Gujarat High Court
Executive Engineer vs Bhalsinh Amarsinh Pagi on 23 June, 2021
Bench: Nirzar S. Desai
C/LPA/485/2021 ORDER DATED: 23/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 485 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 23007 of 2019
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2021
In R/LETTERS PATENT APPEAL NO. 485 of 2021
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EXECUTIVE ENGINEER
Versus
BHALSINH AMARSINH PAGI
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Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 23/06/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. The present appeal is directed against the
common order dated 17.12.2020 rendered by the
learned Single Judge (Coram: Hon'ble Mr.
Justice Ashutosh J. Shastri) in Special Civil
Application no.19372 of 2018 and allied
matters and the present appeal arises out of
the order passed in SCA No.23007 of 2019.
2. The controversy raised in this appeal came to
be initiated by way of filing Writ Petitions
under Article 226 of the Constitution of India
praying for an appropriate writ, order or
direction directing the appellant to make
payment of pensionery benefits to the
C/LPA/485/2021 ORDER DATED: 23/06/2021
respondent - original Writ Petitioner by
counting his entire length of service till
retirement and fixation of approximate pension
with other consequential benefits. The learned
Single Judge, by the impugned common order
dated 17.12.2020, has been pleased to allow
the Writ Petitions and observed thus:-
"10. From the aforesaid
observations which are made by
the coordinate bench relying upon
the various decisions, there is
no reason for this Court
to deviate from the aforesaid
preposition of law. Hence, keeping
that in mind, a case is
made out by the petitioners.
Even, recently, this Court relying
upon the same, has also dealt with
yet another petition being Special
Civil Application No. 11642
of 2020 decided on 10.12.2020 in
which very learned advocates have
represented the case. Hence, the
said decision is also being
considered while disposing of
the present group of petitions.
11. In view of foregoing
reasons and discussion, it is
declared that the action on part of
the respondent authority in
not making payment of
pensionary benefits to the
petitioners and in not counting
the entire length of service
from their initial dates of
employment reflecting from chart
till their retirement is arbitrary,
illegal and not sustainable in the
C/LPA/485/2021 ORDER DATED: 23/06/2021
eye of law. The respondents are as
such directed to fix the
pension of each of the
petitioners by counting their
entire service from their
respective dates of joining till
the date of retirement as provided
in the chart which is quoted herein
before and the petitioners are also
entitled to all other
retirement benefits including
leave encashment and difference
of gratuity as may be
possible. The total amount payable
towards pension be calculated as
above. The arrears arising thereby
and other retirement benefits
including those mentioned herein
before shall be paid to the
petitioners within a period of six
weeks from the date of receipt of
writ of this Court.
12. It is further provided and
directed that if the same is not
paid within the stipulated period of
six weeks, it shall carry
interest at the rate of 6.5%
from the date of filing of
respective petition. The respondents
are further directed to continue to
pay the pension to the petitioners
duly calculated as above.
13. While parting with the order, it
is further made clear that the
petitioners are entitled for all
those benefits for the years
in which they have completed
240 days and accordingly, the amount
shall have to be paid and further,
the petitioners are also require
to file an undertaking
C/LPA/485/2021 ORDER DATED: 23/06/2021
within a period of three weeks
from today to the effect
that in the event that they are
not entitled to leave encashment as
one of the benefit of Government
Resolution dated 17.10.1988 by
virtue of judgment in group of
Letters Patent Appeals, the amount
so paid to the petitioners of that
benefit shall be adjusted
against the pension. Upon filing
of such undertaking, due benefit be
paid to the petitioners as per
the aforesaid direction within the
time schedule.
14. With the above observations and
directions, the petitions stand
allowed. Rule is made absolute in
each petition.
15. Since all the petitions are
allowed, Civil Application No. 1 of
2020 which is filed for fixing an
early date of hearing does not
survive and stands disposed of."
3. Heard Mr. Hemant Munshaw, learned advocate for
the appellant, Mr. Dipak R. Dave, learned
advocate for the Respondent no. 1 and Ms.
Jyoti Bhatt, learned AGP for respondents no. 2
and 3.
4. Mr. Munshaw, learned advocate for the
appellant has taken this Court through the
observations made by the learned Single Judge
and the directions given by the learned Single
Judge and vehemently contended that the appeal
C/LPA/485/2021 ORDER DATED: 23/06/2021
deserves to be considered on merits as the
learned Single Judge has gone beyond the scope
and ambit of Government Resolution dated
17.10.1988. It was contended by Mr. Munshaw,
learned advocate for the appellant that the
learned Single Judge has decided the issue of
pensionary benefits contrary to law and facts.
It was also contended by Mr. Munshaw that even
the learned Single Judge has misread the
provisions of Section 25B of the Industrial
Disputes Act, 1947 as well as the Government
Resolution dated 17.10.1988. On the aforesaid
grounds, it was therefore contended by Mr.
Munshaw that the appeal deserves consideration
and the same deserves to be allowed.
5. Ms. Jyoti Bhatt, learned Assistant Government
Pleader appearing for the State of Gujarat and
its authorities has adopted the contentions
raised by Mr. Munshaw, learned advocate for
the appellant.
6. Mr. Dipak R. Dave, learned advocate for the
private respondent-original Writ Petitioner
has contended that the common order dated
17.12.2020 impugned in this appeal was
challenged by another Panchayat by filing
Letters Patent Appeal no.350 of 2021 arising
out of Special Civil Application no. 1574 of
2020 and Letters Patent Appeal no.351 of 2021
C/LPA/485/2021 ORDER DATED: 23/06/2021
arising out of Special Civil Application
no.600 of 2020 which have already been
dismissed by the Coordinate Bench and
therefore, the appeal deserves to be
dismissed. Mr. Dave invited attention of this
Court to the fact that the issue which is
decided in Letters Patent Appeals no.350 of
2021 and 351 of 2021 was identical in nature
and therefore, the appeal, being merit-less,
deserves to be dismissed.
7. No other or further submissions, averments,
grounds and/or contentions are made by the
learned advocates appearing for the respective
parties.
8. It is a matter of fact that the learned Single
Judge, by the impugned common order dated
17.12.2020, has been pleased to allow all the
Writ Petitions which were heard together as a
group of petitions. It is also a matter of
fact that identical issue arises in the Writ
Petition and the appeal under consideration.
The Coordinate Bench of this Court (Coram:
Hon'ble the Chief Justice Mr. Vikram Nath and
Hon'ble Mr. Justice Bhargav D. Karia), relying
upon the order passed in Letters Patent Appeal
no.169 of 2020 were pleased to dismiss Letters
Patent Appeals no.350 and 351 of 2021 by
orders dated 5.4.2021 and 24.3.2021
C/LPA/485/2021 ORDER DATED: 23/06/2021
respectively.
9. In Letters Patent Appeal no.350 of 2021
arising out of the very common order rendered
in Special Civil Application no.1574 of 2020,
the Coordinate Bench, vide order dated
5.4.2021, has observed thus:-
"This matter has been taken up upon a
mention being made by learned
counsels for both the sides i.e.
Mr.U.M. Shastri and Mr.Dipak Dave,
learned advocates stating that this
matter is squarely covered by series
of judgments of Division Bench of
this Court confirmed upto the Supreme
Court. As such, this appeal may also
be disposed of on the same terms
of the order dated 18th
February, 2020 passed in Letters
Patent Appeal no.169 of 2020 as
under:
"The subject matter of the Letters
Patent Appeal, as fairly stated by
learned advocate for the
applicants, is squarely covered
against the applicants, inasmuch as,
against a decision rendered in
Special Civil Application No.12350 of
2016, Letters Patent Appeal No.2152
of 2007, was preferred, and the same
has attained finality in view of the
order dated 04.01.2019, passed by the
Apex Court dismissing Special Leave
Petition (Civil) Diary No.45860 of
2018 preferred by the State of
Gujarat and another. The appeal is
accordingly dismissed."
Accordingly, the present appeal
C/LPA/485/2021 ORDER DATED: 23/06/2021
also stands dismissed on the same
terms of the above order.
Consequently, connected Civil
Application also stands disposed
of."
10. The issue involved in this appeal is thus
squarely covered by the aforesaid judgment. On
the same terms, the appeal deserves to be
dismissed and is hereby dismissed. Civil
Application is also dismissed. However, there
shall be no order as to costs.
(R.M.CHHAYA, J)
(NIRZAR S. DESAI,J)
BIJOY B. PILLAI
