Gujarat High Court
Abdulbhai Rasulbhai Niyatar vs State Of Gujarat on 3 January, 2025
NEUTRAL CITATION
C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16748 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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Approved for Reporting Yes No
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ABDULBHAI RASULBHAI NIYATAR & ANR.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR ND SONGARA(2198) for the Petitioner(s) No. 1,2
MS HETAL PATEL, AGP for the Respondent(s) No. 1,2
MR HS MUNSHAW(495) for the Respondent(s) No. 3,4
MR TEJAS P SATTA(3149) for the Respondent(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 03/01/2025
ORAL JUDGMENT
1. Heard Mr. N. D. Songara, learned advocate for the petitioners nos.1 and 2, Mr. Hetal Patel, learned AGP for respondents nos.1 and 2, Mr. H. S. Munshaw, learned advocate for respondents nos.3 and 4, Mr. Kiran Udasi, learned advocate appearing on behalf of Mr.Tajas Satta, learned advocate for respondent no.5. Page 1 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jan 30 2025 Downloaded on : Fri Jan 31 21:50:52 IST 2025
NEUTRAL CITATION C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025 undefined
2. The present petition is preferred by praying the following reliefs:
"22(A) Your Lordships may kindly be pleased to allow this petition.
22(B)Your Lordships may kindly be pleased to issue a Writ of Mandamus and or/any other writ, order or direction, directing the respondents to quash and set aside the communications dated 24.04.2013, 03.05.2013 and 04.12.2018 at annexure J, K and N respectively to this petition.
22(C) Your Lordships may kindly be pleased to issue a Writ of Mandmus and or/any other writ, order or direction, directing the respondents to pay the retirement dues, pensionary benefits to the petitioners calculating on the basis of as per the Sixth Pay Commission, along with interest @ 18% per annum. 22(D) Pending hearing and final disposal of this petition, Your Lordships may kindly be pleased to direct the respondents to pay the retirement dues, pensionary benefits to the petitioners calculating on the basis of as as per the Sixth Pay Commission, along with interest @ 18% per annum.
22(E)Any other and further relief may kindly be granted as Your Lordships deemed fit, just and proper in the interest of justice."
3. The brief facts of the present matter are as follows:
3.1. The petitioners nos.1 and 2 (herein after referred to as "the petitioners" for short) were appointed as drivers by Page 2 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jan 30 2025 Downloaded on : Fri Jan 31 21:50:52 IST 2025 NEUTRAL CITATION C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025 undefined respondent no.5, Chuda Nagar Panchayat (herein after referred to as "the respondent Nagar Panchayat" for short) on 28/01/1985 and 01/05/1986 respectively. It was the case of the petitioners that they were performing their duties on permanent vacant posts and the respondents were not extending benefits of permanent employees to the petitioners.
In wake of such dispute, the petitioners raised an industrial dispute which was registered before the Labour Court, Surendranagar (herein after referred to as the "labour court"
for short) being reference (LCD) No.10 of 1992. Prayer made in the reference was with regard to regularization in service. After conclusion of hearing of the dispute, the labour court was pleased to pass an award dated 29/11/1994 whereby the respondent Nagar Panchyat was directed to make petitioners permanent employees with effect from 01/01/1993 and pay all the benefits of permanent employees along with all consequential benefits from 01/01/1993. The fact is not in dispute that the respondent Nagar Panchayat has not challenged award dated 29/11/1994 and the same has attained finality. Pursuant to award dated 29/11/1994, the respondent Panchayat accepted and implemented the award and the petitioners were made permanent. Consequently an Page 3 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jan 30 2025 Downloaded on : Fri Jan 31 21:50:52 IST 2025 NEUTRAL CITATION C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025 undefined entry with regard to the same was made in the service books of the petitioners. The fact is also not in dispute that neither the State Government nor the office of the District Panchayat, Surendranagar were party to the proceedings which culminated before the labour court.
3.2. It is the case of the petitioners that they reached the age of superannuation on 30/07/2012 and 31/12/2012 respectively. Consequent to attaining the age of superannuation, communications were preferred to the District Panchayat, Surendranagar (herein after referred to as "the District Panchayat" for short) to consider the case of the petitioners for pension and other retirement benefits. On 26/09/2012, the office of the Taluka Panchayat preferred a communication to the respondent Nagar Panchayat. The communication preferred on 26/09/2012 categorically inquired with regard to permission obtained by the respondent Nagar Panchayat from the State Authorities with regard to the appointment of the petitioners. It was also inquired with regard to whether any appeal was being preferred by the respondent Nagar Panchayat against the award dated 29/11/1994. Pursuant to such communication, there were Page 4 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jan 30 2025 Downloaded on : Fri Jan 31 21:50:52 IST 2025 NEUTRAL CITATION C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025 undefined other communications which were addressed by the District Panchayat and the respondent Nagar Panchayat inter se. However, the Taluka Development Officer by way of communication dated 24/04/2013 refused the request for grant of pension to the petitioners referring to the Government Resolution dated 05/06/1984. Consequently, the respondent Nagar Panchayat refused to pay pension to the petitioners which culminated into a dispute being raised by the petitioners. It is the case of the petitioners that being aggrieved by inaction on part of the respondent Nagasr Panchayat and State Authorities as well as non-payment of retirement dues and pensionary benefits, the petitioners preferred a writ petition before this Court by filing Special Civil Application No. 18470 of 2013. By way of order dated 16/06/2015, this Court disposed of the writ petition by giving direction to the respondents Authorities and Nagar Panchayat to look into the matter and take appropriate decision in accordance with law and in particular take decision as to whether the petitioners were entitled to retirement benefits. Further, this Court while disposing the said petition, has made categorical observations that the authorities will keep in mind the award passed by the labour court on 29/11/1994. Despite Page 5 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jan 30 2025 Downloaded on : Fri Jan 31 21:50:52 IST 2025 NEUTRAL CITATION C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025 undefined the order passed by this Hon'ble Court, the respondents did not take any decision. Therefore, the petitioners were again constrained to approach this Court by filing a second writ petition being Special Civil Application No.13381 of 2015 wherein this Hon'ble Court disposed of the writ petition by directing the office of the District Development Officer to explore the possibility of providing pensionary benefits in terms of the recent decision given by Hon'ble Division Bench in Letters Patent Appeal No.409 of 2017 dated 03.05.2018 as well as by providing guidance to the Nagar panchayat for making payment of retirement dues in accordance with law to the petitioners. Despite the order passed by this Hon'ble Court, the respondents did not make any payment or replied to the communication made by the petitioners. This resulted into a contempt petition being preferred by the petitioners. The contempt petition filed before this Court was numbered as Misc. Civil Application No.1201 of 2018 in Special Civil Application No.13381 of 2015. The contempt petition was disposed of with an observation giving direction to the petitioner to challenge the decision of the opponents about ineligibility to receive the benefit from appropriate forum in accordance with law. Resultantly, the petitioners preferred Page 6 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jan 30 2025 Downloaded on : Fri Jan 31 21:50:52 IST 2025 NEUTRAL CITATION C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025 undefined third writ petition before this Hon'ble Court. The petitioners preferred present petition impugning the original orders dated 24/04/2013, 03/05/2013 and 04/12/2018 returning the service book of the petitioners and declining to give pensionary benefits to the petitioners. In facts of such case, present petition has come up for adjudication.
4. Mr. N. D. Songara, learned advocate for the petitioners has submitted that the fact is not in dispute that the petitioners were employees of the respondent Nagar Panchayat. The fact is also not in dispute that they were made permanent employees by the award of labour court passed in reference (LCD) No.10 of 1992. Therefore, the fact cannot be disputed that the petitioners have superannuated as permanent employees of the respondent Nagar Panchayat. It is the conflict inter se between the State Government, the District Panchayat and the respondent Nagar Panchayat to give pensionary benefits and other retirement benefits to the petitioners. Once it is established that the petitioners were permanent employees and the entry of the same has been recorded in the service books of the petitioners by the respondent Nagar Panchayat then they cannot be deprived of Page 7 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jan 30 2025 Downloaded on : Fri Jan 31 21:50:52 IST 2025 NEUTRAL CITATION C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025 undefined their pensionary benefits and retirement dues. This would be violation of their fundamental rights under the Constitution of India. It was further submitted that not only the petitioners are permanent employees, the award is passed by the labour court declaring them as a permanent employees and regularizing them as permanent employees and further the respondent Nagar Panchayat has not challenged the award. Therefore, it is a fit case of giving pensionary benefits and retirement benefits to the petitioners. Further, this Hon'ble Court in two round of litigation had directed the concerned respondents authorities to consider the case of the petitioners for retirement benefits. Further, the petitioners are praying for their legitimate right for last 12 to 13 years which is nothing but gross injustice. In wake of such submissions, Mr.N. D. Songara, learned advocate for the petitioners has prayed to grant the prayers made by the petitioners and give them their legitimate retirement benefits.
5. Per contra, Mr. H. S. Munshaw, learned advocate for respondent, referring to the affidavit filed by the DDO, has contended that the petitioners were employed by the Chuda Nagar Panchayat without following due procedure of Page 8 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jan 30 2025 Downloaded on : Fri Jan 31 21:50:52 IST 2025 NEUTRAL CITATION C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025 undefined recruitment on its own on 01/01/1993 by way of passing a resolution in its meeting. It was further contended that the petitioners were continued as employees and paid their salary out of its own funds. It was submitted that the petitioners were employed not only without following due procedure of recruitment but at no point of time, the respondent Nagar Panchayat had obtained sanction from Taluka Panchayat, District Development Commissioner or the State Government. Therefore, the petitioners were employed by the respondent Nagar Panchayat were not civil servants as envisaged under the Gujarat Civil Services Rules or Gujarat Panchayat Act, 1993 respectively. It was further submitted that respondent Nagar Panchayat is statutory body duly constituted under the provisions of Gujarat Panchayat Act, 1993 and has to manage its administration on the basis of its financial condition and provisions of Gujarat Panchayat Act, 1993 and rules framed there under. It was further submitted that the petitioners were regularized in employment vide award dated 29/11/1994 passed in Reference (LCD) No.10 of 1992 preferred before the labour court. However, the higher authorities like Taluka Panchayat, District Panchayat, District Development Officer and State Government were not parties in the said Page 9 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jan 30 2025 Downloaded on : Fri Jan 31 21:50:52 IST 2025 NEUTRAL CITATION C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025 undefined proceedings. Thereafter, the respondent Nagar Panchayat on its own peril continued them in employment. Therefore, when respondent Nagar Panchayat communicated to the office of the District Panchayat with regard to pensionary benefits and the retirement dues of the petitioners, the clear cut communication was given by the District Panchayat that the petitioners were not civil servants as envisaged under the Gujarat Panchayat Act, 1993 and rules framed under the Gujarat Panchayat Act, 1993 and in wake of such fact, the pensionary benefits to the petitioners was not entertained. However, it has been categorically accepted by Mr.Munshaw, learned advocate that the petitioners were made permanent employees through the award passed by the Labour Court and the respondent Nagar Panchayat had given entry of the same in the service books of the petitioners. But it was contended by Mr.Munshaw, learned advocate that the respondent Nagar Panchayat had made them permanent employees on its own peril.
6. As far as respondent Nagar Panchayat is concerned, right from the inception of the matter in the year 2019, till culmination, they have chosen not to file any reply to the writ Page 10 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jan 30 2025 Downloaded on : Fri Jan 31 21:50:52 IST 2025 NEUTRAL CITATION C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025 undefined petition. The respondents are duly represented by their advocates but neither they have filed reply to the writ petition nor they have controverted the factual aspects raised in the present writ petition. However, a categorical statement was made by learned advocate for the respondent Nagar Panchayat on 29/11/2024 that they are ready and willing to make payment of pension and retirement dues to the petitioners and calculation with regard to the same would be exchanged with the petitioners.
7. Having heard learned advocates for the parties and perused the material on record, certain things are not in dispute. It is not in dispute that the petitioners were employed by the respondent Nagar Panchayat. It is also not in dispute that the labour court by way of award dated 29/11/1994, continued them in the service and entry in order to the same was made in the service books of the petitioners. It is also not in dispute that the award dated 29/11/1994 passed in Reference (LCD) No.10 of 1992 has attained finality. Therefore, there cannot be any dispute with regard to legitimate right of the petitioner about pensionary and retirement dues. It is also not in dispute that the petitioners Page 11 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jan 30 2025 Downloaded on : Fri Jan 31 21:50:52 IST 2025 NEUTRAL CITATION C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025 undefined have raised this issue before this Court and by way of order dated 16/06/2015 passed in Special Civil Application No.18470 of 2013 and order dated 14/06/2018 passed in Special Civil Application No.13381 of 2015, this Court had directed the respondents to consider the case of the petitioners. However, only one of contention has been raised by respondent no.4 District Panchayat is that the respondent Nagar Panchayat had not followed appropriate procedure in recruiting the petitioners and they had not taken sanction from the higher authorities and therefore they will not be considered as permanent employees and the respondent Nagar Panchayat has made them employees on its own peril. Be that as it may, the inter se allegations and counter allegations cannot take away the fact that the petitioners are permanent employees pursuant to the award dated 29/11/1994 which has attained finality. The stand taken as well as the conduct of the respondent Nagar Panchayat is very dubious. The respondent Nagar Panchayat at one hand accepts the award passed by the labour court and implements the same by passing resolution and giving effect of the same in the service book of the petitioners and on the other hand they had not followed the due procedure of taking sanction Page 12 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jan 30 2025 Downloaded on : Fri Jan 31 21:50:52 IST 2025 NEUTRAL CITATION C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025 undefined from the District Panchayat and the Development Commissioner with regard to the employment of the petitioners and thereafter refused the retirement dues only on the ground that respondent no.4 District Panchayat and the State Authorities are not considering it. Therefore on one hand respondent Nagar Panchayat accept the award of Labour Court and avail service of petitioner. Further, it does not follow due procedure of informing the authority about award and following the procedure of giving entitlement of petitioner as state employee. Further, the retirement benefits are denied by respondent Nagar Panchayat only on ground that higher authorities have refuse to grant the relevant dues. Unfortunately such conduct of the respondent Nagar Panchayat is not only dubious but highly deprecated. Subsequent to superannuation of the petitioners various communications were addressed to respondent Nagar Panchayat and various litigation were initiated even before this Court wherein directions were given to the respondent concerned to consider the issue of the petitioners. The petitioners have gone from pillar to post to various authorities and initiated various litigation which has remained unfruitful even after 12 years of superannuation. Even in the present Page 13 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jan 30 2025 Downloaded on : Fri Jan 31 21:50:52 IST 2025 NEUTRAL CITATION C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025 undefined writ petition, the respondent Nagar Panchayat has chosen not to controvert the facts of the petition but still has declined to give the benefit to the petitioners. Much can be said about the conduct of respondent Nagar Panchayat in the present writ petition. However, when learned advocate for the respondent Nagar Panchayat has submitted that they are ready and willing to give retirement dues and benefits to the petitioners, this Court deems it fit to put the controversy at rest. In view of the same and in view of the statement made by learned advocate for the respondent no.5 Nagar Panchayat, respondent no.5 Nagar Panchayat is directed to calculate the pensionary dues and retirement dues of the petitioners and give the same to the petitioners within a period of four weeks from receiving the copy of this order failing which they will have to pay 9% till the actual date of realization. Additionally the petitioner has also prayed for benefits of Sixth Pay Commission. As the issue pertains to Nagar Panchayat, the benefit of Sixth Pay Commission also ought to be given to the petitioner if the requisite funds are available with the respondent Nagar Panchayat.
8. In view of above same, present petition is disposed of Page 14 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jan 30 2025 Downloaded on : Fri Jan 31 21:50:52 IST 2025 NEUTRAL CITATION C/SCA/16748/2019 JUDGMENT DATED: 03/01/2025 undefined with above mentioned observations and directions with no orders to costs. Rule is answered accordingly.
(PRANAV TRIVEDI,J) ILA Page 15 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jan 30 2025 Downloaded on : Fri Jan 31 21:50:52 IST 2025