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2007 DIGILAW 569 (ORI)

Baishnab Charan Moharana v. O. S. R. T. C.

2007-07-25

I.MAHANTY

body2007
JUDGMENT I. MAHANTY, J. These Letters Patent Appeals have been filed challenging a common judgment dated 3.11.2000 passed by the learned Single Judge dismissing a batch of writ applications wherein the petitioners had challenged the order of their re¬trenchment dated 22.4.1999. 2. The appellants had been duly selected and were appoint¬ed as Stations Masters/Traffic Inspectors under the opposite party-Corporation and worked for several years as such in their respective positions. The Board of Directors of the Corporation vide their resolution dated 7.12.1998 in its 118th meeting decided to retrench the surplus employees in different categories following the principle of “last come first go”. The Board of Directors decided that 1421 employees (workmen) belonging to 34 categories to be retrenched alongwith 14 officers, i.e., four DTMs, four Senior Station Masters, four Station Masters and two works Engineers. 3. Mr. Pattnaik, the learned Senior Advocate appearing for appellants stated that while the appellants accept the principle of “first come first go” as the basis for effecting retrenchment, yet, he submitted that while the present appellants have been served with orders of retrenchment, their juniors remain working as Station Masters and Junior Station Masters and were retained, by taking into account their period of services rendered by them in the Corporation, though in different cadres. Mr. Pattnaik further submitted that the Board of Directors in its 118th meeting held on 7.12.1998 adopted a common resolution to retrench surplus employees in different categories including the officers (appellants herein) by following the principle “last come first go” and while retrenching the workmen-employees, it was decided to follow the provisions of the Industrial Disputes Act and in particular, the provisions embodied in Section 25(G) of the Act and the same/similar principle ought to have been extended to the officers (appellants herein). It is also submitted that whereas the retrenchment of employees-workmen was made on the basis of seniority in a particular category/cadre in which they were working at the time of such decision, but when it was applied to the officers (appellant), this principle was not followed and seniority was determined on the basis of their initial entry into the service of the Corporation. While advancing the aforesaid contention, it was submitted that this action on the part of the management is wholly discriminatory, unlawful and contrary to the Board’s resolution. 4. Mr. While advancing the aforesaid contention, it was submitted that this action on the part of the management is wholly discriminatory, unlawful and contrary to the Board’s resolution. 4. Mr. Mohanty, learned Senior Advocate appearing for the Corporation supported the Judgment passed by the learned Single Judge and submitted that the present appellants cannot be equated with the workmen of the Corporation inasmuch as, whereas the employees-workmen were covered under the provision of I.D.Act, the present appellants being officers were a distinct category by themselves and did not fall within the scope and ambit of I.D.Act. He further submitted that on perusal of the Board’s resolution and in particular, the resolution relating to re¬trenchment of surplus employees, it can be seen that the Board while dealing with the retrenchment of the employees-workmen specifically provided that the workmen-employees would be re¬trenched on the basis of “last come first go” basis in the cate¬gory in which any of them may belong cadrewise whereas insofar as appellants-officers are concerned, the Board specifically direct¬ed retrenchment on “last come first go” basis. In this respect, he submitted that there is no discrimination as alleged by the appellants and the management has complied with the Board’s direction and/or resolution both in letter and spirit. He submit¬ted that whereas the workmen were to be retrenched on the cadre experience, the self-same principle does not exist so far as officers are concerned. The omission in the Board Resolution relating to the ‘cadre’ in the matter of retrenchment of officers was conscious and deliberate decision by the Board. He submitted that the object behind this decision was that the workmen who had served the Corporation for longer period, even though in the different cadre have very little opportunity of securing service post retrenchment and, therefore, have a vested right over those who may have joined the service of the Corporation at a later date though in a higher cadre. In other words, he submitted that the management of the Corporation has acted fairly in the matter of retrenchment of the appellants-officers and there has been no infraction of any law nor they did any discrimination against the appellants. 5. In other words, he submitted that the management of the Corporation has acted fairly in the matter of retrenchment of the appellants-officers and there has been no infraction of any law nor they did any discrimination against the appellants. 5. The Hon’ble Single Judge while dealing with the afore¬said contention raised by the appellants went into a fair amount of detail in trying to ascertain as to whether the appellants could be brought within the purview of “workmen” as defined in the I.D.Act and on consideration of the provisions of law and definition of the term ‘workman’ came to hold that the Station Masters work was supervisory in nature and they were receiving Rs. 3169/- per month at the time of termination, which was more than the statutory amount fixed. Therefore, the appellants herein could not be brought within the definition of the “workman” as defined in the I.D.Act. Having reached the aforesaid conclusion, the Hon’ble Single Judge came to hold that the appellants were not workmen as defined in the I.D.Act, and hence the compliance of the provisions of the I.D.Act and in particular the provision of Section 25-N of the Act, does not arise. From the judgment impugned in these appeals, it is seen that the learned Single Judge placed reliance on a decision of the Supreme Court in the case of Workmen of Sudder Workshop of Jorehaut Tea Co. Ltd. v. Management of Jorehaut Tea Co. Ltd. AIR 1980 SC 1454 wherein the principle of “last come first go” has been determined to mean that the employer shall retrench the workman who came last, first. The apex Court further held that though the aforesaid principle is not an inflexible rule and extraordinary situation may justify variations, but some valid and justifiable grounds must be affirmatively proved by the management to takes its case out of the principle of “last come first go”. 6. The apex Court further held that though the aforesaid principle is not an inflexible rule and extraordinary situation may justify variations, but some valid and justifiable grounds must be affirmatively proved by the management to takes its case out of the principle of “last come first go”. 6. The learned Single Judge while dealing with the question as to whether “last come first go principle” should be determined cadrewise or on the basis of total length of service in the Corporation came to hold that, if the submission of the learned counsel for the petitioners was accepted and that principle should be applied cadrewise, then, the employees who have put in many more years of service to the Corporation and have worked in different capacities have to be thrown out of service and persons who have put in less years of service shall have to be retained and, therefore, the learned Single Judge came to hold that he did not find any unreasonableness or arbitrari¬ness in the decision of the Corporation in following the princi¬ple of “last come first go” by taking into account the total length of service put in by an officer in the Corporation. 7. Mr. Patnaik, learned counsel for the appellants also placed reliance on a judgment of a Supreme Court in the case of S.M.Pandit and others vrs. The State of Gujarat and others, AIR 1972 SC 252 and specifically in paragraph-5 of the said judgment in which the Hon’ble Supreme Court came to hold that both the directly recruited Mamlatdars as well as the promotees Mamlatdars have same designation, same pay scale and same functions and, therefore, the posts are interchangeable. Both the posts form one class and the Government cannot discriminate between them in the matters of their promotion to the post of Deputy Collectors. 8. On a reading of the aforesaid judgment, it is clear that the judgment of the apex Court held that there can be no discrimination between the direct recruits and the promotees in the matter of their further promotion. The said case was not a case where retrenchment had been effected by applying the principle of “last come first go” taking into consideration the entire period of service of an employee in the matter of deter¬mining retrenchment cannot be held in law to be discriminatory. The said case was not a case where retrenchment had been effected by applying the principle of “last come first go” taking into consideration the entire period of service of an employee in the matter of deter¬mining retrenchment cannot be held in law to be discriminatory. Therefore, the aforesaid judgment relied upon by the appellant is of no help to the appellants in the facts of the present case. 9. The contention of the appellants that they have been discriminated against and that the principle of “last come first go” has been differently applied in the case of appellants-officers and employee-workmen, is without any lawful basis. It is an admitted position even by the appellants that they belong to the category of officers and, therefore, obviously cannot be equated with the workmen. In view of this, since the appellants constitute a separate category by themselves, their contention of discriminatory treatment vis-a-vis the workman cannot be accept¬ed. Apart from that, we have perused the minutes of 118th meeting of the Board and find therefrom that in fact the Board’s resolution was to retrench the officers on “last come first go” basis and when it came to the case of the workmen, the same principle was to be applied “cadrewise” in the cadre to which they belong. Therefore, we also do not find any merit in the contention advanced by the appellants that the Board’s resolution has not been complied with by the management as we find that the Board itself had taken a decision to retrench a surplus workmen and officers distinctly/differently while applying the principle of “last come first go” in the matter of their retrenchment. 10. We are in respectful agreement with the views expressed by the learned Single Judge in the impugned judgment, inasmuch as, if the cadre experience alone was to be taken into considera¬tion at the time of retrenchment, then the same would have resulted in officers having far longer period of service under the Corporation being retrenched and the officers having less period of service in Corporation be retained. Therefore, we find no merit in the present batch of appeals and the same are dis¬missed, but in the circumstances without any cost. A. K. GANGULY, C.J. I agree. Appeals dismissed.