Karam Singh Negi vs Municipal Corporation Of Delhi
1982 Latest Caselaw 297 Del

JUDGMENT

M.L. Jain, J.

(1) The petitioner was born on .13-7-1916. He was a qualified Mistry and joined the service of the Municipal Committee, Delhi as foreman Motor Workshop in the year 1949. He underwent a course of Automitive Engine Re-building and received training in the vocational trades and secured a diploma for the course of mechanics. On 24-8-1973, the petitioner made an application that he was working as Workshop Superintendent in the Motor Workshop, City Zone.and according to the Rules, he being a technical person should retire on the attainment of 60 year of age on 10-7-1976. This application was treated as a request for extention of service up to, the age of 60 years. It was rejected and he was informed by the Zonal Health Officer that he will attain the age of 58 on 9-7-1974 and will be retired in the afternoon of that date. He challenges this order in this writ petition.

(2) The case of the petitioner is that his case is covered by Fr 56(b) which before its amendment in 1975 provided that a workman shall be retained in service till the day he attains the age of 60 years. A note below this provision stated that a 'workman' means a highly skilled, skilled or semi-skiled and unskilled artisan employed on a monthly rate of pay in industrial and workcharged establishment. The Chief Accountant of the Corporation issued a circular on 27-7-1971 confirming that employees in an industrial unit of the Corporation are retained in service till they attained the age of 60 years. He contends that his, job was equivalent to the job of a Foreman and his duties were predominently of manual nature requiring use of physical skill, energy and labour to be sustained with the help of mechanics, fitters, electricians and other technical staff to ensure proper maintenance and upkeep of vehicles and to put them on road in perfect condition. He is, therefore, a highly skilled workman entitled to remain in service until he completes 60 years of age. He further points out that his case is similar to that of Barkat Ram, Asst. Foreman at Mubarakbad Workshop who was retired after attaining the age of 60 years. He relied upon Burmah Shell Oil Storage and Distributing Co. v. Management Staff Assm. , H. A. Mujawar v. General Mertors India Ltd. 7 F.J.R. 149(2), Bengal United Tea Co. Ltd. v. Ram Labhava, Air 1961 Assam 30(3), and Mysore Vegetable Oil Products Ltd. v. Labour Court, Madras and another, 1961 (2) Llj 508(4), which are cases under the Industrial Disputes Act, 1947, and Tabarak Ali v. Transport Controller, 1975 (2) Slr 12(5) .and Prafulla Kumar Dutta v. State of Orissa 1971 Llj 65(6), which are cases under Orissa Service Code and, therefore, all of them are irrelevant.

(3) The case of the Corporation is that the post of Foreman and Workshop Superintendent are absolutely different posts and are not identical. He was drawing a salary of Rs. 9601- p.m. in the scale of Rs. 650 1200 revised with effect from 1-1-1973.

(4) Now, looking at the rule it will be evident that it is immaterial whether the petitioner is a highly skilled workman or not because Fr 56(b) applies even to unskilled and semi-skilled workman. What he has to show in order to succeed, therefore, is that he is an artisan employed on a monthly rate of pay. By virtue of a promotion to a higher post of Workshop Superintendent enjoying a time scale of pay he long ago ceased to be an artisan if he ever was one employed on a monthly rate of pay. Therefore, his case is governed by clause (a) of Fr 56 and not by clause (b) thereof.

(5) Sensing this insurmountable difficulty, the learned counsel for the petitioner urged that the petitioner was not holding the post of Workshop Superintendent because, firstly, no such post existed, and secondly, he was not appointed to that post but was only looking after the extra duties of that nature. These everments are denied by the Corporation and belied by the statements of the petitioner himself. It Is clear from his application dated 24-8-1973 that he was working as Workshop Superintendent (Auto) in the Motor Workshop, City Zone, and below his signature he has designated himself as Workshop Superintendent not only in the said application but also in applications dated 21-1-1974, 16-2-1974, 27-5-1974 and 5-6-1974 copies on which were filed by him. There is a copy of the office note in which his representation was dealt with. The note shows that the petitioner was Superintendent Workshop under the S.R. (V). Yet he contends that notwithstanding the designation of the post held by him, he was discharging the duties of physical labour and was, therefore, an artisan. I do not think that by doing some sort of incidental or occasional manual labour, the position of the petitioner can be described as that of a workman.

(6) The second contention raised on behalf of the petitioner is that the Zonal Health Officer cannot retire him, and only an officer not below the rank of Deputy Commissioner can retire him, because it is virtually a case of compulsory retirement. This contention has no force because it is not a case of compulsory retirement and sice it is in virtue of the rule that he stands retired, communication like the impugned one can be issued by any competent person. It is not that he would not retire but for the impugned communication.

(7) By the time when he was retired, the rule had been amended that a person would be retired on the last date of the month in which his superannuation is due, vide G.I.C.S. (Deptt. of Personnel) O.M. No. 33112173 Ests. (A), dated 2-5-1974 and 24-11-1973 (see Swami's Compilation of Fundamental Rules, Ed. Sixty, p. 194, footnote to Fr 56). Therefore, the grievance of the petitioner that he was retired before the end of the month is a genuine one.

(8) I, therefore, dismiss this petition with the direction that the date of retirement shall be 31-7-1974 with resultant benefits. There will be no order as to costs.