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Industrial Promotion and Investment Corporation of Odisha Ltd. (IPICOL) v/s Bimbadhar Panda & Others


Company & Directors' Information:- P V T INVESTMENT LTD [Not available for efiling] CIN = U67120PB1988PLC008068

Company & Directors' Information:- V T INDUSTRIAL CORPORATION LIMITED [Active] CIN = U74990TN2010PLC078041

Company & Directors' Information:- S T INVESTMENT PRIVATE LIMITED [Amalgamated] CIN = U65993WB1990PTC050032

Company & Directors' Information:- V R V INVESTMENT PRIVATE LIMITED [Active] CIN = U67120WB1985PTC039793

Company & Directors' Information:- S P INVESTMENT PVT LTD [Active] CIN = U70109WB1961PTC025099

Company & Directors' Information:- K. S. R. INVESTMENT LIMITED [Strike Off] CIN = U65992UP1988PLC010253

Company & Directors' Information:- PANDA INDIA PRIVATE LIMITED [Active] CIN = U74999GJ2020PTC114965

Company & Directors' Information:- T M INVESTMENT CO PVT LTD [Active] CIN = U67120WB1971PTC028172

Company & Directors' Information:- P N INVESTMENT PRIVATE LIMITED [Under Liquidation] CIN = U65910GJ1988PTC010715

Company & Directors' Information:- J. PANDA & CO PRIVATE LIMITED [Strike Off] CIN = U74140OR2013PTC016513

Company & Directors' Information:- B C K H INVESTMENT CO PVT LTD [Active] CIN = U67120MH1982PTC026819

Company & Directors' Information:- M G A INVESTMENT COMPANY PRIVATE LIMITED [Strike Off] CIN = U99999MH1980PTC022406

Company & Directors' Information:- C J P INVESTMENT PVT LTD [Strike Off] CIN = U99999GJ1981PTC004662

    W.A. No. 696 of 2020

    Decided On, 14 July 2021

    At, High Court of Orissa

    By, THE HONOURABEL CHIEF JUSTICE DR. S. MURALIDHAR & THE HONOURABLE MR. JUSTICE S.K. PANIGRAHI

    For the Appellant: Saurya Kanta Padhi, Senior Advocate. For the Respondents: R1, Soumya Mishra, B.P. Panda, Advocates.



Judgment Text

Dr. S. Muralidhar, CJ.

1. These appeals by the Industrial Promotion and Investment Corporation Ltd. (IPICOL) are directed against the common order dated 20th February, 2020 passed by the learned Single Judge in W.P.(C) Nos.24139 of 2014, 20515 of 2014 and 562 of 2015 filed by the Respondent No.1 as well as the subsequent order dated 5th November, 2020 passed by the learned Single Judge dismissing RVWPET No.201 of 2020 and orders dated 9th November, 2020 dismissing RVWPET Nos.202 and 203 of 2020.

2. The background facts are that Respondent No.1 (Mr. Bimbadhar Panda) in W.A. No. 696 of 2020 had filed W.P.(C) No.24139 of 2014 in this Court praying that IPICOL should be directed to implement a resolution dated 28th June 2014 of the Finance Department, Government of Odisha as well as the resolution dated 2nd August, 2014 of the Department of Public Enterprises (DPE), Government of Odisha, and thereby be directed to enhance the age of superannuation of Mr. Panda from 58 to 60 years with immediate effect.

3. Mr. Panda was employed in IPICOL since 1st April, 1978. At the relevant time, the age of retirement was 58 years. By the aforesaid resolution dated 28th June 2014 of the Finance Department, Government of Odisha the age of superannuation of the employees of the State Government stood enhanced from 58 to 60 years.

4. IPICOL has its own service rules which are not ipso facto identical to those applicable to the employees of the State Government. The DPE resolution dated 2nd August, 2014 directed inter alia that public sector undertakings (PSUs) of the State of Odisha, which included IPICOL, ‘may’ enhance the age of superannuation of their employees from 58 to 60 years subject to the following conditions:

“1. The Public Sector Undertaking must justify its need to retain the present experienced manpower for utilization of their services in achievement of the objectives of the Corporation.

2. The entity does not have compelling reasons to reduce cost by downsizing manpower.

3. The PSU must not have defaulted in payment of salary, statutory dues of the employees such as Provident Fund and ESI etc. in past three years.

4. The PSU must not have availed any additional budgetary support during the last three years for payment of salary and other employees dues (excepting the usual level of budgetary support availed by the PSU, if any).

5. The PSU must not have defaulted in payment of loan to any financial institution or State Government. The PSU must be update in payment of guarantee fee/royalty/dividend to the State Government, whichever is applicable.

6. The entity is and will be able to discharge the salary burden out of its own resources and not depend on additional budgetary grant (excepting any usual budgetary allocation).

The P.S.U. shall prepare a detailed proposal which should be approved by the Board of Directors of the PSU concerned.

The proposal approved by Board shall be concurred by the Administrative Department. The Administrative Department shall obtain appropriate Government approval before giving effect to the enhancement proposal.”

5. It is, therefore, apparent that by the aforementioned resolution dated 2nd August, 2014 of the DPE there would not be an automatic enhancement of the age of superannuation of the employees of the State PSUs from 58 to 60 years. First, the PSU had to prepare a detailed proposal which had then to be approved by its Board of Directors (BoD). In the next step, the proposal approved by the BoD had to be concurred with by the Administrative Department of the State Government. In the third step, the Administrative Department had to obtain approval of the State Government and thereafter the proposal would be notified for being implemented.

6. A few days before superannuating on 31st December, 2014 Mr. Panda filed the aforementioned writ petition in this Court on 9th December, 2014. On 19th December, 2014 the following order was passed by the learned Single Judge of this Court:

“Heard Miss D. Priyanka, learned counsel for the petitioner.

Issue notice.

Two extra copies of the brief be served on Mr. A.K. Mishra, learned Additional Government Advocate by Tuesday (23.12.2014) as he appears for opposite party Nos.1 and 2.

Requisites for issuance of notice to Opposite Party Nos.3 and 4 by Registered Post with A.D. shall be filed by Tuesday (23.12.2014). Notice shall be issued fixing a short returnable date.

Put up this matter thereafter.

Misc. Case No.21544 of 2014

As an interim measure, any coercive action taken against the Petitioner with regard to his superannuation from service on attaining the age of 58 years shall abide by the result of the writ petition.

Misc. Case is disposed of.”

7. There was thus no stay of superannuation and Mr. Panda superannuated on 31st December, 2014. It is stated by IPICOL that he has since received all his retirement benefits, which includes monetary benefit of Rs.22,65,332/-. He is also stated to be receiving pension according to his entitlement.

8. More than a year thereafter on 20th January, 2016 the BoD of IPICOL proposed to enhance the age of superannuation of its employees from 58 to 60 years. The said proposal was accepted by the Government of Odisha on 27th February, 2016 with immediate effect. No amendment was sought to be made to the writ petition by Mr. Panda to challenge the prospective applicability of the above decision of the Government of Odisha.

9. On 20th February 2020 the learned Single Judge took up the hearing of W.P.(C) No.24139 of 2014. In the meanwhile, the learned Single Judge had disposed of W.P.(C) No.17444 of 2015 by a judgment dated 28th January, 2020 (Sri Biresh Chandra Giri v. State of Odisha), in which a direction was sought to the Odisha State Police Housing and Welfare Corporation Limited (OSPHWCL) to extend to the said Petitioner the benefit of Section 71(a) of the Orissa Service Code as amended on 24th July, 2014 taking into account a notification dated 2nd August, 2014 of the DPE and the resolution of BoD of OWPHWCL dated 22nd September, 2015.

10. In the said judgment in Biresh Chandra Giri’s case, the learned Single Judge noted the detailed requirements of the resolution dated 2nd August, 2014 of the DPE and that in the said case the BoD had already made a proposal on 22nd September, 2014 for enhancing the age of superannuation. The Petitioner in that case superannuated on 30th September, 2015 i.e. nearly one year after the resolution of the BoD of OWPHWCL. The approval of the State Government was given on 23rd November, 2015 i.e. less than two months after the Petitioner’s retirement.

11. In those circumstances, the learned Single Judge viewed the approval of the Government as “routine” and held that the Petitioner should not be made to suffer for the laches on the part of the Government. Accordingly, it was directed that the Petitioner in that case should be deemed to be continuing in service till attaining the age of 60 years and would be entitled to salary and other benefits “all through”.

12. The only question that the learned Single Judge addressed in Biresh Chandra Giri’s case was whether the benefits would flow from the date of the resolution of the BoD or from the date of their approval by the Government. It was held that it would become effective from the date of the resolution of the BoD.

13. When the present writ petition was taken up for hearing, the learned Single Judge proceeded on the basis that the facts in W.P.(C) No.17444 of 2015 i.e. Biresh Chandra Giri’s case was similar to the case of Mr. Panda, the Petitioner in W.P.(C) No.24139 of 2014.

14. In the meanwhile, two other writ petitions seeking similar reliefs had been filed viz., W.P.(C) No.20515 of 2014 and W.P.(C) No.562 of 2015. The facts in each of them were more or less identical. All three writ petitions were accordingly heard together and disposed of by the learned Single Judge by the common impugned order dated 20th February, 2020.

15. As far as the other two writ petitions are concerned, against the same impugned common order dated 20th February, 2020 of the learned Single Judge disposing them of, the accompanying two writ appeals were filed by IPICOL i.e. W.A. No.697 of 2020 (arising out of W.P.(C) No.20515 of 2014 filed by Mr. Karim Khan) and W.A. No. 698 of 2020 arising out of W.P.(C) No.562 of 2015 filed by Mr. Mahendra Kumar Kar. While Mr. Karim Khan superannuated on 31st October, 2014 and received his retirement dues of Rs.11,07,634/- and is receiving pension, Mr. Mahendra Kumar Kar superannuated on 31st January, 2015 receiving retirement dues of Rs.33,22,855/- and is also receiving pension.

16. A perusal of the impugned order dated 20th February, 2020 of the learned Single Judge reveals that it proceeded on the footing that all the two connected writ petitions stood on the “same footing” as W.P.(C) No.17444 of 2015 and “for the delayed action of the State, none of the Petitioners should suffer”. Accordingly, it was directed that all three writ Petitioners i.e. Respondent No.1 in each of the present appeals, should be “deemed to have been continued in service till they attained the age of 60 years’. The learned Single Judge further directed that the arrears if any, in the event that the Petitioners have been made to retire prior to attaining the age of superannuation for no fault of theirs, should be released to them “for the period they were prevented from working”, it was to be released along with interest @ 7% per annum all through.

17. When the writ appeals were first listed for hearing on 25th November, 2020 while directing notice to issue, this Court stayed the impugned order of the learned Single Judge. That interim order is continuing since.

18. This Court has heard the submission of Mr. S.K. Padhi, learned Senior Counsel appearing for the Appellant (IPICOL) in all the cases and Mr. Soumya Mishra, learned counsel and Mr. B.P. Panda, learned counsel appearing for Respondent No.1 in the appeals.

19. At the outset, Mr. Padhi, learned Senior Counsel for the Appellant points out that it is only in cases where there is no separate rule governing the service conditions of State PSU employees, that the benefit of the enhanced age for superannuation applicable to the State Government would ipso facto be applicable to the employees of the PSU. In this context, a reference was made on the decision dated 16th February, 2016 of the learned Single Judge rendered in Menaka Manjari Biswal v. Government of Odisha 2016 LabIC 1961.

20. Turing to the decisions of this Court, in Sarat Chandra Tripathy v. O.F.D.C. 120 (2015) CLT 1047, it was held that the approval of the Government to the proposal of OFDC would be effective only from the date of issuance of the order of the OFDC. That notification had not been issued by OFDC by the time the Petitioner in that case retired i.e. 30th September, 2014 and therefore, it was held that the said Petitioner was not entitled to the benefit of enhancement of age of retirement.

21. Mr. Padhi also refers to the decisions of this Court in Premalata Panda v. State of Odisha 2015 (II) OLR 214, which involved the employees of the Cuttack Development Authority (CDA) which had adopted the Odisha Service Code for its employees. In those circumstances, it was held that in the absence of Rules specially applicable to the employees of the CDA, the resolution which applies to the State Government employees, as regards increase of the age of superannuation would be ipso facto applicable to the employees of the CDA as well.

22. Reference was also made to the order dated 31st March, 2015 of the learned Single Judge in W.P.(C) No.14957 of 2014 (Sukanta Chandra Mohanty v. State of Odisha) which involved the employee of Odisha Police Co-operative Syndicate Ltd. There the writ petition was dismissed since the Petitioner had already retired prior to the order issued by the Society on 29th September 2014 on attaining the age of superannuation.

23. Learned counsel for Mr. Panda on the other hand sought to place reliance on a judgment dated 11th September, 2019 passed by a Division Bench (DB) of this Court in W.A. No.389 of 2017 (M/s. Odisha Tourism Development Corporation Ltd. v. Sri Surendra Kumar Mallick).

24. A perusal of the said judgment reveals that the Government of Odisha in the Department of Tourism and Culture vide letter dated 13th January, 2015 requested the OTDC to its proposal for enhancement of age of superannuation subsequently on 27th June, 2016 the State Government approved the proposal. The learned Single Judge in Premalata Panda (supra) directed that the benefit of enhanced retirement age extended to a State Government employee should also be extended to OTDC employees.

25. It is seen that on the facts of the said case that there were no separate set of Rules applicable to the employees of OTDC and the Rules of the State Government had been made applicable by the decision of its BoD. The said case, therefore, stands on a different footing from the case at hand where IPICOL has its own set of service Rules. Therefore, the decision in Premalata Panda (supra) is of no assistance to Respondent No.1 in these appeals.

26. In this context, it may be noted that the settled legal position is that a mere noting in the file will not be construed as a decision particularly since in terms of the DPE resolution dated 2nd August, 2014 the procedure involves the making of a proposal in the first instance by the PSU; and then its approval by the BoD of PSU and thereafter to the Administrative Department culminating in a notification of acceptance of such proposal.

27. In the present case, the proposal for enhancement of the age of superannuation was approved by the BoD of IPICOL only on 20th January, 2016 i.e. long after the superannuation of the three employees, who are the writ petitioners before the learned Single Judge. It was accepted by the Government of Odisha only on 27th February, 2016. Since then the enhanced age of superannuation became applicable. Therefore, there was no occasion that the benefits to be extended to the three writ Petitioners by the learned Single Judge.

28. Further, the Court finds that the case of the three writ Petitioners i.e. Respondents No.1 in the appeals was very different from the case of Sri Biresh Chandra Giri (supra), the Petitioner in W.P.(C) No.17444 of 2015. Mr. Giri was an employee of the OSPHWCL to whom the Odisha Service Code was already made applicable. The learned Single Judge therefore, erred in treating all these cases are similar and deciding them in a similar fashion.

29. Significantly, in the order dated 5th November, 2020 dismissing IPICOL’s review petitions, which also have been challenged in the present appeals, the learned Single Judge accepted the plea of IPICOL that the case of the three writ Petitioners is different from that of the Petitioner in W.P.(C) No.17444 of 2015. Nevertheless counsel for the Oppos

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ite Parties contends that only because the Respondents No.1 in each appeal had approached the Court before their actual date of superannuation and that since there was “no case of involvement of the financial constraint here” and that since the Government decision was “already in vogue in several corporations as well as in the Government establishments”, the learned Single Judge declined to review the order. However, it was observed that the order in the main petition would not be treated as a precedent. 30. In the considered view of the Court, no parallel could be drawn between the facts in W.P.(C) No.17444 of 2015 and those in the connected petitions. Here IPICOL has its own set of Rules. As already pointed out the proposal to enhance the date of the age of superannuation of was accepted long after the actual date of superannuation in three writ petitions. 31. For all the aforementioned reasons, the impugned orders dated 20th February, 2020 in W.P.(C) Nos.24139 of 2014, 20515 of 2014 and 562 of 2015 as well as the order dated 5th November, 2020 in RVWPET No.201 of 2020 and orders dated 9th November, 2020 in RVWPET Nos.202 and 203 of 2020 are hereby set aside. 32. The writ appeals are allowed, but in the circumstances, with no order as to costs. 33. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court’s website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court’s Notice No.4587, dated 25th March, 2020 as modified by Court’s Notice No.4798, dated 15th April, 2021.
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