Gujarat High Court
Ramkundiben Wd/O Hirabhai Malivad vs State Of Gujaratthrough Secretary ... on 3 February, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/60/2021 JUDGMENT DATED: 03/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 60 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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Approved for Reporting Yes No
Yes
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RAMKUNDIBEN WD/O HIRABHAI MALIVAD
Versus
STATE OF GUJARATTHROUGH SECRETARY DEPARTMENT OF
FOREST & ORS.
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Appearance:
MR JITENDRA H SINGH(3199) for the Petitioner(s) No. 1
MR. ANANTANAND J SINGH(10046) for the Petitioner(s)
No. 1
PRABHATSINH J PARMAR(7996) for the Petitioner(s) No.
1
MS KRINA CALLA ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 03/02/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Anantanand J. Singh appearing for the petitioner and learned Assistant Government Pleader Ms. Krina Calla Page 1 of 13 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:28:39 IST 2025 NEUTRAL CITATION C/SCA/60/2021 JUDGMENT DATED: 03/02/2025 undefined appearing for the respondents - State.
2. By way of this petition, the petitioner has prayed for a declaration that the petitioner is entitled for getting family pension with interest from the date on which her husband died i.e. on 19.6.2010 as per the eligibility criteria for getting pension. The petitioner has also prayed for an interest on the pensionery benefits at the rate of 18% with effect from 19.6.2010.
3. With the consent of learned advocates appearing for the respective parties, the matter was taken up for final hearing. Hence, RULE. Learned Assistant Government Pleader Ms. Krina Calla waives the service of rule on behalf of the respondents.
4. Brief facts giving rise to the present petition are stated as under :-
4.1 It is the case of the petitioner that the petitioner's husband viz. Hirabhai Malivad Page 2 of 13 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:28:39 IST 2025 NEUTRAL CITATION C/SCA/60/2021 JUDGMENT DATED: 03/02/2025 undefined was employed as daily wager Class-IV employee from the year 1990-1991 and he was in continuous service with the respondents till his death.
His last pay drawn was Rs.154.20 per day and Rs.2776/- per month and he has completed nearly 19 years of service before he died i.e. on 19.6.2010.
4.2 As the petitioner has put forward the case that her husband has completed 10 years continuous service as per the judgment of Workmen of American Express International Banking Corporation Versus Management of American Express International Banking Corporation reported in 1985 (4) SCC 71, the holidays like Saturday, Sunday and public holidays are required to be considered while counting 240 days. The petitioner's husband had completed ten years service under the respondents and therefore, he was entitled to pension and accordingly, the petitioner is entitled to family pension.
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NEUTRAL CITATION C/SCA/60/2021 JUDGMENT DATED: 03/02/2025 undefined
5. It is in respect of this fact, the entire case of the petitioner was argued by learned advocate Mr. Anantanand Singh by making following submissions :-
5.1 Learned advocate Mr. Anantanand Singh appearing for the petitioner submitted that the respondents have while pointing out that the petitioner has not completed 240 days services have not counted the Saturday, Sunday and public Holidays while calculating number of days husband of the petitioner has worked and therefore in light of the judgment of the Hon'ble Supreme Court in case of American Express International Banking Corporation (Supra), those days are required to be counted and if those holidays are added in petitioners actual working days, the petitioner has completed 240 days even prior to 2005 in every year and therefore, he is eligible to have the benefits of pension as per old scheme and that is why the petitioner is entitled to family Page 4 of 13 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:28:39 IST 2025 NEUTRAL CITATION C/SCA/60/2021 JUDGMENT DATED: 03/02/2025 undefined pension as per old scheme.
5.2 Learned advocate Mr. Anantanand Singh submitted that even otherwise, in view of Government Resolution dated 17.10.1988, the petitioner's husband has completed ten year services and therefore, as he is eligible and entitled to have pensionery benefits upon his death, the petitioner is entitled to have family pension.
6. The petition was opposed by learned Assistant Government Pleader Ms. Krina Calla appearing for the respondent - State, who tried to demonstrate from the Annexure which depicts a tabular form indicating that the petitioner has work less than 240 days in year from 1993 to 2010. In the year 1992, the petitioner has worked for 300 days and in rest of the year, the petitioner has worked for less than 240 days as per the chart. However, upon a query from the Court, learned Assistant Government Pleader Ms. Krina Calla was fair enough in stating that the aforesaid chart Page 5 of 13 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:28:39 IST 2025 NEUTRAL CITATION C/SCA/60/2021 JUDGMENT DATED: 03/02/2025 undefined does not include the Saturday, Sunday and public holidays. Learned Assistant Government Pleader Ms. Krina Calla also submitted that the issue about the applicability of American Express International Banking Corporation (Supra) is pending before the Hon'ble Supreme Court by way of SLP (Civil) No. 15286 of 2021 whereby there are about six to seven matters are tagged along however, learned Assistant Government Pleader Ms. Krina Calla could not produce any order by the Hon'ble Supreme Court or could state anything upon instructions which would indicate that the Hon'ble Supreme Court has stayed the benefits flowing from the interpretation of the judgment of the American Express International Banking Corporation (Supra).
6.1 Learned Assistant Government Pleader Ms. Krina Calla however submitted that in view of the fact that the husband of the petitioner has not completed 240 days in ten years prior to his death, the husband of the petitioner is not eligible and entitled for family pension and Page 6 of 13 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:28:39 IST 2025 NEUTRAL CITATION C/SCA/60/2021 JUDGMENT DATED: 03/02/2025 undefined accordingly, petitioner is also not entitled to family pension.
7. To counter that learned advocate Mr. Anantanand Singh submitted that an identically situated person viz. Reshamben Kalubhai Shelot, whose husband also had died after rendering more than ten years services and though his actual number of days he worked were less than 240 days by adding Saturday, Sunday and Public Holidays as he was completing 240 days in ten years preceding his death, the respondents themselves have granted benefits of pension in respect of Reshamben Kalubhai Shelot as per old pension scheme and therefore, the petitioner's case is required to be considered in light of that decision taken by the respondent themselves. Learned advocate Mr. Anantanand Singh also relied upon the decision of Division Bench of this Court in Letters Patent Appeal No. 2047 of 2004 in Special Civil Application No. 11355 of 2002 dated 29.3.2016 in case of Surendranagar Page 7 of 13 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:28:39 IST 2025 NEUTRAL CITATION C/SCA/60/2021 JUDGMENT DATED: 03/02/2025 undefined District Panchayat and others Versus Umarkhan Alikhan Malek and others and by relying upon paragraph Nos. 7 and 8 of the aforesaid decision, he submitted that the petitioner is also entitled to the benefits of family pension as the petitioner's husband had completed ten years of services and he was entitled to pensionery benefits.
8. I have heard learned advocates appearing for the respective parties and perused the record. Along with affidavit-in-reply, the respondents have produced a chart at page No.50, the chart indicates that in the year 1992 husband of the petitioner has worked for 300 days and from 1993 till 2009, the petitioner has worked for more than 200 days except in the year 2000 where the petitioner's husband worked for 190 days. In the year 2010, the husband of the petitioner who died on 19.6.2010 had worked for 18 days but that is not of much relevance for the reason that the petitioner's entire claim is based on the fact that the petitioner has, for ten Page 8 of 13 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:28:39 IST 2025 NEUTRAL CITATION C/SCA/60/2021 JUDGMENT DATED: 03/02/2025 undefined continuous years, served for more than 240 days, in view of decision of American Express International Banking Corporation (Supra) by counting the Saturday, Sunday and other public holidays as if the petitioner has worked. 8.1 As the chart indicating the petitioner's number of days work does not indicate that whether the respondents have considered Saturday, Sunday and public Holidays or not, pursuant to a query learned Assistant Government Pleader Ms. Krina Calla, submitted that in the above calculation only actual number of working days are included and not total number of days including Saturday, Sunday and public Holidays are considered while preparing the above chart.
8.2 If on the basis of chart produced by the respondents even fifty Sundays are added, then the husband of the petitioner has worked for more than 240 days as the least number of days the husband of the petitioner has worked is Page 9 of 13 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:28:39 IST 2025 NEUTRAL CITATION C/SCA/60/2021 JUDGMENT DATED: 03/02/2025 undefined 190 in the year 2000.
8.3 In view of that now the decision of the Division Bench of this Court is required to be considered. In case of Surendranagar District Panchayat (Supra), the Division Bench of this Court has observed as under in paragraph Nos.7 and 8:-
"7. Having heard learned advocates appearing for the parties and perusal of the record and the order under challenge, we find no error on law much less on facts appears in the judgement under challenge. Learned Single Judge having adverted to nature of right of an employee to receive pension upon completion of 10 years of continuous service in the context of definition of Section 25B of I.D.Act, 1947 read with Government Resolution dated 17.10.1988 of State of Gujarat, and relying on decisions of the Apex Court for the expression 'actually worked under the employer' would mean number of days namely, Sundays and other paid holidays on which the workman had actually performed the duties. By applying the above parameter in the light of decision of the Apex Court in Workmen of American Express International Banking Corporation vs. Management of American Express International Banking Corporation and even as appeared from the record of the case namely, certificate issued by Dy. Executive Engineer, Panchayat Department, Road and Building Patadi at Annexure J to the petition reveal that in the year 1981, 1984 to 1991 for all these 9 years workman Page 10 of 13 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:28:39 IST 2025 NEUTRAL CITATION C/SCA/60/2021 JUDGMENT DATED: 03/02/2025 undefined had completed more than 240 days and in the year 1983 workman-petitioner had actually worked even as per the above certificate for 235 days, in which, public and paid holidays are included would exceed 240 days and thus continuous service for 10 years of the petitioner surfaces on record. Likewise, in the year 1982 actual days of working are 198 days and upon inclusion of Sundays and paid holidays on which, the petitioner-workman had performed the duties would be more than 240 days. So on facts and on law as a whole the case of the petitioner is squarely covered and there is not an iota of doubt of completion of 10 years of continuous service by the workman having served for 240 days in a year during such period, we find no error in the judgement under challenge passed by the learned Single Judge.
8. Since the subject petition is pertaining to entitlement of pension to be released in favour of the original petitioner (now deceased) so as the wife of the deceased employee who was brought on record as respondent No.1/1 also died during pendency of this appeal remaining legal heirs respondent Nos. 1/2, 1/3, 1/4 and 1/5 shall be entitled to receive the pension as ordered by learned Single Judge. The amount of pension as ordered by learned Single Judge shall be released within eight weeks from the date of receipt of order/writ of this Court."
9. In view of above observations made by the Division Bench of this Court as the petitioner's husband has completed 240 days service in ten Page 11 of 13 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:28:39 IST 2025 NEUTRAL CITATION C/SCA/60/2021 JUDGMENT DATED: 03/02/2025 undefined years prior to his death, the petitioner's husband can be said to be entitled to have the pensionery benefits. When the petitioner's husband is entitled to have the benefits of pension, more particularly, when he has been paid the amount under the Payment of Gratuity Act as well by considering his services of 16 years, there cannot be any hesitation in holding that the petitioner is also entitled to family pension from the date on which her husband died. Accordingly, the present petition is allowed. Respondents are directed to calculate the amount of family pension of the present petitioner from the date on which her husband died i.e. on 19.6.2010 and to pay the same to the petitioner as per his eligibility within a period of three months from date of receipt of this order. However, as against the death of husband of the present petitioner in the year 2010, since the petition is preferred in the year 2021, I don't deem it appropriate to award any interest on the said amount. The respondent shall calculate the Page 12 of 13 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:28:39 IST 2025 NEUTRAL CITATION C/SCA/60/2021 JUDGMENT DATED: 03/02/2025 undefined amount as per the eligibility of the husband of the petitioner and by taking into consideration the facts in respect of similarly situated person viz. Reshamben Kalubhai Shelot. Rule is made absolute. No order as to costs.
(NIRZAR S. DESAI,J) Pallavi Page 13 of 13 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:28:39 IST 2025