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2017 DIGILAW 848 (ORI)

Prasanta Kumar Lenkah v. OSIC Ltd.

2017-08-08

B.R.SARANGI

body2017
JUDGMENT : DR. B.R. SARANGI, J. 1. Orissa Small Industries Corporation Limited (for short “OSIC Ltd.”) is a Government of Odisha Corporation. Petitioner was initially appointed as a Junior Clerk on 20.06.1987 in Orissa Pump and Engineering Company Limited (for short “OPEC Ltd.”) which is a wholly owned subsidiary of OSIC Ltd. Initial appointment of the petitioner was subject to probation for a period of one year and after its completion he was regularized. While so continuing, he was relieved from his duties and asked to report for duty at OSIC Ltd., Cuttack w.e.f. 05.09.1994 along with two other employees of OPEC Ltd. On 21.10.1998, OSIC Ltd. executed an agreement with the private entrepreneurs and transferred OPEC Ltd. to them. After such transfer, the new management of OPEC Ltd. published an advertisement in Odia daily “the Samaj” dated 21.11.1998 calling upon all its employees to join their duties. Again on 10.01.1999, another notice was published in the same newspaper calling upon the employees of OPEC Ltd. to join their duties by 12.01.1999, failing which no claim of the old employees would be entertained. The petitioner, having not been relieved by OSIC Ltd., could not join in OPEC Ltd. But almost three years after OPEC Ltd. was sold to private entrepreneurs, OSIC Ltd. on 16.05.2001 passed an order reverting back the petitioner along with others to OPEC Ltd. which was owned, managed and controlled by private entrepreneurs then. 2. Challenging his reversion to OPEC Ltd., petitioner filed OJC No.6878 of 2001. This Court, by order dated 14.11.2007, set aside the order dated 16.05.2001 reverting the petitioner to OPEC Ltd. and directed OSIC Ltd. to reinstate him in service holding that the petitioner was the employee of OSIC Ltd., and further directed to pay back wages at the rate of 40% of the total entitlement of the petitioner in six equal bi-monthly installments. As opposite parties did not carry out the order dated 14.11.2007 passed by this Court in OJC No.6878 of 2001, petitioner filed CONTC No.146 of 2008. Just then, OSIC Ltd. preferred SLP No.2219 of 2008 challenging order dated 14.11.2007 passed by this Court in OJC No.6878 of 2001. The apex Court, though initially stayed further proceeding in CONTC No.146 of 2008, by order dated 17.04.2009 declined to grant leave to OSIC Ltd. and consequentially dismissed the SLP. 3. Just then, OSIC Ltd. preferred SLP No.2219 of 2008 challenging order dated 14.11.2007 passed by this Court in OJC No.6878 of 2001. The apex Court, though initially stayed further proceeding in CONTC No.146 of 2008, by order dated 17.04.2009 declined to grant leave to OSIC Ltd. and consequentially dismissed the SLP. 3. Soon after dismissal of the SLP, OSIC Ltd. reinstated the petitioner in service at Cuttack office, but transferred him to Kesinga in the district of Kalahandi, where he joined immediately. In July, 2009, he was paid back wages, as if he was an employee of OPEC Ltd. Meaning thereby, the back wages were determined at the scale of pay of Rs.1400-2300/- which was paid by OPEC Ltd. to the petitioner. Whereas at the relevant point of time, the employees of OSIC Ltd were getting the scale of pay of Rs.4750-7500/.As he was not paid the scale of pay admissible to the post held by him in OSIC Ltd., he made representation to the authority concerned, but the same was not adhered to. Aggrieved by such action of the authority, the petitioner has approached this Court by means of this application. 4. Mr. A.K. Mohapatra, learned counsel for the petitioner stated that the petitioner, being absorbed in OSIC Ltd. pursuant to order dated 14.11.2007 passed by this Court in OJC No.6878 of 2001, was entitled to get back wages at the scale of pay of Rs.4750-125-7500/-, which the employees of OSIC Ltd. were getting at the relevant point of time. Determination and payment of back wages at the scale of pay of Rs.1400-2300/-, which was then paid to the employees of OPEC Ltd., being not the legitimate scale of pay admissible to the post held by the petitioner, cannot be construed to be the full compliance of order dated 14.11.2007 passed by this Court in OJC No.6878 of 2001. Even though OSIC Ltd. regularized the services of the petitioner and absorbed him in OSIC Ltd. cadre w.e.f. 08.05.2009 vide office order dated 07.03.2012, after absorption in service, he was sanctioned a pre-revised scale of pay of Rs.4750-125-7500/-, such an approach has been made in order to circumvent the order dated 14.11.2007 of this Court passed in OJC No.6878 of 2001. Although the petitioner filed a representation on 24.07.2012 to the Managing Director, OSIC Ltd. raising objection with regard to non-payment of back wages in terms of the direction of this Court and non-payment of differential arrear dues/salary, as per revised scale of pay admissible to OSIC Ltd. employees, from 01.01.1996 to 16.05.2001 and other service benefits attached to OSIC Ltd. employees during that period, the same remained unheeded. It is contended that the OSIC Ltd. has, not only acted arbitrarily and unreasonably, but also treated the petitioner in a discriminatory manner with an intention to cause him harassment in view of the fact that similarly situated other employees, namely, Sukadev Sahoo, Ex-Junior Manager of OTEW Ltd., whose scale of pay was Rs.1640-60-2600-EB-75-2900/- was fixed at Rs,5500-175-9000/-; and Nrushingha Prasad Mohapatra, Ex-P.A. of KSRC Ltd., who was in the scale of pay of Rs.1800-60-2400-EB-75-3000/- was fixed at Rs.6100/- w.e.f. 01.01.1996. Even though such grievance was agitated by the petitioner by way of representation, the same was not considered. It is further contended that the petitioner, even though had already joined in OSIC Ltd., was extended the scale of pay of OPEC Ltd. from 01.01.1996 to 18.05.2001. In other words, when the petitioner joined in OSIC Ltd., even though its employees were being paid salary as per recommendations of the Fourth Pay Commission and w.e.f. 01.01.1996 their scale of pay was revised pursuant to the recommendations of the Fifth Pay Commission, the petitioner was discriminated. Therefore, the petitioner claims that the said benefit should be extended to him forthwith. 5. Per contra, Mr. S.K. Nayak, learned Senior Counsel appearing for the opposite party-Corporation contended that the judgment dated 14.11.2007 passed by this Court in OJC No.6878 of 2001, which has been confirmed by the apex Court in SLP No. 2219 of 2008, has already been complied with in letter and spirit by reinstating the petitioner in service and extending the benefit of back wages at the rate of 40% of the total entitlement of the petitioner in six equal bi-monthly installments at the scale of pay which he was receiving under the OPEC Ltd. Since the amount was paid in the Court by way of cheque amounting Rs. 5,41,831/- towards the full and final settlement of the arrear dues of the petitioner, the same cannot be re-opened in the present writ petition. 5,41,831/- towards the full and final settlement of the arrear dues of the petitioner, the same cannot be re-opened in the present writ petition. It is further contended that from the date of entry into OSIC Ltd, i.e., 05.09.1994 till the date of reversion, i.e., 16.05.2001, the petitioner has received emolument as was receiving from OPEC Ltd., and from 16.05.2001 till the date of joining, i.e., 24.12.2007 he did not perform his duty but received 40% of the wages as per direction of this Court. After delivery of the judgment on 14.11.2007, the petitioner joined on 24.12.2007. From the date of joining he has received the revised scale of pay as per reports of the Fifth and Sixth Pay Commissions. Therefore, the contention raised by learned counsel for the petitioner, that the action of the authority in regard to grant of pay to the petitioner was discriminatory, is absolutely misconceived one and cannot sustain in the eye of law and, as such, the writ petition is liable to be dismissed. 6. This Court heard learned counsel for the parties and perused the records. Pleadings have been exchanged between the parties, with the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 7. From the pleadings of the parties and the submissions made by the learned counsel appearing for them, it is emerged that indisputably the petitioner was initially appointed as Junior Assistant in OPEC Ltd., which was wholly a subsidiary company of the OSIC Ltd. The functioning and operating of OPEC Ltd were under the direct supervision and management of the OSIC Ltd. The service conditions of the employees of OPEC Ltd. had not been framed separately. Therefore, the employees of the OPEC Ltd. were being guided and regulated by the service conditions of the employees prepared by the OSIC Ltd. The scale of pay admissible and payable to the petitioner as a Junior Assistant at the time of his entry into the service was similar to the pay scale attached to the post of Jr. Assistant in OSIC Ltd. But, when the petitioner was transferred to OSIC Ltd. on 05.09.1994, he was allowed to receive the scale of pay attached to his post. Assistant in OSIC Ltd. But, when the petitioner was transferred to OSIC Ltd. on 05.09.1994, he was allowed to receive the scale of pay attached to his post. As such, he was not given pay hike as per the recommendations made by the Pay Commissions, whereas the said benefits were being granted to the other similarly situated employees of the OSIC Ltd. It is well settled principle of law laid down by the apex Court that the employees working in one organization and discharging the similar nature of duty cannot be differentiated and treated differently. Applying the said principle to the present context, though the petitioner was continuing in OSIC Ltd., was never given the benefits as per the recommendations made by the Fifty Pay Commission, though the same was accepted and implemented in case of other employees of OSIC Ltd. This fact has been clearly admitted in paragraph-7 of the counter affidavit filed by the opposite parties. 8. A contention has been raised on behalf of the opposite parties that they have implemented in letter and spirit the judgment dated 14.11.2007 passed by this Court in OJC No. 6878 of 2001. A close scrutiny of the factual matrix of the case vis-à-vis the order passed by this Court would clearly indicate that the petitioner was reinstated in service with back wages determining his scale of pay, as was paid to him by OPEC Ltd. at the relevant point of time. To put it otherwise, the opposite party-Corporation has not fixed the correct pay scale by carrying out the recommendations made by the Pay Commissions and has calculated the back wages so as to implement the judgment of this Court. To put it otherwise, the opposite party-Corporation has not fixed the correct pay scale by carrying out the recommendations made by the Pay Commissions and has calculated the back wages so as to implement the judgment of this Court. As a matter of fact, in its 170th Board Meeting held on 27.12.2011, the OSIC Ltd. decided to regularize the services of the employees of three of its subsidiary companies from the date of their joining in OSIC Ltd. If that be so, the petitioner, having joined in OSIC Ltd. on transfer from OPEC Ltd on 05.09.1994, is entitled to get the scale of pay admissible to the employees of the OSIC Ltd. As such, the documents available on records would clearly reveal that two other employees; who were working under the subsidiary companies of OSIC Ltd, namely, OTEW Ltd. and KSRC Ltd., and were brought to the OSIC Ltd. and regularized along with the petitioner; were paid revised scale of pay on the basis of the recommendations made by the Fifth Pay Commission w.e.f. 01.01.1996 whereas the petitioner was not extended with the revised scale of pay on the basis of the recommendations made by the Fifth Pay Commission at par with his counterpart employees of the OSIC Ltd. 9. A contention was raised on behalf of the opposite parties that, as would be evident from order dated 07.05.2012 passed in CONTC No. 146 of 2008, the petitioner has already received an amount of Rs.5,41,831/- towards full and final settlement of the arrear dues in compliance of the judgment dated 14.11.2007 passed by this Court in OJC No.6878 of 2001, as a result of which the proceeding was dropped. But a perusal of the said order does not indicate that this Court had arrived at a conclusion that the aforesaid amount was paid to the petitioner towards full and final settlement of his arrear dues. The entire action has been taken just to wriggle out from the rigours of the contempt proceeding, but that cannot ipso facto disentitle the petitioner from getting his legitimate dues. The entire action has been taken just to wriggle out from the rigours of the contempt proceeding, but that cannot ipso facto disentitle the petitioner from getting his legitimate dues. Above apart, it has been specifically admitted by the opposite parties that back wages of the petitioner have been calculated taking into consideration the salary he was getting in OPEC Ltd. before he was received by OSIC Ltd. Such plea of the opposite parties can not outweigh the fact that the petitioner was brought to the OSIC Ltd. on 05.09.1994. Therefore, the petitioner is clearly entitled to get the scale of pay, as has been granted to the similarly situated employees, who have come from other subsidiary companies to OSIC Ltd. Thereby, the action of the OSIC Ltd., in not granting the scale of pay, as due and admissible to the petitioner at par with similarly situated employees of the OSIC Ltd., is not only arbitrary and unreasonable but also discriminatory which violates Articles 14 and 16 of the Constitution of India. Therefore, this Court holds that the petitioner is entitled to get the revised scale of pay as per recommendations of the Fifth Pay Commission with effect from 01.01.1996 and of the Sixth Pay Commission with effect from 01.01.2006 at par with his counterpart employees of OSIC Ltd. 10. In Jaipal Vrs. State of Haryana, AIR 1988 SC 1504 , the apex Court held that the preponderance of authorities is in favour of the view that for the applicability of the principle of “equal pay for equal work” both the groups of persons which seek equality and the group with which equality is sought must be working under the same employer. Applying the said principle to the present context, when it is admitted that the petitioner was brought to the control of the OSIC Ltd. with effect from 05.09.1994 and has been continuing under the same employer, he is entitled to get the benefit as admissible to the employees of OSIC Ltd., and non-extension of such benefits to the petitioner, after he was treated as an employee of OSIC Ltd. and brought over to the establishment, amounts to discrimination and arbitrary exercise of power which violates Articles 14 and 16 of the Constitution. The reason is well established in view of the fact that under one employer for discharging the similar nature of work, there cannot be two separate scales of pay admissible to the similar employees. 11. In view of the aforesaid facts and circumstances of the case, the petitioner is entitled to get the benefit of pay revision from 01.01.1996 to 18.05.2001 as per the recommendations of the Fifth Pay Commission and from 01.01.2006 as per the recommendations of the Sixth Pay Commission excluding the amount already paid, and also he is entitled to get differential wages as due and admissible to his post at par with his counterpart employees of the OSIC Ltd., which the opposite parties are directed to grant to the petitioner within a period of three months from the date of communication of this judgment. 12. The writ petition is accordingly allowed. No order as to cost.