Orissa High Court
Madhabananda Jena vs Orissa State Electricity Board And Ors. on 22 August, 1989
Equivalent citations: (1990)ILLJ463ORI
Author: D.P. Mohapatra
Bench: D.P. Mohapatra, A. Pasayat
JUDGMENT D.P. Mohapatra, J.
1. The petitioner who claims to be a member of the Schedule Tribe has filed this application under Article 226 of the Constitution of India praying, inter alia, to quash the order of his termination from service and to direct the Orissa State Electricity Board (for short, 'the Board') and its officers concerned in the matter to reinstate him in service with all consequential service benefits. The Orissa State Electricity Board, Superintending Engineer, Electrical Circle, Jajpur Road, Executive Engineer, Jajpur Road, Electrical Division and Sectional Officer, Jajpur are arrayed as opposite parties in the writ application.
2. The case of the petitioner, in short, is that he was enrolled as a Helper under of the Board on 8th December 1971 and was borne in the Nominal Muster Roll (N.M.R). Since then he continued to serve the Board till 18th September 1977 when his service is alleged to have been terminated by the verbal order of the Sectional Officer (opp. party no. 4) without initiating any disciplinary proceeding. The pertitioner claims to be one of the seniormost Helpers in the organisation. The petitioner alleged that his termination from service was on the ground of his alleged involvement in the incident of theft of electric wire on 27th August 1977 which was the subject matter of G.R. Case No. 658 of 1977 in which he was an accused. The case ended in his acquittal by judgment of the trial court. It is the further case of the petitioner that during investigation of the above case, he was arrested on 9th September 1977 by the officer-in-charge of Jajpur Police Station. After being released on bail he joined his duty on 10th September 1977. On that day he was told that his name had been struck off from the roll and he could no longer work under the Board. Neither any show cause notice was issued to the petitioner nor any order of termination was served on him. After his acquittal in the criminal case, the petitioner represented to the authority of the Board on 3rd October 1978 (Annexure-1) praying to be reinstated in service, but no heed was paid to his request. The petitioner filed another representation on 4th April 1979 for relief (Annexure-3), but to no avail. Thereafter the petitioner moved the Dist. Labour Officer for redress and the Asst Labour Officer took up a conciliation proceeding. The management was represented in the said proceeding wherein it was agreed on 11th July 1981 that the case of the petitioner will be finalised within one month as per the memorandum of settlement-Annexure-2. Despite the settlement, no action was taken by the Board to reinstate the petitioner in service. Thereafter he filed the writ application seeking the reliefs noticed earlier. The petitioner challenges the action of the opp. parties as illegal and unconstitutional.
3. The opp. parties in their counter affidavit to the writ application, while refuting the claim of the petitioner for reinstatement in service alleged that the petitioner did not report for duty from 1st September 1977 and continued to be absent since then. In view of such absence he was deemed to have left his service voluntarily and therefore the question of his re-engagement in service did not arise. Referring to Rule 10(C) of the Certified Standing Orders of the Orissa State Electricity Board, the opp. parties contended that if the workman remains absent beyond eight days' period, it shall be presumed that the workman has abandoned his job and left the service of the management on his own accord. According tame opp. parties, the petitioner joined service under the Board in December, 1972 and not in December, 1971 as alleged in the application.
4. At the hearing of the case, the learned counsel for the parties reiterated the stand taken in their respective pleadings as discussed above.
5. From the facts discussed earlier, it is clear that the petitioner had been serving as a Helper under the Board since 1971 or 1972. He is alleged to have been involved in the incident of theft of electric wire on 27th August 1977 and he was acquitted in the case by judgment passed by the trial court. He was arrested in connection with the criminal case and later released on bail. There is no dispute regarding these facts. The controversy between the parties is whether the petitioner voluntarily absented himself from the work since 1st Sepetmber 1977 as alleged by the opp. parties or he was refused work due to the pendency of the criminal case against him, as alleged by the petitioner. The opp. parties have not placed any contemporaneous material to show that the petitioner was treated as an absconder from duty and was dealt with as such. No reasonable and plausible reason has been stated in the counter affidavit why the petitioner who had been serving for about five years would suddenly abscond from duty. No material has also been produced by the opp. parties to show that any attempt was made by them to inform the petitioner that he should join duty by a specified date failing which action would be taken to terminate his service. In such circumstances, we are not persuaded to accept the plea of the opp. parties that the petitioner voluntarily absented from duty. In view of this finding the provisions in Rule 10(C) of the Certified Standing Orders of the Board has no application and it is not necessary for us to consider the validity of such a Standing Order. There is one other circumstance which renders the plea taken by the opp. parties doubtful. If the petitioner had voluntarily stayed away from work since 1st September 1977 as alleged by the opp. parties, then in the conciliation proceeding in course of which the settlement as per Annexure-2 was arrived at on 11th July 1981. the Executive Engineer, Jaipur Road Division would not have said that the case of the petitioner will be finalised within a month.
Examined from another angle also, the action of the opp. parties becomes unsustainable. Striking out the name of the petitioner, a workman under the Industrial Disputes Act, from the Muster Roll amounts to termination of his service and such termination of service is retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act as held by the Supreme Court in Delhi Cloth and General Mills Co. Ltd. v. Shambhu Nath Mukharji (1978-I-LLJ-1) and reiterated by the Court in the case of L. Robert D. Souza v. The Executive Engineer, Southern Railway and Anr. (1982-I-LLJ-330). The opp. parties admittedly did not follow the mandatory procedure laid down in the Industrial Disputes Act for retrenchment of a workman.
6. On the above analysis, in our view there is little scope for doubt that the termination of the petitioner's service was illegal. As such he is entitled to be reinstated is service.
7. We accordingly allow the writ application and direct the opp. parties to take steps to reinstate the petitioner in service with effect from the date of his acquittal in the criminal case. The petitioner shall be entitled to all consequential service benefits and he will also be entitled for cost of the case which is quantified at Rs. 500/- (five hundred.) A. Pasayat, J.
8. I agree.