Arun Kumar Pal vs State Of Odisha And Others

Dr. B.R. Sarangi, J

The petitioner, who is a nominated person of displaced family for Paradip Refinery Project of Indian Oil Corporation Ltd., has filed this writ petition seeking direction to the opposite parties, more particularly opposite party no.8, to provide him employment under the Rehabilitation and Relief Plan 2002 and Rehabilitation and Resettlement Policy of the Government of Odisha, 1998 under Annexure-1. The petitioner has further prayed to direct opposite party nos. 3 to 5 to take appropriate action for necessary compliance of the Plan/Policy vide Annexure-1 by opposite party nos. 6 to 8 and also to restrain opposite party nos. 6 to 8 to fill up the available vacancy under Junior Office Assistant-IV category prior to giving employment to the petitioner and make regular absorption of the petitioner in the establishment by giving such employment.

The factual matrix of the case, in brief, is that Indian Oil Corporation Ltd. (for short ‘IOCL’), is a Corporation created by the Union of India, Ministry of Petroleum, wherein the Union Government has more than 68% share capital. As such, the Corporation established its Refinery Project, a major Industrial project, at Paradip in the district of Jagatsinghpur, Odisha. The petitioner is under obligation to observe and comply with the policy, for Rehabilitation and Resettlement of displaced families, formulated by the State of Odisha for Major Industrial Projects. In the year 1998, opposite party no. 6 for setting up of its Paradip Refinery Unit at Paradip area acquired land measuring an area of Ac.3344.65 through IDCO (opposite party no-2). Due to acquisition of land, near about 143 families were displaced from their homestead land and many of them lost their agricultural land, the source of living. The petitioner’s family lost their house, homestead land and more than 2/3rd of their agricultural land. Therefore, as per policy for Rehabilitation and Resettlement of persons/families displaced for establishment of Major Industrial Projects 1998 of Government of Odisha, which is applicable to IOCL, one of the family members of a displaced family is entitled to be extended employment assistance by the industrial project authority. Needless to say, the IOCL authorities have also adopted the said policy of the Government of Odisha. Out of 143 displaced families, the nominees of 94 families opted for cash benefit in lieu of employment and the authorities have fulfilled the same.

2.1 To give effect to the policy/scheme, the Government formed a Rehabilitation Advisory Committee taking into consideration the various members from different quarters. The family members of Kusun Rout, a displaced family nominated the present petitioner for the purpose of availing employment assistance from the project. The petitioner has the qualification of B.Sc., P.G.D.C.A. with typing skill. As such, the family has not received any other alternative rehabilitation assistance, either in form of cash or in form of agricultural land and opted for employment assistance only. Taking into consideration the extent of land acquired and loss of homestead, the district administration and Special Land Acquisition Officer, Major Industrial Projects, Paradip issued displaced certificate in favour of the petitioner. On that basis, the project authorities sent the petitioner for training at Government Industrial Training Institute, Madhupatana, Cuttack, in the faculty of Stenography. The petitioner with a hope that he would be given employment in the refinery project, joined and completed the training and came out successful in August, 2004. But his name could not be registered in the Special Employment Exchange, Paradip, on the plea that the training course offered to the petitioner as a sponsored candidate of the IOCL is a special course and is not equivalent to other ITI Course. Even though, the petitioner had received the training, but he has not been given employment. Therefore, he approached the authorities on several occasions.

2.2 The petitioner was however engaged under Lingaraj Lenka and Brothers (LLB) agency in the year 2006 and worked for the Corporation till July, 2015. Subsequently, he was appointed under Oriental Security Services (OSS) in July, 2015 and has been continuing till today. During all these period, though he has been engaged under the outsourcing agencies and has been discharging duties for the IOCL as a Junior Office Assistant, but as per the report submitted by the IOCL authorities, the petitioner was shown to have been engaged as a displaced family member. However, in reality, he has not been given any employment in terms of the Rehabilitation and Relief Plan under Annexure-1. As such, he has not been regularly absorbed in the employment of IOCL. Thereby, the Policy/Plan adopted by the IOCL has not been adhered to, and though the petitioner is a displaced person and performing his duty for IOCL under ‘LLB’ and ‘OSS’ on being engaged for near about 10 years, but he has not given employment under Rehabilitation Policy of the Government. Consequentially, he has approached this Court in the present writ petition seeking relief of giving him employment in terms of the said policy of the Government.

Mr. Asok Mohanty, learned Senior Advocate appearing along with Mr. C. R. Swain, learned counsel for the petitioner vehemently contended that it is not in dispute that the petitioner is the nominated person of one of the 143 displaced families for establishment of Paradip Refinery of IOCL, on acquisition of their agriculture and homestead land. He has not received any compensation for the same and opted for other mode, i.e. giving him employment. Unfortunately, he has not been provided with an employment as per the Rehabilitation Resettlement Plan/ Policy formulated by the Government of Odisha under Annexure-1, which has been adopted by the IOCL. Merely giving engagement on contractual basis under outsourcing agency cannot be said that the purpose of the policy has been fulfilled. Consequentially, he seeks direction for regular absorption of the petitioner as per the Rehabilitation Resettlement Plan/ Policy formulated by the Government of Odisha under Annexure-1, duly adopted by the IOCL.

Mr. H.M. Dhal, learned Additional Government Advocate appearing for the State-opposite parties no.1 to 5 contended that the petitioner is a nominee of a bona fide project displaced person, namely, Kusun Rout, S/o. Dibakar Rout of village-Udayachandpur, having Identity Card No.80 under Category 4.1(B) of OBC Caste under Annexure-2, who is eligible to get employment under IOCL Refinery Project, Paradip as a family member of land oustee. As per Rehabilitation Relief Plan, 2002, IOCL Refinery Project, Paradip has to provide employment to one nominated member of a displaced family. The project authority, in association with the district administration, identified the petitioner as a nominated member of a displaced family. Though the petitioner had filed a petition/representation, on 7.12.2015, before the Executive Director, IOCL Refinery Project, Paradip under intimation to different higher quarters with a copy to the Collector, Jagatsinghpur, which was also forwarded to the General Manager (HR), Paradip with a request to look into the matter personally and sought for action taken report thereof vide letter dated 17.3.2016 by the district administration, but no reply has yet been received from IOCL Authorities till date. It has also been admitted by Mr. Dhal that the IOCL has acquired Ac.3344.65 of Government land, which includes Ac.2876.60 of private land, in 18 numbers of villages and 143 families were enumerated as project displaced families due to acquisition of their agricultural land along with dwelling houses and those displaced families are eligible for rehabilitation benefits, as per Rehabilitation Relief Plan, 2002. In the case at hand, the land oustee has not received any kind of cash grant in lieu of employment. Besides that he has also not received cash compensation in lieu of resettlement colony. As such, the petitioner, being the nominee of a displaced family, is eligible to get job in the above project. It is further contended that the Government in Industries Department, Odisha published a notification bearing no.17364 dated 24.11.2009 to absorb 90% of local people, out of the total recruitment, under semi skilled and un-skilled category. Basing on the above notification, the petitioner is also coming under the zone of consideration to get a job in IOCL as local people. Thereby, justifies the claim of the petitioner in his counter affidavit.

Mr. Satyajit Mohanty, learned counsel appearing for opposite party nos. 6 to 8-IOCL though admitted that the petitioner is a displaced person and entitled to get an employment under the Rehabilitation Resettlement Plan/ Policy formulated by the Government of Odisha and duly adopted by the IOCL for Paradip Refinery Project in the year 2002, but, according to him, as per the said plan the word “preference” is there in the matter of “engagement” and not “guaranteed employment”. In other words, there is no provision for permanent employment of displaced persons in the R&R Plan, 2002. Therefore, the petitioner having been engaged under outsourcing agency, the relief sought by him is not admissible and, thereby, cannot be sustained in the eye of law. So far as factual matrix of acquisition of land and applicability of the policy is concerned, though the same was admitted, but contention was raised that the petitioner has no right to be absorbed automatically being a displaced person under permanent vacancy, as it has already been stated that being a Central Government Public Sector Undertaking, the recruitment to various permanent/ regular vacant positions at IOCL, Paradip Refinery is made by way of All India Advertisement/ Notification through Local/District Employment Exchange as well as following the recruitment policy of the Corporation/ Government of India in this regard. Thereby, the petitioner is free to apply for any post of IOCL, if he meets the eligibility criteria.

This Court heard Mr. Asok Mohanty, learned Senior Advocate appearing along with Mr. C. R. Swain, learned counsel for the petitioner; Mr. H.M. Dhal, learned Addl. Government Advocate appearing for the State-opposite parties no.1 to 5; and Mr. Satyajit Mohanty, learned counsel appearing for IOCL-opposite parties 6 to 8 in hybrid mode and perused the records. Pleadings have been exchanged between the parties and with the consent of learned Counsel for the parties, the writ petition is being disposed of finally at the stage of admission.

On the basis of the pleadings available on record and taking into consideration the factual matrix, as delineated above, it is not disputed that the petitioner, as a nominee of a displaced family, is claiming for employment under Rehabilitation Resettlement Plan/ Policy formulated by the Government of Odisha and duly adopted by the IOCL for Paradip Refinery Project. As such, the petitioner has not received any kind of compensation or financial assistance, save and except claiming regular employment under the IOCL-opposite parties no.6 to 8. Admittedly, the IOCL has accepted the position very fairly and allowed the petitioner to undergo Stenography course under ITI, which the petitioner has done successfully. As because he had undergone Stenography training at Government Industrial Training Institute, Madhupatana, Cuttack, his name could not be registered in the Special Employment Exchange, Paradip, on the plea that he is a sponsored candidate of the IOCL. Therefore, it is clear that the petitioner has to be given employment under IOCL. Instead of giving employment, he has been allowed to work under outsourcing agency, who in turn works for IOCL. Therefore, the requirement of Rehabilitation Resettlement Plan/ Policy formulated by the Government of Odisha and duly adopted by the IOCL for Paradip Refinery Project, has not been complied with by giving a regular employment under IOCL.

Before delving into the issue of the petitioner, it is necessary to see the provisions stipulated in Rehabilitation & Relief Plan under Annexure-1 issued by the Government of Odisha and adopted by the IOCL. The policy, for rehabilitation of displaced persons/families in connection with establishment of major industrial project, has been approved by the Government of Odisha and forwarded to IOCL by IDCO vide their letter dated 06.06.1998. The rehabilitation and relief plan is based on the rehabilitation policy of the Government of Odisha. A high level Rehabilitation Advisory Committee (RAC) was constituted by the Government. As per Clause-4.1 of the said plan, the following are the members:-

Hon’ble Member of Parliament, Jagatsinghpur.

Hon’ble Member of Legislative Assembly, Erasama

Managing Director, IDCO

Collector, Jagatsinghpur.

Special Land Acquisition Officer, Jagatsinghpur (Member Convener)

Divisional Forest Officer, Rajnagar

President-Varasha, Paradip (NGO)

President-Sramajeebi Pathagar, Dhinkia (NGO)

Representative of Indian Oil Corpn. Ltd. In addition the following 2 NGOs were special invitees to RAC meeting:-

President-Bhoomihara Krushak Ekata Manch, Paradip (NGO).

President-Bhoomiputra Sangram Sansad, Paradip (NGO).”

Clause-5 deals with the eligibility criteria for rehabilitation benefits. Clause-5.1 states that the families displaced due to acquisition/alienation of land for the Project have been considered as eligible for rehabilitation benefits under this plan. As per Clause-5.2, a family satisfying any one of criteria prescribed under Criteria-1 and 2, has been considered as eligible for rehabilitation benefits. The petitioner, being a displaced person, on acquisition of homestead land and also agriculture land, pursuant to issuance of the notification under Section 4 (1) of the Land Acquisition Act, 1894, is entitled to get the benefit. Clause-6 prescribes the definition of family for the purpose of rehabilitation, whereas Clause-7 prescribes the survey & identification of displaced families. There is no iota of doubt that the petitioner comes within the scope of Clauses-5, 6 and 7 of the policy being a nominee of the displaced family and also has been identified as the nominee of displaced family, whose name enlisted in the list of 143 displaced families, who are entitled to get such benefit. The petitioner, being the inhabitant of Udayachandrapur and his family being one of the 143 displaced families in 18 villages, is entitled to get employment.

Clause 8 deals with employment/self-employment of nominated members of displaced families. Clause-8.1, 8.2, 8.3, 8.4 and 8.5 read as follows:-

“8.1 The Project authorities, in association with the Collector, Jagatsinghpur have identified one member from each displaced family, who in view of his/her educational back ground and age could be considered for employment/self employment as per laid down job specifications for employment with the Project authorities. The list of such nominated persons, along with details of age, qualification etc. are available in Annexure-V. In this connection, the respective head of the family has sworn an Affidavit, identifying the nominated candidate. Copies of such Affidavits arc available with the Collector, Jagatsinghpur.

8.2 Project authorities shall give preference to the nominated members of displaced families in employment in the Project or in its ancillary industries. The order of such preference shall be as below:-

a) Displaced families being losing all their land holdings including homestead land. (Such families have been enumerated as 45 nos.)

b) Displaced families losing more than 2/3rd of their land holdings and homestead land (Such families have been enumerated as 42 nos.

c) Displaced families losing more than 1/3rd of their land holding and homestead land (Such families have been enumerated as nil).

d) Other displaced families (Such families include encroachers and have been enumerated as 56 nos.)

8.3 For the nominated members of displaced families who eventually do not get employment in the manner indicated above, the Project authorities will try to assist for their self employment through allotment of shops, Service premises and other activities in the township or otherwise.

8.4 Displaced families shall also be encouraged to adopt alternate means of earning their livelihood. With a view to encourage them to take to useful avocations like poultry farming, animal husbandry etc, the Project authorities will assist the State Govt. in organising such activities. Displaced families shall be extended with guidance and support to form Co-operatives labour, transport etc. during the construction as well as operation phases.

8.5 The modalities for providing guidance, support and assistance in arranging finance for encouraging displaced families for self- employment will be worried out in consultation with district authorities.”

On perusal of Clause-8.2 it is made clear that project authorities shall give preference to the nominated members of displaced families in employment in the Project or in its ancillary industries. The order of such preference has been prescribed under sub-clause (a) to (d).

The word ‘shall’ which has been used in Clause-8.2 puts a mandate on the authority to give preference to the nominated members of the displaced families in employment in the Project or in its ancillary industries. Therefore, if the word ‘shall’, which has been used in Clause-8.2, will be taken into consideration, is purely mandatory in nature.

12.1 In  Mohan  Singh  v.  International  Airport Authority of India, (1996) 8 Scale 251, the apex Court held that the word “shall” though prima facie gives impression of being mandatory character, it requires to be considered in the light of the intention of the legislature by carefully attending to the scope of the statute, its nature and design and the consequences that would flow from the construction thereof one way or the other.

12.2 In Election Commission of India v. Subramanian Swamy, AIR 1996 SC 1810, while considering Article 1992 (2) of the Constitution of India, the apex Court held use of expression ‘shall’ in the provision indicates that the Governor is bound to take the opinion and act on such opinion of the Election Commission.

12.3 In State of M.P. v. Pradeep Kumar, (2000) 7 SCC 372, while considering the provisions contained in Order XLI Rule 3-A (1) of CPC, the apex Court held that the use of word ‘shall’ in Order 41 Rule 3-A(1) of the Code would clearly indicate that the requirement of filing affidavit along with application for condonation of delay is peremptory in tone but such peremptoriness does not foreclose a chance for the appellant to rectify the mistake either on his own motion or being pointed out by the Court. The word ‘shall’ in the context need be interpreted as an obligation cast on the appellant.

12.4 In Biswanath Poddar v. Archana Poddar, (2001) 8 SCC 187 : AIR 2001 SC 2849, the apex Court, while considering Section 16 (I) and W.B. Premises Tenancy Act and Rule-4 of the W.B. Tenancy Rules, observed that the use of word ‘shall’ in Section 16 of the Act and Rules, indicates that the legislature intended the requirement of notice under Section 16 of the Act to be mandatory.

12.5 In Hemalata Gargya v. C.I.T. (2003) 9 SCC 510, the apex Court held that the word ‘shall’ in a statute, ordinarily means that the statutory provision is mandatory.

12.6 In State Inspector of Police v. Surya Sankaram Karri, (2006) 7 SCC 172, while considering the proviso to Section 17 of Prevention of Corruption Act, the apex Court observed that the expression ‘shall’ in proviso to Section 17 of the Act makes the provision mandatory.

12.7 Therefore, the expression ‘shall’, which has been incorporated in Clause-8.2, is absolutely mandatory in nature. No legal construction can be made to such expression. Rather, it is the bounden duty of the project authority to give preference to the nominated members of the displaced families in employment in the project or in its ancillary industry.

Much argument has been advanced by Mr. Satyajit Mohanty, learned counsel appearing for IOCL-opposite party nos. 6 to 8 that being a nominee of the displaced person, the petitioner has undergone training under Clause-9 of the policy and he has been given engagement under the outsourcing agency to discharge the duties and responsibility for IOCL. Therefore, requirement under Clause-8.2 has already been complied. Therefore, there is no question of giving any regular employment to the petitioner. In course of argument, this Court posed a specific question, can the word ‘employment’ is synonymous to the word ‘engagement’. Mr. Satyajit Mohanty, learned counsel failed to explain such position, rather reiterated his contention that once the petitioner has been engaged by the outsourcing agency, he has been given employment. Therefore, he is not entitled to get any benefit. But, this Court does not accept such analogy advanced by learned counsel for opposite party nos. 6 to 8.

13.1 In Chintaman Rao v. State of Madhya Pradesh, AIR 1958 SC 388, the apex Court held that the concept of employment involves three ingredients; (1) employer; (2) employee and (3) the contract of employment. The employer is one who employs, i.e., one who engages the services of other persons. The employee is one who works for another for hire. The employment is the contract of service between the employer and the employee where under the employee agrees to serve the employer subject to his control and supervision.

13.2 In Regional Provident Fund Commissioner, Andhra Pradesh v. T.S. Hariharan, (1971) 2 SCC 68: AIR 1971 SC 1519, the apex Court observed that the word ‘employment’ must be construed as employment in the regular course of business of the establishment. Such employment obviously would not include employment of a few persons for short period on account of some passing necessity or some temporary emergency beyond the control of the company. Similar view has also been taken in Mahesh Transport Company v. Transport and Dock Workers Union, (1974) 4 SCC 355 :AIR 1974 SC 868 and Champak Lal H. Thakur v. State of Gujarat, (1980) 4 SCC 329.

13.3 In Hargovind Pant v. Dr. Raghukul Tilak, (1979) 3 SCC 458, the apex Court, while considering Article 319 (d) of the Constitution of India, observed that the word ‘employment’ in Article 319 (d) is understood to mean the relationship of employer and employee and does not include the office of Governor because the Governor is the head of the State and holds a high Constitutional office which carries with it important Constitutional functions and duties. Appointment of the Governor by the President does not make the Governor an employee or servant of the Government of India.

In Central Board of Direct Taxes v. Aditya V. Birla, AIR 1988 SC 420, the apex Court held that ‘employment’ means an act of employing.

13.4 If the meaning of ‘employment’, as laid down by the apex Court in various judgments, as discussed above, will be taken into consideration, an inevitable conclusion can be arrived at that the employment includes service or occupation, in which the person works for another and in which relationship of employer and employee exists. If this test will apply to the present context, then by giving engagement to the petitioner under outsourcing agency, the employer and employee relationship does not exist. Thereby, the contention advanced by Mr. Satyajit Mohanty, learned counsel appearing for opposite party nos. 6 to 8 that the petitioner has been engagement under outsourcing agency cannot be construed to be an employment given to the petitioner in terms of Clause 8.2 of the Rehabilitation & Relief Plan of the Government, which is a mandatory in nature and which the IOCL has to carry out in letter and spirit.

Engagement means some sort of undertaking or contractual obligation. Therefore, the word ‘employment’ cannot be equated with the word ‘engagement’. Therefore, Clause-8.2 of the Rehabilitation & Relief Plan requires the project authority to give preference to the nominated members of the displaced families in employment in the project or in its ancillary industries. By not adhering to such provision, opposite party nos. 6 to 8 have contravened the Rehabilitation and Relief Plan issued by the Government of Odisha and adopted by IOCL for giving employment to the petitioner.

It is worthwhile to note that Article 21 of the Constitution of India deals with protection of life and personal liberty. It stipulates that no person shall be deprived of his life or personal liberty except according to procedure established by law. Thereby, Article 21 is one of the luminary provisions in the Constitution and is a part of the scheme for fundamental rights occupies a place of pride in the Constitution.

In Munshi Singh Gautam v. State of M.P., (2005) 9 SCC 631 : AIR 2005 SC 402, the apex Court observed that this sacred and cherished right, i.e., personal liberty has an important role to play in the life of every citizen. Life or personal liberty includes a right to live with human dignity.

In Hinch Lal Tiwari v. Kamala Devi, (2001) 6 SCC 496 : AIR 2001 SC 3215, the apex Court observed that enjoyment of a quality life by the people is the essence of the guaranteed right under Article 21 of the Constitution.

In State of Maharashtra v. Chandrabhan, AIR 1983 SC 803 : (1983) 3 SCC 387, the apex Court observed that ‘Life’- Right to life, enshrined in Article 21 means something more than survival or animal existence. This view has also been taken by the apex Court in Olga Tellis v. Bombay Corporation, AIR 1986 SC 180 : (1985) 3 SCC 545; D.T.C. v. Mazdoor Congress Union D.T.C., AIR 1991 SC 101.

In Francis Coralie Mullin v. Union Territory Delhi, Administrator, AIR 1981 SC 746 : (1981) 1 SCC 608, the apex Court observed that Article 21 would include the right to live with human dignity.

In Meneka Gandhi v. UOI, AIR 1978 SC 597 : (1978) 1 SCC 248, the apex Court observed that Article 21 would include all those aspect of life which go to make a man’s life meaningful, complete and worth living.

If all these meaning of Article 21 will be taken into consideration within the scope of the ‘life’, deprivation thereof by not providing the petitioner the benefit, which is admissible to him under the Rehabilitation and Resettlement plan issued by the Government and accepted by the IOCL by the project authorities, the same violates Article 21 of the Constitution of India. Rather, the provisions contained in Clause-8.2 puts a mandate on the project authority to give preference to the nominated members of displaced families in employment in the Project or in its ancillary industries.

Mr. Satyajit Mohanty, learned counsel appearing for IOCL advanced argument indicating that if the compliance of Clause-8.2 is made, by this time, the petitioner has already reached more than 48 years. As such, in pursuance of the advertisement issued, he, having not participated, cannot claim for regular employment. Such contention cannot be accepted, in view of the fact that the petitioner stands altogether on a different footing, meaning thereby, his right flows from the action taken for the benefit of the establishment of major industries, being a nominated member of the displaced family. Thereby, his claim for employment is regulated by the Rehabilitation and Relief Plan issued by the Government and adopted by the IOCL. The contention that the petitioner is over aged by this time cannot also be sustained, because, it is the laches on the part of the project authorities by not giving regular employment, the petitioner has become over-aged. Thereby, it is incumbent upon the employer to condone the over age and give regular employment to the petitioner in their establishment, befitting his qualification and experience earned in the meantime, as it has been admitted that he has been engaged under the outsourcing agency and discharging the responsibility for IOCL.

In view of the facts and law, as discussed above, this Court has no hesitation to issue direction to opposite parties no. 6 to 8 to extend the petitioner employment giving preference to the nominated members of displaced families in the project or in its ancillary industries in terms of Clasue-8.2 of the Rehabilitation & Relief Plan issued by the Government and adopted by the IOCL. Simultaneously, opposite parties no. 3 to 5 are directed to ensure that necessary action, in compliance of the plan/policy referred to above, is taken by the opposite parties no. 6 to 8 in its letter and spirit. Needless to say, the regular employment to the petitioner should be made by the opposite parties against the existing vacancy befitting to his qualification in terms of Clause-8.2 of Rehabilitation & Relief Plan under Annexure-1, as expeditiously as possible, preferably within a period of three months from the date of communication of this judgment.

The writ petition is thus allowed. However, there shall be no order as to costs.