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2017 DIGILAW 755 (ORI)

Kailash Prasad Srivastav v. State of Odisha

2017-07-19

D.P.CHOUDHURY

body2017
JUDGMENT : D.P. CHOUDHURY, J. Challenge has been made to the inaction of the opp. parties for not releasing the arrear salary of the petitioner for the period of duty he rendered after 58 years of age till his superannuation. 2. The unshorn detail of the case leading to the writ application is that the petitioner was appointed as a driver by opp. Party no.6 under the Regulated Market Committee, Bargarh (hereinafter called “the R.M.C.”) on 15.5.1986, but he joined in his service on 12.6.1987. Under Section 18-C of the Orissa Agricultural Produce Markets Act, 1956 (hereinafter called “the Act”) Regulation has been made, wherein it has been mentioned that the age of superannuation of driver is 60 years, but the opp. Parties made the petitioner to retire at the age of 58 years on oral information. So, being aggrieved with such retirement the petitioner filed representation before opp. Party no.6, but opp. party no.6 turned deaf ear to the request of the petitioner. So, the petitioner was compelled to file W.P.(C) No. 20082 of 2014, wherein this Court passed order directing opp. party no.6 to consider the representation filed by the petitioner within a period of two months. Pursuant to the order of this Court the opp. Party no.6 passed order on 7.2.2015 by allowing the petitioner to retire at the age of 60 years without any arrear financial benefit. 3. Be it stated that the petitioner was continuing in his job till the age of 60 years. There is no provision under the Act about award of the financial benefit although the Regulation allows retirement for driver at the age of 60 years. So, the petitioner challenges the Annexure-3 under which opp. Party no.6 made the petitioner to retire at the age of 60 years without awarding the financial benefit. SUBMISSIONS: 4. Learned counsel for the petitioner submitted that when the petitioner was allowed to continue till the age of 60 years at the intervention of this Court, the petitioner continued in service vide order passed in Annexure-3 but without awarding any financial benefit for two years i.e. from 58 years age to 60 years of age which is wholly illegal, untenable and improper. 5. 5. Learned counsel for the petitioner further submitted that when the petitioner entered into service, there was no Regulation like the present one but the petitioner retired after commencement of the Regulation in 1991 under which there is clause-(F) of Rule-7 of The Orissa Agricultural Produce Markets Rules, 1958 (hereafter called “the Rules”). Such sub-rule is quoted hereunder for reference :- “Age of Superannuation: The age of superannuation of an employee of the Board shall be last date of the month in which he attains the age of 58 years except for the employees of 4th grade and driver in whose case the same shall be 60 years.” 6. The opp. Parties should have honoured such provision which is in favour of the petitioner. According to him, there is no provision in law to allow the petitioner-driver to retire on attaining the age of 60 years without payment of salary for two years from attaining the age of 58 years. Hence, he submitted to quash Annexure-3 and direct for payment of arrear salary for the period commencing after the age 58 years till attaining the age of 60 years. 7. Learned Additional Government Advocate submitted that the petitioner was a driver being appointed prior to the Regulation came into force in 1991 and as such, the petitioner is to be controlled by the old law. Regulation of 1991 only allows the petitioner to retire at the age of 60 years, but the financial benefit cannot be given, he being a prior 1991 recruitee. He further submitted that only by virtue of the order of this Court opp. Party no.6 passed the order vide Annexure-3 allowing the petitioner to retire at the age of 60 years, but he is not entitled to the financial benefit in as much as there is no order of this Court to extend such benefit. 8. Learned Additional Government further submitted that the petitioner retired on 31.8.2014 as per the provision of the Rules, 1958 and his post-retirement period was with effect from 1.9.2014 pursuant to the order of this Court, but he will not get any financial benefit in absence of any provision in the Regulation passed under the Rules, 1958. So, he submitted to dismiss the writ application. POINT FOR CONSIDERATION: 9. So, he submitted to dismiss the writ application. POINT FOR CONSIDERATION: 9. The main point for consideration is whether the petitioner is entitled to arrear salary for two years i.e. from the age of 58 to 60 years? DISCUSSION : 10. No doubt the petitioner was a driver under Annexure6 and has discharged his duties under the provision of the Act. It is not in dispute that the petitioner was orally informed that he retires on 31.8.2014 on completion of 58 years and pay of the petitioner was stopped from 1st September, 2014. It is admitted fact that he has filed a writ application before this Court vide W.P.(C) No. 20082 of 2014 and that was disposed of on 10.11.2014 directing opp. party no.6 to consider the representation within two months and that representation was disposed of vide Annexure-3. 11. The order passed in the earlier writ application was not on merit, but to consider the representation of the petitioner on merit. Annexure-1 shows that under section 18-C of the Act, the Regulation was framed and it became enforceable from the date of approval by the State Government. Since the opp. Parties have issued the Annexure-3 by allowing the petitioner to retire at the age of 60 years, it must be observed that the opp. parties have accepted the Annexure-1 to have been implemented. Clause (F) of Regiulation-7 clearly states that the driver and Class-IV employees are to retire at the age of 60 years. 12. The contention of the petitioner that he was continuing in service up to 60 years as there is no order of superannuation at the age of 58 years passed by the opp. Parties except verbally informing the petitioner when the petitioner is going to retire on 31.8.2014 on completion of 58 years. Of course, the opp. Parties have not filed any document to show that the petitioner was retired on 31.8.2014 after completion of 58 years. The petitioner has filed Annexure-6 series to show that he has also issued the Check Gate money receipt from Ruchida Check Gate on 1.9.2014 under the said R.M.C. 13. Annexure-5 shows that on 7.2.2015 opp. Party no.5 issued letter to the petitioner asking him to join on duty and Annexure-6 shows that the petitioner joined in his duties on 20.2.2015 on protest on the ground that he is continuing in the job without any interruption. Annexure-5 shows that on 7.2.2015 opp. Party no.5 issued letter to the petitioner asking him to join on duty and Annexure-6 shows that the petitioner joined in his duties on 20.2.2015 on protest on the ground that he is continuing in the job without any interruption. When the petitioner denied to have discontinued of his duties and there is no order showing the notice for superannuation even after 31.8.2014 till the date of his retirement, it must be observed that he is continuing the duty for the disputed period. 14. In view of the order of this Court the opp. Party, the Collector-cum-Chairman, R.M.C., Bargarh passed the Annexure-3 in the following manner:- “REGULATED MARKET COMMITTEE, BARGARH Order No. 234/Dated: 7.02.2015 Pursuant to direction of Hon’ble High Court, Orissa, vide order dated 10.11.2014 in W.P.(C) No. 20082/2014 ---- Kailash Prasad Srivastav Vrs. State and others, and disposal order dated 14.01.2015 of the undersigned on the representation filed by the petitioner pursuant to the aforesaid order of Hon’ble High Court, letter No. 2520 dated 30.10.2014 of OSAM Board, Odisha, Resolution of the Committee Meeting of RMC, Bargarh dated 07.02.2015, Sri Kailash Prasad Srivastav, Driver, RMC, Bargarh is allowed to retire on superannuation at the age of 60 (sixty) years subject to the following conditions. He retired on superannuation at the age of 58 years w.e.f. 31.08.2014 (AN) vide RMC order No.524 dated 31.08.2014 as per provision of the Orissa Agricultural Produce Market Rules, 1958 then in vogue. His post-retirement period of w.e.f. 01.09.2014 till the date prior to the date of his resuming office pursuant to this order shall be counted towards service continuity but without any arrear financial benefit. Sd/- Collector, Bargarh Cum-Chairman, RMC, Bargarh” 15. From the aforesaid order, it appears that the petitioner was asked to retire at the age of 60 years subject to certain conditions. The conditions show that the petitioner was retired on superannuation at the age of 58 years on 31.8.2014 under the Rules, 1958 and the petitioner was allowed to resume duty from 1.9.2014 without any arrear financial benefit. When Regulation was framed in 1991 under section 18-C of the Act, the statute permits the driver of R.M.C. to work up to 60 years and there is no proof by the opp. When Regulation was framed in 1991 under section 18-C of the Act, the statute permits the driver of R.M.C. to work up to 60 years and there is no proof by the opp. Parties to show that the petitioner was worked till the date of his so called superannuation at the age of 58 years, question of the words “post-retirement period” used in Annexure-3 is not legally correct. When the petitioner has been allowed to work up to age of 60 years and no Regulation is produced by the opp. Parties to show that the employee even if retires at the age of 60 years is to be only awarded financial benefit till the age of 58 years of age, the order for extending service without any arrear financial benefit is illegal and improper. It must be observed that when a person worked continuously up to 60 years, he is entitled to the salary of those two years and his retiral benefit is to be fixed only after fixation of pay on the date of superannuation at the age of 60 years. Thus, the question is answered accordingly. CONCLUSION : 16. The petitioner has prayed to direct the opp. Parties 5 and 6 to release the financial benefit to the petitioner for the alleged period i.e. 1.9.2014 till the date of filing of the writ application, but in the meantime his normal date of superannuation at the age of 60 years has expired on 31.8.2016. 17. In the aforesaid paragraph it has been observed that the petitioner since has worked till the date of superannuation, he is entitled to the salary for those periods till the age of 60 years. So, the petitioner is entitled to the arrear salary from 1.9.2014 to 31.8.2016 on attaining the age of superannuation. The opp. Parties are directed to modify the order dated 07.02.2015 vide Annexure-3 accordingly within a period of eight weeks from the date of this order. It is further directed that the opp. Parties would pay the arrear salary for those two years within a period of four weeks to the petitioner from the date of modification of the order vide Annexure-3. With the aforesaid direction, the writ application is disposed of.