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2013 DIGILAW 756 (GAU)

Thagiram Das v. State of Assam

2013-10-31

HRISHIKESH ROY

body2013
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. D. Saikia, learned counsel appearing for the petitioner. The respondent Nos. 1 & 2 are represented by Ms. K. Devi, learned Govt. Advocate. The Advocates representing the Welfare Commissioner, Assam Tea Employees Welfare Board (respondent No. 3) are not present, although their names are reflected in the cause list. The petitioner was a Carpentry Instructor in the Panbari Community Centre under the establishment of the Labour Commissioner, Assam. The Govt. of Assam through the notification dated 13.11.1981 (Annexure-A) decided to transfer the administrative control w.e.f. 14.11.1981 of the 15 community centers from the Labour Commissioner, Assam to the Assam Tea Employees Welfare Board (hereinafter referred to as the 'Welfare Board') which was constituted under Section 4 of the Welfare Fund Act. This notification was issued by exercise of powers under Section 9 of the Assam Tea Plantations Employees Welfare Fund Act, 1959. 2. The Government notification envisages deputation of the serving employees of the community centers under the Directorate of Labour Commissioner to the Welfare Board and option was required to be exercised by the deputed employees for their absorption under the Welfare Board or to continue under the Labour Commissioner. The posts of those who are unwilling to be absorbed were ordered to be kept vacant temporarily, during the period of deputation to the Welfare Board. 3. As a serving employee of the Panbari Community Centre, the petitioner was deputed to serve under the Welfare Board on the strength of the notification dated 13.11.1981 (Annexure-A). But nevertheless his service in the post of Carpentry Instructor was confirmed in the cadre of Grade-III employee under the Labour Commissioner, Assam, through the confirmation order dated 20.5.2002 (Annexure-G). This confirmation order indicates that the petitioner retained his lien in the parent department i.e. Labour Commissioner, Assam and was not permanently absorbed under the Welfare Board. 4. Following the order dated 15.7.2000 (Annexure-B) of the Commissioner of the Welfare Board, the petitioner superannuated from service on 31.12.2000 from the post of Carpentry Instructor of the Panbari Community Centre. Thereafter through the notification dated 6.10.2005 (Annexure-I), issued by the office of the Accountant General (A&E), Assam, pension was granted to the petitioner under the PPO No. BIS/83093 by considering him to have retired on 13.11.1982 and on this basis, pensionary benefits was granted to the petitioner. Thereafter through the notification dated 6.10.2005 (Annexure-I), issued by the office of the Accountant General (A&E), Assam, pension was granted to the petitioner under the PPO No. BIS/83093 by considering him to have retired on 13.11.1982 and on this basis, pensionary benefits was granted to the petitioner. However since the petitioner retired 19 years later on 31.12.2000, he claims higher pensionary benefits for the service rendered by him w.e.f. 13.11.1982, till he actually retired on 31.12.2000. 5. The petitioner contends that although his service was placed under the administrative control of the Welfare Board through the notification dated 13.11.1981 (Annexure-A), he was never absorbed as an employee of the Welfare Board. In fact his service was confirmed on 20.5.2002 (Annexure-G), in the Grade-III cadre under the Labour Commissioner, Assam. On this basis, claim for higher pensionary benefit is made by the retired employee, by considering his 19 years service since 13.11.1982 till he retired on 31.12.2000. 6. Representing the State Authorities, Ms. K. Devi, learned Govt. Advocate has no instruction available in the matter. But she submits that since the petitioner's service was confirmed by the Labour Commissioner, Assam, despite his deputation with the Welfare Board, the grievances of the retired Carpentry Instructor can be considered by the Labour Commissioner. 7. As the lawyers for the Welfare Commissioner of the Assam Tea Employees Welfare Board are absent, the Court is unable to obtain any information on whether the petitioner was formally absorbed as an employee under the Welfare Board. However the confirmation of the petitioner's service by the Labour Commissioner, Assam is perhaps a pointer to the fact that the deputed employee retained under the establishment of the Labour Commissioner, Assam. 8. If that was the position, when the petitioner superannuated on 31.12.2000, he ought to have been granted due pension by considering him to have retired on 31.12.2000. But surprisingly through the order dated 6.10.2005 (Annexure-I), the retired Carpentry Instructor was granted lesser pension by considering him to have retired much earlier on 13.11.1982. But because of scanty materials produced by the petitioner and in the absence of any counter affidavit by any of the respondents, this Court is unable to take a conclusive view on whether the petitioner was ever absorbed under the Welfare Board or whether, he retired as an employee, under the establishment of the Labour Commissioner, Assam. 9. But because of scanty materials produced by the petitioner and in the absence of any counter affidavit by any of the respondents, this Court is unable to take a conclusive view on whether the petitioner was ever absorbed under the Welfare Board or whether, he retired as an employee, under the establishment of the Labour Commissioner, Assam. 9. Undoubtedly even while on deputation, the petitioner's service was confirmed on 26.8.2002 (Annexure-H) by the Labour Commissioner, Assam and not by the Welfare Commissioner of the Welfare Board (respondent No. 3) and this prompts this Court to pass the following order in the case. 10. The retired Carpentry Instructor will give a representation for granting him due pensionary benefits by considering him to have retired as a confirmed staff under the establishment of the Labour Commissioner, Assam on 31.12.2000. The representation may either be considered by the Labour Commissioner himself or he may endorse it for an appropriate decision by the competent authority, who exercised administrative control over the petitioner, at the stage of his retirement. As the employee is denied of retirement benefits of about 19 years service, his representation should be decided expeditiously by the competent authority, within 4 months of receipt of intimation. The petitioner and the Govt. Advocate will apprise the concerned authorities for taking necessary steps, in pursuant to this direction. 11. With the aforesaid direction, the case is disposed of without any order of cost. A copy of this order be furnished to Ms. K. Devi, learned Govt. Advocate, for communication to all the five respondents. Disposed off