HIGH COURT OF ORISSA: CUTTACK W.P.(C) NO.474 OF 2003 In the matter of an application under Articles 226 and 227 of the Constitution of India. ----- Orissa Lift Irrigation Corporation Amin Sangha … Petitioner. -Versus- State of Orissa & others. … Opp. Parties. For Petitioner : M/s. J.Patnaik, A.A.Das, B.Mohanty, T.K.Patnaik S.Das & P.K.Nayak For Opp. Parties : M/s A.R. Naik & M/s S. Mohanty-I & S.K.Das-II (for opp. party No.2) ---------- P R E S E N T: THE HONOURABLE SHRI JUSTICE A.S.NAIDU AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of hearing: 16.02.2010 : Date of judgment: 16.04.2010 B.N.MAHAPATRA, J This writ petition has been filed by petitioner-Orissa Lift Irrigation Corporation Amin Sangha represented through its General Secretary challenging the actions of opp. party No.1-State of Orissa represented through its Commissioner-cum-Secretary, Water Resources Department and O.P. No.2-Orissa Lift Irrigation Corporation Limited (for short ‘the Corporation’) represented through its Managing Director in taking a decision to dispense with the work of Amins working in the Corporation 2. The facts and circumstances giving rise to the present writ petition are that the petitioner is a registered trade union and the Amins working under the Corporation are the members of the said union. The Corporation is a Government of Orissa Undertaking. After the transfer of L.I. points to Pani Panchayat, the working strength of the Corporation reduced considerably. Hence, on 13.09.2002, the Cabinet Sub-committee decided to restructure the Corporation. The Commissioner-cum-Secretary to Government vide its letter dated 26.10.2002 (Annexure-3) communicated to the Managing Director of the Corporation that as per the decision of the State Cabinet, the Government had decided to dispense with 7341 employees from the Corporation in the process of restructure of the Corporation. While retrenchment process was going on, as per the decision of the Government, a Voluntary Retirement Scheme (for short ‘VRS’) was floated and the employees were requested to exercise their option for the said purpose. Being dissatisfied with the above decision of the opp. parties, the petitioner filed the present writ petition with a prayer to issue Rule Nisi calling upon the opp. parties to show cause as to why the action of the opp. parties in dispensing with services of all the Amins working under the Corporation shall not be held as illegal, arbitrary and without any basis and the opp. parties shall not be directed to retain the Amins in service as has 2 been done in the case of others such as Electrical, Mechanical and Civil staff and to pass any other order(s) or direction(s) in favour of the petitioner. 3. Mr. J.Patniak, learned Senior Advocate appearing on behalf of the petitioner-Union vehemently argued that the actions of the opp. parties are illegal, arbitrary and unsustainable in law. Under the Chairmanship of the Secretary to Government of Orissa in the Irrigation Department attended by the Chairman of the Corporation, representatives of Civil Engineers’ Association and OLIC Diploma Engineers Association in a meeting held on 08.01.2004, a Sub-Committee was constituted to furnish a report regarding requirement of Amins as various lift irrigation projects were to be handed over to Panipanchayats. This Court in the order 23.03.2004 directed the O.P.-Corporation to file an affidavit indicating whether pursuant to the minutes of discussion on 08.01.2004 a committee was constituted to examine the need of services of the Amins and, if so, what was the consideration and recommendation of the said Committee. The above direction of this Court was not complied with by the O.P.- Corporation. But the Government in its counter affidavit filed on 05.03.2008 admitted in paragraph 3 that such Committee was constituted by Managing Director of the OP-Corporation consisting of S.E. (P& D), S.E. (Southern Circle), Berhampur, S.E. (Northern Circle), Sambalpur & Establishment Officer (A) of the Corporation (Convener). On 27.03.2006, the committee held its discussions in the presence of Shri B.K.Das, General Secretary OLICEA and Shri L.N.Panda, President, OLIDEA. The Committee 3 felt that 40 posts of Amin were required in the Corporation. The O.P. No.2 also produced a copy of the report under Annexure-P/2 along with their affidavit dated 18.08.2009. Drawing attention of this Court to Annexure-16 series, Mr. Pattnaik urged that surplus workers of the Corporation have been adjusted by the order of the Chairman and private Amins have also been engaged to do jobs under the Corporation. Six Divisions of the Corporation have engaged private Amins and the Corporation has incurred Rs.57,46,608/- towards engagement of private Amins. Referring to Annexure-22 series it was argued that the work of Amins are very much available in the Corporation as the Corporation requires services of the private Amins in addition to the Amins continuing in their job being protected by this Court. Therefore, the contention of the opp. parties that there is no need of Amins is not correct. The Amins who are working in the Corporation being protected by this Court have not been paid a single pie after 31.10.2005. Therefore, services of the petitioner-Amins should be retained with all financial benefits. Relying on the decision of the apex Court in A.Satyanarayana & Ors. Vs. S.Purushotam & Ors., (2008) 5 SCC 416, it is argued that the order of the opp. parties in not retaining the services of the petitioners cannot be sustained. A statutory rule is a trite law. It must be made in consonance with constitutional scheme. A rule must not be arbitrary. It must be reasonable, be it substantive or a subordinate legislation. 4 4. Learned counsel appearing on behalf of the O.P.-Corporation argued that the Government as per the decision of its Cabinet decided to dispense with services of 7341 employees from the Corporation. The Cabinet also approved the VRS/VSS package. The decision of the Cabinet was communicated to the Corporation. On 25.11.2002, the Board of the Corporation resolved to implement the Government Notification. Pursuant to the VRS Notification dated 02.12.2002 about 5493 employees took VRS with effect from 30.04.2003 and 31.05.2003. On 23.02.2004, another notice was issued to the employees of the Corporation to apply for VRS. Pursuant to the aforesaid notice about 950 employees availed VRS. In the process of restructuring, all the 304 posts of Amin were abolished and the category of Amins was zero. Under the VRS/VSS Scheme almost all the Amins availed the benefits except 40 who instead of availing the benefit rushed to this Hon’ble Court through Association, i.e., the Orissa Lift Irrigation Corporation Amin Sangha. This Court vide its order 23.03.2004 directed the opp. parties not to take any coercive action against the petitioners. On 26.10.2005, another Notification under Annexure-E/2 was issued giving a chance to the left out employees of the Corporation to apply for VRS by 30.11.2005 indicating that those who would not avail the VRS shall be retrenched by following the due process of law as they are surplus and belong to zero category of employees. Pursuant to the said Notification, 12 employees took VRS and the rest of the employees including petitioners- Amins did not opt for VRS. Hence, the Corporation submitted form S-1 5 before the Labour Commissioner, Orissa under Section 25(N) of the Industrial Disputes Act. Under Annexure-H/2 dated 28.03.2007, the Labour Commissioner granted permission for retrenchment of workmen including the Amins with effect from 30.06.2007 subject to vacation of interim orders passed by this Hon’ble Court. Challenging the order of the Labour Commissioner, one Surendra Nath Nayak, Amin filed W.P.(C) No. 6109 of 2007. Earlier challenging the decision of the Government in dispensing with the services of the Amins Bijaya Kumar Mohanty, Amin and Sri Kapilas Haripal, Amin had also filed writ petition bearing number W.P. (C) No.4412 of 2004 and W.P.(C) No.4428 of 2004 respectively. Besides, a number of employees filed several writ petitions challenging the said decision of the Government. On 03.08.2007, this Court declined to interfere with the decision of the Government and directed the Corporation to pay retrenchment compensation and the arrear salary as early as possible. Hence, the present writ petition is not maintainable on the ground of res judicata. The State Government considered the recommendation of the Committee for retention of 40 posts of Amin vide the decision dated 23.07.2006, but rejected the same in view of the decision taken by the Cabinet to abolish all the posts of Amins in the Corporation. The decision of restructuring and retrenchment are the policy decisions of the Government. Out of eighteen divisions of the Corporation, six divisions have engaged private Amins as and when required, and have paid Rs.10,16,926/- 7056 man days created on this account, which is 1/20th of 6 the expenditure towards salaries of regular employees. The affidavit filed by the petitioner stating that total expenditure towards engagement of private Amins was Rs.1,15,68,000/- is misconceived and misleading as the said expenditure relates to total expenditure for Pani Panchayats’ election and setting up of new L.I. points. Many Divisions do not engage Amins for the aforesaid purpose. These works are done by their junior engineers (civil) with the help of skilled/unskilled labourers. Relying on a couple of decisions of the apex Court, in State of Haryana & Ors. Vs. Navneet Verma, AIR 2008 SC 417 and State of Orissa & Ors. Vs. Bhikari Charan Khuntia & Ors. etc., 2003 (II) OLR (SC) 640, it is contended that the power to create or abolish a post rests with the Government, which decides the same in the interest of administration and general public. The Court would be the least competent on the face of scanty material to decide whether Government acted honestly in creating or refusing to create a post or its decision suffers from mala fide. As long as the decision to abolish the post is taken in good faith in the absence of material, interference by the Court is not warranted. Relying on another decision of the apex Court in Avas Vikas Sansthan & Anr. Vs. Avas Vikas Sansthan Engineers Assn. & Ors., AIR 2006 SC 3413, it is contended that a person holding abolished post has no right to re-employment or to hold same post. 5. On the rival contentions, the questions that fall for consideration by this Court are as follows:- 7 (i) Whether the writ petition is maintainable by operation of principles of res judicata? (ii) Whether the Government is justified in rejecting the recommendation of the Committee constituted under the Chairmanship of Managing Director of the OP- Corporation dated 27.03.2006 that the Corporation is in need of services of 40 Amins on the ground that the Cabinet has abolished all the posts of Amin in the Corporation? 6. The first question relates to maintainability of the writ petition on the ground of res judicata. To deal with this issue, it is felt necessary to quote the relevant provisions of Section 11 of the Civil Procedure Code which deals with res judicata. “11. Res judicata – No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. xx xx xx Explanation III.—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV— Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V.—Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. 8 Explanation VI.—Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. Xx xx xx” 7. The apex Court in State of Karnataka Vs. All India Manufacturers Organisation, (2006) 4 SCC 683, held as under:- “Res Judicata is a doctrine based on the larger public interest and is founded on two grounds: one being the maxim nemo debet bis vexari pro una et eadem causa (no one ought to be twice vexed for one and the same cause) and second, public policy that there ought to be an end to the same litigation. It is well settled that Section 11 of the Civil Procedure Code, 1908 (hereinafter “CPC”) is not the foundation of the principle of res judicata, but merely statutory recognition thereof and hence, the section is not to be considered exhaustive of the general principle of law. The main purpose of the doctrine is that once a matter has been determined in a former proceeding, it should not be open to parties to reagitate the matter again and again. Section 11 CPC recognizes this principle and forbids a court from trying any suit or issue, which is res judicata, recognising both “cause of action estoppel” and “issue estoppel”. The Constitution bench of the apex Court in Direct Recruit Class-II Engineering Officers’ Association Vs. State of Maharashtra & Ors., (1990) 2 SCC 715 held as under:- “……. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We, 9 accordingly hold that the writ case is fit to be dismissed on the ground of res judicata” In Forward Construction Co. & Ors Vs. Prabhat Mandal (Regd.), Andheri & Ors, AIR 1986 SC 391, the apex Court held that in view of Section 11, Expln. IV it could not be said that the earlier judgment would not operate as res judicata as one of the grounds taken in the subsequent petition was conspicuous by its absence in the earlier petition. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of litigation of every matter coming within the legitimate purview of the original action both in respect of the matter of claim or defence. 8. Now, keeping in mind the provisions of Section 11 of the C.P.C. and the above decisions of the apex Court we will consider as to whether the present writ petition is hit by the doctrine of res judicata. In this regard, the contention of the opp. parties is that challenging the decision of the Government in dispensing with the services of Amins two writ petitions bearing W.P.(C) No.4412 of 2004 and W.P.(C) No.4428 of 2004 had been filed by two Amins, namely, Bijaya Kumar Mohanty and Kapilash Haripal respectively. Besides, a number of employees filed several writ petitions challenging the said decision of the Government. These writ petitions were disposed of on 03.08.2007 (Annexure-N/2). While disposing of the writ petitions, this Court has declined to interfere in the decision of the Government. Therefore, according 10 to opp. parties the present writ petition is barred by the principles of res judicata and is liable to be dismissed. Perusal of the orders of this Court dated 03.08.2007 passed in W.P.(C) No.4241 of 2004 and a batch of cases reveal that petitioners who had been employed in the Corporation and were working in different capacities filed those writ petitions for a direction to opp. parties not to dispense with their services who are declared as zero /surplus category. This Court, while disposing of those writ petitions declined to interfere with the decision of the Government and to issue any direction to the opp. parties for not dispensing with the service of the petitioners and for their continuance. In view of the above, we hold that the instant writ petition is fit to be dismissed on the ground of res judicata. Otherwise also, this Court has very limited power to interfere with the decision of the Government in the matter of creation, continuation and abolishment of posts, which power rests with the sovereign Government. The apex Court in State of Haryana & Ors. Vs. Navneet Verma, AIR 2008 SC 417 held as follows:- “11. We summarize the power of government in abolishing a post and role of the court for interference: a) the power to create or abolish a post rests with the government; b) whether a particular post is necessary is a matter depending upon the exigencies of the situation and administrative necessity; 11 c) creation and abolition of posts is a matter of government policy and every sovereign government has this power in the interest and necessity of internal administration; d) creation, continuance and abolition of posts are all decided by the government in the interest of administration and general public; e) the court would be the least competent in the face of scanty material to decide whether the government acted honestly in creating a post or refusing to create a post or its decision suffers from mala fide, legal or factual; f) as long as the decision to abolish the post is taken in good faith in the absence of material, interference by the court is not warranted.” Merely because some adjustment of surplus employees by the Government without obtaining permission of the Cabinet Committee was made, the same cannot confer any right on the petitioner to be engaged in the services of the Corporation. 9. Before parting with, we feel it necessary to make certain observation because of some development in this matter which comes to our notice in course of hearing and throw considerable light in the matter of absorption of 40 Amins in the Corporation. Under the Chairmanship of Secretary to Government of Orissa in Irrigation Department attended by Chairman of the OP-Corporation in a meeting held on 08.01.2004 constituted a Sub-committee to furnish a report on requirement of Amins as various lift irrigation projects were to be handed over to Pani Panchayata. Pursuant to such decision, a Committee was constituted which felt that 40 posts of Amins were required in the Corporation. Apart from this, it came to the notice of this Court that private Amins were engaged by the Corporation to perform the work of Amin, a considerable amount was 12 spent towards their remuneration. This shows that the Corporation is in need of Amins to do the work of the Corporation. In these peculiar circumstances, it is open to the Cabinet Committee to consider the case of the petitioner for their continuance in the Corporation. 10. With the above observation, the writ petition is disposed of. However, we make it clear that we have expressed no opinion on the merits of the case. No costs. ……………………... B.N.Mahapatra, J. A.S.Naidu,J. I agree. …....…………….. A.S.Naidu, J. 13 Orissa High Court, Cuttack Dated 16th April, 2010/sss/tkb/pcp