Biswanath Rath,J. -
(1.) Pleading shows that while assailing the development through Annexure-5, a challenge is also being made to the ultimate order dependant on the notice vide Annexure-5 passed vide Annexure-11.
(2.) Short background involving the case is that the petitioner originally joined in SFDC on 4.2.1982 as a Junior Assistant but, however, on daily wage basis. It is while the petitioner continuing as such, the petitioner faced a disciplinary proceeding. Involving the dismissal by way of punishment imposed therein, petitioner approached this Court in O.J.C.No.3575 of 1987 making SFDC as opposite party praying therein for quashing of the order of dismissal involving the disciplinary proceeding. In disposal of O.J.C.No.3575 of 1987, this Court while setting aside the order passed by the Disciplinary Authority, passed an order for reinstatement of the petitioner of course giving an option to the petitioner to report back in the post of Office Assistant for his having already joined in a post of General Manager, Northern Economics and Finance Company Limited. However, in the said order while dealing with request for back wages, this Court again while indicating the petitioner is entitled to back wages, observed in the event petitioner joins and files an affidavit of no engagement during the period involved, the Management shall consider the affidavit at the instance of the petitioner and on satisfaction that petitioner was not gainfully engaged in the meantime, shall grant 50 percent of the arrear salary and in the event the Management remain satisfied that the petitioner was gainfully employed, petitioner shall not be entitled to any arrear wage. Basing upon this direction of this Court in the disposal of the first round of litigation on 21.9.1992, the OSFDC Ltd. on 17.10.1992 passed an order vide Annexure2 reinstating the petitioner as office Assistant on daily wage basis @ Rs.35/- per day with effect from the date he actually joins as office assistant. On the premises that regularization of the daily wagers was taken place by the erstwhile employer, SFDC before merger of SFDC with OSFDC, petitioner raised objection of his not being regularized by the merger establishment as he had already reported back to service to the merger establishment and also involving an issue that the merger establishment not treating the petitioner to have been continuing all through. Claiming continuance of the service period and also claiming for regularization from the date his juniors were regularized in SFDC, petitioner was constrained to file another writ petition vide O.J.C.No.1495 of 1995. This writ petition is being decided on contest, finally disposed of by order of this Court dated 21.2.2007 with a direction that for the interference of the order of the disciplinary authority in disposal of the first round of litigation and for the reinstatement of the petitioner on the basis of direction of this Court, the period petitioner suffered for no fault of him shall be treated to be valid and without interruption service. There was also further direction of the Division Bench of this Court to the effect that if the juniors of the petitioner have been regularized, nonregularization of the petitioner may be discrimination. It is on the basis of communication of this order, it is alleged that the merger establishment created a new story and by issuing a show cause notice vide Annexure-5, called for an explanation from the petitioner to submit as to why his services shall not be dispensed for the merger establishment having dearth of workload and the petitioner position has been found in the surplus manpower. On the basis of show cause notice vide Annexure-5, petitioner submitted his response. On receipt of the response, the opposite parties finally vide order at Annexure-11 while observing the petitioner to be surplus and no regularization of surplus staff is permissible, it is ultimately vide Annexure 11, the opposite party-establishment retrenched the petitioner from service in the OSFDC but, however, with a scope to the petitioner to participate if any recruitment for the post of Office Assistant and L.D. Assistant is taken in future with relaxation of age otherwise. In his challenge to the show cause notice at Annexure-5 and the final outcome at Annexure-11, Sri Rath, learned senior counsel for the petitioner while referring to the entire development taken note hereinabove, specifically referring to the allegations made through the writ petition that in the event the petitioner would not have faced the disciplinary proceeding, the petitioner would have been regularized by the erstwhile establishment before even its merger in the present establishment. Further, for the direction of this Court through both the writ petitions already disposed of, there remains no doubt that the position of the petitioner is restored back to the date of termination on account of closure of the disciplinary proceeding. For the subsequent, development involving second writ petition, Sri Rath, learned senior counsel also alleged that for the clarity in the second writ petition that entire period of the petitioner shall be treated to be in service, for the observation on regularization from the regularization of juniors, it was incumbent on the part of the establishment to comply the direction not only treating the petitioner to be regular employee but also placing the petitioner along with juniors, who have already been regularized earlier to the petitioner at the minimum. Shri Rath thus contended that Annexuire-5 is a creation of a story just to victimize the petitioner by the establishment and Annexure-11 is an outcome of such evil design of the OSFDC, both the orders at Annexures-5 and 11 for having been passed with evil design only to keep the petitioner away from service, thus Sri Rath submitted that both the orders must go.
(3.) To the contrary, learned counsel for the contesting opposite parties while not disputing the development through the first round of litigation as well as in the second round of litigation but, however, opposing the claim of the petitioner to be treated to be regularized from the date of his juniors were regularized while working in the earlier establishment, contended that for the pendency of the litigation, petitioner could not be regularized by the erstwhile establishment and after the merger of the establishment, there is also no regularization taking place in the newly created establishment. Learned counsel in the process, taking this Court to the plea taken in the counter affidavit as well as in the further reply affidavit filed by the opposite parties pursuant to direction of this Court dated 8.11.2017 and also referring to the plea taken therein, specifically in paragraph-E, contended that the allegation of the petitioner that while allowing continuance of the juniors to the petitioner on the pretext of there being regularization, retrenchment of the petitioner is not correct. Through the counter averments in paragraph-F, learned counsel for opposite parties, contended that persons namely Subash Chandra Mitra, Braja Kishore Mohanty and Iswar Chandra Pradhan out of which both Subash Chandra Mitra and Braja Kishore Mohanty were regularized with effect from 16.12.1989 and 01.04.1990 i.e. prior to merger of three corporations. Further, so far as Iswar Chandra Pradhan is concerned, he was an employee originally under the Orissa Forest Corporation named as OFDC. It is in the above background Sri Mahapatra, learned senior counsel for the opposite parties pleaded that there is no victimization of petitioner either issuing the show cause notice vide Annenxure-5 or even passing the order at Annexure-11 requiring no interference in the same.;