STATE OF ORISSA AND ORS. v. ADWAIT CHARAN MOHANTY ETC. ETC.

A

JANUARY 27, 1995 ·

B [K. RAMASWAMY AND N. VENKATAC

Ser:vice--Law-Orissa Setvice Cod~ule 71(a), second proviso-Age .... of superannuation-Government employee~Retirement on completion of 58 years. of age-An artisan workman working in an industrial or workcharged C establishment but at par with Class IV employee-He is to retire on attaining age of 60 year~Such an mtisan workman must be on monthly pay of govern- ment-Word 'attisan '-Meaning.

All the respondents were working in various departments of the appellant State as Class Ill employees. On attaining the age of superan· D nuation of 58 years, when they were sought to be retired, they·approached. the Administrative Tribunal, claiming the benefit of extented age of super· ·. annuation under second proviso to Rule 71(a) of the Orissa Service <;:ode, contending that they were workmen within the meaning of the Code. The . Tribunal held that they were workmen a~d entitled to continue in service until they attained the age of 60 years. Hence these appeals.

On behalf of ihe State it was ·contended that all the· respondents belong to respective subordinate services of the State governed by the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962, framed under Articl~ 309 of the Constitution. According to the appellant an artis.an essentially was one who was :J>roducing an article of some kind with the help of tools. It was alleged that none Of.the respondents could be treated to be an artisan, therefore, they were riot entitled to continue in service up~p the age of 60 years. It was contended that the workman, must, of necessity, by reason of 9efinition, meant one working in an industrial or workcharged establishment of the Government. None of the respon- dents was continuing either in an .industrial establishment or a workcharged establishment, and the Tribunal committed·grietous error of law in directing that the respondents shall be retained in service tilll they attained th.e a1;1e of 60 years. .

H The respondents submitted t~~t any government employee, be he 614

STATE OF ORISSA v. AC. MOHANTY 615

highly skilled, skilled, semi-skilled or unskilled, sho~ld be given the benefit of the superannuation of 60 years envisaged by the exception to the general rule in the second proviso to Rule 71(a) of the Orissa Service Code. It was argued that the industrial establishment must be understood broadly and not in a technical sense. It was prayed that exercising the power under Article _136, the Supreme Court must decline to interfere with the benefit given· by the Tribunal.

The question raised for determination was whether the respondents were entitled to the benefit of superannuation age of 60 years under the second proviso to Rule 71(a) of the Code. ·

p. 616

A ment serva~t, he too is entitled to superannuation on attaining 60 years of age.' [622·G·H, 623-A]

P1ithpal Singh v. Union of India, (1991] Supp. 1 SCC 32 and Chan- digarh Administration through the Chief Engineer v. Mehar Singh, [1992) Supp. 3 SCC 43, relied on. B Bangalore Water Supply and Sewerage Board v.Rajappa, [1978] 2 SCC 213 and Des Raj v. State of Punjab,. (1988) 2 SCC 537, distinguished.

1.3. The object of the Rules· appears to be to bring artisan-workman governed by the statutory rules but at par with Class IV employee and he alone is required to retire on completion of 60 years of age but not the gazetted or non· gazeetted class UI government servants or even in Class II or I. Therefore, the government employee in Class III service shall retire on completion of 58 years of age. Even an artisan-worman who was promoted or appointed to Class III service be it gazetted or non-gazetted shall retire on completion of 58 years of age. An artisan-workman who is working in an industrial or workcharged establishment but is at par with Class IV employee is to retire on attaining the age of 60 years under the second proviso to Rule 71(a) of the Code. In this view, it is not necessary to decide whether any industrial establishment in a government depart- E ment, not specified, expressly, is an industry or a factory as contended by the respondents. The Code clearly gives benefit to them. One essential condition to be satisfied is that such an artisan-workman, be it highly skilled, skilled, semi-skilled or unskilled, must, of necessity, be on monthly pay of the government. [624·C·F] ,

F CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1497 of 1993 etc. etc.

From the Judgmennt and Order dated 6.5.92 of the Orissa Ad- ministrative Tribunal, Bhubaneswar in O.A. ~o. 998 of 1990 .. G D.P. Gupta, Solicitor .General and A.K. Panda for the Appellants.

Vineet Maheshwari, R.K. Maheshwari, Vik.as Singh, Yunus Malik, L.R. Singh, Janaranjan Das, B. Parthasarathy, D.P. Mohanty, S.K. Patri, Krishan Pal Singh, B.B. Sahoo, N.S. Bisht, Mrs. Kirti Mishra, K.K. Gupta H and Sushil Kumar.Jain for the Respondents.

STATE OF ORISSA v. AC. MOHANTY [K. RAMASWAMY, J.] 617

The Ju~gment of the Court was delivered by A K. RAMASWAMY, ·J. Leave granted in S.L.P. Nos. 4424, 13245-47, 18110-18113/93, 4064/94, 2363/94, SLP 3172/94 (OCC 24681), 2260, 4223, 2588/94, 20136/93, 4882/94, SLP 3173/94 (CC 25141), 9901, 2428, 11084- 11095/94, SLP 3175/94 (OCC 26551), 18784, 19083/94. B These appeals rai~e a common question of law whether each of the respondents was liable to be superannuated only on attaining the age of 60 years. All the respondents have been working iri various departments of the appellant-State as Draftsman, Senior Draftsman, Architectural Asst. Draftsman, Architectural Draftsman, Planning Assistant, Carpenter, Heavy C Vehicle Driver, Mechanic Foreman, Motor Grade Operator, Ferro Printer, Welder, Concrete Mixture Driver, Junior Machineman, Pump Mechanic, Pump Driver- cum-Mechanic, etc. etc. On attaining the age of superannua- tion of 58 years, when they were sought to be retired, they approached the Administrative Tribunal, Orissa, which in the impugned orders has held D that they were workmen and entitled to continue in service until they attained the age of 60 years as provided for under the second proviso to Rule 71(a) of the Orissa Service Code (for short, 'the Code'). It is not necessary to deal in detail with .the facts of each case for they are not different from each other. However, facts of the case of Adwait Charan Mohanty, respondent in C.A. No. 1497/93 could be referred to as exempler. E case. While working as a Draftman in the office of the Executive Engineer, Minor Irrigation Division, Cuttack, he attained the age of 58 years on July _.. 12, 1990. When he was to retire on July 31, 1990, he challenged the notice of retirement, Annex-A therein, contending that he is a workman within the meaning of the Code. The Tribunal held him to be a workman and that, p therefore, he was entitled to continue in service till he completed the age of 60 years on July 31, 1994 with all the benefits of salary and allowances etc.

The question is whether the respondents are entitled to continue until they attained the superannuation age of 60 years? The Orissa Civil G Services (Classification, Control .and Appeal) Rules, 1962, (for short, 'the Rules'), defines government servant in Rule .3(t) to mean a person who is a member of a service or who holds a civil post under the State and. includes any such person on foreign service or whose services are tem- porarily placed at the disposal of the Union Government or any other State H

p. 618

A Government or a local or other authority and also any person in the service of the Union Government or any other State Government or a local or other authority whose services are temporarily placed at the disp9sal of the State Gvernment. Under Rule 8 the posts under the State other than those ordinarily held by'persons to whom the Rules do not apply, are by general or special order of the government classified as (i) State Civil Posts, Class B I, (ii) State Civil Posts, Class II, (iii) State Civil Posts Class III, (iv) State Civil Posts, Class IV. Schedule-B of the .Rules enumerates all classes of posts. Class III service and posts have been enumerated in which all the afore-stated posts have been specified. Class IV posts have also been specified c;, Jin none of the Class IV posts, the posts held by the respon- C dents find place. Rule 29 of the Code defines Ministerial servant to mean a government servant of a subordinate service whose duties are entirely clerical~ and any other class of servant specially defined as such by general or special order of the State Government. The Note appended thereto defines that Inspectors and Sub-inspectors of Police employed purely on D clerical duties and Sub-Registrar are not "ministerial servants". ,..

Rule 52-A reads as follow:-

"Unless otherwise expressly provided by the State Gvoernment in any statutory rules the minimum age-funit for entry into Govern- ment service shall be as follows :- E (i) not below twenty-one years in the case of gazetted Govern- ment servants in Class I, Class II or Class III services;

(ii) not below tewenty in the case of non- gazetted Government servants in Class III service other than Ministerial servants; F (iii) not below eighteen years in the case of non-gazetted Class III Ministerial servants and Class IV Government servants.

Rule 71(a) provides superanuuation which is relevant for the purpose of this case reads thus :- "Except as otherwise provided in the other clauses of this rule the date of compulsory retirement of a Government servant, except a ministerial servant who was .in Government service on the 31st March 1939 and Class IV Government servant, is the date on which he or she attains the age of 58 years subject to the condition that

STATE OF ORISSA v. A.C. MOHANTY [K. RAMASWAMY, J.] 619 1

a revic:w shall be conducted in respect of the Government servant ,A. in the 55th year of age in order to determine whether he/she should be allowed to remain in service up to the date cif the completic;m of the age of 58 years or retired on completing the age of 55 years 41:'public interest."

The second proviso read as follows :- B

"Provided further that a workman who is governed by these rules shall ordinarily be retained in service up to the age of 60 years. He may, however, be required to retire at any time after attaining the age of 55 years after being given a month's notice or a month's . pay in lieu thereof, on the ground of impaired health or of being c negligent or inefficient in the discharge of his duties. He also may retire at any time after attaining the age of 55 years, by giving one month's notice in writing.

Note :- For this purpose, "a workman" means a highly skilled, D skilled or semi-skilled and unskilled artisan employed on a monthly rate of pay in any Government establishment."

The Note was subsequently amended with effect from October 13, 1989, which reads :- E Note .. For this purpose, "a workman" means a highly skilled, skilled, ·semi-skilled or unskilled artisan employed on a monthly rate of pay in any industrial or workcharged establishment".

·The question, therefore, is whether a Class III Government serYant, F on attaining the superannuation age of 58 years, is required to retire or whether he is entitled to remain in service until he attains superannuation age of 60 years as a workman within the meaning of the Code. Shri Dipanker Gupta, learned Solicitor General, contended that all the respon- dents belong to respective subordinate services of the State governed by G the Rules framed under proviso to Article 309 of the Constitution. The Rules enumerate the class of service. For superannuation of the maximum age has been prescribed by Rule 71(a). Therefore, the Government ser- vants in the respective class of services who hold civil post are required to retire on attaining the age of superannuation specified in the Code. The expressi9n 'workman' defined in the Code is referable to the workman who H

620 SUPREME COURT REPORTS f1995] 1 S.C.R.

A must be an artisan. An artisan is one who practises or cultivates an art as an artist or one who is employed in. any of the industrial arts s,u~h as j..

M~chanic. The respondents, therefore, are not artisans. It is also con- tended that an artisan essentially is one who produces an article of some kind with the help of tools and brings into existence a product for sale. In other words, he produce an article of commercial· goods with the aid of B tools or with an element of creativity introduced by the artisan into' the ~

product which he creates. None of the respondents could be treated to be an artisan. Therefore, they are not entitled to continue in service ·Up to the -, age of 60 years. It is also further contended. that the workman, must, of nece~sity, by reason of definition, means one working in an industrial or c workcharged establishment of the Government. None of the respondents is continuing either in an industrial establishment or a workcharged estab- lishment. . The Tribunal, therefore, committed grievous error of law in directing that the respondents shall be retained in service till they attained the age of 60 years. ...:, . ~

·D The core contentions of the several learned counsel appearing for the individual respondents, run thus: The superannuation age of 58 years having been prescribed for a government servant under the Code, unless retired on attaining the age of 55 years in public interest on the grounds enumerated therein by all the employees in Class I, II and III, exception has been carved out to Class IV government' servants. The definition of workman in the secona proviso brought out another exception to the main part of Rule 71(a). Every workman, highly skilled, skilled, semi-skilled or unskilled working either in Class I, II or III services have been treated as· .i... a class, as being an artisan and given exception regards age of their retirement. All of them have been treated as a class and declared that they are also to retire on attaining the superannuation of 60 years. Otherwise it would b~ violative of Article 14. Differing instructions were given by . -t:1 . £ta~j.~~ departments bring out discriminatory treatment in su11erannuation :' "'1'.>f tne workman. The word 'workman', in/iliis background, shoulci be ~·.-... understood broadly. Any government employee, be ·he highly. skilled, '\'..:' G skilled, semi-skilled or unskilled, should be given the benefit of the super· '1 ' annuation of.60 years envisaged by the exception to the general rule in the second proviso. The industrial. establishment must equally be understood broadly and not in a technical sense. The workshop etc. maintained in any ~

department of the government or the driver mechanics etc. working in H different departments and all the respondents in these cases answer the

STATE OF ORISSA v. A.C. MOHANTY [K. RAMASWAMY, J.] 621 I

definition of workman. The workman defined under· the Indust~ial Disputes A Act has been widely interpreted by this Court in diverse judgments. The Driver of the government vehicle was also held to be workman. In the light / of the service jurisprudence, the respondents have rightly been declared to be entitled to superannuation on attaining 60 years. The Tribunal has rightly given the benefit to the respondents. Exercising the power under ·· B Article 136, this Court may decline to interfere with the benefit given by the Tribunal. It is also contended that they have worked pursuant to the orders of the Tribunal and that, therefore, they should not be saddled with the liability to refund the amount already _Jaid by way of salary and allowances. c The crucial question iswhether the respondents are entitled to the benefit of superannuation age of 60 years. Government ser\rants are govern~d by the Statutory Rules. The Code prescribes the minimum age required for a person to enter into the gO\ crnment service and the age of his superannuation. Rule 71(a) clearly envisages superannuation of all the government servants except the Ministerial servants continuing as on March 31, 1939 and Class IV servants. In this case, we are not concerned with the Class IV government servants and none of the Ministerial servants continuing as on March 31, 1939, remains in service. All others including Class III government servants shall be required to retire on attaining the age of 58 years unless the government exercises its power of review which shall be conducted by the State Government in ·the 55th year of the government servant. Whether the government servant should be allowed to remain in service up to the date of completion of the age of 58 years or retire or completing the age of 55 years in the public interest in a matter which depends on exercise of power conferred on the government in that regards. Per force every government servant in Class I to III specified in the Rules, read with Schedule-B of the Rules, is required to retire from service on attaining the age of 58 years subject to the condition of the exercising of the power by the State Government in the public interest as stated supra. It1s not in dispute that all the respondents are in Class III service. Perforce, therefore, they shall be required to retire on attaining the. G age of 58 years. ·

The question is whether they are entitled to the benefit. of the second proviso to Rule 71(a) of the Code. It is unfortunate that \he Tribunal had tur~ed its blind eye to the rules and blissfully omitted to advert to the main H

I -~

622 SUPREME COURT REPORTS [199~] 1 S.C.R.

A part of Rule 71(a) of ~he Code and the Rules read with S_chedule-B of the Rules. The entire focus was .concentrated ·only on the consideration of the word 'workman' and the 'establishment' enumera~ed in the Note to the proviso. Rule 71(a) of the Code and the second proviso and the note appended to it must be read together harmoniously to give effect to every part of it. A reading thereof would indicate that Class I, II and III B government servants shall retire on attaining the age of 58 years and Class IV· employees are excluded from its operation. The highly skilled, skilled, semi-skilled or unskilled workman- artisan working in an industrial estab- lishment or workcharged establishment of the government and governed by the statutory rules also are given the benefit of the .age of superannua- C tion on attaining the age ·of 60 years on par with the Class IV employees. It is settled service jurisprudence and all the Rules of the Central Guvern- ment and' the State Governments, prescribe the superannuation of a government servant working as Class IV employee as on attaining the age of superannuation of 60 years. Having given the benefit of that class, the D workman, be it highly skilled, skilled, semi-skilled or unskilled, must be an artisan and is on monthly rate of pay working in industrial or workcharged establishment of the government. Such government servant also appears to · have intended to be given the benefit of superannuation age of 60 years.

The amended Note clearly brings out the above object although it is .E inaptly woven out and elusively couched. For the purpose of the proviso, a workman· means highly sikilled, skilled, semi-skilled or unskilled artisan employed on a monthly rate of pay ·in an industrial or workcharged establishment. Shorter Oxford English Dictionary, (3rd Ed.) Vol~I, p.103, 1- defmed artisan means - "1. one who practices and cultivates art; an artist. F 2.one occupied in any industrial art; a mechanic handicraftsman." Artist has been defined to mean "one who pursues some practical science; a follower of manual art". Webster's Third New International Dictionary, Vol-I, defines artisan "one who practices an art; 2. one trained to manual dexterity or .skill in a trade." Black's Law Dictionary defines artisan "one skilled in some kind of trade, craft, or art requiring manual dexterity, 'e.g. G a carpenter, plumber, tailor, mechanic." The word 'artisan', therefore, has 'f I

to be understood in common parlance in a wider sense a.s an art or ati artist or one employed in any of the industrial art or produces an article of commercial value or utility with manual dexterity, either by manual labour or with· the help ·of tools or machine and brings' into existence a product for the sale or service. An element of not only creativit:y would be applied

' )_

STATE OF ORISSAv. AC. MOHANTY [K. RAMASWAMY, J.) 623 ~ to bring into existence an article or co~mercial goods 'with dexterity employing manual or technical labour.or with the aid of tools etc. Ho,rever, it is not exhaustive. Each case must be considered on its own facts and attendant circumstances to find whether the workman is an artisim. How- f

ever, if he is a Class IV government servant, he too is entitled to superan- nuation on attaining 60 years of age. B In Prithipal Singh v. Union of India, [1991) Supp. 1 SCC 32, Driver of a staff car who is also a mechanic who knows repairing the engine or r-- vehicle was held to be an artisan. In Chandigarh A(,lministration through the Chief Eingineer v. Mehar Singh, [1992) Supp. 3 SCC 43, this Court held that a workman within the meaning of Clause (b) of Fundamental Rules, 56, c has to satisfy the twin tests of workman and also an artisan employed on a. monthly pay in an industrial or workcharged establishment, to qualify for superannuation at the age of 60 years. Therein since the facts were not clearly established, this Court remitted the appeal to the Tribunal after laying down the law, and directed the Tribunal to decide the question. In D 'I' Bangalore Water Supply & Sewerage Board v.A. Rajappa, (1978) 2 SCC 213, a Bench of seven Judges of this Court considered the question under the Industrial Disputes Act - whether the Bangalore Water Supply & Sewerage Board is an industry. In that case, it was a statutory Board under consider a- tion and not a government department. In that context, this Court while interpreting the word 'industry', the question whether the government E department is an industry or not was specifically left open. Though the word, 'industry' has been amended under the Industrial Disputes Act, the amended definition as on date has not been brought into force. Therefore, it renders little assistance. It is true that in Des Raj v. State of Punjab, [1988] .... 2 SCC 537, a Bench of two Judges of this Court, followingBangalore Water F Supply and Sewerage Board's case, held that Irrigation Department of the State Government of Punjab an industry within the meaning of Industrial Disputes Act. We are not concerned with the dispute under the Industrial Disputes Act. Therefore, the need to E:'io .into the controversy ,of the . correctness of the ratio of Des Raj's case does not arise. Suffice it to state that all the respondents are governed by the statutory rules made under 0 ... ')' proviso to Article 309. oflhe~eonstitution. Therefore,. the interpretation should be confined to the language employed therein. . . If the interpretation sought to be put up by the counsel for the respondents are given acceptance, it would render the very object of the H

_) 624 SUPREME COURT REPORTS [1995] 1 S.C.R. t

·A R~les ridiculous and all Classes of government servants would be .brought into the vortex of artisan. Class III consists of gazetted as well as non- gazetted employees. The government servants in Class III shall retire on completion of 58 years. If the interpretation that every artisan is a workman if he produces an article with dexterity or service with dexterity by manual or technical labour, he would be entitled to remain in service till the completion of 60 years. For example, even a Director of Town Planning or Chief Architect could be considered to be an artisan and, therefore, they too would be workmen entitled to superanuuation up to the completion of 60 years of age. Similarly serveral officers in specified governmental ac~ tivities would answer the definition of workman, in particular, the Note to the proviso. It does not appear to be the object. As stated earlier, the object . appears to be to bring artisan-workman governed by the statutory rules but at par with Class IV employee and he alone is required to retire on completion of 60 years of age but not the gazetted or non-gazetted Class III government servants or even in Class II or I. D Therefore, we are of the considered view that the government employee in Class 'III service shall retire on completion of 58 years of age. Even an artisan-workman who was promoted or appointed to Class III service be it gazetted or non-gazetted shall retire on completion of 58 years of age. An artisan-workman who is wo.rking in an industrial or workcharged establishment but he is at par with Class IV employee is to retire on attaining the age of 60 years under the second proviso to Rule 71(a) of the Code. In this view, it is not necessary to decide whethe.r any industrial establishment in a government department, not specified, expressly, is an industry or a factory as contended by the re~pondents. The Code clearly gives benefit to them. One essential condition to be satisfied is that such an artisan-workman, be it highly skilled, skilled, semi-skilled or unskilled, must of necessity, be on monthly pay of the government.

~,,c~........ Thus c~nsidered, the Tribunal has committed grievous and manifest et;ror of law in not considering the cases on hand in this perspective. It has solely and wholly· concentrated on the definition of the word 'workman' and the 'industrial establishment' to give the benefit ·of extended superan- nuation to the respondents. Since by the interpretation of the Tribunal, the respondents, until the order was stayed by. this Court, remained in service and rendered the service to the State, we direct the appellant not to recover any pay and allowances paid to them till they are made to retire pursuant

STATE OF ORISSA v. AC. MOHANTY (K. RAMASWAMY, J.] 625

to the orders passed by ~his Court. Before parting with the case, we would like to point out that a cursory look into the Code would show existence of yearning gaps and ad-hoc amendments are made from time to time. It is high time to have fresh look and revamp the Code in the light of the developments of service jurispurdence.

The appeals are accordingly allowed and the O.As. are dismissed but in the circumstances, without costs. In some of the cases, namely, C.A. Nos. 676-679/94 and SLP No. 2260/94, appeals had been filed against the interim orders and this Court has suspended all the orders. In the light of the law laid down, the Tribunal is directed to consider and dispose of all these cases according to law. c A.G. Appeals allowed.