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Judgment
Dr. B.R. Sarangi, J.—The petitioner has filed this application seeking for a direction to opposite party No. 1-Industrial Development Corporation Limited to take him back from A.B.S. Spinning Mill Orissa Limited to IDCOL and treat his period of service in A.B.S. Spinning Mill Orissa Limited as deputation. He further prays to quash the letter dated 24.07.1996 under Annexure-12 issued by opposite party No. 2 rejecting his representation communicating him that he is an employee of opposite party No. 2 which is a subsidiary Company with effect from 01.04.1990.
The short facts of the case in hand is that the Industrial Development Corporation Limited (in short hereinafter referred to as IDCOL) is a Company registered in the State of Orissa under the Companies Act, 1956 as a wholly owned Government of Orissa undertaking having it''s Registered Office at Bhubaneswar. Aska Spinning Mill which was established on 19.11.1982 is one of the units of the IDCOL. Pursuant to advertisement issued, the petitioner applied for the post of Overseer (Civil) and vide letter dated 02.11.1983 he was invited to attend the interview and test on 14.11.1983. The petitioner being found suitable was issued appointment letter on 03.12.1983 as Senior Supervisor (Civil) by opposite party No. 1 indicating the terms and conditions of IDCOL scale of pay Rules pursuant to which he joined in Aska Spinning Mill on 15.12.1983. Thereafter he was transferred to Baripada Spinning Mill on 09.10.1988 where he rendered service for a few days and subsequently transferred to ECBDL, Paradip on deputation vide letter dated 04.11.1988. Aska Spinning Mill employees Union filed O.J.C. 30/1988 seeking for a direction to opposite party No. 1 and Aska Spinning Mill to implement the revised scale of pay of different categories of employees as per settlement under Annexure-2 in respect of the employees of Aska Spinning Mill. But, ultimately the said writ petition was withdrawn on 12.05.1989. On 06.02.1990, a memorandum of understanding was signed between IDCOL and Sonepur Spinning Mill to bring the operation of three industrial undertakings i.e. Aska Spinning Mill, Baripada Spinning and Sonepur Spinning Mill under a single corporate entity and formed a new Company called A.B.S. Spinning Mill Orissa Ltd. with effect from 20.03.1990 being registered under the Companies Act, 1956. Accordingly, opposite party No. 1 published a notice regarding merger of these three Spinning Mills with effect from 01.04.1990. It was indicated that the terms and conditions of service of the personnel shall be the same as existing on 31.03.1990 and they will continue to enjoy all the benefits as enjoyed by them in their respective undertakings. Clause-13 (d) of the Memorandum of understanding states as follows:
"For the purpose of all statute, the period of service in Aska Spinning Mill and Baripada Spinning Mill by the personnel shall be deemed to be continuous service with Sonepur Spinning Mill".
After formation of A.B.S. Spinning Mill Orissa Ltd. with effect from 01.04.1990 the service of the petitioner was rested with the said Company and being an employee of erstwhile Aska Spinning Mill Ltd. he had no nexus with opposite party No. 1. The petitioner made a representation for his transfer and he was reverted from ECBDL, Paradip to IDCOL and was posted in Hirakud Industrial Works at Hirakud on deputation. Opposite party No. 1 forwarded the representation of the petitioner to M.D, A.B.S. Spinning Mill has never been challenged. However, his deputation to Hirakud Industrial Works Ltd. under IDCOL was recalled on 19.08.1991 and he was reverted to A.B.S. Spinning Mill Orissa Ltd. and was posted at Aska Spinning Mill at Aska. Thereafter, he was promoted to the post of Junior Engineer (Civil) by opposite party No. 2 in the scale of pay of Rs. 1,300-45-1555-EB-50-1805-55-2080-EB-60-2200/- vide Annexure-9 dated 06.02.1992 which was accepted on protest. The petitioner has made several representations with a prayer to take him back from A.B.S. Spinning Mill Orissa Ltd. to IDCOL and treat the entire service period under A.B.S. Spinning Mill Orissa Ltd. as deputation and give revised scale of pay as per IDCOL Scale of Pay as due and admissible to him, but the same was not considered and he was intimated by opposite party No. 2 that he being not its employee no further correspondences with opposite party No. 1 is desirable and accordingly he was directed not to make any representation to opposite party No. 1 and as such opposite party No. 2 rejected his representation vide Annexure-12 on 24.07.1996. Thereafter, the petitioner was promoted to the post of Deputy Manager by opposite party No. 2, pursuant to which he joined in the said post under protest.
Mr. S.K. Das, learned counsel for the petitioner strenuously urged that the petitioner being selected and appointed pursuant to advertisement issued by opposite party No. 1, he is the employee of the said Company. The terms and conditions of appointment under Annexure-4 dated 03.12.1983 indicates that the petitioner shall abide by all the existent rules, departmental orders of the IDCOL and those that would be framed in future. As such the appointment of the petitioner was made to one of the units of opposite party No. 1 and he was posted as Senior Supervisor in Aska Spinning Mill, Aska. It is admitted that pursuant to merger of the three Spinning Mills, the petitioner was continuing under the Aska Spinning Mill and thereafter with the merged Company, namely, A.B.S. Spinning Mill Orissa Ltd-opposite party No. 2. But, he claims that he being the employee of opposite party No. 1, he should be reverted back to his parent Company by extending all the benefits as due and admissible to him. He has placed much reliance on the affidavit and counter affidavit filed by opposite party No. 1 in O.J.C. No. 30/1988 under Annexure-13 wherein it is stated that the appointment letters of various categories of employees are similar to that of the petitioner. Certain Supervisory workmen were recruited by Corporate Office of the Corporation at the initial stage of establishment of Aska Spinning Mills numbering to three only who were issued appointment letters from Corporate Office for Aska Spinning Mill and the petitioner is one of them. Therefore, the petitioner claims that he being appointed by IDCOL-opposite party No. 1, he should be treated as the employee of the said Corporation and extended all the benefits as due and admissible to Corporation employee in accordance with law. On the basis of the pleadings available in O.J.C. No. 30/1988, he is entitled to get all the benefits. To substantiate his contentions he has relied upon the case of Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and Others, .
Mr. R.K. Rath, learned Senior Advocate appearing for opposite party No. 1 while admitting the factum that Annexure-4, the appointment letter has been issued by IDCOL, clarified the position with reference to the contentions raised therein that the petitioner was selected and appointed in one of the Units of opposite party No. 1 i.e. Aska Spinning Mill as Senior Supervisor. It is stated that initially Aska Spinning Mill was one of the Units under the IDCOL and for the purpose of its establishment opposite party No. 1 selected the petitioner and issued appointment order under Annexure-4 thereby no illegality or irregularity was committed by opposite party No. 1 in issuing such appointment order to the petitioner; that ipso facto cannot entitle him to claim that he is the employee of opposite party No. 1. It is further urged that subsequently, a separate entity was formed taking into account Aska Spinning Mill, Baripada Spinning Mill and Sonepur Spinning Mill as a new Company registered as opposite party No. 2-A.B.S. Spinning Mill Orissa Ltd. Therefore for all practical purposes with effect from 01.04.1990, the A.B.S. Spinning Mill is altogether a separate entity and the petitioner being an employee of Aska Spinning Mill was continuing under the newly formed Company. From his original place of posting he has been transferred/deputed to Baripada Spinning Mill and thereafter ECBDL, Paradip and subsequently continuing under the Aska spinning Mill. So far as reliance placed on the pleadings made in O.J.C. No. 30/1988 is concerned, the affidavit has been filed prior to formation of opposite party No. 2 and more so no adjudication of the said writ application was done because ultimately the writ petition was withdrawn. In that view of the matter, the petitioner cannot claim that he is the employee of opposite party No. 1. In addition to that he has submitted that the claim made by the petitioner is hit by principle of res judicata in view of the ratio decided in O.J.C. No. 1599/1990 wherein this Court rejected the claim of the petitioner and similarly situated employees of opposite party No. 2 seeking for enforcement of the same scale of pay of the employees of the IDCOL for the employees of the Spinning Mill. It is also urged that Sections-14 and 34 of the Specific Relief Act stand as a bar to the petitioner to claim any relief with regard to his employment. Since there is disputed question of fact involved, this Court should not interfere with this application. To substantiate his contention he has relied upon Krishna Bahadur Vs. Purna Theatre and Others, .
On the basis of the facts pleaded above, it is to be determined (1) whether the petitioner can be construed to be an employee of the IDCOL-opposite party No. 1 and (2) if so, what relief can be granted to him.
From the materials available on record, it appears that the petitioner by following due procedure of selection pursuant to advertisement issued by opposite party No. 1 was appointed as Senior Supervisor for one of its Unit, namely, Aska Spinning Mill. Pursuant to the appointment order, he joined in the said post and discharged the duty allotted to him. Consequent upon due execution of memorandum of understanding, the three Spinning Mills, namely, Aska Spinning Mill, Baripada Spinning Mill and Sonepur Spinning Mills were amalgamated and a new Company called "A.B.S. Spinning Mill Orissa Ltd." was formed thereby it had become a separate entity altogether registering the said new Company under the provisions of the Companies Act. Such Company came into existence with effect from 01.04.1990. Therefore, the employees working in the respective erstwhile Units of opposite party No. 1 came under the newly created Company, namely, A.B.S. Spinning Mill Orissa Ltd.-opposite party No. 2. Consequence thereof the petitioner''s service was placed under the new Company-opposite party No. 2. While he was so continuing, he was transferred/deputed to Baripada Spinning Mill and ECBDL, Paradip and thereafter finally his services were placed under the erstwhile Aska Spinning Mill Ltd. where he discharged his duty. At this point of time, he claimed that he should be treated as the employee of opposite party No. 1 and all the benefits should be extended as due admissible to him in accordance with law. But, his claim was based on the fact that since opposite party No. 1 had issued advertisement pursuant to which he was appointed, he should be treated as the employee of opposite party No. 1 and at the same time, he relied upon the pleadings of opposite party No. 1 taken in O.J.C. No. 30/1988. In Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and Others, , the apex Court held as follows:
"Admissions in pleadings or judicial admissions admissible under Section 58 of the Evidence Act made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions is fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the trial as evidence are by themselves not conclusive. They can be shown to be wrong."
The claim of the petitioner basing on the pleadings made in O.J.C. No. 30/1988 has never been adjudicated rather the said writ petition was withdrawn by the petitioner which is the employee''s Union pursuing the remedy for grant of revised scale of pay of IDCOL to the Aska Spinning Mill employees. Once the writ petition was withdrawn without any adjudication, the relief claimed by the petitioner cannot be considered. In any case, after 01.04.1990 the petitioner is not entitled to get any claim as his services have been placed under the newly created Company-opposite party No. 2 and the petitioner having rendered services under opposite party No. 2, he has no nexus with opposite party No. 1 in any manner whatsoever. In O.J.C. No. 1599/1990 which has been disposed of on 20.07.1994, this Court passed the following order:
"This writ application is preferred by the Aska Spinning Mill employees Union seeking enforcement of the same scale of pay of the employees of the Industrial Development corporation for the employees of the Spinning Mill in respect of the categories: Clerical Staff, Security personnel and drivers. According to the petitioner this decision had been taken by the Management of the Industrial Development Corporation and therefore, they are entitled to the same.
The same relief which is now being sought for had been sought for in O.J.C. 30/1988 and that writ application was dismissed as withdrawn in course of hearing of the writ application by order dated 12.05.1989. While withdrawing the earlier writ application, the petitioner did not obtain the permission of the Court with the liberty to refile the same nor the present application is based upon a fresh cause of action. Since the order of withdrawal did not grant any permission to institute a fresh petition and the present application is based on the same cause of action as the earlier one, the present application is barred by principle of res-judicata as has been held by the Supreme Court in the case of Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P., Gwalior and Others, . The aforesaid Supreme Court decision fully applies to the facts and circumstances of the present case and no later decision taking any contrary view has been placed before us. In that view of the matter, without entering into the merit of the application we hold that the present application is barred by res-judicata and the same is accordingly dismissed."
This Court rejected the claim of the petitioner along with other similarly situated employees of opposite party No. 1 seeking for enforcement of the same scale of pay of the employees of the IDCOL for the employees of the Spinning Mill. They having acceded to become the employees of opposite party No. 2, there was no justification for the petitioner to make the representation to opposite party No. 1 that the petitioner should be treated as its employee. Therefore, the representation filed by the petitioner before opposite party No. 1 has no meaning at all because opposite party No. 1 is no more continuing as the employer of the petitioner. Therefore, the representation made was forwarded to opposite party No. 2 and in response to the same, opposite party No. 2 vide Annexure-12 intimated the petitioner not to make any correspondence to opposite party No. 1. Consequentially, this Court has not found any illegality or irregularity in issuing such communication to the petitioner vide Annexure-12.
On the basis of the pleadings available, by virtue of agreement on 16.02.1990 under Annexure-A and the notice dated 30.03.1991 under Annexure-1, the services of the petitioner stood absorbed under opposite party No. 2 to the exclusion of opposite party No. 1 with effect from 01.04.1990. Therefore, the petitioner who was an employee of Aska Spinning Mill (one of the units of IDCOL-opposite party No. 1) is an employee of opposite party No. 2 a new Company and Juristic person in its own standing with effect from 01.04.1990. The petitioner having accepted the same, got the benefit of promotion and availed of the benefit, he is stopped to make any claim that he should be treated as the employee of opposite party No. 1 and granted all the benefits as due and admissible to him.
In that view of the matter, this Court is of the considered opinion that the petitioner being an employee of opposite party No. 2 is not entitled to get any claim made in this writ petition.
Accordingly, the writ petition stands dismissed. No order to cost.