Shantaben Kantilal Parmar vs State Of Gujarat
2022 Latest Caselaw 2311 Guj

     C/SCA/16915/2021                             JUDGMENT DATED: 28/02/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 16915 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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                        SHANTABEN KANTILAL PARMAR
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR KRISHNAN M GHAVARIYA(8133) for the Petitioner(s) No. 1,2,3,4,5,6,7
MR MEET THAKKAR, ASST GOVERNMENT PLEADER for the
Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3,4
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 28/02/2022

                             ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Meet Thakkar, learned AGP waives service of notice of Rule on behalf of respondent State. With the consent of learned advocates for the parties, matter is taken up for final hearing today.

C/SCA/16915/2021 JUDGMENT DATED: 28/02/2022

2. The prayer of the petitioners is to direct the respondents to revise the pension as well as gratuity calculating the same from the date of initial appointment of the petitioners.

3. The facts in brief would indicate that the petitioners were appointed as daily wagers. Pension payment orders have been annexed to the petition which would indicate that for the purposes of counting pension from the date of completion of ten years, the date of regularization has been taken into consideration for the purpose of pension.

4. Mr. Krishnan Ghavariya, learned advocate appearing for the petitioners would submit that the issue has now been decided by a Division Bench of this Court in the case of Executive Engineer, Panchayat (Maa & M) Department vs. Samudabhai Jyotibhai Bhedi., reported in 2014(4) GLR 2952. Learned advocate would draw the attention of the Court to an order dated 21.08.2019 rendered in Special Civil Application No. 11086 of 2019 dated 21.08.2021, wherein, the said decision has been considered. Para 5 of the decision reads 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.

C/SCA/16915/2021 JUDGMENT DATED: 28/02/2022

"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."

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,

C/SCA/16915/2021 JUDGMENT DATED: 28/02/2022

"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 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. 5.3 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 (supra)."

5. The Division Bench of this court in Letters Patent Appeal No. 531 of 2019 vide order dated 08.03.2019 has also taken the same view. Accordingly, in view of the decision in the case of Samudabhai Bhedi

C/SCA/16915/2021 JUDGMENT DATED: 28/02/2022

(supra) for counting the period for purposes of pension, the date of initial appointment needs to be taken into consideration and for the purposes of taking initial date of appointment those years in which the petitioners have completed 240 days have to be counted for the purposes of pension. the petition is allowed.

6. Accordingly, it is held that the petitioners are entitled to the pensionary benefits by reckoning the entire length of service from the date of initial joining for the purposes of pension and other terminal benefits. The respondents are therefore directed to fix the pension of the petitioners by counting their services from the date of their initial joining until the date of their retirement and in doing so each year of service preceding the date of regularization in which years the petitioners have completed 240 days shall only be considered for recalculating pension. The retirement benefits, except leave encashment benefit shall be paid to the petitioners within a period of twelve weeks from the date of receipt of certified copy of this order. Petition is accordingly allowed. Rule is made absolute accordingly. Direct service is permitted.

(BIREN VAISHNAV, J) DIVYA