Karshanbhai Shivjibhai Mali vs State Of Gujarat
2021 Latest Caselaw 7401 Guj

      C/SCA/18410/2019                                   ORDER DATED: 01/07/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 18410 of 2019
                              With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of 2021
        In R/SPECIAL CIVIL APPLICATION NO. 18410 of 2019
==========================================================
                         KARSHANBHAI SHIVJIBHAI MALI
                                   Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
MS ASHLESHA M PATEL(6127) for the Petitioner(s) No. 1,2,3,4,5,6,7,8,9
MR ISHAN JOSHI, AGP (99) for the Respondent(s) No. 1
GOVERNMENT PLEADER(1) for the Respondent(s) No. 3
NOTICE SERVED(4) for the Respondent(s) No. 1,2
==========================================================

     CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 01/07/2021
                                ORAL ORDER

1. Considering the nature of prayer made in the petition and the issue being covered by the decision of Hon'ble Supreme Court, the Court with the assistance of learned advocate for the petitioners and learned Assistant Government Pleader proceed with the matter for final disposal as the petitioners are retired senior citizens and the matter pertains to the retiral benefits which includes leave encashment by considering the length of service prior to the date of their regularization. From the pleadings, it is the case of the petitioners that the petitioners were serving as Daily Wagers in the office of the respondents since last more than 35 years. The petitioners have served the respondents continuously and uninterruptedly. The petitioners have served respondents uninterruptedly and continuously as provided under Section 25B of the Industrial Disputes Act, 1947 and the petitioners were extended benefit of Government Resolution dated 17.10.1988 after 10 years and more.

C/SCA/18410/2019 ORDER DATED: 01/07/2021

2. It is the case of the petitioners that after retirement, the petitioners were paid all retirement benefits like GPF, CPF, PF, Gratuity and other benefits which were available to them. That, the rest of the benefits which are required to be paid to the petitioners i.e. amount of leave encashment was illegally withheld by the respondent department and therefore, petitioner no.1 has made representation to respondent no.3 to grant such benefits and the respondent no.3 has forwarded the application to respondent no.2 and recommended to give benefits of leave encashment vide letter dated 08.03.2019. That, the respondent no.2 has opined that the petitioners were working as daily wagers and therefore, such benefits cannot be granted to them vide communication dated 25.03.2019. That, being aggrieved and dissatisfied by the action of the respondent department in not granting benefits of leave encashment, though, issue is decided up to Hon'ble Supreme Court, the petitioners approached this Court by way of present petition.

3. It is submitted that while counting the retiral benefits of the petitioners, their services have been counted from the date, they have been made permanent pursuant to the Government Resolution dated 17.10.1988 and hence, the services of the petitioners have been counted after deducting initial 10 years and more of service from their total services. It is also submitted that the petitioners have not abandon the work at any point of time and they were always ready and willing to work, may be on some occasion work is not provided to the petitioners by respondents, it is not the fault of the petitioners.

4. It is also submitted that though the petitioners have been placed in pay scale in pursuance to Government Resolution dated 17.10.1988, petitioners have been discriminated while extending other benefits like regular employees of the State Government. It is

C/SCA/18410/2019 ORDER DATED: 01/07/2021

submitted that though at the time of retirement 300 leaves have been standing in the account of the petitioners, neither petitioners have been informed to avail the said leaves, nor at the time of retirement, petitioners were paid leave encashment. It is submitted that in case of other similarly situated employees, respondents do extend benefit of leave encashment. The reliance is placed on the decision of this Court in various oral orders which are annexed at Annexure-D, E and F (Respectively).

5. Learned Assistant Government Pleader states that though the issue with regards to considering the length of service to include the service rendered even prior to regularization is decided, yet the factual assertion in individual case of the petitioners will have to be undertaken by the department individually.

6. In view of the aforesaid, the Court refers to the decision in case of Bhailalbhai Muljibhai Rathodia and others in Special Civil Application No.12860 of 2020 and after considering various case laws, the entitlement of the petitioners therein was decided and in paragraph-7 following directions were issued:

"7. In view of the above position of law, the prayers of the petitioners on both the counts deserve to be granted. All the four petitioners are entitled to be paid pension and other retirement benefits including gratuity by reckoning their services from the respective date of their initial entry and joining in the service till the date of their retirement. The petitioners are also held to be entitled to payment of leave encashment upon their retirement as may be admissible to them. The respondent authorities are directed to confer such benefits on each of the petitioners by passing appropriate formal order in that regard and pay the differential amount which may become payable thereby, within a period of eight weeks from the date of receipt of the present order."

7. Another judgment relied upon wherein in Special Civil Application No.11203 of 2020 dated 26.11.2020 accepting the very

C/SCA/18410/2019 ORDER DATED: 01/07/2021

same contentions, directions were issued in paragraph-8 which are as under:

"8. In view of above position of law and facts of the case, prayer made in the petition deserves to be granted. It is held and declared that the action on the part of the respondents in not making payment of pensionary benefits to the petitioners by reckoning the entire length of service from the date of initial joining of the petitioners, is illegal. The respondents are directed to fix the pension of the petitioners by counting their services from the date of their initial joining until the date of retirement. All other retirement benefits shall be paid including the leave encashment benefit and the same shall be paid to the petitioners within a period of twelve weeks from the date of receipt of this order. If the amounts are not paid within the stipulated time, it is directed that the due amount shall carry interest at the rate of 8% from the date of filing of the petition i.e. from 09.09.2020."

8. It may also be noted that the issue of granting benefit by considering the entire length of service from the initial date of appointment was raised before the Division Bench of this Court in Letters Patent Appeal No.84 of 2021 by the State Government which came to be disposed of vide order dated 30.01.2021 wherein the contention of the State Government was rejected thereby confirming the considering of the length of service from the initial date of appointment of petitioners was confirmed for the purpose of calculating pension.

9. In view of the aforesaid, it is hereby held that the petitioners are entitled to receive the retiral benefits which includes leave encashment by treating the length of service of the petitioners from the date of their actual appointment. This exercise to be concluded within a period of six months from today, failing which, it will be open for the department to initiate action for recovering the interest portion from the incumbent who has delayed the payment of the benefits as directed by this Court. In case the department fails to undertake this exercise within the period of six months, the

C/SCA/18410/2019 ORDER DATED: 01/07/2021

petitioners will be entitled to receive the interest @ 6% .

10. The submission of learned Assistant Government Pleader also requires to be taken into consideration that the exercise of calculating will involve factual examination of individual petitioner which the department will have to undertake and therefore, the department is directed to consider the individual case of the petitioners for the purpose of their retirement benefits including the leave encashment amount by treating the petitioners to be in service from the date of their actual appointment.

11. With the above observations, the petition stands disposed of.

12. In view of disposal of main matter being Special Civil Application No.18410 of 2019, Civil Application (Fixing Date of Early Hearing) No.1 of 2021 would not survive and stands disposed of accordingly.

Direct service is permitted.

(A.Y. KOGJE, J) TAUSIF SAIYED