Delhi High Court
M.C.D. vs K.B. Dass And Anr. on 30 October, 2003
Equivalent citations: 2004(73)DRJ705, 2004(2)SLJ376(DELHI)
Author: Mukul Mudgal
Bench: Mukul Mudgal
JUDGMENT
Mukul Mudgal, J.
1. Rule.
2. With the consent of the counsel for the parties, the matter is taken up today for final hearing.
3. This writ petition challenges the impugned Award 31st October, 2001 by which the Tribunal held that the claimant/respondent No. 1 herein is covered under the category of artisan, falling under FR 56(b) and could have been retired only on attaining the age of 60 years on 31st October, 1995. The retirement of the respondent No. 1 was held to be illegal and two years emoluments were consequently granted to the respondent No. 1 with effect from 1st November, 1993 till 31st October, 1995.
4. Mr. Ghose, the learned counsel, appearing on behalf of the respondent No. 1 has very fairly submitted that the issue involved in the present writ petition is squarely covered, against him by the judgment of the Hon’ble Supreme Court in State of Orissa and Ors. v. Adwait Charan Mohanty, wherein it has been held that every employee who is not a class IV employee cannot claim the benefit of being an artisan workman within the meaning of FR 56(b) and thus cannot claim the entitlement to work up to the age of 60 years.
5. The relevant portion of the aforesaid judgment of the Adwait Charan Mohanty (supra) reads as follows:-
“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 Dipankar 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 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 a 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 contended that the workman, must, of necessity, by reason of definition, means one working in an industrial or work charged establishment of the Government. None of the respondents is continuing either in an industrial establishment or a work charged establishment. 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.
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 working in an industrial or work charged 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 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.”
In the present case, the respondent No. 1 who was a staff-nurse cannot be considered to be an artisan. In this view of the matter, the award dated 31st October, 2001, passed in I.D. No. 226/1995 of the Labour Court which grants the benefit of continuance of service to the respondent No. 1, who was a staff-nurse up to the age of 60 years cannot be sustained as it is contrary to the principle laid down by the Hon’ble Supreme Court in Ad-wait Charan Mohanty (supra) and is accordingly quashed and set aside.
6. The writ petition stands allowed and disposed of accordingly.