Dismissed

State and Ors. v. Rama Krishna Das

Orissa HC18 Jul 2017WP(C)/15499/2012

Case brief

AI extract

What is this about?

The Orissa High Court dismissed two writ petitions challenging an Order passed by the Orissa Administrative Tribunal. The Tribunal had directed regularization of two DLR employees working prior to the cut-off date, declining differential arrears. The Court found the Tribunal's decision to rely on documents without conducting an enquiry on the State's unproven collusion allegations was legally sust

What the court decided

AI extract

State and Ors. Vs Rama Krishna Das — Pension and Retirement Benefits | Orissa HC (2017)

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HIGH COURT OF ORISSA: CUTTACK.

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W.P.(C) Nos.15499 & 15500 of 2012

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In the matter of application under Articles 226 and 227 of the Constitution of India.

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State of Odisha & others (in both the writ petitions) …… Petitioners

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Versus-

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Rama Krishna Das (in W.P.(C) No.15499 of 2012) Pradip Kumar Mishra (in W.P.(C) No.15500 of 2012) …… Opposite Parties

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For Petitioners :Mr. M.S. Sahoo, Addl. Govt. Advocate. For Opposite Parties :M/s. S. Mallik, P.C. Das. (in both the writ petitions)

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PRESENT:

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THE HONOURABLE KUMARI JUSTICE SANJU PANDA &

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THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD

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Date of hearing and judgment : 18.07.2017

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S. N. Prasad, J. In both these writ petitions the order passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.934 (C) of 2011 and 933(C) of 2011 dated 13.12.2011 are under challenge whereby and where under the Tribunal while allowing the original applications has directed the authorities to take steps to notionally regularize the employees in the appropriate civil posts in the work chargeestablishment

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retrospectively from the date their juniors in list No.202 dated 6.1.2011 were regularized in the work chargeestablishment, however they are not entitled to any benefits of differential arrear pay in accordance with the decision of the Hon’ble Apex Court in the case of B.M. Jha vrs. Union of India reported in (2008) 2 SCC (L & S), Page-399 .

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The brief facts of the case is that the applicants/petitioners in O.A. No.934(C) of 2011 i.e., Mr. Rama Krishna Das and in O.A. No.933(C) of 2011 i.e., Mr. Pradip Ku. Mishra were appointed as DLR on 8.6.1992 and 29.6.1991 respectively but even though they have been engaged prior to 12.4.1993, the cut-off date fixed by the State for taking them in the work chargeestablishment in view of their decision taken by the Finance Department Office Memorandum No.22764/F dated 15.5.1997, their cases for regularization has not been taken yet which led them to approach the Tribunal and the Tribunal after taking into consideration the relevant documents pertaining their date of engagement has passed the order, directing the authorities to take steps to notionally regularize the employees in the appropriate civil posts in the work chargeestablishment retrospectively from the date their juniors were regularized in the work chargeestablishment, however they are not entitled to get benefits of differential arrear pay.

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The said order is under challenge before this Court by way of these two writ petitions inter alia on the ground that the dates of engagement of both the applicants have been disputed by the State authorities. Since the specific ground has been taken by the State before the Tribunal that the authorities have collided with these two applicants by showing their date of engagement prior to 12.04.1993 only to give them benefit as per the decision of the Government as contained in Finance Department Office Memorandum No.22764/F dated 15.5.1997.

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It is the ground of the State to assail the order of the Tribunal that the Tribunal should not have entered into the disputing question of fact but ignoring this aspect of the matter the Tribunal has directed the State authorities for regularization of service under the work chargeestablishment as such according to them the order passed by the Tribunal is not sustainable and as such the same is fit to be set aside by this Court in exercise of power conferred under Articles 226 and 227 of the Constitution of India.

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Per Contra, the learned counsel representing the opposite parties has submitted that there is no dispute about the fact that both petitioners have been appointed prior to 12.04.1993. The applicant in O.A. No.934(C) of 2011 has been appointed on 8.6.1992 while the applicant in O.A. No.933(C) of 2011 has been appointed on 29.06.1991 and as such their cases ought to have been considered by the authorities in the light of the Finance Department Office Memorandum No.22764/F dated 15.5.1997.

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He has relied upon certain documents which has been written by the concerned Superintending Engineers addressed to the Engineer-inChief, Odisha and also the list appended to the communication wherein the specific date of engagement of these applicants have been referred showing their date of engagement as 8.6.1992 and 29.6.1991 respectively.

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It has been submitted that the Tribunal after taking note of these documents which has not been rebutted by the State authorities has disbelieved the contention of the State regarding collusion of these authorities with these applicants, has passed the order directing the authorities to regularize them, hence the order needs no interference of this court.

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We have heard learned counsel for the parties and perused the

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documents available on record.

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The applicants in both original applications are discharging their duties as DLR capacity, according to them they have been appointed in respective division on 8.6.1992 and 29.06.1991. It is the further case of the applicants that the Government has come out with the Memorandum dated 15.05.1997 as contained in Memorandum No.22764/F wherein the Government has taken decision that the DLRs who were working prior to 12.04.1993 would be taken into consideration for taking them under the work chargeestablishment and after completion of five years of regular service under the work chargeestablishment they would be taken under the regular establishment since not taken, they have approached the Government for consideration of their cases for regularization under the work chargeestablishment in the light of decision of the Finance Department Office Memorandum No.22764/F dated 15.5.1997 on the ground that they have been appointed prior to 12.04.1993 which is the cut-off date fixed by the Finance Department for consideration of the cases of one or the other DLR employees for taking them under the work chargeestablishment. Their cases have not been considered which led them to approach the Tribunal by filing original applications i.e., O.A. No.934(C) of 2011 and 933(C) of 2011 respectively seeking for direction to direct the authorities to consider their cases for engaging under the work chargeestablishment in the light of the decision of the Finance Department Office Memorandum No.22764/F dated 15.5.1997.

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The State has appeared before the Tribunal and raised objection regarding their date of engagement by taking a ground that whatever the date of engagement is said to have been shown by the applicants to show that they have been engaged prior to 12.04.1993 is absolutely incorrect and whatever the documents have been produced by the applicants, the same has been issued by the authorities in connivance only to favour these applicants.

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The Tribunal after taking into consideration the various documents and considering the date of engagement which the Tribunal has found is prior to 12.04.1993, has passed the order.

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We in course of hearing has gone through the documents as has been annexed to the writ petition by the State and the same has also the part of record which are the letter No.4491 dated 16.10.2010 and letter No.2738 dated 21.10.2010. The said letters are in reference to the inclusion of DLRs engaged prior to 12.04.1993 under the work chargeestablishment which contains a list wherein the name of the applicant in O.A. No.934(C) of 2011 is at Sl. No.15 showing the date of engagement under Column No.5 as 8.6.1992 along with the certificates given by the concerned Executive Engineer certifying that these applicants are working as DLR since 8.6.1992 and continuing till 31.08.2010 which is verified from the record and maintained in this office and found correct and so far as the case of the applicant in O.A. No.933(C) of 2011 is concerned, the similar letter has been written by the Executive Engineer, Malkangiri (R & B) Division, Malkangiri showing the name is at Sl. No.4 reflecting the date of engagement under Column No.5 as 29.06.1991 along with the certificate given by the authority certifying that Sri Pradip Kumar Mishra is working as a DLR since 29.06.1991 and continuing till 31.08.2010 which is verified from the records maintained in this office and found correct.

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The other documents we have got from the record is a communication issued by the Superintending Engineer, Jeypore (R & B) Circle, Jeypore dated 21.10.2010 as contained in letter No.2738 addressed to the Engineer-In-Chief (Civil), Odisha, Bhubaneswar with respect to inclusion of DLRs prior to April 12, 1993 in the work chargeestablishment, the said covering letter contains a list of 81 DLR employees wherein the name of the applicant in O.A. No.933(C) of 2011 i.e., Sri Pradip Ku. Mishra is at Sl. No.74 reflecting the date of engagement under Column No.6 as 29.06.1991 whereas the name of the applicant in O.A. No.934(C) of 2011

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i.e., Sri Rama Krishna Das is at Sl. No.78 reflecting the date of engagement under Column No.6 as 08.06.1992.

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Another letter No.202 dated 06.01.2011 written by the Engineer-In-Chief-cum-Secretary to Government addressed to the Principal Accountant General (A & E), Orissa, Bhubaneswar making the requisition of creation of posts under work chargeestablishment for absorption of DLRs of Works Department engaged prior to 12.04.1993 which contains a list wherein the name of the applicant in O.A No.933(C) of 2011 i.e., Pradip Ku. Mishra and the applicant in O.A. No.934(C) of 2011 i.e., Rama Krishna Das are at Sl. No.55 and 57 respectively showing their date of engagement as 29.06.1991 and 08.06.1992.

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We have gathered from the communication dated 2.6.2011 as contained in Letter No.2701 written by the Executive Engineer, Kalahandi (R & B) Division addressed to the Superintending Engineer, Jeypore (R & B) Circle, Jeypore wherein the date of engagement of Rama Krishna Dash has been admitted to be engaged on 8.6.1992. He has been paid his wages but due to non-receipt of HR from Sri Das his wages were paid w.e.f. 1.10.2007

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The case of these applicants have been disputed by the State authorities on the basis of one complaint made by one Sri Gangadhar Prusty working as DLR in the office of the Executive Engineer (R & B) Division, Koraput wherein it has been complained that the applicants have managed to get their names entered into the gradation list of DLRs as such an enquiry has sought to be conducted. The authorities in the light of the said complaint has not accepted the grievance for regularization.

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We, in course of arguments made a specific query from the learned counsel for the State as to whether any enquiry has been conducted in the light of the complaint as they have taken a ground for

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non-consideration of the case of these applicants, but the answer has been given in negative.

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We are not in dispute that the employees cannot allow to get their engagement by making manipulation with the help of the higher authorities but simultaneously if any allegation by anyone is being made before the authorities, it is the duty of the authorities to conduct an enquiry in this regard, before taking any adverse decision on the basis of such complaint that too after providing an opportunity of being heard to the parties who are going to be affected.

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We have got nothing from the record justifying the stand of the State that the complaint made by Sri Balaram Padhi and Sri Gangadhar Prusty was enquired into since no enquiry report has been produced by the State either before the Tribunal or before this Court, as such the contention of the State regarding manipulation of record by the applicants is not acceptable.

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We further find that various documents has been attached to the writ petitions which led us to come to the conclusion that the date of engagement of the applicants has been shown in these documents is prior to 12.04.1993, these letters has been written by the head of the Divisions i.e., the Executive Engineer and head of the circle i.e., the Superintending Engineer of the concerned circle and even proper communication has been made to the Engineer-in-Chief (Civil), Odisha who happens to be the Special Secretary to the Government and as such merely on the basis of a complaint these documents cannot be disbelieved.

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The Tribunal after taking into consideration these documents has come to a conscious decision that these documents cannot be given go by merely on the basis of the complaint made by two persons that too without conducting any enquiry regarding the veracity of the complaint and as such the Tribunal has come to conclusion with respect to the right of the

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applicant to be considered in the light of decision taken by the Finance Department Office Memorandum No.22764/F dated 15.5.1997 disbelieving the contention of the State authorities. 15. We after going through the averment made in the affidavits and the annexures appended thereto and also after going through the findings/observations of the Tribunal, are of the view that the Tribunal has taken conscious view regarding the claim of the applicants and has passed a reasoned order, hence we are not inclined to interfere with the findings given by the Tribunal in exercise of power under Articles 226 and 227 of the Constitution of India.

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In the result, both writ petitions fails and accordingly the same are dismissed.

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…..… …………… ….…………….…. S.N. Prasad, J. Sanju Panda, J.

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Orissa High Court, Cuttack,

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Dated the 18^th July, 2017/RRJena

State and Ors. v. Rama Krishna Das

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State and Ors. v. Rama Krishna Das

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