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2017 DIGILAW 1222 (ORI)

Kapilendra Rout v. State of Orissa

2017-10-30

SUJIT NARAYAN PRASAD

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JUDGMENT : S. N. Prasad, J. This writ petition is under Article 226 and 227 of the Constitution of India, wherein the following prayers have been made:- (a) To pay differential amount on the basis of equal pay for equal work w.e.f. April, 1990; (b) To regularize the service of the petitioner w.e.f. the date when he completed five years of service; (c) To pay all consequential benefits from the date of regularization. 2. Brief fact as per the pleading made by the petitioner in the writ petition is that he was engaged vide order dated 26.03.1990 as NMR Typist-cum-Stenographer under the opposite party no.4, was doing his duty with utmost satisfaction of the authority and without any complaint from any quarter. Grievance of the petitioner is that while he was continuing, other similarly situated employees have approached this Court for regular absorption under the Orissa Lift Irrigation Corporation and this Court after hearing the parties has directed the Corporation to prepare a Scheme forthwith, but the Corporation being aggrieved with the said order, has approached the Hon’ble Supreme Court in Civil Appeal Nos.3615-3622/1991 and 1701-1705/1992, the Hon’ble Supreme Court, without interfering with the relief granted by this Court, has modified the order of this Court to the extent that the Corporation should provide regularization under Scheme to all those workmen who have put in five years of service with the Corporation instead of one year as directed by the High Court. According to the petitioner, in view of the order passed by the Hon’ble Supreme Court, his service ought to have been regularized in service but not regularized, hence the petitioner had approached this Court by filing the writ petition being OJC No.2066 of 1996 with a prayer to take necessary steps for regularization of his service. This Court while disposing of the writ petition vide order dated 3.7.1996, has directed that the judgment passed in OJC No.2353 of 1996 is applicable in this case, meaning thereby the case of the petitioner ought to have been considered for regularization but not regularized, hence the instant writ petition has been filed. 3. This Court while disposing of the writ petition vide order dated 3.7.1996, has directed that the judgment passed in OJC No.2353 of 1996 is applicable in this case, meaning thereby the case of the petitioner ought to have been considered for regularization but not regularized, hence the instant writ petition has been filed. 3. The Corporation has entered its appearance and filed counter affidavit inter alia therein it has been stated that the State Government has taken decision to dispense with 7341 number of employees of the OLIC, in the process of restructuring of the Corporation, “last come first go” have been made the guiding principle for its dispensation of service in order to facilitate the process of right-sizing the Corporation, the State Government has also approved VRS/VSS package, the above decision of the Government has been communicated to the Corporation vide letter No.38298 dated 26.10.2002, in pursuance of the above decision of the Government the meeting of the Board of Directors was held on 25.11.2002 and the Board of Directors has resolved to implement the said decision of the Government and fixed 15.01.2003 as the last date of submission of the application for VRS/VSS, the said decision of the Board was notified to all concerned, intending employees were directed to make application within the stipulated period failing which they were warned to be removed from service in accordance with law as per the decision of the Government/Cabinet. In pursuance of the aforesaid notification nearly 5493 employees took voluntary retirement w.e.f. 30.04.2003 and 31.05.2003 respectively. Some of the employees could not apply for VRS/VSS within the stipulated time, the Government in their letter No.6425 dated 17.02.2004 gave another chance to the left out employees to apply for VRS. The said decision of the Government was also notified by the Corporation vide order No.8580 dated 23.02.2004 and in pursuance of the said notification also nearly 950 employees had applied and took VRS. The said decision of the Government was also notified by the Corporation vide order No.8580 dated 23.02.2004 and in pursuance of the said notification also nearly 950 employees had applied and took VRS. The State Government has again given another chance to apply for separation under the Scheme vide letter No.10.10.2005 and in pursuance of the same only 12 employees had opted for VRS, but the rest of the employees including the petitioner did not avail the said VRS/VSS Scheme and took the risk of retrenchment, hence the Corporation, as per the decision of the Government, was bound to take recourse of law to retrench these employees, pursuance to the said direction, the Corporation has submitted Form S-1 before the Labour Commissioner, Orissa, Bhubaneswar under Section 25/N of the Industrial Disputes Act, 1947, the Labour Commissioner after receipt of the said order and going through all the documents and also after hearing the parties in detail, granted permission for retrenchment of workmen including the petitioner w.e.f. 30.06.2007 subject to vacation of interim orders passed by this Court. The decision of the Board to retrench the zero/surplus employees and the notification inviting application for VRS, some of the employees had approached this Court by filing series of writ petitions, wherein the order of the Labour Commissioner has also been assailed, the said writ petition was heard by this Court which was disposed of vide order dated 3.8.2007, wherein this Court while confirming the policy decision of the Government for restructuring of the Corporation, confirmed the Board’s decision inviting applications for VRS and also the decision of the Labour Commissioner giving permission for retrenchment of zero/surplus category of employees, hence the writ petition was dismissed. 4. It has been stated that the benefit of retrenchment has also been given to the employees, hence the petitioner has got no case for his regularization. 4. It has been stated that the benefit of retrenchment has also been given to the employees, hence the petitioner has got no case for his regularization. It has been submitted that the contention of the petitioner putting reliance upon the order passed by the Hon’ble Supreme Court in Civil Appeal Nos.3615-3622/1991 and 1701-1705/1992 is not in any way aid to the relief of the petitioner for the reason that in the chain circumstances, there is no question of regularizing the petitioner in service even after completion of 5 years of service within the Corporation, in view of the fact that the principle of zero/surplus employees has been decided to be followed in order to save the Corporation from the financial crunch. 5. The order of the Hon’ble Supreme Court further will not get any aid to the petitioner because the Scheme of the Government has been adopted by the Corporation in the month of October, 2002 and before the Hon’ble Supreme Court the said decision was not there since it was not in existence during the time when the Civil Appeal was disposed of by the Hon’ble Supreme Court. Heard the learned counsel for the parties and perused the documents available on record. 6. It is evident from appreciation of rival submission of the parties that the petitioner is claiming his regularization in service since he is working in the NMR capacity as Typist w.e.f. 26.03.1990. It is the admitted position that the petitioner was working as NMR Typist under the OLIC. It is also not in dispute that the State Cabinet of the Government of Odisha has decided to dispense with 7341 employees from OLIC in the process of restructuring of the Corporation. The OLIC has been directed to follow the decision taken by the State Cabinet by adopting the principle of “last come first go”. It is evident from the communication dated 26.10.2002 that against the regular employees, the decision was taken to dispense with service of 606 out of this 83 while under the category of NMR/DLR all the employees working under that capacity, has been decided to be dispensed with and their number was 1274. The petitioner is one of them, since he is working as NMR capacity as Typist. The petitioner is one of them, since he is working as NMR capacity as Typist. It is also not in dispute that the State Cabinet has taken decision to provide benefit of separation from service under VRS/VSS and in pursuance of the said Scheme, most of the regular employees has sought for separation from service and they have been separated from service on different dates and by virtue of submission of application, by the extension of time given by the authorities of the Corporation. It is further evident that the petitioner amongst the NMR employees have not opted for separation from service and as such the decision was taken by the authorities to seek permission from the Labour Commissioner under the provision of Section 25/n of the Industrial Disputes Act, 1947 for their retrenchment and the Labour Commissioner has accorded sanction to retrench them by following the process of law. It is also admitted position that the decision of the State Cabinet in taking decision for restructuring of the Corporation, the decision of the retrenchment from service has been questioned by the aggrieved employees before this Court vide W.P.(C) No.4241 of 2004 along with other analogous cases, but a Division Bench of this Court has refused to interfere with the decision of the Government. In the light of this factual position, the petitioner has filed this writ petition for regularizing his service with the aid of an order passed by this Court in the case of Smt. Urmila Senapati vrs. State of Orissa reported in (1993) I OLR 348 which has been confirmed by the Hon’ble Supreme Court with some modification by making modification to the extent to regularize the services of the NMR if completed 5 years of regular service. 7. The contention raised by the petitioner since he has already completed 5 years of continuous service, as such he ought to have taken in regular establishment but instead of doing so, decision has been taken by the authority-Corporation to retrench them from service which is absolutely illegal and arbitrary action of the authority. 8. The fact is not in dispute that the matter for regularization fell for consideration before this Court in the case of Smt. Urmila Senapati vrs. 8. The fact is not in dispute that the matter for regularization fell for consideration before this Court in the case of Smt. Urmila Senapati vrs. State of Orissa (supra) and by making modification to some extent for regularizing their services by enhancing the period of continuous service from 1 year to 5 years, the order of this Court has been affirmed but the fact here is that whether the petitioner can be given any aid of the order passed by the Hon’ble Supreme Court which was disposed of way back on 13th October, 1992, in the light of the subsequent development i.e. the decision of the State Cabinet for restructuring of the Corporation and retrenchment of the NMR/DLR employees which has been confirmed by the order passed by the Division Bench of this Court which has attained its finality. The answer of this Court in this pretext would be that the order of the Hon’ble Supreme Court passed way back on 13.10.1992 is of no help to the petitioner since the situation in the year 1992 has remarkably been changed and the decision has been taken to dispense with the service of all the NMR/DLR employees working under the Corporation by giving benefit of separation from service and the employees who have not opted to take benefit of the Scheme has been sought to be retrenched from service after following due process of law and that has been concurred by the competent authority i.e. the Labour Commissioner under the provision of the I.D. Act, 1947. 9. 9. It is evident from the pleading made in the counter affidavit that the Corporation has taken decision to retrench the service of the petitioner but that decision has not been assailed by him rather the prayer has been made to regularize his service since he has completed 5 years of service, hence in view of the decision taken for his retrenchment, the relief sought for by the petitioner to regularize him is not fit to be accepted and accordingly the same is not accepted, reason being that when there is a conscious decision of the State Government and the same has been followed by the Corporation by way of restructure to maintain zero/surplus category of NMR/DLR, it would not be proper for this Court to direct to regularize the service of the petitioner, otherwise it will amount to encroaching upon the policy decision taken by the Government which has been confirmed by the Division Bench of this Court. 10. Moreover, the petitioner is relying upon the judgment rendered by the Hon’ble Supreme Court in the case of Urmila Senapati vrs. State of Orissa (supra) but that judgment will not help the petitioner in view of the ratio laid down by the Hon’ble Supreme Court in the case of the Secretary, State of Karnataka and others vrs. Umadevi and others reported in (2006) 4 SCC 1 , wherein at paragraph-54, it has been clarified by the constitution Bench of the Hon’ble Supreme court that all the judgment rendered prior to pronouncement of the judgment in the case of Umadevi will be denuded, for better appreciation the same is being quoted herein below:- “54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents.” It is further evident from the said judgment that the matter which has already been closed will not be reopened but here in the instant case, the petitioner want to take aid of the judgment of Urmila Senpati vrs. State of Orissa but that judgment will of no help to the petitioner in any way in view of the proposition laid down by the constitution Bench of the Hon’ble Supreme Court in the case of Umadevi as quoted above and further in view of the fact that the case of the petitioner will not be said to be closed rather his case has not been taken for his regularization in service rather the decision has been taken to retrench him from service, when he has refused to exercise his option for separation of under VRS/VSS. 11. Considering the aforesaid facts and factual aspect of the matter in detail, in my opinion, the petitioner fails to make out a case. In view thereof, the writ petition lacks merit. Accordingly, the same is dismissed.