Gujarat High Court
Morbi Municipality Through Chief ... vs Kantibhai Chakubhai on 20 December, 2021
Bench: A.S. Supehia
C/SCA/2225/2021 ORDER DATED: 20/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2225 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 2226 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 2518 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4129 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 6868 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 2449 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 2550 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 2569 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 2602 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 2601 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 2600 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 2553 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 2552 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 13724 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 6364 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 2548 of 2021
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C/SCA/2225/2021 ORDER DATED: 20/12/2021
R/SPECIAL CIVIL APPLICATION NO. 4103 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 3388 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 3387 of 2021
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MORBI MUNICIPALITY THROUGH CHIEF OFFICER
Versus
KANTIBHAI CHAKUBHAI
==========================================================
Appearance:
MR DEEPAK P SANCHELA(2696) for the Petitioner(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 1
MR KRUNAL D PANDYA(3283) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 20/12/2021
COMMON ORAL ORDER
1. RULE. Learned advocates appear and waive service of
notice of Rule on behalf of the respective respondents.
2. Since the issues involved in this group of petitions are
identical, the same are heard together and decided
analogously by a common order.
3. Learned advocate Mr.Sanchela appearing for the petitioner
Municipality has submitted that the Controlling Authority has
fell in error by awarding the amount of gratuity for the entire
service of the workmen i.e. from the date of initial
appointments as daily wagers, till their retirement dates. He
has further submitted that the services rendered by the
workmen as daily wagers and till, they were made permanent
or regularized, the same can only be calculated and paid under
the Payment of Gratuity Act, whereas the services after
C/SCA/2225/2021 ORDER DATED: 20/12/2021
regularisation till retirement, are to be considered as per the
Gujarat Civil Services Rules, 2002 for paying the gratuity. He
has submitted that accordingly the Municipality, had paid to all
the respondent-workmen as per the Pension Rules, however
the Controlling Authority has also calculated the initial period
rendered by the respondent-workmen as daily wagers. He has
placed reliance on the judgment of Division Bench in the case
of State of Gujarat Vs. Kiritsinh Dhirubha Jadeja rendered in
Letters Patent Appeal No.156 of 2017 and allied matters dated
28.12.2017. It is submitted that this petition may be allowed in
terms of the aforesaid judgement.
4. In response to the aforesaid submissions, learned advocate
Mr.Acharya, appearing for the respondent-workmen has
submitted that the writ petition itself is not maintainable, as
the same is moved under Article 226 of the Constitution of
India, however it should have been moved under Article 227 of
the Constitution of India, since the petition pertains to
challenge of order of the Controlling Authority and the
confirmation thereof by the Appellate Authority. He has further
submitted that with regard to the appointment of the
respondent-workmen as daily wagers and their regularization,
no data was produced before the Controlling Authority and the
same is produced directly before this Court. It is further
submitted that the calculations which are made, are also not
provided to the Controlling Authority and hence, the impugned
order may not be disturbed.
5. I have heard the learned advocates appearing for the
respective parties. The details with regard to the details of 19
workmen are incorporated as under.
C/SCA/2225/2021 ORDER DATED: 20/12/2021
Morbi Nagarpalika- Morbi (Details of Gratuity Cases)
Sr Employee Date of Birth Date of Date of Retirement Years of Paid Last No of years Amount payable Amount Amount
. for which as per Payment actually
N s Name appointme appointmen date service gratuity drawn gratuity is of Gratuity Act, claimed
payable as
o nt as daily t as regular as per amount wages payable as 1972 (as per by per
per Payment earlier calculation
wager employee GCSR as per as daily of Gratuity of municipality)
employee Payment of
Gratuity Act,
GCSR wager Act, 1972 1972
1 Shri Kanti 19/09/1953 05/09/1971 01/10/1978 30/09/2013 35 || 17.5 2,96,235/- 765/- 7 2,677.5/- 1,60,418/- 3,089.5/-
Chaku
2 Lila raji 11/07/1968 1979 01/10/1984 Expired on 33 || 16.5 5,05,940/- 1,365/- 5 3,412.5/- 1,25,723/- 3,937.5-
(Legal heir (08/08/1981 09/05/2018
of Ramji )
Kaku)
3 Shri Vikrma 29/05/1957 08/03/1978 01/10/1984 31/05/2017 33 || 16.5 3,61,201/- 1,365/- 6 4,095/- 1,02,807/- 4,725/-
Babu
4 Shri Lavu 05/11/1957 1980 01/07/1989 30/11/2017 28 || 14 3,56,788/- 1,845/- 9 8,302.5/- 1,34,180/- 9,580/-
Kheda
5 Prabhaben 13/06/1968 1979 01/07/1989 30/10/2017 28 || 14 3,78,998/- 1,845/- 10 9,225/- 1,32,014/- 10,644/-
Hakabhai
(Legal heir
of Haka
Sidhi)
6 Shri Laxmi 13/05/1954 1981 01/10/1984 31/05/2014 30 || 15 3,51,692/- 1,365/- 3 2,047.5/- 35,170 2,362.5/-
Chagan
7 Shri 12/04/1955 1976 01/10/1984 30/04/2015 31 || 15.5 3,87,040/- 1,365/- 8 5,460/- 99,883/- 6,300/-
Hansaben
Chaturbhai
8 Shri Kishor 27/05/1957 01/07/1976 01/10/1984 31/05/2017 33 || 16.5 4,76,342/- 1,365/- 8 5,460/- 1,15,477/- 6,300/-
Chunilal
9 Shri Bachu 22/08/1956 05/09/1971 01/10/1978 31/08/2016 33 || 16.5 4,90,907/- 765/- 7 2,677.5/- 99,964/- 3,089.5/-
Jiva
1 Shri 02/06/1957 1982 01/07/1989 30/06/2017 28 || 14 3,86,368/- 1,845/- 7 6,457.5/- 96,592/- 7,451/-
0 Champa
kara
1 Shri Maiyya 08/03/1955 05/09/1971 01/10/1978 31/03/2015 33 || 16.5 4,25,205/- 165/- 7 2,677.5/- 68,627/- 3,089.5/-
1 Mohan
1 Shri Hema 05/04/1955 1984 01/07/1989 30/04/2015 26 || 13 3,19,814/- 1,845/- 5 4,612.5/- 61,509/- 5,348/-
2 Hari
1 Moti Kaku 19/07/1961 1978 01/07/1989 02/09/2017 28 || 14 3,97,998/- 165/- 11 10,147.5/- 1,56,357/- 11,708/-
3 (Legal heir
of Manju
Deva)
1 Shri Lachu 23/08/1963 1979 01/07/1989 31/05/2014 25 || 12.5 2,75,480/- 1,845/- 10 9,225/- 1,33,980/- 10,644/-
4 Vashram
1 Shri Jivu 25/10/1954 1969 01/07/1975 31/10/2014 39 || 16.5 4,25,224/- 765/- 6 2,295/- 1,18,410/- 2,648/-
5 Pitambar
1 Shri Savita 20/08/1955 1982 01/07/1989 31/08/2015 26 || 13 3,29,729/- 1,845/- 7 6,457.5/- 88,787/- 7,451/-
6 Shamji
1 Shri 29/12/1956 03/11/1974 01/10/1984 31/12/2016 32 || 16 4,50,262/- 1,365/- 10 6,825/- 1,42,269/- 7,875/-
7 Ramesh
Ravji
1 Shri 30/01/1956 1979 01/10/1984 31/01/2016 31 || 15.5 4,16,747/- 1,365/- 5 3,412.5/- 80,961/- 3,937.5/-
8 Labhuben
Punjabhai
1 Shri Kalu 15/07/1957 1980 01/07/1989 31/07/2017 38 || 14 3,92,998/- 1,845/- 9 8,302.5/- 1,27,928/- 9,580/-
9 Mana
6. From the order of the Controlling Authority, it is revealed
that the Controlling Authority has considered the entire period
from the date of appointment of the workmen as daily wagers,
till their retirement as continuous for the purpose of fixation
and payment of gratuity without bifurcating their service as
daily wagers and permanent employees.
7. The aforesaid chart reveals that all the workmen had
initially worked as daily wagers and after rendering particular
number of years service (seven years or ten years), they were
regularised and made permanent. It is not in dispute that the
C/SCA/2225/2021 ORDER DATED: 20/12/2021
petitioner-Municipality has paid gratuity as per the provisions
of the Gujarat Civil Services Rules, 2002 for the period for
which they have rendered their services as a regular
employees. Thus, the date from the workmen till they had
retired, the Municipality had paid gratuity amount as per the
provisions of Gujarat Civil Services Rules, 2002. The same is
not denied. However, the dispute pertains to awarding of
gratuity to the workmen prior to they have been regularised in
service and for the service on which they are engaged as daily
wagers. At this stage, it would be apposite to refer to the
observations made by the Division Bench in the judgment
dated 28.12.2017 in Letters Patent Appeal No.156 of 2017. The
Division Bench, after considering the decision of another
Division Bench dated 16.11.2017 passed in Letters Patent
Appeal No.1195 of 2017, has observed thus,
"8. Taking into consideration the facts in all these
aforesaid appeals the sole and the common question of
law that arises before us is whether an employee is
entitled to the benefit of his past service rendered as a
daily wager, for the purposes of being granted the benefits
of gratuity under the Payment Of Gratuity Act, 1972. This
question should not hold us any longer in view of the fact
that we have considered this question of law in similar
circumstances in Letters Patent Appeal No. 1195 of 2017
decided on 16.11.2017 wherein we have held as under:
"4.0. At the outset, it is required to be noted that the only
question which calls for the consideration of this Court is
whether the continuous of service rendered by concerned
employee as a daily wager is required to be counted for
the purpose of calculation of amount of gratuity under the
provision of the Payment of Gratuity Act or not and / or
whether the concerned employee is entitled to gratuity
under the Payment of Gratuity Act for the period during
which he worked as a daily wager or not.
4.1. That the concerned employees were not paid
the gratuity under the Payment of Gratuity Act,
1972 for the period, they worked as a daily
wager. They were also not paid the gratuity under
the Gujarat Civil Services (Pension) Rules, 2002
C/SCA/2225/2021 ORDER DATED: 20/12/2021
for the aforesaid period, during which, they
worked as a daily wager. Therefore, the
concerned employee approached the Controlling
Authority under the provisions of the Payment of
Gratuity Act claiming the gratuity under the
Payment of Gratuity Act for the period they
worked as a daily wager i.e. in the case of Special
Civil Application No. 214 of 2016 for the period
from 24.06.1983 to 22.06.1997 and in the case of
Special Civil Application No.213 of 2016 for the
period between 16.07.1985 to 14.07.1997. The
Controlling Authority rejected the claim. The
Appellate Authority confirmed the same. That
after considering the provisions of the Payment of
Gratuity Act, 1972 and also provisions of Gujarat
Civil Service (Pension) Rules, 2002, under which,
the concerned employees were not paid the
amount of gratuity during the period for which
they worked as a daily wager and after
considering the decision of the Hon'ble Supreme
Court in the case of Ahmedabad Pvt. Primary
Teachers Association vs. Administrative Officer
reported in AIR 2004 SC 1426, decision of the
Himachal Pradesh High Court in the case of State
of H.P. vs. Lashkari Ram reported in 2008 I LLJ
137 and relying upon the other decisions of this
Court referred to in para 13.1 to 13.2 of the
impugned order, the learned Single Judge by
impugned judgment and order has held that the
concerned employees shall be entitled to gratuity
under the Payment of Gratuity Act also for the
period they worked as a daily wager, the period
for which they were not paid the gratuity either
under the Payment of Gratuity Act or under the
provisions of the Gujarat Civil Service (Pension)
Rules, 2002.
5.0. Having heard the learned advocates for the
respective parties and considering the provisions
of Payment of Gratuity Act, under which there is
no distinction between the regular employee and
daily wager and there is no specific provision that
daily wagers are not entitled to payment of
gratuity and on the contrary considering the
provisions of the Payment of Gratuity Act, more
particularly, Section 3 to 5 of the Act, any
employee who has worked for not less than 5
years shall be entitled to the amount of gratuity
and considering the proviso to Section 4 of the
Payment of Gratuity Act, daily rated worker and
even seasonal workers are entitled to gratuity
under the Payment of Gratuity Act, it cannot be
said that the learned Single Judge has committed
any error in holding that the concerned
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employees are entitled to the gratuity under the
Payment of Gratuity Act for the period, for which,
they worked as daily wager. At this stage, it is
required to be noted that it is not the case on
behalf of the State that for the aforesaid period,
during which they worked as daily wagers, the
concerned employees were paid the gratuity
under the provisions of the Gujarat Civil Service
(Pension) Rules, 2002. "
9. Having considered the judgement rendered in Letters
Patent Appeal No. 1195 of 2017, relevant portion of which
is reproduced hereinabove, we are of the opinion that the
view taken by the Controlling Authority and confirmed by
the Appellate Authority as well as the learned Single Judge
do not require interference. The provisions of the Payment
Of Gratuity Act make no distinction between a regular
employee and a daily wager. There is no specific provision
that daily wagers are not entitled to the payment of
gratuity. Considering the provisions of the Payment Of
Gratuity Act, 1972 particularly Sections 3 to 5 and 14, it
can very well be seen that the provisions of the Act shall
have effect notwithstanding anything in consistent with
any other enactments. The submission therefore made by
learned counsel for the respective appellants that once
having earned the gratuity under the relevant provisions
of Gujarat Civil Service (Pension) Rules, 2002, the period
rendered prior to such regularization and claimed under
such rules would disentitle such employee from claiming
gratuity under the Gratuity Act as a daily wager cannot be
sustained."
8. The Division Bench has confirmed the judgment and order
passed by the Single Judge Bench and clarified that the
employees are entitled to gratuity under the Payment of
Gratuity Act, also for the period they worked as daily wagers
till they are made permanent, and thereafter they would be
entitled for the gratuity under the provisions of the Gujarat
Civil Service (Pension) Rules, 2002 after they have made
permanent. Since the facts or data with regard to the
appointments of the respondent-workmen and the date of
their regularization was not placed before the Controlling
Authority, it would be appropriate that these matters are
remanded back to the Controlling Authority for deciding
C/SCA/2225/2021 ORDER DATED: 20/12/2021
afresh, in the light of the observations made by this Court.
9. The impugned order passed by the Controlling Authority as
well as the order passed by the Appellate Authority are hereby
quashed and set aside. The matters are remanded back to the
Controlling Authority to decide afresh. It will be open for either
of the parties to provide the details with regard to the
appointment of the respondent-workmen as daily wagers and
their respective dates of absorption or confirmation. The
Controlling Authority shall pass appropriate orders with regard
to their entitlement as per the provisions of the Payment of
Gratuity Act from the dates of their engagement as daily
wagers till the date of their regularization. Such order shall be
passed within a period of three months from the date of
receipt of this order.
10. With regard to the contention raised by learned advocate
Mr.Acharya as the writ petition being not maintainable, the
same does not merit acceptance since the orders which are
passed by the Controlling Authority and confirmed by the
Appellate Authority, are quasi-judicial in nature and this Court,
while exercising its power conferred under Article 226 of the
Constitution of Indian, can always examine the validity and
legality such orders.
11. The writ petitions are allowed accordingly. Rule is made
absolute in above terms.
(A. S. SUPEHIA, J)
MAHESH BHATI/55
