Ratilal Balvantsinh Bariya Since ... vs State Of Gujarat
2022 Latest Caselaw 850 Guj

    C/SCA/15601/2020                             JUDGMENT DATED: 27/01/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 15601 of 2020


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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RATILAL BALVANTSINH BARIYA SINCE DECD. THROUGH LH LEELABEN
                    WD/O RATILAL BARIYA
                           Versus
                     STATE OF GUJARAT
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 4
MS. SURBHI BHATI, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
MR PRADIP J PATEL(5896) for the Respondent(s) No. 2,3
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 27/01/2022

                            ORAL JUDGMENT

1 Heard Mr.Dipak Dave, learned advocate for the petitioner,

Ms.Surbhi Bhati, learned Assistant Government Pleader for respondent

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No.1 and 4 and Mr.Pradip Patel, learned advocate for respondents Nos. 2

and 3.

2 The petition under Article 226 of the Constitution of India is filed

for a relief that the respondents be directed to declare the action in not

considering the services of the deceased husband of the petitioner as

continuous when, in fact, the petitioner should have been treated to have

completed 240 days in each year or service based on the principles laid

down by the decisions of the Division Bench of this Court which shall be

referred to hereinafter.

3 The facts in brief would indicate that after 21 years of service, the

petitioner's husband expired on 30.06.19983 According to the petitioner,

the husband of the petitioner had rendered 21 years of continuous service

taking his initial date of appointment as 09.07.1977 and his date of death

being 30.06.1998. The case of the petitioner is that had the benefits of the

Resolution dated 17.10.1988 been rightly extended to the husband of the

petitioner, based on such extended benefits on the basis of he rendering

continuous service, the petitioner would have been entitled to the family

pension.

4 Mr.Dipak Dave, learned counsel for the petitioner would rely on a

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statement of breakup of service details (page 30) and submit that by the

impugned order, the respondents have interpreted that the petitioner's

husband was actually in service for two years. He having completed 240

days in the year 1979 and 1997 retrospectively.He would submit that, in

fact, if the Division Bench decisions are considered, based on the

decision of the Hon'ble Supreme Court in the case of Workmen of

American Express International Banking Corporation vs. Management

of American Express International Banking Corporation., reported in

(1985) 4 SCC 71., the number of working years would increase from two

to twelve. He would further submit that if in accordance with the

judgment of the Hon'ble Supreme Court, computation of Sundays and

leave and other public holidays is added to the benefit for the years 1980,

1981 and from the years 1989 to 1986, he would admittedly complete 12

years of service as three years from 1979 to 1981 and nine years from

1989 to 1997 would be the relevant period for consideration.

5 Ms.Surbhi Bhati, learned Assistant Government Pleader, would

support the decision of denying the benefits of pension.

6 Considering the decision rendered in Letters Patent Appeal No.

1495 of 1997 decided on 06.08.1998, the Division Bench of this Court

held as under:

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"This appeal is directed against judgment dated November 10, 1997 rendered by the learned Single Judge in Special Civil Application no. 7539/97 by which prayer claimed by the appellant to direct the respondents to pay pension to him has been rejected.

The appellant worked as a daily wager under the respondent no.1 from September 24 to October 13, 1989. He retired from service on October 13, 1989. According to him, he was entitled to pension and, therefore, approached the Surat District Dalit Seva Sangh for taking-up his cause. The President of the Sangh wrote a letter dated November 8, 1994 to respondent no.3 requesting him to do needful in the matte of grant of pension to the appellant. The Sangh received a letter dated December 22, 1995 from respondent no.1 to the effect that the appellant was not entitled to pension in view of the Government resolution dated October 17, 1988. From the letter dated January 7, 1997, which was addressed by respondent no.1 to the President of Sangh, it is evident that the benefit of pension was not granted to the appellant, as according to the respondents, the apppellant had put in 8 years of continuous service, wherein he had worked for more than 240 days in every year and as the appellant had not put in 10 years of continuous service, wherein he had worked for more than 240 days, the appellant was not entitled to pension benefit. The letter dated January 7, 1997 is produced by the appellant at Annexure-D. In his career, the appellant had worked for more than 240 days in 14 years and, therefore, according to him he was entitled to pension. Under the circumstances, the appellant instituted Special Civil Application no. 7539/97 and prayed to direct the respondents to pay pension to him.

An affidavit-in-reply was filed on behalf of the respondents by Deputy Executive Engineer, Surat Canal Division No.IV, Kholwod, Surat controverting the averments made in the petition. In the reply affidavit, it was claimed that there were breaks in service of the appellant and as he had not worked for 10 years continuously in which he had worked for more than 240 days, he was not entitled to the relief claimed in the petition.

After hearing the parties,the learned Single Judge has rejected the petition by order dated November 10, 1997, which has given rise to present appeal.

Learned Counsel for the appellant submitted that the appellant had

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put in 10 years of continuous service within the meaning of Government Resolution dated October 17, 1988 as amended by Resolution dated November 29, 1994 and, therefore, the appellant should be granted benefit of pension; whereas the learned Counsel for the respodnents pleaded that the appellant had not put in 10 years of continuous service as a daily wager in which he had worked for more than 240 days and, therefore, the decision rendered by the learned Single Judge should not be interfered with in present Appeal.

We have heard the learned Counsel for the parties. The learned Counsel for the respondents has produced an abstract indicating the number of days during which the appellant had worked from 1968-69 to 1988-89. It is ordered to be taken on record of the appeal. The abstract reads as under :-

--------------------------------------------------------- Sr. Year Total No. October to Sept. presence

-----------------------------------------------------

1. 1968-69 204 1/2

2. 1969-70 295

3. 1970-71 254

4. 1971-72 153

5. 1972-73 169

6. 1973-74 321

7. 1974-75 210

8. 1975-76 255 1/2

9. 1976-77 297

10. 1977-78 291

11. 1978-79 122

12. 1979-80 --

13. 1980-81 128

14. 1981-82 242

15. 1982-83 252

16. 1983-84 273

17. 1984-85 322

18. 1985-86 269

19. 1986-87 316

20. 1987-88 299

21. 1988-89 246.

Remarks: As seen from the statement that in the years 1969- 70, 1970-71, 1973-74, 1975-76, 1976-77 and 1977-78 the

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appellant had worked for more than 240 days, but his service is not continuous (marked ) and in the years 1981-82 to 1988-89 i.e. 8 years he had served continuously (marked ).

As per resolution dated 17.10.88 and looking to the fact above, eight years service is not pensionable.

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As per the resolution dated October 17, 1988, daily wage worker who has put in service for more than 10 years as per section 25-B of the Industrial Disputes Act, 1947, is entitled to retiral benefits. Section 25-B of the Industrial Disputes Act, 1947 defines 'continuous service'. According to said provision, a workman shall be said to be in continuous service for a period if he is, for that period, in uniterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman. Sub-section (2) of Section 25-B introduces a deeming fiction and provides that where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under the circumstances mentioned in the said sub-section.

From the abstract, which is produced by the learned Counsel for the respondents, there is no manner of doubt that in all for 14 years the appellant had worked for more than 240 days. The Supreme Court in the case of Workmen of American Express International Banking Corporation vs. Management of American Express International Banking Corporation, A.I.R. 1986 S.C. 458 has ruled that continuous service is to be counted by including sundays and other holidays, sickness or authorised leave and accident or strike which is not illegal or a cessation which is not due to any fault on the part of workman. The respondents have failed to produce any material on record of the case to indicate that in the year 1980-81 and 1981-82 there was a cessation of work due to any fault on the part of the appellant. Therefore, the appellant had continuously served for a period of more than 10 years within the meaning of Resolution dated October 17, 1988. The submission made by the learned Counsel for the respondents that the appellant had completed 240 days' work in 8 years only, which is less than 10 years and, therefore, the appellant is not

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entitled to pension, cannot be accepted. It is an admitted fact that while denying the claim of the appellant, sundays and other holidays, sickness or authorised leave etc. were not taken into consideration by the respondents, nor the question was considered whether there was any cessation of work which was not due to any fault on the part of the appellant. It may be stated that the appellant served as a daily wager for about 21 years and retired from service on October 13, 1989. Having regard to the facts of the case, even there were some small breaks in service of the appellant which had taken place in the years 1980-81 and 1981- 82, they have been condoned by the respondents for the purpose of retiral benefits. On the facts and in the circumstances of the case, we are of the opinion that as the appellant had completed 240 days' work continuously in 10 years in which he had worked for more than 240 days, he is entitled to the benefit of pension. The learned Single Judge was not justified in rejecting the claim ofthe appellant on the ground that the appellant had not worked for 240 days' continuously in 10 years and was, therefore, not entitled to pension. The appeal, therefore, deserves to be accepted.

For the foregoing reasons, the appeal succeeds.

The order dated November 10, 1997 rendered by the learned Single Judge in Special Civil Application no. 7539/97 is hereby set aside and quashed. Special Civil Application no. 7539/97 stands allowed. The letters dated January 7, 1997 and June 20, 1997 are hereby set aside and quashed. The respondents are directed to calculate pensionary benefits within two months and thereafter to pay the amount due to the appellant within one month after completing calculation. It is clarified that if the amount is not paid as directed above, the respondents shall pay the said amount to the appellant with 12% interest thereon from the date of expiry of one month of making calculation till the actual payment is made. The appeal is accordingly, allowed, with no order as to costs."

7 Even in the decision of the Division Bench, rendered in Letters

Patent Appeal No. 2047 of 2004 dated 29.03.2016, the Division Bench

held as under:

"6. That learned Single Judge after adverting to subSection (1) of Section 25B of the I.D. Act, 1947 vis-a-vis Government Resolution

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dated 17.10.1988 held as under:

Therefore, in view of the observations made by this Court as well as the Hon'ble apex court in aforesaid decisions and also in view of the definition of the term 'continuous service' given in section 25-B of the ID Act as interpreted by the apex court in case of American Express (supra), now, I am considering the effect of the Government Resolution dated 17.10.1988. Item 3 page 30 of the said Government Resolution dated 17.10.1988 provides that those daily wager who has completed the service of more than ten years as provided under section 25(B) shall be considered permanent and such permanent labour shall be placed in the pay scale of Rs.750-940 plus other allowances. As per the said item 3 of the said GR, it has been resolved that such daily wagers should be given the pension, gratuity, general provident fund in accordance with the existing rules and regulations and they would be entitled for Sunday leave and national holidays leave over and above two leave per year as well as 14 days casual leave, 30 days' earned leave and 20 days half pay leave. Thus, bare reading of item 3 of the said resolution would make it clear that if the daily wager is satisfies that he has completed ten years service as required under section 25-B of the ID Act, 1947, then, he is entitled to become permanent employee of the respondent establishment. This is the only condition incorporated in item 3 of the said resolution dated 17.10.88 entitling the daily wager for claiming benefit of pension. Even the clarification which has been brought to the notice of this court. First item No.2 is also making it clear that if the daily wager has remained in continuous service as defined under section 25B of the ID Act and similarly to consider the rest of the years, then, such workman is entitled for the benefit of the Government Resolution dated 17.10.88. Item 38 and 39 thereof also saying the same thing that if the daily wager has completed 240 days continuous service in each year as defined under section 25B of the ID Act, and if the workman has completed ten years of service on the basis of such calculation for every year, then, he is entitled for the benefit of pension from the respondent establishment. It is made clear in the said GR dated 17.10.88 as well as the clarification brought to the notice of this court that it has not been clarified that they are to consider section 25B(1) or 25B(2) but the State Government has mentioned 25B as a whole which includes both namely sub section (1) and (2). In view of that, it is the duty of the State Government to consider entire section 25B with sub section (1) and (2) of the ID Act while considering the entitlement

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of such workman for such benefits.

In view of the above observations, the net effect of section 25-B sub section (1) is to the effect that if the daily wager has remained in continuous service for a period of one year and his service has not been interrupted by any reason mentioned mentioned in subsection (1), whatever kind of cessation of work which is not due to the fault of the daily wager, then, his service must have to be considered continuous for a period of one year irrespective of the fact whether such daily wager has completed 240 days actual work or not during this one year. Reason is that during the one year, though the daily wager has not completed 240 days continuous service, but during that period also, the services of such daily wager has not been terminated by the employer and in-between the relationship of the employer and employee was remaining in force which makes continuous service of one year and that period must be taken into consideration irrespective of the fact that 240 days actual work has been completed or not by such daily wager but such daily wager has remained in service with the employer on permanent employment and pensionable service. Similarly, in respect of sub section (2) of section 25B of the ID Act, if the daily wager is not remaining in service for a period of 12 calender months but even less number of months but he completes 240 days working, then also, that less number of months may be considered for one year continuous service. This being two distinct and different situation incorporated by the legislature in sub section (1) and (2) of section 25B of the ID Act, if the daily wager is satisfying either of the one, then his services must have to be considered continuous for a period of one year within the meaning of section 25B of the Industrial Disputes Act, 1947."

7. Having heard learned advocates appearing for the parties and perusal of the record and the order under challenge, we find no error on law much less on facts appears in the judgement under challenge. Learned Single Judge having adverted to nature of right of an employee to receive pension upon completion of 10 years of continuous service in the context of definition of Section 25B of I.D.Act, 1947 read with Government Resolution dated 17.10.1988 of State of Gujarat, and relying on decisions of the Apex Court for the expression 'actually worked under the employer' would mean number of days namely, Sundays and other paid holidays on which the workman had actually performed the duties. By applying the above parameter in the light of decision of the Apex Court in

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Workmen of American Express International Banking Corporation vs. Management of American Express International Banking Corporation and even as appeared from the record of the case namely, certificate issued by Dy. Executive Engineer, Panchayat Department, Road and Building Patadi at Annexure J to the petition reveal that in the year 1981, 1984 to 1991 for all these 9 years workman had completed more than 240 days and in the year 1983 workman-petitioner had actually worked even as per the above certificate for 235 days, in which, public and paid holidays are included would exceed 240 days and thus continuous service for 10 years of the petitioner surfaces on record. Likewise, in the year 1982 actual days of working are 198 days and upon inclusion of Sundays and paid holidays on which, the petitioner-workman had performed the duties would be more than 240 days. So on facts and on law as a whole the case of the petitioner is squarely covered and there is not an iota of doubt of completion of 10 years of continuous service by the workman having served for 240 days in a year during such period, we find no error in the judgement under challenge passed by the learned Single Judge. 8. Since the subject petition is pertaining to entitlement of pension to be released in favour of the original petitioner (now deceased) so as the wife of the deceased employee who was brought on record as respondent No.1/1 also died during pendency of this appeal remaining legal heirs respondent Nos. 1/2, 1/3, 1/4 and 1/5 shall be entitled to receive the pension as ordered by learned Single Judge. The amount of pension as ordered by learned Single Judge shall be released within eight weeks from the date of receipt of order/writ of this Court."

7.1 Based on these decisions, the impugned order computing the

period of service of two years is bad on the principle laid down on the

decision rendered to hereinabove, the petitioner's husband need to have

completed 12 years of service i.e. from the counting years 1979, 1980,

1981 and from the years 1989 to 1997 for the purposes of computing of

pension. Based on this computation, the respondents are directed to

compute the terminal benefits of the deceased - husband of the petitioner

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and consequentially grant benefits of family pension to the petitioner

from the date of the death of the petitioner's husband i.e. from

30.06.1998, within a period of two months from the date of receipt of

copy of this order. The petition is allowed, accordingly. Rule is made

absolute to the above extent.

(BIREN VAISHNAV, J) Bimal