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2000 DIGILAW 254 (ORI)

BIPINIBIHARI PRADHAN v. STATE OF ORISSA

2000-05-07

P.K.MISRA, P.K.PATRA

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JUDGMENT : P.K. Misra, J. - All these six writ applications filed by different persons against the State of Orissa as well as the Orissa Forest Development Corporation Ltd. (in short, the "Corporation"), raise similar questions of fact and law and have been heard together and shall be governed by this common judgment. Initially prayer was made in the writ applications for regularisation of services of the various Petitioners and for payment of equal pay to the Petitioners as is applicable to others doing similar work under the Corporation. On receipt of counter affidavit indicating that the Petitioners had been retrenched from service, the writ applications were amended and the various Petitioners were permitted to raise contention challenging the orders of retrenchment. Since question of regularisation of service or payment of equal salary would arise only if the orders of retrenchment are found to be invalid, it is necessary to consider the validity of the orders of retrenchment before considering other questions raised in the writ applications. 2. It has been contended that the Corporation is an "industrial establishment" as defined in Section 25-L of the Industrial Disputes Act and the various Petitioners have been retrenched without complying with Section 25-N of the said Act. In the alternative, it is submitted that, at any rate1 provisions contained in Section 25-G of the Industrial Disputes Act have been violated as compensation for retrenchment had not been made. It is also contended that persons junior to the Petitioners have been retained while the Petitioners have been illegally retrenched. The Corporation in its counter has denied the factual allegations. It has been submitted that since disputed questions of fact are involved, the writ applications are not maintainable and the Petitioners should have approached the appropriate forum for remedy available under the Industrial Disputes Act. 3. In paragraph-30 of the writ application in O.J.C. No. 9813/93, it has been contended that the Forest Corporation has been working with the help of employees by establishing different factories, Saw-mills for production of timber goods and allied materials. i. e, sawn, sizes, plywoods for business purpose and, therefore, the Corporation is an "industrial establishment" as defined in Section 25-L of the Industrial Disputes Act. i. e, sawn, sizes, plywoods for business purpose and, therefore, the Corporation is an "industrial establishment" as defined in Section 25-L of the Industrial Disputes Act. The Corporation while denying such allegation has averred that it is not a fact that all the employees who are working in the industrial establishment are treated as one unit and denied that there are 100 or more workmen. It has also been submitted that the work is seasonal in nature. It is evident that there is dispute as to whether the Corporation is an "industrial establishment" or not. Factual disputes having been raised, it would not be appropriate to deal with the matter in exercise of jurisdiction under Articles 226 and 227 of the Constitution. 4 It has been averred in paragraph-29 of the writ application in O.J.C. No. 9813/93 that the order of termination has been passed purposefully during the pendency of the claim of the Petitioners for regularization. Subsequently, by way of additional affidavit, it has been stated that without service of copy of the order and without paying retrenchment compensation, the order having been passed, the same must be treated as null and void. In the counter affidavit of the Corporation, it had been indicated that the concerned workmen refused to receive the notice of termination and the benefits and as such the same was sent by registered post subsequently. The Corporation annexed the letter dated 1-1-1994 issued by the Sub-Divisional Manager to the Petitioners. However, it is contended by the Petitioners that such document has been subsequently manufactured. In other words, the question as to whether the termination order was sought to be served on the workmen and compensation was offered is being disputed. For resolving such disputed question of fact, it may be necessary to adduce oral evidence and as such, the writ jurisdiction may not be the appropriate forum. 5. The learned Counsel for the Petitioners has submitted that many junior persons have been retained while seniors have been retrenched. The Corporation in its counter has denied such allegation. The counsel for the Petitioners has submitted that in the absence of any List showing the seniority, it is improper on the part of the Corporation to retrench the employees. However, the Petitioners have not shown as to which junior had been retained while retrenching senior persons. The Corporation in its counter has denied such allegation. The counsel for the Petitioners has submitted that in the absence of any List showing the seniority, it is improper on the part of the Corporation to retrench the employees. However, the Petitioners have not shown as to which junior had been retained while retrenching senior persons. Since dispute is raised relating to this aspect, it would not be appropriate to deal with the matter in the writ application. 6. For the aforesaid reasons, it would not be appropriate to deal with the specific questions raised by the parties and it would be more appropriate for the Petitioners to seek remedy before the forum available under the Industrial Disputes Act. It is, of course, true that the writ applications have remained pending from 1993 and as such, there may be further harassment so far as the Petitioners are concerned. However, keeping in view the fact that the factual assertions are being disputed, we think it appropriate to direct the State Government to consider within three months the question of making a reference of the disputes to the Industrial Tribunal. If the matter is referred to the Industrial Tribunal, it is expected that such disputes should be resolved by the Tribunal in accordance with law as expeditiously as possible. 7. Subject to the aforesaid observations, all the writ applications are disposed of. There will be no order as to costs. P.K. Patra, J. 8. I agree. Writ applications disposed of.