JUDGMENT B.R. Sarangi, J. - The petitioners, who are the employees of Orissa State Handloom Weavers' Cooperative Society Ltd., have filed these writ applications challenging the orders dated 03.02.2010 passed by opposite party no.2 rejecting their representations, and seek for a direction to the opposite parties to reinstate them in service with all consequential service and monetary benefits and regularize their services with effect from the date when their junior Sk. Mansur AN was regularized. 2. Since both the writ petitions arise out of selfsame cause of action seeking reinstatement in service and consequential service and monetary benefits, as well as regularization of their services, they are heard analogously and disposed of by this common judgment. 3. The factual matrix of the case, in hand, is that Rabi Narayan Sahoo, the petitioner in W.P.(C) No. 13381 of 2010 was engaged as Sales Attender on daily wage basis by the Branch Manager, Jatni Sales Depot on 01.07.1983. Sangram Keshari Mohanty, the petitioner no.1 in W.P.(C) No. 13086 of 2010 was appointed on 04.07.1991 on ad-hoc basis for 89 days as additional Branch Manager and he was allowed to continue in spells of 89/40/44 days with breaks. Niranjan Pattnaik, petitioner no.2 in W.P.(C) No. 13086 of 2010 was appointed as Sales Attender on 04.05.1991 on daily wage basis for 89 days and he was given fresh appointments in spells of 89/40/44 days with breaks. The last appointment order dated 30.10.1998 was issued for 44 days up to 30.11.1998 to Sangram Keshari Mohanty stating that the engagement is purely temporary and can be terminated at any time without assigning reason. Similarly, the last appointment order dated 29.12.1998 was issued to Niranjan Pattnaik for 20 days up to 24.12.1998 stating that the engagement is purely temporary and can be terminated at any time without assigning any reason. 3.1 In the year 1998, due to dearth of work, it was proposed by the opposite party Society to reduce the number of staff and about 98 persons, including the petitioners, were identified. At that stage, Rabi Narayan Sahoo, petitioner in W.P.(C) No. 13381 of 2010 approached this Court in OJC No. 9242 of 1998 seeking direction to the opposite parties to regularize their service and to provide them all consequential service benefits. This Court, vide interim order dated 17.07.1998, directed not to terminate the service of the petitioner.
At that stage, Rabi Narayan Sahoo, petitioner in W.P.(C) No. 13381 of 2010 approached this Court in OJC No. 9242 of 1998 seeking direction to the opposite parties to regularize their service and to provide them all consequential service benefits. This Court, vide interim order dated 17.07.1998, directed not to terminate the service of the petitioner. Similarly, Sangram Keshari Mohanty and Niranjan Pattnaik, petitioners in W.P.(C) No.13086 of 2010, filed OJC No. 1124 of 1999 and on consideration of the same, this Court passed interim order on 04.02.1999 directing not to terminate their service. 3.2 On 12.02.1999, notice was issued by the opposite party-Society to retrench 98 ad hoc/daily wage workers including the petitioners, as per Annexure - A to the counter affidavit filed in W.P.(C) No. 13086 of 2010. Out of 98 ad hoc/daily wage workers, to whom notices were issued, 95 workers were relived with effect from 17.03.1999 on receiving the retrenchment compensation as per pleadings in paragraph-7 of the counter affidavit in W.P.(C) No. 13086 of 2010. But the petitioners were allowed to continue on ad hoc/daily wage basis, in view of the interim order passed in their favour by this Court. The writ applications (OJC No. 9242 of 1998 and OJC No. 1124 of 1999) were dismissed for non-prosecution vide order dated 13.07.2004. As a consequence thereof, the petitioners were disengaged, as the interim orders were lapsed, and no steps were taken immediately on behalf of the petitioners to restore the cases. However, on 25.01.2006, the writ applications (OJC No. 9242 of 1998 and OJC No. 1124 of 1999) were restored, near about one and half years after, but no order was passed directing to take back the petitioners into service. Finally, those two writ application, i.e., OJC No. 9242 of 1998 and OJC No. 1124 of 1999 were disposed of, vide order dated 30.07.2009, without expressing any opinion on the merits of the case, with a direction to the petitioners to submit fresh representations to be considered by the opposite parties. 3.3 The petitioners through their counsel submitted copy of order dated 30.07.2009 passed in OJC No. 9242 of 1998 and OJC No. 1124 of 1999 before the opposite party no.2 on 14.08.2009. Consequentially, opposite party no.2 informed the advocate of the petitioners on 29.08.2009 to ask the petitioners to submit their representations and accordingly individual representations were submitted by the petitioners on 29.08.2009.
Consequentially, opposite party no.2 informed the advocate of the petitioners on 29.08.2009 to ask the petitioners to submit their representations and accordingly individual representations were submitted by the petitioners on 29.08.2009. Basing upon which, opposite party no.2 suggested to pay compensation of Rs. 5,000/ -per year subject to maximum of Rs. 25,000/- as was paid to the 95 persons retrenched during March, 1999, as per the proposal approved by the Commissioner-cum-Secretary T & H Department-cum-President of the Society on 12.10.2009. Notices were issued to the petitioners on 14.10.2009 to appear for personal hearing on 26.10.2009. In compliance of the same, the petitioners were appeared for personal hearing on 26.10.2009 and submitted a joint representation on the same date stating that they had submitted individual representations on 29.08.2009. In course of personal hearing, the Managing Director of the Society offered to pay ex-gratia @ Rs. 5,000/- per year of service subject to maximum of Rs. 25,000/- with salary for one month in lieu of notice, but the petitioners did not agree to such proposal and wanted to be reinstated in service. Consequentially, the representations filed by the petitioners dated 29.08.2009 were rejected on 03.02.2010, as there was no post to engage them due to closure of the branches and the posts were abolished, and the regularization of Sk. Mansoor Ali is not comparable as he was holding a separate cadre of Programmer-cum-Operator. Hence these writ applications. 4. Mr. B.S. Tripathy-1, learned counsel for the petitioners contended that writ applications filed by the petitioners, i.e., OJC No. 9242 of 1998 and OJC No. 1124 of 1999, where interim orders were passed by this Court on 17.07.1998 and 04.02.1999, having been dismissed for non-prosecution on 13.07.2004, the petitioners were disengaged from service on 16.07.2004, as the interim orders were lapsed. When the writ petitions were restored on 25.01.2006, the petitioners would have been allowed to discharge their duty, but disallowing the petitioners from discharging their duties is contrary to the provisions of law. It is further contended that the order of termination on 16.07.2004 cannot be regarded as order of retrenchment, in view of the procedure envisaged under Section 25A of the Industrial Disputes Act., 1947 (for short "I.D. Act, 1947"). It is further contended that one Sk. Mansur Ali, who is junior to the petitioners, has been regularized.
It is further contended that the order of termination on 16.07.2004 cannot be regarded as order of retrenchment, in view of the procedure envisaged under Section 25A of the Industrial Disputes Act., 1947 (for short "I.D. Act, 1947"). It is further contended that one Sk. Mansur Ali, who is junior to the petitioners, has been regularized. Therefore, without adopting the principle of last comes first go, the order of retrenchment passed by the authority dated 16.07.2004 cannot sustain in the eye of law. Consequentially the petitioners should be taken back into service and their services should be regularized with effect from the date their junior Sk. Mansur Ali was regularized, and all service benefits as due and admissible to them should be granted in accordance with law. Relying upon the note sheet, it is further contended that no individual notice of retrenchment was issued to the petitioners nor was the same served on them. Therefore, termination of service of the petitioners was contrary to Section 25F of the I D. Act, 1947 and would render the service of the person concerned as void ab initio. Therefore, the order dated 03.02.2010 rejecting the representations of the petitioners cannot sustain in the eye of law, accordingly seek interference of this Court. 5. Mr. S.K. Pattnaik, learned Senior Counsel appearing along with Mr. P.K. Pattnaik, learned counsel appearing for the opposite parties contended that as per the policy decision taken by the opposite party-Society to reduce the manpower on payment of compensation of Rs. 5000/ - per year of service subject to maximum of Rs. 25,000/- with salary of one month in lieu of notice, steps were taken to retrench 98 similarly placed ad hoc/daily wage workers in February, 1999 and out of those 98 persons, 95 similarly situated ad hoc/daily wage workers were retrenched on 17.03.1999 with the policy decision laid down by the authority by awarding compensation. So far as the present petitioners are concerned, they were enjoying the interim order passed by this Court, but the writ applications filed by them having been dismissed on 13.07.2004, the interim orders passed in their favour were automatically vacated. Therefore, they were retrenched on 16.07.2004. As such, no illegality or irregularity has been committed by the opposite parties in retrenching the petitioners those who were working on daily wage basis.
Therefore, they were retrenched on 16.07.2004. As such, no illegality or irregularity has been committed by the opposite parties in retrenching the petitioners those who were working on daily wage basis. Even though earlier writ applications filed by the petitioners, i.e., OJC No. 9242 of 1998 and OJC No. 1124 of 1992 were restored to file on 25.01.2006, but by the time they were restored, the petitioners were retrenched from service, and as such no order was passed by this Court to take them back into service. Ultimately, the writ petitions were disposed of on 30.07.2009 permitting the petitioners to approach the authority by way of filing representations, without expressing any opinion towards merits of the case. While considering the representations, after giving personal hearing, the petitioners were offered compensation of Rs. 25,000/-, as was offered to similarly circumstanced 95 persons, those who were retrenched from service with notice pay of one month, as there was no scope to take them back into service, in view of want of vacancy due to abolition of posts and closure of the branches of the opposite party-Society, but the petitioners did not agree with the same. As regards the contention raised by the petitioners that services of Sk. Mansur Ali, who is junior to them, having been regularized, their services should be regularized from the date his service was regularized and all consequential benefits should be granted to them, it is further contended by the learned Senior Counsel Mr. S.K. Pattaniak that Sk Mansur Ali's case is not comparable with the petitioners as he was given regular appointment as per resolution of the Board in a different category of post. Therefore, petitioners having not stood on same footing as that of Sk. Mansur Ali, their services cannot be regularized in accordance with law. Thereby, the authorities are justified in rejecting the representations filed by the petitioners. Consequentially, the writ petitions are also liable to be dismissed To substantiate his contention, he has relied upon judgments of the apex Court in Jagbir Singh vs. Haryana State Agriculture Marketing Board, (2009) 15 SCC 327 ; and Asst. Engineer, Rajasthan Dev. Corp. vs. Gitam Singh, (2013) 5 SCC 136 . 6. This Court heard Mr. B.S. Tripathy-1, learned counsel for the petitioners and Mr. S.K Pattanaik, learned Senior Counsel appearing along with Mr. P.K. Pattanaik, learned counsel for the opposite parties in both the writ petitions.
Engineer, Rajasthan Dev. Corp. vs. Gitam Singh, (2013) 5 SCC 136 . 6. This Court heard Mr. B.S. Tripathy-1, learned counsel for the petitioners and Mr. S.K Pattanaik, learned Senior Counsel appearing along with Mr. P.K. Pattanaik, learned counsel for the opposite parties in both the writ petitions. Pleadings having been exchanged, with the consent of learned counsel for the parties, these writ petitions are being disposed of finally at the stage of admission. 7. Admittedly, the petitioners were engaged on daily wage basis by the opposite parties and they were allowed to work on different spells, but due to dearth of work when a policy decision was taken to downsize the staff, 98 persons were identified. Out of 98 ad hoc/daily wagers, 95 were retrenched on 17.03.1999 from service by granting due compensation as per policy decision of the opposite parties. So far as the petitioners are concerned, they were allowed to continue pursuant to interim orders passed by this Court, as they had approached this Court by filing writ petitions, i.e., OJC No. 9242 of 1998 and OJC No. 1124 of 1999. But when ultimately the said writ petitions were dismissed for default, they were retrenched from service on 16.07.2004. By the time said writ petitions were restored on 25.06.2006, since the petitioners were already disengaged, no prayer was made for taking back them into service. Ultimately, when said writ applications were disposed of on 30.07.2009 permitting the petitioners to file fresh representations, they filed the same on 29.08.2009 and after giving due opportunity of hearing, when effort was made to accept the compensation @ Rs. 5000/- per year of service subject to maximum of Rs. 25,000/-, the petitioners did not agree for the same. Consequentially, the order of rejection of the representations filed by the petitioners was passed. But the sole contention before this Court is that the provisions contained in Section 25F of the I.D. Act, 1947 having not been complied with, the entire action taken retrenching petitioners is void ab initio and for that purpose the petitioners should have raised industrial disputes by approaching the appropriate forum, but not by way of filing these writ applications.
But the sole contention before this Court is that the provisions contained in Section 25F of the I.D. Act, 1947 having not been complied with, the entire action taken retrenching petitioners is void ab initio and for that purpose the petitioners should have raised industrial disputes by approaching the appropriate forum, but not by way of filing these writ applications. Whether Section 25F of the I.D. Act, 1947 has been violated or not and whether the petitioners are entitled to be reinstated with continuity in service and full wages will be granted or not, that question can only be adjudicated by the industrial forum by raising an industrial dispute. If out of 98 ad hoc/daily wagers, 95 have been paid their compensation as per the policy decision and they have been retrenched from service, no valid and justifiable reason is available on the part of the petitioners to claim reinstatement in service with all consequential benefits. 8. In Jaipur Development Authority vs. Ramsahai, (2006) 11 SCC 684 , the apex Court held that the payment of adequate amount of compensation in place of a direction to be reinstated in service in cases of this nature would subserve the ends of justice. Therefore, if the offer was made by the employer with regard to payment of compensation at par with their counterparts those who have already been retrenched, in that case it cannot be construed that the provisions of Section 25F of the I.D. Act have not been complied. Similar view has also been taken by the apex Court in M.P. Admn. vs. Tribhuwan, (2007) 9 SCC 748 and Uttaranchal Forest Development Corpn. vs. M.C. Joshi (2007) 9 SCC 353 . 9. In Ghaziabad Development Authority vs. Ashok Kumar (2008) 4 SCC 261 , keeping in view the fact that the workman having worked for about six years as also the amount of daily wages which he had been getting, the apex Court opined that the interest of justice would be sub-served if direction is given to pay a sum of Rs. 50,000/-. Applying the said parameters to the present context, if as a matter of policy decision the opposite party-Society offered to pay compensation of Rs. 5,000/- per year subject to maximum of Rs.
50,000/-. Applying the said parameters to the present context, if as a matter of policy decision the opposite party-Society offered to pay compensation of Rs. 5,000/- per year subject to maximum of Rs. 25,000/- and on that basis 95 persons out of 98, those who had worked on ad hoc/daily wage basis, have received such compensation, no different view can be taken at this stage to nullify the effect of such policy decision. Therefore, if there is violation of Section 25F of the I.D. Act, 1947, the award of compensation in lieu of reinstatement can subserve the position. As such, it cannot be construed that the order so passed rejecting the representations of the petitioners due to non-acceptance of the compensation is illegal. Therefore, in Jagbir Singh (supra) the apex Court held that in case of violation of provisions of Section 25F in respect of daily wagers compensation in lieu of reinstatement shall meet the ends of justice. Applying the said principle to the present context, it is held that since the petitioners were offered with the compensation in lieu of reinstatement and they did not agree to receive the same, no illegality or irregularity has been committed so as to call for interference of this Court. 10. In Asst. Engineer, Rajasthan Dev. Corp. (supra) the apex Court, while considering the Section 2(oo), 11A and 25F of the I.D. Act, 1947, where the workman was engaged as daily wager on 01.03.1991 and he worked hardly for eight months from 01.03.1991 to 31.10.1991 and consequential award was passed in the year 2001 directing his reinstatement with continuity of service with 25% back wages, held that in the facts and circumstance the award was not sustainable and compensation of Rs. 50,000/- by the employer to the workman shall meet the ends of justice. 11. Applying the aforesaid analogy to the present case, even though the petitioners have not approached the industrial forum, as they ought to have done, the ends of justice would be best served, instead of reinstatement in service, if they are paid compensation. As such, compensation was offered to the petitioners at par with their 95 counterparts, those who have already been retrenched from service by accepting such compensation. Therefore, this Court does not find any illegality or irregularity in the order dated 03.02.2010 so passed by the authority in rejecting the representations of the petitioners.
As such, compensation was offered to the petitioners at par with their 95 counterparts, those who have already been retrenched from service by accepting such compensation. Therefore, this Court does not find any illegality or irregularity in the order dated 03.02.2010 so passed by the authority in rejecting the representations of the petitioners. Even if the retrenchment was done in violation of Section 25F of the I.D. Act, 1947, in all cases, as a matter of course, no reinstatement order can be passed with continuity of service, rather award of compensation will meet the ends of justice in lieu thereof. Consequentially, the petitioners may be duly compensated by paying compensation, as was given to 95 similarly circumstanced ad hoc/daily wagers those who have already been retrenched from service 12. In the result therefore, both the writ petitions stand disposed of with the above observation. There shall be no order as to costs.