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Akhil Kumar Sahu & Another v/s State of Orissa & Others


Company & Directors' Information:- AKHIL INDIA PRIVATE LIMITED [Active] CIN = U51109JK2000PTC002046

Company & Directors' Information:- AKHIL CORPORATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900TG2015PTC098902

    OJC No. 17768 of 1997

    Decided On, 22 June 2011

    At, High Court of Orissa

    By, THE HONOURABLE MR. JUSTICE R.N. BISWAL

    For the Petitioners: S. Mohanty, A.K. Jena & S.S. Mohapatra, Advocates. For the Opposite Parties: B.K. Patnaik, P. Sinha, P.K. Sahoo, R.K. Nayak, J. Das, A.N. Das, A.N. Pattnaik, N. Sarkar, R.K. Mohapatra & A.K. Mishra, Advocates.



Judgment Text

R.N. BISWAL, J:

1. In this writ petition, the petitioners have assailed the award dated 29.5.1997 passed by the Presiding Officer, Labour Court, Bhubaneswar in Industrial Dispute Case No. 113 of 1994, wherein he dismissed the Case as not maintainable.

2. The Government of Orissa in its Labour and Employment Department vide Memo No.6562(5) dated 24.5.1994 made a reference to the Presiding Officer, Labour Court, Bhubaneswar for adjudication. The reference reads as follows:

'Whether the refusal of employment to Shri Akhil Kumar Sahoo and Madhabananda Samal, w.e.f. 1.4.92 by the management of Talcher Thermal Power Station, Talcher is legal and/or justified? If not, to what relief the workmen are entitled?'

3. The reference was registered as I.D. Case No. 113 of 1994 as stated earlier. In their statement of claim, the petitioners/workmen through their Union stated that the petitioner-workman, Akhil Kumar Sahoo was engaged on 11.9.1984 as casual labour in the Plant Colony Civil Maintenance Sub-Division by the management of Talcher Thermal Power Station, Talcher (TTPS in short). Similarly, the petitionerworkman Shri Madhabananda Samal was engaged on 10.5.1977 as departmental casual labour in Boiler Division by the management of Talcher TTPS. He being a land oustee was further engaged as casual labour in the Plant Colony Civil Maintenance Sub-Division by the TTPS on 1.1.1984. The Union of workmen of which both the Petitioners were active members signed a tripartite settlement on 24.5.1985 for adjustment of casual labour/N. M. R. After the settlement the petitioner-Madhabananda Samal was directed by General Superintendent, TTPS to appear before the selection Committee, TTPS on 17.7.1985 for selection to the post of helper (unskilled), as a department candidate. Accordingly, he appeared the test, but failed. However, he continued as casual labour under PCCM Sub-Division. Instead of absorbing both the petitioners in permanent post, all on a sudden, without any prior intimation, the management refused their employment with effect from 1.4.1992, without giving the retrenchment benefits, while retaining in employment, some of their juniors, namely, Murali Khuntia, Dileswar Sahoo etc.

4. In their written statement, the management of TTPS, contended that Shri Akhil Kumar Sahoo alone worked as a casual labour in the Plant Colony Civil Maintenance Sub-Division from 11.9.1984 to 31.5.1984. Thereafter, he never worked under them. So, there was no question of refusing employment to the petitioners. It is the further case of the management that Madhabananda Samal was not a land oustee. The petitioners were never members of any Union of workers.

5. On the basis of claim statement and the written statement of the parties, the Presiding Officer, Labour Court, Bhubaneswar framed two issues. The petitioners were examined to prove their case. They did not examine any other witness on their behalf. The management only examined one witness. After assessing the evidence on record, the Presiding Officer, Labour Court, Bhubaneswar held that the dispute fell within the ambit and scope of Section 2(00)(bb) of the Industrial Disputes Act and dismissed the dispute holding that the reference was not maintainable vide order dated 29.5.1997. Being aggrieved with the said award, the workmen/petitioners have filed the present writ petition.

6. It is pertinent to mention here that previously Talcher Thermal. Power Station was under Orissa State Electricity Board, now abolished. Opp. Party no.1, on the basis of Section 5 of Talcher Thermal Power Station (Acquisition and Transfer) Act, 1994 vide notification dated 1.6.1995 transferred the aforesaid Power Plant to National Thermal Power Corporation Limited. After Orissa State Electricity Board was abolished, most of the workers/employees working thereunder were absorbed in Grid Corporation of Orissa Limited the successor of OSEB. Therefore, in place of General Superintendent Talcher Thermal Power Station, the present writ petition was filed against the opp. Parties.

7. As per Section 2(00) of the Industrial Disputes Act, 1947, 'retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but as per Section 2(00)(bb) of the said Act, termination of the service of a workman as a result of a non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein, would not come under retrenchment.

8. It is not the case of either of the parties that the engagement of the petitioners was on contract basis. So, the findings of learned Presiding Officer, Labour Court, Bhubaneswar that dispute fell under Section 2(00)(bb) of the Industrial. Disputes Act cannot be sustained.

9. Learned counsel for the petitioners submits that learned Presiding Officer Labour Court, Bhubaneswar erred in holding !hat the reference was not maintainable. According to him the Labour Court cannot question the validity of the reference. Labour Court is the creation of statute and gets jurisdiction on the basis of reference. So, the impugned award should be quashed on this ground alone. In support of his submission, he cited the decision in the case of National Engineering Industries Ltd. vrs. State of Rajasthan and others (2000) 1 SCC 371. Went through the decision. In para-27 thereof, the apex Court held as follows:

'The Industrial Tribunal is the creation of a statute and it gets jurisdiction on the basis of reference. It cannot go into the question on validity of the reference.'

So, in view of the .above decision, the award passed by the Presiding Officer, Labour Court, Bhubaneswar deserves to be quashed.


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/>10. Accordingly, the writ petition is allowed and the award dated 29.5.1997 passed by the learned Presiding Officer, Labour Court, Bhubaneswar in I.D. Case No. 113 of 1994 is set aside and the case is remanded back to the Presiding Officer, Labour Court, Bhubaneswar for fresh adjudication. It is made clear that the learned Presiding Officer, Labour Court, Bhubaneswar shall not record fresh evidence. It shall pass the award after giving a chance of being heard to the parties. Since it is a case of the year 1997, the Presiding Officer, Labour Court shall dispose of it within four months of receipt of this order. No cost. Petition allowed.
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