Banabihari Patanaik vs State Of Odisha And Others ..... ...
2025 Latest Caselaw 6754 Ori

Orissa High Court

Banabihari Patanaik vs State Of Odisha And Others ..... ... on 7 April, 2025

Author: Aditya Kumar Mohapatra

Bench: Aditya Kumar Mohapatra

                    IN THE HIGH COURT OF ORISSA AT CUTTACK

                                    WP(C) No.8092 of 2025

            Banabihari Patanaik                          .....                 Petitioner
                                                                 Represented By Adv. -
                                                                 Mr. Amiya Kumar
                                                                 Moanty

                                            -versus-
            State Of Odisha and others                 .....           Opposite Parties
                                                                 Represented By Adv. -

                                                                 Mr. M.R. Mohanty, AGA

                                 CORAM:
            THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA

                                            ORDER

07.04.2025 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-Opposite Parties. Perused the writ petition as well as the documents annexed to the writ petition.

3. The present writ petition has been filed by the Petitioner with the following prayers:-

"It is prayed therefore that this Hon'ble Court may be graciously pleased to:

i) Admit this writ application;

ii) Call for the records;

iii) Issue Rule NISI calling upon the Opposite Parties to show cause as to why the service of petitioner shall not be regularized w.e.f.

15.05.1997 when the State Govt. through Finance Department issued resolution to

regularize the employees who have been appointed prior to 12.04.1993 and the pension shall not be released in his favour as per OCS (Pension) Rules, 1992 and the gratuity as deem fit shall not be released. If the Opposite Parties do not show cause or show insufficient case and the Opposite Parties may be directed to regularize the service to get the pension and to release the pension and gratuity in his favour within a stipulated time and the writ petition shall not be allowed;

And further be pleased to pass any other writ/writs, order/orders, direction/directions as this Hon'ble Court deem fit and proper for the interest of justice and in favour of the petitioner."

4. The factual matrix, in brief, is that the Petitioner had initially joined on 01.12.1982 on NMR basis under the Opposite Parties as Work Sarkar. He was brought over to the work charged establishment w.e.f. 01.03.2009 as per Office Order No.6455 dated 11th November, 2009 passed by the Superintending Engineer, Central Irrigation Circle, Bhubaneswar, and continued in the work charged establishment as Khalasi till his retirement.

5. Learned counsel for the Petitioner submits that the Opposite Parties 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 should have also taken into consideration the length of service rendered by the Petitioner in the establishment being a work charged employee rendering continuous service.

6. It is also submitted by the learned counsel for the Petitioner that 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 the applicant in the establishment 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 while calculating the pension and a direction be 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 by 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 vs. Jhuma Parida and others) and OJC No.11028 of 1999 (Stateof Orissa vs. 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 pensoinary benefit.

7. Learned counsel for the Petitioner relies upon the judgment of this Court in the case of Abhaya Charan Mohanty vs. 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 vs. 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 vs. 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 the service of the Petitioner prior to his superannuation from service and accordingly, calculated the Petitioner's entitlement including the pensionary benefits.

9. Lastly, it is submitted by the learned counsel for the Petitioner that the Opposite Parties ought to have considered the ratio decided in the judgments (supra) while rejecting the representation of the Petitioner and should have granted pensionary benefit in favour of the Petitioner.

10. Learned counsel for the State-Opposite Parties submitted that the cases cited by the Petitioner are different from the grievance of the Petitioner and the principles decided in the said case are not at all applicable to the case of the present Petitioner. It is submitted by the learned counsel appearing for the State that the Opposite Parties have 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.

11. Having heard the learned counsels appearing for the respective parties and on a careful examination of the materials on record, this Court is of the observation that so far the case of Narsu Pradhan (supra) 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 the 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 a stand contrary to the principle finally approved by the Hon'ble Supreme Court of India.

12. The only benefit the petitioner is entitled to get is his pensionary benefits payable to the Petitioner and the same is 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 Govt. and such benefits are provided under the Rules

on humanitarian considerations.

13. In the aforesaid facts and circumstances, further keeping in view the factual background of the present case as well as legal provisions, the present writ application is being disposed of at the stage of admission by granting liberty to the petitioner to file a fresh representation taking therein all the grounds along with all supporting documents as well the judgment relied upon including the case of Narusu Pradhan vs. State of Odisha (O.A. No.1189(C) of 2006 decided on 11.06.2009, within three weeks from today. In such eventuality, the Opposite Party No.1 shall do well to consider the same keeping in view the aforesaid judgment as well as the order passed by this Court in Mukunda Behera vs. State of Odisha and others in W.P.(C) No.24742 of 2022 disposed of 28.09.2022. The representation shall be disposed of by passing a speaking and reasoned order. In the event it is found that the petitioner is entitled to stand in a similar footing with the petitioners in the aforesaid writ applications and is entitled to the benefits as claimed in the present writ application and in absence of legal impediment, the Opposite Party shall do well to calculate, sanction and disburse the pensionary benefits in favour of the Petitioner within a period of three months from the date of communication of a certified copy of this order.

14. With the aforesaid observation and direction, the writ petition stands disposed of.

( A.K. Mohapatra ) Judge