JUSTICE SANJAY KUMAR MISHRA

Hriday Shabar v. Odisha Administrative Tribunal and Ors.

Case Number: WP(C) No. 2708 of 2017

Coram: Dr. Justice B.R.Sarangi and Justice Sanjay Kumar Mishra

Date of Decision: 21st July, 2022

The father of the Petitioner while working as a Driver in the Office of the Commercial Tax Officer, Investigating Unit, Bolangir, expired on 25th May 2011. The Petitioner, being an unemployed Graduate belonging to ST Community, applied for his engagement under the Rehabilitation Assistance Scheme (R.A. Scheme), on 13th November 2011, to the present Opp. Party No. 5, consequent upon which the said Application was sent to the Collector, Bolangir, for issuance of distress certificate. However, the Opposite Parties rejected the Application for appointment of the Petitioner under the R.A. Scheme vide Order on the ground that the brother of the Petitioner is serving as contractual Health Worker.

The Petitioner contended that the elder brother of the Petitioner, who was working as a Health Worker on contractual basis. Moreover, he was not residing with the family of the Petitioner and has been living separately with his own family members much prior to the death of the father of the Petitioner and there is no relationship/nexus between the Petitioner’s family and the family of his elder brother.

The Opposite Parties contended that as per the R.A. Scheme, the wife of the deceased is the first claimant for appointment. As the wife of the deceased was declared medically unfit, her elder son Gauranga Shabar was eligible for appointment in terms of Rule-2 (b) of the Orissa Civil Service (Rehabilitation Assistance) Rules, 1990 (“OCS (R.A.) Rules, 1990”). However, the Petitioner, who was the second son of the deceased Government servant, filed a medical certificate vide which the elder son of late Radheshyam Shabar was declared unfit for any job under the R.A. Scheme. Accordingly, the Joint Commissioner of Commercial Taxes, Bolangir Range, Bolangir, was requested to make an enquiry into the matter. Pursuant to the said request, an Enquiry Report was submitted to the CTO Mobile, Bolangir Range, Bolangir, indicating therein that the elder son of the deceased Government servant late Radheshyam Shabar is working as a contractual Health Worker and the present Petitioner, by suppressing the real fact, has applied for rehabilitation appointment, which is violative of the provisions under the R.A. Rules, 1990 and in terms of Rule-2 (a) (iii) of the OCS (R.A.) Rules, 1990, the present Petitioner is not entitled for a job under the R.A. Scheme.

This Court observed that the Petitioner in the present case not only gave false medical certificate to the Authority declaring his elder brother unfit for Government job but also failed to produce any Registered Partition Deed to satisfy the Authority that his brother was separated from the family prior to the death of his father. Hence the writ petition stands rejected.

Manager Director, Odisha Small Industries v. Abhay Kumar Samantray

Case Number: WP(C) No. 19346 of 2021

Date of decision: 14th September, 2022

The Opposite Party No.1, after retirement from service w.e.f. 31st March 2018, because of nonpayment of gratuity by the Petitioner-Corporation, preferred application in Form ‘N’ in terms of Rule-10(1) of the Orissa Payment of Gratuity Rules, 1974 on 22nd February 2019 claiming therein an amount of Rs.5,42,055/- towards gratuity with accrued interest on the ground that his initial appointment being 14th November 1991 and date of superannuation being 31st March 2018, he was entitled to the said Gratuity amount in terms of the last wages drawn by him, i.e. Rs.36,137/-, for the total period of 26 years of service.

The Petitioner-Corporation submitted that since Opposite Party was appointed in the regular establishment on 04th June 2015 and retired on 31st March 2018, after completion of 2 years 9 months and 27 days of regular service and in terms of Section-4 of the Payment of Gratuity Act, 1972, shortly, the P.G. Act, 1972, he had not filed any application for payment of Gratuity before 30 days of his superannuation i.e. on or before 1st March 2018, the said application in Form ‘N’ in terms of Rule-10(1) of the Orissa Payment of Gratuity Rules, 1974 filed on 22nd February 2019 is not maintainable.

The Controlling Authority took into consideration the last drawn wages of the present Opposite Party and his qualifying period of service as 26 years, determined gratuity amount payable to the present Opposite Party to be Rs.5,42,055/-. Moreover, in view of Provision enshrined under Section 7(3-A) of the P.G. Act, 1972, so also based on the judgments of the apex Court, the Controlling Authority ordered that the Opposite Party is entitled to get Rs. 1,28,608/- towards interest and in toto, he is entitled to get Rs.6,70,663/-.

This Court observed that the Controlling Authority under P.G. Act-Cum-Divisional Labour Commissioner, Cuttack, was justified to take into consideration the total period of service of the Opposite Party from the date of his initial engagement till the date of his superannuation, so also award 10% simple interest on the awarded amount for the delayed period, so also ordering to pay further simple interest @ 10% per annum till the payment is made, if the Petitioner-Corporation fails to deposit the said ordered amount within 30 days from the date of pronouncement of the judgment. The writ petition was thereby rejected.