Orissa High Court
State Of Odisha & Others vs Sudhakar Behera on 13 November, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No.1522 of 2022
State of Odisha & Others ..... Appellants
Mr. Biplab Mohanty, AGA
Vs.
Sudhakar Behera ..... Respondent
Mr. Basudev Barik, Advocate
CORAM:
ACTING CHIEF JUSTICE DR. B.R. SARANGI
MR. JUSTICE MURAHARI SRI RAMAN
ORDER
13.11.2023
Order No. I.A. No.3597 of 2022
02.
This matter is taken up by hybrid mode.
2. Heard Mr. Biplab Mohanty, learned Additional
Government Advocate appearing for the Appellants and Mr.
Basudev Barik, learned counsel appearing for the Respondent.
3. For the reason stated therein, the delay of 94 days in
filing the present writ appeal is hereby condoned.
4. Accordingly, the application for condonation of delay is
allowed.
(DR. B.R. SARANGI)
ACTING CHIEF JUSTICE
(M.S. RAMAN)
JUDGE
Order No. W.A. No.1522 of 2022
03.
1. Heard Mr. Biplab Mohanty, learned AGA for the
Appellants and Mr. Basudev Barik, learned counsel for the
Respondent.
2. The Appellants, being the State functionaries, have filed
this writ appeal challenging the order dated 15.07.2022 passed
in WPC(OAC) No.3252 of 2018, by which the learned Single
Judge has directed the present Appellants to extend the similar
benefit to the Respondent, as has been done in the case of
Narusu Pradhan v. State of Odisha (O.A. No.1189(C) of
2006, disposed of on 11th June, 2009) and also directed the
Respondent to appear before the Appellants by producing the
certified copy of the impugned order to proceed with his claim.
3. Mr. Biplab Mohanty, learned AGA has contended that
the Respondent is not entitled to the benefit in terms of Narusu
Pradhan (supra) and also contended that the learned Single
Judge has committed an error by granting the claim of
regularization and pensionary benefit of the Respondent, who
retired from the service under work charged establishment
justifying the same in light of the order passed in Narusu
Pradhan (supra), where the principle decided by the Tribunal
has not only been confirmed by a Division Bench of this Court
in State of Odisha Vs. Narusu Pradhan
(W.P.(C) No.5377 of 2010, dismissed on 19th December, 2011)
but also the SLP, preferred by the State, has been dismissed
(vide order passed by the apex Court on 7th January, 2013 in
Civil Appeal No.22498 of 2012). It has been contended that
with the disposal of such writ petition by the learned Single
Judge, direction was issued to consider the case of the
Respondent in light of the principles decided in other case,
whereas no discussion was made as to whether both the cases
are factually similar or not in order to invoke the principles
decided in other case. Therefore, the State has filed this writ
appeal before this Court.
4. Mr. Basudev Barik, learned counsel appearing for the
Respondent has vehemently contended that the Respondent
stands on the similar footing with that of the Appellants in
Narusu Pradhan (supra) and considering the factual
background of the case of Narusu Pradhan (supra) and
applying the same to the case of the Respondent, the learned
Single Judge directed to extend the benefit to the Respondent,
as has been done in Narusu Pradhan (supra). In view of such
position, the learned Single Judge has not committed any error
apparent on face of the record so as to cause any interference
of this Court at this stage and, accordingly, the writ appeal
filed by the State may be dismissed.
5. The Respondent has relied upon the judgment of this
Court in case of Abhaya Charan Mohanty v. State of Odisha
passed in WPC(OAC) No.3494 of 2013, disposed of on
14.07.2021 and has stated that 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 dismissed the State Government's appeal and
confirmed the order dated 19.12.2011 of this Court passed in
W.P.(C) No.5377 of 2010 in the case of pensionary benefits as
prayed for in that case. Further reliance has also been placed
on the order of a Division Bench of this Court in Chandra
Nandi v. State of Odisha and others; 2014(I) OLR 734, where
this Court had given a direction to notionally regularize the
service of the Petitioner prior to his superannuation from the
service and, accordingly, calculated the Petitioner's entitlement
including the pensionary benefits.
6. On the basis of the factual matrix available on record, it
appears that on 01.08.1983, the Respondent had initially joined
on NMR basis, who continued in the said post and thereafter
brought over to work charged establishment as Watchman on
02.09.1993. Thereafter, he retired from service in 2019. The
continuance of the Respondent in work charged establishment
was considered for all purposes including the gratuity. The
Tribunal, vide order dated 03.05.1999 passed in O.A. No.70(B)
of 1997, analyzing various points of law, directed the State
Government to regularize in an 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. Challenging the order of the Tribunal, the State
filed the writ application being O.J.C. No.13552 of 1999 and
this Court, vide order dated 01.05.2001, referring to the
judgments rendered in O.J.C. No.1162 of 1999 (State of
Orissa v. Jhuma Parida and others) and O.J.C. No.11028 of
1999 (State of Orissa v. Sudarsan Sahoo and others),
confirmed the order passed by the Tribunal and dismissed the
writ application. After dismissal of such writ application, the
Government brought the employee into regular establishment
for the purpose of granting pensionary benefit. But the
Government has not extended the benefits as has been
extended to the similarly situated persons. Hence, relying upon
the judgment of this Court in Narusu Pradhan (supra), which
had been confirmed by the apex Court, the benefit should be
extended to the Respondent.
7. In view of such position, if the similarly situated persons
have already received the benefits, then the present
Respondent cannot be deprived of the same, more particularly,
when the decision in Narusu Pradhan (supra) has been
confirmed by the apex Court.
8. Consequentially, the learned Single Judge has not
committed any error apparent on the face of record, so as to
interfere with the same and deny the benefits to the
Respondent.
9. Accordingly, the writ appeal filed by the State merits no
consideration and the same is hereby dismissed.
(DR. B.R. SARANGI)
ACTING CHIEF JUSTICE
(M.S. RAMAN)
JUDGE
MRS
Signature Not Verified
Digitally Signed
Signed by: MANORANJAN SAMAL
Designation: PERSONAL ASSISTANT
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 14-Nov-2023 15:49:24
