Chhaganbhai Saburbhai Baria ... vs State Of Gujarat
2022 Latest Caselaw 7491 Guj

     C/SCA/526/2022                              JUDGMENT DATED: 30/08/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 526 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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     CHHAGANBHAI SABURBHAI BARIA SINCE DECD. THROUGH LH
              FULIBEN WD/O CHHAGANBHAI BARIA
                           Versus
                     STATE OF GUJARAT
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1,2,3,4
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 30/08/2022

                            ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Utkarsh Sharma, learned

Assistant Government Pleader waives service of notice

C/SCA/526/2022 JUDGMENT DATED: 30/08/2022

of Rule for the respondents.

2. With the consent of the learned advocates for the

respective parties, the petition is taken up for final

hearing today.

3. The prayer in the petition reads as under:

"6(A)(i) to hold and declare that action on the part of the respondents in not making payment of full pensionary benefits to the petitioner by counting the entire length of service of the husband of the petitioner form 21.07.1978 till 31.03.2003 as illegal, unjustified, arbitrary and further be pleased to re-fix the pension of the husband of the petitioner by counting his service from 21.01.1978 until the date of his retirement, i.e. 31.03.2003, and re-fix the pension accordingly."

4. The facts in brief would indicate that the deceased

Chhaganbhai Saburbhai Baria had retired from service

on 31.03.2003 and died on 03.05.2021. The case of the

petitioner is that as per the pension payment order,

C/SCA/526/2022 JUDGMENT DATED: 30/08/2022

past services rendered by the deceased Chhaganbhai

prior to the date of regularization has not been

considered as service qualifying for the purposes of

pension.

5. In light of the decision dated 18.9.2019 rendered by

this Court in SCA No.14137 of 2019, relevant paras

thereof i.e. paras 3.2 to 8 are reproduced hereunder.

"3.2 It was observed in order dated 17.7.2019 that the issue involved in the present petition is answered by the Division Bench of this Court in Executive Engineer, Panchayat v. Samudabhai Jyotibhai Bhedi [2017 (4) GLR 2952] followed in Sardarbhai Panabhai Chauhan v. State of Gujarat being Special Civil Application No.14504 of 2016 decided on 5.9.2018.

4. Learned advocate for the petitioners submitted that the respondent authorities committed an error of law in not reckoning the services of the petitioners from the date of their initial entry in service for the purpose of pension. In addition to the decision in Samudabhai Jyotibhai Bhedi (supra) and Sardarbhai Panabhai Chauhan (supra),

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learned advocate for the petitioner could successfully press into service yet another decision of this court in Balvantbhai Sardarbhai Pagi & Ors. vs Deputy Engineer & Ors. being Special Civil Application No. 12350 of 2016 and allied petitions decided on 22.5.2016 taking a similar view. The ratio in Samudabhai Jyotibhai Bhedi (supra) was relied on in all the aforementioned decisions.

5. It was held in Samudabhai Jyotibhai Bhedi (supra) by the Division Bench, upholding the decision of the learned single Judge that the past services of the daily wagers where they have completed 240 days continuous service as per section 25F of the Industrial Disputes Act, would qualify for pension. In the present case, the respondents have not been able to dispute that both the petitioners have put in continuous service as contemplated under the law.

5.1 The Division Bench in Samudabhai Jyotibhai Phedi (supra) noticed the provisions of the Resolution dated 17.10.1988 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

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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. 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. Clause6 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

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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

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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 dailywager which was continuous is liable to be reckoned for the purpose of pensionary benefits and for the purpose of granting pension. In the facts of the case of the petitioners, the factum is not controverted and it is

have throughout worked since their joining, to make their services continuous.

6. In view of the above, action on part of the respondents in not recognising the services of the petitioners herein from the date of their initial joining as daily rated workman cannot stand valid in eye of law. The respondents were not justified in counting the services for the purpose of pension from the date when the petitioners were made permanent at the completion of 10 years. The entire prior service ought to have been recognised and the pension should have been calculated and fixed accordingly.

7. Petitioner No.1 would be accordingly entitled to receive the pension by counting the pensionable service from the date of initial entry, that is 23.9.1989. Similarly, petitioner No.2 would be entitled to family pension by

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counting the pensionable service from the date of initial entry, that is 21.3.1982. The respondents are directed to fix the pension for the petitioners accordingly. The petitioners are also entitled to other benefits such as leave encashment, gratuity etc. as may be payable.

7.1 The total amount of pension and other benefits as above, becoming payable and the arrears thereof, shall be paid to the petitioners within a period of six weeks from the date of receipt of this order.

8. It is provided and directed that if the amount is not paid within stipulated period of six weeks, it shall carry interest at the rate of 6.5% from the date of filing of this petition. The respondents are further directed to continue to pay the pension to the petitioners duly calculated as above. "

6. In view of above, the petition is partly allowed. The

petitioner widow is entitled to receive family pension

by counting pensionable service from the initial date of

entry of her deceased husband in light of the decision

referred to hereinabove. The respondents are directed

to fix the pension of the deceased and revised family

pension of the widow accordingly. The total amount of

C/SCA/526/2022 JUDGMENT DATED: 30/08/2022

pension and other benefits including family pension

and gratuity shall be paid to the petitioner within a

period of eight weeks from the date of receipt of copy

of this judgment.

7. So far as prayer 6(A)(ii), liberty to file fresh petition

with regard to leave encashment and other five

benefits if need arises pursuant to the final decision

of the Apex Court in the pending SLP.

8. Rule is made absolute to the aforesaid extent.

Direct Service is permitted. No order as to costs.

(BIREN VAISHNAV, J) VATSAL S. KOTECHA