Gujarat High Court
Savshibhai Jivabhai Chauhan vs State Of Gujarat on 28 November, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/19985/2023 ORDER DATED: 28/11/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19985 of 2023
========================================================
SAVSHIBHAI JIVABHAI CHAUHAN
Versus
STATE OF GUJARAT
========================================================
Appearance:
MR TEJAS SHUKLA FOR MR P C CHAUDHARI(5770) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4,5
MR ADITYA PATHAK ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
========================================================
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 28/11/2023
ORAL ORDER
1. Rule returnable forthwith. Learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondent - State.
2. This petition under Article 226 of the Constitution of India is filed with the following prayers: -
"10. (A) Your Lordship be pleased to issue writ of mandamus, or writ of certiorari or any other appropriate writ, order or directions, directing that inaction on the part of the respondents in not paying the benefits of Leave Encashment as well as Gratuity is illegal, improper, arbitrary and contrary to the own Circular of the State.
(B) Your Lordships be pleased to issue writ of mandamus, or writ of certiorari or any other appropriate writ, order or directions, directing the respondents to immediately grant and confer the Page 1 of 5 Downloaded on : Thu Nov 30 20:39:37 IST 2023 NEUTRAL CITATION C/SCA/19985/2023 ORDER DATED: 28/11/2023 undefined benefits of Leave Encashment as well as Gratuity as per the Circular issued by the State Government dated 07.10.2022 and 24.01.2023.
(C) Pending admission, hearing and final disposal of this petition, Your Lordships be pleased to direct the respondents to release the benefits of Leave Encashment and Gratuity without prejudice to the rights and contentions of the respective parties.
(D) Your Lordships be pleased to grant such other and further relief as may be deemed fit in the interest of justice.
3. Heard learned Advocate Mr. Tejas Sukla for learned Advocate Mr. P.C. Chaudhary for the petitioners and learned Assistant Government Pleader Mr. Aditya Pathak for the respondent - State.
4. Learned Advocate for the petitioners submitted that the issue in the present petition pertains to grant of benefit of 300 days unavailed earned leave and not calculating the retirement benefits of the petitioner from the date of appointment. The prayers in relation to other benefits, if any, referred in this petition, is not pressed at this stage.
4.1 He further pointed out that the issue involved in the present petition which is in relation to payment of leave encashment for 300 days leave as also counting the retirement benefits available to the petitioner from the date of appointment, is no more res integra in view of decision of Hon'ble Supreme Court dated 01.09.2022, in Special Leave Petition (C) No. 7229 of 2022. Learned Advocate for the petitioner submitted that present petitioner was working with the respondent - department with more than 3 decades and had retired upon attaining the age of superannuation and therefore considering continuous service, the petitioner is entitled for the benefits of Page 2 of 5 Downloaded on : Thu Nov 30 20:39:37 IST 2023 NEUTRAL CITATION C/SCA/19985/2023 ORDER DATED: 28/11/2023 undefined leave encashment as well as pension and gratuity.
4.2. Learned Advocate pointed that by Government Resolution dated 21.10.2022, of Irrigation Department, Gandhinagar had issued directives for implementation of the decision of the Hon'ble Supreme Court in Special Leave Petition (C) No.7229 of 2022.
4.3. She pointed out that in the Government Resolution dated 24.01.2023, of Road and Building Department, Sachivalaya, Gandhingar which has been adopted by the Irrigation Department, wherein it has resolved as under:
"At the end of active deliberations, subject to the following conditions, it is hereby prescribed to pay gratuity to the daily wagers working in offices under various departments of the State within the maximum limit of 33 (thirty-three) years as per the Resolution dated 21.10.2020 of this Department:
(1) The concerned Department will have to check the eligibility of the daily wagers as per the Payment of Gratuity Act, 1972, of the Government of India.
(2) The order of this Department will also apply to the cases of retired/deceased daily wagers/work-charge employees after issuance of the resolution dated 24.03.2006 of this Department.
(3) The concerned Department will have to pay gratuity to the daily wagers/ work-charge employees, for the services rendered before becoming permanent, upon verifying their eligibility as per the resolution dated 21.10.2020 of this Department. Whereas, the payment of gratuity for the pensionable services after becoming permanent will be made by the Director, Pension & Provident Fund Office. The Department will ensure that the gratuity is paid within the maximum limit of 33 years by counting both the services together and in any case no double payment is made.Page 3 of 5 Downloaded on : Thu Nov 30 20:39:37 IST 2023
NEUTRAL CITATION C/SCA/19985/2023 ORDER DATED: 28/11/2023 undefined (4) The payments made to the daily wagers/work-charge employees under the Resolution dated 21.10.2020 of this Department before issuance of this order will not be reopened."
5. In relation to leave encashment vide Government Resolution dated 21.10.2022, issued by Irrigation Department, Government has also taken a policy decision which reads as under: -
"According to the judgment of the Hon'ble Supreme Court referred in No. (1) above, since the Resolution of the Roads and Buildings Department dated 17- 10-1988 also provides that the retirement benefits granted to daily workers include the benefit of "encashment of leave" also, as per the clause (5) of the State Litigation Policy of the State Government, daily wages workers are entitled to the benefit of conversion of leave into cash, the instructions in this regard regarding the payment of leave encashment to the daily wages worker petitioner under this section, instructions are hereby circulated as per the approval received vide informal note dated 17/10/2022 of the Finance Department on the equal numbered files as follows.
With reference to various claims filed before the Hon'ble Court, the petitioner daily wagers shall be paid the encashment of accrued leave (within the maximum limit of 300 leave accumulated) in cash as is being paid for regular services as per the policy of the Government, by calculating leave as per the rules on the basis of the service record of the daily workers.
(1) Payment in case of retired petitioners who have completed 70 years of age as on 01/10/2022, shall be made by 31/10/2022, (2) Payment to the remaining retired petitioner daily workers will be within three months i.e. by 31/12/2022."
6. The above factual position could not be controverted by learned Assistant Government Pleader for the respondent - State.
Page 4 of 5 Downloaded on : Thu Nov 30 20:39:37 IST 2023 NEUTRAL CITATION C/SCA/19985/2023 ORDER DATED: 28/11/2023 undefined
7. It is also not in dispute that for counting entire length of service for payment of gratuity and leave encashment benefits, the decision of this Court in case of Executive Engineer, Panchayat (Maa & M) Department vs. Samudabhai Jyotibhai Bhedi reported in 2017 (4) GLR 2952 would be applicable.
8. In view of the above said position, this Court deems it appropriate to direct the respondents to undertake scrutiny of case of the petitioner herein, and upon such scrutiny, if the petitioner is found eligible then a proposal for considering the case of the petitioner for payment of gratuity from the actual appointment as well as for payment of leave encashment shall be forwarded to the State Authorities in this regard and thereafter, the State Authority shall consider proposal of the petitioner herein expeditiously and in consonance with the State policy.
9. It is reported that in many of such matters, the concerned department has already moved a proposal to the State Government in this regard. However, wherever such proposal is not moved, the same shall be moved by the concerned department within a period of eight weeks from the date of receipt of copy of writ of this order.
10. The aforesaid exercise shall be completed within a period of twelve weeks from today.
11. With the aforesaid, the petition stands disposed of. Rule made absolute to the aforesaid extent. Direct service is permitted.
(NIKHIL S. KARIEL,J) NIRU Page 5 of 5 Downloaded on : Thu Nov 30 20:39:37 IST 2023