Md, Odisha Forest Development Corp. Ltd., Bbsr Vs Brahmananda Biswal

2. Petitioner-Management in this writ petition seeks to assail the Order dated 7^th December, 2022 (Annexure-3) passed by learned Labour Court, Bhubaneswar in Industrial Dispute

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Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 16-Apr-2025 11:14:41

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Misc. Case No.27 of 2020, thereby allowing an application under Section 33-C(2) of the Industrial Disputes Act, 1947 (for brevity ‘the Act’) filed by the Workman-Opposite Party and directing the Petitioner-Management to pay a sum of Rs.2,62,980/- towards Un-utilized Leave Salary (ULS) to the Workman. It is also directed that in the event the Petitioner-Management fails to pay the aforesaid entitlement to the Workman within two months of the said order it would carry interest at the rate of 6% per annum.

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3. Mr. Mishra, learned counsel for the Odisha Forest Development Corporation (OFDC)-Management submits that the Opposite Party-Workman was working as Deputy Sub-divisional Manager under the Management and retired from service on 28^th February, 2013 on attaining the age of superannuation. Opposite Party-Workman claiming that he was not paid his DA at the rate of 13/16%, arrear RACP so also the ULS, filed an application (ID Misc. Case No.27 of 2020) under Section 33-C (2) of the Act before learned Labour Court after seven years from the date of his superannuation. During pendency of ID Misc. Case No.27 of 2020, Petitioner-Management paid his DA and arrear RACP. Thus, learned Labour Court directed for payment of ULS to the Opposite Party-Workman.

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3.1 Mr. Mishra, learned Counsel further submits that on the date of superannuation, the retiral benefits, including ULS, should be paid to the employee subject to submission of No Due Certificate (NDC). Although gratuity amount was paid to the Workman, but in view of the observation in the Special Audit

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Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 16-Apr-2025 11:14:41

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Report to the effect that the dues recoverable from the Opposite Party- Workman was much more than his retiral dues, his ULS of Rs.2,62,980/- was withheld. Learned Labour Court, relying upon the case law in Bhagirathi Jena Vs. Board of Directors, OSFC and others; 1999 SCC (L&S) 804, directed the PetitionerManagement to pay the aforesaid ULS. The ratio in the case of Bhagirathi Jena (supra) is not applicable to the instant case, as in the said case, in absence of any provision in the Regulations, Disciplinary Proceeding was initiated against said Mr. Jena, the ex-employe of OSFC, after the date of his superannuation. But in the instant case, no such disciplinary proceeding was initiated against the Opposite Party-Workman. The retiral benefit of ULS could have been released in favour of the Opposite Party on production of NDC, which the Workman failed to comply. Thus, there is no illegality in withholding the ULS of the Workman. This material aspect was not taken into consideration by learned Labour Court while adjudicating the matter. Hence, the impugned order is not sustainable and is liable to be set aside. The matter should be remitted back to learned Labour Court for fresh adjudication of the matter keeping in mind the aforesaid position of law.

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4. Mr. Dash, learned counsel for the Opposite PartyWorkman, refuting such submission, contended that at para-7 of the Show Cause filed by the Management-Petitioner, it has been categorically stated that due to non-receipt of the certificate from the Division Office where the Opposite Party (Applicant therein) was working during his entire service period as well as non-

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Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 16-Apr-2025 11:14:41

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receipt of the final NDC form Divisional Manager, Bhubaneswar (Plantation) Division, wherefrom the Opposite Party got superannuated, his terminal benefits, except gratuity, could not be settled. He also referred to the observation of learned Labour Court to the effect that “ the OPW No.1 has stated at para-18 that he cannot say if any communication was made to the applicant regarding the non-submission of NDC against the applicant till date, for which the outstanding dues of the applicant are not settled.” It is his submission that at no point of time any communication was made to the Opposite party-Workman by the Management for submission of NDC. In view of the categorical admission of the Management Petitioner in its Show Cause to the effect that NDC was required to be submitted by the Division Offices and the Divisional Manager, Bhubaneswar (Plantation) Division, the Opposite Party-Workman should not be made to suffer. He, therefore, submits that learned Labour Court has rightly held that the Opposite Party-Workman is entitled to ULS.

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5. Heard learned counsel for the parties; perused the case record. It is apparent from the submissions of learned Counsel for the parties that although the application under Section 33-C(2) of the Act was filed claiming unpaid DA at the rate of 13/16% arrear RACP and ULS, during pendency of the said application, DA and arrear RACP, as claimed, was paid. Thus, learned Labour Court has categorically held that the Opposite PartyWorkman is not entitled to any amount towards DA and arrear

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Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 16-Apr-2025 11:14:41

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RACP, as claimed by him, as the same was already paid after filing of the aforesaid application.

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6. So far as un-paid ULS is concerned, Mr. Mishra, learned Counsel for the Petitioner-Management emphatically submitted that due to non-submission of NDC, ULS could not be settled and released in favour of the Opposite Party. It is more so because of the observation made in the Special Audit Report. But the contention of the Management at para-7 of its Show Cause is contrary to the same. For ready reference, the averments made at para-7 of the Show Cause filed by the Management, is reproduced here under:-

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“ 7. That, due to non-receipt of no dues certificate from the Division Offices where the applicant was working during his entire service period as well as nonreceipt of final NDC from the Divisional Manager, Bhubaneswar (Plantation) Division where from he retired, his terminal benefits except Gratuity could not be settled . It may be noted here that as per OFDC Letter No.32080 dtd. 18.11.2002 the Corporations established outstanding amount will be recovered by way of adjustment from the ULS and arrear salary if any.”

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(Emphasis Supplied)

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From the above, it is clear that ULS of the Opposite Party could not be settled due to non-submission of the NDC by the Division Offices where the Applicant/Opposite Party was working during his entire service period as well as non-receipt of NDC from the Divisional Manager, Bhubaneswar (Plantation) Division. There

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Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 16-Apr-2025 11:14:41

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is also no material on record to appreciate that any communication was made to the Opposite Party for submission of NDC. Be that as it may, the Opposite Party-Workman was not at all required to submit the NDC as would be clear from the averments made by the Management at para-7 of its Show Cause (quoted supra). Thus, no fault can be attributed to the Workman for non-submission of the NDC by the different Divisions of the Petitioner-Management. It also appears from the letter under Annexure-6 filed along with Affidavit of the PetitionerManagement dated 23.02.2024 that the Workman has been paid a sum of Rs.32,310/- towards ULS during pendency of the present writ petition. Thus, it can be said in no ambiguous terms that the Opposite Party-Workman was not required to submit the NDC and further he is entitled to ULS. Law is well-settled that no action can be taken against an employee on the basis of observation in the Audit Report without affording an opportunity to the concerned employee to explain the same following due procedure of law. In the instant case, no such procedure appears to have been followed.

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7. Further, the Opposite Party-Workman was superannuated from service in 2013, but the ULS of Rs.32,310/- was paid during November, 2023, which is much after his retirement. In absence of any adjudication there could not have been any deduction from the ULS of the Opposite Party- Workman.

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8. On cumulative assessment of the discussions made above, this Court is of the considered opinion that learned Labour

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Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 16-Apr-2025 11:14:41

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Court has made no error in holding that the Workman-Opposite Party is entitled to Rs.2,62,980/- towards ULS. Hence, we are not inclined to interfere with the impugned under Annexure-3.

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8. At this stage, Mr. Mishra, learned counsel for the Petitioner-Management submits that learned Labour Court, while adjudicating the application under Section 33-C (2) of the Act, has categorically observed that “However, if the alleged recoverable amount will be finally decided by the OFDC through its Triangular Committee in view of the special audit report, the OP is at liberty to recover the said amount from the applicant, if any, by due process of law . But, the OP should not deprive the present old aged applicant from his legal rights as it would be against the principle of natural justice.” As such, the Management was justified to deduct the recoverable amount from the Applicant and paid him Rs.32,310/- under Annexure-6 towards ULS.

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9. The action of the Management in deducting a substantial amount and paying a meagre amount of Rs.32,310/- to the Opposite Party towards ULS after ten years of his retirement, during pendency of the present writ petition, without following due procedure of law is without jurisdiction and unjustified, as no proceeding whatsoever, was initiated against the Workman before his superannuation on the basis of the alleged observation made in the Special Audit Report.

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Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 16-Apr-2025 11:14:41

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10. In view of the discussions made above, the Opposite Party-Workman is entitled to Rs.2,62,980/-, as computed by the learned Labour Court, which should have been paid to him on the date of his superannuation or at least within two months from the date of passing of the order under Annexure-3, which is impugned herein. Hence, there is no substance in the argument of Mr. Mishra, learned counsel for the Petitioner-Management.

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11. Accordingly, the writ petition, being devoid of any merit, stands dismissed. However, in the facts and circumstances, there shall be no order as to cost.

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(K.R. Mohapatra) Judge

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(S.K. Mishra) Judge

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Orissa High Court, Cuttack, Dated 10^th April, 2025/s.s.satapathy

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Md, Odisha Forest Development Corp. Ltd., Bbsr v. Brahmananda Biswal

Case brief

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Md, Odisha Forest Development Corp. Ltd., Bbsr v. Brahmananda Biswal

Case brief

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What the court decided

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