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2006 DIGILAW 175 (ORI)

Basanta Kumar Sahoo v. State of Orissa

2006-03-06

M.M.DAS

body2006
JUDGMENT M. M. DAS, J. : As all the above three writ petitions arise out of common facts and involve similar questions of law, they were heard together and are being disposed of by this common judgment. 2. W.P.(C) No.11219 of 2004 is an application filed by 115 petitioners claiming themselves to be the employees of M/s. Chhatia Weaving Mill. The said petitioners alleging non-payment of full and final monetary dues towards arrear unpaid salary/wages/bonus/provident fund pensionary contributions/gratuity/leave salary and voluntary retirement compensation etc., have prayed for a direction to the opp.parties to pay/release the entire amount of such monetary dues as set¬tled/admitted and legally payable to the petitioners keeping the cut-off date i.e. 31.7.2001 along with unpaid salary upto 26.4.2002 and to deposit the provident fund and pensionary con¬tribution before the Provident Fund Authority with effect from March, 1993 to 26.4.2002 within a stipulated period and to fur¬ther pass an order that till the full and final payments are made, the opp.parties may be restrained to shift/sell/privatize the Chhatia Weaving Mill. 3. W.P.(C) No.11837 of 2004 has been filed in the nature of a Public Interest Litigation by the Sarpanch of Chhatia Grama Panchayat making similar allegations as made by the employees in W.P.(C) No. 11219 of 2004 and praying, inter alia, to quash the sale of Chhatia Weaving Mill in favour of opp.party No.7, namely, M/s. Shree Balaji Trading Co. and to issue a direction to hand¬over the said Weaving Mill to its employees at a price to be mutually agreed and adjusted from the dues payable to such em¬ployees and to injunct the opp.parties 1 to 6, i.e, the State of Orissa, the Orissa Co-operative Spinning Mills, the Director, Department of International Development and the Regional Provi¬dent Fund Commissioner from handing over the said Weaving Mill to the purchaser-opp.party No.7 i.e. M/s. Shree Balaji Trading Co.. W.P.(C) No.192 of 2005 has been filed by M/s. Shree Balaji Trad¬ing Co. praying, inter alia, to direct the District Magistrate and Collector,Jajpur, Superintendent of Police, Jajpur and I.I.C., Badachana P.S. to extend all possible police help to the functionaries of the petitioner to take safe delivery of posses¬sion of all the materials of the said Chhatia Weaving Mill which was purchased by it from the Orissa Co-operative Spinning Mills Federation Ltd. (in short ‘SPINFED’). 4. 4. In order to appreciate various contentions raised by the petitioners in all the aforesaid writ applications, it is necessary to state the facts of the case in brief. The Chhatia Weaving Mill established in the year, 1959 was being managed by a Society registered under the Societies Regis¬tration Act till 1984. The management of the said mill was taken over in 1984 by the Orissa Textiles Corporation. The SPINFED which is an Advisory Body, providing technical, Financial and personnel guidance to Power Loom Units apart from closely monitoring their activities, took over the management of the Chhatia Weaving Mill from the Orissa Textiles Corporation in the year, 1992, the said Weaving Mill continued its production till 1996 and thereafter became sick and ultimately faced a closure in the year, 2001. On being closed, a voluntary retirement scheme was operated by the State Government and the employees of the said Weaving Mills who are petitioners in W.P.(C) No.11219 of 2004 had made their applications under the said scheme. The Government of Orissa also decided to privatize the Power Loom Units, which required modernization, and dispose of the old obsolete and non-viable units wherever necessary. As it was decided to dispose of the old machinery of the said Chhatia Weaving Mill located at Chhatia which was admittedly set up in the year, 1959, an advertisement for sale of the said machinery being published in the newspaper inviting offers, M/s. Shree Balaji Trading Co, the petitioner in W.P.(C) No.192 of 2005 took part in the tender process and considering such offer, M/s. Shree Balaji Trading Co. being the sole bidder, its offer of Rs. 3,72,750/- was accepted by the Government of Orissa in its Tex¬tile & Handloom Department. The said M/s. Shri Balaji Trading Co. has deposited the entire amount of consideration money offered by it with SPINFED which was the model agency for the sale and it has further paid an amount of Rs.33,900/- towards sales tax dues outstanding against the said Weaving Mill. On making such pay¬ment, the said purchaser was allowed to take delivery of plant and machinery of the said unit by letter dated 6.10.1994 issued by the SPINFED. 5. Mr. S. K. Sarangi, learned counsel appearing for the petitioners in the P.I.L. i.e. W.P.(C) No. 11837 of 2004 submit¬ted that the sale of the said Chhatia Weaving Mills in favour of M/s. Shree Balaji Trading Co. 5. Mr. S. K. Sarangi, learned counsel appearing for the petitioners in the P.I.L. i.e. W.P.(C) No. 11837 of 2004 submit¬ted that the sale of the said Chhatia Weaving Mills in favour of M/s. Shree Balaji Trading Co. is ex facie actuated with mala fide as according to the petitioners, in the said case, the cost of the plant and machinery would not be less than Rs. 6.00 lakhs.He further contended that when the employees had moved the Govern¬ment to allow them to run the unit for a consideration to be adjusted from their dues, the inaction of the Government in not considering the said proposal and selling the unit to the pur¬chaser on the face of it, is arbitrary and illegal and such sale is not in public interest. 6. Mr. Sandeep Rath, learned counsel appearing for the purchaser, M/s. Shree Balaji Trading Co. vehemently argued that the petition, as laid down, cannot be treated as a Public Inter¬est Litigation and is not maintainable. He further contended that the sale having made after publishing the advertisement in widely circulated newspaper to the purchaser and there being no basis for the petitioner to contend that the plant and machinery of the said Chhatia Weaving Mills could have above Rs. 6.00 lakhs, the contention of the petitioner that the sale is against the public interest, is not acceptable. 7. Though in the counter affidavit filed on behalf of the Regional Provident Fund Commissioner, the said Commissioner has supported the case of the petitioner but it has been mentioned in the counter that the Commissioner-cum-Secretary to the Government of Orissa in its Textile and Handloom Department has been re¬quested to take steps for necessary liquidation of the certifi¬cate dues by the office order of the said Regional Provident Fund Commissioner dated 4.1.2005 and notice to show cause has been issued to the Secretary, Chhatia Weaving Mill, Chhatia as to why he should not be committed to civil imprisonment vide notice dated 17.3.2005. In the counter filed on behalf of the SPINFED, it has been stated that 163 numbers of employees applied for VRS and accordingly, the Government sanctioned and disbursed the VRS compensation to the tune of Rs. 45.23 lakhs to the said employ¬ees. Arrear salary and unpaid bonus as claimed are not covered under the VRS Scheme. In the counter filed on behalf of the SPINFED, it has been stated that 163 numbers of employees applied for VRS and accordingly, the Government sanctioned and disbursed the VRS compensation to the tune of Rs. 45.23 lakhs to the said employ¬ees. Arrear salary and unpaid bonus as claimed are not covered under the VRS Scheme. In respect of the statutory dues, the Government has directed the concerned Society by its letter dated 1.10.2004 to deposit the entire sale proceeds on sale of the unit with the Provident Fund Authority towards provident fund dues of the respective employees. 8. In W.P.(C) No. 11219 of 2004, the petitioners, who are some of the employees of Chhatia Weaving Mill, have claimed for payment of their dues. As already stated above, the SPINFED which is opp.party No.3 in the said writ petition, has filed a similar counter affidavit stating, inter alia, that the dues of the peti¬tioners towards ex-gratia, gratuity and un-utilised leave salary have been settled and released to the petitioners and, as such, the petitioners can have no claim in that regard and it has been decided by the Government on principle to deposit the EPF contri¬bution and regularize the provident fund account. An amount of Rs. 3,72,750/- received from the purchaser has been deposited in the Bank in the name of Regional Provident Fund Commissioner towards contribution of the employees provident fund. The SPINFED has further stated in the counter that the sale was conducted by public auction after publishing the sale notice in a widely circulated news paper and no other purchaser came forward except M/s. Shree Balaji Trading Co.. The Further statement made in the said counter is that if the purchaser-M/s. Shree Balaji Trading Co. is not allowed to lf it the obsolete and old machinery of the said Weaving Mill which was set up in 1959, the said purchaser may back out from the sale and pray for refund of the amount and as a consequence, there is less chance of any other buyer coming forward to purchase the said old and obsolete machinery which can only be sold in scrap value. 9. Similar is the averment in the counter affidavit filed by Opp.Party No.2 Commissioner-cum-Secretary, Department of Textile and Handlooms, Government of Orissa. 9. Similar is the averment in the counter affidavit filed by Opp.Party No.2 Commissioner-cum-Secretary, Department of Textile and Handlooms, Government of Orissa. In the counter affidavit filed on behalf of Opp.Party No.4-M/s. Chhatia Weaving Mill, it has been stated that the petitioners (workmen) have been paid their legitimate dues as per the V.R.S. guidelines formulat¬ed by the SPINFED. It has been further stated that the Government in its Public Enterprises Department (in short “P.E. Department) has settled the benefits of the employees at Rs.43,23,515/- which has already been paid. The illegality alleged with regard to the sale of M/s. Chhatia Weaving Mill in favour of M/s. Shree Balaji Trading Company has been denied in the said counter affidavit filed in Court. A rejoinder has been filed by the petitioners, inter alia, stating that the said weaving mill has been sold in low/undervalued price and there has been no effort to re-organise the industry and resume production. As stated earlier, W.P.(C) No.192 of 2005 has been filed by the purchaser- M/s. Shri Balaji Trading Co. with a prayer to direct the District Magistrate-cum-Collector, Jajpur, Superin¬tendent of Police, Jajpur and the Inspector-in-charge of Baracha¬na Police Station to provide police assistance to the function¬aries of the petitioner to take safe delivery of possession of all the materials purchased by it from the SPINFED. 10. Giving our anxious thought to the averments as made out in various affidavits filed by the parties and after considering the submissions made by the learned counsel for the respective parties, we find that W.P.(C) No.11837 of 2004, which has been filed in the nature of Public Interest Litigation, is not main¬tainable for want of specific averments showing that the public at large are interested in the subject matter of the case and that there has been inaction/mala fide action on the part of the Opp.Parties in selling M/s. Chhatia Weaving Mill to the purchaser at a price of Rs. 3,72,750/-. The allegation that the said Mill could have been sold above six lakhs, is not based on any materi¬al and appears to be vague and speculative. Thus, we hold that the said writ petition is not maintainable as Public Interest Litigation. 3,72,750/-. The allegation that the said Mill could have been sold above six lakhs, is not based on any materi¬al and appears to be vague and speculative. Thus, we hold that the said writ petition is not maintainable as Public Interest Litigation. With regard to W.P.(C) No.11219 of 2004 filed by a number of petitioners who were workers/employees of M/s. Chhatia Weaving Mill and opted for voluntary retirement under the V.R. Scheme formulated by the SPINFED, we find that it involves disputed questions of fact which cannot be determined in the writ peti¬tion, but as admitted, the erstwhile workers of the said weaving mill have some dues still outstanding to be paid to them. We, therefore, direct the Opp.Parties to take appropriate expeditious steps to clear up all the dues of the erstwhile workers/employees of M/s. Chhatia Weaving Mill which has been sold in public auc¬tion to M/s. Shree Balaji Trading Co. 11. Since we find no illegality or infirmity in the process of sale of M/s. Chhatia Weaving Mill by the SPINFED in favour of M/s. Shree Balaji Trading Co. and we have taken note of the fact that due to law and order problem, the officials/representative of the said purchaser-M/s. Shree Balaji Trading Co. have not been able to remove the articles such as,plant and machinery etc. sold in their favour from the Unit, we direct the Collector-cum-District Magistrate, Jajpur, the Superintendent of Police, Jajpur and the Inspector-in-charge of Barachana Police station to take all necessary steps for giving protection to the purchaser-M/s. Shree Balaji Trading Co. thereby enabling it to remove the assets purchased by it from the premises of M/s. Chhatia Weaving Mill and we further direct the above officials to take all precaution¬ary measures so as to see that no law and order situation arises in the locality while the petitioner-Shree Balaji Trading Co. removes the assets purchased by it from the SPINFED. 12. With the above directions and observations, W.P.(C) No.11837 of 2004 is dismissed as not maintainable, W.P.(C) No.11219 of 2004 is disposed of and W.P.(C) No.192 of 2005 is allowed, but in the circumstances, without costs. S. B. ROY, C.J. I agree. One petition dismissed, one petition disposed of and one petition allowed.