HIGH COURT OF ORISSA : CUTTACK
W.P.(C) NO.4238 OF 2003
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
Sudarshan Rout ....... Petitioner.
Versus.
Commissioner-cum-Secretary to Govt.
of Orissa and Others ........... Opp.parties
For petitioner : M/s. Manoj Mishra, P.K.Das,
D.K.Patnaik, B.B. Mohanty,
P.K. Nanda
For opp. parties : Additional Standing Counsel
PRESENT
THE HON'BLE SHRI JUSTICE L. MOHAPATRA
AND
THE HON'BLE SHRI JUSTICE B.K.NAYAK
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Date of hearing :13.08.2010 : Date of judgment: 27.10.2010
B.K.NAYAK, J. In this writ application, the petitioner has prayed to quash
his retrenchment order under Annexure-6 and direct the opposite parties
to treat him as continuing in service and grant all consequential and
financial benefits.
2. The case of the petitioner is that on 26.09.1978 he was
appointed as Work-Charged Helper under the Executive Engineer, F.M.
Division, Rengali Dam Project and on 21.5.1981 he was promoted to the
post of Wireman Grade-III. While working as such, he was transferred
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and posted as such in the year 1989 under the Executive Engineer,
Rehabilitation Division, S.I. Project, Laxmiposi. On 25.09.1990, he was
given adhoc promotion to the post of Electrician Grade-II which was
extended from time to time and finally on 02.12.1993 he was promoted as
Electrician Grade-II under the Work Charged establishment. It is further
stated by the petitioner that in the year 1965 the State Government in the
Finance Department passed a resolution as per Annexure-2 deciding to
absorb Work-Charged employees in corresponding posts created in the
regular establishment of different Departments of the Government,
subject to certain conditions. Again on 30.04.1983, the Government
issued letter (Annexure-3) to the Engineer-in-chief, Irrigation reiterating
the general principles of conversion of posts in the Work-Charged
establishment to regular establishment where the posts in the Work-
Charged establishment continued for five years from the date of creation
and were likely to continue in future for works of permanent nature.
Pursuant to directives of the Supreme Court, the High Court and the
Administrative Tribunal, the Government also passed a resolution on
15.05.1997 (Annexure-5) formulating certain norms and conditions to
absorb workers like the petitioner under regular establishment. In spite of
such resolutions passed from time to time, the opposite parties have not
acted upon the same. It is the further case of the petitioner that while
working as Electrician Grade-II in the Work-Charged establishment, he
was retrenched with effect from 31.03.2003 as a surplus worker vide
order dated 28.3.2003 under Anenxure-6. It is alleged by him that the
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retrenchment order has not yet been communicated to him, nor has he
received the same, and that he has not been paid one month’s pay and
retrenchment compensation or gratuity as required under Section 25-F of
the Industrial Disputes Act (in short, ‘the Act’), though in the
retrenchment order he has been asked to receive one month’s pay in lieu
of one month notice. It is also stated that the mandatory provision of
Section 25-N of the Act has also not been complied with by the opposite
parties while retrenching the petitioner. It is further stated that provision
of 25-G of the Act which lays down the principle of ‘last come first go’ has
not been followed while retrenching the petitioner, inasmuch as Work-
Charged employees, namely, Basanta Ku. Swain and Budhia Samal, who
are junior to the petitioner have been retained in service. It is also stated
that some N.M.R. employees have been retained whereas the petitioner
has been illegally retrenched, though the N.M.R. employees should have
been retrenched first.
3. The opposite parties have filed a counter affidavit wherein it is
admitted that the petitioner was appointed as Helper on 26.09.1978. It
is, however, stated that the post of Wireman is not a promotional post of
Helper. While the former involves a different nature of job for which
technical knowledge and experience is necessary, post of Helper does not
require any such thing. It is stated that though the initial appointment of
Basanta Kumar Swain as Helper was subsequent to petitioner’s
appointment as helper, while considering both of them for appointment as
Wireman, Basanta Kumar Swain was found suitable and accordingly
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appointed as Wireman Grade-III with effect from 29.01.1981, whereas
the petitioner was appointed as Wireman Grade-III on 21.5.1981 and,
therefore, Basanta Kumar Swain became senior to the petitioner in the
gradation of Wireman Grade-III and was accordingly shown in the
common seniority list. Subsequently, though both of them were promoted
from Wireman Grade-III to Electrician Grade-II on the same day, i.e., on
02.12.1993, their seniority was maintained in accordance with the
position they were occupying in the gradation list of Wireman Grade-III.
Though the petitioner was initially given adhoc promotion to Electrician
Grade-II with effect from 25.09.1990, which was extended up to
08.06.1991, he had been degraded to the post of Wireman Grade-III.
Thereafter, he was again promoted to the post of Electrician Grade-II on
02.12.1993 along with Basanta Kumar Swain, who has accordingly been
placed above the petitioner in the gradation lists as per Annexures-D/3
and A/3. Similarly, Budhia Samal, who was appointed along with the
petitioner on the same day as Helper and also as Wireman Grade-III has
all along been shown as senior to the petitioner from the beginning and
he having also been promoted to the post of Electrician Grade-II along
with the petitioner on the same day, the previous seniority is accordingly
maintained. It is stated that the seniority lists have never been challenged
by the petitioner. With respect to the retrenchment of the petitioner, it is
stated in the counter affidavit that the retrenchment order was issued to
the petitioner asking him to receive one month’s notice pay and the
retrenchment benefits on 31.03.2003, from which date he was
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retrenched. He was offered a Banker’s cheque dated 31.03.2003 for
Rs.1,57,976/- (Annexure-C/3) towards his retrenchment dues including
one month notice pay but the petitioner refused to accept the
retrenchment and other benefits offered in the shape of the Banker’s
cheque. Therefore, it is contended that there was no violation of
requirement of Section 25-F of the Act. It is also stated that the
Government Resolutions referred to by the petitioner were never
implemented because of the financial stringency of the State Government,
for which no post in the regular establishment was sanctioned and
created for absorption of Work-Charged employees. It is stated that
because of the financial stringency, the Government adopted austerity
measure (communicated vide letter no.10954/F dated 14.03.2001) and
decided to retrench the surplus N.M.R. and Work-Charged personnel,
who were junior in their respective category. Accordingly, opposite party
no.2 sent a list of junior surplus workers as per common seniority list of
Work-Charged employees of Major Irrigation Projects maintained by him
with instruction to retrench the surplus workmen with effect from
31.03.2003 on the basis of principle of ‘last come first go’. It is also stated
that N.M.R. workers and Work-Charged employees belong to completely
separate and distinct establishments. Seniority of employees in one
establishment cannot be counted or compared with the other
establishment. The petitioner being the junior-most surplus worker in his
category in the Work-Charged establishment, he has been retrenched.
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Therefore, there is no violation of the principle of ‘last come first go’ and
the provision of Section 25-G of the Act.
4. Having regarded to the assertions made in the writ petition,
rejoinder affidavit of the petitioner and the relief sought for, the only
question that arises for consideration is whether the retrenchment of the
petitioner is illegal and invalid for non-compliance of the provisions of
Sections 25-F, 25-G and 25-N of the Industrial Disputes Act,1947.
5. The petitioner has asserted that he has not been given one
month notice for his retrenchment or paid wages for one month in lieu of
such notice, as required under Clause-(a) of Section 25-F of the Act, and
he has not been paid retrenchment compensation, as required under
Clause-(b) of the said Section. It is evident from the retrenchment order
(Annexure-6) that the said order was passed on 28.3.2003 retrenching the
petitioner with effect from 31.3.2003 A.N. In the said order, the petitioner
was requested to attend the office of the S.D.O on 31.3.2003 to receive
one month pay, in lieu of one month notice, and other retrenchment
dues, as admissible under Clauses-(a) and (b) of Section 25-F of the Act.
Specific assertion has been made in the counter affidavit of the opposite
parties that the retrenchment order was issued to the petitioner and he
was offered a Banker’s cheque dated 31.3.2003 for Rs.1,57,976/-, but
the petitioner refused to accept the same. Copy of the Banker’s cheque
has been filed vide Annexure-C/3. It is clear that the petitioner
deliberately avoided to receive the Banker’s cheque which had been drawn
in his favour towards one month notice pay and retrenchment
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compensation for which no fault can be attributed to the opposite parties
for petitioner’s refusal to receive the Banker’s cheque. Therefore, it cannot
be said that the provisions of Clauses-(a) & (b) of Section 25-F of the Act
have been violated.
6. Section 25-G of the Act, which is said to have been violated by
the opposite parties in retrenching the petitioner, reads as under :
“25-G. Procedure for retrenchment- Where any
workman in an industrial establishment, who is a
citizen of India, is to be retrenched and he belongs to a
particular category of workman in that establishment,
in the absence of any agreement between the employer
and the workman in this behalf, the employer shall
ordinarily retrench the workman who was the last
person to be employed in that category, unless for
reasons to be recorded the employer retrenches any
other workman.”
The petitioner also asserts that as per policy decision of the
Government dated 10.07.2006 (Annexure-7) N.M.R. workers of a
particular category should be retrenched first before retrenchment of the
Work-Charged employee of the same category and that no worker under
Work-Charged establishment promoted to the higher grade should be
retrenched from service being a junior-most person of that grade and in
the event of necessity of such retrenchment, he shall be reverted to the
lower grade and the junior-most person in the lower grade should be
retrenched. Basing on such decision of the Government, it is contended
that Basanta Ku. Swain, who was initially junior to the petitioner when
appointed as Helper, and Budhia Samal, who was appointed on the same
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day when the petitioner was appointed, have been retained, while the
petitioner has been retrenched. As has been seen from the counter
affidavit of the opposite parties and the common seniority list of the
Work-Charged employees, though Basanta Kumar Swain was junior to
the petitioner in the Helper grade, he was appointed as Wireman Grade-III
in January,1981 whereas the petitioner was appointed as Wireman
Grade-III in May,1981 and, therefore, in the Wireman Grade the petitioner
became junior to Basanta Swain. Similarly, Budhia Samal was appointed
along with the petitioner on the same day but he has been shown senior
to the petitioner and accordingly the seniority list was maintained. All
three of them were promoted from Wireman Grade-III to Electrician
Grade-II on 2.12.1993 and, therefore, their seniority position, as
maintained in the Grade of Wireman continued in the grade of Electrician
Grade-II. That seniority list has never been challenged by the petitioner at
any point of time and, therefore, the petitioner has been rightly treated as
the junior most in the grade of Electrician Grade-II as well as in the lower
grade of Wireman Grade-III. Therefore, it cannot be said that there is any
violation of the provision of Section 25-G of the Act or the decision of the
Government as per Annexure-7. Similarly, there is no acceptable material
that any N.M.R. employee of category of the Electrician Grade-II junior to
the petitioner has been retained while retrenching the petitioner. Besides,
the Work-Charged establishment and N.M.R. establishment being
separate and distinct, seniority in one establishment cannot be counted
vis-Ã -vis the seniority of employees in the other establishment. It can not,
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therefore, be said that there has been any violation of the principle of ‘last
come first go’ in the matter of retrenchment of the petitioner.
7. Besides the plea that provisions of Section 25-F of the Act
have not been complied with, it is also contended on behalf of the
petitioner that the provisions of Section 25-N of the Act have been violated
in retrenching the petitioner. It is trite that the provisions of both the
Sections 25-F and 25-N of the Act do not apply simultaneously to an
‘industrial establishment’. The parliament has intended that where
Section 25-N applies, the application of Section 25-F should be excluded
(See 1981 LAB. I.C. 942; T. Gattaiah and others v. The
Commissioner of Labour and another). Section 25-N occurs in
Chapter-V-B of the Act, which was added by way of amendment with
effect from 05.03.1976. Section 25-K of the Act makes provision for
applicability of the said Chapter-V-B. It provides that the Chapter shall
apply to an ‘industrial establishment’ (not being an establishment of a
seasonal character or in which work is performed only intermittently) in
which not less than one hundred workmen were employed on an average
per working day for the preceding twelve months. The expression,
‘Industrial Establishment’, as referred to in Section 25-K, has been
defined in Clause (a) of Section 25-L of the Act to mean, (i) a factory as
defined in clause (m) of Section 2 of the Factories Act,1948; (ii) a mine as
defined in the Mines Act,1952, or (iii) a plantation as defined in the
Plantation Labour Act,1951.
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For the applicability of Section 25-N, it must be shown that
the organization where the workmen are employed is an ‘industrial
establishment’ within the meaning of Section 25-L and further that such
‘industrial establishment’ must not be one of a seasonal character or in
which work is performed only intermittently and that not less than one
hundred workmen were employed on an average per working day for the
preceding twelve months, as required under Section 25-K of the Act.
There is no averment in the writ petition, nor any material
has been produced by the petitioner to show that the organization in
which the petitioner was working is an ‘industrial establishment’ within
the meaning of Section 25-L of the Act and that the establishment is not
one of seasonal character and that work therein is not performed
intermittently and further that at least hundred workmen were employed
on an average per working day for the preceding twelve months. In the
absence of any such pleading or material, it cannot be said that the
establishment where the petitioner was employed is one to which Chapter
V-B of the Act would be applicable. In such circumstances, non-
compliance, if any, of the provisions of Section 25-N of the Act does not
vitiate the retrenchment of the petitioner, since on consideration of the
contention of the petitioner we have already held that provisions of
Section 25-F of the Act have been complied with.
8. In the light of the aforesaid discussions, we find no infirmity
in the order of retrenchment of the petitioner and, therefore, the writ
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petition is devoid of any merit and accordingly dismissed. There shall be
no order as to costs.
……………………….
B.K.Nayak,J.
L. Mohapatra, J. I agree.
.............................
L. Mohapatra,J.
Orissa High Court, Cuttack
The October,2010/G.Samal