Orissa High Court
Addl. Chief Secretary To Govt. Of vs Adikanda Mishra on 20 November, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No. 1681 of 2022
Addl. Chief Secretary to Govt. of .... Appellants
Odisha, Water Resources Department
and others
Mr. R.N. Mishra, Additional Government Advocate
-versus-
Adikanda Mishra .... Respondent
Mr. P.K. Mohapatra, Advocate for Respondent
CORAM:
ACTING CHIEF JUSTICE DR. B.R. SARANGI
MR. JUSTICE MURAHARI SRI RAMAN
ORDER
Order No. 20.11.2023
I.A. No.3932 of 2022
02. 1. This matter is taken up through Hybrid mode.
2. Heard Mr. R.N. Mishra, learned Additional Government
Advocate (AGA) for the Applicant/Appellant and Mr. P.K.
Mohapatra, learned counsel appearing for the Respondent.
3. For the reasons stated therein, the delay of 181 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
W.A. No.1681 of 2022
1. Heard Mr. R.N. Mishra, learned AGA for the Appellant and Mr.
P.K. Mohapatra, learned counsel for Respondent.
2. The Appellants, being the State functionaries, has filed this writ
appeal challenging the order dated 12th May, 2022 passed in
W.P.(C) No.11318 of 2022, 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. R.N. Mishra, 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 v. 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. P.K. Mohapatra, learned counsel appearing for the
Respondent has vehemently contended that the Respondent stands
on the similar footing with that of the Appellant 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 the Respondent had initially joined as NMR, subsequently, was
brought over to work charged establishment. Thereafter, he retired
from service. 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
S. Behera
Digitally Signed
Signed by: SUMANTA BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 21-Nov-2023 11:52:03
