WP(C)/19550/2011
2021 Latest Caselaw 1232 Ori

                                    W.P.(C) No. 19550 of 2011




18.    03.02.2021         This matter is taken up through video conferencing.
                          Heard learned counsel for the parties.
                    3.    By way of this Writ Petition, the petitioner has challenged
                    the order dated 11.06.2009 passed by the learned State
                    Administrative      Tribunal,     Cuttack    Bench,   Cuttack    in   O.A.
                    No.1513 (C )of 2009. The petitioner has further prayed for a
                    direction to the opposite parties to release the pension, gratuity
                    and retrial benefits to the petitioner.
                    4.    This writ petition was disposed of on 24.1.2014 with a
                    direction as follows:-
                                   "We therefore direct that the petitioner should
                             be treated to have been regularized in service at
                             least one day prior to his superannuation notionally
                             and   we       further   direct   that   calculating   his
                             entitlements, his pension amount shall be fixed by
                             the opposite parties - State, in accordance with the
                             rules and the arrear pension of the petitioner so
                             calculated shall be paid to the petitioner by the end
                             of March, 2014 and further the monthly payment of
Arun                         pension shall be made to the petitioner regularly
                             thereafter."
                    5.    However, the above order was challenged by the State-
                    Opposite parties in Civil Appeal No.10690 of 2017 and the
                    Hon'ble Supreme Court vide its judgment dated 1.4.2019
                    remitted back the same to this Court for deciding the case afresh
                    on merits within a period of six months and the matter was re-
                    heard.
                    6.    It appears that such an issue was earlier before this Court
                    in W.P.(C) No.8666 of 2004. In the said writ application the
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petitioner, who      was a     work     charged employee        had   also
challenged the order dated 04.08.2003 passed by Odisha
Administrative Tribunal, Cuttack in O.A. No. 2782 (C) of 1997,
wherein the Tribunal instead of giving any direction towards
pensionary benefits directed the authorities to prepare proper
scheme and consider the case of the petitioner for regularization
and other consequential benefits.
7.     The said writ application was disposed of on 06.05.2004.
In paragraph-4 of the said order, it has been observed as
follows:-
              "In respect of work charged establishment the
     Government of Orissa vide Finance Department Office
     Memorandum No.5483/F dated 6th March, 1990 decided that
     consequent upon absorption of work charged employees in
     the corresponding post created in regular establishment, the
     period   of   service   rendered    by   him   in   work    charged
     establishment, shall count towards pensionary benefits
     under the Orissa Pension Rules, 1977 subject to the
     condition that the employees so absorbed should have served
     continuously for a minimum period of five years in the work
     charged establishment. This decision was not followed by the
     subordinate authorities. Thus, the fate of the work charged
     employees who rendered a quite good years of service
     remained in dark. xxx xxx xxx."


       Accordingly the said writ application was allowed and
direction was given to absorb the petitioner in any establishment
post from the time he completed five years continuous service till
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the date he retired from service and thereafter his pension and
other pensionary benefits shall be granted on the basis of
notional fixation of pay in regular establishment as has been
granted to the applicants in O.A. No. 622 of 1999 and other
cases as reflected in the said order of this Court. The order
passed by this Court, was confirmed by the Apex Court in Civil
Appeal No. 5575 of 2007 dated 22.07.2015.
8.    Such was the issue in case of one Narusu Pradhan, a work
charged employee, wherein after the order passed by the Hon'ble
Apex Court in S.L.P No. 22498 of 2012, the authorities passed an
office order on 08.05.2013 by creating supernumerary post,
regularized his service for the purpose of sanctioning pension.
9.    This Court had also occasion to deal with this issue again
in W.P.(C) No. 1534 of 2008, i.e. in the case of State of Orissa
and others v. Jyostna Rani Patnaik and others, wherein
direction of the Tribunal to regularize the service of the
applicant's husband by way of creating a supernumerary post, if
necessary from the time he had completed 5 years of service as
work-charged    employee   by     bringing   him   over   to   regular
establishment was challenged before this Court by the State
authorities. The said case was disposed of vide judgment dated
19.12.2016

, affirming the view expressed by the Tribunal.

10. The brief facts of the present case is that the petitioner joined as a Night Watchman under Executive Engineer, Angul Irrigation Division with effect from 15.11.1965 and worked till 31.12.1969, after which he remained absent. He resumed the duty on 02.04.1991 by tendering his joining report which was duly accepted by the competent authority, i.e. the Executive Engineer, who directed the Assistant Executive Engineer,

Derjang Irrigation Sub Division to engage him as a Night Watchman for watching the structure of Balaram Prasad Branch Canal including cross-regulator mentioning on his joining report that it was accepted. Since the opposite parties did not pay his salary, he filed C.D. Case No. 71 of 1994 before the District Consumer Dispute Redressal Forum, which directed the authorities to accept his joining report with effect from April, 1991 and pay his salary. Thereafter the same was challenged before the State Consumer Dispute Redressal Commission and pursuant to the order passed, however, the opposite partied accepted his joining report with effect from 16.11.1995. While he was so continuing he retired on 31.08.2002 on attaining the age of superannuation. The opposite parties denied him the gratuity and retirement dues including pension on the plea that the petitioner has not worked for a period of ten years. The petitioner therefore, approached the Tribunal in O.A. No. 1513 (C) of 2004 submitting therein even if his period of service would be counted from 1965 to 1969 and thereafter from 1995 to 2002, since he has completed more than 5 years in work charged establishment he is entitled for pension and other retirtual benefits as per the settled position of law. However, he prayed that since he has been performing his duty from 1991, he has completed more than 10 years of service and as such is eligible for pension and gratuity as per OCS (Pension) Rules, 1992. The Tribunal observed that the continuity of service at least from 02.04.1991 till his retirement on 31.08.2002 may be allowed and due gratuity be paid to him as per rules. However as regards other benefits such as regularization claimed by him, the same be considered in the light of the existing O.A. According to the

petitioner, nothing was decided by the learned Tribunal with regard to grant of pension and other retrial benefits. Hence he approached this Court in the present writ application.

11. Learned counsel for the petitioner submitted that in similar matter bearing O.A. No. 70(8) of 1997 in case of Duryodhan Mohanty and others and O.A. No.622 of 1999, in which same point of law was under challenge and the learned Tribunal was pleased to allow the O.A and directed that the applicants shall be absorbed in any establishment posts from the time they completed five years of continuous service till the date when they retired from service. After such absorption, their pension and other pensionary benefits shall be computed on the bass of notional fixation of pay on the regular establishment by adding annual increments which fell due. The said common order passed by the Tribunal was challenged by the petitioner before this Court in W.P.(C ) No.8666 of 2004. Vide judgment dated 6.5.2004, this Court allowed the said Writ Petition by citing a decision in the case of (State of Orissa v. Chaitanya Gouda and five others), with the observation/direction as quoted above. Therefore, the petitioner is entitled to the benefit of pension, gratuity and other retrial benefits. Learned counsel for the petitioner submitted that the petitioner has submitted several representations to be brought over to regular establishment entitling him to claim pension and pensioanry benefits, but his grievance has not been redressed, even through the Finance Department has issued specific resolutions in this regard on 22.01.1965 and also the Works Department in his letter dated 25.05.1997 and Circular dated 27.09.1980 for regularization of services of such employees.

12. Learned Additional Government Advocate, however advanced his argument in support of the order passed by the Tribunal, though he has not disputed the aforementioned settled position of law with regard to regularization of the work charged employees.

13. It was also brought to the notice of this Court about the order dated 02.04.2018 passed in OJC No. 12017 of 2000, wherein it has been observed/ directed as follow:-

Having heard learned counsel for the parties and on perusal of the record, more particularly the order impugned herein, it appears that the Government in Finance Department vide resolution dated 22.01.1965 decided for absorption of such employees to regular establishment after completion of five years in the Work Charged Establishment. Subsequently vide memorandum dated 06.03.1990, Finance Department has also extended the pensionary benefit to work charged employees. Learned Tribunal in O.A. No. 2389 of 1997 vide order dated 23.02.1999 has already disposed of a case of similar nature. Even learned Tribunal has gone on to adjudicate one dispute in O.A. No. 1819 of 1996 regarding extension of pensionary benefit to such work charged employees, who have already retired. The plea of Additional Government Advocate to the effect that the opposite party could not have been brought over to regular establishment, as there was no vacancy, is not sustainable in law, as it has already been held in a catena of decisions that even if there is no clear vacancy, a work charged employee can be brought

over to regular establishment for at least one day by creating a supernumerary post to make him entitled for pensioanry benefit.

In view of the above, we modify the order of learned Tribunal to the extent that the opposite party shall be brought over to the regular establishment for at least one day by creating a supernumerary post, if necessary and accordingly, he shall be extended with the pensionary benefit as would be admissible to him. The entire exercise shall be completed within a period of two months hence.

14. It was also contended that relying on such decision, may other writ petitions, such as OJC No. 12017 of 2000 (decided on 16.04.2019), W.P.(C) No. 12017 of 2000 (decided on 16.04.2019) have also been disposed of.

15. While dealing with the matter, this Court deprecates the action of the state-opposite parties. The state-opposite parties have not fair enough to comply the directions given by the Hon'ble Apex as indicated above and has only dragging such employees into multiple litigations. The state-authorities are also misleading this Court as well the Hon'ble Apex Court on each and every occasions in case of such types of work-charged employees, inspite of law settled in this regard and as well as specific circulars/resolutions/ orders have been passed by the State Authorities in terms of the direction of this Court.

16. In view of the reasoning given in the aforementioned paragraphs, the order dated 01.04.2019 passed by the Hon'ble Supreme Court in Civil Appeal No. 10690 of 2017 is answered accordingly. The State opposite parties are directed to comply the

direction given by this Court on 24.01.2014 within a period of two months from the date of receipt of the copy of the order.

Learned counsel for the parties may utilize the soft copy of this order available in the High Court's website or print out thereof at par with certified copies in the manner prescribed, vide Court's Notice No. 4587 dated 25.03.2020.

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S. Panda, J.

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S.K.Panigrahi, J.