Orissa High CourtMd Siraj vs Ircon International Ltd And Others on 15 September, 2015Author:B.R.SarangiBench:B.R.SarangiORISSA HIGH COURT: CUTTACK

                              OJC No. 15274 OF 1997

         In the matter of an application underArticles 226& 227of the
         Constitution of India.
                                -----------------------------

         Md. Siraj                                    .........     Petitioner
                                      - versus -

         Ircon International Ltd. & others             .........    Opp. Parties


                For Petitioner   :     Mr. R.K. Rath, Sr. Advocate

                For Opp.Parties :      M/s. Sabitri Ratho,
                                             (Opposite Party nos. 1 and 2)

         PRESENT:

                  THE HONOURABLE DR. JUSTICE B.R.SARANGI


            Date of hearing: 31.08.2015      |   Date of Judgment: 15.09.2015


Dr. B.R.Sarangi, J.The petitioner, who was working as a Laboratory

         Assistant in the Office of the Ircon International Ltd., a Government

         of India undertaking, Ministry of Railways, has filed this application

         seeking to quash the order dated          10.07.1997 vide Annexure-7,

         accepting the voluntary resignation submitted by the petitioner and

         order dated 30.09.1997 vide Annexure-9 releasing the petitioner

         from service and further seeking for a direction to regularize his

         service with effect from the date the services of his juniors have been2regularized pursuant to Annexure-11-B and Annexure-11-C, the

Office Order Nos. 456/2003 and 483/2003 respectively.2.           The epitome of facts of the case, in hand, is that the

petitioner entered into service on 26.03.1985 on daily rated basis as

a Laboratory Assistant. He having continued as such till 21.10.1986,

was granted ad hoc scale w.e.f. 21.10.1986. While he was posted at

Bhubaneswar under opposite party no.2, he was communicated with

orders dated 10.07.1997 and 30.09.1997 by which he was compelled

to take voluntary retirement from service. The petitioner while

posted at Mathura in the State of Uttar Pradesh, having faced a lot of

harassment and humiliation submitted an application for voluntary

retirement on 22.03.1996 in Annexure-1, which was not accepted by

the opposite party no.1. In other words, the same was rejected vide

order dated 09.04.1996 specifically indicating that the petitioner is

not entitled to seek voluntary retirement as he has not completed 10

years of service to opt for voluntary resignation floated by opposite

party no.1. On 24.11.1995, the opposite party no.1 floated another

Voluntary Resignation Scheme in which it was specifically mentioned

that ad hoc employees having 10 years or more service as on

31.10.1995 can seek for voluntary resignation by making a written

request vide Annexure-3. Accordingly, the petitioner sought for

voluntary resignation pursuant to the above scheme and requested

for acceptance of the resignation latest by 31.10.1997 pursuant to3his application dated 23.12.1996 in Annexure-4. As per the letter of

the Advisor dated 19.06.1997, GM/HRM was intimated that the

petitioner        has    complained     that   he     has    applied   for    voluntary

resignation        under     Ircon's    Voluntary       Retirement      Scheme      on

23.12.1996 and his application was forwarded by Delhi-Mathura

Project on 26.03.1997 to the Corporate Office. The petitioner

expressed his keenness for taking advantage of the scheme and

wanted to know whether his resignation is being considered and

therefore he show law into the complained and advise him adjust . In

response to the same, note has been given "the category of

Laboratory Assistant is not covered under VRS Scheme. Hence the

request      of    Mohd.     Siraj    for   VRS      could   not   been      accepted".

Accordingly, it was directed that the same should be intimated on

Fax to CPM/Cal for information to the petitioner. Accordingly, by

memo dated 25.03.1997, the behavior was intimated that Corporate

office has recently decided that the staff who have completed five

years or more service on 31.12.1996 shall                     submit application for

voluntary resignation from IRCON service. Accordingly, the petitioner

vide letter dated 10.07.1997(Annexure-7)                     was intimated that his

VRS application submitted on 23.12.1996 has been accepted vide

Corporate Office Order No. 601/97 dated 07.07.1997. The petitioner

filed an application on 01.09.1997 for withdrawal of voluntary

resignation        and    stated     that   Office    Order    No.     601/97    dated407.07.1997 be treated as cancelled and he be allowed to continue in

service of Ircon International Ltd.. Instead of considering the said

letter in Annexure-8, he has been intimated vide Annexure-9 dated

30.09.1997 that since his application for voluntary retirement has

been accepted by the competent authority vide Corporate Office

Order No. 601/97, he is relieved from service w.e.f. 30.09.1997 and

it was intimated that all dues other than CPF, GIS shall be paid by

the Office duly drawn from Calcutta Office. Assailing the said order,

the petitioner approached this Court by filing the present application

stating that since his VRS has not been accepted vide Annexure-5,

which has been communicated to him, he is continuing in service.

Subsequently acceptance of his application for voluntary retirement

by reducing the period from 10 years to 5 years in Annexure-7 is

absolutely misconceived one and communication made thereof

cannot sustain in the eye of law and consequential direction for

release of benefit also cannot sustain. While entertaining the writ

application, this Court passed an interim order on 10.11.1997

directing stay of Annexures-7 and 9 for a period of four weeks and

the said interim order has been extended from time to time. Opposite

party nos.1 and 2 appeared and filed Misc. Case No. 4366 of 1997 for

vacation of interim order. This Court while vacating the interim order

directed for listing the matter for final disposal. But in the meantime,

there was subsequent development in view of the fact that on523.04.2003       a    committee     was   constituted    to    consider   the

regularization of the services of the employees where the petitioner's

name finds place in serial no. 15 pursuant to Annexure-11-A dated

23.04.2003. But subsequently, though the services of his juniors

have been regularized vide Annexure-11-B and Annexure-11-C,

Office   Order       Nos.   456/2003   and    483/2003    respectively,   the

petitioner's service has not been regularized on the plea that his VRS

has been accepted by the authority in Annexure-7.3.            Mr. R.K. Rath, learned Senior Counsel for the petitioner

strenuously urged that the petitioner having communicated with the

fact that he has not completed 10 years of service, his application for

voluntary resignation has not been accepted vide Annexure-5,

subsequent steps taken for acceptance of VRS reducing the eligibility

period from 10 years to 5 years without any application therefor, the

action of the authorities is arbitrary and unreasonable and therefore,

he seeks for quashing of Annexures- 7 and 9. He further seeks for

regularization of service as his name has been recommended vide

Annexure-11-A by the committee constituted for regularization of

service from the date the services of his juniors have been

regularized      pursuant     to   Annexure-11-B    and       Annexure-11-C,

respectively. To substantiate his case, he has relied onThe

Manager, Govt. Branch Press and another V. D. B. Belliappa,AIR 1979 SC 429             and Om Prakash Goel V. The Himachal6Pradesh Tourism Development Corporation Ltd., Shimla and

another, AIR 1991 SC 1490.4.           Ms. S. Ratho, learned counsel for opposite party nos. 1

and 2 submitted that pursuant to memo dated 25.03.1997 in

Annexure-6 opposite party no.1 revised the criteria for filing

application under the VRS Scheme to the effect that those workmen

who have completed five years or        more service on 31.12.1996

would be eligible to avail the benefits. Consequently, the application

submitted by the petitioner in Annexure-4 dated 23.12.1996 has

been accepted. With regard to maintainability of the writ application,

she urged that since disputed questions of fact fall underSchedule-

III of the Industrial Dispute Act, 1947and there is availability of

alternative remedy under the statute, instead of availing the said

forum under theIndustrial Disputes Act, the present writ application

is not maintainable. She further urged that due to shrinkage/closure

of the activities of the project, the Company resorted to terminate

the service of surplus employees on payment of retrenchment

compensation,   gratuity,   bonus   payment    in   lieu   of   notice   in

accordance with provisions of law. Since the petitioner has been

engaged in a project work, with the closure of the Project, his

application for VRS has been accepted and therefore, no illegalities or

irregularities have been committed by the authority in accepting the

VRS submitted by the petitioner by reducing the eligibility criteria7from 10 years to 5 years. It is stated that since the project has been

closed, employees who have been engaged under the project, have

no legal right to seek continuance in employment or even to seek

employment in other projects of the said Company.To substantiate

her contention, she has relied upon the judgments of the apex Court

in Hindustan Steel Works Construction Ltd., etc. etc. v.

Hindustan Steel Works Construction Ltd. Employees' Union,

Hyderabad and another etc. etc., AIR 1995 SC 1163, Lal

Mohammad and Ors. v. Indian Railway Construction Co. Ltd.

and Ors.,AIR 2007 SC 2230 and Secretary, State of Karnataka

and Ors. v. Umadevi and Ors., AIR 2006 SC 1806.5.           From the facts pleaded above, the following questions

emerge for consideration.(i)    Whether the petitioner's resignation vide Annexure-4

            dated 23.12.1996 still survived for consideration by the

            authority by accepting the same in Annexure-7 dated

            10.07.1997 and giving effect to vide Annexure-9 dated

            30.09.1997, respectively?(ii)   Whether the petitioner is entitled to get regularization of

            service as claimed from the date his juniors have been

            regularized pursuant to Annexure-11-B and Annexure-11-

            C respectively?8(iii)   To what relief the petitioner is entitled to?6.            As regards question no.(i), it appears that admittedly,

the petitioner was initially appointed on daily rated basis as a

Laboratory Assistant under the opposite parties on 26.03.1985 and

he worked as such till 20.10.1986. Thereafter, he was allowed to

continue on ad hoc scale w.e.f. 21.10.1986. While he was continuing,

opposite party no.3 issued Circular No. IRCON/Estt/VRS dated

24.11.1995 floating voluntary resignation scheme, pursuant to which

the petitioner submitted his application for voluntary retirement on

22.03.1996 giving effect from 10.04.1996. Accordingly, the SPM/DIN

recommended the case of the petitioner for acceptance of VRS and to

release him by 10.04.1996 pursuant to Annexure-1. But the same

has not been accepted vide letter dated 07.04.1996 stating that on

scrutiny of service records, it appears that the petitioner had served

the IRCON w.e.f. 26.03.1985 to 20.10.1986 on daily rated basis (as

casual) and was awarded ad hoc scale w.e.f. 21.10.1986. As the

service rendered by the petitioner on daily rated basis is not to be

counted as qualifying service for computing 10 years of service for

the eligibility for opting the Scheme for voluntary resignation, he was

not eligible for the same. Again another Voluntary Resignation

Scheme was introduced vide Circular dated 24.11.1995 wherein it

was stated that the same Scheme will be applicable to ad hoc

employees having 10 years or more service as on 31.10.1995 and it9is further stated that any employee may seek voluntary resignation

by making written request. Pursuant to such Circular the petitioner

submitted his application vide Annexure-4 dated 23.12.1996 stating

that his resignation be accepted latest by 31.10.1997 as he may opt

for VRS before the said date with an undertaking that he will not

withdraw his request for voluntary retirement at a later date. Since

no action was taken on such application, he met the Advisor/OM,

who on consideration of the grievance made by the petitioner,

recommended the case of the petitioner vide Annexure-5 stating that

his   application   was   forwarded   by   Delhi-Mathura     project    on

26.13.1993 to the Corporate Office. It is further stated that the

petitioner expressed his keenness for taking advantage of the

Scheme and wanted to know whether his resignation is being

considered. Accordingly, the Advisor/OM requested the GM/HR to

look into the grievance of the petitioner and advise him accordingly.

In Annexure-5, there is an office notice where it has been

categorically stated as follows :"The category of Lab.Asst. is not covered under VRS Scheme.
      Hence, the request of Mohd.Siraj for VRS could not be accepted.Sd/- 30.6.1997"In the said note, direction has been given to communicate the same

through FAX to CPM/Cal for information of the petitioner on

5.7.1997. Accordingly, the petitioner has been intimated that as VRS

submitted in Annexure-4 dated 23.12.1996 has not been accepted by10the authority as category of Lab.Asst. is not covered under the VRS

scheme. Therefore, for all times to come, the petitioner's resignation

has not been accepted. When the matter thus stood, on 25.3.1997

the scheme was modified to the extent that the staffs who have

completed five years or more service as on 31.12.1996, may submit

their voluntary resignation from IRCON service. Though the petitioner

has   not   submitted   any   application   and   his   application   dated

23.12.1996 in Anexure-4 has been rejected vide Annexure-5, the

order impugned in Annexure-7 dated 10.7.1996 has been passed

stating that the authorities have accepted the application for

voluntary resignation pursuant to office order No.601/97 and directed

the petitioner to receive the consequential benefits pursuant to

Annexure-9 dated 20.9.1997. Once the application submitted in

Annexure-4 dated 23.12.1996 has not been accepted as the VRS is

not applicable to the Lab. Asst. vide Annexure-5 and the same has

been communicated to the petitioner, the authorities cannot and

could not act upon the same by accepting the resignation vide

Annexure-7 and consequentially direct for receipt of the benefits in

Annexure-9. The petitioner having been communicated that his

application dated 23.12.1996 in Annexure-4 has not been accepted,

the said application is no more available to be considered for

acceptance vide Annexure-7 and as such Annexure-7 and the

consequential order for release of benefits in Annexure-9 cannot11sustain in the eye of law. The petitioner might have been appointed

for a project work by the opposite parties and on completion of the

same, the petitioner's service may not be required, but that ipso

facto cannot automatically be taken into consideration for acceptance

of the VRS application submitted in Annexure-4 which has already

been disposed of vide Annexure-5 by not accepting the same as the

scheme is not applicable to the post held by the petitioner, namely,

Lab. Asst.7.            Learned counsel for opposite party nos.1 and 2 has

placed reliance on Hindustan Steel Works Construction Ltd.

(supra) where the apex Court has held that once the project is

closed, the employees, who are engaged under the project has no

legal right to seek continuance in employment or even seek

employment under any other project of the same company. Much

reliance is placed on paragraph 16 of the said judgment. The same

view has also been expressed by the Apex Court in Lal Mohammad

(supra). The ratio decided in those cases has been considered

taking into account the facts of the respective cases.The Constitution

Bench of the apex Court inState of Orissa v. Sudhansu Sekhar

Misra, AIR 1968 SC 647, has held as follows:-"A decision is only an authority for what it actually decides.
             What is of the essence in a decision is its ratio and not every
             observation found therein nor what logically follows from the
             various observations made in it. It is not a profitable tax to12extract a sentence here and there from a judgment and to
             build upon it. "Therefore,    the   ratio   decided   in   Hindustan   Steel   Works

Construction Ltd. (supra) and Lal Mohammad (supra) has no

basis to the present context.8.                  In view of such position, since the application

submitted by the petitioner on 23.12.1996 having been considered

and not accepted by the authority vide Annexure-5, the same is no

more available to be reconsidered to enable the authority to pass an

order in Annexures-7 and 9. Question No.(i) is answered accordingly.9.            So far as question No.(ii) is concerned, it is seen that

due to non-acceptance of VRS, the petitioner was continuing in

service when the opposite parties 1 and 2 constituted a committee to

regularize the services of ad hoc / contract staff looking into their

service history as available in the personal file and also the service

book. A list of 87 candidates was prepared by the authorities vide

Annexure-11-A for consideration of their regularization by the

Committee, in which the name of the petitioner finds place at

Sl.No.15, but the services of the petitioner have not been regularized

though juniors to him, who have completed 10 years of service in a

scale of pay as on 30.6.2003 and are free from DAR/Vigilance, have

been regularized in the service of the company w.e.f. 1.7.2003

against the post and in the pay scale indicated against each and the13regularization was also directed to be effective only on assuming

charge of the post in the new place of posting mentioned against

each of the name and as such their salary for the month of July,

2003 and onwards will be drawn at the new place of posting. In the

said order it is also stated that they will be governed by the service

conditions, conduct and discipline rules as applicable to the regular

employees of the company and it is further directed that they will

remain on probation for a period of two years from 1.7.2003 and

thereafter their services shall be regularized. Vide office orders

No.456/03 and 483/03 in Annexures-11-B and 11-C respectively,

though the services of the juniors to the petitioner have been

regularized, the services of the petitioner have not been regularized.

No reason has been assigned for non-regularization of the services of

the petitioner though he had completed 10 years of ad hoc service

and as such, his case was placed before the Committee duly

constituted by the authority for regularization.10.InThe Manager, Govt. Branch Press(supra) the

apex Court has held that if the services of a temporary Government

servant are terminated arbitrarily, and not on the ground of his

unsuitability, unsatisfactory conduct or the like which would put him

in a class apart from his juniors in the same service, a question of

unfair discrimination may arise, notwithstanding the fact that in

terminating his service, the appointing authority was purporting to14act in accordance with the terms of the employment. Where a charge

of unfair discrimination is levelled with specificity, or improper

motives are imputed to the authority making the impugned order of

termination of the service, it is the duty of the authority to dispel that

charge by disclosing to the Court the reason or motive which

impelled it to take the impugned action and therefore, fairness

founded on reason is the essence of the guarantee epitomised in

Arts. 14 and 16 (1) of the Constitution of India.11.InOm Prakash Goel(supra) in paragraph 6 the apex

Court has held as follows:"In this context, the learned counsel also questioned the
            termination order from another angle. In that order it is
            mentioned that the services of the petitioner are no longer
            required, therefore, they are terminated. But from the
            record it is clear that juniors to the petitioner are retained
            and they are continuing in service. In the affidavit it is
            clearly mentioned that juniors whose names are given
            there are retained in service in violation of Arts. 14 and 16
            of the Constitution. In the counter-affidavit only a vague
            reply is given simply stating that the averments made by
            the petitioner are not correct.InK. C. Joshi v. Union of
            India, (1985) 3 SCR 869: (AIR 1985 SC 1046) it is
            observed that if it is discharged simpliciter, it would be
            violative ofArt. 16, because a number of store-keepers
            junior to the appellant are shown to have been retained in
            the service".Likewise in Jarnail Singh's case (AIR 1986 SC
            1626) it was observed as under (at p. 1635):"In the instant case, ad hoc services of the
                  appellants have been arbitrarily terminated as
                  no longer required while the respondents have
                  retained other Surveyors who are juniors to
                  the appellants. Therefore, on this ground also,
                  the impugned order of termination the
                  services of the appellants are illegal and paid
                  being in contravention of the fundamental15rights guaranteed under Arts. 14 and 16 of
                   the Constitution of India."After a careful perusal of the record we are satisfied that
               the juniors to the petitioner are retained. Therefore on
               this ground also the termination order is liable to be
               quashed."12.            In view of the fact that pursuant to Annexures-11-B

and 11-C since juniors to the petitioner have been allowed to

continue in service, the petitioner's service has to be regularized and

he should be extended with all the service benefits at par with his

juniors against the post held by him and he should be extended with

all the consequential benefits as admissible to the post. The

contention raised by the learned counsel for the opposite parties 1

and 2 with regard to the applicability ofUma Devi(supra), this

Court is of the considered view that the ratio decidedin that caseis

not applicable to the present case. Admittedly, juniors have been

given regularization and therefore, the petitioner is entitled to get

such benefits as claimed by him. Question No.(ii) is answered

accordingly.13.            Considering the above facts and circumstances and the

law governing the field, the orders passed in Annexures-7 & 9 are

hereby quashed and the opposite parties 1 and 2 are directed to

regularize the services of the petitioner from the date his juniors

have been regularized pursuant to Annexures-11-B and 11-C and the

same be extended to him with all the consequential benefits within a16period of three months from the date of communication of this

judgment.14.         The writ application is allowed accordingly. No order as

to costs....................................Dr. B.R.Sarangi, J.Orissa High Court, Cuttack
The 15th September, 2015/Ajaya/PKSahoo