1997 INSC 0879
                                               State of Orissa & Ors.

                                                           Vs

                                               Sadhu Charan Pradhan

                                      (Sujata V. Manoher, D.P. Wadhwa JJ)

                                                      17.09.1997

                                                     JUDGMENT

D.P.WADHWA, J.

1. Leave granted.

2. This appeal by the State of Orissa is directed against the judgment of the Orissa Administrative
Tribunal (for short 'the Tribunal,) dated January 9, 1995 allowing Original Application No. 2056 of
1994 of the respondent holding that the respondent, who was a mason in the Government
Department, would retire at the age of 60 years and not 58 years as per the service rules applicable
in the State.

3. The respondent joined service in the workcharged establishment of the Executive Engineer,
Roads and Buildings, Bhubaneswar on November 16, 1961 as a meson. On February 17, 1978 he
was brought over to the regular establishment thus begin in the Government Department. The
respondent was to retire on September 30, 1994 on attaining the age of 58 years. The respondent,
however, filed original application in the Tribunal claiming that he was entitled to continue in
service upto the age of 60 years. His claim was based on the 'Note" below second proviso to Rule 71
(a) of the Orissa Service Code. His further claim was that the Work Department of the State
Government should be treated as "industry" relying upon a decision of the Supreme Court in the
case of Des Raj and others Vs. State of Punjab and others 1988 (2) SLR 789.

4. The Tribunal noticed that the State Government did not file any counter and that note on which
the respondent relied was incorporated as per Finance Department Notification dated October 13,
1989 which reads as follows:

                  "Workman" means a highly skilled, skilled, semi-skilled or unskilled artisan
                  employed on a monthly rate of pay in any industrial or workcharged establishment."

5. The Tribunal then held that an artisan was functionary whose nature of work was manual and that
mason would come within that category. It also noticed that in a certain communication of the
Works Department a post of the mason was categorised as "workman". The Tribunal then referred to
various others OAS filed by employees of the Works Department was an industry. The Tribunal,
therefore, concluded that the respondent was to be treated as workman and he was entitled to
continue in service till he attained the age of 60 years. The State Government filed a review
application before the Tribunal bringing to its notice a judgment of this Court in State of Orissa and
others Vs. Adwait Charan Mohanty and others Civil Appeal No. 1497 of 1993 decided on January
27,1995 (since reported as 1995 Supp (1) SCC 470) pointing out that in a similar case the Supreme
Court had held that a government employee like the respondent would retire at the age of 58 years.
This application was dismissed by the Tribunal on July 8, 1996 without referring to the judgment of
this Court and merely noting that the State Government only wanted to record that counter affidavit
had been filed which according to the Tribunal was field one day after it had announced the
judgment.

6. It was submitted before us that the present case was fully covered by the aforesaid decision in
Adwait Mohanty's case. Prior to the amendment of the note below the second proviso to Rule 71 (a)
which has been reproduced above, the note reads as under:

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

7. It is significant to note that the "Government establishment" has been omitted after amendment of
the Note as it existed now would apply only to those employees on monthly rate of pay in any
industrial or workcharged establishment and not those employees working in any Government
establishment. Admittedly, the respondent is working in the Government establishment and the Note
on which the Tribunal relied would be inapplicable to his case. The very note was subject matter of
interpretation in the case of Adwait Mohanty where also the question was if an artisan in the
Government establishment would retire at the age of 58 years or on his attaining the age of 60 years.
This Court after considering the relevant rules came to the conclusion that an artisan in the
circumstances being a Government employee would retire on his completion of 58 years of age.
Statement of law by this Court in the case of Adwait Mohanty fully covers the facts of this case and
the relevant rules on the subject.

8. Accordingly, the appeal is allowed, the impugned judgmentof the Tribunal is set aside and the
DA filed by the respondent is dismissed. There will be no order as to costs.