State of
Orissa & Ors Vs. Sadhu Charan Pradhan
[1997] INSC 739 (17 September 1997)
SUJATA
V. MANOHAR, D.P. WADHWA
ACT:
HEADNOTE:
THE
17TH DAY OF SEPTEMBER, 1997 Present:
Hon'ble
Mrs.Justice Sujata V. Manohar Hon'ble Mr.Justice D.P. Wadhwa Ms. Kirti Mishra,
Adv., for the appellants
The
following judgement of the Court was delivered:
D.P. Wadhwa,
J.
Leave
granted.
This
appeal by the state of Orissa is directed against the judgement of the Orissa
Administrative Tribunal (for short the Tribunal') dated January 9,1995 allowing
Original Application No.2056 of 1994 of the respondent holding that the
respondent, would retire at the age of 60 years as per the service rule
applicable in the State.
The
respondent jointed service in the workcharged establishment of the Executive
Engineer, Roads and Buildings, Bhubaneswar on
November 16,1961 as a mason. On February 17,1978 he was brought over to the regular
establishment thus being in the Government Department. The respondent was to
retire on September 30,1994 on attaining the age of 58 years.
The respondent, however, filed original application in the Tribunal claiming
that he was entitled to continue in service upto the age of 60 years.
His
claim was based on the 'Note ' below second proviso to Rule 71(a) of the Orissa
Service Code. His further claim was that the Works Department of the State
Government should be treated as "industry' relying upon a decision of the
Supreme Court in the case of Des Raj and others vs. State of Punjab and others
1988 (2) SLR 789.
The
Tribunal noticed that the State Government did not file any counter and that
note on which the respondent relied was incorporated as per Finance Department
notification dated October
13,1989 which reads as
follows:
"Workman"
means a highly skilled, skilled, semi-skilled or unskilled artisan employed on
a monthly rate of pay in any industrial or workcharged establishment." The
Ribunal then held that an artisan was a functionary whose nature of work was
manual and that mason would come within that category. It also noticed that in
a certain communication of the Works Department a post of the mason was catagorised
as "workman". The Tribunal then referred to various others OAS filed
by employees of the Works Department was an industry. The Tribunal, therefore,
concluded that the respondent was to be treated as workman and he was entitled
to continue in service till he attained the age of 60 years. The State
Government filed a review application before the Tribunal bringing to its
notice a Adwait Charan Mohanty and others Civil Appeal No.1497 of 1993 decided
on January 27, 1995 (since reported as 1995 Supp (1) SCC 470) pointing out that
in a similar case the Supreme Court had held that a government employee like
the respondent would retire at the age of 58 years. This application was
dismissed by the Tribunal on July 8,1996
without referring to the judgement of this Court and merely noting that the
State Government only wanted to record that counter affidavit had been filed
which according to the Tribunal was filed one day late after it had announced
the judgement.
It was
submitted before us that the present case was fully covered by the aforesaid
decision in Adwait Mhanty's case. Prior to the amendment of the note below the
second proviso to Rule 71(a) which has been reproduced above, the note reads as
under:
"Note:-
For this purpose workman means a highly skilled, semi- skilled and un-skilled
artisan employed on a monthly rate of pay in any govt. establishment." It
is significant to note that the "Government establishment" has been
omitted after amendment of the Note and the Note as it existed now would apply
industrial or workcharged establishment and not those employees working in any
Government establishment. Admittedly, the respondent is working in the
Government establishment and the Note on which the Tribunal relied would be
inapplicable to his case.
This
very note was subject matter of interpretation in the case of Adwait Mohanty
where also the question was if an artisan in the Government establishment would
retire at the age of 58 years or on his attaining the age of 6 0 years.
This
Court after considering the relevant rules came to the conclusion that an
artisan in the circumstances being a Government employee would retire on his
completion of 58 years of age. Statement of law by this Court in the case Adwait
Mohanty fully covers the facts of this case and the relevant rules on the
subject.
Accordingly,
the appeal is allowed, the impugned judgement of the Tribunal is set aside and
the OA filed by the respondent is dismissed. There will be no order as to
costs.
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