL:
3. Notice in writ appeal being issued vide Order dated 22.08.2022, the respondent appeared through counsel and accepted notice and filed response by way of counter/objection on 21.09.2022.
3.1. It has been candidly stated by the respondent by swearing affidavit that in compliance of Award of Industrial Tribunal dated 24.10.2010 in ID Case No.256 of 2008, after issuance of the reinstatement order the respondent joined in service on 27.08.2010 and received her back wages @ 50% as directed by the Tribunal for the period from 01.03.1989 to 26.08.2010 and started working as usual in the Office of Appellant No.4- W.A. No.688 of 2022 Page 16 of 80
Executive Engineer, Mahanadi Barrage Division, Gandarpur as NMR-Mate.
3.2. The respondent after being reinstated in service made a representation to the appellant No.3-Superintending Engineer to bring her to work-charged establishment as "NMR-Mate" in view of the fact that the employees junior to her have already been brought over to the work- charged establishment pursuant to the Notification No.7323, dated 28.02.2009 and such NMR employees who were brought to the work-charged establishment were employed prior to 12.04.1993, which is the cut-off date.
3.3. The concerned authority directed for retrenchment of the respondent on 29.04.2011, but she was issued with cheque dated 30.04.2011 showing one month's pay in lieu of notice period and amount of compensation after retrenchment having taken place. Such an action is in contravention of requirement under Section 25-F of the ID Act. Nevertheless, it is asserted that "the said amount was never received by the respondent as the said amount was not paid on the date of retrenchment".
3.4. Said action of the authorities, being questioned in the subject writ petition, the learned Single Judge leaned in favour of the respondent and issued certain directions which being not complied with, contempt petition being W.A. No.688 of 2022 Page 17 of 80 CONTC No.2909 of 2022 was pursued before said Judge. Contempt petition was disposed of vide Order dated 29.04.2022 with the direction to comply the terms of Judgment within a period of four weeks from the date of production of certified copy of the order.
3.5. Enclosing Office Order bearing File No. MBD-08-L-OA-
01/2014-3077(C)/2325, dated 07.06.2022 passed by the Superintending Engineer, Mahanadi Barrage Division, Cuttack as Annexure-N to the counter/objection, the respondent has laid emphasis on the following operative portion of said Order:
"*** Whereas, the petitioner does not file an application along with the certified copy of the order before the opposite parties in due time i.e. one week as directed by the Hon'ble High Court vide their Order dated 29.04.2022 rather the said was submitted on 19.05.2022 through registered dak as received on 20.05.2022 by the Contemnor No.3 and hence the opposite party fails to comply the Order of Hon'ble High Court in time.
Pursuant to the Order dated 17.08.2021 of the Hon'ble High Court of Orissa, the opposite parties prefer to file an Writ Appeal before the Division bench which was duly approved by Law Department on dt.06.04.2022 and accordingly an writ appeal was also filed before the Hon'ble High Court of Orissa vide No. W.A. 688 of 2022 along with the Interim application on dated 12.05.2022.W.A. No.688 of 2022 Page 18 of 80
In consideration of above facts and positions of law, the Order of Hon'ble High Court of Orissa dated 17.08.2021 passed in W.P.C. (OAC) No. 3077/2014 will be considered after the Judgment of the W.A. No. 688/2022.
The prayer of the petitioner dated 12.05.2022 as received on dated 20.05.2022 is disposed of accordingly."
3.6. To support the justification of direction contained in the Judgment of the learned Single Judge dated 17.08.2021 in WPC (OAC) No. 3077 of 2014, it is submitted by the respondent that the juniors to the respondent have been placed under the work-charged establishment with effect from 20.07.2009 based on the cut-off date as decided by the Government, i.e., 12.04.1993.
3.7. The respondent sought to place reliance on the Letter bearing Memo No.17229/WR, dated 19.06.2009, which runs thus:
"Government of Orissa Department of Water Resources No. FE-IV (NMR)-30/08 _____/WR, dated the From:
Sri S.C. Mahapatra, IAS Commissioner-cum-Secretary To The E.I.C, WR Sub: Regularisation of NMR employees to work-charged employees under W.R. Department.W.A. No.688 of 2022 Page 19 of 80
Sir, After careful consideration, Government have been pleased to bring over NMR employees of Department of Water Resources to work-charged Establishment (Recruited prior to 12.04.1993) w.e.f. 01.03.2009; vide Notification No.7323, dated 28.02.2009.
E.I.C., WR is to issue detail notification after, detail scrutiny of the date of birth, name, present place of posting and duty particulars. Following instructions may please be followed before issue of the notification:
1. Only NMRs joined before 12.04.1993 will be eligible.
2. NMRs-in respect of whom cases are pending will not be considered unless cases are disposed off and they are found eligible.
3. NMRs who are over-aged, irregular and against whom allegations are pending will not be considered to be work-charged employees.
4. It was found that in some projects and offices, there are large number of NMRs without corresponding work load. Hence, the EIC, WR will make a detailed analysis and deploy excess manpower to other areas during/before making them work-charged employees.
5. If NMRs do not agree for deployment, their cases to become work-charged employees, should not be entertained.W.A. No.688 of 2022 Page 20 of 80
6. Until sufficient budget provision is made revised salary/wages should not be given/drawn for work-
charged employees.
7. The Service Conditions of brought over work-charged employees will be regulated as per the provisions laid down in (Appointment und Conditions of Service) Instructions, 1974.
The EIC, WR is directed to adhere to the above conditions strictly and satisfy himself that no irregular appointment is made to work-charged establishment. Action taken in this regard may be intimated to Government from time to time.
Yours faithfully, Sd/-
Commissioner-cum-Secretary Memo No. 17229/WR, dated 19/06/2009.
Copy forwarded to CE, MI/Director, GWS&I for favour of information and necessary action. They are requested to bring over NMR employees to work- charged employees under M.I./GWS&I and issue notification.
Sd/-
FA-cum-Addl. Secretary"
3.8. It, therefore, emanates from the reply of the respondent that she was aggrieved by Order of retrenchment from service dated 29.04.2011 as the appellants failed to adhered to necessary compliance of Section 25-F of the ID Act, i.e., the Order of retrenchment ought to be issued W.A. No.688 of 2022 Page 21 of 80 simultaneous with the payment of one month's wage and amount of compensation.
3.9. It is further plea of the respondent that the specious plea that there was less work load in the Organisation which justified retrenchment cannot hold water inasmuch as the NMR employees, who joined the service later to the respondent as NMR-Mate, have been brought over to the work-charged establishment in consonance with what has been spelt out in Letter dated 19.06.2009.
4. A rejoinder affidavit has come to be filed by the appellants on 10.07.2023, whereby it has been brought to the notice that the respondent was terminated from service during 1989 and after a long lapse, she had taken recourse under the ID Act during 2008. However, the Award dated 24.02.2010 passed in ID Case No.256 of 2008 by the Industrial Tribunal was complied with and such compliance was subject to stipulation that after re-engagement, the respondent was to be terminated along with all terminal benefits, because of reduced work load in the Organisation and there being non-availability of new project. In view of the above, the retrenchment order was issued in favour of the respondent in compliance of provisions of Section 25-F and Section 25-G of the ID Act.W.A. No.688 of 2022 Page 22 of 80
4.1. The respondent remained absent at the work site/office on and after 30.04.2011 and therefore, the retrenchment notice could not be served and payment of benefits on account of termination could not be made. Later, the Order of retrenchment as well as the cheque showing payment due was sent to the permanent address of the respondent, which she refused to receive.
4.2. Strongly objecting to the averments of the respondent, it is submitted by the appellants that there being no new project work available, there was no necessity for the Organisation to continue with the services of the respondent; otherwise, it would affect adversely the financial condition of the State exchequer. Refuting, therefore, the appellants urged that the employees who joined later to the respondent were continuing in the service and such employees, who were stated to be continuing, could not be said to have stood on similar footing, because the respondent left the job since 1989 of her own volition. It is further submitted that when the respondent was never removed from the service during 1989 and left the service due to reason best known to her, the question of claiming parity with similarly situated person does not arise.
HEARING OF THE WRIT APPEAL:W.A. No.688 of 2022 Page 23 of 80
5. This matter was on board on 10.04.2024, 19.04.2024 and 22.04.2024. Counsel for both the sides advanced arguments citing that short point involved in the present matter is whether it can be treated as sufficient compliance of requirement under Section 25-F of the ID Act whereas the Order of termination from service bore the date 29.04.2011 and the cheque showing one month's wage in lieu of period of notice and amount of compensation being dated 30.04.2011. The pleadings being completed, this Court took up the matter for hearing and heard Sri Manoj Kumar Khuntia, learned Additional Government Advocate and Sri Goutam Kumar Acharya, learned Senior Advocate along with learned Advocate for the respondent.
ARGUMENTS ADVANCED BY THE COUNSEL FOR THE RESPECTIVE PARTIES:
6. Learned Additional Government Advocate for the appellants, Sri Manoj Kumar Khuntia, advanced his submission by stating that while the notice of retrenchment bears the date "29.04.2011" and the amounts due being shown to have been drawn by way of cheque on the next day, i.e., 30.04.2011, for such procedural defect it could not have been held by the learned Single Judge to be fatal for the purpose of ascertaining compliance of stipulation envisaged under Section 25-F of the ID Act.W.A. No.688 of 2022 Page 24 of 80
6.1. Relying on Bharat Sanchar Nigam Limited Vrs. Bhurumal, (2014) 7 SCC 177 = AIR 2014 SC 1188, it is submitted by the learned Additional Government Advocate that the reinstatement cannot be considered to be automatic, even if there is infraction in carrying out the terms of Section 25-F of the ID Act.
6.2. It is further argued by Sri Manoj Kumar Khuntia, learned Additional Government Advocate that the respondent was paid her dues in compliance of the Award passed in I.D. Case No.256 of 2008 by the Industrial Tribunal. In absence of any specific instance neither in the writ petition nor in the writ appeal that any junior to the respondent has been brought over to the work-charged establishment or the regular establishment, on presumptive assumption relief could not have been directed to be extended to her. On the other hand, the learned Additional Government Advocate laid emphasis on the named persons as at Ground No.(h) of the writ appeal to contend that though they have joined in service prior to the respondent, they are not brought over to the work-charged establishment till date.
6.3. It is further emphasised that when the seniors of the respondent have not been brought over to the work- charged establishment and they are continuing as NMR employees, there was no scope for the learned Single W.A. No.688 of 2022 Page 25 of 80 Judge to issue direction to bring the respondent to the work-charged establishment in pursuance of the Notifications dated 28.02.2009 and 19.06.2009 issued by the Government of Odisha and pay 50% back wages to her with effect from 29.04.2011 till she would be reinstated in service as directed. Nonetheless, it has been admitted by the learned Additional Government Advocate that certain juniors have been brought over to the work-charged establishment in view of directions of this Court in their respective cases.
6.4. Hence, it is strenuously argued by the learned Additional Government Advocate that the learned Single Judge has committed a grave error of law in directing to bring the respondent to the work-charged establishment and thereafter to the regular establishment as also to pay her 50% of wages with effect from 29.04.2011.
6.5. It has also been urged by the learned Additional Government Advocate that the retrenchment of the respondent after reinstatement in 2010 in compliance of Award of the Industrial Tribunal is not without any reason. For mere one day gap between the Order of retrenchment and issue of cheque showing dues could be said to have been violation of mandate of Section 25- F. The learned Single Judge could have appreciated that the respondent instead of approaching this Court invoking provisions of Article 226/227 of the W.A. No.688 of 2022 Page 26 of 80 Constitution of India was required to avail alternative remedy to question the action of the authorities concerned under Section 25-F of the ID Act.
6.6. Advancing his argument further it is stated by learned Additional Government Advocate that contentious issue has been raised by the counsel for the respondent alleging non-adherence to the provisions of Section 25-F of the ID Act in its right earnest and, on the plea that the Order of termination and the cheque being not at the same time, the Order of retrenchment suffers infirmity in law. Therefore, objection as to maintainability of writ petition has been raised by Sri Manoj Kumar Khuntia, learned Additional Government Advocate by contending that the learned Single Judge ought not to have entertained the writ petition questioning the Order of retrenchment passed under Section 25-F of the ID Act as there is availability of efficacious alternative remedy to challenge said order. In the garb of seeking to regularise her service in the work-charged establishment by reinstating in service fixing seniority, the respondent could not have assailed the Order of retrenchment before the Odisha Administrative Tribunal to consider the effect of Section 25-F of the ID Act.
6.7. Winding up his arguments, the learned Additional Government Advocate made fervent prayer to allow the writ appeal.
W.A. No.688 of 2022 Page 27 of 807. The learned Advocate(s) appearing for the respondent vehemently objected to such prayer of the learned Additional Government Advocate and submitted that apparent flaw in compliance of Section 25-F of the ID Act does not inhibit scope of writ Court to grant appropriate relief to workman. The latent defect in the manner of retrenchment of the respondent, NMR employee, being fatal for very sustenance of the Order dated 29.04.2011, the respondent was liable to be reinstated in service. To countenance his submission that if the respondent was required to be retrenched forthwith, i.e., 29.04.2011, she had to be paid the wages/salary at the same time when she was asked to go and payment shown to have been sent to the residential address of the respondent on the subsequent date, i.e., 30.04.2011 would not protect the action of the authority concerned, the learned counsel referred to National Iron and Steel Co. Ltd. Vrs. State of West Bengal, AIR 1967 SC 1206; Syed Azam Hussaini Vrs. Andhra Bank, AIR 1995 SC 1352; Incharge Government Hide Flaying Centre Vrs. Rama Ram, (2003) 9 SCC 163 and Gouri Shanker Vrs. State of Rajasthan, (2015) 13 SCC 754.
7.1. Next plank of argument of the learned Advocate(s) for the respondent was that this Court taking into view the stand taken by the authorities of the Mahanadi Barrage Division, Gandarpur, Cuttack-3 in their counter affidavit W.A. No.688 of 2022 Page 28 of 80 in W.P.(C) No.14006 of 2011, wherein the very retrenchment Order dated 29.04.2011 was questioned, and considering the submission of the respondent has allowed withdrawal of the writ petition. Therefore, the matter was carried to the Odisha Administrative Tribunal and consequent upon abolition of said Tribunal the Original Application, has been converted to writ application before this Court. Therefore, the objection of the Additional Government Advocate at this distance of time is unwarranted and unwholesome.
7.2. On merit of the matter, the learned counsel for the respondent submitted that on the earlier occasion when the retrenchment order was being assailed before the Industrial Tribunal, the authorities have shown to have complied with the terms of Award passed. Having allowed the respondent to join her duty on 27.08.2010 in the Office of Executive Engineer, Mahanadi Barrage Division, the authorities should not have and could not have retrenched her within few months thereafter with vague plea of reduced work load, whereas it has been admitted by the appellant No.3-Superintending Engineer vide Letter No.4823, dated 30.09.2010 addressed to the Engineer-in-Chief, appellant No.2, that "taking into account the date of engagement of Smt. Mohanty as 21.03.1985, it is observed that number of workmen in W.A. No.688 of 2022 Page 29 of 80 the category of NMR-Mate are continuing in service who are junior to Smt. Mohanty".
7.3. When the respondent was retrenched in 1989, there was non-compliance of provisions of Section 25-F of the ID Act and the consequence of such action of the authority was found to be illegal by the Industrial Tribunal. Again in 2011 when the retrenchment Order dated 29.04.2011 was passed, there has been infraction in compliance of mandatory requirement of Section 25-F of the ID Act. This being glaring on the face of the record and not disputed by the appellants, in absence of any disputed fact for adjudication, this writ petition is maintainable.
7.4. The learned senior counsel for the respondent has submitted that when there is no factual dispute as regards the date of Order of retrenchment (29.04.2011) and the cheque alleged to have been drawn in connection with compliance of requirement of Section 25-F of the ID Act (30.04.2011), and the issue posed for adjudication of this Court in the present case was pure question of law, the learned Single Judge has rightly exercised discretionary power vested under Article 226/227 of the Constitution of India. Hence, the Judgment dated 17.08.2021 does not warrant any indulgence.
W.A. No.688 of 2022 Page 30 of 80CONSIDERATION OF RIVAL CONTENTIONS AND REASONS FOR THE DECISION:
8. This Court considered the rival submissions canvassed on behalf of the parties and perused the record.
8.1. Undisputed facts emanate from the pleadings are that:
i. The terms of Award dated 24.02.2010 of the Industrial Tribunal in connection with ID Case No.256 of 2008, whereby non-compliance of requirement of provisions contained in Section 25- F of the ID Act has been adjudicated, being complied with, the respondent, NMR-Mate (Typist), was not only reinstated in her service, but was paid 50% of the back wages from 01.03.1989 (date of retrenchment) to 26.08.2010 (day preceding joining on reinstatement) as directed. Accordingly, the respondent joined on 27.08.2010.
ii. While discharging her duty as such under the Executive Engineer, Mahanadi Barrage Division, Cuttack, the respondent was retrenched with effect from 29.04.2011, being found to be surplus inasmuch as there was reduction in work load in the Organisation, and cheque dated 30.04.2011 representing dues towards one month's notice and compensation amount was drawn in her favour.W.A. No.688 of 2022 Page 31 of 80
The version of the appellants finds place at paragraph 5 of the writ appeal shows as follows:
"5. *** as per Section 25-F of the ID Act which states that surplus employees can be terminated with payment of one month pay in lieu of one month's notice, the order of respondent had been communicated to her with the amount of one month's pay in lieu of one month notice and compensation amount. It is pertinent to mention that since the respondent was not attending the office, the said retrenchment order as well as the cheque was sent to her permanent address which returned with a remark 'Refused to receive'."
iii. This factual aspect remained uncontroverted in the counter/objection of the respondent. The objection as set out in the counter filed on 21.09.2022 in this writ appeal by the respondent at paragraph 15 reflects as follows:
"15. That though the respondent was retrenched with immediate effect on 29.04.2011 but she was paid one month pay in lieu of notice period only after retrenchment having taken place on 29.04.2011 and payment made on 30.04.2011 which was directly in contravention of provision of Section 25-F of the ID Act, 1947. However, the said amount was never received by the respondent as the said amount was not paid on the date of retrenchment."W.A. No.688 of 2022 Page 32 of 80
8.2. On the aforesaid factual aspects, contentions before the learned Single Judge raised by the respondent-writ petitioner were inter alia as follows:
a) that as she was engaged prior to 12.04.1993, i.e., the cut-off date fixed in the Resolution dated 15.05.1997 of the Finance Department floating "Scheme for absorption of NMR/DLR/Job-Contract workers under Regular Establishment" and the Superintending Engineer, vide Letter dated 30.09.2010, intimated the Engineer-in-Chief that the NMRs who were juniors to the her were continuing in service, the respondent-writ petitioner was entitled to be brought over to the work-charged establishment and, thereby she was required to be allowed to continue in service.
b) that some of the juniors to the petitioner, having been brought over to the regular establishment, she should have been brought over to the regular establishment.
c) that according to clause (b) of Section 25-F at the time of retrenchment the workman should be paid compensation, which shall be equivalent to 15 days' average pay for every completed year of continuous service. The appellants have computed only Rs.1,545/- as compensation. So far as W.A. No.688 of 2022 Page 33 of 80 retrenchment due is concerned, a cheque bearing No.875312 dated 30.04.2011 showing amount of Rs.4,326/- has been drawn, but the respondent did not accept the same. Though the order of retrenchment was passed on 29.04.2011, one month's due in lieu of notice, as contemplated under Section 25-F, was alleged to have been offered on 30.04.2011, and, the impugned Order of retrenchment cannot be held to be tenable in the eye of law.
d) that as per the provisions contained under Section 25-G of the ID Act the employer shall ordinarily retrench the workman, who was the last person to be employed in the category, unless for reasons to be recorded the employer retrenches any other workman. As admitted in Letter dated 30.09.2010 of the Superintending Engineer, Drainage Circle, Cuttack, a number of junior workmen were working in the establishment, so the norm of "Last Come, First Go" as set forth in Incharge Government Hide Flaying Centre Vrs. Rama Ram, (2003) 9 SCC 163 has not been followed, which leads the order of retrenchment vulnerable for being violative of the provisions contained under Section 25-G of the ID Act.
W.A. No.688 of 2022 Page 34 of 808.3. Before this Court, during the course of hearing Sri Manoj Kumar Khuntia, learned Additional Government Advocate did accept the position that there was one day gap between the Order of retrenchment and drawing of cheque indicating wage in lieu of one month's notice and amount of compensation, but submitted that even though there is violation of provisions of Section 25-F and Section 25-G of the ID Act, the reinstatement with 50% back wages could not have been considered as automatic consequence thereof in view of catena of decisions of Hon'ble Supreme Court.
ANALYSIS AND DISCUSSION REGARDING VIOLATION OF SECTION 25-F OF THE ID ACT:
9. With the aforesaid backdrop, counsel for both the sides conceded to argue on the point whether the gap between passing of the Order of retrenchment and issue of cheque would be fatal for very sustenance of the Order of retrenchment.
9.1. Sri Manoj Kumar Khuntia, learned Additional Government Advocate placing reliance on the decision rendered by the Hon'ble Supreme Court of India in the case of Bharat Sanchar Nigam Limited Vrs. Bhurumal, (2014) 7 SCC 177 = AIR 2014 SC 1188, submitted that technical niceties cannot be determinative factor for consideration of essentials of Section 25-F of the ID Act. When there is substantial compliance of provisions of W.A. No.688 of 2022 Page 35 of 80 Section 25-F of the ID Act, particularly so when the Order of retrenchment and the cheque though bear dates 29.04.2011 and 30.04.2011 respectively, both being sent to the permanent residential address of the respondent, as she was found absent in the office, it cannot be said that there was contravention of requirement of Section 25-F of the ID Act, so as to construe the Order of retrenchment as invalid.
9.2. On the contrary, learned counsel for the respondent submitted that in view of Syed Azam Hussaini Vrs. Andhra Bank Ltd., 1995 Supp (1) SCC 557 = AIR 1995 SC 1352, as admittedly pay for the month of May, 2011 in lieu of notice was not paid at the time of such retrenchment, the provisions of Section 25-F of the ID Act cannot be said to have been complied with. Therefore, the Judgment of learned Single Judge cannot be said to have committed any error in law.
9.3. It may be worthwhile to refer to relevant statutory provisions which weighed the learned Single Judge to come to conclusion that the gap between the Order of retrenchment and purported payment of dues contemplated under Section 25-F of the ID Act would not save the action of the authorities need to have reference, which stand as follows:
W.A. No.688 of 2022 Page 36 of 80"Chapter-I Preliminary ***
2. Definitions.--
In this Act, unless there is anything repugnant in the subject or context,--
*** (oo) 'retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include--
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the on-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill-health;
*** W.A. No.688 of 2022 Page 37 of 80
(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person--
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison, or
(iii) who is employed mainly in a managerial or administrative capacity, or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
*** Chapter V-A Lay-Off and Retrenchment W.A. No.688 of 2022 Page 38 of 80 25-F. Conditions precedent to retrenchment of workmen.--
No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until--
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice:
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.
*** 25-G. Procedure for retrenchment.--
Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the W.A. No.688 of 2022 Page 39 of 80 employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman."
9.4. Cognizance of the expression "the workman has been paid, at the time of retrenchment, compensation"
employed in clause (b) of Section 25-F of the ID Act is taken by this Court.
9.5. A Constitution Bench of the Hon'ble Supreme Court of India in Collector of Central Excise, Vadodra Vrs. Dhiren Chemical Industries, AIR 2002 SC 453 = (2002) 2 SCC 127, interpreting the presence of the words "has already been paid" in exemption notification has been pleased to make following observation:
"An exemption notification that uses the said phrase applies to goods which have been made from duty paid material. In the said phrase, due emphasis must be given to the words 'has already been paid'. For the purposes of getting the benefit of the exemption under the notification, the goods must be made from raw material on which excise duty has, as a matter of fact, been paid, and has been paid at the 'appropriate' or correct rate. Unless the manufacturer has paid, the correct amount of excise duty, he is not entitled to the benefit of the exemption notification."
Bearing in mind such conceptual understanding of "has already been paid", it can be construed that Section 25- W.A. No.688 of 2022 Page 40 of 80 F of the ID Act having used the words "has been paid", the amount of compensation is required to be seen to have actually been paid "at the time of retrenchment".
9.6. Having regard to said provisions contained in Section 25-F of the ID Act, in Syed Azam Hussaini Vrs. Andhra Bank Ltd., 1995 Supp (1) SCC 557 (paragraph 12) = AIR 1995 SC 1352, it has been observed as follows:
"12. There is one more hurdle in the path of the respondent-Bank. It cannot be disputed that the appellant had completed 240 days of service since he had joined duty on 06.04.1970 and his services were terminated on 02.01.1971. The appellant was a 'workman' for the purpose of Section 2(s) of the Industrial Disputes Act, 1947 since he was employed in the clerical grade with the respondent-Bank which is an "industry"
under Section 2(j) of the Industrial Disputes Act, 1947. The termination of appellant's services was, therefore, retrenchment under Section 2(oo) of the Industrial Disputes Act, 1947 and it could be done only in accordance with the provisions contained in Section 25-F of the Industrial Disputes Act, 1947.
In Krishna District Coop. Marketing Society Ltd. Vrs. N.V. Purnachandra Rao, (1987) 4 SCC 99, this Court has construed the provisions of Chapter V- A of the Industrial Disputes Act, 1947 and Sections 40 and 41 of the Act and has held that if the employees are 'workmen' and the Management is an 'industry' as defined in the Industrial Disputes Act and the action taken by the W.A. No.688 of 2022 Page 41 of 80 Management amounts to 'retrenchment' then the rights and liabilities of the parties are governed by the provisions of Chapter V-A of the Industrial Disputes Act and the said rights and liabilities may be adjudicated upon and enforced in proceedings before the authorities under sub-sections (1) and (3) of Section 41 of the Act. In that case proceedings had been initiated in the form of appeal filed under Section 41 of the Act before the Authority and it was held that since the orders for termination of services of the employee amounted to retrenchment and had been passed without complying with Section 25-F of the Industrial Disputes Act, the order of the Authority setting aside the said orders of termination could be affirmed in view of Section 25-F of the Industrial Disputes Act. This Court further held that it is open to the Authority under Section 41 of the Act to determine whether Section 25-F and Section 25-G of the Industrial Disputes Act were complied with or not and to set aside the orders of termination and to grant appropriate relief if it is found that there was non- compliance with Sections 25-F and 25-G of the Industrial Disputes Act.
Applying the said decision to the facts of the present case it can be said that since the appellant was a workman and the respondent-Bank is an industry under the Industrial Disputes Act the action taken by the respondent-Bank in terminating the services of the appellant amounts to 'retrenchment' and since the appellant had worked continuously for more than 240 days such retrenchment could be done only in accordance with provisions of Section 25-F of W.A. No.688 of 2022 Page 42 of 80 the Industrial Disputes Act, 1947. The said provisions were admittedly not complied with because one month's wages in lieu of notice were not paid at the time of such retrenchment on 02.01.1971 and were paid subsequently on 05.01.1971. The termination of the services of the appellant cannot, therefore, be upheld as legal and valid."
9.7. In National Iron and Steel Co. Ltd. Vrs. State of West Bengal, (1967) 2 SCR 391 = AIR 1967 SC 1206, it has been succinctly been laid that if the employee was asked to go forthwith he had to be paid at the time when he was asked to go and could not be asked to collect his dues afterwards. In the said case the notice of termination of service borne the date 15.11.1958 and he was asked to collect his dues from the cash office on 20.11.1958 or thereafter during the working hours. In such circumstance, it was held that, "*** Manifestly, Section 25-F had not been complied with under which it was incumbent on the employer to pay the workman, the wages for the period of the notice in lieu of the notice. That is to say, if he was asked to go forthwith he had to be paid at the time when he was asked to go and could not be asked to collect his dues afterwards."
9.8. Confronted with similitude of situation in the instant case, as was the cases of National Iron and Steel Co. Ltd. (supra) and Syed Azam Hussaini (supra), that there is gap between passing of the Order of retrenchment and W.A. No.688 of 2022 Page 43 of 80 dues for payment being drawn by way of cheque, the learned Additional Government Advocate, abandoning his strenuous argument in this respect to justify the Order of termination, which is not only not in consonance with the requirement of Section 25-F of the ID Act but also not in conformity with the aforesaid reported Judgments of the Supreme Court, laid stress on a Judgment in the case of Bhurumal (supra) to contend that it cannot, thus, be held that in every situation reinstatement in service is automatic.
9.9. In Ranbir Singh Vrs. Executive Engineer, PWD, (2021) 6 SCR 102, following the ratio laid down in Bhurumal (supra) and other decisions in this context, it has been held as follows:
"4. It is true that in the Ajay Pal Singh (supra), the Bench of this Court, by judgment rendered in the year 2015, took the view that, when the termination is effected of service of a daily wager, there must be compliance of Section 25F. This Court, in fact, went on also to note that unlike a private body, in the case of a public body, while it may be open to resort to retrenchment of the workmen on the score that there is non-compliance of Articles 14 and 16 in the appointment, in which case, in the order terminating the services, this must be alluded to, it would still not absolve the public authority from complying with the provisions of Section 25F of the Act and, should it contravene Section 25F, it would W.A. No.688 of 2022 Page 44 of 80 amount to an unfair trade practice. We do notice, this judgment has been reiterated in a subsequent judgment also in Durgapur Casual Workers Union and others Vrs. Food Corporation of India and others, (2015) 5 SCC 786.
5. However, we notice that there is another line of decisions, and the latest of the same, which is brought to our notice by Shri Samar Vijay Singh, learned AAG, is State of Uttarakhand Vrs. Raj Kumar, (2019) 14 SCC 353. We may refer only to paragraphs-9 and 10:
'9. In our opinion, the case at hand is covered by the two decisions of this Court rendered in BSNL Vrs. Bhurumal, (2014) 7 SCC 177 and Distt. Development Officer Vrs. Satish Kantilal Amrelia, (2018) 12 SCC 298.
10. It is apposite to reproduce what this Court has held in BSNL Vrs. Bhurumal, (2014) 7 SCC 177:
'33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily-wage worker and where the W.A. No.688 of 2022 Page 45 of 80 termination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.
34. The reasons for denying the relief of reinstatement in such cases are obvious.
It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation.
Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1. Thus when he cannot claim regularisation and he has no right to continue even as a daily-wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given W.A. No.688 of 2022 Page 46 of 80 monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.
35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied.' W.A. No.688 of 2022 Page 47 of 80
6. In the light of the state of the law, which we take note of, we notice certain facts which are not in dispute. This is a case where it is found that, though the appellant had worked for 240 days, appellant's service was terminated, violating the mandatory provisions of Section 25F of the Act. The authority involved in this case, apparently, is a public authority. At the same time, it is common case that the appellant was a daily wager and the appellant was not a permanent employee. It is relevant to note that, in the award answering Issue No.1, which was, whether the termination of the appellant's service was justified and in order, and if not, what was the amount of back wages he was entitled to, it was found, inter alia, that the appellant could not adduce convincing evidence to establish retention of junior workers. There is no finding of unfair trade practice, as such. In such circumstances, we think that the principle, which is enunciated by this Court, in the decision, which is referred to in Raj Kumar (supra), which we have referred to, would be more appropriate to follow. In other words, we find that reinstatement cannot be automatic, and the transgression of Section 25F being established, suitable compensation would be the appropriate remedy."
9.10. In K.V. Anil Mithra Vrs. Sree Sankaracharya University of Sanskrit, (2021) 11 SCR 297, it has been stated thus:
"23. The scheme of the Act 1947 contemplates that the workman employed even as a daily wager or in any capacity, if has worked for more than 240 days in the preceding 12 months from the alleged date of termination and if the employer wants to terminate W.A. No.688 of 2022 Page 48 of 80 the services of such a workman, his services could be terminated after due compliance of the twin clauses (a) and (b) of Section 25F of the Act 1947 and to its non-observance held the termination to be void ab initio bad and so far as the consequential effect of non-observance of the provisions of Section 25-F of the Act 1947, may lead to grant of relief of reinstatement with full back wages and continuity of service in favour of retrenched workman, the same would not mean that the relief would be granted automatically but the workman is entitled for appropriate relief for non-observance of the mandatory requirement of Section 25F of the Act, 1947 in the facts and circumstances of each case.
24. The salient fact which has to be considered is whether the employee who has been retrenched is a workman under Section 2(s) and is employed in an industry defined under Section 2(j) and who has been in continuous service for more than one year can be retrenched provided the employer complies with the twin conditions provided under clauses (a) and (b) of Section 25- F of the Act 1947 before the retrenchment is given effect to. The nature of employment and the manner in which the workman has been employed is not significant for consideration while invoking the mandatory compliance of Section 25F of the Act 1947.
25. This can be noticed from the term 'retrenchment' as defined under Section 2(oo) which in unequivocal terms clearly postulates that termination of the service of a workman for any reason whatsoever W.A. No.688 of 2022 Page 49 of 80 provided it does not fall in any of the exception clause of Section 2(oo), every termination is a retrenchment and the employer is under an obligation to comply with the twin conditions of Section 25F of the Act 1947 before the retrenchment is given effect to obviously in reference to such termination where the workman has served for more than 240 days in the preceding 12 months from the alleged date of termination given effect to as defined under Section 25B of the Act."
9.11. Under the aforesaid premises, analysing the legal position thus, it is but corollary to say that no infirmity in adjudication of the learned Single Judge has been perceived in coming to the conclusion at paragraphs 10 and 12 of the Judgment dated 17.08.2021, which is to the following effect:
"*** That is to say, if she was asked to go forthwith, she had to be paid the wages at the time when she was asked to go and should not be paid on the subsequent date, i.e., 30.04.2011, rather it should be simultaneously paid. *** Thereby, in view of the proposition of law laid down by the apex Court, as discussed above, this Court holds that the impugned order of retrenchment cannot be allowed to stand, since there was sheer violation of the provisions contained under Section 25-F of the Act."
ANALYSIS AND DISCUSSION REGARDING VIOLATION OF SECTION 25-G OF THE ID ACT:
W.A. No.688 of 2022 Page 50 of 8010. It has also been the plea of the respondent that the authorities concerned failed to adhere to follow the mandate contained in Section 25-G of the ID Act inasmuch as the employees who joined later to the respondent have been continuing in service whereas she was retrenched from service on the pretext of surplus staff. At this point Sri Manoj Kumar Khuntia, learned Additional Government Advocate pressed into service Ground No.(h) of the writ appeal, wherein it has been mentioned that certain NMR employees who were continuing before engagement of the respondent have not been brought over to the work-charged establishment. He further urged that no evidence is placed on record by the respondent nor has any specific instance been cited to demonstrate that junior has been given preference to the respondent and the norm of "Last Come, First Go" has not been followed. It is also submitted by the learned Additional Government Advocate that counter/objection filed by the respondent remained silent in this respect save and except saying that "the respondent after being reinstated in service made a representation to the appellant No.3- Superintending Engineer to bring her to work-charged establishment as the NMR-Mate as the employees junior to her have already been brought over to work-charged establishment pursuant to the Notification No.7323 dated 28.02.2009 and such NMR employees who were W.A. No.688 of 2022 Page 51 of 80 brought to the work-charged establishment were recruited prior to 12.04.1993, it being the cut-off date".
10.1. The learned Single Judge at paragraph 13 of his Judgment has observed that in view of Incharge Government Hide Flaying Centre Vrs. Rama Ram and another, (2003) 9 SCC 163, the Order of retrenchment dated 29.04.2011 is contrary to the provisions of Section 25-G of the ID Act.
10.2. This Court takes note of expression "the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman" used in Section 25G of the ID Act where the word "ordinarily" has significance.
10.3. In Kailash Chandra Vrs. Union of India. (1962) 1 SCR 374 = AIR 1961 SC 1346; Eicher Tractors Ltd. Vrs. Commissioner of Customs, AIR 2001 SC 196 = (2001) 1 SCC 315; State of Andhra Pradesh Vrs. Sarma Rao, AIR 2007 SC 137, the meaning of the word "ordinarily" has been given to construe as "in the large majority of cases but not invariably". The expression "ordinarily" means normally and it is used where there can be an exception.
"Ordinarily" excludes extraordinary or special circumstances.W.A. No.688 of 2022 Page 52 of 80
10.4. In Mohan Baitha Vrs. State of Bihar, (2001) 4 SCC 350 the use of the word 'ordinarily' has been meant to have indicated that the provision is a general one and must be read subject to the special provisions contained in the Criminal Procedure Code. That apart, the Court has taken the view that the exceptions implied by the word 'ordinarily' need not be limited to those specially provided for by the law and exceptions may be provided by law on considerations of convenience or may be implied from other provisions of law permitting joint trial of offences by the same Court.
10.5. In Krishan Gopal Vrs. Shri Prakashchandra, (1974) 1 SCC 128, it has been discussed that the word 'ordinarily' does not indicate that the provisions of sub-section (2) of Section 80-A of the Representation of the People Act, 1951, are not mandatory and that relaxation in compliance with those provisions is permissible. The word 'ordinarily' only qualifies the number of judges who can exercise the jurisdiction, which is vested in the High Court to try an election petition. The said word indicates that normally it would be a single Judge of the High Court who can exercise the jurisdiction which is vested in the High Court, but in appropriate cases, such jurisdiction can also be exercised by two or more judges.
10.6. In Commissioner of Customs Vrs. J.D. Orgochem Limited, (2008) 6 SCR 200, it has been stated thus:W.A. No.688 of 2022 Page 53 of 80
"13. The expression 'ordinarily' may mean 'normally'. It has been held by this Court in Kailash Chandra Vrs. Union of India and Krishangopal Vrs. Shri Prakashchandra, (1974) 1 SCC 12, that the said expression must be understood in the context in which it has been used and, thus, 'ordinarily' may not mean 'solely' or 'in the name', and thus, if under no circumstance an appeal would lie to the Principal District Judge, the Court would not be subordinate to it. When in a common parlance the expression 'ordinarily' is used, there may be an option. There may be cases where an exception can be made out. It is never used in reference to a case where there is no exception. It never means 'primarily'."
10.7. The word "ordinarily" in the context of industrial disputes has also been noticed in Harjinder Singh Vrs. Punjab State Warehousing Corpn., (2010) 3 SCC 192, wherein the following observation has been made:
"19. The ratio of the abovenoted judgment was reiterated in Samishta Dube Vrs. City Board, Etawah, (1999) 3 SCC 14. In that case, the Court interpreted Section 6- P of the U.P. Industrial Disputes Act, 1947, which is pari materia to Section 25-G of the Act, and held:
'***
9. It is true that the rule of 'First Come, Last Go' in Section 6-P could be deviated from by an employer because the section uses the word 'ordinarily'. It is, therefore, permissible for the employer to deviate from the rule in cases of lack of efficiency W.A. No.688 of 2022 Page 54 of 80 or loss of confidence, etc. as held in Swadesamitran Ltd. Vrs. Workmen, AIR 1960 SC 762. But the burden will then be on the employer to justify the deviation. No such attempt has been made in the present case.
Hence, it is clear that there is clear violation of Section 6-P of the U.P. Act.' ***
20. The distinction between Sections 25-F and 25-G of the Act was recently reiterated in Bhogpur Coop. Sugar Mills Ltd. Vrs. Harmesh Kumar, (2006) 13 SCC 28 in the following words:
'9. We are not oblivious of the distinction in regard to the legality of the order of termination in a case where Section 25-F of the Act applies on the one hand, and a situation where Section 25-G thereof applies on the other. Whereas in a case where Section 25-F of the Act applies the workman is bound to prove that he had been in continuous service of 240 days during twelve months preceding the order of termination; in a case where he invokes the provisions of Sections 25-G and 25-H thereof he may not have to establish the said fact. (See Central Bank of India Vrs. S. Satyam, (1996) 5 SCC 419, Samishta Dube Vrs. City Board, Etawah, (1999) 3 SCC 14, SBI Vrs. Rakesh Kumar Tewari, (2006) 1 SCC 530 and Jaipur Development Authority Vrs. Ramsahai, (2006) 11 SCC 684.)' ***"
10.8. In the aforesaid conspectus, the inclusion of the word 'ordinarily' introduces an element of flexibility, allowing W.A. No.688 of 2022 Page 55 of 80 for exceptions or special circumstances where there can be circumstances where the norm "Last Come, First Go"
or "First Come, Last Go" may not be followed, but for deviating such principle, the employer is required to put forth plausible reason.
10.9. It is emphatically submitted by the learned Additional Government Advocate that besides paucity of material particulars being placed by the respondent, there are circumstances in this case that seniors who were engaged prior to her were not brought over to the work- charged establishment.
10.10. Taking cue from Harjinder Singh Vrs. Punjab State Warehousing Corpn., (2010) 3 SCC 192, wherein it has been held that, "it is settled law that for attracting the applicability of Section 25-G of the Act, the workman is not required to prove that he had worked for a period of 240 days during twelve calendar months preceding the termination of his service and it is sufficient for him to plead and prove that while effecting retrenchment, the employer violated the rule of "Last Come First Go" without any tangible reason", this Court is not persuaded by the submissions of the learned Additional Government Advocate to observe that the appellants have not violated the said norm contemplated in Section 25-G of the ID Act, but there existed reason for passing Order of retrenchment dated 29.04.2011. At the cost of repetition W.A. No.688 of 2022 Page 56 of 80 it is felt expedient to take note of Letter dated 30.09.2010 of the Superintending Engineer wherein it has been candidly admitted by the appellants that the respondent having been engaged on 21.03.1985, "number of workmen in the category of NMR-Mate are continuing in service who are junior to Smt. Mohanty".
10.11. With the understanding of the word "ordinarily" as discussed above and taking into account the construction of words used in the statute, the contention of the learned Additional Government Advocate does not receive acceptance of this Court inasmuch as no reason has been ascribed as to why the employer-appellants wish to by-pass the terms of the "Scheme for absorption of NMR/DLR/Job Contract workers under Regular Establishment" vide Resolution dated 15.05.1997 of the Finance Department.
10.12. Relevant portion of said Resolution dated 15.05.1997 is quoted hereunder for guidance:
"Finance Department Resolution Bhubaneswar, dated 15th May, 1997 Sub.: Scheme for absorption of NMR/DLR/Job Contract workers under Regular Establishment It has been brought to the notice of Finance Department by the different Departments of Government that directives from Hon'ble Supreme W.A. No.688 of 2022 Page 57 of 80 Court, High Court and Odisha Administrative Tribunal have been received for preparation of scheme to absorb the above categories of workers under regular establishment.
As per the above directives, Government have been pleased to formulate the following norms and conditions for the NMR/DLR/Job Contract Workers.
1. Separate gradation list/seniority list shall be prepared by the appointing authority for each category of workers determining the length of engagement of a particular person. The Workers should have worked under the administrative control of the Department concerned directly for a minimum period of 10 years. The engagement of 240 days in a year shall be construed as a complete year of engagement for this purpose.
2. The workers should have been engaged prior to 12.04.1993, i.e., prior to promulgation of ban on engagement of NMR/DLR/Job Contract Worker, etc. vide Finance Department Circular No.WF-II- 180/92-- 17815/F, dated 12.04.1993.
***
8. While filling up the regular vacant posts preference shall be given to work-charged employees first. Where no suitable work-charged employees are available to man the post preference shall be given in the following order, i.e., NMR, DLR, Job Contract Workers, etc. *** W.A. No.688 of 2022 Page 58 of 80 By Order of the Governor P.K. Mishra Principal Secretary to Government"
10.13. Material on record goes to show that the respondent being initially engaged on 21.03.1985, and subsequently on implementation of the terms of Award of the Industrial Tribunal, she was reinstated in her service by virtue of Office Order dated 21.08.2010 pursuant to which the respondent joined on 27.08.2010. It is noteworthy that the back wages as directed in the Award was also paid. Therefore, the employer is seemed to have admitted that due to its own fault, she could not work in the Organisation. Therefore, it is considered that that the respondent has been in service since 1985. After thus construed to have served for around 16 years, the respondent was again retrenched with immediate effect by Office Order dated 29.04.2011, citing the cause "reduction of work load". Here again as observed in the foregoing paragraphs that this Court is of the view that the learned Single Judge was perfectly justified in holding that there was infraction in following mandate of Section 25-F of the ID Act.
10.14. On the basis of admitted position by the appellants that juniors have been continuing as employees in the category of NMR-Mate, the learned Single Judge is, therefore, justified in coming to the conclusion that the W.A. No.688 of 2022 Page 59 of 80 norm specified in Section 25-G of the ID Act has not been followed by the appellants, even though the respondent has been admitted to have been engaged prior to 12.04.1993. The authorities could not have acted contrary to the provisions of Section 25-G of the ID Act. On the score of violation of Section 25-G of the ID Act, this Court is inclined to desist from affording any contrary view that what is taken by the learned Single Judge.
IF THE DIRECTION OF THE LEARNED SINGLE JUDGE CAN BE INTERFERED WITH:
11. The submission of Sri Manoj Kumar Khuntia, learned Additional Government Advocate, has driven this Court to have anxious consideration whether the direction of the learned Single Judge "to reinstate the petitioner in service and to bring over her to the work charged establishment forthwith, from the date her juniors have been brought over to the work-charged establishment, in pursuance of the Notifications dated 28.02.2009 and 19.06.2009 issued by the Government, and then bring over her to the regular establishment forthwith, if her juniors have been brought over to the regular establishment" is just and proper or could there be any alternative approach by allowing adequate compensation in lieu of reinstatement.
W.A. No.688 of 2022 Page 60 of 8011.1. Material on record goes to show that the respondent was engaged as NMR-Mate (Typist) on 21.03.1985 and terminated by the Executive Engineer, Mahanadi Barrage Division on 01.03.1989. Being reinstated in compliance of Award of the Industrial Tribunal, she joined on 27.08.2010 and on 29.04.2011 she is stated to have been retrenched. Total period of actual working days would be barely around 4 years 8 months. Taking a glance at the cause title of the writ petition it is revealed that in the year 2014, the respondent was about 45 years and therefore, by now she would be 55 years. Taking all these factors into account this Court feels it appropriate to intervene with the direction of the learned Single Judge and modify the same.
11.2. In view of the facts stated in the foregoing paragraphs, it is clear that the respondent was not a permanent employee but an employee engaged as NMR-Mate (Typist). It is the submission of the learned Additional Government Advocate that the Organisation of the appellants is in defunct state and there is scarce work load. The learned Additional Government Advocate has made valiant attempt to convince that if at all junior workers are retained in preference to seniors like the respondent, it is on account of directions of this Court. The respondent having worked for more than 240 days, termination of his services violated the mandatory W.A. No.688 of 2022 Page 61 of 80 provisions of Section 25F as also Section 25-G of the ID Act as the factual position analysed supra. Therefore, in the facts of the present case, this Court does incline to modify the direction contained in the Judgment of the learned Single Judge for reinstatement of the respondent and further direction "to pay 50% wages to the petitioner with effect from 29.04.2011 till she is reinstated in service". In its place, it would be expedient to consider in the interest of justice to enhance the compensation by awarding a lump sum amount.
11.3. This Court is fortified by decision in the matter of Allahabad Bank Vrs. Krishan Pal Singh, (2021) 6 SCR 204, wherein it has been held as follows:
"Though, there was strong suspicion, there was no acceptable evidence on record for dismissal of the workman. However, as the workman has worked only for a period of about six years and he has already attained the age of superannuation, it is a fit case for modification of the relief granted by the High Court. The reinstatement with full back wages is not automatic in every case, where termination/dismissal is found to be not in accordance with procedure prescribed under law. Considering that the respondent was in effective service of the Bank only for about six years and he is out of service since 1991, and in the meantime, respondent had attained age of superannuation, we deem it appropriate that ends of justice would be met by awarding lump sum monetary compensation. ***"W.A. No.688 of 2022 Page 62 of 80
11.4. Similar view can also be found in Ranbir Singh Vrs. Executive Engineer, PWD, (2021) 6 SCR 102; K.V. Anil Mithra Vrs. Sree Sankaracharya University of Sanskrit, (2021) 11 SCR 297.
11.5. In Ram Manohar Lohia Joint Hospital Vrs. Munna Prasad Saini, (2021) 12 SCC 466 the Hon'ble Supreme Court has made the following observation:
"12. In view of the facts stated above, it is clear that the first respondent was not a permanent employee but a contractual employee. There is no evidence to establish that the appellant had retained junior workers; such unfair trade practice is not alleged or even argued before us. The first respondent having worked for more than 240 days, termination of his services violated the mandatory provisions of Section 25-F of the Industrial Disputes Act, 1947. Therefore, in the facts of the present case, we modify the order of the Labour Court by setting aside the direction for reinstatement and would enhance the compensation by awarding a lump sum amount."
11.6. A case to the point being Rajasthan State Road Transport Corporation Vrs. Shri Phool Chand (dead) through LRs., (2018) 11 SCR 448 may be worthy of notice. The Supreme Court of India held as follows:
"10. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and while modifying the impugned order award 50% back wages to the W.A. No.688 of 2022 Page 63 of 80 deceased workman (his legal representatives) in place of full wages.
11. In our considered opinion, the Courts below completely failed to see that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service.
12. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee.
13. In some cases, the Court may decline to award the back wages in its entirety whereas in some cases, it may award partial depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. The questions, how the back wages is required to be decided, what are the factors to be taken into consideration awarding back wages, on whom the initial burden lies etc. were elaborately discussed in several cases by this Court wherein the law on these questions has been W.A. No.688 of 2022 Page 64 of 80 settled. Indeed, it is no longer res integra. These cases are, M.P. State Electricity Board Vrs. Jarina Bee (Smt.), (2003) 6 SCC 141, G.M. Haryana Roadways Vrs. Rudhan Singh, (2005) 5 SCC 591, U.P. State Brassware Corporation Vrs. Uday Narain Pandey, (2006) 1 SCC 479, J.K. Synthetics Ltd. Vrs. K.P. Agrawal, (2007) 2 SCC 433, Metropolitan Transport Corporation Vrs. V. Venkatesan, (2009) 9 SCC 601, Jagbir Singh Vrs. Haryana State Agriculture Marketing Board, (2009) 15 SCC 327) and Deepali Gundu Surwase Vrs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.), (2013) 10 SCC
324.
14. The Court is, therefore, required to keep in consideration several factors, which are set out in the aforementioned cases, and then to record a finding as to whether it is a fit case for award of the back wages and, if so, to what extent.
15. Coming now to the facts of the case at hand, we find that neither the Labour Court and nor the High Court kept in consideration the aforesaid principles of law. Similarly, no party to the proceedings either pleaded or adduced any evidence to prove the material facts required for award of the back wages enabling the Court to award the back wages.
16. On the other hand, we find that the Labour Court in one line simply directed the appellant (employer) to pay full back wages for a long period to the deceased workman while directing his reinstatement in service.
17. We cannot, therefore, concur with such direction of the Courts below awarding full back wages to the W.A. No.688 of 2022 Page 65 of 80 workman which, in our opinion, has certainly caused prejudice to the appellant (employer)."
11.7. In State of Odisha Vrs. Kamalini Khilar, (2021) 4 SCR 221, it has been observed as follows:
"24. Deepali Gundu Surwase Vrs. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.), (2013) 10 SCC 324 the matter arose under the Maharashtra Employees of Private Schools (condition of service) Regulation Act, 1977. This Court undoubtedly laid down that in the case of wrongful termination of service reinstatement with the continuity of service and back wages is the normal rule. It was subject to the qualification that the Court may inter alia take into consideration the length of service and the nature of misconduct if any proved, the financial condition of the employer and similar other factors. For the reasons which we have indicated in the facts of this case Respondent No. 1 cannot be permitted to draw any benefit from the said pronouncement.
The High Court rightly set aside the direction for creation of the supernumerary post. We find that there is no basis for the High Court to have thereafter directed the appointment of the Respondent No. 1 in any vacancy available."
11.8. It may not be out of place to refer to decision of this Court vide Order dated 07.12.2018 passed in W.P.(C) No.14814 of 2018 [Management of Cuttack Municipal Corporation, Cuttack Vrs. Kalandi Barik, Rabindra Kumar W.A. No.688 of 2022 Page 66 of 80 Das, Padmanav Behera], the relevant observation therein is quoted:
"*** The parties have adduced their evidence and the Tribunal recorded a finding that order of termination does not reflect compliance of Section 25-F of the I.D. Act by giving notice or in lieu thereof notice pay and any amount towards compensation. As such the termination was not justified and since the NFCP unit is functioning under the 1st party management after the date of retrenchment the workmen are entitled to reinstatement and it was awarded a sum of Rs.10,000/- as compensation in lieu of back wages to each of the workmen. The Apex Court in the case of Asst. Engineer, Rajasthan Dev. Corp. & Another Vrs. Gitam Singh reported in 2013 LLR 225 has held that when the termination of a workman is held illegal, it can be said without any fear of contradiction that the Supreme Court has not held as an absolute proposition that in cases of wrongful dismissal, the dismissed employee is entitled to reinstatement in all situations. It has always been the view of the Court that there could be circumstance(s) in a case which may make it inexpedient to order reinstatement. Hence, the normal rule that the dismissed workman is entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception. The principles as relevant for granting relief of reinstatement when termination of workman is held to be illegal. Before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute. Now there is no such principle that W.A. No.688 of 2022 Page 67 of 80 for an illegal termination of service, the normal rule is reinstatement with back-wages and instead the Labour Court can award compensation. The Apex Court further held that the compensation in lieu of reinstatement, should have been proper to a daily wager who has completed merely 240 days service hence the Single Judge as well as the Division Bench of the High Court also erred in not considering that the reinstatement with back wages is no longer a rule without exceptions. While granting a relief of reinstatement to a workman whose termination is held to be illegal, i.e. violating of Section 25F of the Industrial Disputes Act, 1947, the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute. In case of violation of the provisions of Section 25-F, order of reinstatement can be passed in exceptional cases and the normal rule is to award compensation in place of reinstatement. Reference in this regard may be made to the judgments of the Hon'ble Apex Court in the case of State of M.P. and others Vrs. Lalit Kumar Verma reported in (2007) 1 SCC 575, Utaranchal Forest Development Corporation Vrs. M.C.Joshi reported in (2007) 9 SCC 353, Sita Ram and others Vrs. Motilal Nehru Farmers Training Institute reported in (2008) 5 SCC 75, Ghaziabad Development Authority and another Vrs.
Ashok Kumar and other reported in (2008) 4 SCC 261 and Jagbir Singh Vrs. Haryana State Agriculture Marketing Board and another reported in (2009) 15 SCC 327. The aforesaid view has also been reiterated by this Court in the case of Executive Engineer, Badanala Irrigation Division, Kenduguda Vrs. Ratnakar Sahoo and another reported in 2011(Supp.1) OLR 556. In view of the W.A. No.688 of 2022 Page 68 of 80 aforesaid settled position of law as pronounced by the Apex Court and reinstatement is not sine qua non for non-compliance of Section 25-F of the I.D. Act, this Court modifies the award to the following extent:
The workmen are entitled to get compensation of Rs.1,30,000/- (one lakh thirty thousand) each in lieu of reinstatement and rest part of the award is confirmed."
The aforesaid matter has been carried by Rabindra Kumar Das, one of the writ petitioners in the above writ petition, preferred leave to appeal before the Hon'ble Supreme Court of India, which got registered as Special Leave to Appeal (C) No(s). 14619 of 2019. Said matter has been disposed of by the said Court with the following observation and direction vide Order dated 01.10.2021:
"*** We see no reason to interfere in the matter except to the extent indicated hereinafter.
The Tribunal had granted prayer of reinstatement alongwith compensation in the sum of Rs.10,000/-. The High Court, however, modified the order passed by the Tribunal and awarded compensation in the sum of Rs.1,30,000/- to each of the claimants without the relief of reinstatement.
Considering the fact and circumstances on record, in our view, ends of justice would be met if the compensation awarded by the High Court is enhanced to the level of Rs.2 lakhs to be made over to each of the claimants. ***"W.A. No.688 of 2022 Page 69 of 80
11.9. Under the aforesaid premise, considering that claim of reinstatement with back wages is not matter of right and is not sine qua non in the event of failure of the employer to resort to provisions of Section 25-F of the ID Act, and that no pleading is available on record to suggest that the respondent was not in gainful employment during the period after retrenchment, a lump sum amount would meet the ends of justice OBJECTION OF THE APPELLANTS WITH RESPECT TO MAINTAINABILITY OF WRIT PETITION:
12. The primary objection of Sri Manoj Kumar Khuntia, learned Additional Government Advocate with respect to the maintainability of the writ petition is liable to be repelled for the reason that in the challenge being laid to the Order of retrenchment dated 29.04.2011 before this Court in W.P.(C) No.14006 of 2011 by the respondent, on the basis of statement made in the counter affidavit filed therein by the opponents-State of Odisha, the same was allowed to be withdrawn vide Order dated 05.05.2014 and the submission of the respondent to approach the Odisha Administrative Tribunal has been recorded while disposing of said writ petition. While the matter was pending in O.A. No.3077 (C) of 2014, said Tribunal being abolished, the same got transferred to this Court and got registered as WPC (OAC) No.3077 of 2014. After hearing the counsel for both the sides, the W.A. No.688 of 2022 Page 70 of 80 impugned Judgment has been delivered by the learned Single Judge on 17.08.2021. At this stage such a plea urged by the learned Additional Government Advocate is unwholesome.
12.1. Perusal of record of writ petition/original application filed under Section 19 of the Administrative Tribunals Act, 1985, reveals that on 17.03.2016 when the matter was taken up for "admission" by the Odisha Administrative Tribunal, objection at the behest of Additional Standing Counsel appearing for the State of Odisha was raised to the effect that the Original Application as laid against the Order of retrenchment dated 29.04.2011 was not maintainable. The said Tribunal, after hearing the counsel for the respondent herein and the Additional Standing Counsel for the appellants herein, has passed the following Order on the said date, which remained unchallenged by the appellants, the functionaries of the State of Odisha:
"*** On going through the contents of the O.A. and the annexure appended thereto, we find that the applicant was engaged on 21.03.1985 as NMR Mate (Typist) under the Executive Engineer, Mahanadi Barrage Division, Cuttack. But as her service was terminated by the respondent No.4 on 01.03.1989, violating the. provision of Section 25-F and 25-G of the ID Act, she, had approached the Industrial Tribunal and the Industrial Tribunal vide order dtd.24th February, 2010 as at Annexure-1 directed for her reinstatement in service with 50% back wages and W.A. No.688 of 2022 Page 71 of 80 accordingly she was allowed to join and to work in the office of Executive Engineer, Mahanadi Barrage Division, Cuttack vide Order dated 21.08.2010 and was paid 50% of back wages. But again she has been retrenched vide impugned order at Annexure-10, which is the Office Order No.2032, dated 29.04.2011 passed by the Superintendent Engineer, Drainage Circle, Gandarpur, Cuttack-3. She has not only challenged Annexure-10, but also prayed for regularization of her service in terms of Annexure-4, 5 & 6. So, one of the main prayers in the O.A. is for regularization of her service by bringing to work- charged establishment. In such circumstance, prima facie there is no bar for this Tribunal to adjudicate the dispute as the applicant cannot seek the relief for regularisation of her service before the Industrial Tribunal.
Hence, the O.A. is admitted. As already notice has been issued, the State-respondents are directed to file counter within four weeks."
12.2. In a similar fact-situation where retrenchment of NMR employees, working under work-charged establishment, was under challenge, this Court in the case of Samal Barrage Employees' Union &c. Vrs. State of Odisha, 2005 (II) OLR 1, held as follows:
"9. Undisputedly, the members of the petitioner-Union have approached the Tribunal by filing O.A. Nos. 122 (C) to 126 (C) of 2002. In those original applications, the Tribunal, has passed interim order protecting the interest of the employees. Since the employees have already approached the Tribunal the present writ applications at their instance are not maintainable. Moreover, the employees W.A. No.688 of 2022 Page 72 of 80 represented by the petitioner-Union are working in the work-charged establishment and as such are holders of civil post under the State Government. Section 15 of the Administrative Tribunals Act, 1985 vests jurisdiction in the Administrative Tribunal to deal with all matters pertaining to service under the Government. Therefore, the Orissa Administrative Tribunal has ample power and jurisdiction to effectively deal with the grievances of the employees. In Union of India Vrs. Deep Chand Pandey, AIR 1993 SC 382, it was held by the Supreme Court that in respect of a claim by the daily wager employees, the remedy lies before the Tribunal not before the High Court. In view of such decision of the Apex Court, this Court is of the considered opinion that the remedy available to the present petitioners is to agitate their grievance before the Tribunal and not before this Court. Accordingly, this Court is constrained to hold that the present writ applications are not maintainable."
12.3. At this juncture this Court may have regard to the enunciation of the Hon'ble Supreme Court in the case of State of U.P. Vrs. Ehsan, (2023) 13 SCR 905, which is as follows:
"25. In the above backdrop, the foremost issue which arises for our consideration is:
Whether in exercise of writ jurisdiction the High Court should have refrained from adjudicating the contentious issue with regard to taking of actual possession of the surplus land from the landholder, when the same was not decided in the previous W.A. No.688 of 2022 Page 73 of 80 round of litigation even though it had arisen for consideration?
***
28. We are conscious of the law that existence of an alternative remedy is not an absolute bar on exercise of writ jurisdiction. More so, when a writ petition has been entertained, parties have exchanged their pleadings/affidavits and the matter has remained pending for long. In such a situation there must be a sincere effort to decide the matter on merits and not relegate the writ petitioner to the alternative remedy, unless there are compelling reasons for doing so. One such compelling reason may arise where there is a serious dispute between the parties on a question of fact and materials/evidence(s) available on record are insufficient/inconclusive to enable the Court to come to a definite conclusion.
29. Bearing the aforesaid legal principles in mind, we would have to consider whether, in the facts of the case, the High Court ought to have dismissed the third writ petition of the first respondent and relegate him to a suit as there existed a serious dispute between the parties regarding taking of possession. More so, when the High Court, in the earlier round of litigation, refrained from taking up the said issue even though it had arisen between the parties.
30. No doubt, in a writ proceeding between the State and a landholder, the Court can, on the basis of materials/evidence(s) placed on record, determine whether possession has been taken or not and while W.A. No.688 of 2022 Page 74 of 80 doing so, it may draw adverse inference against the State where the statutory mode of taking possession has not been followed [See State of U.P. Vrs. Hari Ram, (2013) 4 SCC 280]. However, where possession is stated to have been taken long ago and there is undue delay on the part of landholder in approaching the writ Court, infraction of the prescribed procedure for taking possession would not be a determining factor, inasmuch as, it could be taken that the person for whose benefit the procedure existed had waived his right thereunder [See State of Assam Vrs. Bhaskar Jyoti Sarma & Others (2015) 5 SCC 321]. In such an event, the factum of actual possession would have to be determined on the basis of materials/evidence(s) available on record and not merely by finding fault in the procedure adopted for taking possession from the land holder. And if the writ court finds it difficult to determine such question, either for insufficient/ inconclusive materials/evidence(s) on record or because oral evidence would also be required to form a definite opinion, it may relegate the writ petitioner to a suit, if the suit is otherwise maintainable."
12.4. In yet another case being Genpact India Private Limited Vrs. Deputy Commissioner of Income Tax, (2019) 17 SCR 139, the observations of the Hon'ble Supreme Court of India runs thus:
"In State of U.P. Vrs. U.P. Rajya Khanij Vikas Nigam Sangharsh Samiti, (2008) 12 SCC 675, this Court dealt with an issue whether after admission, the Writ Petition could not be dismissed on the ground of W.A. No.688 of 2022 Page 75 of 80 alternate remedy. The submission was considered by this Court as under:
'38. With respect to the learned Judge, it is neither the legal position nor such a proposition has been laid down in AIR 1992 All 331 (Suresh Chandra Tewari Vrs. District Supply Officer) that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. It is no doubt correct that in the headnote of All India Reporter (p. 331), it is stated that "petition cannot be rejected on the ground of availability of alternative remedy of filing appeal".
But it has not been so held in the actual decision of the Court. The relevant para 2 of the decision reads thus: (Suresh Chandra Tewari case, AIR p. 331) '2. At the time of hearing of this petition a threshold question, as to its maintainability was raised on the ground that the impugned order was an appealable one and, therefore, before approaching this Court the petitioner should have approached the appellate authority. Though there is much substance in the above contention, we do not feel inclined to reject this petition on the ground of alternative remedy having regard to the fact that the petition has been entertained and an interim order passed.' Even otherwise, the learned Judge was not right in law. True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ Court. It has been so held even by this Court in several cases that even if alternative remedy is available, it W.A. No.688 of 2022 Page 76 of 80 cannot be held that a writ petition is not maintainable. In our Judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ petition albeit wrongly and granted the relief to the petitioner."
12.5. Such being position, for the compelling circumstance that led the respondent to ventilate her grievance before the Odisha Administrative Tribunal, as conceded to by the appellants in the counter affidavit filed in W.P.(C) No. 14006 of 2011, the objection of Sri Manoj Kumar Khuntia, learned Additional Government Advocate stands overruled.
CONCLUSION & DECISION:
13. Thus being the legal perspective of possibility of entertainment of writ petition, even if there existed alternative remedy to assail the Order of retrenchment under the realm of the Industrial Disputes Act, 1947, on consideration of pertinent relevant facts for adjudication of the present contentious issues being not in dispute, the learned Single Judge was justified in proceeding to decide the matter under writ jurisdiction.
W.A. No.688 of 2022 Page 77 of 8014. The discussions on facts upon analysis of evidence on record would unequivocally show that there was gap between date of passing the Order of retrenchment and date of making the cheque representing the amount of dues. Therefore, this Court in this intra-Court appeal would sustain the observation of the learned Single Judge that there has been violation of requirement as envisaged to be carried out by the employer under Section 25-F and Section 25-G of the ID Act.
15. In the aforementioned factual matrix, this Court is of the opinion that the direction issued by the learned Single Judge in the Judgment dated 17.08.2021 while disposing of WPC (OAC) No.3077 of 2014 to reinstate the respondent in service with further direction to bring her over to the work-charged establishment forthwith, from the date her juniors have been brought over to the work- charged establishment, and then to bring her over to the regular establishment forthwith, if her juniors have been brought over to the regular establishment and with further direction to pay 50% of the wages to the respondent with effect from 29.04.2011 till she is reinstated in service would not meet the ends of justice. Rather this Court keeping in mind the principle propounded by the Hon'ble Supreme Court of India does require the appellants to pay lump sum amount.
W.A. No.688 of 2022 Page 78 of 8016. As the workman has worked only for a period of about four years and he has already at the age of about 55 years, it is a fit case for modification of the relief granted by the learned Single Judge. The reinstatement with back wages is not automatic in every case, where retrenchment is found to be not in accordance with the requirement stipulated in Section 25-F or Section 25-G of the ID Act.
16.1. Considering the fact that the respondent was in effective service only for about four years and eight months in toto, and out of service since 1989 till 2010 and subsequently since 2011, and no scrap of paper has been furnished to this Court to show that she was not in gainful employment during the said period(s), this Court deems it appropriate that the direction of the learned Single Judge at paragraph 14 of the impugned Judgment requires modification. Therefore, the appellants are now required to pay lump sum monetary compensation to the tune of Rs.2,00,000/- (rupees two lakhs only).
16.2. This Court, accordingly, directs payment of lump sum compensation of Rs.2,00,000/- (rupees two lakhs only) to the respondent, within a period of eight weeks from today, failing which said amount shall carry interest @ 6% per annum, till actual payment.
W.A. No.688 of 2022 Page 79 of 8017. In fine, the Judgment dated 17.08.2021 of the learned Single Judge in WPC (OAC) No.3077 of 2014 stands modified to the extent indicated above, but in the circumstances, there shall be no order as to costs.
(MURAHARI SRI RAMAN) JUDGE MR. CHAKRADHARI SHARAN SINGH, CJ. I agree.
(MR. CHAKRADHARI SHARAN SINGH) CHIEF JUSTICE High Court of Orissa, Cuttack The 15th May, 2024//MRS/Suchitra Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 15-May-2024 19:17:01 W.A. No.688 of 2022 Page 80 of 80