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2019 DIGILAW 337 (ORI)

Sakrajit Das v. State of Orissa

2019-04-19

B.R.SARANGI

body2019
JUDGMENT : B.R. Sarangi, J. The petitioners, who are working under Orissa State Commission for Women, have filed this application to quash office order dated 24.01.2011 in Annexure-2 passed by the Commissioner-cum-Secretary to the Government of Orissa, Women & Child Development Department, by which the revised scale of pay granted to the petitioners have been withdrawn and they have been allowed to draw consolidated remuneration, i.e., minimum of the pay scale (pre-revised) attached to the post in terms of Finance Department circular dated 07.07.2008. 2. The factual matrix of the case, in brief, is that the petitioners were appointed in different posts under opposite party no.3 during the period from 1997 to 1998 and considering their educational qualification and after following due procedure they were absorbed. From the date of their initial absorption, they had been discharging their duties assigned to them. Consequentially, their services were regularized by the authority concerned. In absence of any Rules for recruitment of staff in the establishment of opposite party no.3, the petitioners were absorbed for a period of more than one decade, as it is a statutory organization and an autonomous body, but the State Government has been granting some aid for the day-to-day management of the Commission. 2.1 The High Power Committee of opposite party no.3 in its meeting held on 11.11.2003 under the chairmanship of Development Commissioner-cumAdditional Chief Secretary took a decision to absorb all the existing staff, including the petitioner, on regular basis and such minutes of the proceedings were also communicated to the Finance Department for approval of the proposal. Accordingly, the Finance Department granted necessary concurrence and approval for engagement of the employees, including the present petitioners. Consequentially, on the basis of the decision taken, all the existing staff, including the petitioners, were extended with the benefits of Orissa Revised Scale of Pay Rules, 1998 and allowed to get the pay w.e.f. 01.04.1998. They were also allowed to draw Dearness Allowance, House Rent and other allowances, as admissible to the State Government employees, pursuant to letter dated 03.02.2009. But the authority, all on a sudden, on 24.01.2011 passed an order withdrawing the benefits, which were already granted to the petitioners, vide letter dated 19.12.2008 in Annexure-2, and directed to pay consolidated remuneration, i.e., minimum of the pay scale (pre-revised) attached to the post in terms of Finance Department circular dated 07.07.2008. Hence this application. 3. Mr. But the authority, all on a sudden, on 24.01.2011 passed an order withdrawing the benefits, which were already granted to the petitioners, vide letter dated 19.12.2008 in Annexure-2, and directed to pay consolidated remuneration, i.e., minimum of the pay scale (pre-revised) attached to the post in terms of Finance Department circular dated 07.07.2008. Hence this application. 3. Mr. B. Routray, learned Senior Counsel appearing along with Mr. J.Biswal, learned counsel for the petitioners contended that the authorities, while passing office order dated 24.01.2011 in Annexure-5 reducing the benefits, which had been granted to the petitioners, pursuant to letter dated 19.12.2008 in Annexure-2, have not complied with the minimum requirement of principles of natural justice, for which the same is liable to be quashed. It is further contended that when a right had already been accrued in favour of the petitioners, pursuant to the decision taken by the High Power Committee and approval made by the Finance Department and consequentially letter dated 19.12.2008 in Annexure-2 had been issued granting revised scale of pay to the petitioners, the subsequent order passed on 24.01.2011 in Annexure-5, without complying with the principles of natural justice, cannot sustain in the eye of law. It is further contended that the reasons assigned in the counter affidavit filed by opposite party no.2 on 02.01.2012; that the benefits of Orissa Revised Scale of Pay Rules, 1998 allowed to the employees of opposite party no.3 with effect from 01.03.2008, were subsequently withdrawn vide Government order dated 06.08.2009, when lapses were pointed out that daily wage employees as well as persons on consolidated remuneration are not appointed against any post and the benefits of Orissa Revised Scale of Pay Rules, 1998 are not applicable to them, and that Orissa Revised Scale of Pay Rules, 1998 were allowed to 23 persons working against approved posts, but not to 10 persons working on contractual basis on consolidated remuneration or to those who are not drawing pay in regular scales of pay prior to introduction of Orissa Revised Scale of Pay Rules, 1998; have been taken for the first time before this Court, and in absence of such reasons in the order impugned, the same cannot be taken into consideration. To substantiate his contention, he has relied upon a judgment of the apex Court in BCPP Mazdoor Sangh v. N.T.P.C., (2008) AIR SC 336. 4. Mr. To substantiate his contention, he has relied upon a judgment of the apex Court in BCPP Mazdoor Sangh v. N.T.P.C., (2008) AIR SC 336. 4. Mr. S. Mishra, learned Additional Government Advocate appearing for the State opposite parties contended that the employees working on daily wage and on consolidated remuneration are not entitled to get the benefit of Orissa Revised Scale of Pay Rules, 1998. When it came to the notice that such benefits have been extended to the petitioners, pursuant to Annexure-2 dated 19.12.2008, the same were withdrawn vide impugned order dated 24.01.2011. It is further contended that since the benefits of Orissa Revised Scale of Pay Rules, 1998 granted to the petitioners have been withdrawn, because some of the employees had not been appointed against regular vacancies and rather they were continuing on contractual basis, they are not entitled to get such benefits, thereby the order dated 24.01.2011 under Annexure-5 so passed by the authority is well justified and the same may not be interfered with at this stage. 5. Though Mr. K.K. Mishra and his associate have entered appearance for opposite party no.3, but when the matter called none was present in the Court. Since it is an old case of the year 2011, this Court, instead of adjourning the matter any further, proceeded to decide the same on the basis of the pleadings available on record. 6. This Court heard Mr. B.Routray, learned Senior Counsel appearing along with Mr. J. Biswal, learned counsel for the petitioners; and Mr. S. Mishra, learned Addl. Government Advocate appearing for the State opposite parties. Pleadings having been exchanged between the parties and with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 7. Undisputedly, Orissa State Commission for Women is an autonomous body. It has been created under the statute. For its smooth management, the petitioners were appointed during the period from 1997 to 1998 and they have been discharging the duties assigned to them according to their qualification. Considering their continuous service, in the proceeding of the review meeting held on 11.11.2005 in the office chamber of the Development Commissioner-cum-Addl. Chief Secretary to discuss the issues relating to State Commission for Women under agenda no.3 it was decided as follows:- "03. Considering their continuous service, in the proceeding of the review meeting held on 11.11.2005 in the office chamber of the Development Commissioner-cum-Addl. Chief Secretary to discuss the issues relating to State Commission for Women under agenda no.3 it was decided as follows:- "03. Downsizing of the existing number of staff of SCW Initiating the discussion, the Chairperson, State Commission for Women apprised the Members present in the Review meeting that the workload of the Commission has been increased considerably over the years and it would be very difficult to dispense with the services of any of the present employees. Threadbare discussion was made on the workload and distribution of work among the employees and it was decided to retain all the existing 33 employees working in the Commission. No reduction is further possible without hampering the work and responsibilities of the Commission. The existing staff position is at Annexure-11. This decision supersedes the previous decision taken in the meeting on 14.12.2004 held under the Chairmanship of Development Commissionercum-Addl. Chief Secretary. It was decided to intimate Finance Department accordingly. The three Counsellors are essentially required and the number is the barest minimum taking into account the workload. It would not be possible or desirable to take them to Social Welfare Board. Finance Department may be intimated accordingly." 8. Pursuant to the above proceedings, office note was placed to the following effect:- "This is regarding sanction of continuance to the following 33 posts existing in the office of Orissa State Commission for Women excluding sanctioned posts of one Senior Field Officer (in the rank of D.S.P.) and one Assistant Field Officer (in the rank of S.I. of Police) during current year as per decision taken in the High Power committee meeting held on 11.11.2005 under the Chairmanship of Development Commissioner-cum-Additional Chief Secretary vide proceedings of the meeting at pages 203-200/C (Flag-A) and payment of ORSP 1998 to O.S.C.W. employees. . 1. Accountant-cum-Store Keeper 01 4000-6000 2. Stenographers 03 4000-6000 3. Junior Clerks 07 3050-4590 4. Legal Assistants 02 5500-9000 5. Special Asst. to Chairperson 01 5500-9000 6. Research Assistant 01 4750-7500 7. Diarist 01 3050-4590 8. Despatcher 01 3050-4590 9. Typist 01 3050-4590 10. Drivers 03 3050-4590 11. Counsellors 03 Rs.6000/- p.m. 12. Peons 08 2550-3200 13. . 1. Accountant-cum-Store Keeper 01 4000-6000 2. Stenographers 03 4000-6000 3. Junior Clerks 07 3050-4590 4. Legal Assistants 02 5500-9000 5. Special Asst. to Chairperson 01 5500-9000 6. Research Assistant 01 4750-7500 7. Diarist 01 3050-4590 8. Despatcher 01 3050-4590 9. Typist 01 3050-4590 10. Drivers 03 3050-4590 11. Counsellors 03 Rs.6000/- p.m. 12. Peons 08 2550-3200 13. Sweeper-cum-Night Watchman 01 2550-3200 Total 33 The proceedings of the meeting has been communicated to Finance Department at page 256/C and the Hon'ble Minister, Finance has also approved the proposal wide page 204/C (Flag-B). The additional annual financial burden will be Rs.16.26 lakhs as calculated at Flag-C on account of ORSP, 1998. The continuance of the above posts with O>R.S.P. 1998 for the O.S.C.W. may be agreed to in principle with Government Orders after which concurrence of Finance and P & C Department will be taken as suggested by F.A.-cum-Joint Secretary at Page 130/N." 9. On 21.05.2008, the Finance Minister approved the above note to the following effect:- "Recall my order dt.20.12.2005 at P.204/C. Since appointments are made by Commission retrenchment will be difficult and may lead to further complications. Besides employees of Commission are no Government servants. As is evident, in absence of rules for recruitment of Staffs to be framed by AD (in pursuance with Section 5 of OSCW Act 1993), the Commission went on appointment to carry out their statutory activities. In this background neither the Commission nor the employee are to be blamed, for irregular recruitment, if committed. However the High Level Committee dt.11.11.2005 (P.203/C of linked File No.9/2007) has recommended to retain all existing 33 employees basing on which Finance Department has approved to clear their dues (at P.204/C of Linked File). Further increase to 36 posts may not be prudent, in view of earlier observation of FD, that staff strength is excess while comparing to the staff position of other States. On other reference of AD, for enhancement of Pay, it is seen that there are different types of payments i.e. Pay Scales, contractual payment etc. Commission is a statutory autonomous body and it is grantee institution of Government. The nature and activity of Commission is such that it has no other Source than Government Grant. But that limitation in their capacity may not consist the remuneration of its employees when the Commission is discharging a statutory function entrusted by Government. Commission is a statutory autonomous body and it is grantee institution of Government. The nature and activity of Commission is such that it has no other Source than Government Grant. But that limitation in their capacity may not consist the remuneration of its employees when the Commission is discharging a statutory function entrusted by Government. In this perspective, the entire issues are to be looked into. Many employees are getting Pay Scales in ORSP Rates. When pay is revised in Government demand of hike of Pay is quite natural. Since the present pay structure prevalent in Government is ORSP-98, they may be allowed to get pay in the same rate of ORSP-98, but w.e.f. 01.04.2008 as outlined by AD at P.131/N of linked file. The AD has also suggested the monthly remuneration of Counselors @ Rs.6000/- p.m. Since the job of Counselors are vital input in redressal of women issues, the suggestion of AD at P.131/N of linked file is accepted but the new rate of Rs.6000/- P.M. may be effective from 01.04.2008." 10. Pursuant to the above approval made by the Finance Minister, the petitioners were extended with the benefits of Orissa Revised Scale of Pay Rules, 1998 by passing an order on 19.12.2008 giving effect from 01.04.2008 and, as such, they were enjoying such benefits from the date of passing of the office order dated 19.12.2008. But all on a sudden, vide letter dated 24.01.2011, the benefits granted to the petitioners, were withdrawn stating inter alia as follows:- "The three (3) nos. of Counselors are eligible to get remuneration @ Rs.6,000/- per month w.e.f. 01-04-2008. The three (3) casual employees of Orissa State Commission for Women, namely (1) Sri Dillip Kumar Mohapatra, Jr. Clerk (2) Sri Sisir Kumar Dash, Jr.Clerk and (3) Sri Bibhu Prasad Swain, Peon who were retrenched are to be re-engaged in the office of the Orissa State Commission for Women from the date of their joining in the office of Orissa State Commission for Women. All the ten (10) nos. of casual employees of Orissa State Commission for Women including the aforesaid three retrenched employees are to continue in the office of Orissa State Commission for Women and will get consolidated remuneration i.e. minimum of the pay scale (pre-revised) attached to the post in terms of F.D. circular dated 07-07-08. All the ten (10) nos. of casual employees of Orissa State Commission for Women including the aforesaid three retrenched employees are to continue in the office of Orissa State Commission for Women and will get consolidated remuneration i.e. minimum of the pay scale (pre-revised) attached to the post in terms of F.D. circular dated 07-07-08. This has been concurred in by Finance Department on 05-09-2008 vide their UOR No.6-SS II(9) dated 20-06-2007 and UOR No.13-SS II(9) dated 19-8-2008." 11. The reasons for withdrawal of such benefits are that some of the casual employees were granted benefit of regular scale of pay and thereby they have been fixed consolidated remuneration, i.e., minimum of the pay scale (pre-revised) attached to the post in terms of Finance Department circular dated 07.07.2008. But fact remains, 33 employees of the Commission had been extended with the benefits, pursuant to decision taken by the review committee and duly approved by the Finance Department. Consequentially, a right has been accrued in favour of the petitioners and such right cannot and could not have been withdrawn without following due procedure of law, meaning thereby, without following the principles of natural justice. 12. A similar question had come question had come up for consideration before the apex Court in BCPP Mazdoor Sangh (supra) and in paragraphs 29 and 30 of the judgment it was held as follows:- "29. The Government or its instrumentality cannot alter the conditions of service of its employees and any such alteration causing prejudice cannot be effected without affording opportunity of pre-decisional hearing and the same would amount to arbitrary and violative of Article 14. As pointed out earlier, in the case on hand, the employees are neither party to tripartite Agreement nor they have been heard before changing their service condition. Therefore, the action of the management is violative of Article 14 of the Constitution of India. Similar view has been taken by this Court in H. L. Trehan and others vs. Union of India and others, (1989) 1 SCC 764 . In para 11 of the judgment, this Court observed as under : "..........It is now a well established principle of law that there can be no deprivation or curtailment of any existing right, advantage or benefit enjoyed by a Government servant without complying with the rules of natural justice by giving the Government servant concerned an opportunity of being heard. In para 11 of the judgment, this Court observed as under : "..........It is now a well established principle of law that there can be no deprivation or curtailment of any existing right, advantage or benefit enjoyed by a Government servant without complying with the rules of natural justice by giving the Government servant concerned an opportunity of being heard. Any arbitrary or whimsical exercise of power prejudicially affecting the existing conditions of service of a Government servant will offend against the provision of Article 14 of the Constitution. Admittedly, the employees of CORIL were not given an opportunity of hearing or representing their case before the impugned circular was issued by the Board of Directors. The impugned circular cannot, therefore, be sustained as it offends against the rules of natural justice." 30. It is useful to refer to the judgment of this Court in Jawaharlal Nehru University vs. Dr. K. S. Jawatkar and others, (1989) Supp1 SCC 679. In this case, Jawaharlal Nehru University was the appellant before this Court. The main contention of the appellantUniversity was that the respondent was appointed at the Centre of Post-Graduate Studies, Imphal and when the Centre was transferred to Manipur University his services were automatically transferred to that University and consequently he could not claim to be an employee of the appellant-University. The argument proceeds on the assumption that the Centre of PG studies at Imphal was an independent entity which existed by itself and was not a department of the appellant-University. Rejecting the said contention, this Court held thus: "7. . . . The Centre of Post-Graduate Studies was set up at Imphal as an activity of the appellant-University. To give expression to that activity, the appellant-University set up and organised the Centre at Imphal and appointed a teaching and administrative staff to man it. Since the Centre represented an activity of the appellant-University the teaching and administrative staff must be understood as employees of the appellantUniversity. In the case of the respondent, there can be no doubt whatever that he was and continues to be, an employee of the appellant-University. There is also no doubt that his employment could not be transferred by the appellant-University to the Manipur University without his consent notwithstanding any statutory provision to that effect whether in the Manipur University Act or elsewhere. There is also no doubt that his employment could not be transferred by the appellant-University to the Manipur University without his consent notwithstanding any statutory provision to that effect whether in the Manipur University Act or elsewhere. The contract of service entered into by the respondent was a contract with the appellant-University and no law can convert that contract into a contract between the respondent and the Manipur University without simultaneously making it, either expressly or by necessary implication, subject to the respondent's consent. When the Manipur University Act provides for the transfer of the services of the staff working at the Centre of Postgraduate Studies, Imphal, to employment in the Manipur University, it must be construed as a provision enabling such transfer of employment but only on the assumption that the employee concerned is a consenting party to such transfer. It makes no difference that the respondent was not shown in the list of Assistant Professors of the appellant-University or that the provision was not indicated in its budget; that must be regarded as proceeding from an erroneous conception of the status of the respondent. The position in law is clear, that no employee can be transferred, without his consent, from one employer to another. The consent may be express or implied. We do not find it necessary to refer to any case law in support of this conclusion. 8. Inasmuch as the transfer of the Centre of Post-graduate Studies from the appellant University to the Manipur University could not result in a transfer of the employment of the respondent from the one to the other, it must be concluded that the respondent continues in the employment of the appellant-University....." It is clear that no employee could be transferred without his consent from one employer to another. Therefore, in view of the aforesaid rulings the transfer of employees from NTPC - a public sector undertaking to BALCO which is a private organization is bad in law." In view of the law discussed above, once the right has been accrued in favour of an employee, the same cannot be taken away without complying with the principles of natural justice. Therefore, the order impugned in Annexure-5 dated 24.01.2011 cannot sustain in the eye of law on this ground alone. 13. Therefore, the order impugned in Annexure-5 dated 24.01.2011 cannot sustain in the eye of law on this ground alone. 13. However, a further contention was raised that the opposite parties have justified their action with reference to the counter affidavit filed on 02.01.2012 on behalf of opposite party no.2, whereas the order impugned does not indicate any such reasons. Therefore, the opposite parties are precluded from supplementing or supplanting any other reasons, bereft of reasons available in the order impugned, by way of filing counter affidavit, in view of the law laid down by the apex Court in Commissioner of Police, Bombay v. Gordhandas Bhanji, (1952) AIR SC 16, wherein the apex Court held as follows : "Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older." 14. In view of the ratio decided by the Gordhandas Bhanji (supra), the apex Court in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, (1978) AIR SC 851, in paragrapgh-8 has held as follows: "when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. Orders are not like old wine becoming better as they grow old." Similar view has also been taken in Bhikhubhai Vithlabhai Patel and others v. State of Gujarat, (2008) 4 SCC 144 . 15. In view of the facts and law, as discussed above, this Court is of the considered view that the order dated 24.01.2011 in Annexure-5 cannot sustain in the eye of law and accordingly the same is liable to be quashed and is hereby quashed. 15. In view of the facts and law, as discussed above, this Court is of the considered view that the order dated 24.01.2011 in Annexure-5 cannot sustain in the eye of law and accordingly the same is liable to be quashed and is hereby quashed. The petitioners are entitled to get the benefits in terms of the office order dated 19.12.2008 in Annexure-2. Therefore, after excluding the benefits already paid, the opposite parties are directed to pay to the petitioners the balance dues without causing any further delay, preferably within a period of four months from the date of communication of this judgment. 16. The writ application is thus allowed. There shall be however no order as to costs.