Gujarat High Court
State Of Gujarat vs Rameshbhai Nathurambhai Desani on 25 February, 2021
Bench: Nirzar S. Desai
C/SCA/3816/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3816 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 3848 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 3852 of 2021
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STATE OF GUJARAT
Versus
RAMESHBHAI NATHURAMBHAI DESANI
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Appearance:
MS. ASMITA PATEL (IN SCA NO. 3816/201),
MR. AKASH CHHAYA (IN SCA NO. 3848/2021 AND SCA NO.3852/2021),
AGP (1) 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 : 25/02/2021
COMMON ORAL ORDER
1. Heard learned Assistant Government
Pleader Ms. Asmita Patel (in Special Civil
Application No. 3816 of 2021) and learned
Assistant Government Pleader Mr. Akash Chhaya (in
Special Civil Application Nos. 3848 of 2021 and
3852 of 2021) through video conference.
2. By way of all these three petitions, the
petitionerState has challenged three different
orders passed by the Judge, Labour Court No.2,
Rajkot in different Recovery Applications filed
under Section 33(c)(2) of the Industrial Disputes
C/SCA/3816/2021 ORDER
Act, 1947 (hereinafter referred to as 'the Act,
1947' for short), whereby, the respective workmen
had prayed for leave encashment of 300 days
unavailed leave. The Judge, Labour Court No.2,
Rajkot passed three separate orders dated
18.11.2019 and 16.12.2019 and allowed those
applications and directed the petitioner State
to pay the amount as per the entitlement of the
respondentsworkmen, the details of which are
stated in subsequent paragraphs.
3. Special Civil Application No. 3816 of
2021 has preferred against the order dated
18.11.2019 passed by the Judge (C.D.), Labour
Court No. 2, Rajkot in Recovery Application No.
36 of 2019, whereby, the Labour Court allowed the
Recovery Application and directed the petitioner
to pay a sum of Rs.3,78,000/ within a period of
30 days from the date of the award with 6%
interest from the date of the filing of the
application. It was the case of the workman -
Rameshbhai Nathurambhai Desani, who had preferred
Recovery Application No. 36 of 2019 before the
Labour Court, Rajkot that he was working as a
Labour since 01.08.1979 and retired on account of
reaching the age of superannuation on 31.05.2018
and had worked for total period of 38 years under
the petitioner. His last drawn salary including
basic, grade pay and dearness allowance was
C/SCA/3816/2021 ORDER
Rs.37,800/. He was granted the benefits of the
government resolution dated 17.10.1988 and he has
also received the gratuity and pension.
4. Special Civil Application No. 3852 of
2021 has preferred against the order dated
16.12.2019 passed by the Judge (C.D.), Labour
Court No. 2, Rajkot in Recovery Application No. 3
of 2019, whereby, the Labour Court allowed the
Recovery Application and directed the petitioner
to pay a sum of Rs.2,78,720/ within a period of
30 days from the date of the award. It was the
case of the workman - Jentibhai Naranbhai Shaikh
who had preferred Recovery Application No. 3 of
2019 before the Labour Court, Rajkot that he
retired on account of reaching the age of
superannuation on 30.06.2017 and had worked for
total period of 38 years under the petitioner.
His last drawn salary including basic, grade pay
and dearness allowance was Rs.27,872/. He was
granted the benefits of the government resolution
dated 17.10.1988 and he has also received the
gratuity and pension.
5. Special Civil Application No. 3848 of
2021 has preferred against the order dated
18.11.2019 passed by the Judge (C.D.), Labour
Court No. 2, Rajkot in Recovery Application No.
35 of 2019, whereby, the Labour Court allowed the
C/SCA/3816/2021 ORDER
Recovery Application and directed the petitioner
to pay a sum of Rs.2,89,800/ within a period of
30 days from the date of the award with 6%
interest from the date of the filing of the
application. It was the case of the workman -
Lilaben Chhaganbhai Kateshiya who had preferred
Recovery Application No. 35 of 2019 before the
Labour Court, Rajkot that she was working as a
Labour since on 01.04.1979 and retired on account
of reaching the age of superannuation on
31.05.2018 and worked for total period of 39
years under the petitioner. Her last drawn salary
including basic, grade pay and dearness allowance
was Rs.28,980/. She was granted the benefits of
the government resolution dated 17.10.1988 and
she has also received the gratuity and pension.
6. Since except the aforesaid factual
background, the issue agitated by the respective
workman was same and though, separate orders were
passed by the Labour Court, Rajkot, considering
the fact that the issue under challenge is the
same, all these three petitions are taken up
together for hearing and the same is being
decided together by way of this common order.
7. It was the case of the workmen before
the Labour Court, Rajkot that, though, they have
been retired on account of reaching the age of
C/SCA/3816/2021 ORDER
superannuation and have been granted the benefits
as per the government resolutions dated
17.10.1988 and 24.03.2006, they are not granted
the benefit of the leave encashment of 300 days
unavailed leave. According to the respective
workmen before the Labour Court, they were
required to be treated at par with the government
employees and therefore, they are entitled to get
leave encashment for 300 days of unavailed leave.
Accordingly, the workman Rameshbhai Nathurambhai
Desani respondent in Special Civil Application
No. 3816 of 2021 prayed for an amount of
Rs.3,78,000/ towards leave encashment of 300
days unavailed leave by preferring Recovery
Application No. 36 of 2019. The workman -
Jentibhai Naranbhai Shaikh respondent in
Special Civil Application No. 3852 of 2021 prayed
for an amount of Rs.2,78,720/ towards leave
encashment of 300 days unavailed leave by
preferring Recovery Application No. 3 of 2019.
The workman - Leelaben Kateshia respondent in
Special Civil Application No. 3848 of 2021 prayed
for an amount of Rs.2,89,800/ towards leave
encashment of 300 days unavailed leave by
preferring Recovery Application No. 35 of 2019.
8. In all these three Recovery
Applications, the petitionerState who was
respondent in those Recovery Applications filed
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the reply and contended that, in view of the
various government resolutions, the respondent
workmen cannot be equated with the government
employees and therefore, they are not entitled to
the benefits of the leave encashment of 300 days
unavailed leave. Ultimately, the Judge (C.D.),
Labour Court No.2, Rajkot relying upon various
judgments of this Court, allowed the Recovery
Applications and passed three separate orders,
details of which are already given in the
foregoing paragraphs.
9. Heard learned Assistant Government
Pleaders for the petitionerState through video
conference. Learned Assistant Government Pleaders
submitted that though it is undisputed fact that
the respondents 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 respondents workmen. 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
C/SCA/3816/2021 ORDER
not entitled to those benefits. Learned Assistant
Government Pleaders 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, learned Assistant Government
Pleaders submitted that in view of clearcut
language of above two GRs, the respondents
workmen are 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 respondentsworkmen sum towards
leave encashment of 300 days unavailed leave, as
stated in the foregoing paragraphs.
9.1. learned Assistant Government Pleaders
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. Learned Assistant Government Pleaders,
therefore, submitted that the impugned orders
C/SCA/3816/2021 ORDER
being contrary to entitlement as discussed and
decided by the Government Resolution dated
12.08.1991 and 18.07.1994, the impugned awards
are bad in law and deserve to be quashed and set
aside.
9.2. In view of aforesaid submissions,
learned Assistant Government Pleaders urged to
quash and set aside the impugned orders passed by
the learned Labour Court, Rajkot.
10. I have considered the submissions
made by learned Assistant Government Pleaders and
I have gone through the impugned orders passed by
the learned Labour Court, Rajkot in Recovery
Applications mentioned in the foregoing
paragraphs and I have also considered other
material which is placed on record by learned
Assistant Government Pleaders.
10.1. On perusal of the orders, 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 reported in 2011 (2) GLR
1290 which was subsequently confirmed by the
C/SCA/3816/2021 ORDER
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 delivered in Special
Civil Application No.5530 of 2003 and allied
matters. When a query was put to learned
Assistant Government Pleaders as to how the
judgments relied upon by the learned Presiding
Officer while passing the impugned orders are not
applicable in the facts of the present case and
what is difference of status between the present
respondentsworkmen and the workman who was party
in those litigation. Learned Assistant Government
Pleaders candidly submitted that from the
aforesaid judgments, it seems that there is no
difference in the service condition of present
respondentsworkmen 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
Pleaders, 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
C/SCA/3816/2021 ORDER
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....."
10.2. 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
C/SCA/3816/2021 ORDER
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. "
10.3. 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.
10.4. 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
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that petition are entitled to the benefits as
indicated in the judgment.
10.5. 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 respondentsworkmen, more
particularly, when it is an admitted position
that the respondentsworkmen were granted all
benefits of permanency.
10.6. As regards the submission of learned
Assistant Government Pleaders in respect of
direction issued vide Government Resolution dated
12.08.1991 is concerned, it is quite noteworthy
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
C/SCA/3816/2021 ORDER
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 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.............."
10.7. 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 employees who have been
regularized on regular post with regular pay, the
respondents are rightly held entitled for
C/SCA/3816/2021 ORDER
benefits of leave encashment of 300 days.
11. In view of the aforesaid observations
and discussion, I do not find any reason to
interfere with the impugned orders passed by the
learned Judge, Labour Court No.2, Rajkot in
Recovery Applications mentioned in the foregoing
paragraphs and the same deserve to be dismissed.
These petitions are accordingly dismissed. No
order as to costs.
(NIRZAR S. DESAI,J)
Pradhyuman
