Bombay High Court
Shri Cipriano Agnelo Ribeiro vs The Directorate Of Health Services, ... on 29 September, 1998
Equivalent citations: 1999(2)BOMCR575
Author: R.K. Batta
Bench: R.K. Batta, J.A. Patil
ORDER R.K. Batta, J.
1. Rule. By consent Rule made returnable forthwith. With the consent of the learned advocates appearing on behalf of the parties Rule is heard forthwith.
2. Learned Government Advocate Shri V.P. Thaly submitted before us that the respondents do not wish to file any affidavit-in-reply since the facts which are stated in the petition are not disputed by the respondents.
3. The petitioner was appointed as Laboratory Assistant in the Department of Animal Husbandry & Veterinary Services and was transferred to the Public Health Laboratory under the control of Public Health Department with effect from 12-3-1993 by Order dated 12-3-1993 consequent upon closure of Vaccine Institute where the petitioner was working. The petitioner along with the post was transferred from the Department of Animal Husbandry & Veterinary Services to the Public Health Laboratory under the control of Public Health Department. In September, 1995 the Public Health Laboratory was closed and the petitioner along with his post was transferred to the National Malaria Eradication Programme under the Directorate of Health Services as Laboratory Technician. In para (9), the petitioner has enumerated the duties which are being performed by him in the present post. The petitioner completed the age of 58 years on 16-9-98 and if the age of superannuation is taken as 58 years, according to Government Rules he would retire as on 30th September, 1998. The contention of the petitioner is that he is a Workman/ Artisan within the meaning of Note below F.R. 56(b) of the Fundamental Rules working in an industrial or work-charged establishment of the Government. He, therefore, contends that his date of superannuation in terms of F.R. 56 would be on attaining 60 years. The petitioner claims that National Malaria Eradication Programme as also the Directorate of Health Services constitute an industrial establishment. The said Department does not discharge any sovereign functions, but, on the contrary, take steps for the purpose of eradication of malaria or prevention of its spread and in the course of the said functions blood sample smears are collected and tested. It is also submitted by the petitioner that activities of fumigation, spraying and other services are performed which shows that the Department is carrying out a systematic activity organised with the co-operation of its employees for the distribution of services calculated to satisfy human wants. The petitioner made a representation dated 13th June, 1998 to the respondents that he be continued to serve in the Department until the age of 60 years, but there has been no response from the Government, as a result of which the petitioner is forced to approach this Court for redressal of his grievance in this petition. The petitioner, thus, in substance seeks directions to the respondents that he be continued in service till he attains the age of 60 years.
3A. Learned Advocate Shri Sonak, appearing on behalf of the petitioner relied upon two judgments of this Court and a judgment of the Apex Court in order to bring home his argument that the petitioner is a workman falling within the Note appended to F.R. 56(b) since he is a skilled artisan and is working in an industrial or work-charged establishment of the Government namely National Malaria Eradication Programme under the Directorate of Health Services. The two rulings of this Court upon which reliance has been placed are (Shri Frederic Fernandes v. State of Goa), Writ Petition No. 217/94 and Shri Gajanan Chari, etc. v. State of Goa etc., Writ Petitions No. 388/93, 58/98 and 71/98. In Writ Petition No. 388/93 and two other connected writ petitions one of us (Batta, J.) is a party. The judgment of the Apex Court upon which reliance has been placed by learned Advocate for the petitioner, is Bangalore Water Supply and Sewerage Board v. A. Rajappa and others, wherein it is held that 'Industry' as defined in section 2(j) has a wide import. Reliance has been placed specifically on para 89 of the said judgment of the Apex Court wherein earlier decision of the Apex Court in (Corporation of Nagpur), has been approved. The said case of Corporation of Nagpur (supra) has held that the Health Department of the Municipality is an 'Industry', as it looks after scavenging, sanitation, control of epidemics, control of food adulteration and running of public dispensaries. Looking into the services rendered by the Health Department of the Municipality, the same was held to be an 'Industry' within the meaning of section 2(j) of the Industrial Disputes Act, 1947. After placing reliance upon the above judgments, it is submitted that the petitioner is entitled to continue in service till the age of 60 years in view of the duties performed by him which are enumerated in para (9) of the petition in connection with the National Eradication Programme under the Directorate of Health Services.
4. Learned Government Advocate Shri Thaly has submitted before us that the petitioner even on the basis of duties enumerated by him in para (9) of the petition would not qualify to be workman within the scope of the Note contained under F.R. 56(b) as none of the duties performed by him would bring him within the ambit of artisan. It is further submitted by him that the ruling of this Court in Writ Petition No. 217/94 cannot be applied to the case under consideration since in the said case the issue related to a different Department altogether namely Institute of Psychiatry and Human Behaviour which, of course, was under the Control of Secretary Public Health Department, Government of Goa. Thus according to him, the principle laid down in the said judgment cannot be extended or applied to the case under consideration. The next submission which has been advanced by him is that the judgment of the Apex Court in Bangalore Water Supply v. Rajappa (supra) cannot be applied to an industrial or work-charged establishment under F.R. 56(b) since in the said case the Apex Court had dealt with the definition of 'industry' as contained in section 2(j) of the Industrial Disputes Act which definition cannot be imported into F.R. 56(b). In support of his submission, he has placed reliance on Union of India and others v. R.C. Jain and others, . He has also relied upon two judgments of the Apex Court in State of Orissa & others v. Adwait Charan Mohanty & others, 1995 Supp. (1) S.C.C. 470 and State of Orissa & others v. Sadhu Charan Pradhan, 1997(8) Supreme 326. He, therefore, submits that the petition has no merit and should be rejected.
5. Keeping in view the rival contentions and the rulings upon which reliance has been placed on either side, we have examined the case of the petitioner. The relevant portion of F.R. 56 around which the whole controversy centres around may therefore be seen at this stage which runs thus :--
"F.R. 56(a) Except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty-eight years.
(b) A workman who is governed by these rules shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years.
NOTE. -- In this clause, a workman means a highly skilled, skilled, semi-skilled, or unskilled artisan employed on a monthly rate of pay in an industrial or work-charged establishment."
The age of retirement of a Government servant is 58 years except for Class IV employees where the age of retirement is 60 years in terms of F.R. 56(e). However, F.R. 56(b) provides that a workman who is governed by the Fundamental Rules shall retire from service on attaining the age of 60 years. In the Note below F.R. 56(b) it is clarified that for the purpose of the said clause a workman means a highly skilled, skilled, semi-skilled or unskilled artisan employed on a monthly rate of pay in an industrial or work-charged establishment. Therefore, it has to be seen whether the petitioner can be said to be a workman within the meaning of F.R. 56(b) as explained in the Note below the said clause. The petitioner claims to be workman/artisan skilled in analysing blood samples. The word 'artisan' has been defined in Black's Law Dictionary (Sixth Edition) to be one skilled in some kind of trade, craft, art, requiring manual dexterity and the examples given are carpenter, plumber, tailor and mechanic. In the Division Bench ruling of this Court in Writ Petition No. 217/94 upon which reliance has been placed by learned Advocate for the petitioner, the case of Laboratory Assistant working in the Institute of Psychiatry and Human Behaviour under the control of Secretary, Public Health Department was considered. The duties of the Laboratory Assistant/Technician were examination of blood, urine and stools, pathologically and/or biochemically; conducting of laboratory tests and assisting other staff members in their tests and experiments. The petitioner therein was held to be a workman on the basis of duties enumerated in the petition after examining the concept of 'artisan' and the word. 'art'. It was pointed out therein that the word 'art' is defined in the Black's Law Dictionary, 6th Edition to mean systematic application of knowledge or skill in effecting a desired result; also an employment, occupation or business requiring such knowledge or skill; a craft as industrial art. It was thus held therein that the word 'art' is not limited to example given in the Dictionary, but if one is doing some skilled work and is required to use that skill in the duties which he performs he will be an artisan. We are in respectful agreement with the conclusion arrived at in the said judgment in so far as the concept of 'workman/artisan' is concerned.
6. We shall, therefore, now examine the duties which are performed by the petitioner in the case under consideration in order to determine whether he could be considered to be a workman/artisan within the meaning of F.R. 56(b) as explained in the Note. The petitioner is admittedly working in the National Eradication Malaria Programme wherein for the implementation of the said Programme the petitioner is required to collect blood smears for the purpose of carrying out tests for detection of malaria, fever cases, all sugar cases and examine the same microscopically. This duty no doubt would require skill and the petitioner can certainly be treated as skilled artisan/workman within the meaning of F.R. 56(b).
7. The next question which requires to be determined is whether the Directorate of Health Services with reference to the duties performed by the petitioner in the National Eradication Malaria Programme can be said to be an industrial or work-charged establishment.
8. Learned Government Advocate Shri Thaly has strenuously argued before us, after placing reliance upon the judgments of the Apex Court in State of Orissa v. Adwait Charan Mohanty (supra) and State of Orissa v. Sadhu Charan Pradhan (supra) that the Directorate of Health Services cannot be held to be either an industrial or work charged establishment and the definition of 'industry' as contained in section 2(j) of the Industrial Disputes Act cannot be imported in F.R, 56 to hold that it is an industrial or work-charged establishment. It is no doubt true that in Bangalore Water Supply v. A. Rajappa (supra) the Apex Court has considered the definition of 'industry' as defined in section 2(j) of the Industrial Disputes Act and has laid down that the said definition has a wide import. But what is material is that the said definition as contained in section 2(j) has been applied while determining the controversy in question before the Apex Court. In fact, the Apex Court in para 89 of the said judgment has approved the decision in Corporation of Nagpur (supra) and has observed that the Health Department of the Municipality too is held in this case to be an industry and has quoted the following observations from Corporation of Nagpur (supra) from page 687:--
"This department looks after scavenging, sanitation, control of epidemics, control of food adulteration and running of public dispensaries. Private institutions can also render these services. It is said that the control of food adulteration and the control of epidemics cannot be done by private individuals and institutions. We do not see why. There can be private medical units to help in the control of epidemics for remuneration. Individuals may get the food articles purchased by them examined by the medical unit and take necessary action against guilty merchants. So too, they can take advantage of such a unit to prevent epidemics by having necessary inoculations and advice. This department also satisfies the other tests laid down by us, and is an industry within the meaning of the definition "industry" in the Act."
Applying the said test, a workman working in the National Eradication Malaria Programme as Laboratory Assistant/Technician who is required to collect blood samples and analyse the same which thus require skill, we have no hesitation in coming to the conclusion that the Directorate of Health at least vis-a-vis the petitioner who is working in National Eradication Malaria Programme would be workman in an industrial establishment of the Government. The two rulings upon which strong reliance has been placed by learned Government Advocate have been considered in detail by a Bench of this Court in Writ Petition No. 388/93 and other writ petitions to which one of us (Batta, J.) is a party. It has been pointed out in the said judgment that F.R. 56(b) recognizes a class of Government servants who are working in the industrial or work-charged establishment of the Government. The two cases upon which heavy reliance has been placed by learned Government Advocate did not in fact deal with the cases falling under industrial or work-charged establishment but in those cases the employees were working in the Government establishment which is distinct from industrial or work-charged establishment of the Government. Detailed reasons have been given in the said judgment in this respect and it is not necessary to repeat the same in this judgment since, in our view, the case of the petitioner would be squarely covered by the two judgments of this Court in Writ Petition No. 217/94 and Writ Petition No. 388/93 and other writ petitions. It can by no stretch of imagination be said that any sovereign functions are being performed while implementing National Eradication Marala Programme and such programmes can also be entrusted to private bodies in case it is necessary. The law laid down by the Apex Court in Bangalore Water Supply v. A. Rajappppa (supra) is squarely applicable to the facts and circumstances of the case under consideration.
9. For the aforesaid reasons, we are of the view that the petitioner is a workman/skilled artisan in the industrial establishment of the Government namely Directorate of Health Services at least in connection with the National Eradication Malaria Programme. The petitioner would thus be entitled to continue in service upto the age of 60 years in terms of F.R. 56(b) as explained by Note thereunder.
The petition is accordingly allowed and the Rule is made absolute in terms of prayer Clause (b). In the facts and circumstances we shall leave the parties to bear their costs.
10. Petition allowed.