Baldev Singh vs Bureau Of Indian Standard
1999 Latest Caselaw 1166 Del

ORDER

N.G. Nandi, J.

1. Heard.

2. Rule.

3. In this writ petition under Article 226 of the Constitution of India, the petitioner has been praying for the following reliefs:-

"(a) quash the order of retirement dt. 11.6.97 and 27.6.97 per- taining to the petitioner while superannuating the petitioner at the age of 58 years instead of 60 years;

(b) held that the petitioner is entitled to continue in service uptil the age of 60 years in view of the provisions of FR 56(b) and the impugned order dt. 11.6.97 is inoperative and the peti- tioner continues to be in service with entitlement to full salary and allowances uptil 30.6.1999 by issuance of writ of certiorari, mandamus or any other appropriate writ, rule, order or direction."

4. The case of the petitioner is that the petitioner joined the respond- ent as Mistry on 28.5.1963; that designation of Mistry was changed to electrician; that the designation of electrician was also changed to that of Technician; that the petitioner was promoted as Master Technician (equivalent to Senior Electrician) in or about 1985 and thereafter promoted as Senior Master Technician on 15.10.1990 in the scale of Rs. 1640-2900; that the nature of duties performed by the petitioner in the capacity of Senior Master Technician is to look after maintenance of various electrical equipments and appliances; that he is also required to attend to the re- pairs of various kinds of electrical appliances including hot cases, compressor pumps, refrigerator, transformers, electric meters, fans, rewinding of motors etc.; that this job undisputably involves skill; that besides the skill, the job also involved manual work; that the respondent is an indus- trial establishment and the petitioner is a workman and also an artisan within the expression given in FR 56(b); that the respondent is set up under the provisions of Bureau of Indian Standards Act, 1986 and is an instrumentality of state under Article 12 of the Constitution of India; that Regulation 13 of the Bureau of Indian Standards (Terms and Conditions of Service of Employees) Regulations, 1988 provides that the employee of the Bureau shall be governed by the retirement Rules as applicable to the Central Government employees; provided that officers belonging to the Scientific Cadre shall retire at the age of 60 years; that the petitioner is covered under FR 56(b); that the petitioner was served with Office Note bearing No. BSI/3396 dated 26.6.1996 stating that on attaining the age of superannuation, the employees named therein (including the petitioner) will retire from the respondent organization during the year 1997 with effect from the date shown against the particular individual. The petitioner's name was shown at serial No. 19 in the said office note and his date of superannuation is shown therein as 30.6.1997 (AN). The petitioner filed representation dated 2.9.1996 contending that since he is an artisan and working as Senior Master Technician, he cannot be retired before attaining the age of 60 years. Another representation dated 14.11.96 was submitted by the petitioner reiterating the aforesaid stand but of no avail. In sub- stance, the say of the petitioner is that since the petitioner is a workman within the meaning of FR 56(b), he is entitled to serve upto the age of 60 years and that he can not be superannuated at the age of 58 years.

5. The respondent, by affidavit in reply, contended that the petitioner was not a workman within the meaning of FR 56(b) and as such he is not entitled to the relief claimed in the petition; that predominant nature of work of the petitioner was intellectual, requiring application of mind and ability in discharging his duties. For manual labour, he had manual labour under him and, therefore, petition being misconceived, is liable to be dismissed; that the petitioner was looking after the work of maintenance and repairs of test equipments installed in the Central Laboratory while break down of the equipments, defects and faults which develop are required to be detected him, with his knowledge and dexterity he is required to remove them and put the equipments in running order; that the detection of fault and their remova requires application of mind. Obviously, the predom- inant nature of work performed by him requires application of mind and technician skill. For the manual work involved during attending to the work of maintenance of equipment, he was provided manual labour as his job entails maintenance of test equipments; that the nature of work of peti- tioner was undoubtedly such which requires intellect, acumen and skill to detect the fault in equipments. In detecting such faults and rectifying them, dexterity is essential. He was also required to take steps for pre- venting recurrence of such faults. It is denied that the petitioner was a workman and or artisan within the meaning of FR 56(b), as alleged in the petition; that the retirement provisions of the employees has been laid down in BIS (Terms and Conditions of Service of Employees) Regulations, 1988. The retirement age of Central Government employees of various groups is governed by FR 56. As per regulation 13 read with FR 56(b), the peti- tioner retired on superannuation on attaining the age of 58 years. In substance, the say of the respondent is that the petitioner is not a work- man within the meaning of FR 56(b) and that the petitioner has been justifiably superannuated at the age of 58 years in view of Regulation 13 read with FR 56(b).

6. It is submitted by learned counsel for the petitioner that as Senior Master Technician, the petitioner was required to do manual work also and for the purpose of removing the defect in the electrical equipments/appliances, the petitioner had to himself physically work; that the other labour were only assisting/helping the petitioner and there are certain work which would require more than one person to remove the defect; that the petition- er was promoted as Senior Master Technician on the basis of his skill and the expertise that he had acquired and he had not only to detect the faults/defects in the equipments but also required to remove them and the work of removal of defect/fault would involve the manual work, which the petitioner was required to do; that besides application of mind for the purpose of finding out the defect/fault for the purpose of removal of the defect/fault, physical labour was also required to be put by the petitioner and the predominant nature of work performed by the petitioner required the application of mind and technical skill as well as the manual work and, therefore, FR 56(b) would entitle the petitioner to work till 60 years of age and the action of the respondent in superannuating the petitioner at the age of 58 is illegal.

7. As against this, it is submitted by learned counsel for the respondent that within the meaning of FR 56(b) the petitioner is not a workman and that petitioner being a senior master technician, he had only to detect defect/fault in the equipment and there skill/expertise would be required and not the manual work; that as far as the removal of the defect/fault is concerned, the same would be done by the labour provided to the petitioner and the petitioner was only required to supervise the work of removal of defect/fault and that no manual work was required to be done by the petitioner.

8. It is not in dispute that the petitioner started his career as Mistry - designation changed to Electrician, again to Technician and was promoted as Senior Master Technician and superannuated as such on 30.6.97 on attain- ing the age of 58 years.

9. Fundamental Rules (FR) are the statutory rules, framed by the Govern- ment of India, Ministry of Finance (Department of Expenditure) New Delhi. FR 56 deals with retirement, FR 56 reads as follows:

F.R. 56 (a) Except as otherwise provided in this Rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty eight years.

(b) A workman who is governed by these Rules shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years.

Note : In this clause, a Workman means a highly skilled, semi- skilled, or unskilled artisan employed on a monthly rate of pay in an industrial or work charged establishment.

(c) xxxxxxxxx xxxxxxxxxxx xxxxxxxxx

10. Before considering the meaning of the word 'workman' under FR 56(b) it may be useful to appreciate the object behind FR 56(b). The objective appears to be to given extended period of service to the persons primarily performing manual duties. As per sub-Rule (e) Class IV employees have to retire from service on attaining the age of sixty years. The employees, who have been performing the manual duties and who may not necessarily be Class IV employees are sought to be equated with Class IV employees for the purposes of extended age of retirement under F.R. 56(b). Class IV employees belong to the lowest rank in the hierarchy in Government service. The benefit of continuing in service for a longer time is given to them. They belong to a level of society which deserves the economic support which flows as a result of the extended period of service. The category of employees which are likely to be covered under F.R. 56(b) is similar and deserves the same economic support. Further this benefit is intended to be given to persons belonging to a lower category of posts having comparative- ly lower scales of pay. Such employees in the ministerial services normally belong to Class IV and for them the age of retirement is 60 years. However, those employees who are engaged in predominantly physical or manual work, may not necessarily be in class IV. Still workmen belonging to the lowest ranks of Government service deserve the benefit of extended age of retire- ment like their counterparts in ministerial service being class IV employ- ees. F.R. 5 (b) appears to be intended to cover such employees. The inten- tion seems to emerge from the use of the word artisan in the Note appended to F.R. 56(b).

11. In the case of Het Ram Gauri Vs. MCD in paragraph 11 it is observed that "the recruitment regulations of the concerned posts may have to be seen to find out the job requirements of a particular post. The eligibility requirements of a post may also be a relevant factor. Where there are no recruitment regulations or prescribed qualifications or eligibility conditions, a case may have to be decided on the basis of pleadings and/or other evidence. The petitioner may plead about the nature of duties rendered by him, which may be admitted or denied by the other side. Therefore, the facts of each case will have to be seen to determine the predominant nature of work of a petitioner in a given case. In Manohar Lal Vs. MCD 1989 (2) D.L.T 15, a book binder was held as covered under F.R. 56(b) even though partly he had to supervise the work of other book binders working under him. Similarly in Andhra Pradesh State Road Corporation Vs. Joseph Bernad & Ors.. 1982 (1) SLR 617, a vehicle inspector was held covered under a similar definition of a provision for extending the retirement age upto 60 years. It was held that predominant nature of duties of a vehicle inspector involved in that case were to check the vehicles which in turn required him to drive the vehicles personally. The predominant nature of his duties were held to be covered under the beneficial provision regarding extended retirement age." In paragraph 14 it is observed that "one thing which needs to be noted in this context is that F.R. 56(b) is a beneficial provision, i.e., a provision meant to confer certain benefits on employees who may be covered within the meaning of this provision. We have already noticed the object of this provision in the opening part of the judgment. Therefore, it may not be unjustified to say that a liberal construction ought to be given to such a provision."

12. In the instant case, the petitioner admittedly superannuated as Senior Master Technician and the predominant nature of work that he was required to do was to look after the work of maintenance, detect the defects and faults while break down of the test equipments installed in the Central Laboratory of the respondent and the defects/faults detected required to be repaired/removed by the petitioner and put the equipment in running order. As far as the detection of fault is concerned, the same would require application of mind and the experience. Then comes the second state, namely of repairing/removing the defects/faults in the equipment. It need hardly be said that for every work be it of maintaining vehicle application of mind is a pre-requisite. Without application of mind even a manual work can not be properly done but besides application of mind the work of removal/repairing of the defect/fault in the equipments manual work/labor would also be required. The petitioner, as a senior master technician has not only to find out/detect the faults/defects in the equipment, but he has to repair/remove the fault found in the equipment. In other words, the equipment would be required to be repaired and the defect removed which can be done only by putting physical work/labor and the petitioner as the senior master technician, would also be required to put manual labour for the work of repairing the equipments. As far as the other labour provided to the petitioner is concerned, it depends upon the nature of the repair work required in a given equipment. There may be some repairing work of minor nature which can be attended to by one or more labour. There may be some repairing work, which may require the services of the petitioner as an experienced hand and being a senior most technician, required to do the work of repairing himself. Simply because the petitioner was a senior master technician, it can not be necessarily said that the petitioner had not to do any manual or physical work for repairing/removing of the defect/fault in the equipment.

13. It is not disputed by learned counsel for the respondent that the petitioner had to remain in workshop or place, where the repairing of equipment was to be carried out. As far as the supervision is concerned, it would be a supervision of the work whether properly done or not by the other labour and that the petitioner would be working as a senior master technician. As far as the repairing work required to be done/attended by the petitioner as a senior master technician is concerned, the same required to be done by the petitioner himself or may be with the assistance of other labour depending upon the nature of equipment and the nature of repairing work required.

14. Thus, considering the facts and circumstances of the case and the predominant nature of work which the petitioner was required to do, it can not be said that the petitioner can not be regarded as a workman within the meaning of FR 56(b) simply because he was designated as senior master technician but the petitioner would remain essentially a workman and, therefore, entitled to the benefit of extended age of retirement, as provided under FR 56(b) which would be 60 years.

15. In the above view of the matter, following the principle laid down in the case of Het Ram Gauri Vs. MCD (supra) the petition deserves to be granted and the petitioner given the benefit of extended age of retirement, which would be upto 60 years of age.

16. It is suggested from the record that the petitioner has completed age of 60 years. Under the impugned order of superannuation, the petitioner was superannuated at the age of 58 years w.e.f. 30.6.1997 (AN) and the peti- tioner would complete 60 years of age on 30.6.1999 (AN) so there is no question of granting any reinstatement of service, however the petitioner is entitled to other consequential monetary benefits which would accrue to the petitioner extending the retirement age upto 60 years i.e. upto 30.6.1999.

17. In the result, the petition is granted with all consequential bene- fits. The orders of retirement dated 11.6.1997 and 27.6.1997, superannuat- ing the petitioner at the age of 58 years are hereby quashed with all consequential monetary benefits. Rule made absolute.