Chaganbhai Bhavanbhai Hamirani vs State Of Gujarat
2022 Latest Caselaw 6130 Guj

     C/SCA/6542/2019                               JUDGMENT DATED: 11/07/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 6542 of 2019


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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                       CHAGANBHAI BHAVANBHAI HAMIRANI
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR. KRISHNAN GHEVARIYA, ADVOCATE FOR MR MURALI N
DEVNANI(1863) for the Petitioner(s) No. 1
MR.KURVEN DESAI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,5
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date : 11/07/2022
                               ORAL JUDGMENT

1 Rule returnable forthwith. Mr.Kurven Desai, learned AGP, waives

service of rule on behalf of the respondent-State. With consent of the

learned advocates for the respective parties, the matter is taken up for

final hearing today.

     C/SCA/6542/2019                               JUDGMENT DATED: 11/07/2022



2       By way of this petition under Article 226 of the Constitution of

India, the prayer of the petitioner is that for the purposes of pension as

well as gratuity, the petitioner's initial date of appointment be taken into

consideration.

3 Facts in brief would indicate that the petitioner was working as a

daily wager - mason from 03.10.1978. He retired from service with effect

from 31.03.2016. In the interregnum, his services were terminated as a

result of which he filed a reference, being Reference (LCB) No. 344 of

1994. The reference was allowed vide award dated 21.12.2009, which

directed reinstatement with continuity of service. The challenge to the

award by the State failed and the petition being Special Civil Application

No. 14905 of 2010 was dismissed on 06.09.2011.

4 Mr. Krishnan Ghavariya, learned counsel for the petitioner, would

submit that, that the issue of awarding the benefits of pension and other

terminal benefits and gratuity except the other allowances has been

decided by this Court from time to time in light of the decision in the case

of Executive Engineer Panchayat (R&B) Department vs. Samudabhai

Jyotibhai Bhedi., reported in 2017 (4) GLR 2952. He would rely on a

decision rendered by this Court in Special Civil Application No. 9702 of

2018.

     C/SCA/6542/2019                               JUDGMENT DATED: 11/07/2022



5      Accordingly, the petition is allowed. The order passed by this

Court in a cognate matter reads as under:

"3.3 Therefore, the common grievance of all the petitioners in the captioned petitions, who are daily wagers and who have worked more that 10 years, in some cases more than three decades, raised is that their pension and gratuity are not calculated from initial date of their appointments, but they are counted only from the date when they were made regular under resolution dated 17.10.1988. They further prayed to release the benefits available under resolution dated 17.10.1988 from their initial appointment.

4. When learned advocate for the petitioners relied on decision of the Division Bench of this court in Executive Engineer Panchayat (Road and Building) department vs. Samudabhai Jyotibhai Bhedi [ 2017 (4) GLR 2952], the respondents were at their receiving end and could not dispute the applicability of the law laid down to the facts of the petitioners to make them entitled to the reliefs claimed in the petition.

5. In Samudabhai Jyotibhai Bhedi (supra), the Division Bench held that for the purpose of conferring the benefit of pension to the daily wagers, their services as continuous from the date of their initial appointments is liable to be counted. It was observed and 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

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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.

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 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.

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

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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, 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." 5.1 The decision in Samudabhai Jyotibhai Bhedi (supra)

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was further followed by another Division Bench in State of Gujarat v. Govindbhai Ukabhai Parmar being Letters Patent Appeal No.174 of 2017. Still another Division Bench in State of Gujarat v. Ranabhai Ajmalbhai Harijan, since deced. through legal heirs being Letters Patent Appeal NO.1518 of 2017 decided on 10th April, 2018 re-inforced the position of law.

5.2 The Division Bench in Ranabhai Ajmalbhai Harijan (supra) finally held as under.

"9. ... ... ... 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 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."

5.3 In view of the above clear position of law emerging, the petitioners are entitled to the reliefs prayed for in the petition.

6. Now reverting to the facts of the present case, it appears that the pension proposal of the petitioners was already sent. The office of the Director of Pension and Provident Fund, asked the competent authority to fulfill the certain requirements. However, the authorities did not accept the pension case of the petitioners on the ground that the petitioners were not entitled to pension for the period of initial 10 years. They did not reckon the date of initial appointments of the petitioners to calculate the pension, but viewed that their period of service until they become regular, could be liable to be deducted from the total period for the purpose of pension.

6.1 The stand of the respondents is manifestly erroneous in law in light of what has been held in the aforesaid decisions. The authorities not accepting the position of law could not be countenanced. Therefore, the petitioners are entitled to succeed.

7. Resultantly, all the three petitions are allowed by directing the

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respondent to act through their competent authority to process and finalise the pension of the petitioners by calculating the pension of each of the petitioners from the date of their initial appointments. The benefits including the arrears payable to the petitioners shall be paid within a period of 10 weeks from the date of receipt of writ of this order. It is further directed that if the aforesaid stipulated time period of 10 weeks is not observed by the authorities, the payment of arrears shall carry interest @ 7% from 1.7.2018 till the actual date of payment.

8. As far as the prayer made in Special Civil Application No. 10052 of 2018 and Special Civil Application No.10027 of 2018 regarding release of amount of unavailed privileged leave, it is directed in this regard that the petitioner concerned shall made representation before the competent authority of the respondents, who shall decide about the said request of the petitioners in accordance with law within a period of 10 weeks from the date of filling of such representation, and if the petitioners are found entitled, the amount shall be released within a further period of six weeks.

9. All the petitions stand allowed in terms of the aforesaid directions. Rule is made absolute in each of the petitions accordingly."

6 The respondents are directed to process and finalize the pension

case of the petitioner by calculating the pension from the date of his

initial appointment. Pension be revised accordingly and arrears, if any, be

paid to the petitioner. The entire exercise shall be carried out within a

period of 12 weeks from the date of receipt of copy of this order. Rule is

made absolute to the above extent.

(BIREN VAISHNAV, J) Bimal