ORISSA HIGH COURT: CUTTACK W. P.(C) NO. 5319 OF 2005 In the matter of an application under Articles 226 and 227 of the Constitution of India. ------------- Bhubaneswar Development Authority, represented through its Secretary, Shri Manoranjan Patnaik. … Petitioner -Versus- B.D.A’s Workers Union, represented through its Secretary, Sri Naba Kishore Mohanty. … Opp. Party For Petitioner : M/s. Dayananda Mohapatra, D.K.Sahoo & M.Mohapatra. For Opp. Party : M/s. A.K.Choudhury K.K.Das & C.R.Behera. M/s. A.A.Das, M.B.Ray, A.K.Behera, S.Mohanty & B.R.Swain. (For Caveator). ----------------------- Decided on 11.01. 2010. ----------------------- P R E S E N T : THE HONOURABLE SHRI JUSTICE M. M. DAS ----------------------------------------------------------------------------------------- M.M. Das, J. The Management – Bhubaneswar Development Authority is the petitioner in this writ petition. It has challenged the award dated 30.12.2004 passed by the Presiding Officer, Labour Court, Bhubaneswar in I.D. Case No. 74 of 2003. A reference was made under sections 10 and 12 of the Industrial Disputes Act, 1947, which reads as follows:- “Whether the action of the management of Bhubaneswar Development Authority, Bhubaneswar in not regularizing the services of 113 numbers of N.M.R./D.L.R./Ad hoc workmen (list enclosed) is legal and or justified? If not, what relief they are entitled ?”. 2. It was the case of the workmen that they were engaged in Class-III and IV jobs by the Management-petitioner and by rendering continuous and uninterrupted services for near about 10 to 15 years, as the services of the workmen were not regularized, an industrial dispute was raised. On failure of conciliation and submission of failure report, a reference was made by the Government which was registered as I.D. Case No. 2 of 1988. Considering the evidence adduced by both the parties and the documents produces, the Tribunal in I.D. Case No. 2 of 1988, by award dated 22.11.1990 held that the N.M.R. employees, who have been working under the petitioner continuously for more than one year should be regularized and are entitled to service benefits like their counterpart in the regular establishment. The said award was notified and thereafter, the Management approached the opp. party – Union for amicable settlement of the matter. A settlement was entered into between the Management and the opp. party – Union on 2 29.4.1991 as at Annexure-A/1 and it was agreed upon that the employees, who have rendered five years of service under the establishment, would be regularized. Pursuant to the said settlement, the services of 270 employees were regularized and the process of regularization continued. But subsequently, the said process was stopped. The Union again put-forth its demand before the authorities and accordingly, another settlement was entered into on 21.12.1993 vide Annexure-C/1. While the services of 113 D.L.R. employees were not taken into consideration for regularization and on the other hand, the services of D.L.R. employees, who were juniors to the said 113 workmen were regularized, a dispute was raised, which on being referred, has been registered as I.D. Case No. 74 of 2003 in which the impugned award has been passed. Materials were produced and evidence adduced before the Labour Court by the workmen. The Union specifically pleaded that out of 1050 employees, except 113 D.L.R. employees, the services of all others have already been regularized and the Management has also engaged more 500 employees through contractors. The matter was before this Court earlier in O.J.C. No. 7083 of 1998 which was filed by 9 workmen. The said workmen filed the aforesaid writ petition challenging an order dated 4.5.1998 withdrawing the earlier order of regularization of service passed in their favour. This 3 Court, while declining to interfere with the said order on the ground that admittedly, the petitioners therein had not completed five years of service directly under the Bhubaneswar Development Authority as on 1.12.1994, ultimately directed that since the petitioners therein have completed five years of service directly under the Bhubaneswar Development Authority in the meantime, their cases may be considered for regularization at an early date. 3. Mr. Dayananda Mohapatra, learned counsel for the petitioner - Bhubaneswar Development Authority vehemently urged that the Labour Court has failed to appreciate the documents which were relied upon by the Management. The Labour Court has also not taken into consideration the financial crunch of the B.D.A. and the Management – B.D.A. is bound by the superintendence and decision of the Government. Mr. Mohapatra further submitted that there was no sufficient work available to substantiate creation of posts for regularizing the left out workmen. 4. Mr. A.K. Choudhury, learned counsel for the opp. party - Union, on the other hand, submitted that the findings recorded by the Presiding Officer do not suffer from any illegality or perversity so as to be interfered with under Article 226 of the Constitution of India. He further submitted that the settlement 4 arrived at between the petitioner-Management and the opp. party – Union is binding on both the parties and the same cannot be avoided on the ground that there is a financial crunch. The Labour Court in the impugned award, upon framing the issues raised, analyzing the evidence adduced before it and the materials produced, minutely and, in material particulars, came to the conclusion that the action of the Management-petitioner in not regularizing the services of the workmen is illegal and unjustified. The Labour Court for the above purpose placed reliance on the order of this Court passed in O.J.C. No. 7083 of 1998 and finding, as a matter of fact, that the workmen are entitled to be regularized as per the settlement arrived at between the Management and the opp. party – Union by which the parties are bound, the workmen are entitled to be regularized from the date they have completed five years of service in respect of general category and three years of service in respect of Scheduled Caste and Scheduled Tribe workmen, directed in the impugned award to consider the case of the concerned 113 workmen for regularization at an early date. 5. Though several decisions were cited by the respective parties, but on considering the facts of the present case, this Court does not feel it necessary to refer to the said decisions, which have been rendered in different sets of facts. 5 6. This Court also does not find any illegality or perversity in the impugned award so as to be interfered with by exercising its plenary jurisdiction under Article 226 of the Constitution. The writ petition, therefore, fails and is accordingly dismissed, but in the circumstances, without any cost. …………………… M.M. Das, J. Orissa High Court, Cuttack. January 11th , 2010/Biswal. 6 7 8 9