Raysingbhai Nathabhai Mariwad vs State Of Gujarat

     C/SCA/476/2021                              JUDGMENT DATED: 30/01/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 476 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                                    Sd/-

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1    Whether Reporters of Local Papers may be allowed                  NO
     to see the judgment ?

2    To be referred to the Reporter or not ?                           NO

3    Whether their Lordships wish to see the fair copy                 NO
     of the judgment ?

4    Whether this case involves a substantial question                 NO
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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               RAYSINGBHAI NATHABHAI MARIWAD & 3 other(s)
                                Versus
                     STATE OF GUJARAT & 3 other(s)
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Appearance:
MR MURALI N DEVNANI(1863) for the Petitioner(s) No. 1,2,3,4
MR JAY MEHTA, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                             Date : 30/01/2023

                            ORAL JUDGMENT

1. RULE returnable forthwith. Learned AGP waives service of notice of rule for and on behalf of the respondents - State.

C/SCA/476/2021 JUDGMENT DATED: 30/01/2023

2. This petition under Article 226 of the Constitution of India is filed for the following reliefs :

"(A) Your Lordships may be pleased to admit the petition.

(B) Your Lordships may be pleased to allow the petition by issuing a writ of mandamus or any other appropriate writ, direction and/or order in the nature of mandamus directing the respondents to release the benefits of 300 days unavailed leave encashment in favour of the petitioners as envisaged in the Government Resolution dated 17.10.1988 with 12% interest per annum.

(C) Pending the present petition, Your Lordships may be pleased to direct the respondent authorities to grant the benefits flowing from the Government Resolution dated 17.10.1988 forthwith subject to the outcome of the present proceedings."

3. It is the case of the petitioners that they had been working as Daily Wagers since more than three decades and have now retired upon attaining the age of superannuation. The claim of the petitioners is to grant all the benefits arising out of the Government Resolution dated 17th October 1988.

4. Pursuant to the notice issued by this Court, learned AGP has drawn attention of this Court to a very recent Government Resolution dated 24th January 2023 and a Circular dated 7 th October 2022 in connection with the aforesaid issues.

C/SCA/476/2021 JUDGMENT DATED: 30/01/2023

5. Vide Government Resolution dated 24th January 2023, the Government has resolved as under :

"At the end of active deliberations, subject to the following conditions, it is hereby prescribed to pay gratuity to daily wagers working in offices under various departments of the State within the maximum limit of 33 (thirty-three) years as per Resolution dated 21.10.2020 of this Department :

(1) The concerned Department will have to check the eligibility of daily wagers as per the Payment of Gratuity Act, 1972 of the Government of India.

(2) This order of this Department will also apply to cases of retired/deceased daily wagers/work charge employees of establishment (expenditure) after issuance of this resolution dated 24.03.2006 (3) The concerned Department will have to pay gratuity of services before getting permanent by verifying the eligibility of daily wagers/work charge employees of establishment (expenditure) as per resolution dated 21.10.2020 of this Department. Whereas, the payment of gratuity for pensionable services after becoming permanent will be made by the Director, Pension & Provident Fund Office. The Department will ensure that gratuity is paid within the limit of 33 years combining both services together & no double payment is made.

C/SCA/476/2021 JUDGMENT DATED: 30/01/2023 (4) Before the issuance of this order, cases of payment made to daily wagers/work charge employees of establishment (expenditure) under Resolution dated 21.10.2020 of this Department will not be revived."

6. In case of leave encashment, vide Circular dated 7 th October 2022 the Government has also taken a policy decision which would reflect as under :

"According to the decision of the Supreme Court, since the retiral benefits given to the daily wagers under the resolution dated 17.10.1988 also includes the benefit of leave encashment, therefore the daily wagers are entitled to the benefit of leave encashment as per Clause (5) of the State Litigation Policy of the Government. The instructions in this regard are circulated after consultation and as per the approval received through the informal note dated 3.10.2022 of the Finance Department.

With regard to the various claims filed before the Hon'ble Court, after verifying the service record of the petitioners - daily wagers and after calculating as per rules and the policy of the Government applicable to the regular services, the benefit of encashment of earned leaves (within the maximum limit of 300 earned leaves) shall be paid in the following terms :

(1) The petitioners - daily wagers who have retired and completed 70 years as on 1.10.2022 shall be paid latest by 31.10.2022.

C/SCA/476/2021 JUDGMENT DATED: 30/01/2023 (2) Rest of the petitioners - daily wagers shall be paid within a period of three months, i.e. on or before 31.12.2022."

7. Learned AGP has also placed on record a proposal which is already forwarded by the Deputy Executive Engineer to the Executive Engineer along with all the necessary documents. The same is ordered to be taken on record.

8. In view of the aforesaid position, the Court deems it appropriate to direct the respondents to undertake scrutiny of individual cases of each of the petitioners herein, and upon such scrutiny if they are found to be entitled, then the State authorities shall consider proposal of each of such petitioners expeditiously and in consonance with the State policy.

9. In the aforesaid view of the matter, the petition stands disposed of with a direction that the proposal forwarded by the Deputy Executive Engineer to the Executive Engineer be processed in accordance with law within a period of eight weeks from today.

10. Rule made absolute to the aforesaid extent. Direct service is permitted.

(A.Y. KOGJE, J.) /MOINUDDIN Page 5 of 5 Downloaded on : Mon Feb 06 20:31:06 IST 2023