Partly allowed

The State of Odisha v. Durga Charan Das

Orissa HC22 Jun 2021WA/613/2019

Case brief

AI extract

What is this about?

The High Court reviewed three writ appeals challenging a single-judge order directing the State to implement a pension scheme. The Court found the impugned order erroneously compared OMC employees to PSUs with different pension histories. It set aside the single-judge judgment on the Article 14 ground and restored cases for fresh consideration on other merits, while condoning condoning appeal dela

What did the court decide?

Impugned judgment of Single Judge setting aside order of 28.04.2014 quashed; writ petitions restored for fresh consideration on other merits; delay in appeals condoned subject to payment of costs.

The State of Odisha Vs Durga Charan Das — Pension and Retirement Benefits | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.A. Nos.445, 612 and 613 of 2019

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State of Orissa

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…. Appellant Mr. M.S. Sahoo, AGA

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-versus-

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…. Repondents Mr.S. Das, Sr. Advocate Mr. S. Mohanty, Sr. Advocate

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Sri Rabinarayan Das and others

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CORAM: THE CHIEF JUSTICE

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JUSTICE S.K. PANIGRAHI

ORDER

Order No.

22.06.2021 I.A. No.692 of 2019 (W.A. No.445 of 2019), I.A. No.976 of 2019 (W.A. No.612 of 2019 and I.A. No.979 of 2019 (W.A. No.613 of 2019

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This matter is taken up by video conferencing mode.

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These three appeals by the State of Odisha are directed against the same impugned common judgment and order dated 29^th January, 2019 passed by the learned Single Judge and arising out of similar set of facts involving the same issues. Accordingly, these appeals are being disposed of by this common order.

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W.A. No.445 of 2019 is directed against the judgment dated 29^th January, 2019 passed by the learned Single Judge in W.P.(C) No.1018 of 2014 whereby the learned Single Judge has issued a mandamus to the Appellants to reconsider extension of pensionary benefits to Respondents 1 to 4, who are the Petitioners in the aforementioned writ petition, as per the pension scheme approved by the Government of Odisha

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and concurred with by the Finance Department in letter dated 5^th October, 1991 as expeditiously as possible, preferably within a period of four months from the date of communication of the judgment. Respondents 1 to 4 in this appeal are the erstwhile employees of Orissa Mining Corporation Ltd. (OMC), arrayed as Proforma Respondent No.5 in the appeal.

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W.A. No.612 of 2019 has been filed by the State of Odisha against the same impugned common judgment dated 29^th January, 2019 passed by the learned Single Judge in W.P.(C) No.8554 of 2014 in which a similar direction has been issued in respect of all the members of the Orissa Mining Workers Federation (OMWF), Respondent No.1 all who are employees of OMC (Proforma Respondent No.2).

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W.A. No.613 of 2019 has been filed by the State of Odisha against the same common order dated 29^th January, 2019 of the learned Single Judge in W.P.(C) No.18578 of 2015 whereby a similar direction has been issued in respect of Respondents 1 to 3 who are former employees of OMC, Proforma Respondent No.4.

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Each of the above three appeals has been filed belatedly and accordingly these three applications have been filed by the Appellant seeking condonation of delay in filing the appeal. While in W.A. No.445 of 2019 the delay is 162 days, in W.A. Nos.612 and 613 of 2019, the delay is 273 days and 293 days respectively.

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In response to the notice issued in these applications, replies have been filed by the contesting Respondents. At the outset it is pointed out that pursuant to the applications made by the contesting Respondents under the Right to Information Act, 2005 (RTI Act), it was ascertained that a copy of the judgment of the learned Single Judge was available with the Appellant on 8^th February, 2019 itself and not on 13^th March, 2019 as claimed in the applications. Further, in the reply of the contesting Respondents, the observations of the Law Department in the file recommending implementation of the judgment have been referred to. It is accordingly submitted that no proper explanation has been given for the inordinate delay in filing the appeals and therefore the delay ought not to be condoned. Reliance has been placed on the judgment of the Supreme Court in Office of the Chief Post Master General and others v. Living Media India Ltd. (2012) 3 SCC 563 and a series of orders recently passed by the Supreme Court refusing to condone the delay in the State or State agencies in filing appeals and petitions merely on administrative grounds.

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This Court has heard the submissions of Mr. M.S. Sahoo, learned AGA for the Appellants, Mr. S. Das and learned senior counsel appearing for the contesting Respondents in each case.

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It is seen that according to the Appellant after receiving certified copy of the order, the matter was first examined by the Law Department which had initially recommended, by a noting dated 16^th May, 2019 that the order of the learned Single

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Judge should be implemented. However, since the Steel and Mines (S&M) Department was of the view that there were valid grounds for challenging the impugned order of the learned Single Judge, the matter was placed before the Chief Minister on 12^th June, 2019. It is stated that the Chief Minister by an order dated 25^th June, 2019 directed the filing of appeals and accordingly instructions were issued to the Advocate General for preparing and filing the appeals by letter dated 16^th July, 2019. Thereafter the matter was assigned to the Government Advocate for drafting and filing the appeal.

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The above explanation offered by the Appellant may not be satisfactory inasmuch as there appears to be a delay of more than one month at every stage of consideration of the matter at various levels of the Government. Nevertheless this Court is unable to view the explanation as entirely unsatisfactory and without any reasonable basis whatsoever.

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Mr. Sahoo, learned AGA submitted that since there are arguable grounds on merit in the appeals, this Court should condone the delay by subjecting the Appellant to whatever terms the Court may deem fit.

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Having considered the above submissions, the Court is of the view that the delay in filing these appeals ought to be condoned subject to the Appellant paying the contesting Respondents through the respective counsel a sum of Rs.25,000/- (Rupees twenty five thousand) in each appeal within a period of four weeks from today. Subject to the above

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condition, the delay in filing these appeals is condoned and the applications are allowed.

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W.A. Nos.445, 612 and 613 of 2019

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The background facts are that OMC is one of the Public Sector Undertakings (PSUs) in Odisha in which 100% shares are held by the Government of Odisha. It is therefore a Government company as defined under Section 617 of the Companies Act, 1956.

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It is stated that OMC is one of the profit oriented and oldest of the PSUs in the State of Odisha and has been placed under the ‘gold category’ along with other PSUs like Odisha Power Generation Corporation Ltd. (OPGC), Odisha Hydro Power Corporation (OHPC) and Industrial Development Corporation of Odisha (IDCO).

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The employees union of the OMC had placed a demand before the management that a pension scheme should be introduced for retired employees. It is stated that at the 268^th meeting of the Board of Directors of OMC it was agreed in principle to introduce a pension scheme on par with the similar benefits extended to State Government employees with effect from 1^st April, 1989. A committee constituted for the purpose recommended the introduction of a pension scheme. This was approved by the Board of Directors at their meeting on 25^th June, 1991. It was then sent to the Government of Odisha, Steel & Mines Department (S&M) for approval. It is stated that the S&M Department approved the proposal for introduction of

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the pension scheme after obtaining concurrence from the Department of Finance by an order dated 9^th August, 1991. This was communicated to the Chairman-cum-Managing Director (CMD) (OMC) on 5^th October, 1991.

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It is stated that subsequently on 30^th March, 2000 the Board of Directors of OMC reiterated its earlier decision for introducing a pension scheme in light of the actuarial report submitted by the Actuary, pursuant to which the Trust deed and Trust Rules were framed. It is stated that this was also approved by the Income Tax Department on 10^th January, 2002. Exemption was granted under Section 17(1) (a) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (EPF & MP Act) by the Labour and Employment Department of the Government of Odisha as communicated by the Regional Provident Fund Commissioner (RPFC) on 6^th December, 1982.

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When no further action was taken in this regard, some of the retired employees filed W.P.(C) No.19405 of 2009 ( Durga Charan Das v. State of Odisha ) which was disposed of by this Court on 8^th October, 2012 directing the Principal Secretary in S&M Department to take a decision in terms of request made by the MD of OMC within a period of four months from the date of the order of the High Court.

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It is stated that Government of Odisha formed a High Power Committee (HPC) to examine the proposal of the OMC for introduction of a pension scheme for retired employees.

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However, the HPC on 28^th April 2014 rejected the proposal of OMC.

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This led to the OMWF filing, in the second round of litigation, W.P.(C) No.8554 of 2014 in this Court. This was heard along with W.P.(C) No.1018 of 2014 filed by Rabi Narayan Das and others and W.P.(C) No.18578 of 2015 filed by Durga Charan Das and others. By the common impugned judgment dated 29^th January, 2019 these writ petitions were disposed of by the learned Single Judge by issuing the directions as noted hereinbefore.

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The reasons that weighed with the learned Single Judge in issuing the above directions could be summarised as under:

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(i) OMC is a stable ‘PSU’ in the State and has been making profits continuously since 1976. The Board of Directors of OMC had already recommended the introduction of a pension scheme. The S&M Department, Government of Odisha had approved the scheme and the Finance Department had also conveyed its concurrence. However, for reasons best known to the authorities, the said decision was not implemented.

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(ii) After the pay scale revision in 1989, a resolution was passed by the Public Enterprises (PE) Department on 16^th August, 1995 reiterating the recommendation that such PSUs should formulate suitable pension schemes but it was stated that existing employees “may be asked to exercise their option either for continuance under the existing CPF scheme or come

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over to the pension scheme to be devised by the management”. Since this recommendation was general in nature, and not specific to OMC, it would have no effect on the earlier decision dated 5^th October, 1991 of the S&M Department approving the OMC’s proposal for introduction of a pension scheme.

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(iii) Since OPGC and OHPC have also been categorized as ‘gold category’ PSUs and have introduced a pension scheme for their employees, the denial of a similar pension scheme to the OMC employees was discriminatory. The impugned order dated 28^th April, 2014 declining to extend the pension benefits to the employees of OMC was arbitrary and violative of Article 14 of the Constitution. Accordingly, the impugned order dated 28^th April, 2014 was quashed and a direction was issued to the present Appellant to reconsider the extension of pensionary benefits as per the earlier approval dated 5^th October, 1991 ‘as expeditiously as possible’.

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Mr. M.S. Sahoo, learned AGA points out that there is a factual error in the impugned judgment of the learned Single Judge. In particular he points out that a query was addressed by the Appellants to OPGC whether in fact, any pension scheme governed its employees. By a letter dated 19^th August 2019, OPGC confirmed to the Appellant that OPGC has not implemented any pension scheme for its employees at any point of time.

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It has been clarified in the memorandum of the present appeal that OPGC employees were provided only a one time lump sum payment towards pension as per the PE Department circular dated 23^rd March, 2017 along with CPF. Consequently no comparison could be drawn between the employees of OMC and those of OPGC.

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At this juncture, this Court notes that the letter dated 29^th March, 2017 of the PE Department, Government of Odisha states that in PSUs under the gold category, six months’ salary “as onetime payment towards pension at the time of retirement of the concerned employees”, may be made.

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As far as employees of OHPC are concerned, it is explained by the Appellants that they were the erstwhile employees of the Government of Odisha itself or the Odisha State Electricity Board (OSEB) who came to OHPC on redeployment or transfer or deputation from various other hydro projects in the State. They were absorbed in OHPC as of the date of its formation i.e. 1^st April, 1996. It was decided to continue the benefits available to such employees at the time of such absorption. The OHPC therefore decided to extend a scheme of uniform pensionary benefits to its non-pensionary regular employees by a notification dated 6^th September, 2012 which was subsequently amended on 21^st November, 2015. The said uniform pensionary scheme was applicable only to those employees who were prepared to return the employer’s share of the PF with interest to OHPC on the date of their retirement and that payment of Temporary Increase (TI) as

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sanctioned by the Government from time to time was subject to certain stipulations. It is pointed out that therefore no comparison can be drawn between the retired employees of OHPC with that of OMC since all OMC employees were appointed directly by it and were entitled to CPF only.

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Sri Das, learned Senior counsel appearing for the contesting Respondents, on the other hand sought to support the judgment of the learned Single judge and submitted that the pension scheme for the employees of OMC was approved way back on 5^th October, 1991 by the S&M Department and also confirmed by the Finance Department. Therefore, this could not be resiled from subsequently. He sought to contend that the decision taken on the file by the Government of Odisha in 1991 had to be implemented and there was no occasion to reconsider that decision at a subsequent point in time. He pointed out that the actuarial studies showed that there would be no additional financial burden on the State Government as a result of the introduction of a pension scheme in terms of the decisions dated 5^th October 1991 and that the burden if at all was on OMC which has not challenged the judgment of the learned Single Judge.

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Mr. S. Mohanty, learned Senior counsel appearing on behalf of OMC, submitted that the impact of the judgment of the learned Single Judge would be felt not only by OMC but importantly by the State Government since OMC was 100% owned by the State Government. He further submitted that although the OMC may not have itself filed an appeal, it was

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supporting the stand of the State Government in the present appeals.

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The above submissions have been considered. Indeed the ratio of the judgment of the learned Single Judge turns on a single ground viz., violation of Article 14 of the Constitution. This is premised on employees of OMC being treated on par with those of two other PSUs i.e. OHPC and OPGC, in the matter of pensionary benefits. The learned Single Judge did not examine any other ground as has been urged by the contesting Respondents. In other words, the intrinsic merit of the proposals of the management of OMC made way back in 1991 for introduction of a pension scheme was not examined by the learned Single Judge while issuing a mandamus to the Appellant to reconsider the introduction of a pension scheme for the retired employees of OMC.

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The Court finds that OPGC employees in fact have no pensionary scheme governing them. The clarification issued by the Department of PE, Government of Odisha makes it clear that they were entitled only to a lump sum payment equivalent to six months’ salary at the time of retirement. This crucial information was not considered by the learned Single Judge possibly because it was not placed before him.

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As far as the OHPC is concerned, the history of its incorporation and the circumstances under which erstwhile employees the Government of Odisha or the OSEB were either redeployed to it or deputed or transferred to it, makes OHPC

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very different from OMC. This was the reason behind OHPC extending pensionary benefits to all its employees subject to certain stipulations. This was in the nature of continuation of the benefits they would have otherwise enjoyed had they continued as employees of Government of Odisha or the OSEB. The circumstances attending the employment of the contesting Respondents in OMC are quite different. They were directly employed by the OMC itself. Absent a pension scheme at the time of their employment, they cannot claim any vested right to such pension on the basis that they were on par with employees of OHPC or OPGC.

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Therefore, the Court is not satisfied that the contesting Respondents have made out a case for the applicability of Article 14 of the Constitution vis-à-vis the pensionary benefits enjoyed by the employees of OHPC. Consequently, the Court is unable to agree with the conclusion of the learned Single Judge in the impugned order that the decision dated 28^th April, 2014 of the Appellant rejecting the proposal for introduction of a pension scheme in OMC was violative of Article 14 of the Constitution and therefore required to be set aside on that ground.

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However, this Court finds that there are other grounds urged by the contesting Respondents on the intrinsic merit of the pension scheme which had earlier been approved by the Government of Odisha and for the implementation of which a mandamus was sought. There was no occasion for the learned Single Judge to examine these other grounds in support of the

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prayers in the writ petition of the contesting Respondents herein.

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Consequently, while setting aside the impugned judgment of the learned Single Judge dated 29^th January, 2019 for the aforementioned reasons, this Court restores the writ petitions to the file of the learned Single Judge for a fresh consideration on grounds other than the ground already examined by the learned Single Judge. It is clarified that this Court has expressed no opinion on the merits of the other grounds urged in the writ petitions and leaves the contentions of the contesting Respondents herein (i.e. the writ petitioners) as well as the contentions of the present Appellant in opposition thereto open to be urged before the learned Single Judge in accordance with law.

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The writ petitions shall now be listed before the learned Single Judge on 1^st August, 2021 for directions. The Appellant shall file not later than two weeks prior to that date, affidavits and the documents which according to it are relevant for the issues arising for consideration in the said writ petitions with advance copies to the counsel for the writ petitioners who shall file their response thereto by that date, i.e., 1^st August, 2021. It is made clear that the learned Single Judge will not grant any adjournment to any of the parties for that purpose.

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Learned Single Judge is requested to proceed with the hearing of the writ petitions on merits on the points other than the one on which decided in the impugned order dated 29^th

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January, 2019 and to pass a fresh order, after hearing the parties, not later than 1^st November, 2021. The parties will cooperate with the learned Single Judge to ensure that the above time schedules are adhered to.

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The writ appeals are disposed of in the above terms.

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As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court’s website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court’s Notice No.4587, dated 25^th March, 2020 as modified by Court’s Notice No.4798, dated 15^th April, 2021.

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(Dr. S. Muralidhar) Chief Justice (S.K. Panigrahi)

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Judge

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KC Bisoi

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Page 14 of 14

The State of Odisha v. Durga Charan Das

Case brief

What is this about?

What did the court decide?

The State of Odisha v. Durga Charan Das

Case brief

What is this about?

What did the court decide?

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