Orissa High Court
Abhay Charan Naik vs State Of Odisha And Others on 18 October, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.26696 of 2022
Abhay Charan Naik .... Petitioner
Mr. K. Swain, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. Choudhury S. Mishra, A.G.A.
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
Order No. 18.10.2022
02. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard learned counsel for the Petitioner and learned counsel
for the State.
3. The present writ petition has been filed by the Petitioner with
a prayer to direct the opposite parties to bring the petitioner under
regular establishment as he had put more that 35 years of service
both in the capacity of NMR and work Charge employee till his
retirement from service i.e. 31.7.2022 as similarly situated work
charged employees have been brought over to regular establishment
and he may also be provided with the benefits of OCS (Pension)
Rules, 1992 prior to its amendment in terms of the office
memorandum dated 1.5.2010 issued by the Government of Odisha in
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the Department of Finance as the petitioner was appointed prior to
the cutoff date i.e. 1.1.2005 keeping in view the judgment rendered
by this Hon'ble Court in the case of Basanti Behera vs. State of
Odisha and others (W.P.(C ) No.13314 of 2020 disposed of on
6.7.2021 in the case of Chandra Nandi vs. State of Odisha and others
reported in 2014 (I) OLR 734, in the case of Premananda Tripathy
Vs. State of Odisha and others (W.P.(c ) No.27950 of 2019 disposed
of on 3.2.2021, in the case of State of Odisha and others vs. Jyostna
Rani Patnaik and others W.P.(C ) No.1534 of 2008 disposed of on
19.12.2006 as well as in the case of Harbans Lal vs. The State of
Punjab and others (CWP No.2371 of 2010, decided on 31.8.2010 by
the High Court of Punjab and Haryana, which has been upheld by
the Hon'ble Supreme Court in SLP (C ) Bo.23578 of 2012 (SLP (C )
No.18901 of2011, disposed of on 30.7.2012 (State of Punjab and
Others vs. Haryans Lal) and also in the case of Jeewan Lata vs. State
of Punjab and others (CWP No10238 of 2017 (O & M) decided on
10.5.2019) will all consequential benefits.
4. It is further submitted by learned counsel for the petitioner that
pension and pensionary benefits be granted under the old rule in the
light of 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
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State of Orissa vrs. Radheshyam Mohanta, W.P.(C) No.12377 of
2009, which has been affirmed in SLP(C) No.36038 of 2020 as well
as the benefits given to similar persons.
5. It is also submitted by learned counsel for the petitioner that
the petitioner-Abhaya Charan Naik was initially engaged as N.M.R
under RWS & S Department on 1.9.1987 and was subsequently
brought over to work charged establishment w.e.f 1.3.2009 by virtue
of the order of the Executive Engineer, Mechanical RWS & S
Division, Sambalpur and continued to work under the work charged
establishment. The petitioner had already worked for more than 13
years in Work Charged Establishment prior to its superannuation.
6. Further, learned counsel for the petitioner submits that this
Court in WPC(OAC) No.3494 of 2013 by order dated 14.07.2021
analyzing various points of law directed the State Government to
regularize in establishment post from the time, the petitioners
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 benefits to the employees. He further submits that in
similar matter Government had challenged the order of the learned
tribunal under Annexure-6 approached this Court in filing a writ
petition bearing W.P.(C) No.5377 of 2010 and this Court by order
dated 19.12.2011 referring the judgment rendered in O.J.C. No.1162
of 1999 (State of Orissa vrs. Jjuma Parida and others) and O.J.C.
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.
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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 Chanrana 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 Narusu
Pradhan vrs. State of Odisha allowed the writ petition and granted
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
superannuation from service and accordingly, calculated the
Petitioner's entitlement including the pensionary benefits.
9. So far the case of one Nansu 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
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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 intends to get his pensionary
benefits payable to the Petitioner i.e. required to be considered in 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
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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 Petitioners are directed to appear before the
Opposite Party No.1 & 2 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 & 2 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 observations/directions, the writ petition is
allowed. There shall no order as to cost.
sangita (Biraja Prasanna Satapathy),
Judge
