ORISSA HIGH COURT: CUTTACK O.J.C.NO. 524 OF 1989 AND O.J.C. NOs. 2035 AND 5250 OF 1991 In the matter of applications under Articles 226 and 227 of the Constitution of India. ------------- In OJC 524/1989 Sri Dinesh Chandra Mishra … Petitioner -versus- The Management of New India Assurance Co. Ltd. and others … Opp. Parties. For Petitioner : M/s. P.K. Nanda, S.K. Mohanty, M.Mohanty & P.Palit For Opp. Parties: Mr. Jagannath Das In OJC 2035/1991 Management of New India Assurance Co. Ltd. … Petitioner -versus- Presiding Officer, Industrial Tribunal, Orissa, Bhubaneswar ad another. … Opp. Parties. In WPC 5052/1991 Management of New India Assurance Co. Ltd. … Petitioner -versus- Presiding Officer, Industrial Tribunal, Orissa, Bhubaneswar and another. … Opp. Parties. For Petitioner : Mr. Jagannath Das. ( In OJC Nos. 2035 & 5250/91) For Opp. Parties: M/s. P.K. Nanda, P.C.Das & B.Satpathy. (For O.P.No.2 in OJC Nos. 2035 & 5250/91) ) ---------------------- Decided on 05 .07. 2011. --------------------- P R E S E N T : THE HONOURABLE SHRI JUSTICE M. M. DAS ----------------------------------------------------------------------------------------- M.M. DAS, J. Since the parties in the aforesaid three writ petitions are same and the subject-matter also relates to the dispute between the parties as employer and employee, they were heard together and are being disposed of by this common judgment. 2. O.J.C. No. 524 of 1989 is at the instance of the employee -petitioner which stood disposed of by order dated 23.3.1990 requiring the employee - petitioner to approach the Industrial Tribunal and liberty was given to the petitioner to challenge the order of the Tribunal in the said proceeding if the order is against him. Then the writ petition came up for consideration on certain interim application and finally on 12.3.1991, the Court passed the order that the writ petition is not being pressed in view of the order passed by the Industrial Tribunal on 21.6.1990. 3. To appreciate the contentions raised by the respective parties, it is necessary to delineate the facts and developments of the case date-wise. 2 In O.J.C. No. 524 of 1989, the petitioner (hereinafter referred to as “ the workman”) was appointed as Junior Inspector on 21.11.1977 by the New India Assurance Co. Ltd. (hereinafter referred to as “the Management”). He was terminated from the service by letter dated 13.12.1978. The workman submitted a complaint before the Conciliation Officer-cum-Assistant Labour Commissioner (Central), Bhubaneswar on 12.9.1979. The Conciliation Officer on 11.1.1980 turned down the complaint as not maintainable. The workman challenging the said order filed O.J.C. No. 636 of 1980 before this Court. This Court allowed the said writ petition on 7.12.1984 after which, on 8.8.1985, the Conciliation Officer submitted the failure report on which, a reference was made which was registered as I.D. Case No. 4 of 1986 (C) . The Industrial Tribunal passed an award on 1.5.1987 holding that the termination of the workman was not justified and he is entitled to reinstatement He shall, however, be treated to be in service during the entire period beginning from the date of termination from his service and the Management was directed to pay 50% of the back wages from the date of termination till the date of reinstatement. The Management challenged the award in O.J.C. No. 2342 of 1987 before this Court which was dismissed on 11.4.1988. The workman also challenged the portion of the award disentitling him from full back wages in O.J.C. No. 4005 of 1987, which was also dismissed 3 by this Court on 22.11.1991. The workman was reinstated in service on 11.3.1988. Be it noted here that while disposing of OJC No. 2342 of 1987 filed by the workman on 11.4.1988, this Court passed the following order:- “Misc. Case No. 132/88 13. 11.4.88. It has been stated that the opp. party no.1 has already submitted a joining report on 11.3.88 and, therefore, no further order need be passed for his resuming duty as prayed for. A sum of Rs.12,500/- is stated to have already been deposited pursuant to the order of this Court. Since a non- employment certificate has been filed by the opp. party, Mr. Murty appearing for the petitioner submits that he has no objection for release the amount in favour of the opp. party no.1 and we order accordingly. The Misc. Case is disposed of. O.J.C. No. 2342/87 14. 11.4.88. The only question on which this writ application was admitted is to examine as to whether the petitioner shall be entitled to the back wages as decided by the Tribunal in the background that the petitioner has not submitted non-employment certificate. Since the said certificate has already been filed and the amount has been ordered to be released in favour of the opp. party by order of this Court passed to-day there is nothing further to be decided in the writ application, which is hereby dismissed.” On 30.11.1988, the Assistant Branchy Manager, Angul Branch of the opp. party issued a letter along with a draft of Rs. 1000/- for payment of salary to the work for the months of August to November, 1988. The workman preferred O.J.C. No. 524 of 1989 being aggrieved by non-payment of his full salary after 4 reinstatement. This Court passed the following order in O.J.C. No. 524 of 1989 on 22.3.1990: “The grievance of the petitioner is relating to the payment of salary following his reinstatement. He is presently being treated as a probationer and is being paid a stipendiary amount of Rs.250/- per month. The contention of Sri Nanda, however, is that the petitioner is entitled to a salary of Rs.3232/- per month which is payable to a regular employee of the insurance company. Let the petitioner approach the learned Industrial Tribunal agitating this matter. The learned Tribunal shall dispose of the petition within a period of three months. It would be open to the petitioner to challenge the order of the learned Tribunal, if it goes against him, in this proceeding itself.” Again on 26.3.1990, this Court directed the Management to pay Rs.1200/- per month till disposal of the application by the Tribunal. As per order dated 22.3.1990 of this Court, the Tribunal in I.D. Case No. 4 of 1986 (C), ordered as follows on 21.6.1990:- “I would, however, hold that the award passed in I.D. Case No.4 of 1986 (C) is deemed to be continuing in service from the date of his termination till reinstatement is entitled to the salary and allowances as a confirmed Junior Inspector of the Company on expiry of the Probationary period of two years, with effect from 22.11.1979. The 50% back wages to which the workman is entitled as per the award, from the date of termination of his service till his reinstatement, would be calculated on the aforesaid basis. So also, he would be paid salary and allowances with effect from the date of his reinstatement on the aforesaid basis as a confirmed Junior Inspector of the Company. The petition filed by the Workman on 17.05.1990 is accordingly disposed of.” O.J.C. No. 524 of 1989 was disposed of on 12.3.1991 with the following order:- 5 “In view of the order of the Presiding Officer of the Industrial Tribunal passed on 21.6.1990 by which it was held that on reinstatement the petitioner shall be treated as a confirmed Junior Inspector of the Company, this petition is not being pressed. But to know whether the order of this Court passed on 26.03.1990 has been carried out or not, we fix this case after ten days.” In the disposed of writ petition, being O.J.C. No.524 of 1989, Misc. Case No. 2310 of 1991 was filed by the workman for a direction to the Management to pay his wages and other dues. This Court passed the following order in the said Misc. Case No.2310 of 1991 on 30.4.1991:- “The grievance in this application is that though the petitioner has been declared to be a confirmed employee of the Company, he is only being paid a sum of Rs.91/-. We have deemed it fit to ask the petitioner to approach the learned Tribunal seeking its order as to what pay he is entitled as a confirmed employee. On the Tribunal being approached, appropriate orders shall be passed in this regard within a month. The Misc. Case is disposed of accordingly.” Against the order dated 21.6.1990 passed by the learned Tribunal in the I.D. Case, as quoted above, the Management filed O.J.C. No. 2035 of 1991 and the order passed on 3.8.1991 by the learned Tribunal pursuant to the order dated 30.4.1991 passed in Misc. Case No. 2310 of 1991, as quoted above, the Management has preferred O.J.C. No. 5250 of 1991. Subsequently, an elaborate common order was passed on 31.8.1993 in O.J.C. Nos. 2035 and 5250 of 1991 noting the history of the case and adjourning the matter to 27.9.1993 for hearing. In the meanwhile, an order was 6 passed on 1.12.1993 in O.J.C. No. 524 of 1989 which was earlier disposed of, to the following effect:- “After Shri Nanda is heard for some time, a need is felt by him to amend the petition by incorporating some new facts and annexing some documents in support of the petitioner’s case. The prayer is allowed. Consolidated writ petition containing the amendments as indicated above shall be filed within two weeks. The opposite parties shall get two weeks thereafter to file counter if any. The petition shall come up for hearing after four weeks before any available Bench, without treating it as part heard.” A consolidated writ petition was filed incorporating amendments thereto on 27.1.1994. Thereafter, a common order was passed on 31.1.1994 in all the three writ petitions, being O.J.C. No. 524 of 1989 and O.J.C. Nos. 2035 and 5250 of 1991 to the following effect: - “These three writ applications, one at the instance of the employee and two others at the instance of the employer are listed for hearing before us in view of the earlier orders passed by this Court. The first O.J.C., being OJC. No.524/89, is at the instance of the employee and the said application stood disposed of by order dated 23.3.90 requiring the petitioner (the employee) to approach the Industrial Tribunal agitating the matter. Liberty however, had been given to the petitioner to challenge the order of the Tribunal in the said proceeding if the order is against him. Then the matter came up on certain interim application and finally on 12.3.91 the Court passed the order that the writ petition is not being pressed in view of the order passed by the Industrial Tribunal on 21.6.90. We fail to understand as to how such an order could be passed since on that date, there was no existence of OJC. No.524/89 and the petitioner therein had not approached this Court even though liberty had been given to him, since the liberty had been given to approach this Court in the said proceeding only if the order of the Tribunal goes against him. Be that as it may, even if the petition was treated to be as 7 not pressed, but still the Court passed the order that the matter may be called after 10 days to know as to whether the interim order passed earlier on 23.6.90 has been carried out or not and then on 28.3.91 the Court was satisfied that the interim order has been complied with. Thereafter it appears that the interim applications have been entertained, though the writ petition never survived and certain orders were passed thereon until the order dated 1.12.93 was passed. In the meantime, being aggrieved by the order of the Tribunal the Employer approached this Court in OJC. No.2035/91 and O.J.C. No.5250/91. While hearing the aforesaid two O.J.Cs. being faced with the problem that OJC. No.524/89 did not survive and further being faced with the problem that the Tribunal’s order which had been sought to be assailed by the employer to be without jurisdiction, the Court passed an order on 31.8.93 and in that order recalled the earlier orders passed in OJC. No.524/89 and thereby getting the said O.J.C. No.524/89 revived and thereafter directing that all these three applications be heard together. It is against the order dated 31.8.93 passed in OJC. Nos. 2035 and 5250/91, the employer has already approached the Supreme Court and the matter is pending before Their Lordships. Until disposal of the said applications by the Supreme Court, it would not be proper for us to entertain and decide these applications. Accordingly, we direct that all these matters may be posted after disposal of the matter by the Supreme Court. Mr. Rath, appearing for the employer states that after disposal of the matter by the Supreme Court, he will intimate the Court whereafter the hearing can be taken up.” 4. S.L.P. No. 20865 of 1993 filed against the order dated 31.8.1993 passed in O.J.C. Nos. 2035 and 5250 of 1991 was dismissed by the Hon’ble Supreme Court. 5. A Civil Review was also filed for reviewing the order dated 11.4.1988 passed in O.J.C. No. 2342 of 1987. The said Civil Review was, however, dismissed on 21.2.2008. 8 6. In O.J.C. No. 524 of 1989, the workman sought for the following reliefs:- To direct the opp. party – Management to immediately regularize the service of the petitioner as a regular confirmed Inspector Grade –I of the Company land fix his pay in the pre-revised scale of pay of Rs. 250-850/- with effect from 21.11.1978 and in the revised scale of pay of Rs. 720-2380/- with effect from 1.1.1987 and to direct the Management to grant all consequential service and financial benefits accruing therefrom as well as allowing the workman all the benefits as enjoyed by the employees of permanent status from the date when the petitioner completed his probation, i.e., 21.11.1978. 7. As already quoted above, by order dated 30.4.1991 passed in O.J.C. No. 524 of 1989, this Court asked the workman to approach the learned Tribunal seeking its order as to what pay he is entitled to as a confirmed employee and further directed the Tribunal that on being approached, such order shall be passed in that regard within a month. The said order was passed in Misc. Case No. 2310 of 1991. Consequent to the said order, the workman approached the Tribunal and the Tribunal thereupon fixed the basic pay of the workman as per its order dated 3.8.1991 for the period from 1979 to 1991. The said fixation of pay as per the order of the Tribunal dated 3.8.1991 was made pursuant to the aforesaid order 9 passed in Misc. Case No. 2310 of 1991. The Management challenged the said fixation of pay of the workman in O.J.C. No. 5250 of 1991 and sought for quashing of the said order. 8. Be it noted here that on the application of the workman filed pursuant to the order dated 22.3.1990 passed in O.J.C. No. 524 of 1989 (already quoted above), the learned Presiding Officer, Industrial Tribunal passed the order dated 21.6.1990 the operating portion of which has also been quoted above and the said order dated 21.6.1990 has been challenged by the Management in O.J.C. No. 2035 of 1991. 9. In other two writ petitions filed by the Management, the legality of two different orders passed by the learned Presiding Officer, Industrial Tribunal consequent to the orders passed by this Court is to be examined. It found that the workman is to be construed as a permanent employee under the Management from the date of completion of two years from the date of his appointment, which is the maximum period of probation and he would be entitled to the salary of regular employee belonging to his cadre. 10. It is profitable to mention that as already stated, pursuant to the award passed in the I.D. Case No. 4/86 (C), the workman has been reinstated in service with effect from 11.3.1988. 10 11. The terms and conditions of appointment of the workman have been enumerated in the appointment letter which has been annexed as Annexure-1 to O.J.C. No. 2035 of 1989. Clauses - (1) to (4) of the conditions of service enumerated in the letter of appointment are as follows:- “xxx xxx xxx 1. Your appointment will take effect from the date of joining which shall not be later than 21st Nov. 1977. 2. You will be on probation for a period of one year initially which may be extended, if necessary up to one more year at the discretion of the Company. However, your services are liable to be terminated without assigning any reasons, during the initial and/ or extended probationary period. 3. Confirmation in the service of the Company on completion of the initial/ extended/probationary period is not automatic. Unless a letter of confirmation of your services is issued by the company, your services will stand automatically terminated on the expiry of the probationary period, initial or extended, as the case may be. It would be at the absolute discretion of the Management whether or not to confirm you in the service of the Company, and no reason will be given for the Management’s decision. 4. During the probationary period, you will be paid a monthly stipend of Rs.250/-. You will not be eligible to receive any other benefits by whatever name called as are available to confirmed employees of the Company. However, the monthly stipend will be suitably increased at the sole discretion of the company, subject to your performance. xxx xxx xxx” 12. The learned Presiding Officer in his order dated 21.6.1990, which is impugned in O.J.C. No. 2035 of 1991, has 11 elaborately discussed the law on the point vis-a-vis the terms and conditions of appointment/service of the workman, when he came to the conclusion that the workman, by implication, would be deemed to have been confirmed with effect from 22.11.1979 and from the said date, he would be entitled to the salary and allowance admissible to a confirmed Junior Inspector and 50% of the back wages to which the workman is entitled to as per the award passed in the said I.D. Case from the date of termination till his reinstatement would be calculated on the aforesaid basis and also he should be paid salary and allowance with effect from the date of his reinstatement on the aforesaid basis as confirmed Junior Inspector of the Company. 13. The moot question, therefore, which arises for consideration is as to whether in the facts and circumstances of the present case, the workman should be considered to have been confirmed in service after expiry of the period of probation automatically even though no written confirmation was issued in his favour by the employer. 14. A reading of the terms of appointment, as quoted above, clearly goes to show that the workman was on probation for a period of one year initially from the date of appointment, i.e., 21.11.1977 which can be construed to have been extended for one more year as per clause (2) of the letter of appointment. Though 12 clause (3) mentions that confirmation in service is not to make on completion of the initial/extended period of probation and unless a letter of confirmation of service is issued by the company, the service will stand automatically terminated on the expiry of the probationary period , initial or extended, but since the workman, though terminated with effect from 1.1.1979 , the said order of termination having been already held to be illegal and unjustified in the award passed on 1.5.1987 in I.D. Case No. 4/86(C), which award has become final and binding on the parties, the workman is deemed to have been continuing in his service from the date of his appointment , i.e., 21.11.1977. It would be deemed that the workman continued on probation for two years from the date of his appointment, i.e., till 21.11.1979 pursuant to the award by which the order of termination was held to be unjustified. The workman having been reinstated in service with effect from 11.3.1988, it has to be seen as to whether the workman should be still termed as a probationer or should be held to have been confirmed in his service after 21.11.1979 as has been held by the learned Presiding Officer in his order dated 21.6.1990. 15. Reliance has been placed by the learned counsel in support of his contention that the workman’s service stood automatically confirmed from 21.6.1979 on the decision of the apex Court in the cases of The State of Punjab v. Dharam Singh, AIR 13 1968 SC 1210, M.K. Agarwal v. Gurgaon Gramin Bank, AIR 1988 SC 286 and Jasabanta Singh Pratap Singh Zadeja v. Rajkote Municipal Corporation, 2008 (I) SCC (L & S) 49 and a decision of this Court in O.J.C. No. 3514 of 1990 decided on 28.4.1993. The Management has strongly placed reliance on the decisions of the apex Court in the case of Satya Narayan Athya v. High Court of M.P. and another, AIR 1996 SC 750 and Karnataka State Road Transport Corporation and another v. S. Manjunath, etc., (2000)5 SCC 250. 16. In the case of Bhawani Prasad Dash v. Arbitrator- cum-Director of Textile and others, 1994 ILLJ 559 (Orissa), this Court took note of the decisions of the apex Court in the cases of Dharam Singh (supra) and M.K. Agarwall (supra), out of which the case of Dharam Singh (supra) is a Constitution Bench decision. On analyzing the law, this Court held in the aforesaid decision that the Supreme Court in the case of Dharam Singh (supra), where a probationer was officiating in a permanent post and was allowed to continue in that post even after expiry of three years beyond his probation period which could not have been extended by the service rules in question, and, therefore, the Supreme Court held that the incumbent must be deemed to have been confirmed in that post despite no express order of confirmation having been passed. On the facts of the said case, this Court concluded that the above ratio 14 of the decision clearly applies to the said case where a maximum period of probation was prescribed and the petitioner therein was allowed to continue in the said post after the said maximum period of probation and held that there is a deemed confirmation of service. 17. In the case of Satya Narayan Athya (supra), the facts for consideration before the apex Court were totally different. In the said case, “service rules, i.e., Rule 24 (1) of the M.P. Judicial Service (Classification Recruitment and Conditions of Service) Rules, 1955 was being considered, which provided that every candidate appointed to the cadre shall undergo training for a period of six months before he is appointed on probation for a period of two years, which period may be extended for a further period not exceeding two years. The probationers may, at the end of period of their probation, be confirmed subject to their fitness for confirmation and having passed, by the higher standard, all such departmental examination, as may be prescribed”. The petitioner before the apex Court was appointed on probation as a Civil Judge by proceedings dated 13.7.1979. On completion of six months period, he was put on probation with effect from 16.1.1980. After two years passed, no order of confirmation was issued and he continued on probation. In view of the non-satisfactory nature of the service, the Full Court decided that he could not be confirmed. 15 Accordingly, orders were passed on 5.8.1983 discharging him from service under Rule 52-A of the M.P. Government Service (Temporary) quasi permanent service) Rules, 1960. The writ petition filed by the petitioner therein was allowed by the learned Single Judge, but in Letters Patent Appeal, the said judgment of the learned Single Judge was set aside which was challenged before the apex Court. It would be clear from the above that in the said case, the petitioner was discharged from service during the period for which his probation would have been extended as per the