Gujarat High Court
Hanifbhai Hasam Sindhi vs State Of Gujarat on 26 October, 2021
Bench: Nikhil S. Kariel
C/SCA/2832/2020 ORDER DATED: 26/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2832 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 5666 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 5691 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 6019 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 14210 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 5983 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 14258 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 12435 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 3698 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 553 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 11859 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 11916 of 2020
========================================================
HANIFBHAI HASAM SINDHI
Versus
STATE OF GUJARAT
========================================================
Appearance:
DECEASED LITIGANT(100) for the Petitioner(s) No. 1
MR. MUKESH T MISHRA(5900) for the Petitioner(s) IN SCA NOS. 2832 OF 2020,
5666 OF 2021, 5691 OF 2021, 6019 OF 2021, 14210 OF 2021, 14258 OF 2021 AND
12435 OF 2021
MS ASHLESHA M PATEL for the Petitioner(s) IN SCA NOS. 553 OF 2020, 11859
OF 2020, 11916 OF 2020, 3698 OF 2021 AND 5983 OF 2021
MR DG CHAUHAN(218) for the Respondent(s) No. 3
RONAK D CHAUHAN(7709) for the Respondent(s) No. 3
MS VRUNDA SHAH AGP RULE SERVED(64) for the Respondent(s) No. 1,2
========================================================
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 26/10/2021
ORAL ORDER
1. Heard learned Advocate Shri Mukesh T. Mishra and learned
Advocate Ms. Ashlesha Patel on behalf of the petitioners, learned Assistant
C/SCA/2832/2020 ORDER DATED: 26/10/2021
Government Pleader Ms. Vrunda Shah on behalf of the respondent- State
and learned Advocate Ms. H.S. Munshaw for the respondent-Board.
2. At the outset, learned Advocate Mr. Mukesh T. Mishra for the
petitioners in Special Civil Application No. 2832 of 2020 seeks permission
to withdraw the said petition insofar as prayer with regard to the payment of
benefit under 7th Pay Commission is concerned, with liberty to file fresh
petition. Permission as sought for is granted. The said petition is treated as
disposed of as withdrawn insofar as request for payment of benefit under
7th Pay Commission is concerned.
3. Issue Rule to the respondents returnable forthwith. Learned
Advocates for the respondents waive service of rule on behalf of the
respective respondents.
4. Since the common issued is raised in this group of petitions, they are
taken up for adjudication jointly.
5. With consent of the parties the petitions are taken up for final
hearing.
6. This group of petitions are preferred by retired employees or heirs of
deceased employees claiming for benefit of leave encashment pursuant to
the retirement/demise of the employee concerned. The petitioners were
originally appointed with the respondent-Board as daily wagers and whereas
pursuant to Government Resolution dated 17.10.1988, upon completion of
5 years and 10 years respectively, the petitioners were given the benefits as
available to them at that stage. After having worked with the respondent-
Board and having retired, the petitioners were paid retiral benefits like the
amount of CPF and gratuity. That in case of deceased employees also such
C/SCA/2832/2020 ORDER DATED: 26/10/2021
benefits were paid to the their legal heirs. That both set of employees i.e
retired employees and legal heirs of deceased employees raised a common
grievance that they have not been paid the amount of leave encashment as
would be available to them. Learned Advocates for the petitioners would
refer to and rely upon the decision of the Co-ordinate Bench of this Court
in Special Civil Application No. 9484 of 2013 in case of Jorubhai Jijibhai
Dabhi and others vs Gujarat Water Supply and Sewerage Board dated
21.08.2015 which decision came to be confirmed by Hon'ble Division
Bench of this Court in Letters Patent Appeal No. 457 of 2016 vide decision
dated 26.07.2016. The learned Assistant Government Pleader Ms. Shah
for respondent no.1 and learned Advocate Shri Munshaw for respondent
no.2 had contested the petition and opposed grant of such relief in favour
of the petitioner herein. The Co-ordinate Bench in case of Jorubhai Jijibhai
Dabhi and others vs Gujarat Water Supply and Sewerage Board has held as
under:
"9. Learned advocate Mr. Munshaw for respondent No.1
does not dispute that the case of State of Gujarat and another vs.
Mahendrakumar Bhagvandas and another(supra) has reached to
the conclusion at the hands of the Apex Court, whereas the
decision of the Letters Patent Appeal No.325 of 2013 is bagging
attention, as the same has been challenged before the Apex Court.
He has urged, therefore, not to decide the matter on merits.
10. On thus having heard learned advocates for both the sides
and having also considered the list of events so also the
Government Resolution dated 17.10.1988 and the decisions of
the Apex Court and that of Letters Patent Appeal Bench, this
Court is of the opinion that the petitioners are entitled to the
leave encashment benefit for being the permanent employees of
the respondent authorities. This Court has interpreted the
entitlement of permanent employees, who have become
permanent by virtue of the said Government Resolution dated
17.10.1988. Leave encashment benefits in the decision sought to
C/SCA/2832/2020 ORDER DATED: 26/10/2021
be relied upon by the petitioner is granted in the following
manner:-
"5. As noted earlier, subsequent G.R. dated 18.7.1994 is
expressly superseding the instructions contained in
government resolution dated 3.11.1990 but does not
supersede original G.R. dated 17.10.1988. It is also an
admitted position that most of substantive benefits of
permanent service are already accorded to the employees
concerned in terms of G.R. dated 17.10.1988. Under such
circumstances, it was argued that nomenclature for treating
the employees concerned as permanent was clarified by the
government, and hence, denial of few benefits was justified
and in order. However, no ground or rational basis could be
made out for grant of most of the benefits to most of the
employees in terms of G.R. dated 17.10.1988 and for denial
of the remaining few benefits. Once the employees
concerned were, in fact, treated for all purposes as
permanent employees in terms of G.R. dated 17.10.1988,
any discrimination or denial of benefits for a segment of
such employees, who were subsequently re-branded as "daily
wager" (rojamdar) by G.R. dated 18.7.1994, could not be
rationally explained and could not be countenanced in the
face of Articles 14 and 16 of the Constitution. Nor can the
State Government legally take away the rights conferred and
benefits, already accorded to the employees concerned by or
under a subsequent government resolution, which expressly
supersedes earlier instructions and not earlier G.R. dated
17.10.1988 by which the benefits were accorded to the
employees. It also sounds absurd and baseless that employee
employed on daily wage basis for 15 years would be made
permanent under G.R. dated 17.10.1988 but subsequently
re-branded and treated as a daily wager. The submission of
learned AGP that such employees had to continue as daily
wage employee, with limited benefits in terms of subsequent
G.R. dated 18.7.1994 and that they were at best "permanent
daily wage employees", is contradictory and has no backing
C/SCA/2832/2020 ORDER DATED: 26/10/2021
of any legal provision or precedent. Therefore, there is no
reason to interfere with the impugned common judgment
except for the clarification made hereunder.
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:
11. ".................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...............""
11. Resultantly, the petition is allowed. Leave encashment benefits
shall be paid to the petitioners within six weeks from the date of
receipt of copy of this judgment. If not paid, interest at the rate of
6% shall be calculated on the amount granted. Petition is allowed
to the above extent. Rule is made absolute accordingly."
7. As mentioned hereinabove, the said decision had been carried in
appeal by the respondent - Board. It is also not in dispute that the decision
of Hon'ble Division was carried before the Hon'ble Apex Court and
whereas vide an order dated 25.10.2017 the Special Leave Petition had also
been dismissed.
8. Having regard to the position of law as emerging from the
C/SCA/2832/2020 ORDER DATED: 26/10/2021
pronouncement of this Court as referred to hereinabove , the petitioners are
entitled to the benefit of leave encashment to be paid to the petitioners at
the stage of retirement or at the stage of calculation of retiral benefits after
the demise of the employee concerned, during service.
9. In this view of the matter, the respondent-Board in consultation with
respondent no.1 Government shall within a period of six weeks calculate the
amount of leave encashment as payable to each of the petitioner and ensure
that before the time limit granted by this Court, the disbursement is made to
the employee, legal heirs of the deceased employee. Rule is made absolute to
the above extent.
(NIKHIL S. KARIEL,J)
NIRU
