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2017 DIGILAW 926 (ORI)

Abani Chandra Das v. State of Orissa

2017-08-23

SUJIT NARAYAN PRASAD

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JUDGMENT : S.N. Prasad, J. This writ petition is for quashing the order dated 12.11.1997 and 19.11.2003 under Annexure-4 and 14 respectively. Annexure-4 is the order passed by the Executive Director of the Orissa Construction Corporation Limited, Bhubaneswar whereby and whereunder the order sanctioning annual increment for the period when the petitioner was discharging his duty as work-charged employee, has directed to be recalled with a direction to recover the excess amount paid to the petitioner in lieu thereof. Annexure-14 is the order passed by the Company Secretary, Orissa Construction Corporation Limited, Bhubaneswar whereby and whereunder the decision taken by the Executive Director, Orissa Construction Corporation Limited, Bhubaneswar dated 12.11.1997 has been affirmed. 2. The brief fact of the case of the petitioner is that he has joined his service in the Orissa Construction Corporation Limited, Bhubaneswar under work-charged establishment w.e.f. 1.6.1988 and subsequently he has been absorbed as Junior Stenographer under regular establishment by order of the Chairman, Orissa Construction Corporation Limited, Bhubaneswar. The petitioner subsequently has been promoted to the post of Senior Stenographer in the pay scale of Rs 1155-2235/-and attached to the Managing Director, Orissa Construction Corporation Limited, Bhubaneswar. The opposite party-Corporation has passed an order on 21.4.1990 whereby the basic pay has been fixed as Rs.965/- w.e.f 21.4.1990 by giving protection of the increment of the period of the duty under the work-charged establishment. 3. The petitioner claims is right on the basis of the Office Memorandum dated 17th August, 1994 whereby and whereunder the Education Department of the State of Orissa has protected/fixed the pay of the work-charged employees consequent upon the joining in the regular establishment. 4. According to the petitioner, he has been given annual increment w.e.f. 1.6.1990. Subsequently, it has been recalled by the Corporation on the ground that the decision of the Finance Department as contained Office Memorandum dated 17th August, 1994 under Annexure-5 has not been adopted by the Corporation by passing the order in this regard on 12.11.1997 with a direction to make a recovery of the excess amount which has been paid to the petitioner on the basis of the Office Memorandum dated 17th August, 1994. 5. 5. The petitioner being aggrieved with the order dated 12.11.1997, has approached before the Company Secretary under its appellate jurisdiction, the appeal having not been found to be tenable in the eye of law, has been rejected by affirming the order passed by the original authority. The petitioner assailed both the order dated 12.11.1997 and the appellate order dated 19.11.2003 inter alia on the ground that he being an employee of the Corporation, the decision taken by the Finance Department of State of Orissa dated 17th August, 1994 is applicable wherein the protection of pay to be extended to the work-charged employees consequent upon the joining in regular establishment which has been decided to be given and accordingly, the authorities, after taking into consideration the decision of the State Government, has extended the benefit in his favour. He further submits that the Corporation, after taking conscious decision in this regard, has extended the said benefit. There is no justification in recalling the order extending the benefit of increment for the said period. 6. Per contra, Mr. L. Pangari, learned counsel appearing for the Corporation, has submitted that the Corporation has not adopted the Office Memorandum issued by the Finance Department of the State of Orissa dated 17th August, 1994 and as such, the petitioner cannot claim any benefit in the light of the said Office Memorandum. He further submits that the authorities have taken wrong decision by placing reliance upon the Office Memorandum dated 17th August, 1994 as because this order has to be given effect to from the date of its issue, but very surprisingly the petitioner has been extended the said benefit from the month of June, 1990, hence the applicability of the Office Memorandum dated 17th August, 1994 has been given itself retrospective effect. He further submits that it is settled that any financial benefits which the employees of the Corporation/Board having its autonomy, is to be given at par with the regular State employees, if adopted by it. He seriously dispute the fact that the decision taken by the State of Orissa in Finance Department dated 17th August, 1994 has ever been adopted by the Corporation and as such, the decision taken by the Corporation on earlier occasion has been recalled. He seriously dispute the fact that the decision taken by the State of Orissa in Finance Department dated 17th August, 1994 has ever been adopted by the Corporation and as such, the decision taken by the Corporation on earlier occasion has been recalled. He further submits that none of the employees of the Corporation has been extended the said benefit and as such, in order to maintain parity amongst the employees working in the Corporation, the authorities have taken conscious decision to rectify the illegality committed by extending the benefit of annual increment in the light of the Office Memorandum dated 17th August, 1994. 7. In response, learned counsel for the petitioner has submitted that it is wrong to say that the State authority as well as the Corporation has not adopted the Office Memorandum dated 17th August, 1994 rather, he by putting reliance upon the communication dated 9.8.2001, has submitted that the Corporation has adopted it and only on its adoption the benefit has been extended. 8. In rebuttal, learned counsel appearing for the Corporation has submitted that the letter dated 9.8.2001 issued by the Under Secretary to Government, Water Resources Department to the Managing Director, Orissa Construction Corporation Limited, Bhubaneswar cannot be said to be adoption of the Office Memorandum dated 17th August, 1994 rather, it is only a query made by the Under Secretary to Government from the Managing Director, Orissa Construction Corporation Limited, Bhubaneswar regarding the service status of the petitioner and the same has duly been replied vide letter dated 8.7.2003 by saying therein that the State Government has got nothing to do to extend the benefit of the protection to the petitioner rather, it depends upon the existing rules and regulations followed by the opposite party-Orissa Construction Corporation Limited. 9. Heard the learned counsel for the parties and perused the documents available on record. 10. The sole dispute raised by the petitioner in this case is the applicability of the Office Memorandum dated 17th August, 1994 issued by the Finance Department of the State of Orissa, which has been issued to give protection of the work-charged employees consequent upon absorption in regular establishment. 10. The sole dispute raised by the petitioner in this case is the applicability of the Office Memorandum dated 17th August, 1994 issued by the Finance Department of the State of Orissa, which has been issued to give protection of the work-charged employees consequent upon absorption in regular establishment. The Office Memorandum dated 17th August, 1994 reflects that the Finance Department has issued the said resolution in the light of Resolution No.4419/F dated 22.1.1965 laying down the parameters to bring over the posts borne under work-charged establishment to regular establishment and to absorb the incumbents against those posts created in regular establishment. The said Office Memorandum further reflects that the same is applicable to the regular employees of the State Government from the date of its issue. The petitioner has been taken into regular establishment from the work-charged establishment w.e.f. 1.6.1990 and thereby the authorities, by putting reliance upon the Office Memorandum dated 17th August, 1994, has passed an office order on 07.02.1996 giving him benefit of increment w.e.f. 1.6.1990 by applying the principle laid down in the Office Memorandum dated 17th August, 1994. The authorities subsequently in course of revision of its decision, have found that the Office Memorandum dated 17th August, 1994 has never been adopted by the Corporation rather, the work-charged employees under the Corporation having been brought over to the regular establishment on the basis of order passed by this Court or by the Hob’ble Apex Court and as such, the Office Memorandum dated 17th August, 1994 is not applicable, so far as the employees working under the Corporation are concerned. The opposite parties, in order to rectify their mistake and also to maintain parity to other employees, have passed an order on 12.11.1997 stating therein that the benefit of increment from the dates while working under the work-charged establishment has wrongly been given in the light of the Office Memorandum dated 17th August, 1994 while it ought to have been given on the basis of letter dated 27.10.1980 and as such, the order to recall of the decision as also recovery of the said amount has been passed. 11. 11. Learned counsel appearing for the petitioner fails to bring on record any of the document to draw the attention of this Court regarding adoption of the Office Memorandum dated 17th August, 1994 by the Corporation rather, he has only put reliance upon only the communication dated 9.8.2001 under Annexure-10. The communication dated 9.8.2001 has been issued by the Under Secretary to Government, Water Resources Department to the Managing Director of the Orissa Construction Corporation Limited, Bhubaneswar, but the contents of the said letter has been issued in the light of the representation filed by the petitioner and by going through the same, the Under Secretary to the Government, Water Resources Department has sought for some information for detailed examination of the case and as such, the adoption of the decision of the Government as contained in Office Memorandum dated 17th August, 1994. The communication dated 8.7.2003 also suggests that the Circular dated 12.11.1997 has not been adopted, since the contents of the letter is that the Corporation has been requested to take its own decision to extend the benefit of protection on the basis of existing rules/regulations followed by the Corporation. This letter clearly reflects that the Corporation has not adopted the Office Memorandum dated 17th August, 1994. 12. At this juncture, learned counsel for the petitioner has put reliance upon the provision of Rule-74(d) of Orissa Service Code and putting reliance upon it, has been submitted that the petitioner is said to be entitled to get the benefit of annual increment on the basis of the said provision. This Court has examined the provision of Rule-74(d) of Orissa Service Code, but the said rule does not speak regarding providing protection, in case of absorption of workers from work-charged establishment to regular establishment and as such, it is not applicable. 13. In that view of the matter and after going through the pleadings of the parties and taking into consideration the fact that the Office Memorandum dated 17th August, 1994 has not been adopted by the Corporation, as such, this Court does not find any infirmity in the decision taken by the authority. 14. In that view of the matter, this Court finds no merit in this case. Accordingly, the writ petition stands dismissed.