Orissa High Court
Prasanna Kumar Pattanaik vs The Presiding Officer on 8 September, 2023
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
AFR
W.P(C) NO. 28448 OF 2013
In the matter of an application under Articles 226 & 227 of
the Constitution of India.
---------------
Prasanna Kumar Pattanaik ..... Petitioner
-Versus-
The Presiding Officer, Central Government Industrial Tribunal-
cum-Labour Court, Bhubaneswar
and others
..... Opp. Parties
For petitioner : M/s. Shibashish Misra,
P.K. Mahapatra and
S.S. Sahoo, Advocates
For opp. parties : M/s. Shashi Bhusan Jena, S. Behera, A. Mishra and S. Soren, Advocates [O.P.2] Mr. P.R. Barik, Advocate [O.P. 3] P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN Date of Hearing: 02.09.2023:: Date of Judgment: 08.09.2023 Page 1 of 43 DR. B.R. SARANGI, J. By means of this writ petition, the award dated 22.02.2013 passed by the Central Government Industrial Tribunal-cum-Labour Court, Bhubaneswar in Tr.I.D. Case No. 272 of 2001 under Annexure-1 is sought to be quashed partially and modified to the effect that the petitioner-workman is entitled to be reinstated with full back wages and all consequential benefits including temporary status as well as permanent absorption under the pay roll of the opposite party-management, what he would have got, had his services not been terminated by the management.
2. The factual matrix of the case, as is borne out from the record, precisely stated as follows:-
2.1 Bharat Sanchar Nigam Limited (BSNL), of which opposite party nos. 2 and 3 are the officers, is a Government of India Company, as defined under Section 617 of the Indian Companies Act, 1956. A dispute was raised between the petitioner and the opposite parties-
management. As a consequence thereof, the Government of Page 2 of 43 India, Ministry of Labour, in exercise of the powers conferred by clause (d) of sub-section (1) and sub-section 2(A) of Section 10 of the Industrial Disputes Act, 1947, referred the industrial dispute existing between the employers, i.e., the Management of the Director, Microwave (Maintenance), Telecom; Director, Microwave (Projects) and their workman, vide letter no. L-40012/10/99/1R(DU) dated 19/21.07.1999, to the following effect:-
"Whether the action of the management of Project Division/Maintenance Division, Deptt. of Telecommunications by terminating the services of Shri Prasanna Kumar Patnayak is legal & justified? If not, to what relief the workman is entitled?"
2.2 The petitioner, being the workman, filed the statement of claim stating inter alia that the Government of India in the Ministry of Communication, through its Department of Telecommunication, runs the Microwave System of Telecommunication in the whole country. For the convenience of administration, the entire industry was divided into projects and maintenance, which form integral and inseparable activities in Government Department, which ultimately operates in circle. Though the project Page 3 of 43 work was in the initiation of the system, as the said work gets completed in phases and stages, the maintenance requirements becomes necessary. For operation and upkeep of the system in the circle, the maintenance requirement increases and continues co-extensive with the operation of the system.
2.3 The project work consists of civil work, construction work, laying down optical fibre cables etc., besides installation work of the system, generator, microwave tower, antennas, etc. in both the work in operation. Departmental workers are engaged on daily rate of wages until they or any of them get absorbed in the regular rolls of the management. On being taken to regular rolls, they are given scale of pay with D.A., V.D.A and other allowances and benefits.
2.4 The project work and so also the maintenance work are not confined to specific areas or location, but reveal a continuity of location of activities geographically. Accordingly, as per work requirement, the workers engaged Page 4 of 43 in the project work and also maintenance get shifted from place to place. In view of the inbuilt/ inherent nature and condition of work, they are shifted from place to place, as directed by the authority orally through telephonic system, which is normal mode of communication to assign, allot and control work, when physical presence is not possible. Different controlling officers of the department are assigned with different sections or stations of work. These officers supervise the work of these workers, whether in the project or maintenance job, maintains records of their attendance, effect payment of wages month to month obtaining necessary receipts from them and exercise control as necessary. Officers of the Govt. of India in the Post and Telegraph Department, exploit these workers by payment of even less than subsistence rates of wages, denial of overtime wages for working for extra hours, denial of weekly holidays, annual leave, national and festival holidays and various other allowances, benefits and perks and that are available to the regular register borne workers and also in many other aspects of their service conditions. The Page 5 of 43 disputant workman as also many others employed in the project and/or maintenance work of the system have to live in jungles, terrains, etc. with all the risks of life and hardship of the places and have to undertake to all pains and hazards or attending to the works in the system to earn their livelihood.
2.5 The petitioner-workman had been engaged under the opposite party-management no.3 initially on 01.04.1989 and had been placed under the Microwave (Projects) in different stations and finally at Aska Station (wrongly typed as Digapahandi Station in the statement of claim) under the Bhubaneswar Division till 31.05.1997. On completion of project work there, the workman was assigned duties in the maintenance work at the same station where he continued till 24.12.1997, when he was refused employment and was forced to vacate the said station with the help of police. While working in the maintenance, besides doing maintenance job as per requirement, he was also guarding the installation at the said station. He, like several others, was not paid his Page 6 of 43 earned wages, for which with the help of their trade union, they moved various authorities, including the Asst. Labour Commissioner (Central), Bhubaneswar. Like the present workman, there were other colleagues of him, who, more or less suffered with the same maltreatment of the opposite party-management no.2, in particular, the authorities in maintenance system. They were in all ten such workmen who had become the victims of the said harsh treatment. While the petitioner-workman and some others, out of the said ten workmen, were denied further employment, after 24.12.1997, some other colleagues of his had been denied employment either on 26.12.1997 or on 29.12.1997, as the case may be. After several approaches to the management authorities as also to various Governmental Authorities, including the Asst. Labour Commissioner (Central), Bhubaneswar, finally all these ten workmen, including the petitioner, were paid their earned wages w.e.f. 01.06.1997 till the dates of their individual refusal action. But they were denied continuance of employment on various lame pleas from the respective dates for each of them. This Page 7 of 43 petitioner-workman was denied employment after 24.12.1997.
2.6 The petitioner-workman had put in about 9 years of continuous service under the opposite party- management no.3 and while being refused continuance in employment, he was not paid any wages and benefits under the retrenchment law nor was there any consideration for the length of his service, i.e., inter se seniority amongst the workmen in the said category nor any permission for effecting such retrenchment had been taken by the opposite party-management, though the industry employed several thousands of workmen. There was also no justification to terminate their employment by way of refusal of service, since their requirement in work continued and fresh recruitments from open market were being made clandestinely. While the petitioner-workman was refused employment, several other workmen, who are juniors to him in the said category, continued in employment without interruption and many of them, either before such refusal Page 8 of 43 of employment or shortly thereafter, were brought over to the regular roll of the opposite party-managements. 2.7 The petitioner-workman, along with nine others, more or less similarly situated, had through their registered trade union raised industrial dispute before the opposite party-managements. There was conciliation proceeding in respect of all these ten workmen, which eventually failed as the opposite party-managements exhibited un-conciliatory attitude. On consideration of report of failure submitted by the A.L.C. (Central), Bhubaneswar, ten separate orders of references were issued by the Govt. of India, the terms of reference being more or less the same, which were all adjudicated by the C.G.I.T. as transferred cases. 2.8 It was further pleaded in the said statement of claim that the action of the opposite party-managements which amounts to retrenchment, violates the retrenchment law, as enshrined in Sections 25-F, 25-G and 25-H of the Industrial Disputes Act, 1947. The project work and the maintenance work of the project being the continuous Page 9 of 43 activities of the opposite party-managements, there could be no justification to terminate the services of the petitioner-workman, as had also happened in the cases of nine others, who were also before the C.G.I.T. in Tr.I.D. Case Nos. 273 to 281 of 2001. Further, lack of legality or justification of the action is also patent on Courts record in Tr.I.D. Case No.268 of 2001, wherein 158 workmen, with similar history of employment under the opposite party- management, are still continuing in employment including many juniors to the petitioner-workman, which reveals the blatant violation of Sec. 25-G of the 1ndustrial Disputes Act, 1947.
2.9 The petitioner-workman had further pleaded that the workmen similarly situated working under the opposite party-managements, with much less length of service rendered by them, have been taken into the regular rolls of the Government. Thereby, such disparity in treatment is arbitrary, illegal and discriminatory. Accordingly, prayer was made to pass award holding that the termination/retrenchment of service of the petitioner- Page 10 of 43 workman was neither legal nor justified, and that the workman is entitled to the relief of reinstatement in service with all service benefits, which would have due to him had he continued in employment, and such other reliefs as due to the workman may be granted.
2.10 The opposite party-managements in their written statement disclosed that the petitioner-workman was never engaged in the maintenance division, so the question of termination of his service does not arise. The disputant union is not a recognized trade union nor any authorized person has raised any dispute and the claim statement has not been signed and verified by the petitioner-workman and the permanent address of the workman is not mentioned in the cause title for proper identification. Thereby, while denying the allegations/averments made in the statement of claim, it was stated in the written statement that Microwave (Project) Division and (Maintenance) Division are two different Units of Telecom Department. Microwave (Project) undertakes the construction work of Microwave /OFC Systems. After completion of project work and Page 11 of 43 completion of the testing of the systems / stations, the same are handed over to the Maintenance. The said two Wings of Telecom Department are being controlled by two different Chief General Managers and they get their working staff on deputation basis from their respective territorial Telecom Circle /Telecom District. Some time some works are carried out by them through contractors or through casual workers on contract basis on as and when need basis observing the departmental rulings. Director, Microwave (Maintenance) Division had never taken these workmen from the Director, Microwave (Project) Division and there are no such provisions or Rules in the Department to make over/take over any working force from Project to Maintenance or vice-versa, so the question of regular rolls/ Pay/ D.A. / VDA and other allowances and benefits does not arise.
2.11 It was further stated that there are ten Maintenance Divisions in Odisha functioning under the opposite party-managements and the project work throughout Odisha are done through different Project Page 12 of 43 Divisions and after completion of the project work the systems are handed over to the Maintenance Division. The casual labourers engaged in one Project Division cannot be engaged in another Maintenance Division simultaneously and they are never taken by the Maintenance Division after closure of project work. In fact, the Maintenance work of different stations is generally managed by the respective J.T.Os/SDEs/DEs through existing regular staff. No casual labourer was engaged against any R.M./ Group -D vacancies. Since 1997, the Department is carrying out the departmental work through registered contractors whenever necessary as per the DOT Order/ Instructions. The said order emphasizes that due to ban order of any kind of casual engagement, the departmental work should be done through contractors. Therefore, it was contended that the petitioner-workman was never engaged by the opposite party-managements at any point of time nor the alleged workman was paid by the Director (Maintenance) Division at any point of time nor he was carrying on the maintenance job and guarding the installation at the said Page 13 of 43 stations. The CGM, Microwave (Maintenance), ETR, Kolkata, vide his letter dated 08.12.1995, had categorically instructed the opposite party-managements not to engage any kind of casual labour or take over from project division. 2.12 The Maintenance Division has no power to appoint any staff. It works by taking its working staff on deputation from the telecom circle in the State and some time used to engage contractors for carrying out the works. The opposite party-managements neither engaged the alleged workman at any point of time by any manner nor retrenched him. The 158 workmen in Tr.I.D. Case No.268 of 2001 are not continuing under the Management of Director, Microwave (Maintenance) Division. They are being deployed by the Contractor M/s Oriental Security Services in different stations as per the contract between the contractor and the opposite party-managements and are paid by M/s Oriental Security Services. There is no employer and employee relationship between the workman and the opposite party-managements nor have the opposite party- managements any relationship of employer and employee Page 14 of 43 with those 158 workmen related to Tr.I.D. Case No.268 of 2001 and other workmen of Tr.I.D. Case Nos. 273 to 281 of 2001 pending before the Tribunal.
2.13 The Director, Microwave (Project) filed a separate written statement stating therein that the said project is an organization of Telecom Department, now Bharat Sanchar Nigam Limitede, and is being managed by the Chief General Manager of Telecom, Project, Kolkata in different zones and has been set up to carry out different telecom project work in different zones of the country. To run the telecom project, all the employees are pulled from the existing strength of regular employees of the department of telecom. The Director, Microwave (Project), Bhubaneswar has no power to recruit the employees and/or cadre where-so-ever. Therefore, the question of appointment or reinstatement on the part of the opposite party-management does not arise. The opposite party-management no.2 is an independent wing of D.O.T., whose main work is to install long distance microwave and optical fiver cable communication system, etc. in the State of Odisha. On completion of the said Page 15 of 43 project, opposite party-management no.3 makes over the said system / station to the opposite party-management no.2 for maintenance. During continuance of the project works, some casual workers are/were used to be engaged in the site in charge on as and when required basis for miscellaneous work since the work of the project are not perennial nature. The casual workers engaged so are compensated suitably according to the then rates of the Government of India. After closure of the project work for the systems and stations the maintenance division used to maintain the same by taking staff from telecom circle on deputation. The opposite party-management no.2 never takes any casual workers from the project except on few occasions for a short period. After closure of project no work is available for the casual workers. Therefore, their engagement is used to go along with the closure of the project. The casual labourers are engaged for doing the manual work, whereas the technical works are done by the qualified persons of the department.
Page 16 of 43 2.14 Therefore, the casual workers engaged in one Project Division cannot be engaged in the Maintenance Division. The site In-Charge of Project Division allot the work to the casual labourer on the availability of casual nature of work on as and when required basis. The casual workers were not engaged continuously and being paid in A.C.G-17 Vouchers by the JTOs/SDEs of the Site out of their temporary advances. No casual labourer is engaged against any R.M./Group D vacancies. Further, the D.O.T. has banned engagement of casual labourers since 30.03.1985 and till now the same is continuing. Therefore, during ban period any engagement of casual labour is illegal and unauthorized.
2.14 Therefore, according to opposite party- management no.3 that Optical Fibre cable work of project at Aska was completed in all respect and handed over to Maintenance Wing and within 31.05.1997 the Stores were shifted. The workmen were paid with the wages till 31.05.1997. As there was no work available with the project, the workmen were not provided with work. But the Page 17 of 43 petitioner-workman created disturbance at the site with staff of Maintenance Division and did not vacate the premises for which the Site In-charge of Maintenance Division was forced to take help of police to vacate the petitioner-workman from the premises. However, the Project Division on intervention of the A.L.C. has paid full wages to the workman till 29.12.1997 though he was not engaged at the site since 01.06.1997 to 29.12.1997. Thereby, no illegality committed towards the petitioner- workman. It was also pleaded that the workmen were engaged by the Site In-charge on as and when required basis and after completion of project work they were not engaged as there was no work to perform and the opposite party-Management No.3 is not engaging the casual worker and disengaging them. All the workmen of Tr.I.D. Case Nos.272 to 281 of 2001, pending before the C.G.I.T., Bhubaneswar, were engaged in Project Divisions at Aska, Purusottampur, Balipadar and Digapahandi. The project works at these places have already been completed and the stations have been handed over to the Director Page 18 of 43 (Maintenance) ETR, Bhubaneswar since 1996-97. Further, when there is no requirement of casual labours and also any vacancy in the Maintenance Stations, they are not bound to take the workmen to their Divisions. The project work is not perennial in nature and after closure of the project work the casual labour cannot claim for continuance in the project and since there is no work of project at Aska station, the question of engagement of casual worker does not arise.
2.15 Initially, on the basis of the reference, as indicated above, I.D. Case No 86 of 1999 (c) was registered on the file of the State Industrial Tribunal, Bhubaneswar. Subsequently, on formation of the CGIT-Cum-Labour Court, Bhubaneswar in the year 2001, the same being transferred to the learned CGIT, was renumbered as Tr.I.D. Case No.272 of 2001. Before the Tribunal, the petitioner- workman filed its claim statement, whereas the opposite party-managements filed their respective written statement with the pleadings as mentioned above. As provided under Rule 10-B (4) of the Odisha Industrial Disputes Rules, Page 19 of 43 1959, the petitioner-workman filed his joint rejoinder to the said written statements denying/disputing the averments made in the said written statements. The petitioner- workman specifically pleaded in the rejoinder that the reference is very much maintainable and the action of the opposite party-managements is not in compliance of the principles laid down under Section 25-F , 25-G , 25-H and 25-N of the Industrial Disputes Act, 1947 before his removal from service. Therefore, he is liable to be reinstated with full back wages from the date of termination of his service. It was also pleaded that after 31.05.1997, the petitioner workman was engaged directly by the department in the maintenance work in Aska station, where he had been working in the project. There was no discontinuity in service. His continuance in employment in maintenance work was as per the oral orders of his superiors, which was also the practice in the Department of Telecommunication in Odisha since beginning in respect of DRM workers. Numbers of workmen of project wing, much juniors to the petitioner-workman, namely, Shri Birendra Parida, Page 20 of 43 Balakrishna Pandit, Ajaya Kumar Pradhan, Sudhansu Panigrahi, G. Mukunda Sahoo, Kajal Kumar Jena, etc., have been taken in as regular workmen and are being continued in employment. However, the petitioner- workman was not paid wages from June, 1997 and was ultimately refused employment. The project work is not confined to a particular place or site. It is a work in continuity spread over hundreds of kilometer and is continuing since inception of the departmental activities in the State and not only the project work, but also the project division continues to function in the State. Project workers are shifted from one side to another depending upon the work need. As such, no closure notification has been given nor any notice pay and compensation in accordance with law are given to the workman. As a matter of fact law discounts such alleged closure action without taking prior permission of the Central Government under Section 25-O or adherence to Section 25-F, 25-FFF and 25-N of the Industrial Disputes Act, 1947 and the plea that the Maintenance Division functions on taking working staffs on Page 21 of 43 deputation from telecom circle is not correct. Every division has its own employees, no deputation is known to the workman since it never existed. The alleged engagement of so-called contractors is an artificial cover to perhaps escape demand for regularization for making unconscious saving at the cost of the labour and to hoodwink law. The employment of 158 workmen in Tr.I.D. Case No. 268 of 2001 is untruthful and further it is also untruthful to say that only the regular employees of telecom department run the project. The departmental activities in Odisha consists of three divisions, namely, project division, maintenance division, circle division and all the divisions are interlinked and the expression "casual worker" also a deception and misuse. The present workman was never a casual worker, but had been continuously working since his employment in the year 1989 and plea of taking staff from telecom circle on deputation to the maintenance division is equally contrary to truth and the workman had put in continuous service within the meaning of Section 25-B of Industrial Disputes Act, 1947 from the beginning of his employment Page 22 of 43 and is now over aged for any employment anywhere and, as such, his right to life and living protected under Article 21 of the Constitution, has been violated.
2.16 To the above pleadings, the Tribunal framed two issues, such as:
"1. Whether the action of the 1st Management by terminating the services of their workman Prasanna Kumar Pattanaik is illegal and justified?
2. To what relief the Petitioner Workman is entitled?"
2.17 In order to substantiate his pleadings, the petitioner-workman examined the General Secretary of the disputant Union as WW-1 and himself as WW No. 2 and exhibited documents under Exts. 1 to 31. Similarly, the opposite party-management no.2 examined only one witness, namely, Sri Nabaghan Panda, an officer of the maintenance division, as the sole MW and the documents were marked as Exts. A to H through MW-1, whereas the opposite party-management no.3 did not adduce any evidence in the said ID Case. To fortify the stand take by the petitioner-workmen, he had also filed his written notes of submission on 17.08.2011.
Page 23 of 43 2.18 The Tribunal passed the final award after about 18 months from the date of closure of the said case by passing the award on 22.02.2013 in Tr.I.D. Case No. 272 of 2001 holding therein that even if the termination of the services of the workman-petitioner is found to be illegal or unjustified, he is not entitled to be reinstated in service with back wages and he is only entitled for a lump sum amount of Rs 1.00 lakh in lieu of reinstatement and in addition to the same, he is entitled for notice pay and retrenchment compensation in terms of Section 25-F of the Industrial Disputes Act, 1947 from the opposite party- management no.3 and no relief can be granted against the opposite party-management no.2 on the plea that there is no proof that the petitioner-workman had ever worked under the Director/Microwave (Maintenance). Hence, this writ petition.
3. Mr. Shibashish Misra, learned counsel appearing for the petitioner contended that the project wing is a permanent wing, which undertakes different projects depending upon the requirement of circle and after a Page 24 of 43 project work is completed, the same is either being handed over to circle or to the maintenance division for its future operation. Since a period of more than 15 years has passed and the work at the project at Aska, where the petitioner was engaged, has been completed long back, denial of the relief of reinstatement is erroneous, contrary to law, against the weight of evidence on record and, as such, the same is liable to be set aside. Thereby, the Tribunal has committed an error apparent on the face of record having not appreciated the evidence available on record. According to him, after closure of the project work, the petitioner- workman was assigned the duties in the maintenance work at Aska station after 31.07.1997. Thereby, he is entitled for reinstatement with all consequential benefits, since he was illegally refused employment in contravention of Sec. 25-F, 25-G and 25-N of the Industrial Disputes Act, 1947. It is further contended that being confronted with Ext.31, though the management witness admitted that Ext.31 is the circular relating to temporary status to workers, the Tribunal failed to take note of the said admitted piece of Page 25 of 43 evidence while passing the impugned order, which cannot be sustained in the eye of law.
3.1 It is further contended that the Tribunal, while passing the impugned award, failed to appreciate the admission of the MW-1 regarding Ext.31, 31/1 and 31/2, wherein the Director Maintenance, Bhubaneswar, i.e., the present opposite party-management no. 2 had requested the AGM (Admn.) ETR, Kolkata for creation of temporary status posts, enclosing the list of workers thereto, which was written in response to letter of the AGM dated 04.05.2002 and Ext.31/2, which reflects name of the petitioner-workman, indicating therein the numbers of days worked by him and also date of removal from the service. 3.2 It is further contended that the Tribunal also failed to take note of the admission made by MW-1 during his cross-examination, wherein he admitted that it is a fact that Ext.18 is the letter dated 13.03.2001 of the DGM (Maintenance) ETR, Bhubaneswar addressed to the AGM (Admn.) ETR, Kolkata, enclosing thereto a proforma-wise Page 26 of 43 list of casual worker working under the jurisdiction of the maintenance division bearing names of the petitioner- workman and nine others, and erroneously gave an observation in the impugned award that no written order or documentary proof is there to the extent that the petitioner- workman was assigned the duties in the maintenance work. Therefore, due to non-consideration of the same in its proper perspective, the Tribunal has committed gross error. According to him, Exts.13 and 15 prove that labourers/ workers, including the petitioner-workman, were working under the project for installation job and handed over to the ETR Maintenance recommending their case for conferment of temporary status and regularization and the name of the petitioner-workman finds place in the said list appended to Ext.13, but the Tribunal failed to take note of the said admitted evidence while passing the impugned award. 3.3 Though series of DOT orders, with regard the conferment of temporary status and regulation of services of casual mazdoors, were exhibited before the Tribunal and marked as Exts. 9, 10, 17 and 31, but the same have not Page 27 of 43 been taken care of by the Tribunal in their proper perspective.
3.4 Even though the documents were produced under Exts.17, 19, 27, 28 and 29 to prove that juniors to the petitioner-workman were conferred with temporary status and were regularized, though the Tribunal came to a finding as to violation of Section 25 G of the 1ndustrial Disputes Act, 1947, but, while granting relief, the same has not been taken care of. Thereby, the award so passed cannot be sustained in the eye of law.
3.5. Though MW-1 during his cross-examination admitted that the circulars issued by DOT (Department of Telecommunication) are applicable to the petitioner- workman and similarly placed workers working under the Project, Maintenance and Circle Divisions and that in Tr.I.D. Case No 268 of 2001 award has been passed to give temporary status to 168 workers, including the petitioner- workman, as mentioned in Ext.18, which has been confirmed by this Court in its order dated 22.06.2007 Page 28 of 43 passed in W.P.(C). No 9101 of 2003 and reaffirmed in Writ Appeal No 53 of 2007, to prove that the counterparts of the petitioner-workman, whose services were also transferred to maintenance division under the opposite party no. 2, were directed to be conferred with temporary status, but the Tribunal failed to take note of the said fact in its proper perspective. Therefore, impugned award does not sustain. 3.6 Learned counsel further contended that in view of the decisions rendered by this Court in W.P.(C) No. 9101 of 2003 disposed of on 22.06.2007, the conferment of temporary status could have been granted in favour of the petitioner-workman, though not regularisation as the petitioner stands on the same footing with the workmen in the said writ petition. According to him, out of 168 workmen, those who had raised industrial disputes, the petitioner-workman and nine others, being terminated from service, were segregated from those 168, whose cause had been espoused by the Union, had approached the Tribunal by raising industrial disputes independently. So far as grant of temporary status is concerned, that is akin to the Page 29 of 43 relief sought in W.P.(C) No. 9101 of 2003 disposed of 22.06.2007. Thereby, the said relief should have been extended in favour of the petitioner, if not regularisation. 3.7 To substantiate his contention, learned counsel for the petitioner has placed reliance on Daily Rated Casual Labour Employed under P&T Department through Bhartiya Dak Tar Mazdoor Manch and Ors. v. Union of India (UOI) and Ors., AIR 1987 SC 2342; Management of Director, Microwave (Maintenance) v. Workmen & Ors., CLT (2007) SUPP. 70; The Management of Director, Microwave ETR v. Workmen Rep. By president, O.T.M.M. Sangha & Anr., unreported order dated 07.11.2008 passed in W.A. No.53 of 2007; Chairman-cum-Managing Director, BSNL & Others Vrs. Punia Sahoo & Others, unreported Judgment dated 01.07.2011 passed in W.P.(C) No. 14715 of 2011; Interim Order dated 08.05.2009 passed in SLP (Civil) 9790 of 2009 (Management of Director, Microwave ETR Vs. Workmen Rep. By pres. O.T.M.M. Sangha & Anr.), confirming the Page 30 of 43 judgment of learned Single Judge, reported in CLT (2007) SUPP. 70.
4. Mr. S.B. Jena, learned counsel appearing for opposite party-management no.2, reiterated the stand taken in the written statement filed before the Tribunal and further contended that ID Case is not maintainable against the opposite party-management no.2, i.e., Director Microwave (Maintenance), now re-designated as Deputy General Manager (Maintenance), ETR, as the petitioner nor any of its association member is the employee nor engaged as casual labourer under opposite party-management no.2 at any point of time and disputed the fact of engagement of the petitioner-workman in Microwave Maintenance Division. Therefore, contended that question of termination of services by the management of Microwave Maintenance Division does not arise. It is further contended that Microwave Mazdoor Sangh is neither a recognized trade union nor the recognized trade union of the telecom department. Therefore, Prasanna Kumar Patnaik, Page 31 of 43 petitioner-workman is not an authorized person to raise the dispute.
4.1 Learned counsel for opposite party-management no.2 further contended that the petitioner-workman had never been engaged by the opposite party-management no.2 at any point of time. Therefore, the question of payment of wages or any benefit under the retrenchment law, on consideration of length of service, does not arise. He also contended that the project work and maintenance work are totally distinct and different and does not run concurrently, as has been alleged by the petitioner- workman. Therefore, the project workers have no right to continue after closure of the project. As such, the maintenance division has no power to appoint any staff. It works by taking its working staff on deputation from the territorial telecom circle in the State and sometimes used to engage through contractors for carrying out the works. As the opposite party-management no.2 had neither engaged the workman at any point of time by any manner nor Page 32 of 43 retrenched, therefore, the relief sought as against the said opposite party cannot be sustained.
5. Mr. P.R. Barik, learned counsel appearing for opposite party-management no.3 endorsed the argument advanced by Mr. S.B. Jena, learned counsel appearing for opposite party-management no.2 and also reiterated the same and contended that the petitioner-workman is not entitled to get the relief sought and justifies the award passed by the CGIT-cum-Labour Court. Thereby, he prays for dismissal of the writ petition.
6. This Court heard Mr. Shibashish Misra, learned counsel appearing for the petitioner-workman; Mr. S.B. Jena, learned counsel appearing for opposite party- management no.2 and Mr. P.R. Barik, learned counsel appearing for opposite party-management no.3 in hybrid mode and perused the records. Pleadings have been exchanged between the parties and with the consent of learned counsel for the parties, the writ petition is being disposed of finally at the stage of admission. Page 33 of 43
8. Admittedly, the opposite party-managements have not challenged the award passed by the CGIT-cum- Labour Court. The CGIT, for a just and proper adjudication of the case, had framed two issues, as mentioned above. So far as issue no.1 is concerned, it had come to a definite finding that the action taken by the 1st party-managements in terminating the services of Shri Prasanna Kumar Pattnaik, the 2nd party-workman, cannot be held to be legal and justified. Thereby, answered the issue no.1 against the 1st party-managements. So far as issue no.2 is concerned, it was also directed that the petitioner-workman shall be offered re-employment by the 1st party-management no.2 in case any casual worker is employed by it in future in accordance with the provisions of Section 25-H of the Industrial Disputes Act, 1947.
9. Since both the issues are answered in favour of the petitioner-workman and the CGIT found that termination of the services of the petitioner-workman cannot be held as legal and justified, the consequential corollary would be that the petitioner-workman should have Page 34 of 43 been reinstated in service with full back wages as well as temporary status and permanent absorption in the pay roll of the opposite party-managements.
10. While dealing with issue no.2, the Tribunal held that the petitioner-workman shall be offered re- employment by the 1st party-management no.2 in case any casual worker is employed by it in future in accordance with the provisions of Section 25-H of the Industrial Dispute Act, 1947. Thus, the stand of the petitioner- workman seeking for partial quashing of the award and modification thereof seeking for reinstatement with full back wages as well as temporary status and permanent absorption has some justification, in view of the judgment rendered by this Court in Management of Director, Microwave (Maintenance) v. Workmen and Ors. [W.P.(C) No.9101 of 2003, decided on 22.06.2007], wherein grievances of 168 employees were espoused by the Union and out of them, the petitioner-workman and 9 others, whose services were retrenched, were excluded from the list and they filed separate Industrial Dispute cases, wherein Page 35 of 43 the Tribunal has passed the impugned award. But, so far as the claim of 158 employees is concerned, the Tribunal passed the award dated 19.05.2003 in Tr.I.D. Case No.268 of 2001 directing the opposite party-managements to give temporary status to the petitioner-workmen therein and consider their case for regularization, if posts are created and sanctioned in future. Therefore, learned Single Judge, while adjudicating the matter, came to a definite conclusion and directed that the number of year of service rendered by each workman represented by opposite party-Union be calculated and those, who satisfy the requirements for temporary status in terms of the Scheme, be conferred with such status. But so far claim of regularization of services is concerned, the same was denied taking into consideration the judgment of the apex Court in Secretary, State of Karnataka & Ors. v. Uma Devi & Ors., AIR 2006 SC1806, wherein the Constitution Bench has referred to Dr. D.C. Wadhwa and Ors. V. State of Bihar and Ors., 1987 (1) SCR 798 and Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College, (1962) SUPP. 2 Page 36 of 43 SCR 144. In that case, refusal to give promotion to the writ petitioner therein as the Principal of a College was the subject of consideration and the Court held that a writ of mandamus may be issued to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and mandamus could not be issued in favour of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent. Therefore, learned Single Judge has come to a definite finding that no direction can be issued for regularization of services and accordingly set aside a part of the order of the Tribunal and directed the management to consider regularization of the workmen, if posts are created/sanctioned in future and it is for the management to decide as to whether such workmen should be Page 37 of 43 regularized in posts they are holding or not and the Court cannot issue mandamus directing regularization.
11. Mr. S. Mishra, learned counsel appearing for the petitioner-workman contended fairly that so far as the claim for permanent absorption and regularization of services in the pay roll of the management is concerned, the petitioner- workman has abandoned such prayer and in course of argument has confined his relief to grant of temporary status as the petitioner-workman stands on the same footing as the petitioners in the judgment rendered by the learned Single Judge in Management of Director, Microwave (Maintenance) ETR (supra). It is further contended that the said judgment of the learned Single Judge was challenged before the Division Bench of this Court in W.A. No.53 of 2007 by the management and the Division Bench of this Court, vide order dated 07.11.2008, dismissed the said W.A. and upheld the judgment rendered by the learned Single Judge. Against the said order, the management preferred SLP(C) No.9790 of 2009 and the Page 38 of 43 apex Court, vide order dated 08.05.2009, passed the following order:-
"Leave granted.
No stay.
Appeal to be heard on the paper book. Pleadings be completed in the next 12 weeks. Interim Judgment of the learned single Judge shall be worked out."
Finally, the said SLP was disposed of by confirming the order of the learned Single Judge in W.P.(C) NO.9101 of 2003. Thereby, it is contended that since the petitioner- workman stands on the same footing, he should be given temporary status relying upon the judgment of the Division Bench of this Court in Chairman-cum-Managing Director, Bharat Sanchar Nigam Ltd. v. Sri Punia Sahoo (W.P.(C) No.14715 of 2011, decided on 15.07.2011).
12. Mr. S.B. Jena, learned counsel appearing for the opposite party-management no.2 and Mr. P.R. Barik, learned counsel appearing for opposite party-management no.3 dispute the fact of similarity of the petitioner-workman with the workmen in W.P.(C) No.9101 of 2003. But, to establish the similarity of the petitioner-workman with the workmen of W.P.(C) No.9101 of 2003, a comparison Page 39 of 43 statement has been furnished by Mr. S. Mishra, learned counsel appearing for the petitioner-workman.
Retrenchment Temporary Status and
Regularization
Award dtd.22.02.2013 W.P.(C) No. 9101 of 2003
passed in I.D.Case No. (Learned Single Judge)
272 of 2001.
Contention of the
Contention of Workmen Workman
1. Project work and 1. Project or
maintenance are no confined maintenance or circle is to specific areas or location. inter-transferable -these are the three activities of
2. The workers engaged in the eastern telecom region.
the project or in the
2. The activity of
maintenance work get shifted
telecom system starts from
from place to place as per
the project.
requirement.
3. After the project work
3. The petitioner-Workman is over, it is handed over was placed at the Microwave to the maintenance section. Project till 31.05.1997 and The workmen working in after completion of the project the project are a l l o w e d work he was assigned duties t o continue under in the maintenance work. the maintenance department.
Contention of the Contention of the
Management Management
1. Reference is not 1. Workmen are working
maintainable as the workman through a contractor on
is not an employee of the contract basis.
Management and never
engaged by them. 2. T h e pr o jec t an d
m ain ten anc e divisions
2. Microwave Project and are two separate and
Maintenance are two distinct wings of the
separate and independent telecom department.
wing.
3. The project work in 3. The workmen never
Odisha is done through worked in the
Page 40 of 43
project divisions and after maintenance.
completion of the project; the 4. Initially the Union systems are handed over to represented 168 Workmen the maintenance division. for which the reference The Casual Labourers was made.
engaged in the Project Division cannot be engaged 5. Out of the 168 in another maintenance Workmen 10 raised division after closure of the individual disputes for Project Work. which separate reference 4. The 158 workmen in T.R. was made I.D. Case No.268 of 2001 are deployed by the Contractor in different station and are paid by the Contractor. There is no employer and employee relationship between the Management and the Petitioner, and also the 158 Workmen. Findings of the Labour Court 1. Issues- Whether the action of the 1st Party Management by terminating the services of the workman is legal and justified? (a) The Management has not complied with the provision of Section 25-F of the I.D. Act. Therefore, the retrenchment of the Workman who has rendered nearly 9 years of continuous service is illegal. 2. What relief the 2nd Party Workman is entitled ? (a) The work at the project has been completed long back and he cannot be given the relief of reinstatement. (b) Rs. 1,00,000/- compensation in the lieu of the reinstatement. Page 41 of 43
13. On analysis being made to the fact mentioned above, it is made clear that there is no dissimilarity between the fact of the petitioner-workman vis-à-vis the fact of the workmen in W.P.(C) No.9101 of 2003. Thereby, the judgment passed by the learned Single Judge having been confirmed by the apex Court, the ratio decided in the said case may have application to the present case.
14. In the above premises, even though learned counsel for the petitioner-workman has abandoned the claim of the petitioner-workman for regularization and permanent absorption, as directed by the Tribunal while holding the termination of the petitioner-workman as illegal and unjustified, but the claim for conferment of temporary status on the petitioner-workman is justified, in view of ratio decided by this Court in W.P.(C) No.9101 of 2003, which has been confirmed by the apex Court, when there is no dispute that the petitioner-workman is the employee of the opposite party-managements, but, however, the temporary status shall be conferred on the petitioner- Page 42 of 43
workman depending upon the number of years of service rendered by him with reference to the Scheme made pursuant to the decision of the apex Court. Thereby, this Court modifies the impugned award passed by the Tribunal to the aforesaid extent.
15. Accordingly, the writ petition is allowed in part. But, however, there shall be no order as to costs.
(DR. B.R. SARANGI)
JUDGE
M.S. RAMAN, J. I agree.
(M.S. RAMAN)
JUDGE
Orissa High Court, Cuttack
The 8th September, 2023, Arun/Alok
Signature Not Verified
Digitally Signed
Signed by: ARUN KUMAR MISHRA
Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: Orissa High Court Date: 08-Sep-2023 16:14:28 Page 43 of 43