- (1.)PETITIONER is an employee of the Orissa State Electricity Board now working under the City Distribution Division, Cuttack. The Executive Engineer of the said City Distribution Division has required the petitioner to reure from service after one month, of the date of receipt of the notice dated 19-8-1976 (Annexure 5) on the ground that the petitioner has already attained the age of superannuation as provided in Sub-clauses (ii) of Clause 2) of Section 2 of the Payment of Gratuity Act, 1972 (hereinafter referred to as the "gratuity Act') Petitioner challenges his superannuation in this writ application.
(2.)ACCORDING to the petitioner, he was employed under the Cuttack Electric Supply Company Limited as a workman and was entitled to continue in service as long as he was medially fit The State of Orissa revoked the licence of the Cuttack Electric Supply Company Limited with effect from 1-2-1962 in exercise of powers vested under S 5 of the Electricity (Supply Act of 1948 and in terms of a settlement reached between the "aid company and the State Government in course of the hearing of a writ application brought by the company challenging the revocation (O J C. No. 31 of 1962 ). it was agreed that the existing staff employed by the company would he taken over by the Board and would be allowed to continue to work on the same terns and conditions as before About 35 workmen in the employment of the company were thus taken over by she Board. In the employment under the Board, the ex-employees of the Cuttack Electric Supply Company the formed a distinct group by themselves. From time to time whenever the Board wanted to change the conditions of employment of this group disputes arose. On 1. 7-1963, the first set of disputes were settled on the intervention of the then Chief Minister. When the State Government was not pa-pared to refer a dispute for adjudication by the Industrial Tribunal O J. C. No 372 of 1963 was filed in this Court and by a writ of mondomus, Government input wars called upon to refer the disputed. In Industrial Dispute Case No. 9 of 1964, the Tribunal held : Thus, I come to the conclusion that the workers of the Cuttack Electric Supply Company, which was purchased by the State Electricity Board and is being managed by the City Distribution Division. Cuttack, under the State Electricity Board are entitled to continuity of service without any material change in their conditions of service they were enjoying under the company. . . . Subsequently, when a dispute arose regarding payment of bonus and gratuity, the matter was again referred for clarification under S 36 of the Industrial Disputes Act to the Tribunal and the clarificatory order of the Tribunal was subjected to appeals before the Supreme Court which were disposed of in November. 1968. In June. 1999, the Board decided to enforce a rule of super-annuation in respect of work charged employees in the pay scale not exceeding Rs. 70 on completion of sixty years of age and for other on completion of 55 years of age At that time, so far as the employees of the company were concerned, it was stated;. . . their age of superannuation shall be, according to the recent judgment or the Supreme Court, regulated having regard to the decision arrived at during discussions on the Ist July, 1963, namely, that all other conditions or service under the Bo rd would be applicable 10 the ex-employees of the Cuttack Electric Supply Company in the same manner and to the same extent as they are to other employee of the Board. In other words, the age of superannuation of the regular and work charged employees of Ex Cuttack Electrics Supply Company will he determined according to the principles mentioned above which ate applicable to the employees of the Orissa State Electricity Board. In a writ application filed before this Court, the General Secretary of the City Distribution Division Electrical Worker's Union Challenged the decision fixing the age of superannuation. By the judgment of the Court reported in Saroj Kumar Ghosh v. Chairman, O. S. E. Board this Court held -. . . . The position that emerges out of the aforesaid discussion and finding is that at the time when the workmen wire taken over from the Cuttack Electric Supply Co. Ltd. by the Board they were not subjected to any condition of superannuation. The question that remains for examination is?can it be said that superannuation is one of the lesser terms of service in respect of which the workmen of the company are DOW to be regulated by the terms and conditions of the employees under the Board? Mr. Rath for the opposite party Board did not seek to support the order of superannuation on the ground that it was covered by the lesser terms of service In fact the stand taken in the counter-affidavit was other, wise as already discussed. In the circumstances, we are led to hold that superannuation is an important condition of service and was not liable to change in terms of the award which determined the terms of service of the workmen of the company. . . . The decision of this Court was in terms approved by a subsequent decision of the Supreme Court in the cafe of U. P. E. Supply Co. V. T. N. Chatterjee While the petitioner was continuing in employment, the impugned notice was given on 19-8-1976 to the effect that as the petitioner had already attained the age of superannuation as provided in Sub-clause (ii) of (r) of Section 2 of the Gratuily Act, his services would come to an end on expiry of a month of the aforesaid nonce. Petitioner contends that the provisions of the Gratuity Act are not intended t regulate superannuation and being a beneficial statute, the Act cannot workout to the prejudice of a workman. Again, petitioner's case would not be covered by Sub-clause (ii) of Clause (r) of Section 2 of the Gratuity Act. Therefore the notice to ter minate Device is without jurisdiction,
(3.)IN the counter-affidavit the notice baa been justified to be valid. A rejoinder has been filled thereafter by the petitioner in support of his stand.