Narusu Pradhan v. State of Odisha
Case Details
Order No. 02. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 6701 of 2023 Durga Charan Nayak …. Petitioner Mr. Chittaranjan Pattnaik, Advocate -versus- State of Odisha and others …. Opposite Parties Mr. Saswat Das, A.G.A. CORAM: JUSTICE A.K.MOHAPATRA ORDER 08.05.2023 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode). 2.
Legal Reasoning
Heard the learned counsel appearing for the Petitioner as well as learned Additional Government Advocate. Perused the writ petition as well as the documents annexed thereto. 3. This writ petition has been filed by the Petitioner with the following prayer:- “Under such circumstances it is therefore prays that your Lordships would be graciously pleased to admit this writ application, call for records and after hearing the parties may be pleased to issue a writ/s/order/s direction/s in the nature of certiorari quashing the impugned order dt. 24.06.2022 passed by the Addl. Chief Secretary to Govt. Department of Water Resources, Odisha, // 2 // Bhubaneswar, Annexure-2. opposite party No.2, under the the order of And further may issue a writ of mandamus directing the authority to sanction regular pension and other retirement dues in his favour treating him as a regular employee under the Govt. in terms of finance department dt. 22.01.1965 and common order dt. 16.11.1999 of the OAT Cuttack and Govt. of Odisha finance department office memorandum dt. 6.3.1990, which laid down that the employees under the work charged establishment are entitled to get pension from the date of his retirement dt. 31.03.2013, preferably within a stipulated period as this Hon’ble court deems just and proper. And further may other order/s/direction/s as this Hon’ble court deems just and proper to give relief to the petitioner.” Learned counsel for the Petitioner submitted that the pass any 3. Petitioner was initially engaged as Helper on 05.121981 and continued in the said post till his superannuation on 31.03.2013. It is further submitted by the learned counsel for the Petitioner that the Petitioner after working so many years has not been given minimum pensionary benefit. He further submitted that in view of Rule-18(6) of the O.C.S. Pension Rules, 1992, the minimum qualifying period for extending pensionary benefits are to be taken from the period for which the Petitioner worked in the work charged establishment. In the aforesaid context, learned counsel for the Petitioner also referred to decision of Page 2 of 7 // 3 // Narusu Pradhan v. State of Odisha (O.A. No.1189(C) of 2006, decided on 11th June, 2009). The order dated 11th 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 was 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 the cases of similar nature. Therefore, it is no more Page 3 of 7 // 4 // open to the State Government to take a stand contrary to the principle finally approved by the Hon’ble Supreme Court of Inda. 4. Learned Additional Government Advocate appearing for the State-Opposite Parties, on the other hand, submitted that the Petitioner was working in the work charged establishment since his initial date of appointment and has retired in the meantime in the year 2013. He further submitted that the Petitioner is a regular subscriber to the E.P.F. Scheme and he is eligible to get E.P.F. pension from the E.P.F. Authority and further the Petitioner has been receiving E.P.F. Pension from the E.P.F. Authority after his retirement. Therefore, there is no justification in granting pension to the Petitioner from two different sources. Accordingly, learned Additional Government Advocate supported the decision of the Government vide letter
Decision
dated 24.06.2022 under Annexure-2 to the writ petition. 5. Having heard the learned counsels for the respective parties and upon a careful consideration of the materials placed before this Court, this Court is of the considered view that the undisputed fact is the Petitioner was initially appointed in the Page 4 of 7 // 5 // work charged establishment on 05.12.1981. Thereafter, he continued in the work charged establishment till his retirement, on 31.03.2013. Therefore, his services were not regularized. However, the Petitioner was contributing to the EPF as per the scheme under the Employees’ Provident Funds Scheme, 1952. Accordingly, after his retirement, he has getting pension from the EPF Authority, as it appears from the impugned rejection order. 6. On a plain reading of Rule-18(2) of the OCS (Pension) Rules, 1992, there is a bar to consider the period of service in the work charged establishment towards the qualifying period for calculation of pension. However, on exception which grant under Rule-18(6) of the aforesaid rules, which describes non notwithstanding anything contained in sub-rule (2) of the aforesaid rules. So far applicability of the sub-rule(6) is concerned, the same is applicable to the employees, who were initially appointed in the job contract establishment and subsequently brought over to the regular pensionable establishment and, accordingly, so much job contract period Page 5 of 7 // 6 // shall be added to the period of qualifying service in the regular establishment as rendered him eligible for pension. 7. In the present case, the service of the Petitioner has not been regularized and he has not been brought over to the regular pensionable establishment. Therefore, the Petitioner shall not be covered under Rule-18(6) of the OCS (Pension) Rules, 1992. However, by applying the principle of law laid down by the Hon’ble Supreme Court in the case of Narusu Pradhan (supra), the services of the Petitioner can be regularized for a day and, accordingly, the Petitioner be permitted as regular employee and so much service of work charged establishment shall be taken into consideration to make him eligible to get the minimum pension towards qualifying period for getting minimum pension. 8. Accordingly, this Court is of the view that the authority has not been taken consideration the ratio laid down in Narusu Pradhan (supra) while disposing the representation of the Petitioner vide order dated 24.06.2022 under Annexure-2. Accordingly, the same is set aside. Further, the matter is remanded back to the Opposite Party No.1 to consider the case Page 6 of 7 // 7 // of the Petitioner afresh in the light of the law laid down by the Hon’ble Supreme Court in Narusu Pradhan’s case (supra). Further, in the event the authorities are of the view that the ratio laid in Narusu Pradhan’s case (supra) is applicable to the fact of the present case, then similar benefits be extended to the Petitioner. However, it is made clear that in such event the Petitioner is not eligible to get EPF pension and such amount shall go back to the State. Accordingly, the authorities are directed to take a decision in the light of the aforesaid analysis within with two months from the date of production of certified copy of this order. The decision so taken be communicated to the Petitioner within two weeks thereafter. 9. With the aforesaid observation and direction, this writ petition stands disposed of. (A.K. Mohapatra) Judge Debasis DEBASIS AECH Digitally signed by DEBASIS AECH Date: 2023.05.12 19:44:38 +05'30' Page 7 of 7