Hari Singh vs Municipal Corporation Of Delhi & ...
1999 Latest Caselaw 903 Del

ORDER

A.K. Sikri, J.

1. Rule.

2. The short question involved in this writ petition is as to whether the petitioner has to retire at the age of 58 years or at the age of 60 years.

3. The petitioner was employed as Nursing Orderly on 01.05.1963 and promoted as O.T. Assistant on 02.05.1976 and O.T. Technician on 06.05.1991 in Hindu Rao Hospital. He says that he is a workman and governed by fundamental Rule 56(b) for the purpose of his superannuation, which provides the age of retirement as 60 years. Fundamental Rule 56(b) is reproduced below :

F.R.56(b)

"A workman who is governed by these rules shall retire from service on the afternoon of the last day of the month he attains the age of sixty years.

NOTE

3. In this clause, a workman means a highly skilled, skilled, semi skilled or unskilled artisan employed on a monthly rate of pay in an industrial or workcharged establishment.

4. The petitioner contends that predominant nature of his duties is manual and skilled.

5. The petitioner attained the age of 58 years on 28.02.1998 and, accordingly, vide impugned order dated 6.10.97 retiring him w.e.f. 28.2.1998 at the age of 58 years is challenged by the petitioner in this writ petition and he has prayed that he should be allowed to serve up to the age of 60 years i.e. 28.2.2000 with all service benefits. The petitioner has relied upon some of the judgments passed by this court in support of his submissions. On the other hand counsel for the respondents has relied upon the judgment of Supreme Court in the case of State of Orissa and Others Vs. Adwait Charan Mohanty. and has contended that in view of this judgment of Supreme Court, cases relied upon by the petitioner are no more good law.

6. It is not in dispute that the petitioner is not a Class-IV employee and he is Class-III employee. As per the judgment of Supreme Court in Adwait Charan Mohanty (Supra), Class-III consists of Gazetted as well as non-Gazetted employees. The Government servants in Class-III, shall retire on completion of 58 years. Even an artisan-workman who was promoted or appointed to Class-III service shall retire on completion of 58 years of age. It is only an artisan-workman who is working in an industrial or workcharged establishment and he is at par with Class-IV employees, is to retire on attaining the age of 60 years.

7. The effect of the aforesaid judgment was considered by the Single Bench of this court (Usha Mehra, J). Since all the aspects which arise in this case are considered in the aforesaid judgment in detail, I quote hereunder from the said judgment extensively and applying the ratio of Adwait Charan Mohanty (Supra) (in CWP. No. 3568/96 decided on 13.8.97) the court decided that such a person has to retire at the age of 58 years.

"After hearing counsel for the parties and perusing the record, I am of the considered view that petitioner cannot take the advantage of the provision under F.R. 56(2). Under the said provision, if an Artisan is a Class-IV employee or at par with Class-IV employee only then he can claim the benefit. But that is not the case in hand.

However, counsel for the petitioner's contention that an employee who has been performing the duties of a workman or Artisan would retire at the age of 60 years. Whether the Artisan is a Class-III or IV employee has no relevance so far as F.R. 56(b) is concerned. To strengthen his argument he placed reliance on the Full Bench decision of this court in the case of Hetram Gauri Vs. MCD, wherein it has been held that an Artisan working in an 'Industry' would retire at the age of 60 years. In that case the petitioner was a Cameraman performing the duties of artistic nature. He being an Artisan was held to retire at the age of 60 years. Relying on these observations, Mr. Sharma conended that once it is proved that petitioner was an Artisan performing the duties of a workman he would retire at the age of 60 years irrespective of the fact that he was a Class-III employee.

On the other hand, Mr. Duggal contended that the Full Bench decision of this court is no more a good law. The Supreme Court in the case of State of Orissa & Ors. Vs. A. C. Mohanty has settled the principle as to which Class of employees can take benefit of retirement age age under F. R. 56 (b). The Supreme Court while considering the functioning of Artisans and dealing with the category of the Class of employees concluded that if a person is Class - III employee be that gazetted or non-gazetted, he is to retire on completion of 58 years. If the interpretation as given by the petitioner is accepted that every Artisan or a workman would be entitled to remain in service till the age of 60 years irrespective of the fact that he is a Class - III employee. It would defeat the object of the Act. The petitioners in Supreme Court's case referred to above were working as Draftsman, Senior Draftsman, Architectural, Asstt. Draftsman, Architectural Draftsman, Planning Assistant, Carpenter, Heavy Vehicle Driver Mechanic, Foreman, Motor Grade Operator, Ferro Printer, Welder, Concrete Mixture Driver, Junior Machineman, Pump Mechanic, Pump Driver-cum - Mechanic etc. They were super-annuated at the age of 58 years. They alleged that since they were workmen, therefore, entitled to continue in service until they attain the age of 60 years. Administrative Tribunal, Orissa upheld their contention. While reversing the Judgment of the Administrative Tribunal, the Supreme Court observed as under:

"We are of the considered view that the Government employee in Class- III service shall retire on completion of 58 years of age. Even an artisan-workman who was promoted or appointed to Class-III service be it gazetted or non-gazetted shall retire on completion of 58 years of age. An Artisan - workman who is working in an industrial or workcharged establishment but he is at par with Class - IV employees is to retire on attaining the age of 60 years ".

By this authoritative pronouncement, the Supreme Court has settled the legal position. It is now settled that if an employee is holding Class-III employment irrespective of the fact that he is a workman and the Management is an "Industry" he will retire at the age of 58 years. Mr. Sharma's argument that "at par with Class- IV employees mentioned in the above judgment mean that an Artisan even though a Class - III employee still would get the benefit because being a Class-III employee his work is at par with Class - IV employees. This reasoning of Mr. Sharma has no substance and is devoid of merits. The Supreme Court was dealing with the case of those petitioners who were artisan such as Draftsman, Senior Draftsman, Architectural Assistant Draftsman, Architectural Draftsman, Planning Assistant, Carpenter, Heavy Vehicle Driver, Mechanic, Foreman, Motor Grade Operator, Ferro Printer, Welder, Concrete Mixture Driver, Junior Machineman, Pump Driver-Cum-Mechanic etc. still keeping in view their status as Class-III employees their prayer was declined. But if an employee is an Artisan and at the same time not a Class- III employee and performing the duties equal to a Class IV employee then Supreme Court held him to be entitled to the benefit of F. R. 56 (b). At par here mean equal to. But if such an Artisan is holding Class - III post he cannot be equated or can be called at par with Class- IV employee. The classifical of employees cannot be mixed up. A Class-III employee is a Class apart from Class-IV employee. These cannot be at par or equal. Hence, the argument of Mr. Sharma on this count cannot be sustained. It is only those Artisan/workman who are Class-IV employees that they will retire at the age of 60 years. An Artisan can be Class-IV as well as Class-III employee. Supreme Court in A.C. Mohanty's case (Supra) specifically de barred Class-III employees of the benefit of F. R. 56(b) irrespective of the fact whether they are gazetted or non-gazetted. Since the petitioner is an artisan and Class-III employees hence cannot ask the respondent to retire him at the age of 60 years. /blockquote>

8. In view of the aforesaid position, the issue raised by the petitioner is no more res integra. The impugned order retiring him at the age of 58 years was, therefore, proper. The writ petition is without any merit and is, accordingly, dismissed. No orders as to costs.