Jadavji Bhimjibhai Rathod vs State Of Gujarat
2022 Latest Caselaw 1346 Guj

     C/SCA/6209/2021                             JUDGMENT DATED: 07/02/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 6209 of 2021


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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                       JADAVJI BHIMJIBHAI RATHOD
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR MUKESH H RATHOD(2432) for the Petitioner(s) No. 1
MR. KURVEN DESAI, AGP, for the Respondent(s) No. 1
NOTICE UNSERVED for the Respondent(s) No. 2,3
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 07/02/2022

                            ORAL JUDGMENT

1 Rule returnable forthwith. With the consent of the learned

advocates appearing for the respective parties, taken up for final

hearing. Mr.Kurven Desai, learned Assistant Government Pleader,

waives service of rule on behalf of the respondent - State.

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2 Heard Mr.Mukesh H. Rathod, learned advocate for the

petitioner and Mr.Kurven Desai, learned AGP, for the respondent -

State. The prayer made in this petition is to issue a writ of

mandamus directing the respondents to quash and set aside the

order dated 29.01.2020 by which the petitioner's request for

counting past services from the initial date of appointment for the

purposes of gratuity and encashment of 300 days leave was

rejected.

3 Having heard the learned counsels appearing for the

respective parties, as far as the issue of leave encashment of 300

days is no longer res integra.

4 Mr.Mukesh Rathod, learned counsel for the petitioner, places

reliance on a decision of a Co-ordinate Bench of this Court rendered

in Special Civil Application No. 8498 of 2019 in context of his prayer

for leave encashment. Paragraphs 5 and 6 of the decision read as

under:

"5. In Babarbhai Ambalalbhai Patel (supra), this court relied on Chimansingh Nathusingh Solanki vs. State of Gujarat being Special Civil Application No. 21473 of 2016 decided on 27.12.2017. In Chimansingh Nathusingh Solanki (supra), the following was observed which forms the reasoning of this order, "5. As far as the first prayer is concerned, learned advocate could successfully rely on decision of this Court in Special Civil Application No.9484 of 2013 dated 21st August, 2015 in Jorubhai Jijibhai Dabhi v. State of Gujarat wherein the petitioner was retired employee whose grievance was about non-payment of leave encashment upon his retirement. This Court relied on decision in State of Gujarat v. Mahendrakumar Bhagvandas [2011 (2) GLR 190] which was confirmed

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upto the Apex Court, and held in favour of the petitioner that the petitioner was entitled to leave enashment which benefit would held to be flowing from the State Government Resolution dated 17th October, 1988.

5.1 In Jorubhai Jijibhai Dabhi (supra) it was 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 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

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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 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.

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5.2 The aforesaid decision was confirmed in Letters Patent Appeal No.457 of 2016 decided on 26th July, 2016. The Division Bench also referred to observations in paragraphs 5, 6 and 8 of Mahendrakumar Bhagvandas (supra) and observed as under.

7. The issue before the Division Bench of this Court in the case of Mahendrakumar Bhagvandas(supra) was similar. There also there was no controversy about the fact that the concerned petitioners who entered services as daily rated employees have been regularized in their service under the Government Resolution dated 17.10.1988 and most of the benefits under the said Government Resolution available to the regular government servants were extended to the concerned petitioners. However, the said petitions were resisted on the ground that the said petitioners were daily rated employees and the benefits accorded to the permanent employee of the government could not be extended to them. In the said case, learned Single Judge, after considering the Government Resolutions, opined that the said petitioners were regular permanent employees of the respondent and were entitled to all the benefits of permanent employees of the concerned respondents. The petitions were allowed by the learned Single Judge with a direction that all the workmen concerned be treated as permanent employees at par with other regular employees and they were to be granted all the benefits as such.

5.3 The Division Bench in the said Letters Patent Appeal No.457 of 2016 also referred to another Division Bench judgment dated 30th October, 2015 delivered in Letters Patent Appeal No.1310 of 2015 and held to confirm the Jorubhai Jijibhai Dabhi (supra) and finally stated as under.

10. Thus, we are of the opinion that the present case is also squarely covered by the aforesaid two decisions rendered by this Court. Learned Single Judge has, therefore, not committed any error while placing reliance upon the Division Bench decision rendered in the case of Mahendrakumar Bhagvandas(supra). We are also in agreement with the reasons recorded by learned Single Judge."

6. In view of the above position of facts and law, the present petition deserves to be allowed. The respondents are directed to extend the benefits of payment of leave encashment of

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300 days to the petitioners on their retirement, as the denial of this benefit is held to be illegal. The leave encashment for 300 days to the petitioners shall be paid considering the total length of the services of the petitioners within a period of eight weeks from the date of receipt of writ of this order."

4.1 The said decision was challenged by way of an LPA before the

Division Bench of this Court being Letters Patent Appeal No. 1614 of

2019 and the same was confirmed. Even the Special Leave Petition

before the Hon'ble Supreme Court was also dismissed.

5 Therefore, apparently, the question of leave encashment of

300 days is an issue which has to be held in favour of the petitioner.

5.1 As far as the period of service for the purposes of gratuity is

concerned, Mr.Mehul Rathod, learned counsel, pointed out to the

Pension Payment Order which indicates that the actual service of

the petitioner as forty years, three months and twenty four days.

However, eleven years, three months and twenty four days have not

been counted as service for the purposes of terminal benefits.

Gratuity which is contrary to the law laid down by the Division

Bench of this Court in Letters Patent Appeal No. 1518 of 2017 dated

10.04.2018 and the decision of the Division Bench of this Court in

the case of Executive Engineer Panchayat (Maa and M)

Department vs. Samudabhai Jyotibhai Bhedi., reported in

2017 (4) GLR 2952. It will be in the fitness of things to reproduce

paras 5 to 9 of LPA No.1518 of 2017 thereof:

"5. Reliance was placed on the judgment of this Court in the case of Tribhovanbhai Jerambhai v. Deputy Executive

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Engineer, reported in 1998 (2) GLH 1, in support of contention that the service rendered as a 'daily wager' ought to be considered for the purposes of counting the period of qualifying service for pension purpose. Learned Single Judge has considered the said judgment and we too, deem it fit to reproduce the relevant paragraphs which learned Single Judge has reproduced:- "

"9. In the resolution dated 17.10.1988, it has been envisaged that those workman who as on 1.10.1988 or thereafter completes ten years of continuous service to be counted in accordance with provisions of Section 25B of the Industrial Disputes Act shall be deemed to be permanent and amongst other benefits conferred on being treated as permanent their age of superannuation was fixed at 60 years and they were made entitled for pensionary benefit. By yet another resolution dated 30.5.1989 (Annexure E), in which a specific query was raised at item No (6) with reference to resolution dated 17.10.1988, about the calculation of period of qualifying service for the purpose of entitlement to pension in connection with the pensionary benefits made available to those daily wagers who are deemed to be permanent on completion of ten years of service and it was specifically made clear that within the meaning of resolution dated 17.10.1988, the service which is to be counted is that which can be said as continuous within the meaning of Section 25B with effect from the date of entry in the service is duty counted for the purpose of pension and pension has to be accordingly determined. This does not say that qualifying service is to be counted with effect from date of becoming permanent.

This leaves no room of doubt that the resolution dated 17.10.1988 along with clarification issued on the various aspects of it vide resolution dated 30.5.1989 is in consonance with the provisions of Rule 248 of the Bombay Civil Services Rules, 1959 which provide that Government has not only power by general or special order to permit service other than pensionable service, for performing which a Government servant is paid from State revenues or from a local fund, to be treated as duty counting for pension and in issuing such an order Government is to specify the method by which the amount of duty shall be calculated for the purpose of pension. Once the Government has made it clear that those who have completed ten years of service as daily rated workman are to be deemed permanent with effect from and after 17.10.1988 and are entitled to various benefits on that basis including pension and thereafter has provided by the resolution dated 30.5.1989 that the

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continuous service for the purposes of pension, made available to employees under resolution dated 17.10.1988, is to be counted with effect from the date of entry in the service provided it can be continuous within the meaning of Section 25B of the Industrial Act, thus making it clear that once a daily rated workman is treated to be permanent under the resolution dated 17.10.1988 his entire continuous service from the date of entry until he retires including his services rendered prior to the date of his regularization is taken into consideration for the purpose of computing pension or making pension available to such retired employee.

10. There is yet another aspect of the matter. Assuming that Bombay Civil Services Rules do not provide for grant of pension to those, who are not holding a permanent post in the service, then it must be held that daily rated workman working on daily wages, are ex cadre employees and not governed by particular service rules, but are governed by terms of employment under which they have been engaged. This further leads to conclusion that area of employment on daily wages is not covered by statutory rules either promulgated under Act 309 or by other legislature enactment. That is the area left uncovered by specific law, and such employment is in exercise of general executive powers of the State and terms and conditions of such employment is governed by terms of order under which such employment is made and shall be further governed by orders made by State in exercise of its executive power from time to time. The resolution dated 17.10.88 and 30.5.89 shall thus govern the terms of employment of such employees. If considered from this view, the conclusion will be the same."

(emphasis supplied)

6. Reading of the judgment categorically suggests that there is no room for doubt that Government Resolution dated 17.10.1988 when read in the context of meaning of continuous service as defined under Section 25B of the Industrial Disputes Act suggests that while conferring benefits, viz. pensionary benefits, calculation of the entire service rendered even prior to the benefit of the regular pay scale being conferred needs to be considered for the purpose of awarding pensionary benefits. (from the date of initial appointment as a daily wager)

7. Learned Single Judge has observed that the judgment so rendered has attained finality and, therefore, in consonance with the question of law decided by the Division bench,

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learned Single Judge thought it fit to give the direction as reproduced herein above in the earlier part of the judgment.

8. Even otherwise while considering Sub-rule (3) of Rule 80 of the Pension Rules, learned Single Judge in the context of Government Resolution dated 24.3.2006, has observed that the benefit of the Rule for the purpose of bridging the gap for computation of ten years of service needs to be granted. As pointed out by Shri Dave, learned counsel for the respondent herein this issue had again arisen in the case of the Executive Engineer, Panchayat (MAA & M) Department and Another v. Samudabhai Jyotibhai Bhedi and Others reported in 2017 (4) GLR 2952. Considering the provisions of the Government Resolution dated 17.10.1988, the Division Bench of this Court in the judgment of Samudabhai Bhedi (supra) held 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. 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.

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

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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.

8. 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 anyfurther 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.

9. Learned counsel Shri Munshaw for the Panchayat however drew our attention to some other clauses of the said clarificatory circular dated 30.05.1989. None of these clauses have a direct bearing on the controversy at hand. These clauses merely refer to from which point of time such benefits may be available. It may be that benefits of regular services such as regular pay scale, leave, gratuity and pensionary benefits may be available only after regularization of an employee. However, this does not mean that his past continuous service would be wiped out for the purpose of pensionary benefits. The stand of the authorities that only that service which the employee had put in after actual order of regularization would count for pension is thus in conflict with the Government circulars itself.

10. The issue can be looked from slightly different angle. As it likely to happen in many cases and appears to have happened in the present case, actual order of regularization may not be passed immediately upon an employee having put in 10 years of continuous service for variety of reasons such as inaction on the part of the employee to press for such benefits, verification needed at the hands of the administration and sometimes,

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sheer inertia may delay actual regularization. Would that mean, the benefit of pension would be denied to an employee because after the belated regularization he did not have sufficient time to render 10 years of qualifying service? The answer has to be in the negative.

11. In the past, same or similar issues have traveled to the Division Benches in Letters Patent Appeals. Learned Single Judge in case of Tribhovanbhai Jerambhai v. Dy. Executive Engineer, Sub Division, R & B Deptt. & Anr. reported in 1998 (2) GLH 1, held that once a daily rated workman is treated to be permanent in terms of resolution dated 17.10.1988, his entire continuous service from the date of entry till retirement including his services rendered prior to the date of his regularization has to be taken into consideration for the purpose of computing pension or for making pension available to the employee. This decision was carried in appeal by the employer before the Division Bench. The Division Bench by order dated 04.04.2003 noted that the appeal had become time barred. Even on merits, the Division Bench was not inclined to take a different view.

12. In case of Surendranagar Dist. Panchayat and Anr. v. Umarkhan Alikhan Malek and ors., Division Bench of this Court in its judgment dated 29.03.2016 rendered in Letters Patent Appeal No.2047 of 2004, considered the issue where the employee had sought pensionary benefits having worked from the years 1978 to 1991. The learned Single Judge applying the formula of section 25B of the Industrial Disputes Act held that the employee had put in continuous service for more than 10 years as a daily wager. He was entitled to benefit of Government Resolution dated 17.10.1988 including the benefits of pension. The administration had merely contended that the workman had not put in actual 10 years of service after regularization before he can seek pensionary benefits."

9. Having therefore considered the issue at hand, it leaves no manner of doubt that after repeated reiteration of position of law as rendered by this Court in the judgment referred to herein above, the directions are given by learned Single Judge that entire period of service rendered by him, including those years of service as 'Rojmadar' where he has rendered continuous service of 240 days a year has to be considered for the purpose of extending pensionary benefits. The stand of

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the Government, therefore that the respondent herein had not completed the stipulated period of qualifying service is, undisputedly a stand, which is contrary to the settled position of law, in view of the judgments referred to. Therefore, we have no reason to interfere with the direction given by learned Single Judge in the judgment impugned herein."

6 On both these counts, therefore, the petition is allowed. The

respondents are directed to extend the benefits of payment of

Leave Encashment of 300 days to the petitioner as the denial is

illegal. The same shall be paid to the petitioner considering the total

length of service of the petitioner in accordance with the decision

rendered in the case of Executive Engineer Panchayat (Maa

and M) Department vs. Samudabhai Jyotibhai Bhedi (supra).

Even the amount of gratuity shall be calculated from the initial date

of appointment and payment of gratuity shall be done and the

revised amounts shall be paid to the petitioner for the remaining

eleven years, three months and twenty four days. The entire

exercise shall be completed within a period of eight weeks from the

date of receipt of certified copy of this order. Petition is allowed,

accordingly. Rule is made absolute to the above extent.

(BIREN VAISHNAV, J) Bimal