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PETITIONER: STATE OF ORISSA & OTHERS

       Vs.

RESPONDENT: ADWAIT CHARAN MOHANTY

DATE OF JUDGMENT27/01/1994

BENCH: K. RAMASWAMY & N. VENKATACHALA, JJ.

ACT:

HEADNOTE:

JUDGMENT: 1.  Leave  granted  in S.L.P.  NOS.4424,  13245-547,  18110- 18113/93,  4064/94,2363/94, SLP /94 (OCC 24681),2260,  4223, 2588/94,  20136/93, 4882/94, SLP.........../94  (CC  25141), 9901,   2428,   11084-11095/94,   SLP   /94   (OCC   26551), 18784,19083/94. 2.   These  appeals raise a common question of  law  whether each of the respondents was liable, to be superannuated only on attaining die age of 60 years.  All the respondents  have been  working in various departments of the  appellant-State as   Draftsman,   Senior  Draftsman,   Architectural   Asst. Draftsman,  Architectural  Draftsman,  Planning   Assistant, Carpenter,  Heavy 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  superannuation of  58  years, when they were sought to  be,  retired,  they approached the Administrative Tribunal, Orissa, which in the impugned Orders has held 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  7 )(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 we 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  case. While working as a Draftsman 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, 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. 3.   The question is whether the respondents are entitled to continue  until they attained the superannuation age  of  60 years?   The Orissa Civil Services (Classification,  Control and  Appeal) Rules, 1962, (for short, ’the Rules’),  defines government  servant in Rule 3(f) to mean a person who  is  a member  of  a service or who holds a civil  post  under  the

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State  and  includes any such person on foreign  service  or whose services arc temporarily placed at the disposal of the Union Government or any other State 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 disposal  of the State Government.  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 I, (ii) State Civil Posts, Class II, (iii) State Civil -Posts,  Class  111,  (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 and in none of the Class  IV posts,  the posts held by the respondents 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 1 and Sub-Inspectors of Police employed purely on clerical duties and Sub-Registrar are not "ministerial  ser- vants". 4.   Rule 52-A reads as follows:-               "Unless  otherwise expressly provided  by  the               State  Government in any statutory  rules  the               minimum  age-limit for entry  into  Government               service shall be as follows               (i)   not  below twenty-one years in the  case               of  gazetted Government servants in  Class  1,               Class 11 or Class III service;               (ii)  not  below  twenty in the case  of  non-               gazetted  Government  servants  in  Class  III               service other than Ministerial servants;               (iii) not below eighteen years in the case  of               non-gazetted  Class III  Ministerial  servants               and Class IV Government servants. 5.   Rule  71(a) provides superannuation which  is  relevant for the purpose of this Case, reads thus:-               "Except  as other wise 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 a review shall be conducted  in               respect of the Government servant in the  35th               year of age in order  to determine                                     10               whether he/she should be allowed to remain  in               service  up to the date of the  completion  of               the  age of 58 years or retired on  completing               the age of 55 years in public interest." 6.   The second proviso reads as follows:-               ’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 negligent or inefficient in

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             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,  skilled or  semiskilled  and               unskilled  artisan employed on a monthly  rate               of pay in any Government establishment." 7.   The  Note  was subsequently amended  with  effect  from October 13, 1989, which reads               "Note - For this purpose, "a workmen" means  a               highly   skilled,  skilled,  semi-skilled   or               unskilled  artisan employed on a monthly  rate               of  pay  in  any  industrial  or   workcharged                             establishment". 8.   The  question,  therefore,  is  whether  a  Class   III Government  servant, 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 respondents belong to respective subordinate services of the  State  governed by 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 servants 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   expression ’workman’  defined in the Code is referable to  the  workman who must be, an artisan.  An artisan is one who practices or cultivates an art as an artist or one who is employed in any of  the industrial arts such as Mechanic.  The  respondents, therefore,, are not artisans.  It is also contended 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 produces an article of commercial goods with the aid of 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  con- tended  that the workman, must, of necessity, by  reason  of definition,   means   one  working  in  an   industrial   or workcharged  establishment of the Government.  None  of  the respondents   is   continuing  either   in   an   industrial establishment or a workcharged establishment.  He  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. 9.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  1, II  and  III,  exception has been carved  out  to  Class  IV government  servants.   The definition of  workman  in’  the second  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 1, 11  or III  services  have  been treated as a class,  as  being  an artisan  and  given  exception  as  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

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superannuation of 60 years.  Otherwise it would be violative of Article 14.  Differing instructions were given by various departments  bring out discriminatory treatment in  superan- nuation  of  the  workman.   The  word  ’workman’,  in  this background,  should be understood broadly.   Any  government employee,  be  he highly skilled,  skilled,  semiskilled  or unskilled, should be given the benefit of the superannuation 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 different departments  and all the respondents in these  cases  answer the  definition of workman.  The workman defined  under  the Industrial Disputes 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 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 paid by way of salary and allowances. 10.The  crucial  question  is whether  the  respondents  are entitled  to the benefit of superannuation age of 60  years. Government  servants  are governed by the  Statutory  Rules. The Code prescribes the minimum age required for a person to enter  into  the  government  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 3 1, 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 on completing the age of 55 years  in the public interest is 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 12 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.   It  is not  in  dispute that all the respondents are in  Class  III service.   Perforce,  therefore, they shall be  required  to retire on attaining the age of 58 years. 11.The question is whether they are entitled to the  benefit of the second proviso to Rule 71 (a) of the Code.  It is un- fortunate that the Tribunal had turned its blind eye to  the rules  and blissfully omitted to advert to the main part  of Rule  71 (a) of the Code and the Rules read with  Schedule-B of he Rules.  The entire focus was concentrated only on  the consideration of the word ’workman’ and the  ’establishment’ enumerated  in the Note to the proviso.  Rule 71 (a) of  the Code and the second proviso and the note appended to it must

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be  read together harmoniously to give effect to every  part of  it.  A reading thereof would indicate that Class  1,  11 and  III 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 un- skilled    workman-artisan   working   in   an    industrial establishment or workcharged establishment of the government and  governed  by  the statutory rules also  are  given  the benefit of the age of superannuation 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 Government   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 workman, be  it highly skilled, skilled, semi-skilled or  un-skilled, 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. 12.The  amended  Note clearly brings out  the  above  object although it is ineptly woven out and elusively couched.  For the purpose of the proviso, a workman means highly  skilled, 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-1,  p.  103,  defined  artisan means  -  "  1.  one  who practices and cultivates art; an artist. 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 1, 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. a carpenter, plumber,  tailor,  me- chanic." The word ’artisan’, therefore, has to be understood in  common parlance in a wider sense as an art or an  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  creativity  would  be applied  to  bring into existence an article  or  commercial goods with dexterity employing manual or technical labour or with  the aid of tools etc.  However, it Is not  exhaustive. Each case must be considered on its 13 own  facts and attendant circumstances to find  whether  the workman  is  an  artisan.   However, if he  is  a  Class  IV government servant, he too is entitled to superannuation  on attaining 60 years of age. 13.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 vehicle was held to be an  artisan. In  Chandigarh Administration through the Chief Engineer  v. Mehar  Singh, 1992 Supp (3) SCC 43, this Court held  that  a workman  within  the meaning of Clause  (b)  of  Fundamental Rules, 56, 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 Bangalore Water  Supply

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& 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 consideration and not  a  government department.  In that context, this Court while  interpreting the  word  ’industry’, the question whether  the  government department is an industry or not was specifically left open. Though  the word ’industry’ has been amended under  the  In- dustrial 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, following Ban- 13 galore  Water  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 Dis- putes  Act.  Therefore, the need to go 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  proviso  to Article   309   of   the   Constitution.    Therefore,   the interpretation  should be confined to the language  employed therein. 14.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 Rules 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  ex- ample,  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 superannuation up  to  the completion  of 60 years of age.  Similarly several  officers in specified governmental activities would answer the  defi- nition  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 14 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 11 or 1. 15.  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-work-man who  was  promoted or appointed to Class III service  be  it gazetted  or  nongazetted shall retire on completion  of  58 years  of  age.   An artisan-workman who is  working  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  whether any industrial establishment in a government department, not specified,  expressly,  is  an  industry  or  a  factory  as contended  by the respondents.  The Code clearly gives  ben- efit  to them.  One essential condition to be  satisfied  is

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that such an artisan-workman, be it highly skilled, skilled, semi-skilled or unskilled, must, of necessity, be on monthly pay of the government. 16.        Thus  considered,  the  Tribunal  has   committed grievous  and manifest error 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 superannuation   to   the   respondents.    Since   by   the interpretation  of the Tribunal, the respondents, until  the order was stayed by this Court, remained in service and ren- dered 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 to the orders passed by this  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 jurisprudence. 17.  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. 15