Allowed

The Commissioner of Ct and GST ,Odisha v. Panchanan Dalai

Orissa HC21 Jun 2021WA/80/2021

Case brief

AI extract

What is this about?

In six intra-court appeals, the bench held that orders directing regularization of services without a positive finding and without providing opportunity to file counter affidavits were erroneous. The appeals were partly allowed to set aside the direction for immediate regularization. The Respondents are granted liberty to file detailed representations to be considered by a reasoned order after a f

What did the court decide?

Appeals allowed in part; order directing regularization of services set aside; liberty granted to file detailed representation within 21 days for consideration in a reasoned order within 1 month after

The Commissioner of Ct and GST ,Odisha Vs Panchanan… — Service and Employment | Orissa HC (2021)

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HIGH COURT OF ORISSA; CUTTACK

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W.A. Nos.101,100,165,80,79 & 29 of 2021

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Appeals under Section 10 of the Letters Patent of Patna High Court read with Article 4 of the Orissa High Court Rules,1948.

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In W.A. No.101 of 2021

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The Collector and District Magistrate, Dhenkanal and others … Appellants Versus Arabinda Panda & others … Respondents For Appellants : M/s. R.N.Mishra Addl., Govt. Advocate For Respondents : M/s.B.S.Tripathy-1 A.Tripathy & A. Sahoo. In W.A. No.100 of 2021

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The Collector and District Magistrate, Dhenkanal and others … Appellants

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Versus Surendra Behera & another … Respondents For Appellants : M/s. R.N.Mishra Addl. Govt. Advocate For Respondents : M/s.B.S.Tripathy-1 A.Tripathy & A. Sahoo.

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In W.A. No.165 of 2021

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State of Odisha and another	… Appellants
Versus Smita Pattnaik	… Respondent
For Appellants :	M/s. Shakti Prasad Panda Addl., Govt. Advocate
For Respondent :	M/s.B.S.Tripathy-1 A.Tripathy & A. Sahoo.
In W.A. No.80 of 2021
The Commissioner of CT & GST Odisha and others	… Appellants
Versus
Panchanan Dalai & others	… Respondents
For Appellants :	M/s. R.N.Mishra Addl., Govt. Advocate
For Respondents :	M/s.B.S.Tripathy-1 A.Tripathy & A. Sahoo.
In W.A. No.79 of 2021
The Commissioner of CT & GST Odisha and another	… Appellants
Versus
Sanatan Bal & others	… Respondents

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For Appellants : M/s. R.N.Mishra Addl., Govt. Advocate

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For Respondents : M/s.B.S.Tripathy-1 A.Tripathy & A. Sahoo.

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In W.A. No.29 of 2021

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The Collector and District Magistrate, Jajpur and others … Appellants

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Versus

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Padmanava Das & others … Respondents

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For Appellants : M/s. R.N.Mishra Addl., Govt. Advocate

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For Respondents : M/s.B.S.Tripathy-1 A.Tripathy & A. Sahoo.

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P R E S E N T :

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MR. JUSTICE S.K.MISHRA AND MISS JUSTICE SAVITRI RATHO

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Date of Hearing:26.3.2021 &21 .6.2021 and Date of Judgment:21.6.2021

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S.K.Mishra,J . In these six intra court appeals, the State of Odisha through the Collectors and District Magistrates, Dhenknal and Jajpur, the Commissioner of CT and GST,

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Odisha, has assailed the orders passed by learned Single Judge dated 28.8.2020 passed in W.P. (C) No.21243/2020, order dated 28.8.2020 passed in W.P. (C) No.21241/2020, order dated 25.8.2020 passed in W.P. (C) No.20631/2020, order dated 03.9.2020 passed in W.P. (C) No.22094/2020, order dated 10.9.2020 passed in W.P. (C) No.22689/2020 and order dated 20.8.2020 passed in W.P. (C) No.20006/2020. Identical orders have been passed in these six disposed of Writ Petitions on the date of first listing.

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The Petitioners-Respondents have filed the writ petitions seeking directions to the Opposite PartiesAppellants, to regularize their services taking into account their continuous service of more than eight years as has been done in favour of other similarly situated persons as per Government Circular and in terms of the principles decided in the case of State of Karnataka v. Umadevi (3) , reported in (2006) 4 SCC 1, State of Karnataka and others v. M.L.Kesari and others, (SLP (C)No.15774/2006. After hearing the PetitionersRespondents and initial submissions of the learned Addl. Government Advocate without giving any reasonable opportunity of filing counter affidavits or to take instructions in the matter, the learned Single Judge has passed the following orders:-

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“Considering the contentions raised by the learned counsel for the Petitioners and after going through the records, it appears that the

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Petitioners have rendered service for more than eight years on; monthly remuneration basis. Therefore, the case of the Petitioners is squarely covered by the ratio decided in the cases cited supra. In that view of the mater, this Court disposes of this Writ Petition directing the Opposite Parties to consider the case of the Petitioners “and regularize their services” keeping in view the judgment in the case of Secretary State of Karnataka and others v. Umadevi (3) and others ; (2006) 4 SCC 1 and State of Karnataka and others Vs. M.L. Kesari and others involving SLP (C) No.15774/2006 and also the resolution of the G.A. Department dated 17.9.2013, within a period of four months from the date of communication of a copy of this order by the Petitioners and grant consequential service benefits as due admissible to them. (underlined and provided inverted commas for emphasis)

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It is further directed that in the event the Petitioners are still continuing in their service, status quo as on today in respect of the services of the Petitioners shall be maintained till a decision is taken in the mater by the Opposite Parities in terms of the above direction.

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In assailing these orders Mr. R.N.Mishra, the learned Addl. Government Advocate, submitted that the orders passed by the learned Single Judge directing consideration and regularization of the services of the PetitionersRespondents in all these cases are erroneous as there is no positive finding that they should be regularized as per the ratio decided in the cases referred to above. Learned Addl. Government Advocate also submitted that the learned

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Single Judge, issuing a mandamus for regularizing their services without any reasonable opportunity to the Opposite Parties-Appellants to file counter affidavit is also not in accordance with the standard procedure adopted in such cases.

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Mr. B.S.Tripathy-1, learned counsel for the Respondents, on the other hand, argued at length justifying the order passed by the learned Single Judge.

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However, we are of the opinion that since these cases were disposed of on the first date of listing, a detailed order on merit of the contentions raised by the parties in the appellate stage for the first time will not be proper and expedient in the interest of justice.

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Generally, an order directing the authorities to consider the representation of a Petitioner is not a proper disposal of a Writ Petition. However, Courts in India have developed this method of directing disposal of representation because of the heavy pendency of the cases and limited number of Courts.

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In all these Writ Petitions writs of mandamus have been issued by directing the appellants to regularise the services of the Petitioners without affording reasonable opportunity to the Opposite Parties-Appellants to file Counter Affidavits and without giving a positive finding

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that they are entitled to be regularized in the given facts and law applicable.

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In that view of the matter, we hereby allow these Writ Appeals in Part and set aside the following portion of the order and direction of the learned Single Judge;

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“ xxx and regularize their services xxx xxx xxx

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and grant consequential service benefits as due admissible to them.”

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In other words, we direct the appellants to consider the representation of the respondents in all these cases keeping in view the settled principles of law as stated by Hon’ble Supreme Court in the judgments referred to above. For this purpose, the Respondents in each cases are given liberty to file detailed representation along with duly attested copy of this Judgment within a period of twentyone days, which shall be considered by the authorities keeping in view the aforesaid consideration within a period of one month thereafter by a reasoned order after affording reasonable opportunity of hearing to the Respondents.

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As the restrictions due to resurgence of COVID19 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 Mr. B.S.Tripathy-1, Advocate with a seal, or Mr. R.N.Mishra and Mr. Shakti Prasad Panda, the learned

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Addl. Government Advocates with seals, 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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.….………..….. S.K.Mishra, J Savitri Ratho,J.

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I agree.

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………………….

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Savitri Ratho, J

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Orissa High Court, Cuttack Dated 21^st June , 2021 / A.K.Behera .

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