As per case facts, the Petitioner, a DLR Assistant with BDA since 1994, was among 113 workmen whose regularization was directed by a Labour Court Award in 2004. This Award ...
W.P.(C) No.12073 of 2017
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.12073 of 2017
(In the matter of an application under
Articles 226 & 227 of the Constitution of India)
Kailash Chandra Das ...... Petitioner
-Versus-
State of Odisha & others ...... Opposite Parties
Advocate for the parties
For Petitioner : Mr. Sameer Kumar Das,
Advocate
For Opposite Party No.1 : Mr. D.K. Sahoo,
Additional Govt. Advocate
For Opp. Party Nos.2 & 3 : Mr. S. Das,
Advocate
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CORAM: JUSTICE SANJAY KUMAR MISHRA
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Date of Hearing: 10.12.2025 Date of Judgment: 06.03.2026
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S.K. Mishra, J. This writ petition has been preferred assailing
the decision of the Authority dated 23.11.2016 along with
the Agenda dated 19.11.2016 under Annexure-7, vide
which the Petitioner’s claim for regularization of his
service stood rejected. The Petitioner also seeks direction
to the Opposite Parties to reinstate him in service and to
W.P.(C) No.12073 of 2017 Page 2 of 36
regularize him as a Clerk with effect from 06.08.2010 in
parity with similarly placed DLR employees in terms of the
Award of the Labour Court under Annexure-1, so also
payment of back wages to the Petitioner within a
stipulated period.
2. The brief facts leading to the filing of the writ
petition are that, the Petitioner was engaged as a DLR
Assistant (Clerk) in the Bhubaneswar Development
Authority (BDA) on 03.08.1994 and continued to
discharge his duties uninterruptedly to the satisfaction of
the authorities. As several similarly placed DLR
employees, including the Petitioner, had completed
substantial years of service, the Employees’ Association
(BDA Workers’ Association) raised an industrial dispute
seeking regularization of their services. Conciliation being
failed, the dispute/demand of the Union for regularization
of service of 113 workmen was referred by the State
Government to the Labour Court, Bhubaneswar for
adjudication and registered as I.D. Case No.74 of 2003.
Ultimately the Labour Court, Bhubaneswar passed an
Award dated 30.12.2004, directing regularization of
services of all the concerned workmen, including the
Petitioner. Subsequently, the said Award attained finality
after dismissal of W.P.(C) No. 5319 of 2005 on 11.01.2010
by this Court, so also SLP (Civil) No. 20736 of 2010 by the
W.P.(C) No.12073 of 2017 Page 3 of 36
Supreme Court on 06.08.2010, which were preferred by
the BDA.
2.1. While awaiting regularization of his service in
terms of the Award passed in. I.D. Case No.74 of 2003, the
Petitioner was relieved from Information Section of BDA on
05.01.2007. Pursuant to the same, though he gave his
joining report before the Establishment Officer on
06.01.2007 for a suitable posting, he was not assigned
any duty .But later on he was allowed to sign the
attendance register. During continuance of service, a
charge-sheet was issued to the Petitioner on 24.10.2008
for alleged unauthorized absence. An explanation was
submitted on 31.10.2008 denying the allegations. An
enquiry was allegedly conducted by the OSD (Legal)
behind the back of the Petitioner. Without furnishing the
Enquiry Report or affording opportunity of hearing, the
Petitioner was disengaged from service on 20.11.2009, in
violation of principles of natural justice.
2.2. Being aggrieved, the Petitioner preferred an
Appeal on 11.03.2010 before the Chairman, BDA. The said
Appeal being placed before the Authority of BDA, in the
Authority Meeting dated 10.11.2010, it was resolved to re-
engage the Petitioner with a warning. It was further
resolved that his case for regularization would be
considered like other DLR employees. However, no
administrative order of posting was issued in compliance
W.P.(C) No.12073 of 2017 Page 4 of 36
with the said Resolution of the Authority. Consequently,
after dismissal of SLP (Civil) No. 20736 of 2010 on
06.08.2010, services of all other similarly placed 112
employees named in the Award were regularized. However,
the Petitioner’s case remained pending due to delay in
acting in terms of the proceeding meeting dated
10.11.2010.
2.3. Subsequently, in its 133rd Meeting dated
23.11.2016, the Authority rejected the Petitioner’s claim
for regularization by relying on Finance Department
Resolution dated 15.05.1997 under Agenda Item No.
30/133. Hence, the present writ petition has been
preferred by the Petitioner seeking judicial intervention for
re-engagement and regularization of his service with
consequential benefits.
3. Such a prayer has been made basically on the
ground that the Resolution of Finance Department dated
15.05.1997, relying on which the case of the Petitioner
was not considered for regularization, is inapplicable, as
the Petitioner had completed more than ten years of
continuous service well before the Labour Court Award,
having been working with effect from 03.08.1994.
3.1. It is the case of the Petitioner that, once the
Appeal of the Petitioner was considered and a decision was
taken for his re-engagement by the Authority in its
Meeting dated 10.11.2010, the question of any break in
W.P.(C) No.12073 of 2017 Page 5 of 36
service does not arise. Further, unlike others, who have
been regularized with effect from 06.08.2010, the
Petitioner ought to have been regularized from the said
date without any discrimination. Hence, the rejection of
his case is quite unreasonable, illegal, arbitrary and an
outcome of non-application of mind by the B.D.A.
4. A Counter Affidavit has been filed by the
Opposite Parties No.2 & 3 opposing to the prayer made in
the writ petition stating therein that, the Petitioner was
engaged as a DLR Assistant (Clerk) on 03.08.1994 and
worked in different branches of BDA till 05.01.2007.
Thereafter, he remained absent from duty without
intimation and worked only for four days during the year
2007. On account of unauthorized absence and negligence
in duty, a proceeding was initiated against him. After
inquiry and opportunity of hearing, the Petitioner was
disengaged from service vide order dated 20.11.2009.
4.1. It is the further stand of the Opposite Parties
that, although the Petitioner preferred an Appeal against
the said disengagement order and the Authority in its
Meeting dated 10.11.2010 resolved to re-engage him with
a warning and to consider his case for regularization after
observing formalities, upon careful examination of his
previous service records, it was found that he had not
rendered continuous service as per the prevailing Rules.
Consequently, the matter was placed before the Authority
W.P.(C) No.12073 of 2017 Page 6 of 36
in its 133rd Meeting dated 23.11.2016, in which it was
decided not to regularize the Petitioner’s service in view of
the Finance Department Resolution dated 15.05.1997.
5. In response to the Counter Affidavit filed by the
Opposite parties Nos. 2 & 3, a Rejoinder Affidavit has been
filed by the Petitioner denying the allegations made
therein. It has been asserted that, despite the Award of the
Labour Court having attained finality, the Petitioner was
disengaged on 20.11.2009 during pendency of the
proceeding before this Court on a false plea of
unauthorized absence, which was later recalled and he
was directed to be reinstated in service.
5.1. It has further been stated that the Authority, in
its Meeting dated 10.11.2010, directed to reinstate the
Petitioner and to grant him all consequential benefits and
to consider his case for regularization in terms of the
Labour Court Award. However, despite similarly situated
employees having been regularized, unfortunately, in the
meeting dated 23.11.2016, after about six years of taking
a decision to re-engage him and to consider his case for
regularization like other DLR employees, the Petitioner
alone was denied absorption even as a contractual DLR
employee, which is in clear violation of the order of the
Supreme Court so also an act of contempt.
5.2. The Petitioner has categorically denied the
allegations of unauthorized absence or negligence in duty.
W.P.(C) No.12073 of 2017 Page 7 of 36
It has been asserted that the Petitioner was discharging
his duties diligently in accordance with official orders and
that the contrary stand taken in the Counter Affidavit is
unacceptable in law, particularly in view of the appellate
order passed by the Chairman, BDA, and the
consequential decision under Annexure-6. It has further
been stated that though a legal opinion was sought for
and as per the said opinion in favour of the Petitioner
treating the relevant period as continuous service and for
its regularization was not acted upon on the ground that
the matter is subjudice.
6. Learned Counsel for the Petitioner submitted
that the Vice Chairman, B.D.A. had no authority to act
contrary to the decision of the B.D.A. dated 10.11.2010
directing reinstatement/re-engagement of the Petitioner.
Since the Petitioner was continuing as a DLR employee
and the Award stood in his favour, the order passed under
Annexure-7 series is per se illegal, without jurisdiction,
mala fide, and a nullity in the eye of law.
6.1. Learned Counsel for the Petitioner further
submitted that the Labour Court Award dated 30.12.2004,
having been affirmed by this Court so also the Supreme
Court, could not be nullified by the subsequent
disengagement order dated 20.11.2009, which was passed
without authority, without following due process of law,
and in violation of the principles of natural justice. Upon
W.P.(C) No.12073 of 2017 Page 8 of 36
confirmation of the Award, the Petitioner is deemed to be a
regular employee w.e.f. from 03.08.1999, i.e., the date of
completion of five years of service, as directed by the
Labour Court.
6.2. It was also submitted that the stand of the
Opposite Parties treating reinstatement as a fresh
engagement and denying regularization on the ground of
non-completion of ten years of service is completely
absurd and unacceptable in law, particularly when
similarly situated 112 DLR employees have already been
regularized in terms of the Award passed in I.D. Case
No.74 of 2003. Accordingly, non-implementation of the
Award regarding regularization of service as well as the
decision dated 10.11.2010 taken in the Authority Meeting
to re-engage the Petitioner is unsustainable. It was
submitted that the Petitioner is entitled to be reinstated in
service w.e.f.20.11.2009,i.e., the date from which he was
illegally disengaged ,so also regularization of his service
with effect from 03.08.1999 as a Clerk, as was done in
case of similarly placed persons named in the Award
passed by the Labour Court, with all consequential
benefits.
7. Per contra, Learned Counsel for the Opposite
Party Nos.2 & 3, reiterating the stand taken in the
Counter Affidavit, submitted that, as the Petitioner
remained unauthorisedly absent on several occasions and
W.P.(C) No.12073 of 2017 Page 9 of 36
committed negligence in duty, a departmental proceeding
was rightly initiated against him leading to his
disengagement on 20.11.2009 after following due
procedure. Further, although the B.D.A. Authority, as a
matter of leniency, resolved on 10.11.2010 to re-engage
the Petitioner with a warning, such regularization can only
be granted upon satisfying eligibility conditions under the
prevailing policy. However, the Petitioner’s case, upon
objective scrutiny by the Authority in its 133rd Meeting
dated 23.11.2016, was rightly rejected on the ground of
non-fulfillment of the criteria of continuous service.
Hence, no discrimination or arbitrariness can be alleged
and the writ petition be dismissed.
8. On perusal of records it is ascertained that,
pursuant to the order dated 02.08.2024 of this Court, vide
which a direction was given to produce the work
sheet/attendance sheet of the Petitioner, the Opposite
Party Nos. 2 & 3 have filed an Affidavit enclosing thereto
salary statement of the Petitioner for the period from 1994
to 2006 as Annexure-A/2. It has been asserted therein
that the Petitioner remained unauthorisedly absent which
warranted for his disengagement. He was disengaged while
he was working in the Enforcement Section w.e.f 5.1.2007.
As he remained unauthorisedly absent from duty, his
engagement was treated discontinued after 05.01.2007.
The Petitioner was asked to furnish explanation vide letter
W.P.(C) No.12073 of 2017 Page 10 of 36
No.2289 dtd. 09.03.2007 and Memo No.8687
dtd.24.10.2008. After due enquiry, the Enquiring Officer
found that the charges were established and basing on
that the order of disengagement was issued vide Memo No.
13289 dtd.20.11.2009.It has further been asserted that,
though the Petitioner was initially directed to be re-
engaged by the Vice Chairman, the Board, in its 133rd
Meeting on 23.11.2016, declined regularization of his
service in view of the Finance Department Resolution
dated 15.05.1997, noting that the Petitioner did not fulfill
the prescribed norms.
8.1. In response, the Petitioner, through a Rejoinder
Affidavit to the said Further Affidavit, has denied the
allegations of unauthorized absence, clarifying therein that
NMR/DLR employees are entitled to salary only for actual
working days. In an ideal condition, from 365 days of a
year, there are 12 second Saturdays, 52 Sundays and 39
to 42 days of government holidays. Thereby hardly there
are about 260 working days available for an employee to
work in a year. Further, it has been stated that it is
strange to note that the Petitioner has been disengaged
twice, first on 05.01.2007 and secondly on 20.11.2009. It
has been stated that the Vice Chairman’s finding requiring
ten years of continuous service for regularization is
unsustainable being inconsistent with the Award,
pursuant to which 112 similarly situated employees were
W.P.(C) No.12073 of 2017 Page 11 of 36
regularized, excluding the Petitioner on the ground of the
illegal disengagement order, which was ultimately held to
be bad by the Authority.
9. In view of the facts on record and submissions
made by the learned Counsel for the parties, the following
points emerge to be dealt/answered in the present writ
petition;
I) Whether the termination of the service of the
Petitioner with effect from 20.11.2009 was
legal and justified?
II) Pursuant to Appeal dated 11.03.2010 of the
Petitioner, despite resolution/decision of the
Authority in its Authority Meeting dated
10.11.2010 to re-engage the Petitioner,
whether the Management of BDA was
justified in not reinstating/re-engaging the
Petitioner?
III) Despite the Award dated 30.12.2004 passed
in I.D. Case No.74 of 2003, vide which a
direction was given to regularize the
services of 113 concerned Workmen,
including the Petitioner, who have
completed five years of service in General
Category and three years of service in S.C.
& S.T. Category, which was confirmed by
this Court in W.P.(C) No.5319 of 2005 and
W.P.(C) No.12073 of 2017 Page 12 of 36
reaffirmed by the Supreme Court in SLP(C)
No.20736 of 2010, whether it was open for
the Opposite Party-Management to single
out the Petitioner by not regularizing his
service on the plea of non-fulfillment of
conditions vide Finance Department
Resolution dated 15.05.1997?
IV) Whether the Finance Department Resolution
dated 15.05.1997 will have an overriding
effect over the Award dated 30.12.2004
passed in I.D. Case No.74 of 2003, which
was published on 14.01.2005 in the
Gazette in terms of Section 17 and came
into effect from 13.02.2005 in terms of
Section 17A of the I.D. Act. 1947?
V) To what relief, if any, the Petitioner is entitled
to?
10. So far as Point Nos.I & II, both being
interlinked, are dealt with and answered together for the
sake of brevity.
10.1. As is revealed from the record, admittedly, the
Petitioner was engaged as a DLR Assistant (Clerk) in the
Opposite Party Organization on 03.08.1994 and
continuously worked for about 12 years in the Information
Section of B.D.A. till 05.01.2007. Thereafter, he was
W.P.(C) No.12073 of 2017 Page 13 of 36
relieved from the said Section and gave his joining report
before the Establishment Officer on 06.01.2007. Though,
he was working as a Clerk/DLR Assistant in the
information section, after he was relieved from Information
Section on 05.01.2007, instead of assigning him clerical
nature of jobs, to the reason best known to the Opposite
Party-Management, he was asked to work in the park
maintained by B.D.A. Thereafter, he was charge sheeted
on 24.10.2008 for unauthorized absence from duty. As is
revealed from the disengagement order (Annexure-4), the
Petitioner submitted his explanation on 31.10.2008
denying the allegations/charges brought against him
taking a stand therein that Garden-In-charge of the
Horticulture Wing, as a token of his presence in the Park,
did not allow him to sign the attendance register. An
enquiry was allegedly conducted by the O.S.D. (Legal)
behind the back of the Petitioner. Based on the report of
the Garden Assistant, Horticulture Officer, Chief
Horticulturist and Enforcement Officer-I, without any
departmental proceeding and without affording any
opportunity of hearing, the Petitioner was disengaged from
service on 20.11.2009 in violation of principles of natural
justice.
10.2. Being aggrieved, the Petitioner preferred an
Appeal on 11.03.2010 before the Chairman, Bhubaneswar
Development Authority, Bhubaneswar, which was placed
W.P.(C) No.12073 of 2017 Page 14 of 36
before the Authority of B.D.A. in its Authority Meeting held
on 10.11.2010. In the said minutes of meeting held on
10.11.2010, though it was resolved to re-engage the
Petitioner with a warning and it was further resolved that
his case for regularization like other DLRs would be
considered, to the reason best known, he was never re-
engaged/reinstated in service in terms of the said
Resolution of the Board dated 10.11.2010.That apart, no
communication was made to the Petitioner assigning the
reason thereof not to re-engage/reinstate him in service in
terms of the said decision taken in the Authority Meeting
dated 10.11.2010. Much thereafter, pursuant to the 133
rd
Authority Meeting held on 23.11.2016, it was decided not
to regularize the Petitioner’s service referring to Finance
Department Resolution dated 15.05.1997, which
mandates that for regularization of services, the workers
should have worked under the administrative control of
the department concerned directly for a minimum period
of 10 years and the engagement of 240 days in a year shall
be considered as a complete year of engagement for the
said purpose.
10.3. In the Counter Affidavit filed by the Opposite
Party Nos.2 & 3, a stand has been taken before this Court
that the Petitioner worked as a DLR Assistant/Clerk with
effect from 03.08.1994 and worked in different branches of
B.D.A. till 05.01.2007. Thereafter, the Petitioner allegedly
W.P.(C) No.12073 of 2017 Page 15 of 36
remained absent from duty without any intimation and
worked only for four days during the year 2007 and was
charge sheeted for unauthorized absence and negligence
in duty, followed by initiation of departmental enquiry
giving opportunity of hearing to the Petitioner. The said
stand of the Opposite Parties has been denied by the
Petitioner in his Rejoinder. No document has been
appended to the Counter Affidavit so also to the Further
Affidavit to demonstrate before this Court that pursuant to
the charge sheet dated 24.10.2008, though the Petitioner
submitted his explanation on 31.10.2008 denying the
charges, a regular departmental proceeding was
conducted to prove the charges brought against the
Petitioner giving him due opportunity of hearing, following
the principles of natural justice. No document has also
been appended to the Counter Affidavit or Further
Affidavit to demonstrate before this Court that pursuant to
a regular enquiry, a report being submitted by the O.S.D.
(Legal), the same was furnished to the Petitioner along
with a second show cause notice, thereby giving him an
opportunity to have his further say in the said regard
before issuance of disengagement order dated 20.11.2009.
Rather, in the writ petition it has been pleaded that the
Petitioner submitted his explanation on 31.10.2008
denying the charges and his disengagement from service
with effect from 20.11.2009 to be in violation of principles
W.P.(C) No.12073 of 2017 Page 16 of 36
of natural justice. In the Rejoinder also it has been stated
that during pendency of the said proceeding, the Petitioner
was disengaged from service with effect from 20.11.2009
on a false plea of unauthorized absence, which order was
later recalled by the Authority. An Appeal being preferred
against such illegal action, a decision was taken in the
Authority Meeting to reinstate him in service.
10.4. Admittedly, an Appeal being preferred by the
Petitioner on 11.03.2010, it was resolved in the Authority
Meeting held on 10.11.2010 to re-engage the Petitioner.
However, no reason has been assigned in the Counter as
to why the Opposite Party-Management did not act in
terms of the said decision dated 10.11.2010 taken in the
Authority Meeting to re-engage the Petitioner till rejection
of his case for regularization vide subsequent decision
taken in the Authority Meeting held on 23.11.2016, which
was only confining to the issue regarding regularization of
service of the Petitioner. The said Resolutions of the
Authority of B.D.A, dated 10.11.2010 and 23.11.2016,
being relevant, are reproduced below for ready reference.
Extract from the Resolution of the Authority
Meeting dt. 10.11.2010
“Sri Kailash Ch. Das, D.L.R., was disengaged
earlier for poor performance in discharging the duty
properly. Sri Das has appealed before the Hon’ble
Chairman on several occasions. The matter of re-
engagement of Sri Das was discussed in details.
On humanitarian grounds, it was decided to re-
W.P.(C) No.12073 of 2017 Page 17 of 36
engage Sri Das from the date of issue of order
in this regard, with a warning of not committing
such mistakes in future.
The case of Sri Das will be considered for
regularization in service like other DLR
employees after observing all formalities.”
(Emphasis supplied)
Extract from the Resolution of the Authority
Meeting dt. 23.11.2016
Agenda Item
No. 30/133
Re-engagement & regularization of Sri
Kailash Chandara Das, Ex-DLR in BDA,
Bhubaneswar.
The matter was discussed in detail. As per
Finance Department Resolution
No.22764/WFI dtd. 15.05.97 on
absorption of NMR/ DLR/ Job Contract
worker under regular Establishment, the
case of Shri Kailash Chandra Das, Ex-
DLR (disengaged) was not considered.
(Emphasis supplied)
10.5. Admittedly it was never resolved in any of the
subsequent meetings, including in the Authority Meeting
dated 23.11.2016, not to re-engage/reinstate the
Petitioner, in supersession of the decision taken in the
Authority Meeting dated 10.11.2010. Further, the
Management of B.D.A. has failed to demonstrate before
this Court as to why the Petitioner was not re-engaged in
service despite the decision taken in the 116
th Authority
W.P.(C) No.12073 of 2017 Page 18 of 36
Meeting of B.D.A. held on 10.11.2010, even though there
was no legal embargo to implement the said decision of
the Apex body, which resolved to re-engage the Petitioner
with a warning not to commit such mistake in future.
10.6. Further, the stand taken in the Counter as well
as Additional Affidavit are also contradictory to each other.
In the Counter a stand has been taken that the Petitioner
was first engaged as a DLR Assistant (Clerk) on
03.08.1994 and worked in different branches of BDA till
05.01.2007. Thereafter, he allegedly remained absent from
duty without intimation and worked only for four days
during the year 2007.However, in the Further Affidavit,
which was filed by the Opposite Party Nos. 2 and 3
pursuant to order dated 02.08.2024, a different stand has
been taken therein . Though an order was passed on
02.08.2024 to file Attendance Sheet/Work Sheet, a salary
statement was filed in form of Further Affidavit stating
therein that the Petitioner remained unauthorisedly
absent which warranted for his disengagement. He was
disengaged while he was working in the Enforcement
Section w.e.f 05.01.2007. As he remained unauthorisedly
absent from duty his engagement was treated
discontinued after 05.01.2007. The Petitioner was asked
to furnish explanation vide letter No.2289 dtd.9.3.2007
and Memo No.8687 dtd.24.10.2008. After due enquiry, the
Enquiring Officer found that charges were established and
W.P.(C) No.12073 of 2017 Page 19 of 36
basing on that the order of disengagement was issued vide
Memo No. 13289 dtd.20.11.2009, which has been denied
by the Petitioner in his Rejoinder Affidavit. Rather, it has
been stated that how a person can be disengaged twice;
first on 05.01.2007 and again on 20.11.2009.
10.7. Further, as is revealed from the disengagement
order dated. 20.11.2009 (Annexure-4), there is a mention
regarding noting made in the Attendance Register of
Kharavela Park to the effect that, for the months of
August, September, October and November, 2007, the
Petitioner had only signed the attendance register without
doing any work in the park. Hence, this Court fails to
appreciate such stand taken in the Further Affidavit that,
if the Petitioner’s engagement was treated discontinued
after 05.01.2007 because of his absence, how he could
sign the Attendance Register for the months of August,
September, October and November, 2007 in Kharavela
Park. Rather, as is revealed from the said disengagement
order, in response to a show cause notice vide letter
No.403 dt.29.9.2007 of the Chief Horticulturist (I/C), vide
which the Petitioner was asked to show cause as to why
the period for which he failed to attend his duties should
not be treated as “no work no pay”, the Petitioner’s stand
was that since he was engaged as an Assistant and
drawing the salary @ Rs.82.50 per day, he may be
assigned the duties of office work. However, it was
W.P.(C) No.12073 of 2017 Page 20 of 36
presumed by the Enquiry Officer that the Petitioner
indirectly admitting that he was not prepared to perform
the duty in the park.
10.8. It is further revealed from the said
disengagement order that the Chief Horticulturist (I/C)
,vide his notes dated 8.10.2007, informed the Secretary,
B.D.A. that as there was no official work to be performed
at the site(park), the Petitioner could be shifted to any
other Division having office work.
10.9. Hence, this Court is unable to understand as to
why the Management of B.D.A. posted the Petitioner in a
park after 05.01.2007, where there was no clerical job to
be assigned in the park and the Petitioner was admittedly
doing clerical jobs as a DLR Clerk from 1994 till
05.01.2007. Hence, this Court is of prima facie view that
the allegation of unauthorised absence under such forced
circumstances is false and seems to be mala fide, which is
further fortified with the conduct of the Management of
B.D.A. in not reinstating the Petitioner in service despite
the decision of the Apex Body in its 116
th Meeting dated
10.11.2010.
10.10. Law is well settled that, where termination of
service/dismissal is preceded by a departmental
proceeding, the Enquiry Report has to be furnished to the
delinquent, thereby giving him/her an opportunity to have
his/her say on the said Report. Non-supply of enquiry
W.P.(C) No.12073 of 2017 Page 21 of 36
report, vide which the delinquent was found guilty by the
Enquiry Officer, vitiates the enquiry so also the
subsequent action of the Management, based on such
faulty enquiry. Law is also well settled that if the
termination of service of an employee is in violation of the
principles of natural justice, such action is inevitably to be
declared as illegal and unjustified. The Opposite Party–
Management has failed to satisfy this Court by filing
document to the effect that there was a regular enquiry
before punishing the Petitioner by way of disengagement,
so also furnishing of enquiry report to the Petitioner.
10.11. Hence, from the admitted pleadings, documents
on record and after taking into consideration the
submissions made by the learned Counsel for the parties
so also the settled position of law and for the reasons
detailed above, this Court is of the view that the
termination of service of the Petitioner with effect from
20.11.2009, under the guise of disengagement order,
which is punitive, was neither legal nor justified. This
Court is of further view that the Opposite Party-
Management (B.D.A. Authority) was also not justified in
not re-engaging/reinstating the Petitioner despite the
decision of the Authority in its 116
th Meeting dated
10.11.2010 to re-engage him in service and issue order in
the said regard. Point Nos.I & II are answered accordingly
in favour of the Petitioner.
W.P.(C) No.12073 of 2017 Page 22 of 36
11. So far as Point Nos.III & IV, the said points
being interlinked, are also dealt with and answered
together for the sake of brevity.
11.1. Admittedly, a reference being made by the State
Government to the Labour Court, Bhubaneswar at the
instance of the B.D.A. Workers’ Association, which was
registered as I.D. Case No.74 of 2003, after giving due
opportunity to the parties, an Award was passed by the
learned Labour Court on 30.12.2004 in terms of Section
16 of the I.D. Act, 1947. The said Award was notified in
the Gazette on 14.01.2005 in terms of Section 17 of the
I.D. Act, 1947. As prescribed under Section 17A of the I.D.
Act, 1947, after expiry of 30 days from the date of such
Notification, the Award came into effect on 13.02.2005.
The said Award was challenged by the Opposite Party-
Management (B.D.A.) in W.P.(C) No.5319 of 2005. The writ
petition was dismissed vide judgment dated 11.01.2010
with an observation that there is no illegality or perversity
in the impugned Award deserving interference by this
Court in exercise of its plenary jurisdiction under Article
226 of the Constitution. Further the said Award so also
Judgment of this Court, being challenged by the B.D.A.
Management before the Supreme Court in SLP(C)
No.20736 of 2010, the SLP stood dismissed on
06.08.2010, thereby confirming the said Award passed by
the Labour Court, Bhubaneswar. It is apposite to mention
W.P.(C) No.12073 of 2017 Page 23 of 36
here that during hearing of the present writ petition, it
was ascertained that, though the Award passed in I.D.
Case No.74 of 2003 was challenged in W.P.(C) No.5319 of
2005, the coordinate Bench did not stay operation of the
impugned Award passed in I.D. Case No.74 of 2003 till
dismissal of the said writ petition. As is further revealed
from the record, though the Supreme Court, vide order
dated 06.08.2010, condoned the delay in preferring the
SLP(C) No.20736 of 2010, but on the very same day
dismissed the Special Leave Petition. Thus the said Award
came into force with effect from 13.02.2005.
11.2. Hence, the Award dated 30.12.2004 passed in
I.D. Case No.74 of 2003, which came into force with effect
from 13.02.2005, on dismissal of SLP, has attained finality
since 06.08.2010. At this juncture, it would be apt to
reproduce below the operative portion of the said Award
dated 30.12.2004 for ready reference:
“10. Hence it is ordered :
That the action of the management of
Bhubaneswar Development Authority,
Bhubaneswar is not regularising the services of
113 numbers of N. M. R. / D. L. R. / ad hoc
workmen is Illegal and unjustified. The above
113 workmen are entitled for regularisation
of their respective services from the date
they have completed five years of service in
respect of general category of workmen and
three years of service in respect of the
Scheduled Caste and Scheduled Tribe
workmen. The management is directed to
W.P.(C) No.12073 of 2017 Page 24 of 36
consider the case of the concerned 113 workmen
for regularisation at an early date.
The reference is thus answered accordingly.”
(Emphasis supplied)
11.3. It is amply clear from the said direction given by
the learned Labour Court, Bhubaneswar that the Labour
Court was of the view that the action of the Management
of Bhubaneswar Development Authority, Bhubaneswar in
not regularizing the service of the 113 numbers of
NMR/DLR/Ad-hoc Workmen is illegal and unjustified.
Accordingly, it was held that all the 113 concerned
workmen are entitled for regularization of their respective
services from the date they have completed five years of
service in respect of General Category of Workmen, and
three years of service in respect of Scheduled Caste and
Scheduled Tribe workmen. Accordingly, a direction was
given to consider their cases for regularization at the
earliest.
11.4. Admittedly, the Petitioner-Workman belongs to
General Category and he was one of the concerned
workmen in I.D. Case No.74 of 2003. Further, the
direction of the Labour Court was to regularize the
services of the concerned Workmen in the General
Category, who have completed “five years of service”, not
“five years of continuous service ”. Admittedly, the
Petitioner worked with effect from 03.08.1994 till
05.01.2007 and thereafter also .Finally he was illegally
W.P.(C) No.12073 of 2017 Page 25 of 36
disengaged from service w.e.f. 20.11.2009. Further, he
had already worked for more than ten years of service as
on the date of passing of the Award dated 30.12.2004 in
I.D. Case No.74 of 2003, his date of first engagement as a
DLR Assistant/Clerk being 03.08.1994.
11.5. In terms of the said Award dated 30.12.2004,
passed in I.D. Case No.74 of 2003, his services ought to
have been regularized with effect from 03.08.1999.
However, during operation of the said Award, on the plea
of pendency of W.P.(C) No.5319 of 2005 before this Court,
which stood dismissed on 11.01.2010, so also pendency of
SLP(C) No.20736 of 2010 before the Supreme Court, which
stood dismissed on 06.08.2010, his claim for
regularization so also similarly placed 112 DLRs were not
considered by the Management. Rather, his services were
brought to an end illegally with effect from 20.11.2009.
11.6. It is amply clear from the operative portion of
the Award, as quoted above, a direction was given by the
Labour Court in I.D. Case No.74 of 2003 to regularize the
services of the concerned workmen with retrospective
effect from the day, when all of them completed five years
of service, not “continuous service” as defined under
Section 25-B of the I.D. Act. That apart, the Petitioner
workman had worked for more than ten years as on the
date of passing of Award dated 30.12.2004 in I.D. Case
No.74 of 2003. Further, as is revealed from the salary
W.P.(C) No.12073 of 2017 Page 26 of 36
statement of the Petitioner, appended to the Further
Affidavit of the Management as Annexure-A/2, the
Petitioner has worked for more than 240 days in all the
years, excepting in the years 1999, 2003 and 2005, in
which years he allegedly worked for 230 days, 227 days
and 238 days respectively. Admittedly, the Petitioner,
being a DLR, was paid for the days he actually worked. In
his Rejoinder Affidavit, which has been filed in response to
the Further Affidavit filed by the Management, the
Petitioner has categorically stated that those year wise
working days, as reflected in the salary statement, are
excluding 52 Sundays, 12 second Saturdays and holidays,
including national holidays. Law is well settled that while
calculating 240 days in terms of definition of “continuous
service”, as defined under Section 25-B of the
I.D.Act,1947, weekly off days and holidays are to be taken
note of.
11.7. In a recent judgment in The Management of
M/s. Hare Krushna Mahatab Library, Bhubaneswar v.
Prasanna Kumar Sethi , reported in 2025(I)ILR-CUT1082,
relying on the Supreme Court Judgments in
Surendranagar District Panchayat v. Dahyabhai
Amarsinh, (2005) 8 SCC 750, so also in Workman of
American Express International Banking Corporation
Vs. Management of American Express International
Banking Corporation, reported in (1985) 4 SCC 71,this
W.P.(C) No.12073 of 2017 Page 27 of 36
Court held that weekly rest days, Sundays and paid
holidays are to be counted while computing 240 days.
11.8. That apart, when similarly placed employees’
services were regularized in terms of the Award, those who
have completed five years of service, debarring the
Petitioner from such relief, relying on the Finance
Department Resolution of 10 years continuous service
amounts to discrimination. Law is well settled that treating
equals differently, without any rational basis, is contrary to
constitutional morality and violates Articles 14 and 16 of the
Constitution of India, which underscores the duty of the
employer to uphold equality within its own administration.
11.9. Hence, this Court is of the view that the
Management of B.D.A in its Authority Meeting held on 23
rd
November, 2016 was not justified in rejecting the claim of
the Petitioner for regularization of his service, relying on
the Finance Department Resolution dated 15.05.1997
regarding absorption of NMR/DLR/Job Contract Workers
under regular Establishment, as the Petitioner had
already worked for more than 10 years of continuous
service by the time the Award dated 30.12.2004 was
passed by the Labour Court, Bhubaneswar. Such a view is
also based on the admitted facts on record that, the
Labour Court directed to regularize the services of
concerned workmen in I.D. Case No.74 of 2003 belonging
to general category, with retrospective effect from the
W.P.(C) No.12073 of 2017 Page 28 of 36
date each of them completed 5 years of service, not 10
years of continuous service in terms of the Finance
Department Resolution dated 15.05.1997.
11.10. It is worthwhile to mention here that, in view of
the provisions enshrined under Section 18(3)(c) of the I.D.
Act, 1947, the Award passed in I.D. Case No.74 of 2003 is
binding on the Opposite Party-Management. Section 18 of
the Act, 1947, being relevant, is extracted below:
“18. Persons on whom settlements and
awards are binding.- (1) A settlement arrived
at by agreement between the employer and
workman otherwise than in the course of
conciliation proceeding shall be binding on the
parties to the agreement.
(2) Subject to the provisions of sub-
section (3), an arbitration award] which has
become enforceable shall be binding on the
parties to the agreement who referred the
dispute to arbitration.
(3) A settlement arrived at in the course
of conciliation proceedings under this Act 5[or
an arbitration award in a case where a
notification has been issued under sub-section
(3A) of Section 10A] or [an award [of a Labour
Court, Tribunal or National Tribunal]
which has become enforceable ] shall be
binding on-
(a) all parties to the industrial
dispute;
(b) all other parties summoned to
appear in the proceedings as parties to the
dispute, unless the Board, [arbitrator,] [Labour
Court, Tribunal or National Tribunal], as the
W.P.(C) No.12073 of 2017 Page 29 of 36
case may be, records the opinion that they were
so summoned without proper cause;
(c) where a party referred to in
clause (a) or clause (b) is an employer, his
heirs, successors or assigns in respect of
the establishment to which the dispute
relates;
(d) where a party referred to in clause
(a) or clause (b) is composed of workmen, all
persons who were employed in the
establishment or part of the establishment, as
the case may be, to which the dispute relates on
the date of the dispute and all persons who
subsequently become employed in that
establishment or part.”
(Emphasis supplied)
11.11. Admittedly, the Award dated 30.12.2004 passed
in I.D. Case No.74 of 2003 is an outcome under the
special statute ,i.e., Industrial Disputes Act, 1947, and is
binding on the parties to the reference made by the
appropriate Government. The said Award being published
in terms of Section 17 of the Act,1947 on 14.01.2005,
came into force with effect from 13.02.2005 in terms of
Section 17-A of the said Act,1947. Further, the said Award
has not only been confirmed by this Court in W.P.(C)
No.5319 of 2005 holding that there is no illegality or
infirmity in the said Award, but also has been reaffirmed
by the Supreme Court in SLP(C) No.20736 of 2010, which
stood dismissed on 06.08.2010.
W.P.(C) No.12073 of 2017 Page 30 of 36
11.12. Law is well settled that, executive instructions
or administrative resolutions do not possess the authority
to override statutory adjudications or judicial
determinations.
11.13. The Supreme Court in Union of India v. K.M.
Shankarappa, reported in (2001) 1 SCC 582 held that
administrative or executive authorities cannot override, review,
or revise judicial or quasi-judicial orders. Paragraph 7 of the
said Judgment, being relevant, is reproduced below:
“7. We are unable to accept the submission of
the learned counsel. The Government has
chosen to establish a quasi-judicial body which
has been given the powers, inter alia, to decide
the effect of the film on the public. Once a quasi-
judicial body like the Appellate Tribunal,
consisting of a retired Judge of a High Court or
a person qualified to be a Judge of a High Court
and other experts in the field, gives its decision
that decision would be final and binding so far
as the executive and the Government is
concerned. To permit the executive to review
and/or revise that decision would amount to
interference with the exercise of judicial
functions by a quasi-judicial Board. It would
amount to subjecting the decision of a quasi-
judicial body to the scrutiny of the executive.
Under our Constitution the position is reverse.
The executive has to obey judicial orders.
Thus, Section 6(1) is a travesty of the rule
of law which is one of the basic structures
of the Constitution. The legislature may, in
certain cases, overrule or nullify a judicial
or executive decision by enacting an
appropriate legislation. However, without
enacting an appropriate legislation, the
executive or the legislature cannot set at
naught a judicial order. The executive
W.P.(C) No.12073 of 2017 Page 31 of 36
cannot sit in an appeal or review or revise
a judicial order. The Appellate Tribunal
consisting of experts decides matters quasi-
judicially. A Secretary and/or Minister cannot
sit in appeal or revision over those decisions. At
the highest, the Government may apply to the
Tribunal itself for a review, if circumstances so
warrant. But the Government would be bound
by the ultimate decision of the Tribunal.”
(Emphasis supplied)
11.14. The Supreme Court in a recent judgment in
Adani Power Ltd. and Anr. Vs. Union of India (UOI)
and Ors., reported in 2026 SCC OnLine SC 11, reiterating
the said principle, held that judicial pronouncements
,which have attained finality, constitute binding
commands of law, not advisory opinions and
administrative authorities are constitutionally bound to
comply with them.
11.15. Hence, this Court is of the view that in view of
the Award dated 30.12.2004 passed in I.D. Case No.74 of
2003, which regulates the issue regarding regularization of
service of the Petitioner, the Finance Department
Resolution dated 15.05.1997 has no applicability to the
said issue. It was incorrectly/wrongly applied to the case
of the Petitioner to deny/debar him from the benefits
flowing out of the said Award passed in I.D. Case No.74 of
2003. Further, this Court is of the view that the said
Government Resolution dated 15.05.1997 cannot have an
overriding effect on an Award passed by the Industrial
W.P.(C) No.12073 of 2017 Page 32 of 36
Adjudicator in terms of Section 16 of the I.D. Act, 1947,
more particularly after its publication under Section 17
and coming into force in terms of Section 17-A of the Act,
1947. Issue Nos.3 & 4 are answered accordingly.
12. So far as Issue No.V regarding the relief, if any,
the Petitioner is entitled to, law is well settled that if the
termination of service of an employee/workman is held to
be illegal, the said action of the Management cannot
deprive an employee of continuity of service and
consequential benefits. In Deepali Gundu Surwase Vrs.
Kranti Junior Adhyapak Mahavidyalaya , reported in
(2013) 10 SCC 324, the Supreme Court, referring to
catena of its earlier judgments on the said issue, including
a three-Judge Bench judgment in Hindustan Tin Works
(P) Ltd. v. Employees of Hindustan Tin Works (P) Ltd.,
reported in (1979) 2 SCC 80 : 1979 SCC (L&S) 53, held as
follows:
“22. The very idea of restoring an
employee to the position which he held
before dismissal or removal or
termination of service implies that the
employee will be put in the same position
in which he would have been but for the
illegal action taken by the employer . The
injury suffered by a person, who is dismissed
or removed or is otherwise terminated from
service cannot easily be measured in terms of
money. With the passing of an order which has
the effect of severing the employer-employee
relationship, the latter's source of income gets
dried up. Not only the employee concerned, but
his entire family suffers grave adversities.
W.P.(C) No.12073 of 2017 Page 33 of 36
They are deprived of the source of sustenance.
The children are deprived of nutritious food
and all opportunities of education and
advancement in life. At times, the family has to
borrow from the relatives and other
acquaintance to avoid starvation. These
sufferings continue till the competent
adjudicatory forum decides on the legality of
the action taken by the employer. The
reinstatement of such an employee, which
is preceded by a finding of the competent
judicial/quasi-judicial body or court that
the action taken by the employer is ultra
vires the relevant statutory provisions or
the principles of natural justice, entitles
the employee to claim full back wages. If
the employer wants to deny back wages to
the employee or contest his entitlement to
get consequential benefits, then it is for
him/her to specifically plead and prove
that during the intervening period the
employee was gainfully employed and was
getting the same emoluments. The denial
of back wages to an employee, who has
suffered due to an illegal act of the
employer would amount to indirectly
punishing the employee concerned and
rewarding the employer by relieving him
of the obligation to pay back wages
including the emoluments.”
(Emphasis Supplied)
12.1. So far as the post ,scale of pay, grade etc. in
which the Petitioner’s service is to be regularised, from
the Affidavit dated 02.08.2025, which was filed being so
directed vide order dated 24.06.2025, it is revealed that,
pursuant to the Award passed in I.D Case No. 74/2003
and the orders of this Court in W.P (C) No.5319/2005 so
W.P.(C) No.12073 of 2017 Page 34 of 36
also the Supreme Court in S.L.P No.20736/2010, as per
the decision taken in 116th and 117th Authority Meeting
held on 10.11.2010 and 10.02.2011 respectively, vide
Office Order dtd. 04.03.2011, 61 numbers of workmen
were regularized with effect from 06.08.2010. It is further
revealed from the Office Order dtd. 04.03.2011, which
forms part of the said Affidavit, Dwijabar Sahoo and
Manoranjan Pal, who were working as DLR Assistant
(Clerk) like the Petitioner, were regularised as Clerk(JR
Clerk ) in Pay Band-1 with Scale of pay of Rs.5,200 -
Rs.20,200/- and Grade Pay of Rs.1900/-.
13. In view of the discussions made in the forgoing
paragraphs, materials on record, so also views taken by
this Court while dealing with Issue Nos.1 to 4, as detailed
above, this Court directs as follows:
13.1. The Petitioner be reinstated in service with
retrospective effect from 20.11.2009, i.e., the date on
which he was illegally dis-engaged from service while
working as a DLR Assistant (Clerk).
13.2. He shall be paid full back wages as a DLR with
effect from 20.11.2009 till 06.08.2010 and other
consequential benefits, if any, including continuity of
service.
13.3. So far as regularization of service of the
Petitioner, in terms of the Award dated 30.12.2004 passed
in ID. Case No.74 of 2003, the Petitioner’s service was
W.P.(C) No.12073 of 2017 Page 35 of 36
required to be regularized with effect from 03.08.1999, i.e.,
the date on which he completed the five years of service.
However, the Petitioner has prayed for regularizing his
service with effect from 06.08.2010, i.e., the date with
effect from which the services of similarly placed
concerned Workmen/DLRs were regularized by the
Management of B.D.A. Hence, the Opposite Party-
Management (Opposite Party Nos.2 & 3) are directed to
regularize the services of the Petitioner as Clerk (Jr. Clerk)
in Pay Band-1 with Scale of pay of Rs.5,200 - Rs. 20,200/-
and Grade Pay of Rs.1900/-, as was done in case of
similarly placed concerned Workmen.
13.4. The Petitioner is entitled for all consequential
benefits, including pay fixation, arrear salary and
promotion, what he would have got, had his services been
regularized with effect from 06.08.2010.
13.5. It is made clear that, on production of certified
copy of this Judgment, the Petitioner shall be reinstated in
service forthwith and be paid the minimum regular scale
of pay meant for the post of Clerk (Jr. Clerk) so also other
pay and perks / service benefits till fixation of his scale of
pay and grade, as directed vide paras 13.03 & 13.04
above.
13.6. The Petitioner’s inter se seniority in the post of
Clerk (Jr. Clerk) shall be fixed at par with similarly placed
W.P.(C) No.12073 of 2017 Page 36 of 36
other co-employees/workmen, who were concerned in I.D.
Case No.74 of 2003.
13.7. The pay fixation, inter se seniority and other
consequential reliefs, as directed above, shall be worked
out and all the arrears are to be paid to the Petitioner
within a period of three months hence.
14. The writ petition is allowed and disposed of
accordingly. No order as to costs.
…….….……………………
S.K. MISHRA, J.
Orissa High Court, Cuttack
The 6
th March, 2026/Prasant
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