Gujarat High Court
State Of Gujarat vs Somiben Devshibhai Rathod Legal ... on 18 February, 2021
Bench: Nirzar S. Desai
C/SCA/3268/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3268 of 2021
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STATE OF GUJARAT
Versus
SOMIBEN DEVSHIBHAI RATHOD LEGAL HEIRS OF DEVSHIBHAI
VASTABHAI RATHOD
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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 petition under Articles 226 and 227 of the
Constitution of India, the petitioner has challenged the order dated
02.04.2019 passed by the learned Presiding Officer, Labour Court
No.2, Rajkot in Recovery Application No.20 of 2013 whereby while
allowing the Recovery Application preferred by the respondent
workman, the learned Presiding Officer, Rajkot held that the
respondent workman is entitled to sum of Rs.70,560/(Rupees
Seventy Thousand Five Hundred Sixty Only) towards leave
encashment of unavailed leave of 300 days. The learned Presiding
Officer directed that the aforesaid amount be paid to the
respondent workman within 30 days from the date of the
application with 6% interest and further imposed cost of
Rs.11,000/ to be paid to the respondent workman by the
petitioner.
C/SCA/3268/2021 ORDER
2. It was the case of the respondent workman, who preferred
Recovery Application No.20 of 2013, before the learned Labour
Court, Rajkot that he was working as Laborer under the petitioner
since January, 1986 and retired on 30.04.2009 and his last drawn
salary was Rs.9,552.60 ps per month and he was made permanent
as unskilled daily wager. Since he was granted benefits of
Government Resolution dated 17.10.1988, he is entitled to leave
encashment of unavailed leave of 300 days and accordingly he
preferred Recovery Application No.20 of 2013 before the Labour
Court, Rajkot with a direction to direct the petitioner employer to
pay a sum of Rs.95,526/ along with interest and cost.
2.1 In the aforesaid Recovery Application, notice was issued and
the petitioner filed reply. The main contention of the reply filed by
the petitioner was that as per the subsequent Government
Resolutions dated 12.08.1991 and 18.07.1994, the respondent
workman is entitled only for limited benefits and though words
"permanent service" are used in Government Resolution dated
18.07.1994, those words are used and incorporated only to provide
job security to the workman and since the respondent workman
was not serving in the establishment of the petitioner, he cannot be
treated as Government employee and hence the respondent
workman is not entitled to leave encashment of 300 days leave.
2.2 The learned Presiding Officer, Labour Court No.2, Rajkot
after taking into consideration the oral as well as documentary
evidences, which were led before it on record, after taking into
consideration the provisions of Section 33(C) of the Industrial
C/SCA/3268/2021 ORDER
Disputes Act, 1947 ['the I.D.Act', for short] as well as the Division
Bench judgment of this Court 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, held that the
respondent workman is entitled to leave encashment of unavailed
leave of 300 days and allowed the Reference vide order dated
02.04.2019, which is the order impugned in this petition.
3. Heard learned Assistant Government Pleader for the
petitioner State through video conference. She submitted that
though it is undisputed fact that the respondent workman was
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
C/SCA/3268/2021 ORDER
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,
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 application and awarding the
respondent workman sum of Rs.70,560/ towards leave
encashment of 300 days unavailed leave.
3.1 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 aforesaid order dated
02.04.2019 being contrary to entitlement as discussed and decided
by the Government Resolution dated 12.08.1991 and 18.07.1994,
the award is bad in law and deserves to be quashed and set aside.
3.2 Ms.Patel also submitted that the impugned award is also
erroneous as the learned Presiding Officer has not considered the
fact that the respondent workman retired from the service on
30.04.2009 whereas the award was preferred only after almost 04
C/SCA/3268/2021 ORDER
years in the year 2013 and, therefore, even on the ground of delay
also learned Presiding Officer ought to have dismissed the
application preferred by the respondent workman.
3.3 In view of aforesaid submissions, Ms.Patel urged to quash
and set aside the impugned order dated 02.04.2019 passed by the
learned Presiding Officer, Labour Court No.2, Rajkot.
4. I have considered the submissions made by learned Assistant
Government Pleader Ms.Asmita Patel and I have gone through the
order dated 02.04.2019 passed by the learned Presiding Officer,
Labour Court No.2, Rajkot in Recovery Application No.20 of 2013
and I have also considered other material which is placed on record
by Ms.Patel.
4.1 On perusal of the order what transpires is that the order was
passed by the learned Presiding Officer, Labour Court No.2, Rajkot
by relying upon case laws and settled propositions 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
C/SCA/3268/2021 ORDER
respondent workman 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:
"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....."
4.2 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:
C/SCA/3268/2021 ORDER
"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;
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. "
4.3 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
C/SCA/3268/2021 ORDER
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.
4.4 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.
4.5 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 workman more particularly when it is an
admitted position that the respondent workman was granted all
benefits of permanency.
4.6 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
C/SCA/3268/2021 ORDER
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
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.............."
4.7 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.
4.8 As regards the submission made by Ms.Patel in respect of
delay is concerned, it is true that the respondent workman retired
in the year 2009 whereas Recovery Application was preferred after
delay of around 04 years i.e. in the year 2013 but the prayer of the
C/SCA/3268/2021 ORDER
petitioner was in respect of nonpayment of leave encashment of
the unprevilaged leave before the Labour Court. It is admitted
position that the respondent was made permanent and was given
benefits flowing from Government Resolution dated 17.10.1988.
Those benefits were, therefore, preexisting benefits to which the
respondent is entitled for after completion of ten years of service.
Since in spite of the entitlement to the benefits, the respondent
workman is not paid benefits, the cause of action can be said to be
continuous cause of action and, therefore, when the respondent
made prayer by filing Recovery Application claiming his per
existing benefits, as per his 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.
4.8 Even otherwise also the amount awarded to the respondent
workman towards 300 leave encashment is a meagre amount of
Rs.70,560/ and, therefore, when the Recovery Application of the
year 2013 was decided after almost 05 years on 02.04.2019 and
even this petition challenging the aforesaid order dated 02.04.2019
is also preferred in the year 2021, considering the fact that the
respondent was retired in the year 2009 after almost 11 years of his
retirement if he is held entitled to an amount of Rs.70,560/, I do
not find any reason to disturb the aforesaid order dated 02.04.2019
as the amount awarded to the respondent workman is very small
amount.
5. In view of the aforesaid observations and discussion, I do not
find any reason to interfere with the order dated 02.04.2019 passed
C/SCA/3268/2021 ORDER
by the learned Presiding Officer, Labour Court No.2, Rajkot in
Recovery Application No.20 of 2013 and the same deserves to be
dismissed. This petition is accordingly dismissed. No order as to
costs.
(NIRZAR S. DESAI,J)
MISHRA AMIT V.
