Allowed

State of Odisha v. Saroj Kumar Dash

Orissa HC2 Jul 2024WA/1036/2022

Case brief

AI extract

What is this about?

A division bench of the High Court of Odisha allowed the writ appeal filed by the State, setting aside a Single Judge order that had quashed the rejection of the respondent's belated claim for service regularization. The bench held that the claim was barred and lacked merit.

What did the court decide?

The impugned order dated 16.11.2021 passed in WPC (OAC) No.2766 of 2015 is set aside. The writ appeal is allowed and the writ petition is dismissed.

State of Odisha Vs Saroj Kumar Dash — Pension and Retirement Benefits | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.A. No. 1036 of 2022

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State of Odisha, represented through Principal Secretary to Government of Odisha, Water Resources Department, Secretariat Building, Bhubaneswar, Dist-Khurda.

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Engineer-in-Chief, Water Resources, Odisha, Bhubaneswar, Dist-Khurda.

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The Superintending Engineer, Eastern Circle, Cuttack, At/P.O. Jobra, Dist-Cuttack.

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The Executive Engineer, Kendrapara Irrigation Division, At/P.O./P.S./Dist- Kendrapara.

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.…Appellants

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-Versus-

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Saroj Kumar Dash, aged about 48 years, Son of Sri Kanduri Charan Dash, resident of At/P.O. Narada, P.S. Patkura, DistKendrapara

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....Respondent

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Advocates appeared in this case:

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For the Appellants : Mr. M.K. Khuntia, Addl. Govt. Advocate

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For Respondent:

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Mr. Karunakar Nayak, Advocate

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CORAM:

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HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO

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JUDGMENT 02.07.2024

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W.A. No. 1036 of 2022 Page 1 of 13

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Chakradhari Sharan Singh, CJ.

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Heard Mr. M.K. Khuntia, learned Additional Government Advocate (AGA) appearing for the appellants and Mr. Karunakar Nayak, learned counsel for the sole respondent.

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The appellants-State of Odisha has put to challenge, in the present intra court appeal, an order dated 16.11.2021 passed by a learned Single Judge of this Court in W.P.(C) (OAC) No.2766 of 2015 whereby the learned Single Judge has quashed an order dated 22.01.2015 passed by the Engineer-in-Chief, Department of Water Resources, Odisha whereby the respondent‟s claim for regularization of his service was rejected.

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After having quashed the said order of rejection dated 22.01.2015, the learned Single Judge has recorded in the impugned order that there was no reason not to reengage the respondent, he being senior to 35 number of employees, who had been re-engaged in 2008. After having held so, the learned Single Judge, by the impugned order has remitted the matter back to the authority for a fresh consideration in accordance with law as expeditiously as possible preferably within a period of three months form the date of communication of the impugned order. Operation of the impugned order was stayed by a coordinate Bench of this Court passed in the present intra-court appeal by an order dated 17.03.2023.

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It would be beneficial to take note of the foundational facts which are not at all in dispute, to consider sustainability of the

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W.A. No. 1036 of 2022 Page 2 of 13

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impugned order. The respondent was engaged as a Daily Labour (DLR) worker as a skilled labour in the office of the Superintending Engineer, Eastern Circle, Cuttack (Appellant No.3). Subsequently, by a notice dated 03.03.2003, in pursuance of the Department‟s letter dated 24.02.2003, the services of the DLR personnel engaged in WRCP Division, Marshaghai was notified to be no more required since all the work packages of the Division had already been completed. The notices further mentioned that the wages for February, 2003 along with one month‟s wages in lieu of one month‟s notice and the compensation amount due shall be disbursed by 25.03.2003. Once such notice was communicated to the respondent also. It is a specific case of the appellants as asserted in the counter affidavit that the respondent had soon thereafter received the retrenchment benefits. The respondent, more than 11 years thereafter, filed a writ petition before this Court giving rise to W.P.(C) No.23682 of 2014 which came to be disposed of by an order dated 23.12.2014 by the learned Single Judge, which reads thus:-

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“Heard Mr. B. Lenka, learned counsel for the petitioner.

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The petitioner has filed this application seeking following relief:

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“…..this Hon’ble Court be graciously pleased to admit the writ petition, issue a rule nisi and call for a show cause from the opposite parties as to why they shall not be directed to pay compensation and reengagement of the petitioner in an immediate effect. And in the event the opposite parties fail to show cause or show insufficient cause then after hearing the petitioner, the Hon’ble Court may be pleased to direct the opposite parties more specifically opposite

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W.A. No. 1036 of 2022 Page 3 of 13

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party nos. 3 and 4 to pay compensation and reengage the petitioner in the organization within a specific period and the Hon’ble Court may be pleased to pass any other order/orders just, proper and favourable in the interest of the petitioner to which though he is entitled but unable to pray specifically.”

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Mr. Lenka, learned counsel for the petitioner states that the petitioner may be permitted to make a fresh representation highlighting his grievances before the authority, who shall consider the same in accordance with law.

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In view of the limited nature of grievance, without expressing any opinion on the merits of the case, this writ petition is disposed of directing the petitioner to file a fresh representation highlighting his grievances within two weeks from the date of passing of this order. If such a representation is filed, the authorities are directed to consider the same and pass appropriate orders in accordance with law within a period of three months from the date of receipt of a copy of such representation. The petitioner is directed to produce a certified copy of this order along with copy of the writ petition with all its annexures and a fresh representation before the authorities, who shall act upon the same within the time stipulated.

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Requisites for communication of this order along with copy of the writ petition and annexures be filed within a period of three days.

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Issue urgent certified copy of this order as per rules.

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Sd/- Dr. B.R. Sarangi, J.”

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In compliance of the aforesaid order of this Court dated 23.12.2014, the respondent‟s representation was disposed of by the

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W.A. No. 1036 of 2022 Page 4 of 13

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Engineer-in-Chief, Water Resources (Appellant No.2) by an order dated 22.01.2015 disposed of rejecting his claim for re-engagement in the following terms:-

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“Whereas Govt. in Finance Department has completely banned engagement of Work-charged/ NMR/ DLR employees after 12.4.93. When it came to notice of Govt. in Water Resources Department that in spite of this complete ban, still such employees were being engaged after 12.4.93, instruction was issued vide WR Department Letter No.19955 dt. 30.5.2022 to disengage such employees i.e. who were engaged after 12.4.93. Accordingly Sri Saroj Kumar Das who was engaged as DLR employee in defunct WRCP Division, Marshaghai on 1.11.96 was retrenched in March 2003 (Anexure-2, of the Writ petition). He has also received the retrenchment benefits. After lapse of 11 years he has filed WP(C) No.23682/2014 before Hon‟ble High Court seeking reengagement citing that some retrenched NMRs have been reengaged recently by virtue of court orders.

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And whereas the Hon‟ble High Court in its order dated 23.12.2014 in WP(C) No.23682/2014 has directed the petitioner to file a fresh representation before the authorities highlighting his grievances who will consider the same and pass appropriate orders in accordance with law within three months.

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And whereas the petitioner has filed representation dt. 13.1.15 before the undersigned highlighting his grievances. On scrutiny, it is seen that after dismissal of WP(C) No.457/2010 and subsequent SLP(C) No.3402(C)/2013 filed by Govt. before High Court and Supreme Court respectfully, the award dt. 8.7.2009 in ID Case No.8/2004 was implemented by Govt. as a result of which the retrenched NMRs involved in that case have been reengaged. Their re-

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W.A. No. 1036 of 2022 Page 5 of 13

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engagement after win in court case does not confer any right on the petitioner Sri Dash to claim reengagement. Besides Sri Dash was retrenched in 2003 and he received the retrenchment benefits. After 11 years he has come up with this case to reengage him when his claim is hopelessly barred by limitation. It is also not his case that his junior retrenched employee has been reengaged ignoring him.

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Now therefore in compliance to the order dt. 23.12.2014 of Hon‟ble High Court and in consideration of the facts stated above the representation dt. 13.01.15 of Sri Dash is hereby disposed of and his claim for reengagement is hereby rejected.”

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(Emphasis added)

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The respondent thereafter filed another writ application before this Court giving rise to W.P.(C) No.8332 of 2015 seeking regularization of his service under the State authority. While recording that this Court did not have the jurisdiction to entertain the writ application, the learned Single Judge disposed of the same by an order dated 22.06.2015 in the following terms:

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“Heard Mr. B. Lenka, learned counsel for the petitioner.

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The petitioner files this application seeking for regularization of service under the State Authority.

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This Court has no jurisdiction to entertain this application. However, liberty is granted to the petitioner to move the appropriate forum in accordance with law, if he is so advised.

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With the aforesaid liberty, the writ petition stands disposed of.

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Sd/- Dr. B.R. Sarangi, J”

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W.A. No. 1036 of 2022 Page 6 of 13

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The respondent thereafter filed an Original Application (OA) before the Odisha Administrative Tribunal (in short, „Tribunal‟) giving rise to O.A. No.2766(C) of 2015 seeking quashing of the order dated 22.01.2015 and direction to the State to reengage/reinstate the respondent in service.

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The respondent asserted in the said application that he had worked continuously since the date of his appointment without any break till his retrenchment in March, 2003 and, therefore, he was entitled to protection under Section 25 of the Industrial Disputes Act, 1947 (in short, „ID Act‟). He questioned the order of retrenchment on the ground of non-compliance of the statutory requirement under the ID Act. He also pleaded that his juniors were reengaged after retrenchment adopting pick and choose method, with reference to various examples. He also asserted that the retrenchment notification in relation to similarly situated employees of Jajpur Division for selfsame reason was quashed by this Court by a judgment, which was affirmed by the Supreme Court of India.

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A counter affidavit was filed by the State of Odisha stating therein, inter alia, that the respondent‟s plea for reengagement based on dismissal of W.P.(C) No.457 of 2010 and SLP (C) No.3402(C) of 2013 by the Supreme Court and implementation of an award dated 08.07.2009 in I.D. Case No.8 of 2004 did not have any merit as the reengagement of such employees consequent upon the decision in I.D. Case No.8 of 2004 does not confer any right on the applicant (the

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W.A. No. 1036 of 2022 Page 7 of 13

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respondent herein) to claim his reengagement. A plea was also taken that nearly 11 years after he was retrenched, for the first time he approached this Court by filing a writ petition seeking direction for reengagement and later for regularization. Denying the plea that the workmen junior to the applicant had been re-engaged, it was specifically stated in the counter affidavit that each organization has a set of list of DLR workers and it is maintained in that organization. No DLR employee from WRCP Division, Marshaghai, junior to the applicant had been reengaged. A plea was also taken when an inter se seniority list was prepared by Engineer-in-Chief, Water Resources Department, the respondent‟s name was submitted in the list of NMRs/DLRs by the Executive Engineer, Kendrapara, Irrigation Division, Kendrapara for inclusion in the list. It was also pleaded that it was clarified by letter No.33552/WR dated 20.12.2012 that a category wise data base panel of all DLR/NMR and work charged employees in order of seniority was prepared for future reference and record. No decision regarding re-engagement/ retrenchment NMR/DLR and work charged employee had been taken by the Government.

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A rejoinder affidavit was filed on behalf of the respondent to the counter affidavit filed by the State before the Tribunal. In the rejoinder affidavit, the respondent pleaded that similarly situated persons of Jajpur Irrigation Division had filed a case before the Labour Court challenging the illegal retrenchment from service. The Labour Court had directed for reinstatement with consequential service and monetary benefits. The said decision of the Labour Court was challenged by the State before the High Court by filing W.P.(C) No.457 of 2010 which

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W.A. No. 1036 of 2022 Page 8 of 13

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was disposed of on 26.12.2010 confirming the award passed by the Labur Court.

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During pendency of the original application before the Tribunal, the Tribunal came to be abolished, consequent upon which O.A. No.2766(C) of 2015 stood transferred to this Court which came to be registered as WPC (OAC) No.2766 of 2015. Learned Single Judge has disposed of the said writ petition by the impugned order dated 16.11.2021 with the following reasons:-

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“8. Having heard learned counsel for the parties and after going through the records, this Court finds that the petitioner was engaged as DLR/NMR under the opposite party no.3. As he was disengaged, he filed WP(C) No. 23682 of 2014 seeking reengagement and this Court, vide order dated 23.12.2014, permitted the petitioner to file representation before the authority concerned for considering his grievance, but such representation was rejected by opposite party no.2 vide Annexure-8 dated 22.01.2015, which has been impugned in this application. But fact remains, if some of the juniors to the petitioner have been regularized and the Engineer-in-Chief has recommended the case of the petitioner for absorption taking into consideration the fact that his juniors have been taken over to regular establishment, the petitioner should not have been deprived of getting such benefit. In the counter affidavit though it has been contended that no workman junior to the petitioner has been given re-engagement, but this fact is totally different from that of the contention raised by the opposite parties in the counter affidavit. The petitioner has also filed rejoinder affidavit, enclosing therewith a copy of the office order dated 07.02.2009 as Annexure-14, from which it is clearly evident that some of the juniors to the petitioner have

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W.A. No. 1036 of 2022 Page 9 of 13

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been re-engaged. In view of such position, this Court is the considered view that when juniors to the petitioner have been given reengagement in service, there is no valid and justifiable reason to deprive the petitioner of getting such benefit. More so, the Engineer-in-Chief has also vide letter dated 10.03.2015 categorically indicated that 35 nos. of employees who are already reengaged, are junior to 69 nos. of employees, including the petitioner, therefore, they should also be considered for reengagement, and that in the meantime out of 67 nos. of retrenched employees 7 nos. have crossed the age of superannuation and 25 nos. have filed cases before the Court.

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In view of such position, if the petitioner is admittedly senior to those 35 nos. of employees, who have been re-engaged in the year 2008, there is no reason not to re-engage the petitioner and, as such, the reason for rejection of the claim of the petitioner vide Annexure-8 also cannot sustain in the eye of law. Therefore, the order under Annexure-8 dated 22.01.2015 is hereby quashed. The matter is remitted back to the authority concerned for fresh consideration in accordance with law as expeditiously as possible preferably within a period of three months from the date of communication of this order.”

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Mr. Khuntia, learned AGA appearing on behalf of the appellants has submitted that the respondent‟s claim of his reengagement on the ground that the persons engaged as DLR (skilled labour) after the respondent had been reengaged has no merit for the reason that the aforesaid 35 DLR workers were from different circles i.e. Drainage Circle, Cuttack whose gradation list was maintained and confined to the said circle whereas the respondent was engaged under WRCP Division, Marshaghai under Eastern circle, Cuttack where a different

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W.A. No. 1036 of 2022 Page 10 of 13

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gradation list was maintained from amongst DLR/NMR workers under the said circle. He, accordingly, submits that the direction issued by the learned Single Judge to consider the respondent‟s case for reengagement on the ground that 35 workers junior to him were reengaged is erroneous and unsustainable. He has submitted that the respondent did not raise any dispute after issuance of the retrenchment notice in 2003 and more than 11 years thereafter, he approached this Court seeking a direction for his reengagement. Such claim, he submits could not have been entertained and was rightly rejected by the Engineer-in-Chief, Water Resources by the impugned order dated 22.01.2015, which is just and proper.

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Mr. Karunakar Nayak, learned counsel appearing on behalf of the respondent has submitted with reference to the facts asserted in the applications/petitions that the respondent‟s retrenchment itself was contrary to the provisions of Section 25(g) of the ID Act and was in clear violation of the principles of natural justice and Articles 14 and 16 of the Constitution of India. He has submitted that several persons similarly situated have been reengaged, ignoring the respondent‟s case.

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He has vehemently argued that the notice of retrenchment dated 03.03.2003 in case of the respondent was bad and in similar circumstance, the Labour Court held such order of retrenchment illegal. The said finding of the Labour Court in an industrial dispute has been upheld by this Court by a judgment rendered in W.P.(C) No.457 of 2010. This Court‟s decision in W.P.(C) No.457 of 2010 has not been interfered with by the Supreme Court, he contends.

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W.A. No. 1036 of 2022 Page 11 of 13

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It can be easily discerned from the pleadings on record and submissions advanced on behalf of the parties that admittedly, the notice of retrenchment in respect of the respondent was issued in March, 2003. He had received the retrenchment benefits. It further transpires that some of the DLR/NMR had raised an industrial dispute against their retrenchment giving rise to I.D. Case No.8 of 2004. No such dispute was raised by the respondent. In the said I.D. Case No.8 of 2004 an award was passed by the Labour Court on 08.07.2009 holding the retrenchment order illegal. The award of the Labour Court was challenged before this Court in W.P.(C) No.457 of 2010 filed by the State of Odisha which was dismissed. SLP(C) No.3402 of 2013 filed by the State Government before the Supreme Court, was against the High Court‟s order also dismissed. Consequent upon dismissal of the writ petition and the SLP, retrenched NMRs, who had raised the industrial dispute were re-engaged so as to implement the award dated 08.07.2009. In such view of the matter, the claim of respondent, who did not raise any industrial dispute, based on implementation of the award by a Labour Court in favour of some of the employees is not at all justified. The respondent‟s claim of parity with the employees reengaged for implementation of an award passed by the Labour Court is wholly misconceived after he availed the retrenchment benefit.

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Secondly, admittedly, the respondent after having accepted the retrenchment benefits could not have validly raised a claim for reengagement and questioned the action of retrenchment, 11 years after he was retrenched. The respondent‟s claim was rightly rejected by the

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W.A. No. 1036 of 2022 Page 12 of 13

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appellant No.2-Engineer-in-Chief, Water Resources by an order dated 22.01.2015 which does not suffer from any illegality.

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For the aforesaid reasons, we respectfully disagree with the opinion of the learned Single Judge recorded in the impugned order, as we are of the view that the order impugned in the writ proceedings dated 22.01.2015 does not suffer from any illegality requiring this Court‟s interference.

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In our considered view, thus, the impugned order passed by the learned Single Judge cannot be sustained. Accordingly, the order dated 16.11.2021 passed in WPC (OAC) No.2766 of 2015 is set aside.

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The writ appeal is allowed. The writ petition i.e. WPC (OAC) No.2766 of 2015 is dismissed.

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All pending interlocutory applications, if any, stand disposed of.

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No order as to costs.

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(Chakradhari Sharan Singh)

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Chief Justice

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(Savitri Ratho) Judge

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SK Jena/Secy.

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Signature Not Verified

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Digitally Signed

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Signed by: SANJAY KUMAR JENA Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 09-Jul-2024 13:22:05

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W.A. No. 1036 of 2022 Page 13 of 13

State of Odisha v. Saroj Kumar Dash

Case brief

What is this about?

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State of Odisha v. Saroj Kumar Dash

Case brief

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