Mangal Tudu vs State Of Odisha & Ors
2022 Latest Caselaw 5345 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                          W.P.(C) No.25975 of 2022

        Mangal Tudu                          ....            Petitioner

                                          -versus-

        State of Odisha & Ors.               ....            Opposite Parties

                            CORAM:
               JUSTICE BIRAJA PRASANNA SATAPATHY

                                      ORDER

11.10.2022 Order No

01. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. Heard learned counsel for the Petitioner as well as learned counsel for the State.

3. The Petitioner has filed the above noted writ application with a prayer to direct the Opposite Parties to regularize him in service for a day prior to his superannuation notionally and grant pension and pensionary benefits under the old rule in the light of the decision in the case of State of Odisha vrs. Pitambar Sahoo, W.P.(C) No.24041 of 2017 (decided on 20.12.2017), which has been affirmed in SLP(C) Diary No.30806 of 2018 and Chandra Nandi vrs. State of Odisha and others, W.P.(C) No.19950 of 2011(decided on 03.02.2021) and Premananda Tripathy vrs. State of Odisha, W.P.(C) No.27950 of 2019 (decided on 03.02.2021) and Narusu Pradhan, SLP No.22498 of 2012, State of Orissa and others vrs. Jyostna Rani Pattanaik and others, W.P.(C) No.1534 of 2008, State of Orissa vrs. Pitambar Mohapatra, W.P.(C) No.13483 of 2012 and State of Orissa vrs. Radheshyam Mohanta, W.P.(C) No.12377 of // 2 //

2009, which has been affirmed in SLP(C) No.36038 of 2020 as well as the benefits given to similar persons.

4. The factual matrix, in brief, is that the Petitioner had initially joined as DLR basis on 01.10.1990. He continued in the said post continuously and thereafter, he was brought over to work charged establishment as Khallasi on 04.03.2011. It is pertinent to mention here that the Petitioner Amin retired from service on 31.08.2022. Therefore, it is construed clear that the continuance of the Petitioner in work charge establishment have been considered from 16.03.2011 for all purposes including gratuity.

5. It is also submitted by the learned counsel for the Petitioner that the learned Tribunal in O.A. No. 70(B) of 1997 by order dated 03.05.1999 analyzing various points of law directed the State Government to regularize in a establishment post from the time he completed five years of continuous service in work charged establishment and the period from that time till the date of retirement be counted towards the pension and direction was issued to grant pensionary benefit to the employees. He further submits that the Government challenging the order of the learned Tribunal under Annexure-6 approached this Court in filing OJC No.13552 of 1999 and this Court by order dated 01.05.2001 referring the judgment rendered in OJC No.1162 of 1999 (State of Orissa-vrs.- Jhuma Parida and others) and OJC No.11028 of 1999 (State of Orissa Vrs. Sudarsan Sahoo and others) confirmed the order passed by the learned Tribunal and dismissed the writ application. After dismissal of the writ application, the Government has brought the employee into regular establishment for the purpose of granting pensonary benefit.

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6. The Opposite Parties has although not filed a counter affidavit denying all the allegations made by the Petitioner in the Petition. It is stated by the learned Additional Standing Counsel that the claim of the Petitioner is a stale claim. Further it is stated that the cases cited by the Petitioner are different from the grievance of the Petitioner and the principle decided in the said case are not all applicable to the case of the present Petitioner. It is submitted by the learned counsel appearing for the State that the Opposite Parties has given due care and caution towards implementation of orders passed by this Court as well as the Apex Court and the guidelines and circulars issued by the State Government from time to time.

7. Heard learned counsel for both sides. Perused the materials available on record. Learned counsel for the Petitioner relies upon the judgment of this Court in the case of Abhaya Charana Mohanty vrs. State of Odisha, WPC(OAC) No.3494 of 2013 disposed of on 14th July, 2021. In the said case, the Petitioner, who was a work charged employee had claimed the pensionary benefits after his retirement with retrospective effect. This Court relying upon the order of the Hon'ble Supreme Court of India in Civil Appeal No.21498 of 2012 thereby dismissing the State Government's Appeal and confirming the order dated 19th December, 2011 of this Court passed in W.P.(C) No.5377 of 2010 in the case of one pensionary benefits as prayed for in that case.

8. Similarly, learned counsel for the Petitioner has also cited another order of a Division Bench of this Court in the case of Chandra Nandi vrs. State of Odisha and others : reported in 2014(I) OLR 734. In the said reported case, this Court had given a direction to notionally regularize service of the Petitioner prior to his

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superannuation from service and accordingly, calculated the Petitioner's entitlement including the pensionary benefits.

9. So far the case of one Narusu Pradhan is concerned and which has been referred to by this Court in Abhaya Charan Mohanty (supra), said Narusu Pradhan had filed O.A. No.1189(C) of 2006 praying for retiral benefits. Learned Tribunal allowed the retiral pensionary benefits in his favour vide order dated 11th June, 2009. The order dated 19th June, 2009 was challenged by the State Government before this Court in W.P.(C) No.5377 of 2010. This Court dismissed the writ petition on 19th December, 2021 and confirmed the order passed by the learned Tribunal. Therefore, the State Government preferred an appeal before the Hon'ble Supreme Court of India bearing Civil Appeal No.22498 of 2012. The said appeal was also dismissed on 7th January, 2013 by the Hon'ble Supreme Court of India thereby confirming the orders passed by the learned Odisha Administrative Tribunal as well as this Court. Since the case of Narusu Pradhan is a case of work charged employee, who had worked for more than five years in work charged establishment had been allowed to receive pensionary benefits by virtue of order passed by the learned Odisha Administrative Tribunal, which was ultimately confirmed by the Hon'ble Supreme Court of India, the principle laid down in that case has become a Law of the land as declared by the Hon'ble Supreme Court of India and is binding on this court while deciding cases of similar nature. Therefore, it is no more open to the State Government to take stand contrary to the principle finally approved by the Hon'ble Supreme Court of India.

10. The only benefit the petitioner is directs to get his pensionary benefits payable to the Petitioner i.e. required to be considered in

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the present writ petition. Since the benefits have been granted to other similarly placed work charged employees by notionally considering them as regular establishment employee and as such the pensionary benefits have been given to them, the same benefit needs to be extended to the Petitioner for services rendered by him under the State Government for several decades continuously that too on payment of a paltry amount every month. The whole objective of the pension scheme is to support an employee and his family after retirement which is in recognition of his relentless service to the Govt. and such benefits are provided under the Rules on humanitarian considerations.

11. In view of the aforesaid facts and circumstances, the present writ petition is allowed and the Opposite Parties are directed to grant similar benefits to the Petitioner as has been done in the case of Narusu Pradhan vide order dated 11th June, 2009 passed in O.A. No.1189(C) of 2006. The Petitioner is directed to appear before the Opposite Party No.1 & 4 along with certified copy of this order and all other relevant documents and records for the processing of his claim. The Opposite Party No.1 & 4 upon receipt of certified copy of this order shall calculate and pay the benefits payable to the Petitioner, particularly his pensionary benefits, within a period of three months from the date of production of certified copy of this order.

12. With the aforesaid observation, the writ petition is allowed. There shall no order as to cost.

(Biraja Prasanna Satapathy) Judge Sneha