Orissa High Court
Naba @ Naba Swain (Since Dead) vs Union Of India And Others on 16 December, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.20317 of 2011
Naba @ Naba Swain (since dead) .... Petitioner
represented by his L.R.
Mr. S. K. Nayak-3 and associates, Advocates
-versus-
Union of India and others .... Opposite Parties
Mr. A. K. Mishra, Advocate
CORAM:
THE CHIEF JUSTICE
JUSTICE A. K. MOHAPATRA
ORDER
16.12.2021
Order No.
I. A. No.17760 of 20021
03. 1. For the reasons stated therein, the application is allowed. The
deceased Petitioner is substituted by his wife as per Schedule-A
to the application.
2. Consolidated cause title incorporating the name of the newly
substituted Petitioner shall be filed in course of the day.
W.P.(C) No.20317 of 2011
3. The challenge in the present petition is to an order passed by
the Central Administrative Tribunal, Cuttack Bench, Cuttack
(CAT) on 4th February, 2010 disposing of contempt petition
(CP) No.53 of 2009 filed by the late Petitioner.
4. The background facts are that the Petitioner had originally
filed O.A. No.615 of 2006 claiming that he was entitled to
pensionary benefits. He sought a direction to the Opposite
Parties to take into consideration 50% of the period of his
casual service with temporary status from 1st January, 1986 i.e.
the date from which he was granted the Central Pay
Commission Scale. The said O.A. was disposed of by the CAT
by an order dated 18th December, 2008 where in para 4, it was
observed as under:
"4. In the above circumstances, we are of the view
that the date of allowing Central Pay Commission
Scale to a casual employee is the cut off date for
granting him temporary status and if so, 50% of the
entire period of service of the applicant from
01.08.1987 to 30.04.1996 has to be taken into
consideration along with the regular service for the
purpose of determining the qualifying period of
service for pension. Hence, we direct the Respondents
to consider the claim of the applicant for granting him
pensionary benefits by taking into account his
temporary services which he has had in his account
from the date of allowing him the Central Pay
Commission Scale, i.e., w.e.f. 01.08.1987. The
calculation of the pensionary benefits to the applicant
shall be considered and final orders passed within 90
days of the receipt of the copy of this order."
5. Complaining of non-implementation of the said order, the
Petitioner preferred C.P. No.53 of 2009 before the CAT. It is
this petition that has been disposed of by the impugned order
dated 4th February, 2010, which reads as under:
"Heard the learned counsel for the Petitioner
and Shri T. Rath, learned counsel for the
Respondents.
This C.P. has been filed for non compliance
of the order dated 18.12.2008 in O.A. 615/08 passed
by this Tribunal. This Tribunal in order dated
18.12.2008 observing that allowing Central Pay
Commission Scale to a casual employee is the cut off
date for granting him temporary status and if so, 50%
of the entire period of service of the applicant from
1.8.1987 to 30.1.1996 has to be taken into
consideration along with regular service for the
purpose of pension, issued direction for grant of
pensionary benefits. By filing show cause, it has been
submitted by the Respondents that after taking into
consideration 50% of casual service for the period
from 01.8.87 to 30.4.96, the qualifying service is short
of 10 years. In this respect the Respondents have
calculated the period of casual service rendered by the
applicant for 1.8.87 to 10.5.90 and 11.5.90 to 30.4.96.
Having regard to the above, we are of the
view that there has been no willful or deliberate
violation of the order of this Tribunal. If the applicant
feels aggrieved with the calculation of 50% of the
temporary service, he is at liberty to take appropriate
remedy as per law. Accordingly, the C.P. is closed.
Notice as the alleged contemnors is discharged."
6. Learned counsel for the Petitioner submits that in view of the
judgment of the Supreme Court of India dated 24th March, 2017
in Civil Appeal No.3938 of 2017 (Union of India v. Rakesh
Kumar), the CAT was not right in restricting the period to be
taken into account as 50% of the period of casual service for
the entire period during which the Petitioner was engaged on a
casual basis.
7. The Court is unable to accept the above submission of
learned counsel for the Petitioner for the simple reason that
accepting the plea would mean that the original order dated 18 th
December, 2008 passed by the CAT would have to be modified
by this Court. There is no challenge in the present petition to
that order at all. Such a plea therefore cannot be accepted as far
as the present petition is concerned.
8. As far as the order passed by the CAT in CP No.53 of 2009,
indeed on a calculation in terms of the earlier order of the CAT,
the qualifying service of pension, the Petitioner was not able to
fulfil the said requirement. The period of service worked out to
9 years and 6 months, which was short of 10 years. As far as
the factual determination of the period is concerned, a clear
explanation has been offered by the Opposite Parties, which
reveals that indeed that the Petitioner did not possess the
minimum qualifying service for pension.
9. The scope of the present petition is only to determine
whether the CAT was right in passing the impugned order in
CP No.53 of 2009 and not whether the CAT was justified in
passing the original order dated 18th December, 2008 in O.A.
No.615 of 2006.
10. Consequently, no ground is made out to interfere with the
impugned order of the CAT dated 4th February, 2010 in CP
No.53 of 2009. The petition is accordingly dismissed.
(Dr. S. Muralidhar)
Chief Justice
( A. K. Mohapatra )
Judge
M. Panda
