NEUTRAL CITATION
C/SCA/13546/2023 ORDER DATED: 08/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13546 of 2023
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RAMESHBHAI NATWARLAL SHUKLA
Versus
STATE OF GUJARAT
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Appearance:
MR. VISHAL P THAKKER(7079) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
MS POOJA ASHAR, LD.ASSTT. GOVERNMENT PLEADER for the
Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 08/08/2023
ORAL ORDER
1. This petition is filed with the following prayers:
"15. In the above circumstances of the case, the petitioner prays that:
A. YOUR LORDSHIPS be pleased to issue an order, writ in the nature of mandamus and / or certiorari or any other appropriate writ / order or direction to the respondent authorities to grant the petitioner the benefits of govt resolution dtd.17.10.1988 (Annexure-B) from the actual date of entitlement, and pay the unpaid arrears to the petitioner along with interest @ 18% p.a and further pay the Page 1 of 12 Downloaded on : Sun Sep 17 00:43:34 IST 2023 NEUTRAL CITATION C/SCA/13546/2023 ORDER DATED: 08/08/2023 undefined benefits and arrears of Seventh Pay Commission with effect from effective date of the Pay Commission and recalculate the Pension and other retiral benefits accordingly;
B. YOUR LORDSHIPS be pleased to direct the respondent to pay the amount of leave encashment to the extent of 300 days (unavailed privilege leave) to the petitioner on the occasion of his retirement;
C. YOUR LORDSHIPS be pleased to direct the respondent authorities to extend the petitioner, the following benefits as contained in Government Resolution dated 17.10.1988 - (i) Transport Allowance, (ii) Travelling Allowance; (iii) Transfer Travelling Allowance; (iv) Leave Encashment, and
(v) Leave Travel Concession;
D. YOUR LORDSHIPS be pleased to declare the inaction of the respondent authorities in merging 50% of Dearness Allowance in the basic salary of the petitioner from 01.04.2004, as has been done in the case of the other daily-wagers working with the respondent by Government Resolution dated 08.10.2007 and pay them consequential arrears with Page 2 of 12 Downloaded on : Sun Sep 17 00:43:34 IST 2023 NEUTRAL CITATION C/SCA/13546/2023 ORDER DATED: 08/08/2023 undefined interest at the rate of 12% per annum, as being bad in law, illegal, discriminatory, arbitrary;
E. YOUR LORDSHIPS be pleased to issue an order, writ in the nature of mandamus and / or certiorari or any other appropriate writ / order or direction to the respondent authorities to pay the difference of arrears of salary to the petitioner, to which he is entitled to as per the govt resolution dtd. 17.10.1988, in the interest of justice and equity, pending admission, hearing and final disposal of this petition;
F. Pending admission, hearing and final disposal of the present petition, YOUR LORDSHIPS be pleased to direct the respondents to extend the benefits of 7th Pay Commission and merger of 50 % of Dearness Allowance in the basic salary in light of order of this Hon'ble Court in LPA No.326 of 2018 and further re fix the pension and other retiral benefits of the petitioner accordingly as available to regular employees as per the findings of this Hon'ble Court in the case of Executive Engineer Panchayat (Ma & M) vs. Samudabhai Jyotibhai Bhedi (i.e from the initial date of joining of services as a daily wager), Page 3 of 12 Downloaded on : Sun Sep 17 00:43:34 IST 2023 NEUTRAL CITATION C/SCA/13546/2023 ORDER DATED: 08/08/2023 undefined in the interest of justice;
G. YOUR LORDSHIPS be pleased to grant such other and further relief's as deemed fit in the interest of Justice;"
2. Facts, referred in the petition, are as under:
The petitioner joined the services as Daily Wager on 21.09.1980. The petitioner was thereafter granted benefits of Government Resolution dated 17.10.1988 by an order dated 24.03.2006. It is case of the petitioner that as he was entitled for the said benefits from 21.09.1990 (i.e. upon completion of 10 years of service from the date of joining), the respondent ought to have granted the said benefits from the year 1990. As the said benefits were not granted, the present petition is filed.
3. Heard learned advocate Mr.Vishal Thakker for the petitioner. He submitted that it is evident from the Pension Payment Order, that the petitioner joined the service of the respondent department on 21.09.1980 and retired upon attaining the age of superannuation on 31.07.2013 and thus, completed 32 years, 10 months and 10 days service. Accordingly, the petitioner was entitled for benefits of Government Resolution dated 17.10.1988 upon completion of Page 4 of 12 Downloaded on : Sun Sep 17 00:43:34 IST 2023 NEUTRAL CITATION C/SCA/13546/2023 ORDER DATED: 08/08/2023 undefined his 10 years of service on 21.09.1990. Since the said benefits were granted w.e.f. 24.03.2006, respondent may be directed to consider the case and accordingly to grant the said benefits from 21.09.1990. Learned Advocate for the petitioner submitted that the benefits for which the petitioner is entitled are referred in the prayer clause. On the aspect of delay, learned advocate submitted that the pension being continuous cause of action, delay occasioned in preferring the petition may have to be ignored. In relation to 7th Pay Commission, he submitted that the petitioner was granted 6 th Pay Commission benefits w.e.f. 01.01.2016 and consequently, he is entitled for 7 th Pay Commission benefits from the date mentioned in the Government Resolution dated 16.08.2016. He therefore submitted that direction may be issued to the respondent to grant the benefits, as prayed for.
4. On the other hand, learned AGP Ms.Pooja Ashar for respondent- State, in relation to grant of benefits under Government Resolution dated 17.10.1988 (upon completion of 10 years of service), submitted that admittedly the petitioner was granted benefits under Government Resolution dated 17.10.1988 on 24.03.2006. The benefits which are sought by the petitioners are other than 300 days leave encashment, payment of gratuity and pension. The petitioner accepted the other benefits and he having acquiesced of receiving benefits, Page 5 of 12 Downloaded on : Sun Sep 17 00:43:34 IST 2023 NEUTRAL CITATION C/SCA/13546/2023 ORDER DATED: 08/08/2023 undefined which have been granted from that particular date, has preferred this petition in the year 2023, which suffers from delay and latches. Referring to the memo of petition, she submitted that no justification is provided for delay. Further, there is nothing on record to justify that the petitioner was diligently pursing the cause for payment of benefits under Government Resolution dated 17.10.1988 and for grant of 7 th Pay Commission benefits as per Government Resolution dated 16.08.2016. She fairly submitted that the case of the petitioner may be considered for grant of 7th Pay Commission since from year 2016 the petitioner was granted 6th Pay Commission.
In support of her submissions, she has relied upon the decision of Hon'ble Supreme Court in the case of S.S.Balu & Anr. Vs. State of Kerala & Ors. reported in AIR 2009 SC 1994 as well as in the case of Prabhakar Vs. Joint Director, Sericulture Department and another reported in (2015)15 SCC 1 and submitted that this petition suffers from delay and latches and therefore, the same may be dismissed.
5. Considered the submissions. Admittedly, the petitioner joined the service on 21.09.1980 and retired upon attaining the age of superannuation on 31.07.2013. It is true that the petitioner had completed 32 years, 10 months and 10 days service. It is not in dispute that the petitioner was granted benefits under Government Resolution dated 17.10.1988 in the Page 6 of 12 Downloaded on : Sun Sep 17 00:43:34 IST 2023 NEUTRAL CITATION C/SCA/13546/2023 ORDER DATED: 08/08/2023 undefined year 2006. Despite that, the petitioner preferred this petition in the year 2023. Admittedly the benefits claimed are other than 300 days leave encashment, gratuity and pension by counting their entire length of service. There is nothing on record to suggest that the petitioner was diligently perusing the cause. Moreover, the petitioner was appointed in the year 1980, i.e prior to 17.10.1988 benefits and therefore he was aware of the benefits flowing from G.R dated 17.10.1988. Having acquiesced to the fact of grant of benefits from one particular date and having accepted the said position and thereafter to file this petition after a delay of more than 17 years, in the opinion of this Court, suffers from delay and latches.
6. The Hon'ble Supreme Court in the case of S.S.Balu & Anr. Vs. State of Kerala & Ors. reported in AIR 2009 SC 1994, has held as under:
"18. It is also well settled principle of law that "delay defeats equity". Government Order was issued on 15.1.2002. Appellants did not file any writ application questioning the legality and validity thereof. Only after the writ petitions filed by others were allowed and State of Kerala preferred an appeal there against, they impleaded themselves as party respondents. It is now a trite law that where Page 7 of 12 Downloaded on : Sun Sep 17 00:43:34 IST 2023 NEUTRAL CITATION C/SCA/13546/2023 ORDER DATED: 08/08/2023 undefined the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment. It is, thus, not possible for us to issue any direction to the State of Kerala or the Commission to appoint the appellants at this stage.
7. So far as acquiescence is concerned, the Hon'ble Supreme Court in the case of Prabhakar Vs. Joint Director, Sericulture Department and another reported in (2015)15 SCC 1, has held as under:
"37. Let us examine the matter from another aspect, viz. laches and delays and acquiescence.
38. It is now a well-recognised principle of jurisprudence that a right not exercised for a long time is non-existent. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases Courts have coined the doctrine of laches and delays as well as doctrine of acquiescence and non-suited the litigants Page 8 of 12 Downloaded on : Sun Sep 17 00:43:34 IST 2023 NEUTRAL CITATION C/SCA/13546/2023 ORDER DATED: 08/08/2023 undefined who approached the Court belatedly without any justifiable explanation for bringing the action after unreasonable delay. Doctrine of laches is in fact an application of maxim of equity "delay defeats equities".
39. This principle is applied in those cases where discretionary orders of the Court are claimed, such as specific performance, permanent or temporary injunction, appointment of receiver etc. These principles are also applied in the writ petitions filed under Articles 32 and 226 of Constitution of India. In such cases, Courts can still refuse relief where the delay on the petitioner's part has prejudiced the respondent even though the petitioner might have come to Court within the period prescribed by the Limitation Act.
40. Likewise, if a party having a right stand by and sees another acting in a manner inconsistent with that right and makes no objection while the act is in progress he cannot afterwards complain. This principle is based on the doctrine of acquiescence implying that in such a case party Page 9 of 12 Downloaded on : Sun Sep 17 00:43:34 IST 2023 NEUTRAL CITATION C/SCA/13546/2023 ORDER DATED: 08/08/2023 undefined who did not make any objection acquiesced into the alleged wrongful act of the other party and, therefore, has no right to complain against that alleged wrong.
41. xxx xxx xxx
42. xxx xxx xxx
42.1 to 42.4 xxx xxx xxx
42.5 Take another example. A workman approaches the civil court by filing a suit against his termination which was pending for number of years and was ultimately dismissed on the ground that Civil Court did not have jurisdiction to enforce the contract of personal service and does not grant any reinstatement. At that stage, when the suit is dismissed or he withdraws that suit and then involves the machinery under the Act, it can lead to the conclusion that dispute is still alive as the workman had not accepted the termination but was agitating the same; albeit in a wrong forum.
42.6 In contrast, in those cases where there was no agitation by the workman against his termination Page 10 of 12 Downloaded on : Sun Sep 17 00:43:34 IST 2023 NEUTRAL CITATION C/SCA/13546/2023 ORDER DATED: 08/08/2023 undefined and the dispute is raised belatedly and the delay or latches remain unexplained, it would be presumed that he had waived his right or acquiesced into the act of termination and, therefore, at the time when the dispute is raised it had become stale and was not an 'existing dispute'. In such circumstances, the appropriate Government can refuse to make reference. In the alternative, the Labour Court/ Industrial Court can also hold that there is no "industrial dispute" within the meaning of Section 2(k) of the Act and, therefore, no relief can be granted."
8. In view of the above decisions, the petitioner is not entitled for the benefits as prayed for under Government Resolution dated 17.10.1988, from the year 1990 (upon completion of 10 years of service) other than 300 days leave encashment, gratuity and pension. Therefore, if the petitioner is not granted the benefits of 300 days leave encashment, gratuity and pension as per Government Resolution dated 17.10.1988, the same shall be considered by the respondents. After due verification if the petitioner is found eligible for the benefit of 300 days leave encashment, gratuity and pension the same shall be paid to him. In relation to benefits of 7 th Pay Commission, since upon verification it is found that the Page 11 of 12 Downloaded on : Sun Sep 17 00:43:34 IST 2023 NEUTRAL CITATION C/SCA/13546/2023 ORDER DATED: 08/08/2023 undefined petitioner was granted benefits of 6th Pay Commission w.e.f. 01.01.2006, his case shall be considered for 7th pay commission benefits. Therefore, respondents are directed to consider the case of petitioner for grant of 7th Pay Commission as per Government Resolution dated 17.03.2022. For other benefits the petitioner is not entitled for the reasons stated above.
9. In view of above, the case of the petitioner is directed to be considered for grant of benefits of G.R. dated 17.10. 1988, for 300 days leave encashment, payment of gratuity, pension and 7th pay commission benefits.
10. With the aforesaid directions, this petition is disposed of.
(MAUNA M. BHATT,J) DIPTI PATEL Page 12 of 12 Downloaded on : Sun Sep 17 00:43:34 IST 2023