Orissa High Court
Sarojini Marthi @ Martha vs State Of Odisha & Others .... Opposite ... on 8 January, 2024
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.41618 of 2023
Sarojini Marthi @ Martha .... Petitioner
Mr. P.K. Mohapatra, Advocate
-versus-
State of Odisha & others .... Opposite Parties
Mr.Saswat Das, A.G.A.
Mr. S.K. Patra, Standing Counsel
for AG, Odisha
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
Order No. 08.01.2024
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 and Mr. S.K. Patra, learned Standing Counsel for
AG, Odisha.
3. The Petitioner has filed the above noted writ application with a
prayer to direct the Opposite Parties to treat her husband as regular
employee for a day prior to his death notionally and grant family
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
// 2 //
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, WP (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 vide Annexure-6.
4. The factual matrix, in brief, is that the Petitioner's husband had
initially joined as NMR basis on 01.02.1992. He continued in the said
post continuously and thereafter, he was brought over to work charged
establishment as Khalasi on 01.01.2010. While continuing in service, he
died on 202.10.2019. It is pertinent to mention here that other similar
persons viz-Sri Pitambar Sahoo, Mate retired from service on
31.01.2012, Narusu Pradhan, Electrician, retired from service during
1998, retired from service on 30.09.2008 Pitambar Mohapatra,
Chowkidar retired have been sanctioned pension on the basis of the
service rendered as NMR under work charge establishment. Therefore,
it is construed clear that the continuance of the Petitioner's husband in
NMR and work charge establishment have been considered from
01.02.1992 for all purposes including gratuity.
5. Learned counsel for the Petitioner submits that the Opposite
Party No.2 should have kept in mind the Finance Department
Resolution and the order of the Hon'ble Apex Court while rejecting the
representation of the Petitioner and also taken into consideration the
length of service rendered by the Petitioner in the establishment being a
work charged employee and continuous service.
6. 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
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completed five years of continuous service in work charged
establishment and the period of service rendered by him 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 pensionary benefit. It is stated by learned
counsel for the petitioner that similarly situated employees have been
extended such benefits by virtue of the order passed by this Court and
such order passed by this Court has been ultimately upheld by the
Hon'ble Apex Court.
7. Lastly, it is submitted by the learned counsel for the Petitioner
that the Opposite Party No.2 ought to have considered the ratio decided
in the judgment (supra) while rejecting the representation of the
Petitioner and should have granted pensionary benefit in favour of the
Petitioner.
8. The Opposite Party No.2 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 Government Advocate in
the counter that the claim of the Petitioner is a stale claim. Further it is
stated in the counter affidavit that the cases cited by the Petitioner are
different from the grievance of the Petitioner and the principle decided
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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 Party No.2 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.
9. 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 vis. State of Odisha allowed
the writ petition and granted pensionary benefits as prayed for in that
case. Jyostnarani Patnaik and Sarbeswar Bhujabal have been granted
pension as per the order of the State Government in Water Resources
Department.
10. 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.
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11. 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 ultimately
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.
12. The only benefit the petitioner is directs 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
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benefits have been given to them, the same benefit needs to be extended
to the Petitioner for services rendered by her husband 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/ death which
are in recognition of his relentless service to the Govt. and such benefits
are provided under the Rules on humanitarian considerations.
13. In view of the aforesaid facts and circumstances, the present writ
petition is allowed and the Opposite Party No.4 are directed to consider
the case of the Petitioner and in the event it is found that the Petitioner
stands in a similar footing with the persons as has been referred to
hereinabove, in such eventuality, the benefits which have been extended
in favor of the Petitioners in the above noted cases, be also extended in
favour of the petitioner within a period of two months from the date of
communication of certified copy of this order. The Opposite Party No.4
shall do well to keep the Petitioner informed of such development and
the order passed by the Opposite Parties be communicated to the
petitioner within two weeks from the date of passing such order.
14. With the aforesaid observation, the writ petition is disposed of.
( A.K. Mohapatra )
Judge
RKS
Location: High Court of Orissa
