ORDER
P.K. Tripathy, J.
1. Heard Learned Counsel for the parties and this Writ Petition stands dismissed at the stage of admission after hearing Learned Counsel for the petitioner for the following reasons.
2. Petitioner challenges the award of the Presiding Officer, Labour Court, Sambalpur passed on 25.2.2005 in I.D. Case No. 57 of 2003. The reference which was made by him, read as hereunder :
Whether the termination of services of Sri Binod Bihari Nial, NMR Peon with effect from 1.5.2001 by the management of M/s. Orissa State Co-Operative Marketing Federation Ltd. MARKFED, Orissa, Bhubaneswar is legal and/or justified ? If not, what relief is Sri Nial entitled to ?
3. In the above context, claim of the Opp. Party-workman was that thought he was engaged as NMR w.e.f. 17.6.1985 and continued as such till 30th April, 2001, he was retrenched under Section 25-F of the Industrial Dispute Act, 1947 (in short ‘the Act’) and in lieu thereof wage for a period of one month was paid to him. His grievance is that though similarly situated several persons (named in the impugned order) were junior to him, he was preferred to be retrenched in contravention of Section 25-G of the Act. He also told that one Hrushikesh Mohapatra and Pitabasa Rout were given appointment as peon without considering his case for such appointment. Petitioner further stated that his case of retrenchment is covered by Chapter V-B of the Act, because on an average five hundred workmen were working in the establishment and therefore the order of retrenchment is illegal being in contravention of Section 25-N of the Act.
4. Claim of the Writ Petitioner before the Presiding Officer, Labour Court, Sambalpur was that because of the necessity to cut down the size of the establishment, the management took a decision and accordingly from each category of the workmen, they reduced the size and passed order of retrenchment with respect to 96 workmen. In the said gradation list, petitioner was coming as a peon and from his category, no person junior to him in service was retained. With respect to appointment of Hrushikesh Mohapatra and Pitabas Rout, the Writ Petitioner stated that their employment was never challenged and they were given regular employment in the year 1997. It is also stated by the petitioner that provision under Section 25-N is not attracted so also there is no violation of the provision under Section 25-G of the Act.
5. On due consideration of the rival claim, the Presiding Officer framed the following issues :
(i) “Whether the unskilled NMR workman like NMR Peon, NMR Watchman, NMR Sales Assistant etc. form one category.
(ii) Whether the termination of services of 2nd Party workman by the 1st Party management w.e.f. 30.4.2001 is legal and justified ?
(iii) Whether the Orissa State Co-Operative Marketing Federation Limited, MARKFED, Orissa (1st Party) is an “Industrial Establishment” as defined under Section 25-L of the I.D. Act, 1947 read with Clause (m) of the Section 2 of the Factories Act, 1948, so as to attract the provisions of Section 25-N of the I.D. Act, 1947 in the matter of retrenchment of the 2nd party workman ?
(iv) To what relief the 2nd Party workman Sri Nial is entitled ?
6. So far as it relates to Issue Nos. 1 & 2, the Lower Court recorded the finding in favour of the Opp. Party i.e. retrenched NMR employee that such categories of NMRs working as Peons, Watchmen and Sales Assistants are carrying similar job/work and NMRs in such categories should have been in a common list to eliminate the junior-most in compliance to the provision in Section 25-G and in that respect the management has committed illegality by violating the provision in Section 25-G on issuing notice of retrenchment against the petitioner preferring the junior to be employed in the other two categories. Learned Presiding Officer also held on issue No. 3 that Section 25-N is applicable to the fact situation available on record and in the absence of approval from the Govt., order of retrenchment is violative of that provision. On answering to issue No. 4 the Presiding Officer held that workman is entitled to re-instatement with full back wages.
7. After hearing Learned Counsel and on perusal of the impugned judgment so also the ratio referred to therein besides the decision of this Court in O.J.C. No. 5240 of 1991 decided on 6.5.1992, this Court finds that the award of the learned Presiding Officer, Labour Court does not suffer from any illegality or perversity.
8. Undisputedly, Opposite Party-NMR worked under the petitioner as Peon, Sales Assistant, etc. from time to time as per assignment of job. Claim of the petitioner that the workman was excluded simply because he was in the batch of junior-most NMRs working in Peon category by the date of retrenchment. On the fact of the undisputed fact situation that a common list of NMRs should have been maintained for Peons, Sales Assistants etc. elimination of petitioner by confining him to Peon category and retaining NMRs junior to him in sales Assistants category is unjustifiable and illegal. The matter relating to appointment of Hrushikesh Mohapatra and Pitabas Rout in fact is not under challenge in the said proceeding before the Labour Court but that contention was put forth to show arbitrary attitude of the management by giving appointment to two outsiders as Peon though several NMRs were over looked to be considered. This Court has nothing to disagree with the view expressed by the Learned Presiding Officer in respect of breach of Section 25-G of the Act and accordingly that contention of the petitioner has no leg to stand.
9. So far as the finding relating to the provision under Section 25-N of the Act is concerned, the decision rendered in the case of Rabindra Kumar Mishra v. Managing Director, Orissa State Co-Operative Marketing Federation Ltd., and Anr. O.J.C. No. 5240 of 1991 was relating to consideration whether the Extraction Plant of the Marketing Federation can be included within that Federation. On distinguishable facts and circumstances this Court excluded the Extraction Plan from the establishment of the Marketing Federation. That ratio has no application to the facts and circumstances involved in the present case. Therefore, the decision of the Presiding Officer does not suffer from wrong appreciation of facts and law in that respect.
10. For the reasons indicated above, this Court finds no illegality in the impugned judgment and accordingly the Writ Petition is dismissed.