TABARAK ALI Vs. TRANSPORT CONTROLLER AND ORS.

JUDGEMENT

(1.) THE Petitioner was appointed as a Driver in the State Transport Service, a Government undertaking, in 1956, having been born on 20th of February, 1912. He was confirmed in his post with effect from 23.2 -1958. On 17 -2 -1968, three months notice of retirement in terms of Book Circular No. 40 was given to him under Annexure -1. On 19.5.1968, the Petitioner was superannuated. In Prafulla Kumar Dutta v. State of Orissa and Ors. : (1971) I L.L.J. 65, this Court decided that a motor driver was a workman within the meaning of Rule 71 of the Orissa Service Code and therefore would ordinarily be retained in service up to the age of sixty years as per the second proviso to Rule 71(a) of the Code. On a representation by the Petitioner relying on the decision of this Court, the opposite parties called upon him to appear for a medical test. The Chief Medical Officer of Cuttack who examined the Petitioner recommended that he was fit enough to drive heavy vehicles. On 15 -11 -1971, the Petitioner was directed to resume duties. The period he was out of service was treated to be duty and he was to be paid the salary for that period on production of the necessary certificate that during that period he had not been employed elsewhere. The Petitioner alleges that he submitted his joining report on 16 -11 -1971 and submitted a certificate of nonemployment on 23 -11 -1971. On 15.12.1971, he was informed that the earlier order treating him to be in service was recalled. This writ application challenges the last order recalling the direction dated 15 -11 -1971.

(2.) IT is not disputed before us that as decided by this Court in Prafulla Kumar Dutta v. State of Orissa and Ors. a motor driver like the Petitioner would ordinarily continue in service until he attains the age of sixty. The second proviso to Rule 71(a) of the Orissa Service Code is to the following effect:

(3.) THE date of birth of the Petitioner is not in dispute. The Petitioner was, therefore, entitled to continue in service until February, 1972. The order dated 15 -11 -1971 appears to have been passed in realisation of the mistake but it was again cancelled without any justification. The stand taken in the counter affidavit is not at all tenable and in fact it has not satisfactorily explained as to under what circumstances the order dated 15 -11 -1971, had been made and why it was recalled.