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Ramesh Chandra Sahu and ors. Vs. State of Orissa and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtOrissa High Court
Decided On
Judge
Reported in(1971)IILLJ80Ori
AppellantRamesh Chandra Sahu and ors.
RespondentState of Orissa and anr.
Cases ReferredPrafulla Kumar Dutta v. State of Orissa and Ors. O.J.C. No.
Excerpt:
.....concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle..........government service on the material date or 'workmen' within the provisions of rule 71(a) of the orissa service code and accordingly are entitled to continue in service upto 60 years of age. they have, however, been asked to retire before reaching the age of superannuation. since they are holders of permanent civil posts their services could not be terminated before the date of superannuation without complying with the requirement of article 311(2) of the constitution. it has been stated that the petitioner no. 1 was born in 1912 and if he was to serve until he attained the 60th year of age his superannuation would be due on 1-2-73. similarly in respect of the petitioner no. 3 who was born on 22-6-1911 superannuation would be due on 22-6-71. so far as the petitioner no. 2 is concerned,.....
Judgment:

R.N. Misra, J.

1. Five petitioners came before this Court in an application under Article 226 of the Constitution of India king for the quashing of an order of retirement passed against them on 1-6-68, by the Superintendent of the Government Press. The petitioner No. 1 was a senior assistant and the petitioner No. 2 was an assistant overseer while the petitioner No. 3 was a head computer. The petitioners 4 and 5 were an overseer and a lower division clerk respectively.

2. Mr. S. B. Nanda for the petitioners does not want to proceed with the application of the petitioner No. 5, Therefore, his claim in the writ petition is not considered. So far as the petitioner No. 4 Sri Soloman P.D. Sahu is concerned, Mr. Nanda wants leave to file a separate writ petition making appropriate allegations and impleading proper parties. There was an application before this Court during the pendency of the writ petition by one Dayanidhi Harichandan for permission to intervene on the allegation that he was a necessary party to the writ petition and he should, therefore, be heard. Mr. Nanda, therefore, asked us not to consider the case of the petitioner No. 4 at present and allow his grievance to be vindicated in a separate petition. We accordingly do not consider his case also in this petition. Under the circumstances, this writ petition is allowed to proceed in respect of the petitioners 1 to 3 only.

3. The petitioners contend that they are either ministerial servants in permanent Government service on the material date or 'workmen' within the provisions of Rule 71(a) of the Orissa Service Code and accordingly are entitled to continue in service upto 60 years of age. They have, however, been asked to retire before reaching the age of superannuation. Since they are holders of permanent civil posts their services could not be terminated before the date of superannuation without complying with the requirement of Article 311(2) of the Constitution. It has been stated that the petitioner No. 1 was born in 1912 and if he was to serve until he attained the 60th year of age his superannuation would be due on 1-2-73. Similarly in respect of the petitioner No. 3 who was born on 22-6-1911 superannuation would be due on 22-6-71. So far as the petitioner No. 2 is concerned, his date of birth being 25-8-1910 his superannuation would have already been due on 25-2-70, but it is stated that in case the order of retirement is bound to be bad he would be entitled to the advantages due to him from his service.

4. In the counter-affidavit of the State of Orissa it is conceded that the petitioners 1 and 3 belonged to the ministerial cadre. Admittedly they were in service before the Orissa Service Code came into force in 1939. Their present claim is directly covered by a recent pronouncement of a Full Bench of this Court in 37 C.L.T. page 1 (Lingaraj Patnaik and Ors. v. The State of Orissa and Ors. The learned Government Advocate fairly conceded that so far as these two petitioners are concerned, the decision of this Court in the aforesaid case is fully applicable. In view of the conceded position we do not think it is necessary that we should examine the matter at any length. The impugned order, so far as the petitioners 1 and 3 are concerned, seems to have been passed without application of mind to the proper provision of law as was found by this Court in the aforesaid case. We would accordingly set aside the order dated 1-6-68 so far as the petitioners 1 and 3, namely, Ramesh Chandra Sahu and Ebenezer Patra are concerned and hold that they shall be deemed to be continuing in service until the appropriate authority requires them to retire under Rule 71(b) of the Orissa Service Code.

5. Coming to the case of the petitioner No. 2 a dispute has been raised as to whether he is a workman. As already indicated he was an assistant overseer on the date when by the impugned order he was asked to superannuate. The proviso to Rule 71(a) of the Orissa Service Code is to the following effect:--

Provided that a workman who is governed by these rules shall ordinarily be retained in service upto the age of 60 years. He may however be required to retire at any time after attaining the age of 55 years after being given a month's notice or a month's pay in lieu thereof, on the ground of impaired health or of being negligent or inefficient in the discharge of his duties. He also may retire at any time after attaining the age of 55 years, by giving one month's notice in writing.

Admittedly the petitioner No. 2 has not been asked to retire on the ground of impaired health or being found negligent or inefficient in the discharge of his duties. He has been retired as we understand from the learned Government Advocate because he attained the age of 55. According to the State Government he is governed by the main part of Rule 71(a) while the petitioner No. 2 contends that he is entitled to the benefit of the proviso.

6. The petitioner No. 2 would be entitled to that benefit only if he is a 'workman'. In the Note appended to Rule 71(a) it has been stated :

For this purpose, 'a workman' means a highly skilled, skilled or semi-skilled and unskilled artisan employed on a monthly rate of pay in any Government establishment.

It, therefore, becomes necessary to examine whether the petitioner is a workman or as otherwise stated in terms of the Note giving the definition of 'workman' whether he is an artisan--highly skilled, skilled, or semi-skilled or unskilled. This Note came to be examined by a Division Bench of this Court in Prafulla Kumar Dutta v. State of Orissa and Ors. O.J.C. No. 184 of 1970, disposed of on 22-6-70. Therein it has been stated:

We have already noticed that there is a definition of 'workman' in Rule 71(a) of the Orissa Service Code. The use of the words 'highly skilled', 'skilled', 'semi-skilled' and 'unskilled' goes to show that a special definition has been adopted for the purpose of the rule and emphasis on dexterity has not been intended. In the circumstances, keeping in view the definition in the Note and the law on the point we are of the view that a bus driver is an artisan and, therefore, a workman under the proviso to Rule 71(a) of the Orissa Service Code.

7. The duties of the petitioner No. 2 as assistant overseer are said to be those that have been indicated in Clause 34 of Chapter I of the Orissa Government Press Manual. The petitioner No. 2 as assistant overseer was called upon to see that the different sections of the Press were kept fully employed and when there was no adequate work the fact was to be reported to the Deputy Superintendent of the Press. He was also responsible for the careful checking of all overtime requisitions and for keeping overtime down to a minimum. It was his responsibility to see that there was equal distribution of work among the workers and to see that the order of the Superintendent, Deputy Superintendent and Assistant Superintendent were carried out in the sections and he was to make all practical efforts to get the work done in time. These have also been specifically referred to in the rejoinder filed on behalf of the petitioner No. 2 in this Court. Mr. Nanda contends that these duties performed or required to be performed by the petitioner No. 2 bring him within the category of 'artisan' and he is, therefore, necessarily a workman. 'Artisan' has no definition in the Orissa Service Code, nor is there a statutory definition. That is why in several decisions Courts have taken a commonsense view of the term. The Chambers's Dictionary puts the word to mean 'a handicraftsman or mechanic.' In the very nature of the term some amount of dexterity or skill is involved, but the Note takes away the requirement of dexterity as has been indicated by the Division Bench decision in this Court. By the test of duties required to be performed by the petitioner No. 2 it is difficult for us to hold that he is not an artisan. He is also required to handle work in relation to operation of machine because according to Clause 40 of the aforesaid Manual the petitioner No. 2 was required 'to give constant attention to the composing, printing and binding branches' and 'to see that the work is executed economically and expeditiously'. The word 'artisan' has been used in the widest amplitude of the term and on the facts asserted in the writ petition it becomes difficult for us to hold that the petitioner is not an artisan. Once we hold that the petitioner is an artisan he would in normal course be entitled to remain in service until the age of 60 under the provisions of Rule 71(a) of the Orissa Service Code. This Court has come to the self-same conclusion in the case of some employees of the Orissa Government Press in O.J.C. Nos. 620 and 784 of 1969 disposed of on 30-9-69.

8. On the aforesaid analysis we would conclude that the order superannuating the petitioner No. 2 is also bad. The net result is that the writ petition of three petitioners, namely the petitoners 1, 2 and 3 is bound to succeed. We would accordingly quash the order dated 1-6-68 (Annexure-1) and issue a writ of mandamus to the opposite parties to treat the petitioners 1 and 3 to be still in service. They would be entitled to arrears of pay. The petitioner No. 2 is declared to be entitled to remain in service until 25-8-70 when on his own saying he must be taken to have superannuated. He would be declared to be in service till that date and shall have his salary paid until then. The writ petition succeeds. We, however, do not make any order as to costs.

B.K. Patra, J.

9. I agree.


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