Gujarat High Court
State Of Gujarat vs Nathubhai Karshanbhai Dafda on 18 February, 2021
Bench: Nirzar S. Desai
C/SCA/3255/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3255 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 3256 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 3265 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 3267 of 2021
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STATE OF GUJARAT
Versus
NATHUBHAI KARSHANBHAI DAFDA
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Appearance:
MS ASMITA PATEL, AGP for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 18/02/2021
ORAL ORDER
1. By way of this group of petitions, the petitioner - State
challenges various orders passed by the learned Labour Court,
Rajkot whereby while allowing each of the Recovery Application
preferred by respective respondent workman, the learned Presiding
Officer, Labour Court, Rajkot held the respondent workman
entitled to 300 days leave encashment in respect of unavailed leave
and passed an order directing the petitioner State to pay the
amount of leave encashment as per the entitlement of each of the
workman within a period of 30 days with 6% simple interest from
the date of application and also awarded cost of Rs.1,000/ in each
of Reference.
1.1 Since the subject matter of each of petition is same i.e. the
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entitlement of respective workman of leave encashment in respect
of 300 days unavailed leave, all these petitions are heard and taken
up together.
2. In Special Civil Application No.3255 of 2021, the petitioner
has challenged the order dated 02.04.2019 passed by the learned
Judge (CD), Labour Court No.2, Rajkot in Recovery Application
No.17 of 2013 preferred under Section 33(C) (2) of the Industrial
Disputes Act, 1947 ['the I.D. Act', for short] and while allowing the
application preferred by the respondent workman, sum of
Rs.1,27,440/ along with 6% interest is directed to be paid to the
respondent workman along with cost of Rs.1,000/.
2.1 In Special Civil Application No.3256 of 2021, the petitioner
has challenged the order dated 02.04.2019 passed by the learned
Judge (CD), Labour Court No.2, Rajkot in Recovery Application
No.18 of 2013 preferred under Section 33(C) (2) of the Industrial
Disputes Act, 1947 ['the I.D. Act', for short] and while allowing the
application preferred by the respondent workman, sum of
Rs.1,48,010/ along with 6% interest is directed to be paid to the
respondent workman along with cost of Rs.1,000/.
2.2 In Special Civil Application No.3265 of 2021, the petitioner
has challenged the order dated 02.04.2019 passed by the learned
Judge (CD), Labour Court No.2, Rajkot in Recovery Application
No.19 of 2013 preferred under Section 33(C) (2) of the Industrial
Disputes Act, 1947 ['the I.D. Act', for short] and while allowing the
application preferred by the respondent workman, sum of
Rs.70,560/ along with 6% interest is directed to be paid to the
C/SCA/3255/2021 ORDER
respondent workman along with cost of Rs.1,000/.
2.3 In Special Civil Application No.3267 of 2021, the petitioner
has challenged the order dated 02.04.2019 passed by the learned
Judge (CD), Labour Court No.2, Rajkot in Recovery Application
No.23 of 2013 preferred under Section 33(C) (2) of the Industrial
Disputes Act, 1947 ['the I.D. Act', for short] and while allowing the
application preferred by the respondent workman, sum of
Rs.56,160/ along with 6% interest is directed to be paid to the
respondent workman along with cost of Rs.1,000/.
3. Since the issue involved in these petitions is having similar set
of facts, the facts Special Civil Application No.3255 of 2021 is
considered while deciding the legality and validity of the order
under challenge.
4. Considering the fact that all the orders are passed by taking
into account the various judgments delivered by this Court and on
the same principle, brief facts of Special Civil Application No.3255
of 2021 are as under:
4.1 The respondent workman preferred Recovery Application
No.17 of 2013 before the learned Labour Court, Rajkot and
submitted that he joined the services under the petitioner as
Laborer and superannuated on 31.05.2011. At the time of his
superannuation his last drawn salary inclusive of basic pay, grade
pay and dearness allowance was Rs.12,744.40 ps. The respondent
workman was given benefit of Government Resolution dated
17.10.1988 based upon the recommendation of Dolatram Parmar
C/SCA/3255/2021 ORDER
Committee and accordingly respondent was also getting pensionary
benefits as well as GPF and gratuity. Though the respondent was
getting benefits of permanency as per the Government Resolution
dated 17.10.1988, as referred to above, at the time of his
superannuation, the leave encashment of 300 days unavailed leave
was denied to the respondent workman. Though it was represented
before the petitioner to pay him an amount of leave encashment of
unavailed leave, the same was denied and hence respondent
workman preferred Recovery Application under Section 33(C) (2)
of 'the I.D. Act' before the Labour Court at Rajkot and prayed for a
direction to the petitioner to pay sum of Rs.1,27,440/.
4.2 In respect of all other petitions, respective workmen were
also granted benefit of permanency and they were also getting
benefit as stated above pursuant to the Government Resolution
dated 17.10.1988 based upon recommendation of Dolat Parmar
Committee and each of the workman had prayed for similar relief
of leave encashment of 300 days unavailed leave before the Labour
Court, Rajkot. Since the question for determination for Labour
Court, Rajkot was about entitlement of respondent workman in
respect to get leave encashment of 300 days unavailed leave, facts
of the case of rest of the respondent workmen are not narrated
herein in detail.
4.3 The petitioner State herein filed reply in each of the Recovery
Application and contended that the respondent workmen have
already received all the benefits as per the Government Resolution
dated 17.10.1988. In the reply it was also it was also stated that
C/SCA/3255/2021 ORDER
considering the Government Resolution dated 12.08.1991, the
respondent workmen are not entitled to leave encashment of 300
days unavailed leave. It was also contended that respondent
workmen cannot be treated at par with regularly selected
candidates and, therefore, benefit of leave encashment of 300 days
unavailed leave was rightly denied to the respondent workmen.
5. The learned Judge (C.D.), Labour Court No.2, Rajkot, after
taking into consideration material on record and after taking into
consideration the various judgments of Hon'ble Division Bench of
this Court as well as learned Single Judge held the respective
workmen entitled for 300 leave encashment of unavailed leave.
The learned Judge, Labour Court No.2, Rajkot while allowing the
recovery application preferred by respective workmen considered
the ratio laid down by decision of this Court in in the case of State
of Gujarat and others vs. Mahendrakumar Bhagvandas reported in
2011 (2) GLR 1290 and the judgment of the learned Single Judge
dated 08.07.2015 rendered in the case of Vallabhbhai Chhotabhai
Chauhan vs. State of Gujarat through Executive Engineer in Special
Civil Application No.1945 of 2014 which was subsequently
confirmed vide judgment dated 20.10.2015 rendered in Letters
Patent Appeal No.13 of 2015 and also considering the judgment
dated 20.08.2014 delivered in Special Civil Application No.5530
of 2003 and allied matters in the case of PWD Employees Union
through President Saiyed Ibrahim and others vs. State of Gujarat
through Secretary Narmada Water and others, in the case of Gujarat
Maritime Board reported in (2015) 5 GLR 4516 in case of State of
Gujarat vs. Yogshram Foundation of Human Dignity and
C/SCA/3255/2021 ORDER
considering all above judgments held that the respondent workmen
are entitled to the amount prayed for in the respective Recovery
Application towards leave encashment of 300 days unavailed leave
and directed the petitioner State to pay the amount as per the
entitlement of each of the respondent workman within a period of
30 days with 6% simple interest and cost of Rs.1,000/. It is these
orders passed by the learned Presiding Officer, Labour Court No.2,
Rajkot which are under challenge by way of these petitions.
6. Heard learned Assistant Government Pleader for the
petitioner State through video conference. She submitted that
though it is undisputed fact that the respondent workmen were
granted benefit of permanency in accordance with Government
Resolution dated 17.10.1988, the subsequent Government
Resolution dated 12.08.1991 is required to be considered while
extending the benefits flowing from Government Resolution dated
17.10.1988 to the respondent workman. It is specifically stated
that the daily wager employees are entitled to limited benefits as
per Government Resolution dated 17.10.1988 and the benefits like
LTC, Leave encashment, Government quarters as well as different
kind of advances cannot be granted to the daily wagers as they are
not entitled to those benefits. Ms.Patel drew attention of this Court
to Government Resolution dated 18.07.1994 wherein in para:15 it
is stated that the words used in Government Resolution dated
17.10.1988 like 'to treat them as permanent' or 'permanent services'
were used in the said GR only to indicate the job protection and the
same are not used in the said GR to treat them as Government
employee. By drawing attention of this Court to aforesaid two GRs,
C/SCA/3255/2021 ORDER
she submitted that in view of clearcut language of above two GRs,
the respondent workman is not entitled to benefit of leave
encashment of 300 days leave and by not considering aforesaid two
GRs in its true perspective, learned Labour Judge has committed
grave error by allowing the applications and awarding the
respondent workmen towards leave encashment of 300 days
unavailed leave.
6.1 She also submitted that misinterpretation of the aforesaid
two GRs would lead to increase the financial liability on the State
Government and ultimately it would amount to a burden on public
exchequer. She, therefore, submitted that orders impugned in these
petitions passed in respective recovery applications of the
respondent workmen being contrary to entitlement as discussed
and decided by the Government Resolution dated 12.08.1991 and
18.07.1994 and bad in law deserves to be quashed and set aside.
6.2 Learned Assistant Government Pleader also challenged the
impugned award on the ground of delay as according to her
various recovery applications were preferred by the respondent
workmen were preferred after long time of their superannuation.
6.3 In view of aforesaid submissions, Ms.Patel urged to quash
and set aside the impugned order passed in respect of each of the
respondent workman in their respective recovery applications
7. I have considered the submissions made by learned Assistant
Government Pleader Ms.Asmita Patel and I have gone through the
orders passed by the learned Labour Court, Rajkot in respect of the
C/SCA/3255/2021 ORDER
Recovery Applications filed by the respective respondent workmen
and I have also considered other material which is placed on record
by Ms.Patel.
7.1 On perusal of the order what transpires is that the order was
passed by the learned Presiding Officer, Labour Court, Rajkot by
relying upon case laws and settled prepositions of law as the
learned Presiding Officer has considered the judgment of this Court
in the case of State of Gujarat and others vs. Mahendrakumar
Bhagvandas (supra) which was subsequently confirmed by the
Division Bench vide judgment dated 20.10.2015 in Letters Patent
Appeal No.13 of 2015 and in the case of PWD Employees Union
through President Saiyed Ibrahim and others (supra). When a query
was put to learned Assistant Government Pleader as to how the
judgments relied upon by the learned Presiding Officer while
passing the impugned order are not applicable in the facts of the
present case and what is difference of status between the present
respondent workmen and the workman who was party in those
litigation, Ms. Patel candidly submitted that from the aforesaid
judgments, it seems that there is no difference in the service
condition of present respondent workman and the workman who
was held entitled for extending the benefits of unavailed leave and
who were party to those petitions. Furthermore, as regards the
Government Resolution dated 18.07.1994 upon which the reliance
was placed by the learned Assistant Government Pleader, the
Division Bench of this Court has specifically observed in para:6 of
the judgment rendered in case of State of Gujarat and others vs.
Mahendrakumar Bhagvandas (supra), as under:
C/SCA/3255/2021 ORDER
"6. Letters Patent Appeal Nos.960, 961, 964 and 965 of
2001 are preferred from common oral judgment dated
6.4.2000 of learned Single Judge of this Court, inter alia, in
Special Civil Application Nos.28, 64, 67 and 68 of 1988
whereby original petitioners, working under the appellants
herein, were directed to be given benefits in following terms:
"........... In terms of the order passed in earlier case on
23/10/1999, the respondents are directed to extend all
the benefits of regular employees to the petitioner, who
have been made permanent employees in regular scale of
pay for more than 10 years of service. They should not be
discriminated with other employees. With the aforesaid
observations and direction all the petitions are allowed
and accordingly disposed of....."
7.2 Similarly the prayer which is incorporated in order dated
08.07.2015 passed in Special Civil Application No.1945 of 2014,
paras:2 and 3 are as under:
"2. By this writ application under Article 226 of the
Constitution of India, the petitioner, a retired Dailywager, has
prayed for following reliefs:
"6. (A)That Your Lordships be pleased to issue an order,
direction and/or writ in the nature of certiorari and/or
any other appropriate writ, order or direction, quashing
and setting aside the impugned decision of the respondent
dated 1862013 marked ANN.D to this petition and letter
dated 0712014 marked ANN.E to this petition and
declare and hold that the petitioner is entitled for
encashment of Unavailed Privilege Leave to the extent of
300 days;
(B) Direct the respondent to release the aforesaid amount
of Unavailed Privilege Leave with 12% interest thereon;
(C) Any other and such further relief as the Hon'ble court
deems fit and proper in the interest of justice together
with costs;
C/SCA/3255/2021 ORDER
3. The petitioner was appointed as a Dailywager on
25.03.1978 and was granted the benefit of the Government
Resolution dated 17.10.1998 on completion of five years of
service. He retired from the service on 30.04.2013. The
petitioner is drawing pension as on today. His grievance
redressed in this writ application is limited to the extent that
he has not been granted the benefit of the Unavailed Privilege
Leave of 300 days to his credit. It appears that the R & B
Department of the Sachivalaya, Gandhinagar addressed a
letter to the Joint Director of Animal Husbandary informing
that the petitioner was not entitled to the encashment of
Unavailed Privilege Leave in view of the G.R. Dated
17.10.1998. "
7.3 The aforesaid paragraphs would show that in Special Civil
Application No.1945 of 2014, there was specific prayer that
petitioner is entitled for leave encashment of unavailed privileged
leave to the extent of 300 days. Ultimately, learned Single Judge
allowed the petition against which Letters Patent Appeal being
Letters Patent Appeal No.13 of 2015 was preferred which also came
to be dismissed vide order dated 20.10.2015 confirming the order
passed by the learned Single Judge.
7.4 Similarly, this Court has also taken similar view vide
judgment dated 20.08.2014 in Special Civil Application No.5530 of
2003 and allied matters holding that the petitioners of that petition
are entitled to the benefits as indicated in the judgment.
7.5 In view of aforesaid judgment, it is crystal clear that the case
law as stated in respect of leave encashment of 300 days unavailed
leave, when by way of various judicial pronouncements similarly
situated persons are granted aforesaid benefits, the same cannot be
denied to the respondent workmen more particularly when it is an
C/SCA/3255/2021 ORDER
admitted position that the respondent workmen were granted all
benefits of permanency.
7.6 As regards the submission of learned AGP Ms.Patel in respect
of direction issued vide Government Resolution dated 12.08.1991
is concerned, it is quite note worthy that as per aforesaid
Government Resolution, daily wagers are not entitled to certain
benefits, however, the Division Bench of this Court in case of
Mahendrakumar Bhagvandas (supra) observed as under, more
particularly in paras:6 and 7:
"6. Letters Patent Appeal Nos.960, 961, 964 and 965 of
2001 are preferred from common oral judgment dated
6.4.2000 of learned Single Judge of this Court, inter alia, in
Special Civil Application Nos.28, 64, 67 and 68 of 1988
whereby original petitioners, working under the appellants
herein, were directed to be given benefits in following terms:
"........... In terms of the order passed in earlier case on
23/10/1999, the respondents are directed to extend all
the benefits of regular employees to the petitioner, who
have been made permanent employees in regular scale of
pay for more than 10 years of service. They should not be
discriminated with other employees. With the aforesaid
observations and direction all the petitions are allowed
and accordingly disposed of....."
7. Apparently the aforesaid resolution dated 18.7.1994
was not pressed into service when the impugned judgment
dated 6.4.2000 was delivered. It is observed by learned
Single Judge as under:
".....It appears that the Government Resolution is very
clear that these petitioners who have completed more
than 10 years as daily workers will be treated as
permanent employees and they will get regular scale of
pay. When these employees are treated as permanent
employees with regular scale of pay, I do not find any
reasons that they will be deprived of the benefits given to
C/SCA/3255/2021 ORDER
other government employees of same category. There
cannot be any confusion about the Government
Resolution and it is obligatory on the part of the
government to extend all the benefits to these
petitioners, who have been regularised on regular posts
with regular scale of pay.............."
7.7 In view of clear view taken by the Division Bench of this
Court that it is obligatory on the part of Government to extend all
the benefits to those petitioners who have been regularised on
regular post with regular pay, the respondent is rightly held
entitled for benefits of leave encashment of 300 days.
7.8 As regards the submission made by Ms.Patel in respect of
delay is concerned, it is true that the respondent workmen
preferred applications belatedly after their superannuation,
however, the prayer of the petitioner was in respect of non
payment of leave encashment of the unprevilaged leave before the
Labour Court. It is admitted position that the respondent workmen
were made permanent and were given benefits flowing from
Government Resolution dated 17.10.1988. Those benefits were,
therefore, preexisting benefits to which the respondents are
entitled after completion of ten years of service. Since in spite of
the entitlement to the benefits, the respondent workmen are not
paid benefits, the cause of action can be said to be continuous
cause of action and, therefore, when the respondents made prayer
by filing Recovery Application claiming their perexisting benefits,
as per their entitlement, the same cannot said to be barred by delay
and hence even the submission in respect of delay also would not
help learned AGP Ms.Patel.
C/SCA/3255/2021 ORDER
7.9 Even otherwise also the amount awarded to the respondent
workman towards 300 leave encashment is a meagre amount and,
therefore, when the Recovery Application have been decided after
almost 06 years and petitions challenging the orders passed in such
recovery applications preferred in the year 2021, considering the
fact that considerable period has been passed after superannuation
of the respondent workmen, they are held entitled to an amount as
awarded in the respective application, I do not find any reason to
disturb the order passed by the learned Labour Court, Rajkot as the
amount awarded to the respondent workmen is very small amount.
8. In view of the aforesaid observations and discussion, I do not
find any reason to interfere with the orders passed by the learned
Presiding Officer, Labour Court, Rakot preferred by the respondent
workmen in respective Recovery Applications and the same deserve
to be dismissed. These petitions are accordingly dismissed. No
order as to costs.
(NIRZAR S. DESAI,J)
MISHRA AMIT V.
