WP(C)/17048/2020
2021 Latest Caselaw 1234 Ori

                                    W.P.(C) No.17048 of 2020




25.   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   07.03.2009   passed   by the   learned   State
                   Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.846
                   (C) of 2009.
                   4.     The petitioner joined as L.V. Driver under work charged
                   establishment with effect from April, 1971. While working under
                   work charged establishment he retired from his service with effect
                   from 31.10.2007. Before his retirement, the petitioner approached
                   the authorities on number of occasions, to bring him to regular
                   establishment by filing number of representations. Since the
                   petitioner was not taken to the regular establishment, the
                   petitioner filed O.A. No. 1364 (C) of 2005, which was disposed of
                   on 03.03.2005 directing the opposite parties to dispose of the
                   representation of the petitioner. Pursuant to the such direction,
                   the Chief Engineer referred the matter to the Government to bring
                   the petitioner to regular establishment. When no decision was
                   taken by the Government, the petitioner again approached the
                   learned Tribunal by filing O.A. No. 2130 (C) of 2007. The said
                   Original Application, was however disposed of on 03.10.2007
                   directing the State Government-opposite party no.1 to consider
                   the averments made in the O.A. and pass appropriate orders
                   within a period of three months. The opposite party no.1, however,
                   passed an order on 07.03.2009 rejecting the claim of the
                   petitioner. The petitioner again challenged the same in O.A. No.
                   846 (C) of 2009. The said O.A. was disposed of on 15.03.2013 in
                   rejecting the claim of the petitioner on the ground of limitation by
                                 2




       holding that the petitioner had not approached the Tribunal prior
Arun
       to   his   retirement/death.          Such    order   dated   15.03.2013   is
       challenged in the present writ application.
       5.     It appears that the issue of release of pension and other
       retrial benefits to the work charged employee, such an issue was
       earlier before this Court in W.P.(C) No.8666 of 2004. In the said
       writ application the 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.
       6.     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
                      3




direction was given to absorb the petitioner in any establishment
post from the time he completed five years continuous service till
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.
7.    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.
8.    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.
9.    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
                       4




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.

10. 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.

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.

11. In the present case, the finding of the Tribunal that the petitioner had approached the Tribunal after his retirement, is nothing, but non-application of mind of the Tribunal. The petitioner had approached the Tribunal on number of occasions

before his retirement, as indicated in aforementioned paragraphs. Thus the finding of the Tribunal in the impugned order, so far as petitioner is concerned, is liable to be quashed and according the same is quashed.

12. This writ petition is disposed of in terms of the observations/ directions given in aforementioned cases. Accordingly this Court directs that the petitioner should be treated to have been regularized in service at least one day prior to his superannuation, by creating supernumerary post, if necessary and accordingly he shall be extended with the pensionary benefits as would be admissible to him. The entire exercise shall be completed within a period of two months from the date of receipt of the copy of this 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.

.......................

S. Panda, J.

.............................

S.K.Panigrahi, J.