Ramanbhai Dahyabhai Baria vs State Of Gujarat
2021 Latest Caselaw 7038 Guj

     C/SCA/14936/2020                                   JUDGMENT DATED: 28/06/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 14936 of 2020

                                   With
                R/SPECIAL CIVIL APPLICATION NO. 870 of 2021

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                Sd/-

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1     Whether Reporters of Local Papers may be allowed                        No
      to see the judgment ?

2     To be referred to the Reporter or not ?                                 No

3     Whether their Lordships wish to see the fair copy                       No
      of the judgment ?

4     Whether this case involves a substantial question                       No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                        RAMANBHAI DAHYABHAI BARIA
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
MR ROHAN SHAH, AGP (99) for the Respondent(s) No. 1
MR PRADIP J PATEL(5896) for the Respondent(s) No. 2,3
NOTICE SERVED(4) for the Respondent(s) No. 1,4
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                              Date : 28/06/2021

                             ORAL JUDGMENT

1. RULE. Mr.Rohan Shah, learned AGP waives service of rule for the respondent-State and Mr.Pradip Patel, learned advocate waives service of rule for the respondent nos.2 & 3.

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2. Both the aforesaid petitions are raising same issues and arising out of identical facts and against the same respondents.

3. At the request of learned advocates for both the parties, both the matters are taken up for final disposal.

4. At the outset, learned advocate for the respondent is permitted to file his formal reply in Special Civil Application No.14936 of 2020, however, considering the common questions and issues raised in the affidavit-in-reply filed in Special Civil Application No.870 of 2021 which covers all the issues and answers to the petition is considered to be reply in both the petitions.

5. Since the issues involved in both these petitions are same, Special Civil Application No.870 of 2021 is treated as the lead matter, facts of which are as under:-

5.1 The petitioner was serving as "Rojamdar" in the office of respondent no.3 with effect from 21.12.1983. The petitioner has served the respondents continuously and uninterruptedly.

5.2 It is submitted that though the petitioner entered into service of respondent nos.2 & 3 on 21.12.1983, he has been conferred benefits pursuant to Government Resolution dated 17.10.1988 only on 01.01.2003. In fact, the petitioner is entitled for the said benefits from the year 1990. It appears that the reason for extending said benefits on 01.01.2003 seems to be on the ground that petitioner has not completed 240 days in earlier five years.

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5.3 The petitioner thereafter reached to the age of superannuation on 31.07.2010 and he was made to retire from the service. The petitioner being less literate and having no knowledge of the fact that the petitioner is entitled to pensionary benefits and also full amount of gratuity, could not take up his case before the respondents immediately. In fact, it is the duty of the respondents to make payment of pensionary benefits and gratuity dues at the doorstep of the petitioner.

5.4 With the help of Union, the petitioner represented his case to the respondent nos.1 to 3 by representation dated 27.10.2020. Though the respondents have received the said representation, till date, nothing has been done by the respondents to mitigate the hardship of the petitioner.

5.5 Though the petitioner has been placed in pay-scale in pursuant to the Government Resolution dated 17.10.1988, the petitioner has been discriminated while extending other benefits like regular employees of the State Government. It is submitted that though at the time of retirement leaves have been standing in the account of the petitioner, neither the petitioner has been informed to avail the said leaves nor at the time of retirement petitioner was paid leave encashment. It is submitted that in case of other similarly situated employees, the respondents to extend the benefits of leave encashmen.

5.6 In fact, in several cases where under Government Resolution dated 19.10.1988, employees have been placed in pay-scale, such employee would be allowed to encash the leave and would be paid leave encashment benefit whereas in several

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cases, the State Government denies the said benefits. Thus, the State Government is adopting pick and choose policy.

5.7 In this case, though the petitioner has been placed in pay- scale and though leaves standing credit in the account of the petitioner at the time of his retirement, he has not been paid the said benefits of leave encashment. Even in similar cases, this Court held that while employee is placed in pay-scale in pursuance to Government Resolution dated 19.10.1988, several other benefits which are available to the regular employees shall have to be extended to such employees including benefit of leave encashment. Though there is settled law on this behalf, in each case, the State Government adopts pick and choose policy and in the present case, the petitioner has been discriminated despite petitioner's entitlement for leave encashment.

5.8 It is submitted that as held by this Court in number of cases, case of the petitioner cannot be denied for the purpose of pension on the ground of petitioner has not put in 10 years of service after he has been conferred benefits under Government Resolution dated 17.10.1988. In fact, past service of the petitioner shall have to be taken into consideration for the purpose of pension also. It is submitted that the petitioner has put in several years of service and the same cannot be wiped out by the respondents while counting only the portion of service after conferring benefits of Government Resolution dated 17.10.1988. This approach on the part of the respondent authorities is totally illegal, arbitrary and violative of fundamental rights of the petitioner. It is submitted that this Court has also directed the authorities that continuous service of an employee is to be counted from the date of entry until he is retired from service. For the purpose of pensionary benefits,

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service rendered prior to date of regularization is also required to be taken into consideration. Despite several orders passed on this behalf by this Court, respondents are adopting discriminatory approach and pick and choose policy.

6. Learned advocate for the petitioner has submitted that the issue involved in this petition pertains to consideration of the whole length of service of the petitioner for the purpose of pensionary benefits and not only restricting the qualifying service period after regularization which is already decided by various decisions of this Court and confirmed by Division Bench of this Court in Letters Patent Appeals.

7. Learned advocate for the petitioner has submitted that the petitioner was appointed on 21.12.1983 as a "Rojamdar" in the office of respondent no.3. It is submitted that the petitioner was entitled to the benefits as conferred by the Government Resolution dated 17.10.1988 and was to be made permanent after 10 years of service i.e. to say in the year 1993. However, the petitioner was conferred with the benefits of Government Resolution dated 17.10.1988 with effect from 01.01.2003, meaning thereby, 10 years after his entitlement. It is submitted that the petitioner retired in the year 2008. Considering the date of making him permanent under the Government Resolution dated 17.10.1988 in the year 2003 and having retired in 2008, the respondents considered the period of service only 5 years and held that the petitioner is not entitled to the pensionary benefits considering the length of service.

8. Learned advocate for the petitioner has drawn attention of this Court to the decision of this Court in case of Lalbhai Sukabhai Dabhi Vs. Deputy Executive Engineer passed by

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this Court in Special Civil Application No.13585 of 2019 dated 06.12.2019. Learned advocate for the petitioner has also drawn attention of this Court to the common oral order dated 17.12.2020 passed in Special Civil Application No.19372 of 2018 and allied matters particularly, submitting that the said group of petitions covers the issues involved in present petition and that too in the case where the present respondent-District Panchayat was also party respondent therein, and therefore, the issue is squarely covered.

9. Learned advocate for the respondent nos.2 & 3 has drawn attention of this Court to the affidavit-in-reply filed on behalf of respondent no.2 and submitted that for the purpose of pensionary benefits, the service, which is required to be taken into account is from the date of joining, and therefore, the petitioner will be entitled to the benefits, as claimed for only from if the petitioner rendered qualifying service of more than 10 years and also by taking into consideration the provisions of Section 25 of the Industrial Disputes Act, 1947.

10. Learned advocate for the respondent nos.2 and 3 also submitted that the issue is still at large as the State has preferred Letters Patent Appeals before the Division Bench of this Court being Letters Patent appeal No.325 of 2018 and Letters Patent Appeal No.350 of 2020.

11. In rejoinder, learned advocate for the petitioner has placed on record the decision of the Division Bench of this Court in aforesaid Letters Patent Appeal No.350 of 2021 dated 05.04.2021.

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12. Having considered the rival submissions of the parties and having perused the documents on record, the issue is required to be considered whether the service period of the petitioner which the petitioner has rendered as "Rojamdar" from the date of appointment i.e. 21.12.1983 is to be treated for the purpose of pensionary benefits or not. The petitioner was entitled to the benefits as conferred under Government Resolution dated 17.10.1988 in the year 1993. However, the petitioner was given the benefits of Government Resolution dated 17.10.1988 only on 01.01.2003. There is no dispute that the petitioner has been working continuously in service since his initial appointment of 1983. Therefore, the case of the petitioner deserves consideration and the service period prior to the confirmation in the year 2003 is also required to be taken into consideration while calculating the pensionary benefits.

13. This Court in Special Civil Application No.13585 of 2019 has held as under:-

"5. In Executive Engineer, Panchayat v. Samudabhai Jyotibhai Phedi [2017 (4) GLR 2952], the Division Bench has laid down, upholding the decision of the learned Single Judge, that the past services of the daily-wagers where they have completed 240 days of continuous service as per Section 25B of the Industrial Disputes Act, would qualify for pension.

5.1 The Division Bench in Samudabhai Jyotibhai Phedi (supra) noticed the provisions of the Resolution dated 17th October, 1988 with reference to the nature of benefits flowing therefrom, in paragraph 6 of the judgment stating as under.

"6. As is well known, under Government Resolution dated 17.10.1988, the Government decided to grant benefits of regularization and permanency to daily rated workers who had completed more than 10 years of actual service prior to such date, of course subject to certain conditions. One of the clauses in the said Government Resolution was that the benefit of regularization would be available to those workmen who had completed more than 10 years of service considering the provisions of section 25B of the Industrial Disputes Act.

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They would get benefits of regular pay scale and other allowances, pension, gratuity, regular leaves etc. They would retire on crossing age of 60 years. That the period of regular service shall be pensionable."

5.1.1 It was stated that the Government verified and cleared the ambiguity in the Resolution, observing as under.

"7. This Government Resolution led to several doubts. The Government itself therefore came up with a clarificatory circular dated 30.05.1989, in which, several queries which were likely to arise were clarified and answered. Clause-6 of this circular is crucial for our purpose. The question raised was that an employee who had put in more than 10 years of service as on 01.10.1988, would be granted the benefit of Government Resolution dated 17.10.1988. In that context, the doubt was whether for the purpose of pension, the past service of completed years prior to regularization would be considered or whether the pensionable service would be confined to the service put in by the employee after he is actually regularized. The answer to this query was that those employees who had put in more than 10 years of service as per Government Resolution dated 17.10.1988 would get the benefit of pension. For such purpose, those years during which the employee had fulfilled the provisions of section 25B of Industrial Disputes Act, such years would qualify for pensionary benefit."

5.1.2 The Court thereafter held,

"Two things immediately emerge from this clarification. First is that the query raised was precisely what is the dispute before us and second is that the clarification of the Government was unambiguous and provided that every year during which the employee even prior to his regularization had put in continuous service by fulfilling the requirement of having worked for not less than 240 days as provided under section 25B of the Industrial Disputes Act, would count towards qualifying service for pension. In view of the clarification by the government itself, there is no scope for any further debate. The petitioner was correct in contending that having put in more than 10 years of continuous service as a labourer in the past, he had a right to receive pension upon superannuation. This is precisely what the learned Single Judge has directed, further enabling the employer to verify as to in how many years he had put in such service and then to compute his pension."

5.2 Thus it is a clear position of law emerging from decision in Samudabhai Jyotibhai Phedi (supra) that entire past services of daily-wager which was continuous is liable to be reckoned for the purpose of pensionary benefits and for the purpose of

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granting pension. In the facts of the case of the petitioner, the factum is not controverted and it is undisputed that the petitioner has throughout worked since his joining, to make his services continuous.

6. The only reason put-forth by the authorities to deny the petitioner the pension is that after he was made permanent, he has not completed 10 years of qualifying service, however if the date of joining of the petitioner which is 12th December, 1986 is considered, the petitioner has evidently completed the qualifying period to be entitled to pension as per the law laid down in Samudabhai Jyotibhai Phedi (supra).

6.1 In view of the law laid down in Samudabhai Jyotibhai Phedi (supra), the stand of the respondent cannot stand in eye of law. Pensionary benefits to the petitioner would have to be counted from the date the petitioner initially joined services as dailyrated, that is from the year 1979 till he retired in the year 2007.

6.2 As a result of above discussion, the petitioner is entitled to succeed for his prayers made in the petition. It is held and declared that the entire length of service of the petitioner since the date of joining has to be reckoned for the purpose of calculation of pension. The respondents are directed to fix the pension of the petitioner by counting the services accordingly. The benefit of gratuity, leave encashment etc. as may be admissible to the petitioner shall also be paid to the petitioner. It is provided that if the arrears of pension arising by virtue of this order and the other retirement dues payable to the petitioner are not paid within a period of 10 weeks from the date of receipt of the present order, the amount payable shall carry interest at the rate of 6% from the date of filing of the petition, that is from 05th August, 2019."

14. Another decision on the same issue in Special Civil Application No.19372 of 2018 & allied matters also requires to be considered, as it is the very District Panchayat which before this Court. This Court, in its common oral order dated 17.10.2020, has also referred the very order hereinabove and has arrived at conclusion that the service period prior to making the petitioner permanent as per Government Resolution dated 17.10.1988, will have to be considered while granting pensionary

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benefits to the petitioner, and thereafter, concluded as under:-

"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 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.

15. It has also now come on record that the LPA No.350 of 2021 and 351 of 20201 have been disposed of vide order dated 05.04.2021 confirming the decision of the learned Single Judge.

16. In view of the aforesaid, the petition deserves to be allowed and is hereby allowed. The petitioner is held to be entitled to the pensionary benefits by counting the entire length of service from the date of his appointment i.e. 21.12.1983 till 31.07.2010 in case of petitioner-Anopbhai Ratanbhai Chavda and in case of petitioner-Ramanbhai Dahyabhai Baria from 01.05.1977 to 31.08.2019. While doing so, the respondent authorities shall give due regards to the entitlement of the benefits by applying the requirements of Section 25 of the Industrial Disputes Act, 1947.

17. In so far as entitlement towards leave encashment being one of the benefits arising out of the Government Resolution

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dated 17.10.1988, it is reported that the same is yet a subject matter of outcome of group of LPAs. That being so, it would be appropriate to direct the respondent authorities to include the leave encashment benefits as well in this calculation, which would be ultimately subject to the outcome of LPAs, and therefore, the petitioner shall file an undertaking before the authorities to the extent that the amount received by the petitioners towards leave encashment shall be refunded within a period of 4(four) weeks, if the employee are held not to be entitled to the leave encashment as per the decision of Division Bench in pending LPAs. This direction is passed to avoid any further complication.

With aforesaid, the present petitions stand allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(A.Y. KOGJE, J) GIRISH