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Mamata Manjari Mohanty v/s State of Odisha & Others


Company & Directors' Information:- MANJARI CORPORATION PRIVATE LIMITED [Active] CIN = U74999DL1989PTC036688

    WPC (OAC) No. 3077 of 2014

    Decided On, 17 August 2021

    At, High Court of Orissa

    By, THE HONOURABLE DR. JUSTICE B.R. SARANGI

    For the Petitioner: M.K. Mohanty, Advocate. For the Respondents: H.K. Panigrahi, Addl. Standing Counsel.



Judgment Text

1. The petitioner, by means of this writ petition, seeks to quash the order of retrenchment dated 29.04.2011 in Annexure-10, and to issue direction to the opposite parties to regularize her service under the work charged establishment, by reinstating her in service and fixing her seniority, and to pay all the consequential financial and service benefits as due and admissible to her in accordance with law.2. The factual matrix of the case, in precise, is that the petitioner was engaged as NMR Mate (Typist) under the Executive Engineer, Mahanadi Barrage Division, Cuttack on 21.03.1985. While she was discharging her duty continuously, her service was terminated by the Executive Engineer, Mahanadi Barrage Division-opposite party no.4 on 01.03.1989 violating the provisions contained under Section 25-F and 25-G of the Industrial Disputes Act, 1947. Consequentially, the petitioner raised industrial dispute before the appropriate Government and accordingly the Government of Odisha in Labour and Employment Department, vide order dated 15.10.2001, referred the dispute for adjudication by the Presiding Officer, Labour Court, Bhubaneswar, which was subsequently transferred to be adjudicated by the Presiding Officer, Industrial Tribunal, Bhubaneswar, vide order dated 04.04.2008, with following reference:-"Whether the termination of services of Smt. Mamata Manjari Mohanty, NMR Mate (Typist) by the Executive Engineer, Mahanadi Barrage Division, Cuttack is legal and/or justified, if not what relief Smt. Mohanty is entitled to?"2.1 When the matter was pending before the Industrial Tribunal, Bhubaneswar for adjudication, Government of Odisha, vide notification no.7323 dated 28.02.2009, took a decision to bring the NMRs, who were recruited prior to 12.04.1993, to the work charged establishment w.e.f. 01.03.2009. Thereafter, Government of Odisha in Water Resources Department, vide order no.17229 dated 19.06.2009, directed the Engineer-in-Chief, Water Resources to bring the NMR employees recruited prior to 12.04.1993 to the work charged establishment. Consequentially, the Engineer- in-Chief, Water Resources, vide order no.8968 dated 20.07.2009, directed the Superintending Engineer, Drainage Circle, Cuttack to implement the order of the Government by bringing the NMR employees, who were engaged prior to 12.04.1993, to the work charged establishment with effect from 01.03.2009. Thereafter, the Superintending Engineer, Drainage Circle, Cuttack, vide order no.3826 dated 25.08.2009, brought the NMR employees recruited prior to 12.04.1993 to the work charged establishment with effect from 01.03.2009. Thereafter, the Presiding Officer, Industrial Tribunal, Bhubaneswar, vide award dated 24.02.2010, answered the reference in I.D. Case No.256 of 2008, paragraphs-8 and 9 of which read thus:-"8. It may be stated here at the cost of repetition that the management has not complied with the mandatory requirement of Section 25-F of the Act while terminating the employment of the workman nor did it prove that the termination of employment of the workman was due to her misconduct. Hence, the action of the management is held to be neither legal nor justified.9. In view of the discussions made in the foregoing paragraphs, the workman is held entitled to reinstatement in service with 50% back wages. The management is directed to implement the Award within a period of two months hence."2.2 In terms of the above award, Government of Odisha in Water Resources Department, vide order no.19021 dated 29.07.2010, directed the Engineer-in- Chief, Water Resources to reinstate the petitioner in service with 50% back wages and thereafter to retrench her by following mandatory provisions of statute. Consequentially, vide order dated 21.08.2010, the petitioner was reinstated in service and allowed to work in the office of the Executive Engineer, Mahanadi Barrage Division, Cuttack until further orders and also paid the back wages from 01.03.1989 to 26.08.2010. Pursuant to such order, the petitioner joined in service in the office of the Executive Engineer, Mahanadi Barrage Division on 27.08.2010. Thereafter, the Superintending Engineer, vide order no.4823 dated 30.09.2010, intimated the Engineer-in-Chief that the NMRs, who are junior to the petitioner, are continuing in service and they have been brought to the work charged establishment and some of them have also been brought over to the regular establishment. But the Government, vide order no.28219 dated 10.11.2010, directed the Engineer in Chief to retrench the petitioner by following due procedure and mandatory requirement of the statute. Thereafter, the Engineer in Chief, vide order dated 01.01.2011, directed the Superintending Engineer to retrench the petitioner from service. As a consequence thereof, the Superintending Engineer, vide office order dated 29.01.2011, retrenched the petitioner with immediate effect, but, however, without complying the mandatory provisions under Section 25-F of the Industrial Disputes Act, 1947, and consequentially on 30.04.2011 a cheque amounting to Rs.4326/- was offered to the petitioner, which she did not accept.Aggrieved by the above action of the authority, the petitioner filed O.A. No. 3077 (C) of 2014 before the Odisha Administrative Tribunal, Cuttack Bench, Cuttack and on abolition of the tribunal, the same has been transferred to this Court and renumbered as WPC (OAC) No.3077 of 2014.3. Mr. M.K. Mohanty, learned counsel for the petitioner contended that the order of retrenchment dated 29.04.2011 under Annexure-10, having been passed without following the provisions contained under Sections 25-F and 25-G of the Industrial Disputes Act, 1947, cannot sustain in the eye of law. It is further contended that the petitioner, who was engaged on 21.03.1985 as an NMR Mate (Typist), was retrenched from service on 01.03.1989, and such order of retrenchment, having been passed without following the provisions contained under Section 25-F of the Industrial Disputes Act, 1947, was held to be neither legal nor justified by award dated 24.02.2010 passed by the Industrial Tribunal in I.D Case No.256 of 2008 and the petitioner was directed to be reinstated in service with 50% back wages, pursuant to which she joined in service on 27.08.2010 and continued to discharge her duty. In such circumstance, since the NMR employees, who were engaged prior to 12.04.1993, were brought to the work charged establishment with effect from 01.03.2009, the petitioner should have been brought over the work charged establishment, as she had been engaged prior to 12.04.1993. Besides, since the Superintending Engineer, vide letter dated 30.09.2010, intimated the Engineer-in-Chief that the NMRs who are junior to the petitioner are continuing in service, the petitioner should have been brought over to the work charged establishment and allowed to continue in service. It is further contended that some of the juniors to the petitioner, having been brought over to the regular establishment, she should have been brought over to the regular establishment.His further contention is that according to the provisions contained in Section 25-F(b) at the time of retrenchment the workman should be paid compensation, which shall be equivalent to 15 days average pay for every completed year or continuous service. Though the petitioner has worked for near about 16 years, only Rs.1545/- has been paid towards the compensation. So far as retrenchment due is concerned, a cheque bearing no.875312 amounting to Rs.4326/- was offered on 30.04.2011, but petitioner did not accept the same. As per the provisions contained under Sections 25-G of the Industrial Disputes Act, 1947 the employer shall ordinarily retrench the workman who was the last person to be employed in the category, unless for reasons to be recorded the employer retrenches any other workman. It is contended that a number of junior workmen are working in the establishment, so the last come first go principle is very much applicable in the present case. Thereby, the order of retrenchment passed by the authority is in gross violation of the provisions contained under Section 25-G of the Industrial Disputes Act. At last but not the least, it is contended that though the order of retrenchment was passed on 29.04.2011, but one month's wages in lieu of notice, as contemplated under Section 25-F, was offered to the petitioner on 30.04.2011 and, as such, the same being not simultaneous one, the impugned order of retrenchment cannot sustain in the eye of law.To substantiate his contention, he has relied upon the judgments of the apex Court in the cases of National Iron and Steel Co. Ltd v. State of West Bengal, AIR 1967 SC 1206; Syed Azam Hussaini v. Andhra Bank, AIR 1995 SC 1352; Incharge Government Hide Flaying Centre v. Rama Ram and another, (2003) 9 SCC 163; and Gouri Shanker v. State of Rajasthan, (2015) 13 SCC 754.4. Mr. H.K. Panigrahi, learned Addl. Standing Counsel appearing for the State, supporting the order of retrenchment passed by the authority in Annexure-10, contended that since the petitioner alleged violation of Industrial Disputes Act, 1947, this petition is not maintainable. It is further contended that when the order of retrenchment dated 29.04.2011 in Annexure-10 was passed as per the provisions contained in Section 25-F of the Industrial Disputes Act, 1947, the petitioner was offered on 30.04.2011 one month's pay, in lieu of one month notice, amounting to Rs.4326/-, which the petitioner refused. Thereby, the contention raised, that Section 25-F has not been complied with, cannot sustain. As regards the claim of the petitioner that she had joined as NMR Mate (Typist) on 21.03.1985 and, in view of the Government notification dated 28.02.2009, she should have been brought over to the work charged establishment, as she had been employed on or before 12.04.1993, and, in view of the letter dated 30.09.2010 of the Superintending Engineer, since her juniors have been allowed to continue in service, she should have been allowed to continue, it is further contended that vide order dated 10.11.2010 Government directed the Engineer-in-Chief to retrench the petitioner by following due procedure and mandatory requirement of the statute and, as such, in compliance of the same, the order impugned having been passed, no illegality or irregularity has been committed by the authority so as to warrant interference by this Court. Consequentially, he seeks for dismissal of the writ petition.5. This Court heard Mr. M.K. Mohanty, learned counsel for the petitioner and Mr. H.K. Panigrahi, learned Addl. Standing Counsel for the State by hybrid mode and perused the records. Since pleadings have been exchanged between the parties, with the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission.6. On the basis of factual matrix, as delineated above, and rival submissions made by learned counsel for the parties, the moot question that falls for consideration by this Court is, whether the order impugned in Annexure-10 dated 29.04.2011 has been passed in due compliance of the provisions contained under Sections 25-F and 25-G of the Industrial Disputes Act, 1947.7. Admittedly, the petitioner was engaged as NMR Mate (Typist) under the Executive Engineer, Mahanadi Barrage Division, Cuttack on 21.03.1985, but her service was terminated on 01.03.1989 without complying the provisions contained under Section 25-F of the Industrial Disputes Act, 1947, as a result of which she raised industrial disputes which was registered as I.D. Case No.256 of 2008 and, after due adjudication, the Industrial Tribunal, Bhubaneswar directed the management to reinstate the petitioner with 50% back wages, as there was non-compliance of the provisions contained under Section 25-F of the Industrial Disputes Act, 1947. In compliance thereof, the petitioner was reinstated in service along with the back wages, as directed by the Industrial Tribunal. But subsequently, she was again terminated from service, vide impugned order dated 29.04.2011 under Annexure-10, on the basis of the direction issued by the Government to the Engineer-in-Chief, Water Resource, vide Annexure-8 dated 10.11.2010, by which it was directed to retrench the petitioner by following due procedure and mandatory requirement of the statute.8. For just and proper adjudication of the case, Sections 25-F and 25-G of the Industrial Disputes Act, 1947, being relevant, are extracted hereunder:-"25-F. Conditions precedent to retrenchment of workmen- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay [for every completed year of continuous service] or any part thereof in excess of six months; and(c) notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette].xxx xxx xxx"25-G. Procedure for retrenchment - Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman."9. A bare perusal of the aforementioned provisions would go to show that no workman employed in any establishment, who has been in continuous service for not less than one year under an employer, shall be retrenched by that employer until the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice, and that the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months. For such retrenchment a procedure has been envisaged that where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman. The above mentioned provisions are very clear and should be scrupulously followed while retrenching a workman from an establishment.10. The impugned order of retrenchment in Annexure-10 dated 29.04.2011, on the face of it, reveals that the petitioner has been retrenched from service with immediate effect, as her service was no more required under the organization due to reduction of work load and her retrenchment was expedient, and she would be paid one month pay in lieu of one month notice and other entitlements if any as per the provisions under Section 25-F of the Industrial Disputes Act, 1947. According to Section 25-F of the Industrial Disputes Act, 1947, as has been referred to above, a workman employed in any industry should not be retrenched until he/she been given one month's notice in writing indicating the reasons for retrenchment and the period of notice had expired, or the workman had been paid in lieu of such notice. The notice in this case bears the date "29th April, 2011" and the same was served on the petitioner on the very same day. Therefore, she was supposed to be paid one month's wages in lieu of notice of termination of her service on the very same day, i.e, "29th April, 2011". Admittedly, on 30.04.2011, the petitioner was offered one month's wages, in lieu of one month's notice, by way of cheque bearing no.875312, which she did not accept. Thereby, the provision of Section 25-F, which was incumbent on the part of the employer to comply by paying the workman wages in lieu of the notice period, has not been complied. That is to say, if she was asked to go forthwith, she had to be paid the wages at the time when she was asked to go and should not be paid on the subsequent date, i.e., 30.04.2011, rather it should be simultaneously paid. This view has been taken in M/s National Iron and Steel Co. Ltd., mentioned supra, which received supports from the observation made by the apex Court in Bombay Union of Journalists v. State of Bombay, AIR 1964 SC 1617.11. In Syed Azam Hussaini, mentioned supra, the apex Court held that retrenchment under Section 2(00) of the Industrial Disputes Act, 1947, could be done only in accordance with the provisions contained in Section 25-F of the Industrial Disputes Act, 1947 and since one month's wages in lieu of notice has not been paid at the time of such retrenchment and was paid subsequently, it amounts to non-compliance of Section 25-F of the Act and, as such, the termination is not legal.12. In view of such position, the contention raised by Mr. M.K. Mohanty, learned counsel for the petitioner, that the order of retrenchment dated 29.04.2011 under Annexure-10 and payment of wages in lieu of one month notice of retrenchment, which was offered on 30.04.2011 under Annexure-11, being not simultaneously one, cannot be construed as full compliance of Section 25-F of the Act, get ample corroboration from the materials available on record, and as such, has sufficient force. Thereby, in view of the proposition of law laid down by the apex Court, as discussed above, this Court holds that the impugned order of retrenchment cannot be allowed to stand, since there was sheer violation of the provisions contained under Section 25-F of the Act.13. So far as non-compliance of the provisions contained in Section 25-G of the Act is concerned, admittedly the petitioner was engaged on 21.03.1985 as NMR Mate (Typist) under the Executive Engineer, Mahanadi Barrage Division, Cuttack. Though she was retrenched from service on 01.03.1989, by virtue of the award dated 24.02.2010 passed by the industrial tribunal in I.D. Case No. 256 of 2008, she was reinstated in service with 50% back wages. In the meantime, in terms of the resolution passed by the Government, some of the juniors to the petitioner were brought to the work charged establishment, discriminating the petitioner though she was continuing. Thereafter, though the Superintending Engineer, vide letter dated 30.09.2010 intimated the Engineer-in-Chief that the juniors to the petitioner were continuing in service, without considering the same, the order of retrenchment was passed in Annexure-10 dated 29.04.2011 on the basis of instructions issued by the Government, on the ground that due to reduction of work load her retrenchment was expedient. In that case, the provisions contained under Section 25-G were to be followed scrupulously. Meaning thereby, the junior most person had to go allowing the senior to continue. Though the petitioner had been appointed prior to 12.04.1993 and she

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was a senior most NMR, she was to be brought over to the work charged establishment and subsequently to the regular establishment, instead of directing her to face retrenchment due to reduction of work load. Thereby, the provisions contained under Section 25-G have not been complied with. Consequentially, on that count also the order of retrenchment under Annexure-10 dated 29.04.2011 is also contrary to the provisions of the Industrial Disputes Act, 1947. This view gets ample support from the judgments of the apex Court in Incharge Government Hide Flaying Centre and Gauri Shanker, mentioned supra.14. In view of the factual matrix and propositions of law, as discussed above, this Court is of the considered view that the order dated 29.04.2011 in Annnexure-10 retrenching the petitioner from service with immediate effect cannot sustain in the eye of law, as the same has been passed without complying the provisions contained under Sections 25-F and 25-G of the Industrial Disputes Act, 1947. Consequentially, the order dated 29.04.2011 in Annexure-10 is liable to be quashed and hereby quashed. The opposite parties are directed to reinstate the petitioner in service and to bring over her to the work charged establishment forthwith, from the date her juniors have been brought over to the work charged establishment, in pursuance of the notifications dated 28.02.2009 and 19.06.2009 issued by the Government, and then bring over her to the regular establishment forthwith, if her juniors have been brought over to the regular establishment. Further, keeping in view the fact that the petitioner has been retrenched without following the prescribed procedure and, as such, the fault lies with the employer for such illegal retrenchment, and also being aware of the fact that the petitioner has not discharged her duty since 29.04.2011, this Court directs the opposite parties to pay 50% wages to the petitioner w.e.f. 29.04.2011 till she is reinstated in service. The above exercise shall be completed within a period of four months from the date of passing of this judgment.15. In the result, the writ petition is allowed. However, there shall be no order as to costs.
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