BISWANATH MOHANTY Vs. STATE OF ORISSA

JUDGEMENT

(1.) IN the present writ application petitioner has prayed for determining the remuneration in accordance with Clause -19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.

(2.) FACT in brief is as follows; Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970 -1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525 -1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/ -per month in the pre -revised scale and 10% of his grade pay subject to maximum of Rs. 250/ - per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure -3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class -1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause -3 of the deputation order vide Annexure -3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause -19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non -payment of remuneration by the IPICOL, the service book of the petitioner had not been made up -to -date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/ - per annum as an open market candidate.

(3.) OPPOSITE party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter -8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure -5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure -5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.