State Vs Rajkishore Sethi

2. Award dated 20^th July, 2009 (Annexure-1) passed by the learned Presiding Officer, Labour Court, Bhubaneswar (for brevity „Labour Court‟) in Industrial Dispute Case No.50 of 2004 is under challenge in this writ petition, whereby the Opposite Party No.1Workman has been directed to be reinstated in service with a lump sum amount of Rs.20,000/- towards back wages.

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3. Parties are described as per their respective status before learned Labour Court for the sake of convenience in discussion. None appears for the Opposite Party No.1-Workman on call.

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4. The admitted facts on record, which led to filing of the writ petition, are that, the Workman was appointed by the Management as Cook, vide order dated 10.12.1998 on a consolidated salary of Rs.2800/- per month in Kuntala Kumari Sabat Girls‟ Hostel, Unit-II, Bhubaneswar till the appointment of a regular employee. Accordingly, he joined the duty in the said hostel. While working as such, vide order dated 03.04.1999, the Management revised the mode of engagement of the Workman on 44 days basis on a monthly wage of Rs.780/- with one weekly off day or Rs.1020/- per month in lieu of the weekly off days with retrospective effect from 11.12.1998. Accordingly, his salary was reduced from Rs.2800/- per month to Rs.780/- or Rs.1020/- per month, as the case may be. But before issuance of the said revised engagement order, the Workman had already been paid salary @ Rs.2800/- per month for three months from his date of joining, i.e., 11.12.1998. While working as such, the Workman approached the Orissa Administrative Tribunal, Bhubaneswar in O.A. No.131 of 2001 for regularisation of his service. The said O.A. was disposed of vide order dated 08.02.2001 with a direction that if any regular selection is held for filling up of a post of a regular Cook in the said hostel, the Workman (Applicant in O.A. No.131 of 2001) having served in the Institution for a period of pretty long time, be allowed to compete with others in the regular selection, provided he possesses the minimum educational qualification prescribed for the post with further direction that till such regular

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selection is made, the Applicant may be allowed to continue as an ad hoc Cook subject to the conditions detailed in the said order.

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4.1 However, instead of acting in terms of the observation made in order dated 08.02.2001, passed in O.A. No.131 of 2001, the services of the Workman were terminated on 22.03.2001 without giving one month‟s prior notice or one month‟s salary in lieu of notice period so also compensation in terms of Section 25-F of the Industrial Disputes Act, 1947 (for brevity „the I.D. Act‟).

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5. Being aggrieved by the said action of the Management, the Workman raised an industrial dispute. Conciliation being failed and a report being sent to the Labour and Employment Department, Government of Odisha, the appropriate Government, in exercise of power conferred under sub-section (5) of Section 12, read with Clause (c) of sub-section (1) of Section 10 of the I.D. Act, vide order dated 30^th June, 2004, referred the matter to the learned Labour Court for adjudication of the dispute by answering the following reference;

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“Whether the termination of employment of Sri Raj Kishore Sethi, Ex-Cook of Kuntala Kumar Sabat, Adibasi Girls Hostel by the Director, S.T. & S.C. Development Department with effect from 25.03.2001 is illegal and/or justified? If not to what relief Sri Sethi is entitled?

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The matter so referred was registered as I.D. Case No.50 of 2004. 6. Being noticed, the Workman filed his statement of claim reiterating the facts detailed above. In addition to the above, a stand was also taken before the learned Labour Court, Bhubaneswar that while reducing his salary so also terms of engagement, the Management did not follow the pre-conditions prescribed under

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Section 9-A of the I.D. Act. Allegation of violation of Section 25-H of the I.D. Act was also made by the Workman.

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7. Being noticed, the Management filed its written statement admitting the facts alleged in the claim statement filed by the Workman. Further, it was admitted that the Workman has been paid remuneration @ Rs.2800/- per month for the period from 11.12.1998 to 03.04.1999 and thereafter Rs.1020/- per month till 10.11.2000 as per the revised Management Order No.11735 dated 29.03.2000. A further stand was also taken before the learned Labour Court that the Workman was engaged on 44 days basis and there must be a gap in between two spells of engagement. A stand was also taken in the written statement that the Workman was engaged as temporary Cook on the condition that the engagement is purely temporary and can be terminated at any time without issuing any notice or assigning reason thereof. As his services were no more required by the Government, the Workman was disengaged from service and no fresh appointment has been made in his place. Hence, Section 25-H of the I.D. Act is not applicable to the case of the Workman. A stand was also taken before the learned Labour Court that since the Workman was engaged on 44 days basis, he has not worked continuously for one year. As such, Section 25-F of I.D. Act is not applicable.

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8. Based on the pleadings and evidence on record, the learned Labour Court, vide the impugned award held that even if it is accepted that the Workman was being appointed for a period of 44 days in each spell and there was a gap of one day between two spells of appointment, still it cannot be said that he had not worked for more than 240 days during the preceding 12 calendar months from the date

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of his termination. Further, it was held that the Workman was entitled to prior notice or notice pay so also retrenchment compensation in terms of Section 25-F (b) of the I.D. Act. As, admittedly, no notice or notice pay or compensation, as provided under Section 25-F (a) and (b) of the I.D Act, was given to the Workman at the time of retrenchment, his retrenchment from service with effect from 22.03.2001 was illegal and unjustified.

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8.1 While answering Issue No. II as to what relief the Workman is entitled to, the learned Labour Court directed the Management to reinstate the Workman in service. However, a lump sum amount of Rs.20,000/- was awarded in lieu of back wages.

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9. Being aggrieved by such award, the present writ petition has been preferred by the State-Management basically on the ground that the Opposite Party No.1 being engaged as a Cook attached to the hostel under the S.T. and S.C. Development Department, does not come under the purview of definition of „Workman‟ under Section 2(s) of the I.D. Act. Hence, the provisions under the I.D. Act are not applicable to the case at hand. A further ground has been urged in the writ petition that the Cook-cum-Attendants of residential schools run under S.T. and S.C. Development Department are neither covered under the I.D. Act nor the Minimum Wages Act. That apart, since the Workman was engaged temporarily on 44 days basis as Cook on a consolidated pay in different spells from 11.12.1998 to 10.11.2000, unless the award passed by the learned Labour Court is set aside, that would unsettle the settled position of law. Thus, the impugned award being per se illegal, deserves to be set aside.

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9.1 Further, it is urged that the State Government, at present, is passing through acute financial stringency and if the impugned award passed by the learned Labour Court is allowed to prevail, it will result in financial burden on the State exchequer.

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10. Though not raised by the Management either before the learned Labour Court in its written statement or in the present writ petition, Mr. Mishra, learned Additional Standing Counsel for the State, submits that Kuntala Kumari Sabat Adivasi Girls‟ Hostel being run by the Management, i.e., Director, S.T. and S.C. Development Department, Bhubaneswar, is not an industry as defined under Section 2(j) of the I.D. Act.

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11. Mr. Mishra further submits that since the Workman was engaged for a fixed tenure on 44 days basis in different spells, the precondition prescribed under Section 25-F of the I.D. Act was not required to be complied with in view of the provision enshrined under Section 2(oo) (bb) of the I.D. Act. However, learned Labour Court failed to take note of the said legal provisions. Thus, finding recorded by learned Tribunal that the action of the Management in terminating the services of the Workman is illegal and unjustified, is perverse . 12. Though learned Counsel for the Workman is absent on call, it is ascertained from the record that, apart from filing Counter Affidavit on 19^th August, 2011, a date chart-cum-notes of submission has been filed by the learned Counsel for the Workman along with the photocopies of the case laws reported in 2003 (II) OLR – 244 ( Gopal Chandra Sao and others Vs. Chief Engineer and Basin Manager, Baitarani, Subarnarekha and Budhabalanga Basin, Laxmiposi and others ), 2010 (Supp.-I) OLR – 772 ( Co-operative Urban Bank Ltd.,

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Parlakhemundi Vs. Presiding Officer, Labour Court, Jeypore and others ), and 2008 (Supp.-I) OLR – 405 ( Project Director, IDCWD Project, Jeypore Vs. Sri Kailash Chandra Jena ). We think it proper to take the same into consideration for adjudication.

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12.1. In the written notes of submission filed by learned Counsel for the Workman, it has been urged that though in the claim statement filed by the Workman before learned Labour Court, it was specifically averred that his termination amounts to retrenchment within the meaning of Section 2 (oo) of the I.D. Act., the same has not been specifically traversed by the Management. Hence, principle of non-traverse comes into play which speaks that pleadings not traversed specifically are deemed to be admitted. Therefore, the Management is deemed to have admitted that termination of Workman amounts to retrenchment. Further, it has been urged in the written notes of submission that in view of the settled position of law, giving appointments on 44 days basis with some artificial breaks was adopted by the Management in order to deprive the Workman from getting the benefit under Section 25-F of the I.D. Act and therefore, exclusion clause (bb) under Section 2 (oo) is not attracted to such cases.

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12.2 Discussing the issue raised by Mr. Mishra, learned ASC that the Opposite Party No.1 is not a ‘ workman‟, it has been urged in the written notes of submission of the Workman that the Management, in para-2 and 4 of the written statement filed before the learned Labour Court, admitted that the Opposite Party No.1 is a Workman. So far as industry is concerned, relying on the Seven Judges Bench Judgment of the Hon‟ble Supreme Court, reported in AIR 1978 SC 548 ( Bangalore Water Supply and Sewerage Board Vs. A. Rajappa

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and others ), it has been urged in the written notes of submission that, as held by the Supreme Court in the said case, “industry” as defined in Section 2(j) of the I.D. Act, has a wide import and three golden tests are to be satisfied for declaring an institution to be an industry, viz, (i) there must be systematic activity; (ii) there must be cooperation between the employer and the employees and (iii) the activity should be made for the production and/or distribution of goods and services calculated to satisfy human wants and wishes. In the instant case, all the three conditions are fulfilled.

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12.3 It has also been stated that in view of the ratio in Bangalore Water Supply and Sewerage Board (supra), educational institutions are treated as “industry” and hostel being an integral part of the educational institution, is to be treated as an industry and it cannot be said that the employer was/is discharging its sovereign functions.

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12.4 It is further urged in the written notes that this Court has clarified that even in a Government Organization, if an employee wants to challenge the action of the employer regarding retrenchment, then the appropriate remedy is to be invoked under the provisions of the I.D. Act. Therefore, even if the Workman had earlier approached the Orissa Administrative Tribunal for regularization of his service, he is not debarred from approaching the forum under the I.D. Act relating to his retrenchment and the plea taken in that regard by the Management, is not sustainable.

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12.5 It has also been urged in the written notes of submission that this Court, vide order dated 31.03.2011, stayed the operation of the award dated 20.07.2009 under Annexure-1 subject to payment of

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wages at the rate of last pay drawn to the Workman with effect from April, 2011 and it was directed to pay the same within first week of each month. However, the Management stopped paying the wages from March, 2014. Hence, in view of the Judgment of this Court in Co-operative Urban Bank Ltd., (supra), the writ petition is liable to be dismissed.

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13. So far as the points urged before this Court that the establishment, in which the Workman was working, is not an Industry and the Opposite Party No.1 is not a Workman, as defined under Section 2(s) of the I.D. Act, admittedly, such points were never raised before the learned Labour Court in the written statement. For the first time, such points have been urged before this Court. That apart, in view of the definition of „Workman‟ as defined under Section 2(s) so also the definition of „industry‟ as defined under Section 2(j) of the I.D. Act and the settled position of law, this Court is of the view that the Petitioner Management is an Industry and the Opposite Party No.1 is a Workman under the I.D. Act.

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14. So far as the point as to approaching the Industrial Tribunal, instead of Orissa Administrative Tribunal, it would be apt to reproduce below Section 28 of the Administrative Tribunals Act, 1985 (for brevity „the Act, 1985‟) for ready reference;

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“ 28. Exclusion of jurisdiction of courts except the Supreme Court under article 136 of the Constitution .—On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, [ no court except —

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(a) the Supreme Court; or

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(b)any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947

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(14 of 1947) or any other corresponding law for the time being in force,

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shall have], or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters.”

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(Emphasis supplied)

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15. From the said provision under Section 28 of the Act, 1985, it is amply clear that the Administrative Tribunal so also Industrial Adjudicator have concurrent jurisdiction in relation to recruitment and matters concerning recruitment to any service or post or service matter concerning members of any service or persons appointed to any service or post. Admittedly, the Opposite Party No.1Workman approached the Odisha Administrative Tribunal for regularisation of his service. After disposal of the said O.A. on 08.02.2001, his services being illegally terminated with effect from 25.03.2001 despite direction/observation made by the Odisha Administrative Tribunal, he chose to approach the forum under the I.D. Act, which is permissible in terms of provisions under Section 28 of the Act, 1985.

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16. That apart, in Gopal Chandra Sao and others (supra), this Court referring to Section 15 of the Act, 1985, held that, as the Petitioners‟ grievances are only with respect to the retrenchment and they are coming within the definitions of „Workman‟ as defined in Section 2(s) of the I.D. Act and the dispute qualifies to the term „industrial dispute‟ as defined in Section 2(k) of the said Act; therefore, proper forum for the Petitioners would be the Industrial Tribunal and if they claim for regularisation in service while challenging to the order of retrenchment, then it is the State

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Administrative Tribunal, which has got the jurisdiction in view of the provision in Section 15 of the Act, 1985.

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17. Further, though the Management in its written statement filed before the learned Labour Court specifically pleaded about filing of O.A. No.131 of 2001 by the Opposite Party No.1-Workman so also disposal of the said O.A. vide order dated 08.02.2001, never took a stand as to maintainability of the reference made by the appropriate Government at the instance of the Workman. However, in view of the provision under the Act, 1985, as quoted above, the point urged before this Court as to maintainability of the reference and legality of the award pursuant to such reference is unsustainable.

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18. So far as the point urged before this Court that the engagement of the Workman was on 44 days basis with a consolidated remuneration of Rs.780/- per month with one weekly off day or Rs.1020/- per month in lieu of the weekly off days and exclusion of the action of the Management in retrenching the Workman in view of Section 2(oo) (bb) of the I.D. Act, it would be apt to reproduce below para-3 of the written statement filed by the Management before the learned Labour Court in I.D. Case No.50 of 2004.

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“ 3. The aforesaid Office Order No.35140 dt. 10.12.98 was superseded vide erstwhile Welfare Department O.O. No.11596 dt. 3.4.99 (copy at Annexure-„B‟) basing on the Circular No.18988 dt. 30.7.98 regarding payment of remuneration of the Cook-cum-Attendants/Daftaries/ Attendants engaged as temporary basis under the Welfare Department Institutions (copy at Annexure-„C‟). Accordingly Sri Sethi was engaged on 44 days basis with a consolidated remuneration of Rs.780/- p.m. with one weekly off day or Rs.1020/- p.m. in lieu of weekly off days as provided under the Minimum Wages Act . That the averment that the 1^st party management has reduced the pay of the workmen from Rs.2800/- p.m., to Rs.780/- , Rs.1020/- p.m. by mala fide and arbitrary order is

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baseless. It is a fact that Sri Sethi has been paid remuneration @ Rs.2800/- p.m. for the period from 11.12.98 to 3.4.99 and thereafter Rs.1020/- p.m. till 10.11.2000 as per the revised Management Order No.11735 dt. 29.3.2009 (copy at Annexure-‘D’).”

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(Emphasis supplied)

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19 . As has been admitted in the written statement filed before learned Labour Court, though the Workman was engaged as a temporary Cook with a consolidated pay of Rs.2800/- per month vide Office Order No.35140 dt. 10.12.98, the same was superseded vide Welfare Department Office Order No.11596 dated 03.04.1999, based on the circular No.18988 dated 30^th July, 1998 regarding payment of remuneration of the Cook-cum-Attendants/Daftaries/Attendants engaged on temporary basis under the Welfare Department Institutions. That apart, it has been specifically admitted in the said paragraph that the Workman was paid his remuneration @ Rs.2800/per month for the period from 11.12.1998 to 03.04.1999 and thereafter @ Rs.1020/- per month till 10.11.2000, as per the revised Management Order dated 29.03.2000. In view of such admission in the written statement, it is amply clear that the Workman, apart from being engaged on 44 days basis, was also working on weekly off days, for which he was paid Rs.1020/- per month instead of Rs.780/- per month from 03.04.1999 till 10.11.2000.

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20. Further, in para-5 of the written statement it was pleaded by the Management before learned Labour Court that the Workman was engaged on 44 days basis and there must be a gap between each period of engagement. However, the Management failed to adduce any evidence to substantiate such stand taken before the learned Labour Court. Rather, as stated above, it was admitted before learned

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Labour Court that the Workman was working from 11.12.1998 till 10.11.2000 continuously, that too on weekly off days also.

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21. So far as continuous service as defined under Section 25-B of the I.D. Act, in a recent Judgment dated 11.03.2025, this Court in W.P.(C) No.20644 of 2017 ( The Management of M/s. Hare Krushna Mahatab Library, Bhubaneswar Vs. Prasanna Kumar Sethi ), discussed the definition of continuous service as defined under section 25-B of the I.D. Act referring to the Judgments of the Supreme Court in Workman of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation ; (1985) 4 SCC 71, so also in U.P. Drugs & Pharmaceuticals Co. Ltd. Vs. Ramnuj Yadav and others ; (2003) 8 SCC 334 and held that uninterrupted working for 240 days in the preceding twelve months from the date of termination of service is not necessary to constitute „continuous service‟. Even though a Workman has not worked for more than 240 days during the preceding twelve months of his retrenchment/termination, if he has worked for more than 240 days in any of the preceding years, he would be deemed to be in continuous service and his retrenchment would be illegal, if the same has not been done by the employer without adhering to the provisions of the I.D. Act. 22. In similar facts and circumstances, where the Workman was appointed as a Cook on ad hoc basis and being engaged on 89 days basis on three occasions and on 44 days basis on ten occasions, relying on the decision of the Hon‟ble Supreme Court in Haryana State Electronics Development Corporation Ltd. and others Vs. Mamni , reported in 2006 AIR SCW 2979, this Court held that such action of the Petitioner-Management was not bona fide and it was

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adopted to deprive the Opposite Party-Workman from availing the benefit under Section 25-F of the I.D. Act. As such, in view of the ratio in the case of Haryana State Electronics Development Corporation Ltd (supra), action of the Management in terminating the Workman will not fall within the scope of Section 2(oo) (bb) of the I.D. Act.

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23. Further, the stand of the Management that it was not a case of retrenchment in view of section 2(oo)(bb) of the I.D. Act, has been advanced before this Court for the first time. Such stand was neither taken in the written statement filed before the learned Labour Court nor the impugned award shows that any evidence was led by the Management to substantiate such a plea. Hence, this Court is of the considered view that it is not open for the Petitioner-Management to raise such a new plea at this stage.

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24. Admittedly, the Workman was appointed as a Cook vide order dated 10.12.1998 till the appointment of a regular Cook. The Odisha Administrative Tribunal (OAT), vide order dated 08.02.2001, in O.A. No.131 of 2001, also directed the Management to allow the Workman to compete with others in the regular selection process, provided he possesses minimum educational qualification prescribed for the said post. A further direction was given to allow the Workman to continue as ad hoc Cook till such regular selection is made. It is not the case of the Management that pursuant to the said order passed by the OAT, a regular selection process was held by giving due opportunity to the Workman to compete with others and a Cook was selected and appointed in such position/post, where the Workman was working. Rather, a plea has been taken in the written statement before

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learned Labour Court so also before this Court that after disengaging the Workman, nobody has been engaged in the said post/position as a Cook in the said hostel. It has further been admitted in the written statement, as detailed above, that the Workman was continuously working on 44 days basis including weekly off days. Hence, this Court is of the considered opinion that such action of the Management cannot be brought under the ambit of exclusion clause (bb) under Section 2 (oo) of the I.D. Act to debar the Workman from the protection under Section 25-F of the I.D. Act.

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25. The Workman took a stand to dismiss the writ petition for non-compliance of Section 17-B of the I.D. Act. In Dena Bank Vs. Ghanshyam; (2001) 5 SCC 169, it is held by the Hon‟ble Supreme Court that the wages last drawn, in terms of Section 17-B of the I.D. Act, has to be paid to the Workman from the date of award during pendency of the matter before High Court or Supreme Court. Though in the present case, the impugned award was passed on 20^th July, 2009, but in view of the order dated 31.03.2011 in the present writ petition, the Opposite Party No.1-Workman was paid wages last drawn with effect from the said date. As the said payment was stopped by the State-Petitioner with effect from March, 2014, Misc. Case No.21515 of 2014 was filed by the Workman. Considering the plea taken, this Court on 17.01.2023, directed for compliance of the previous order and file compliance Affidavit. On being so directed, the State-Petitioner filed an Affidavit on 21.09.2023 indicating therein that an amount of Rs.1,12,200/- has been paid to the Workman for the period from April, 2014 to May, 2023. Admittedly, the Workman has not been paid wages last drawn by him from 20^th July, 2009, i.e., from

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date of award, till 30.03.2011 and also for the subsequent period from June, 2023 till date.

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26. On perusal of the Judgment in Co-operative Urban Bank Ltd., Parlakhemundi (supra), it is apparent that no such view has been taken by the coordinate Bench for dismissal of the writ petition on the ground of non-compliance of Section 17-B of the I.D. Act. Rather, Hon‟ble Supreme Court in Hindustan Zinc Ltd. Vs. Industrial Tribunal and another , reported in (2001) 10 SCC 211, held that the High Court was not justified in dismissing the writ petition for noncompliance of the Section 17-B of the I.D. Act and ought to have dealt with the merits of the case.

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27. In view of the discussions and observations made in the foregoing paragraphs, there being no infirmity and illegality in the impugned award, the writ petition stands dismissed. In the facts and circumstances of the case, there shall be no order as to costs.

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28. As the impugned award passed in I.D. Case No.50 of 2004 has been confirmed, it is made clear that the Opposite Party No.1Workman, on his reinstatement, shall be entitled to all the benefits for the post award period, what he would have been entitled to had he been reinstated in service, till the date of his actual reinstatement.

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Orissa High Court, Cuttack The 24^th March, 2025/Prasant

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Signature Not Verified

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Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 17-Apr-2025 10:26:56

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W.P.(C) No.2492 of 2011

State v. Rajkishore Sethi

Case brief

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State v. Rajkishore Sethi

Case brief

What is this about?

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