SUDARSHAN ROUT Vs. COMMISSIONER CUM SECRETARY TO

JUDGEMENT

(1.) In this writ application, the Petitioner has prayed to quash his retrenchment order under Annexure-6 and direct the Opp. Parties to treat him as continuing in service and grant all consequential and financial benefits.

(2.) The case of the Petitioner is that on 26.09.1978 he was appointed as Work-Charged Helper under the Executive Engineer, F.M. Division, Rengali Dam Project and on 21.5.1981 he was promoted to the post of Wireman Grade-III. While working as such, he was transferred and posted as such in the year 1989 under the Executive Engineer, Rehabilitation Division, S.I. Project, Laxmiposi. On 25.09.1990, he was given adhoc promotion to the post of Electrician Grade-II which was extended from time to time and finally on 02.12.1993 he was promoted as Electrician Grade-II under the Work Charged establishment. It is further stated by the Petitioner that in the year 1965 the State Government in the Finance Department passed a resolution as per Annexure-2 deciding to absorb Work-Charged employees in corresponding posts created in the regular establishment of different Departments of the Government, subject to certain conditions. Again on 30.04.1983, the Government issued letter (Annexure-3) to the Engineer-in-chief, Irrigation reiterating the general principles of conversion of posts in the Work-Charged establishment to regular establishment where the posts in the Work-Charged establishment continued for five years from the date of creation and were likely to continue in future for works of permanent nature. Pursuant to directives of the Supreme Court, the High Court and the Administrative Tribunal, the Government also passed a resolution on 15.05.1997 (Annexure-5) formulating certain norms and conditions to absorb workers like the Petitioner under regular establishment. In spite of such resolutions passed from time to time, the Opp. Parties have not acted upon the same. It is the further case of the Petitioner that while working as Electrician Grade-II in the Work-Charged establishment, he was retrenched with effect from 31.03.2003 as a surplus worker vide Order Dated 28.3.2003 under Anenxure-6. It is alleged by him that the retrenchment order has not yet been communicated to him, nor has he received the same, and that he has not been paid one month's pay and retrenchment compensation or gratuity as required Under Section 25F of the Industrial Disputes Act (in short, 'the Act), though in the retrenchment order he has been asked to receive one month's pay in lieu of one month notice. It is also stated that the mandatory provision of Section 25N of the Act has also not been complied with by the Opp. Parties while retrenching the Petitioner. It is further stated that provision of 25G of the Act which lays down the principle of 'last come first go' has not been followed while retrenching the Petitioner, inasmuch as Work-Charged employees, namely, Basanta Ku. Swain and Budhia Samal, who are junior to the Petitioner have been retained in service. It is also stated that some N.M.R. employees have been retained whereas the Petitioner has been illegally retrenched, though the N.M.R. employees should have been retrenched first.

(3.) The Opp. Parties have filed a counter affidavit wherein it is admitted that the Petitioner was appointed as Helper on 26.09.1978. It is, however, stated that the post of Wireman is not a promotional post of Helper. While the former involves a different nature of job for which technical knowledge and experience is necessary, post of Helper does not require any such thing. It is stated that though the initial appointment of Basanta Kumar Swain as Helper was subsequent to Petitioner's appointment as helper, while considering both of them for appointment as Wireman, Basanta Kumar Swain was found suitable and accordingly appointed as Wireman. Grade-III with effect from 29.01.1981, whereas the Petitioner was appointed as Wireman Grade-III on 21.5.1981 and, therefore, Basanta Kumar Swain became senior to the Petitioner in the gradation of Wireman Grade-III and was accordingly shown in the common seniority list. Subsequently, though both of them were promoted from Wireman Grade-III to Electrician Grade-II on the same day, i.e., on 02.12.1993, their seniority was maintained in accordance with the position they were occupying in the gradation list of Wireman Grade-III. Though the Petitioner was initially given adhoc promotion to Electrician Grade-II with effect from 25.09.1990, which was extended up to 08.06.1991, he had been degraded to the post of Wireman Grade-III. Thereafter, he was again promoted to the post of Electrician Grade-II on 02.12.1993 along with Basanta Kumar Swain, who has accordingly been placed above the Petitioner in the gradation lists as per Annexures-D/3 and A/3. Similarly, Budhia Samal, who was appointed along with the Petitioner on the same day as Helper and also as Wireman Grade-III has all along been shown as senior to the Petitioner from the beginning and he having also been promoted to the post of Electrician Grade-II along with the Petitioner on the same day, the previous seniority is accordingly maintained. It is stated that the seniority lists have never been challenged by the Petitioner. With respect to the retrenchment of the Petitioner, it is stated in the counter affidavit that the retrenchment order was issued to the Petitioner asking him to receive one month's notice pay and the retrenchment benefits on 31.03.2003, from which date he was retrenched. He was offered a Banker's cheque dated 31.03.2003 for Rs. 1,57,976 (Annexure-C/3) towards his retrenchment dues including one month notice pay but the Petitioner refused to accept the retrenchment and other benefits offered in the shape of the Banker's cheque. Therefore, it is contended that there was no violation of requirement of Section 25F of the Act. It is also stated that the Government Resolutions referred to by the Petitioner were never implemented because of the financial stringency of the State Government, for which no post in the regular establishment was sanctioned and created for absorption of Work-Charged employees. It is stated that because of the financial stringency, the Government adopted austerity measure (communicated vide letter No. 10954/F dated 14.03.2001) and decided to retrench the surplus N.M.R. and Work-Charged personnel, who were junior in their respective category. Accordingly, Opp. Party No. 2 sent a list of junior surplus workers as per common seniority list of Work-Charged employees of Major Irrigation Projects maintained by him with instruction to retrench the surplus workmen with effect from 31.03.2003 on the basis of principle of 'last come fjrst go'. It is also stated that N.M.R. workers and Work-Charged employees belong to completely separate and distinct establishments. Seniority of employees in one establishment cannot be counted or compared with the other establishment. The Petitioner being the junior-most surplus worker in his category in the Work-Charged establishment, he has been retrenched. Therefore, there is no violation of the principle of 'last come first go' and the provision of Section 25G of the Act.